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Leonetti v. MacDermid, Incorporated

CASE NO. 5623 CRB-5-11-1



MARCH 19, 2012











The claimant was represented by Jill F. Morrissey, Esq., Morrissey, Morrissey & Mooney, LLC, 203 Church Street, P.O. Box 31, Naugatuck, CT 06770.

The respondent employer was represented by William M. O’Donnell, III, Carmody & Torrance, LLP, 50 Leavenworth Street, Waterbury, CT 06702.

At the trial level respondent insurer was represented by Christopher J. Powderly, Esq., Law Offices of Loccisano, Turret & Rosenbaum, 101 Barnes Road, 3rd Floor, Wallingford, CT 06492. They did not participate in the appeal proceedings.

This Petition for Review from the January 7, 2011 Finding and Dismissal of the Commissioner acting for the Fifth District was heard on July 22, 2011 before a Compensation Review Board panel consisting of Chairman John A. Mastropietro and Commissioners Scott A. Barton and Christine L. Engel.


JOHN A. MASTROPIETRO, CHAIRMAN. The respondent employer has petitioned for review from the January 7, 2011 Finding and Dismissal of the Commissioner acting for the Fifth District. We find no error and accordingly affirm the decision of the trial commissioner.

The trial commissioner made the following factual findings which are pertinent to our review. The claimant worked for the respondent employer for approximately twentyeight (28) years. The parties stipulated that on or about June 24, 2004, the claimant sustained an injury to his low back for which the claimant filed a timely notice of claim (“Form 30C”) on April 14, 2005. The claimant’s employment was terminated by the respondent on or about November 5, 2009 and the claimant was presented with a termination agreement for his review and signature. At trial, the claimant testified that he was not satisfied with the financial package set forth in the proposed termination agreement because the remuneration offered was only about one-half of the amount which had been extended to and accepted by a former employee of the respondent who had been employed by the respondent for the same number of years as the claimant.

The proposed termination agreement also required “that the Claimant release, remise, and forever discharge the Respondent-Employer from any and all claims, including workers’ compensation claims, that the Claimant had or might have against the Respondent-Employer which arise out of, relate to, or are in connection with his employment with the Respondent-Employer.” Findings, ¶ 5. See also Respondent’s Exhibit 2. In addition, subsection “b” of the proposed termination stated in all capital letters that, “IT IS UNDERSTOOD AND AGREED THAT THIS IS A FULL AND FINAL RELEASE OF ALL CLAIMS OF EVERY NATURE AND KIND WHATSOEVER AND RELEASES CLAIMS THAT ARE KNOWN AND UNKNOWN.” Id. The claimant testified that he did not want to release his workers’ compensation claim and retained counsel who proceeded to advise respondent’s counsel that the claimant objected to signing the termination agreement because of the release language contained in the agreement.

Attorney John Cordani, general counsel for the employer, MacDermid, testified that claimant’s counsel contacted him and requested that the employer consider removing the workers’ compensation release language from the termination agreement. However, on or about December 7, 2009, Cordani informed claimant’s counsel that MacDermid would not make any changes to the termination agreement. Claimant’s counsel then requested a hearing before the Workers’ Compensation Commission and specifically directed the Commission to issue a hearing notice to Cordani in his capacity as general counsel for MacDermid, Inc. On January 8, 2010, an informal hearing was held but Cordani did not attend and the hearing was rescheduled.

On January 26, 2010, the claimant received correspondence from MacDermid, indicating “that unless he signed and returned the original and unmodified termination agreement no later than February 5, 2010, the proposed financial payment of $70,228.51 would be withdrawn.” Findings, ¶ 12. See also Claimant’s Exhibit K. The claimant ultimately agreed to accept the offer as presented in the termination agreement and signed and faxed the letter to MacDermid’s human resources department on February 2, 2010. The termination agreement was never submitted to the Workers’ Compensation Commission for approval.

