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CASE NO. 5035 CRB-8-05-12
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
DECEMBER 20, 2006
RISK ENTERPRISE MANAGEMENT
The claimant was represented by Lawrence Brick, Esq., 433 South Main Street, Suite 102, West Hartford, CT 06110.
The respondents were represented by James Moran, Esq., Maher & Williams, 1300 Post Road, P.O. Box 550, Fairfield, CT 06430-0550.
This Petition for Review1 from the November 30, 2005 Finding and Award of the Commissioner acting for the Eighth District was heard June 23, 2006 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr., and Nancy E. Salerno.
JOHN A. MASTROPIETRO, CHAIRMAN. The respondents in this matter have appealed from an award of statutory sanctions for late payment on a stipulation. The claimant sought and obtained this sanction from the trial commissioner for the Eighth District as he received his check from the respondents approximately 39 days after the stipulation was approved. While the trial commissioner determined this payment was untimely under § 31-303 C.G.S., our review of the record and the appropriate case law indicates the commissioner had an inadequate record to reach such a determination. Accordingly, we remand this matter for additional findings.
The parties agree that on September 2, 2004 the commissioner for the Eighth District approved an “Agreement for Stipulation for Full and Final Settlement” wherein the claimant agreed to accept $75,000 in exchange for releasing his claims against the Respondents. Paragraph 8 (a) of the Agreement establishes that $15,000 of the settlement amount was to cover legal fees and costs of the claimant. Paragraph 8 (b) assigned a cash value of $7,500 to future medical expenses to be paid by the Respondents. Paragraph 8 (c) assigned the remaining $52,500 as payable to the claimant for lost wage replacement and permanent partial impairment.
Paragraph 15 of the Agreement stated that,
It is hereby agreed by the parties that payment pursuant to this Stipulation shall be made by the Respondent-Insurer within thirty (30) days of receipt by the Respondent-Insurer of a properly executed and approved agreement. No penalties, fines, attorney’s fees or interest pursuant to C.G.S. 31-288, C.G.S. 31-300 or C.G.S. 31-303 and/or other applicable provisions shall be assessed provided that payment is made during that time.” (Emphasis added)
The respondent-insurer decided to mail separate checks for this settlement. A review of the agreement indicates it was silent as to how checks for the settlement were to be issued. A check for $15,000 was issued to claimant’s counsel. Findings, ¶ 3. The other check for $52,500 was mailed to a former address of the claimant in New Britain. Findings, ¶ 4. Respondents represent that both checks were issued on or about September 27, 2004. Claimant’s counsel acknowledges the check for legal fees was received within 30 days of the execution of the Agreement.
Respondents state the check for the claimant’s share of the settlement was not returned to the respondent-insurer until on or about October 5, 2004. They issued a new check on October 6, 2004, which was not received by the claimant until October 11 or 12, 2004. Findings, ¶ 6. The claimant moved for sanctions under § 31-303 C.G.S. since he did not receive his settlement check until more than 30 days had elapsed from execution of the Agreement. Following a hearing on September 21, 2005, the commissioner issued his Finding and Award. He found that there was no intent to make a late payment and that it occurred due to a clerical error, nonetheless he found the payment to the claimant was not made within the time limitations of § 31-303 and assessed the respondents a 20% penalty for late payment. Findings, ¶ 8, Findings, ¶¶ d-e.2
The respondents filed a Motion to Correct seeking to add certain additional details to the facts found by the trial commissioner, and seeking to add a Finding that in the absence of any stated mechanism in the Agreement for payment, the provisions of § 31-321 C.G.S. should be applied.3 Therefore, since the respondents had mailed the settlement check to the claimant’s last known address, they believe sanctions should be vacated. The trial commissioner denied the Motion to Correct. The respondents have appealed upon the same grounds as their Motion to Correct.
In this appeal, we must review the terms of the Agreement actually approved by the trial commissioner as to whether the respondents performed under the terms all parties and the Commission agreed to. We decline to adopt claimant’s reasoning that the Chairman’s protocol for stipulations in Memorandum 2000-11, dated October 30, 2000, should govern over the plain language of the Agreement. The parties all agreed to terms slightly different from this protocol and obtained approval of the trial commissioner to proceed in this manner; they are now estopped from renegotiating its terms after obtaining Commission approval.
