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CASE NO. 5505 CRB-1-09-10
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
SEPTEMBER 27, 2010
STANDARD FIRE INSURANCE COMPANY
SECOND INJURY FUND
The claimant appeared pro se.
The employer was represented by Jason Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Suite 216, Glastonbury, CT 06033 who appeared at oral argument but did not participate.
The Second Injury Fund was represented by Lawrence Widem, Esq., AAG, Office of the Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the September 22, 2009 Finding and Dismissal of the Commissioner acting for the First District was heard March 26, 2010 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Jack R. Goldberg and Christine L. Engel.
JOHN A. MASTROPIETRO CHAIRMAN. The claimant in this matter has appealed from a denial of his motion to reopen a previously approved Voluntary Agreement and reopen a Stipulation. We can find no legal error in the trial commissioner’s decision. Therefore, we affirm the Findings of the trial commissioner and dismiss this appeal.
The following facts are pertinent to our consideration of this appeal. The Commission approved a Voluntary Agreement for the claimant on July 7, 1989 wherein his employer, Pratt & Whitney, accepted the compensability of a September 4, 1985 back injury. This agreement established a 15% permanent partial disability for the claimant’s back with a date of maximum medical improvement set as of December 15, 1986. On January 3, 1992 an agreement was approved by the Commission wherein responsibility for this injury was transferred to the Second Injury Fund (the “Fund”).
On November 1, 2000 Commissioner Ernie Walker approved a Stipulation For Full and Final Settlement dated October 23, 2000 (“Stipulation”) intended to resolve the dispute over the claimant’s injuries. The claimant was represented by Attorney George Murray in this proceeding. The Stipulation called for the claimant to receive twenty-five thousand ($25,000) dollars as a full and final settlement for his accepted September 4, 1985 back injury. The commissioner’s notes reflect that the commissioner reviewed the terms of the stipulation and canvassed the claimant before approving the agreement. The claimant also received a copy of a document entitled Stipulation And What It Means and acknowledged to the commissioner the Stipulation he was signing was intended to be a full and final settlement of the case.
Notwithstanding the execution of the 2000 stipulation, the claimant filed a hearing request with the Commission in 2004 claiming he had received “new discovery” as to his case. This was followed in 2006 by a Motion To Modify Stipulation For Full and Final Settlement. This Motion asserted a number of alleged errors, but the trial commissioner found the key issue was the claimant asserted that he was unaware at the time he executed the Stipulation that a medical report issued by Dr. Mervyn Rimai, an internist, assigned a permanent partial disability of fifty-nine (59%) percent to his lumbar spine. The claimant asserted at the formal hearing in 2009 he had not become aware of this report until three years after he had authorized the stipulation. The trial commissioner noted that at the 2009 formal hearing the claimant chose to represent himself.
The trial commissioner cited the evidence presented in favor of reopening the Stipulation. The claimant testified as to a number of back injuries at work, including the September 4, 1985 injury. In 1987 the claimant’s treating physician, Dr. Steven Selden, opined that the claimant sustained a 15% permanent partial disability to his lumbar spine, of which 5% was attributed to non-work factors. The respondents had Dr. W. Jay Krompinger examine the claimant in 2000. He opined that the claimant had sustained a 15% permanent partial disability to his lumbar spine, all attributed to the accepted September 4, 1985 injury. The claimant argued that the signature of the 1987 Voluntary Agreement was not his. He also testified that while he did sign the Stipulation in 2000, and did discuss the document with counsel and understood the document; the Stipulation should not have been presented to the commissioner unless Dr. Rimai’s medical report and rating was presented to the commissioner. While the claimant testified he was unaware of Dr. Rimai’s medical report until 2003, he also testified no one representing the respondents had misled him or induced him by misrepresentation to sign the Stipulation.
The claimant also argued that the respondents had failed to comply with § 31-313 C.G.S. He testified he was laid off in September of 1986, and since he was capable of doing light duty work until 1990, he should now receive back wages.
The claimant’s attorney when he executed the Stipulation, George Murray, testified at the 2009 formal hearing. Attorney Murray testified that he was aware of Dr. Rimai’s report and sent the claimant a copy of his report prior to the hearing in which the Stipulation was approved. Attorney Murray testified he did not present Dr. Rimai’s report since he did not believe the opinion of Dr. Rimai, who was not a specialist, would have an impact on the amount of the settlement the claimant would receive.
After considering the evidence the trial commissioner concluded the claimant had not sustained his burden of proving the Stipulation should be reopened. He found no competent evidence was presented that established a change in the claimant’s condition, nor was any competent evidence presented that the respondents has procured the execution of the stipulation by “accident, fraud or improper management.” He further found that there was no competent evidence presented that there was mutual mistake concerning a material fact which would permit the Stipulation to be reopened. He further found the claimant’s claims regarding § 31-313 C.G.S were extinguished by the execution of the Stipulation in 2000.