At trial, the claimant testified that he believed the payment of $70,228.51 as outlined in the termination agreement was based on the number of years he had worked for MacDermid and he was not being paid anything toward his workers’ compensation claim. The trial commissioner found the claimant’s testimony credible in this regard and determined that no consideration had been paid for the claimant’s workers’ compensation claim. The trial commissioner also concluded that the employer’s failure to submit the termination agreement to the Workers’ Compensation Commission for approval consistent with the provisions of §§ 31-290 and 31-296 C.G.S. rendered the claimant’s waiver of the workers’ compensation claim contained therein unenforceable and denied the employer’s request for an order entering the termination agreement as a full and final stipulation of the claimant’s workers’ compensation claim.1 The trial commissioner found that the Workers’ Compensation Commission retained jurisdiction over the claimant’s compensable injury of June 24, 2004 and bifurcated the claimant’s claim for permanent partial disability benefits predicated on a ten-percent disability rating furnished by the claimant’s treating physician, Michael Karnesiewicz, M.D. The trial commissioner left the claim open subject to the request of the parties and/or the Workers’ Compensation Commission.

The respondent employer filed an appeal alleging that the trial commissioner erred as a matter of law when she failed to conclude that the termination agreement was enforceable relative to the release of the claimant’s workers’ compensation claim. The respondent also contends that the trial commissioner’s conclusion that no consideration was paid for the claimant’s workers’ compensation claim constituted an unreasonable inference from the facts as she found them.

We begin our analysis of this matter with a recitation of the well-settled standard of deference we are obliged to apply to a trial commissioner’s findings and legal conclusions. The trial commissioner’s factual findings and conclusions must stand unless they are without evidence, contrary to law or based on unreasonable or impermissible factual inferences.” Russo v. Hartford, 4769 CRB-1-04-1 (December 15, 2004), citing Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). Moreover, “[a]s with any discretionary action of the trial court, appellate review requires every reasonable presumption in favor of the action, and the ultimate issue for us is whether the trial court could have reasonably concluded as it did.” Burton v. Mottolese, 267 Conn. 1, 54 (2003). “This presumption, however, can be challenged by the argument that the trial commissioner did not properly apply the law or has reached a finding of fact inconsistent with the evidence presented at the formal hearing.” Christensen v. H & L Plastics Co., Inc., 5171 CRB-3-06-12 (November 19, 2007).

We turn to the respondent’s first allegation of error: that the trial commissioner erred as a matter of law when she concluded that the termination agreement proffered by the respondent employer and signed by the claimant did not constitute an enforceable agreement relative to the release of the claimant’s workers’ compensation claim.2 The respondent essentially asserts that because the claimant voluntarily signed the termination agreement, the trial commissioner should have forced the claimant to abide by its terms. “[I]n private disputes, a court must enforce the contract as drafted by the parties and may not relieve a contracting party from anticipated or actual difficulties undertaken pursuant to the contract, unless the contract is voidable on grounds such as mistake, fraud or unconscionability.” Appellant’s Brief, p. 5, citing Holley Hill Holdings v. Lowman, 226 Conn. 748, 756 (1993); 1 Restatement (Second), Contracts §§ 154, 159 (1981); 2 Restatement (Second), Contracts § 208 (1981). The respondent notes that although the claimant and/or his counsel spent three months attempting to renegotiate the language in the agreement releasing the respondent from liability for the claimant’s workers’ compensation claim, the respondent refused to accede to the requested changes. As such, once the claimant finally signed the termination agreement, the agreement constituted an enforceable instrument releasing the claimant’s workers’ compensation claim. “[C]ourts do not unmake bargains unwisely made. Absent other infirmities, bargains moved on calculated considerations, and whether provident or improvident, are entitled nevertheless to sanctions of the law....” Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 505-506 (2000).