The plain language of the Agreement requires “payment pursuant to this Stipulation shall be made within thirty (30) days of receipt by the Respondent-Insurer of a properly executed and approved agreement.” Therefore, the parties all agreed that the trigger date to commence the respondents’ obligation for timely payment was the date of receipt of the Agreement by the Respondent-Insurer. This date, however, was not established by the trial commissioner in his Finding and Award.4
The circumstances herein are similar to other recent cases where a Finding and Award was remanded due to the absence of necessary subordinate facts to legally sustain the Commission’s action. In Bennett v. Wal-Mart Stores, 4939 CRB-7-05-5 (May 15, 2006) we remanded an award for § 31-308(a) benefits as there were no findings as to the claimant’s willingness to work “While this board is obligated to defer to facts found by the trial commissioner, the record herein is simply inadequate to make such an inference regarding this issue on appeal. ‘The law demands that these matters be resolved before benefits can be awarded under § 31-308(a).’ Richardson, supra” Id. See also Bazelais v. Honey Hill Care Center, 5011 CRB-7-05-10 (October 25, 2006) (matter remanded for articulation when grounds for commissioner’s findings were vague).
While both parties correctly cite the Davis v. Forman School, 54 Conn. App. 841 (1999) case as the standard for review, such review requires a prior determination of the facts. Such a review cannot occur without the finding of the most material fact: when the insurer received the executed Agreement. The Davis case makes clear one must look to the terms of the agreement itself to ascertain if the statutory penalty has been triggered, since review “does not involve revisiting the underlying claim, but rather, involves compliance with the April 15, 1994 agreement between the parties” Id., 852-853.5
On remand, we believe the recent case of Echavarria v. National Grange Mutual Insurance, 275 Conn. 408 (2005) may be instructive. In that case, the Supreme Court discussed the “mailbox rule” wherein a letter which can be proven to have been mailed is presumed to have been received, “and the burden then shifts to the plaintiffs to present evidence that rebuts this presumption.” Id., 418. In that case, the Supreme Court rejected “a circular argument that requires speculation” regarding whether notice had been received. Id., 419.
The matter is herein remanded for additional findings as to the date of receipt by the respondent-insurer of the executed Agreement and additional findings as to the compliance of the respondent-insurer with the terms of the Agreement.
Commissioners Donald H. Doyle Jr. and Nancy E. Salerno concur in this opinion.
1 We note extensions of time were granted during the pendency of this appeal. BACK TO TEXT
2 The Davis v. Forman School, 54 Conn. App. 841 (1999) case clearly extends the scope of § 31-303 C.G.S. to stipulations, which authorizes “a penalty for each late payment, in the amount of twenty percent of such payment.” BACK TO TEXT
3 This statute reads as follows, “Sec. 31-321. Manner of serving notices. Unless otherwise specifically provided, or unless the circumstances of the case or the rules of the commission direct otherwise, any notice required under this chapter to be served upon an employer, employee or commissioner shall be by written or printed notice, service personally or by registered or certified mail addressed to the person upon whom it is to be served at his last-known residence or place of business.” BACK TO TEXT
4 On page 4 of his brief claimant’s counsel states, “. . . there was no credible proof as to when the settlement was received by the respondent . . . .” BACK TO TEXT
5 In Collazo v. Microboard Processing, 4912 CRB-4-05-1 (January 19, 2006), we upheld sanctions for unreasonable contest when the respondents “accepted” a claim and later said their representations were limited in some fashion. “Recent Connecticut precedent indicates that when an offer is extended to form a contract, ambiguities in the offer or contract are resolved against the party who drafted the offer.” Id. Since the Agreement in question is silent as to which party drafted it, and since there is no finding of fact by the trial commissioner as to which party drafted the agreement, we cannot resolve an ambiguity as to notice against the respondent. BACK TO TEXT