The claimant filed a Petition for Review on October 13, 2009 from the September 22, 2009 dismissal of his motion, but did not file a Motion to Correct or Reasons for Appeal. The Fund filed two Motions to Dismiss the appeal; the first asserting the appeal was filed late, and the second asserting the claimant’s brief was late. The claimant did file a brief on January 21, 2010 for a hearing scheduled for March 26, 2010. We find the Fund’s motions herein unmeritorious. We find the date to file the initial appeal had been extended due to a state holiday and by operation of law the appeal was timely. We also find no averment that the Fund was prejudiced by the delay in the filing of the claimant’s brief, and therefore deny this motion as well.
The claimant argued his case before this panel on the merits and reiterated his argument that the 1997 Voluntary Agreement was invalid due to a forged signature and the 2000 Stipulation should be reopened since Dr. Rinai’s report was never presented to the trial commissioner for his consideration. He insisted he never received the report from Dr. Rinai and further alleged the terms of the Stipulation were altered after he executed the document. As an appellate panel, these are not issues where we can offer relief to the claimant, as they constitute issues of fact. Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 451 (2001). Our standard of review is limited to addressing findings of fact that are “clearly erroneous.” Berube v. Tim’s Painting, 5068 CRB-3-06-3 (March 13, 2007). The trial commissioner in this matter reached findings of fact which were consistent with the testimony and evidence that he found credible and probative.
Had the claimant sought to challenge the trial commissioner’s factual findings the vehicle to address this concern was by filing a Motion to Correct. The claimant failed to do so, and as we pointed out in Stevens v. Raymark Industries, Inc., et al., 5215 CRB-4-07-4 (March 26, 2008) when this occurs “we must accept the validity of the facts found by the trial commissioner, and that this board is limited to reviewing how the commissioner applied the law. See Admin. Reg. § 31-301-4.” Id.
The trial commissioner concluded the claimant failed to establish that the Stipulation was procured improperly or the result of mutual mistake. We most recently discussed the statutory requirements under § 31-315 C.G.S. to reopen a stipulation in Mohamed v. Domino’s Pizza, 5352 CRB-6-08-6 (April 22, 2009). In Mohamed, we cited the Appellate Court holding in O’Neil v. Honeywell, 66 Conn. App. 332, 337-38 (2001).
Section 31-315 allows the commission to modify an award in three situations. First, modification is permitted where the incapacity of an injured employee has increased, decreased or ceased, or . . . the measure of dependence on account of which the compensation is paid has changed. . . Second, the award may be modified when changed conditions of fact have arisen which necessitate a change of [the award]. . . . Third, [t]he commissioner shall also have the same power to open and modify an award as any court of the state has to open and modify a judgment of such court. Id.
Based on the argument presented by the claimant the only issue under which the trial commissioner could offer relief to the claimant was under the theory that the initial Stipulation was voidable. As we pointed out in Mankus v. Robert Mankus, 4958 CRB-1-05-6 (August 22, 2006), aff’d, 107 Conn. App. 585 (2008) citing Marone v. City of Waterbury, 244 Conn. 1, 17 (1998) “[t]his provision extends the commission’s power to open and modify judgments to cases of accident, to mistakes of fact, and to fraud” [Internal citations omitted]. The trial commissioner did not believe the claimant was misled prior to executing the Stipulation and the claimant specifically testified the respondents had not acted improperly at the time the agreement was executed. Therefore, unlike Mankus, supra, the record is devoid of any argument the original action of the Commission was a result of misrepresentation or artifice by the part of the adverse party.
The principal argument advanced by the claimant appears to be that had the trial commissioner in 2000 been made aware of Dr. Rinai’s report that the commissioner would not have approved the Stipulation at the compensation level it provided. The trial commissioner in the present matter reviewed the report and took testimony from claimant’s counsel at that time and from the claimant. He concluded that there had not been a “mutual mistake in fact” from this strategy. The Fund cites Segretario v. Stewart-Warner Corporation, 9 Conn. App. 355, 362-363 (1986) as governing the standard for reopening a judgment when attorney error is alleged. We agree with the Fund. The trial commissioner was not persuaded the result herein would have been different had Dr. Rinai’s report been presented to the trial commissioner who approved the Stipulation in 2000. We do not find this conclusion unreasonable. Moreover, we infer that the trial commissioner in the present matter determined that Attorney Murray made a reasoned decision not to rely on this evidence. This does not rise to the standard of “accident or mistake” required to reopen a judgment.
Therefore, we find no legal error. The trial commissioner’s Findings are affirmed and this appeal is dismissed.
Commissioners Jack R. Goldberg and Christine L. Engel concur in this opinion.