We do not quibble with the respondent’s rendition of standard contract law. However, what the respondent has apparently failed to appreciate is that the application of the doctrine of standard contract law to the forum of workers’ compensation is subject to a number of caveats, beginning with but by no means limited to the statutory prohibition contained in § 31-290 C.G.S. which relatively succinctly states that “[n]o contract, expressed or implied, no rule, regulation or other device shall in any manner relieve any employer, in whole or in part, of any obligation created by this chapter, except as herein set forth.” The Workers’ Compensation Commission is a creature of statute, and “[i]t is a familiar principle that a court which exercises a limited and statutory jurisdiction is without jurisdiction to act unless it does so under the precise circumstances and in the manner particularly prescribed by the enabling legislation.” Castro v. Viera, 207 Conn. 420, 427428 (1988), quoting Heiser v. Morgan Guaranty Trust Co., 150 Conn. 563, 565 (1963). As such, the commission “must act strictly within its statutory authority, within constitutional limitations and in a lawful manner.... It cannot modify, abridge or otherwise change the statutory provisions, under which it acquires authority unless the statutes expressly grant it that power.” Id., at 428, quoting Waterbury v. Commission on Human Rights & Opportunities, 160 Conn. 226, 230 (1971).

In addition to the blanket prohibition codified in § 31-290 C.G.S. against employers seeking to discharge their obligations outside the workers’ compensation forum, § 31-296 C.G.S. of the Workers’ Compensation Act provides a mechanism for approval by a commissioner of agreements reached between employers and claimants for the payment of compensation.3 Although § 31-296 C.G.S. specifically contemplates that a trial commissioner will review a voluntary agreement for payment of permanent partial disability benefits, the provisions of the statute have been extended to encompass approval of a stipulation, which is “a compromise and release type of settlement similar to settlements in civil personal injury cases where a claim is settled with a lump sum payment accompanied by a release of the adverse party from further liability.” Muldoon v. Homestead Insulation Co., 231 Conn. 469, 479-480 (1994), quoting J. Asselin, Connecticut Workers’ Compensation Practice Manual (1985), pp. 207-208. “Although the act does not explicitly provide for this type of settlement, we have consistently upheld the ability to compromise a compensation claim as inherent in the power to make a voluntary agreement regarding compensation.” Id., at 480, citing Sugrue v. Champion, 128 Conn. 574, 578-79 (1942). However, “[a]s in the case of a voluntary agreement, no stipulation is binding until it has been approved by the commissioner.” Id.

Moreover, it should be emphasized that it is not the trial commissioner’s role to merely “rubber-stamp” an agreement which has been presented to him by the parties to a dispute. “Approval of such a stipulation by the commissioner is not an automatic process. It is his function and duty to examine all the facts with care before entering an award, and this is particularly true when the stipulation presented provides for a complete release of all claims under the act.” Welch v. Arthur A. Fogarty, Inc., 157 Conn. 538, 545 (1969). The close oversight afforded to settlements between employers and claimants is entirely consistent with the humanitarian and remedial purpose of the Workers’ Compensation Act.

Payment of compensation under the act is consequently upon an entirely different basis from payments made in satisfaction of common law rights. It has given effect to a revolutionary change in public policy by imposing on the employer his share of a common loss in a common industry, which the state is interested in seeing that he shall bear lest the injured employee become a public charge.

Sugrue, supra, at 579.

As such, “[t]he provisions of the Compensation Act make clear that it is the underlying scheme and purpose of the law to protect the employee, even to the extent of rendering nugatory his own agreement when it fails to assure him of the compensation which the law intends he should have.” Id.

Sections 31-278 and 31-298 of the Workers’ Compensation Act confer upon the trial commissioners the powers necessary to not only review but, on occasion, reject an agreement reached between the parties.4 In order to assist trial commissioners in assessing the merits of a proposed settlement and “assuring that a claimant comprehends the nature and scope of a stipulation,” Festa v. Hamden, 16 Conn. Workers’ Comp. Rev. Op. 46, 48, 3052 CRB-3-95-4 (October 16, 1996), the Workers’ Compensation Commission:

has promulgated a form entitled “Stipulation and What It Means” that enumerates the consequences of a stipulation from a claimant’s point of view. The form explains to the claimant that the stipulation is a final settlement, that rights to future medical, disability and loss of income benefits may be lost by accepting the stipulation, and that one’s right to a formal hearing is also waived by settling the case. The form also directs the claimant to ask any questions he or she may have about the stipulation and its effects. Before a claimant may agree to a stipulation, a commissioner must canvass the claimant to insure that he has considered these issues and still wants to settle his case.


