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Drew v. Sears Roebuck & Co.

CASE NO. 4400 CRB-7-01-5



MAY 2, 2002











The claimant appeared pro se on appeal, and at the formal hearing below.

The respondents were represented by Polly Orenstein, Esq., Law Office of Tracey Green Cleary, 2750 Dixwell Avenue, P.O. Box 187289, Hamden, CT 06518.

This Petition for Review from the May 22, 2001 Finding and Dismissal of the Commissioner acting for the Seventh District was heard January 25, 2002 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr. and Amado J. Vargas.


JOHN A. MASTROPIETRO, CHAIRMAN. The pro se claimant has petitioned for review from the May 22, 2001 Finding and Dismissal of the Commissioner acting for the Seventh District. She contends on appeal that the trier erred by refusing to reopen her stipulation pursuant to § 31-315 C.G.S. We find no error, and affirm the trier’s decision.

The trial commissioner found the following facts. The claimant sustained a compensable injury to her back on April 3, 1993, and subsequently received all benefits to which she was entitled under the Workers’ Compensation Act. On December 11, 1997, she entered into a stipulation settling her claim for $83,650.00. She had been represented by an attorney during the case, and she was canvassed by a commissioner before the stipulation was approved. The claimant is a college graduate who received a degree in anthropology. A Stipulation Questionnaire accompanied the stipulation, in which the claimant’s then-attorney pointed out differences in the medical opinions with respect to the claimant’s need for lumbar surgery. The claimant admitted to being fully aware of this medical issue, and testified that she had cancelled a lumbar myelogram four days prior to signing the stipulation “because [she] wasn’t positive it would show anything.” Findings, ¶ 9. In fact, the claimant testified that all of the disputed facts regarding her medical condition and her prognosis were known to her at that time.

On February 18, 1998, the claimant underwent a discogram, and submitted to a spinal fusion two months later at Yale-New Haven Hospital. She testified that this operation was performed as an experimental procedure, and bore her no cost. She also testified that financial pressures such as a substantial mortgage and $17,000.00 in credit card debt had pressured her into signing the compromise settlement. The trial commissioner found that the claimant is an intelligent woman who was represented by competent counsel, and was aware of the relevant facts at the time she signed the stipulation. He found that no change of condition had occurred that would justify reopening the stipulation pursuant to § 31-315. Therefore, he dismissed the claimant’s request to reopen the agreement. The claimant has filed an appeal from that decision.

This appeal involves § 31-315, which allows modification of an award or voluntary agreement whenever “it appears to the compensation commissioner . . . that the incapacity of an injured employee has increased, decreased or ceased, or that the measure of dependence on account of an injured employee has increased, decreased or ceased, or that changed conditions of fact have arisen which necessitate a change of such agreement, award or transfer in order properly to carry out the spirit of this chapter.” The statute also grants the commissioner the same powers to open and modify an award as any court of the state has to reopen one of its judgments, which essentially applies to cases of accident, fraud and mistake of fact (as opposed to mistake of law). Marone v. Waterbury, 244 Conn. 1, 17 (1998).

In reviewing a commissioner’s decision to grant or deny a motion to open, we are mindful that as the trier of fact, the commissioner is empowered to decide whether the claimant’s testimony and evidence are persuasive—whether or not that evidence is expressly contradicted. Audi v. Blakeslee Arpaia Chapman, 4234 CRB-3-00-5 (June 26, 2001); Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). On review, we may not disturb the trier’s factual findings unless they are without support in the evidence, or unless they omit undisputed material facts. Kisson v. Shawmut National Bank, 4188 CRB-5-00-2 (March 16, 2001); Warren v. Federal Express Corp., 4163 CRB-2-99-12 (Feb. 27, 2001). This board may not retry a case on appeal by substituting its own findings for those of the trier. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999). With respect to the modification of a voluntary agreement or award, the decision falls within the trier’s discretion as per § 31-315, and cannot be disturbed on appeal unless the trier had arbitrarily reached an unreasonable result. Audi, supra; Courtright v. State/Connecticut Valley Hospital, 3573 CRB-6-97-4 (June 5, 1998).

We recognize that the claimant is appearing pro se on this appeal, and that she was unrepresented by counsel at the formal hearing below. In the interest of the remedial spirit of the Workers’ Compensation Act, this board relaxes the rules of procedure for pro se claimants in recognition of their presumed unfamiliarity with those rules. McCarthy v. AT&T Communications Inc., 3689 CRB-6-97-9 (Aug. 7, 1998). Therefore, we will treat the claimant’s Reasons of Appeal as an adequate substitute for her brief, and will make whatever allowances we can in terms of errors that she may have committed. However, our powers are limited in this regard, and the claimant’s failure to take certain steps at trial and on this appeal cannot simply be remedied through a policy of leniency toward pro se claimants. There is no getting around the fact that it was the claimant’s obligation to prove her case to the trial commissioner by introducing adequate evidence to establish her claim, and that it was her obligation to give us enough information to review the commissioner’s decision on appeal. See Warren, supra.

The claimant did not request in her petition for review that a transcript of the formal hearing be provided to this board. It is possible that she was unaware of the importance of providing such a record. Nevertheless, without that transcript, we are unable to look back at her testimony at trial and consider the evidence she put forth before the commissioner or the issues that were raised during her testimony. From the remaining record that we do have, it does not appear that the claimant introduced any documentary evidence into the record at trial. The file contains only one exhibit—that being a patient progress report from an unspecified doctor that is listed as Respondent’s Exhibit 1. The claimant attached a number of documents to her March 2, 2001 proposed findings that she wished to submit as exhibits, but it does not appear that they were ever formally considered for admission into the record, or subjected to any sort of cross-examination. Again, it is likely that the claimant was unfamiliar with the procedure for introducing evidence, though without a transcript of the formal hearing, we cannot tell whether or not any discussion took place at that hearing regarding the possibility of a continuance so that the claimant could introduce her evidence.

The claimant has filed a Motion to Submit Additional Evidence pursuant to Admin. Reg. § 31-301-9, seeking to admit her college transcripts, a 1996 letter, bills and medical records concerning her surgery at Yale-New Haven Hospital, and a 1998 small claims suit. However, all of these records were available at the time of the formal hearing on January 20, 2001, and should have been presented to the trial commissioner as exhibits so that he could have considered their impact on her motion to reopen her stipulation. We cannot accept them as evidence now, during the appeal process. Dudley v. Wadsworth Glen, 3942 CRB-8-98-12 (Oct. 14, 1999), aff’d, 60 Conn. App. 907 (2000) (per curiam); Perry v. Carewell Rest Home, 3713 CRB-3-97-10 (Dec. 29, 1998).

Though we sympathize with the difficulties that the claimant appears to be having in her life, we cannot say that the trial commissioner’s decision to deny her motion to reopen is legally unsupported by the record. The fact is, there is no information in the official trial record to contradict the trier’s finding that the claimant did not prove a “changed condition of fact,” and there is nothing to indicate that she signed the stipulation under any sort of duress. Just as importantly, the claimant was represented by competent counsel prior to and through the signing of her stipulation, and there was plenty of time for her and her counsel to object to the terms of the stipulation before she signed it. At this point in the proceedings, we must affirm the trial commissioner’s decision.

Accordingly, the trial commissioner’s ruling is affirmed.

Commissioners Donald H. Doyle, Jr. and Amado J. Vargas concur.

Workers’ Compensation Commission

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State of Connecticut Workers' Compensation Commission, Stephen M. Morelli, Chairman
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