In fact, in Festa, supra, a trial commissioner declined to hold a claimant to the terms of a stipulated agreement reached with his employer when the evidence indicated that the claimant was suffering from a hypoglycemic attack at the time he was initially canvassed by the trial commissioner regarding the terms of the agreement.5 Noting that “the commissioner did not ask the claimant if he understood this to be a final settlement of his case, and if he wished to formally enter into the agreement at that time,” id., at 49, the board concluded that “there was significant doubt as to the claimant’s capacity to understand the nature and extent of the stipulation on that date ....” Id. “Where the commissioner has reason to suspect that the claimant does not understand the nature and scope of the stipulation, or that the stipulation is no longer agreed to by both parties at the time it is being offered for approval, or that the claimant is being coerced into signing the stipulation, he is entitled to reject that agreement.” Dowling Considine v. Slotnik, 3468 CRB-4-96-11 (May 6, 1998).

Turning to the instant evidentiary record, the claimant testified at trial that he first received the termination agreement on or about November 5, 2009 and returned a copy to the employer on December 27, 2009 after having crossed out the references to his workers’ compensation claim. May 4, 2010 Transcript, pp. 29, 45. See also Respondent’s Exhibit 1. The claimant confirmed that his “proposed revisions were not acceptable to MacDermid,” id., at 46, and acknowledged that he did ultimately sign the termination agreement containing the language releasing his workers’ compensation claim. Id., at 29. The claimant explained, “I ran out of time. After repeated efforts to try to get this decision heard by the commissioner, I ran out of time. I had no choice but to sign the document as is.” Id., at 28. The claimant testified that he “was infuriated at MacDermid trying to take this away from me after I had been injured in their employ, doing the best that I could do to make the company money.” Id., at 30-31. When queried by respondent’s counsel as to whether he “had” to sign the agreement, the claimant replied: “I did. I needed the money.” Id., at 42. He then went on to state:

I wrote to the CEO, and I told him that my option was to either not sign it and put my family in jeopardy; or to sign it and take my chances, and my chances meaning that I’ve done everything I could to show that I tried to bring this before a commissioner prior to the deadline.

Id., at 42.

The claimant confirmed that he received correspondence from the employer dated January 26, 2010 giving him until February 5, 2010 to sign the document, and testified that he signed the document on February 2, 2010.6 Id., at 51. See also Claimant’s Exhibit K. When queried by respondent’s counsel regarding his “understanding” of the status of his workers’ compensation claim after he had signed and returned the agreement, the claimant answered, “[m]y understanding was that we would work it out in court.” July 21, 2010 Transcript, p. 79. When later asked by his own counsel if he did not want the trial commissioner “to approve the termination agreement as it relates to a full and final settlement of your workers’ compensation claim,” the claimant replied, “[c]orrect.” Id., at 81. The claimant also remarked, “[i]t’s never been my intent to settle this. I want the claim left open because my very first visit to Dr. Karnasiewicz when the injury occurred, he told me and repeated again in 2009 that my condition would require a four-level fusion. He said, You’re doing great, just keep exercising, do what you do, because there’s a 50-50 chance that you won’t walk after the surgery.”7 Id., at 80-81.

The respondent called as a witness John Cordani, general counsel and secretary for MacDermid. Cordani testified that he usually only became involved with termination agreements when someone wanted to negotiate a change in the language of the standard termination agreement used by the employer. July 21, 2010 Transcript, p. 14. Relative to the instant matter, Cordani testified that once the employer had made the decision not to change the release language of the termination agreement, he telephoned claimant’s counsel and told him:

I discussed it as promised with the appropriate people at MacDermid and that MacDermid did not want to set a precedent to making changes to the release language because MacDermid doesn’t do it. It just doesn’t change the release language in the agreement, and MacDermid did not want to entertain a change to this, either.

Id., at 18.

Cordani indicated that he could not remember ever agreeing to change the release language,” id., at 21, although in his experience MacDermid would occasionally agree to negotiate other provisions in the termination agreement. Id. Cordani conceded that he had received a telephone call from claimant’s counsel alerting him that the release of the claimant’s workers’ compensation claim would not be effective absent approval by the trial commissioner. Cordani testified that he replied as follows:

I don’t practice workers’ compensation law. I don’t really know what workers’ compensation law deals with, generally. I don’t know the ins and outs of it. I said the language is what it is, we wouldn’t change it, and that’s basically it. I basically said, I don’t practice workers’ compensation law, so I can’t really discuss that with you. But I do know we can’t change the terms of the agreement.

Id., at 23-24.

Cordani stated that company policy prescribed that if an employee did not sign the termination agreement, the severance payment would not be made. Id., at 29.

Based on the foregoing discussion, it is abundantly clear that the protections and safeguards contemplated by the provisions of the Workers’ Compensation Act were not observed by the employer relative to the circumstances surrounding the employer’s proffer of the termination agreement to the claimant purporting to release his workers’ compensation claim. In fact, one could almost go so far as to say as the events portrayed in this matter represent exactly the type of scenario the provisions of the Workers’ Compensation Act were intended to prevent. The respondent argues that the claimant’s signature on the termination agreement, and concomitant acceptance of the severance payment, provide sufficient grounds for the trial commissioner to find the termination agreement enforceable in the workers’ compensation forum. We disagree; in light of our analysis of relevant statutory and case law contained herein, it is clear that such a holding would comport with neither the letter nor the spirit of the Workers’ Compensation Act.

The respondent also points out that the claimant obviously understood that the release language was enforceable given his efforts to carve the release language out of the agreement and by signing the agreement, “the Claimant intended to release his workers’ compensation claim in exchange for the significant monetary consideration he received from MacDermid.” Appellant’s Brief, p. 7. Again, we disagree; the evidentiary record in this matter, particularly the testimony of the claimant, does not begin to support such an inference. Neither do we find remotely credible the accusation that “the Trial Commissioner has effectively permitted the Claimant to perpetrate a fraud against MacDermid.” Id., at 8. Whether as a matter of law the contract as signed by the parties, apart from the references to the claimant’s workers’ compensation claim, is an enforceable termination agreement is a determination for another forum; our jurisdiction is limited to whether the document serves an acceptable instrument for releasing the claimant’s workers’ compensation claim, and we find that the record clearly supports the trial commissioner’s decision that it does not. The respondent employer voluntarily chose to bring itself within the ambit of the Workers’ Compensation Commission when, through its insurer, it accepted and found compensable the claimant’s injuries. Claimant’s Exhibit A (May 3, 2010 faxed stipulation as to compensability from insurer’s counsel to claimant’s counsel, employer’s counsel, and trial commissioner Nancy Salerno). Having done so, the employer cannot now claim to be unfairly compromised by its belated discovery that the jurisdiction of this commission also should have been implicated in the attempts to settle the claim.8

Once the parties have invoked the jurisdiction of this agency, any resolution of pending issues involving the payment of compensation must be ratified by the commissioner in order for it to constitute a binding judgment. A settlement agreement is not self-actuating, and does not by its mere existence implicate the trier’s subject matter jurisdiction.... Instead, the parties must present their contractual compromise to the judicial authority, so that he or she may review the agreement and consider entering judgment accordingly.... This requires that the parties successfully communicate their intent to settle the case before the commissioner releases his decision. (Internal citations omitted.)

Schiano v. Bliss Exterminating Co., 4104 CRB-4-99-8 (February 21, 2001), rev’d on other grounds, 260 Conn. 21 (2002).

The trial commissioner’s conclusion that the termination agreement signed by the claimant does not represent an enforceable release of his workers’ compensation claim is hereby affirmed.

We turn next to the respondent employer’s second claim of error: that the trial commissioner’s conclusion that no consideration was paid to the claimant for the release of his workers’ compensation claim was inconsistent with her factual findings. The respondent challenges the trial commissioner’s apparent adoption of the claimant’s testimony relative to his impression that MacDermid generally calculated its severance packages according to a policy of paying one week’s salary for every year of employment. The respondent points out that although the trier found that the claimant was with MacDermid for approximately twenty-eight years, she found that his termination agreement only provided for twentyseven weeks of severance pay. Moreoever, the trial commissioner also found that another former MacDermid employee who worked approximately the same number of years as the claimant received a severance package which was almost twice as large as the claimant’s. The respondent contends that these “factual findings demonstrate that MacDermid assessed each employee individually when formulating a severance package, with only one constant – requiring a full release of all claims of every nature, including without limitation workers’ compensation claims.” Appellant’s Brief, p. 9. As such, the trier’s factual findings relative to the amount of the claimant’s severance payment and that of his coworker were inconsistent with her conclusion that the claimant received no consideration for the release of his workers’ compensation claim.

In association with this claim of error, the respondent, pursuant to Administrative Regulation § 31-301-9 C.G.S., has submitted a Motion to Submit Additional Evidence in order to introduce the testimony of one Michael Goralski, the claimant’s supervisor at the time the claimant was terminated from MacDermid.9 The respondent contends that Goralski would offer additional testimony relative to the circumstances surrounding the proffer and acceptance of the termination agreement. The respondent asserts that Goralski’s testimony “is material in that it demonstrates that the Claimant intended to release his workers’ compensation claim at the time that he signed the Termination Release Agreement and accepted the significant monetary consideration paid by MacDermid.” Respondent/Appellant’s Motion to Submit Additional Evidence, p. 2. In addition, the respondent asserts that “[t]he proposed testimony is also material in that it demonstrates that the Claimant received consideration for the release of his workers’ compensation claim.” Id. The respondent asserts that it did not present this testimony at the formal hearing because it was its understanding that “the sole issue before the Trial Commissioner was whether the Termination-Release Agreement had to be approved by the Commissioner in order to effectively release the Claimant’s workers’ compensation claim against MacDermid.” Id., at 3.

Our review of the transcript of the first formal hearing held in this matter on May 4, 2010 reveals that the trial commissioner opened the proceedings by stating that the “[f]irst and foremost seminal issue ... is subject matter jurisdiction, whether the separation agreement signed by the Claimant on February 2, 2010, is enforceable as it relates to the closing of the Claimant’s June 1, 2004 compensable lumbar workers’ compensation case.” Transcript, pp. 3-4. Counsel for both parties concurred with the trial commissioner’s statement. Id., at 4. Shortly thereafter, claimant’s counsel stated the claimant would be relying on Muldoon, supra, as “authority for our proposition that [the agreement] is not enforceable as a separation agreement in terms of workers’ comp and is not supported by consideration.” (Emphasis added.) Id., at 21. Later in the hearing, when queried by respondent’s counsel relative to his understanding that the severance agreement was based on twenty-seven weeks of pay, the claimant agreed and then went on to testify that the amount in question was “usual, typical and customary.” Id., at 34. Respondent’s counsel posed another question to the claimant regarding his understanding of the calculations underlying the severance package, to which the claimant answered: “I went to MacDermid, and the reason I remember this is because I was a 28-year employee. MacDermid’s policy, unwritten or whatever it is, was always one week of pay for each year of service. And I do remember the 27 weeks because I was a 28-year employee.” Id.

At the second formal hearing held in this matter on July 21, 2010, our review of the transcript indicates that the issue of consideration again arose during claimant’s counsel’s crossexamination of John Cordani, MacDermid’s general counsel and secretary. Cordani testified that he did not know the claimant’s weekly compensation rate, permanency rating or the number of weeks of permanency to which the claimant would be entitled. Transcript, p. 51. Cordani also stated that he had never discussed the value of the claimant’s workers’ compensation claim with the claimant, id., at 52, and that he “presumed” the settlement amount was recommended by the claimant’s supervisor, Mike Goralski. Id., at 55, 57. Cordani indicated that he “wasn’t involved in setting the amount” of the claimant’s severance package. Id., at 57. At the close of the formal hearing, the trial commissioner queried the parties as follows: “Is there anything other than [§] 31-296 that you are contemplating ... when you say subject matter jurisdiction? Any other statutes, any other factors, that you want me to consider?” Id., at 85-86. In reply, respondent’s counsel re-asserted the position that the agreement was enforceable and, if approval by the workers’ compensation commissioner was required, requested that the agreement be approved as a full and final stipulation. Id., at 86.

The foregoing excerpts from the formal proceedings held in this matter indicate quite clearly that the issue of whether the claimant received consideration in exchange for the release of his workers’ compensation claim arose at several points throughout the trial. However, despite the statements by the trial commissioner and the testimony offered at trial, the respondent did not call its own witness to testify on the issue and, in fact, the one witness called by the respondent testified quite clearly as to his complete lack of knowledge as to the specifics of how the claimant’s severance package was calculated. Having thus failed to introduce its own evidence at trial, the respondent cannot fault the trial commissioner’s decision to find credible the claimant’s testimony relative to his understanding of how MacDermid generally calculated severance packages and to rely on this testimony in reaching her determination as to whether the claimant’s own severance package encompassed consideration for his workers’ compensation claim. “It is ... immaterial that the facts permit the drawing of diverse inferences. The [commissioner] alone is charged with the duty of initially selecting the inference which seems most reasonable and his choice, if otherwise sustainable, may not be disturbed by a reviewing court. Fair v. People’s Savings Bank, 207 Conn. 535, 540 (1988), quoting Del Vecchio v. Bowers, 296 U.S. 280, 287 (1935).

Moreover, with specific regard to the respondent’s Motion to Submit Additional Evidence, the trial commissioner’s opening remarks made it clear at the outset that the scope of her inquiry would go beyond merely ascertaining whether the subject termination agreement required her approval. We are inclined to agree with the claimant that the element of consideration was “[c]learly ... encompassed in the issue of enforceability” and subject matter jurisdiction as identified by the trial commissioner at the start of the formal proceedings. Objection to Appellant’s Motion to Submit Additional Evidence, p. 2. Given the trial commissioner’s summation of the issues and the subsequent testimony by the claimant and the respondent’s witness, we fail to comprehend why the testimony contemplated by the motion, i.e., that of the claimant’s supervisor, Michael Goralski, could not have been presented at the trial level. This is particularly so given that his name was actually mentioned by the respondent’s witness at trial as someone who had direct knowledge of how the claimant’s severance agreement was calculated. “A party to a compensation case is not entitled to try his case piecemeal, to present a part of the evidence reasonably available to him and then, if he loses, have a rehearing to offer testimony he might as well have presented at the original hearing.” Kearns v. Torrington, 119 Conn. 522 (1935). There is no error; the trial commissioner’s findings with respect to the issue of whether the termination agreement afforded the claimant consideration for his workers’ compensation claim are affirmed and the respondent’s Motion to Submit Additional Evidence is denied.

Having found no error, the January 7, 2011 Finding and Dismissal of the Commissioner acting for the Fifth District is accordingly affirmed.

Commissioners Scott A. Barton and Christine L. Engel concur in this opinion.

1 Section 31-290 C.G.S. (Rev. to 2003) states: “No contract, expressed or implied, no rule, regulation or other device shall in any manner relieve any employer, in whole or in part, of any obligation created by this chapter, except as herein set forth.”

Section 31-296(a) C.G.S. (Rev. to 2003) states, in pertinent part: “If an employer and an injured employee, or in case of fatal injury the employee’s legal representative or dependent, at a date not earlier than the expiration of the waiting period, reach an agreement in regard to compensation, such agreement shall be submitted in writing to the commissioner by the employer with a statement of the time, place and nature of the injury upon which it is based; and, if such commissioner finds such agreement to conform to the provisions of this chapter in every regard, he shall so approve it. A copy of the agreement, with a statement of the commissioner’s approval thereof, shall be delivered to each of the parties and thereafter it shall be as binding upon both parties as an award by the commissioner.” BACK TO TEXT

2 We note that the respondent did not file a Motion to Correct; as a result, “we must accept the validity of the facts found by the trial commissioner and this board is limited to reviewing how the commissioner applied the law.” Corcoran v. Amgraph Packaging, Inc., 4819 CRB-2-04-6, 4948 CRB-2-05-5 (July 26, 2006). BACK TO TEXT

3 See footnote 1, supra. BACK TO TEXT

4 Section 31-278 C.G.S. (Rev. to 2003) states: “Each commissioner shall, for the purposes of this chapter, have power to summon and examine under oath such witnesses, and may direct the production of, and examine or cause to be produced or examined, such books, records, vouchers, memoranda, documents, letters, contracts or other papers in relation to any matter at issue as he may find proper, and shall have the same powers in reference thereto as are vested in magistrates taking depositions and shall have the power to order depositions pursuant to section 52-148. He shall have power to certify to official acts and shall have all powers necessary to enable him to perform the duties imposed upon him by the provisions of this chapter.”

Section 31-298 C.G.S. (Rev. to 2003) states, in pertinent part: “In all cases and hearings under the provisions of this chapter, the commissioner shall proceed, so far as possible, in accordance with the rules of equity. He shall not be bound by the ordinary common law or statutory rules of evidence or procedure, but shall make inquiry, through oral testimony, deposition testimony or written and printed records, in a manner that is best calculated to ascertain the substantial rights of the parties and carry out the provisions and intent of this chapter.”BACK TO TEXT

5 It should be noted that in Festa v. Hamden, 16 Conn. Workers’ Comp. Rev. Op. 46, 3052 CRB-3-95-4 (October 16, 1996), the claimant did not sign a written stipulation but, rather, agreed to terms which were recited into the record at the hearing. The claimant later contended that it was his expectation the agreement would be put into writing and he would have another chance to review it. BACK TO TEXT

6 The January 26, 2010 correspondence to the claimant from Nancy Castigliego on behalf of MacDermid stated: “As of February 5, 2010, our offer to enter into the Termination Agreement will terminate. Therefore, as of February 5, 2010, you will no longer have the opportunity to accept the proposed Termination Agreement, and as a result you will not receive the proposed severance payment.” Claimant’s Exhibit K. BACK TO TEXT

7 In his consultation report of December 9, 2009, Dr. Karnasiewicz wrote that he had discussed surgical options with the claimant but the claimant had chosen to defer having surgery. The doctor reported that “short of surgery, Mr. Leonetti is at his point of maximum medical improvement in regard to his back injury,” and ascribed to the claimant a ten-percent permanent partial disability of the lumbar spine. Claimant’s Exhibit B. BACK TO TEXT

8 We note that the informal hearing scheduled for January 8, 2010 would have provided just such a forum for the employer to bring its concerns regarding the termination agreement to the attention of the trial commissioner. The record indicates that claimant’s counsel wrote to Attorney Cordani on November 30, 2009 requesting that references to the claimant’s workers’ compensation claim in the termination agreement be eliminated and that a clarification be made that the agreement would not release the workers’ compensation claim. Claimant’s Exhibit C. Attorney Cordani testified that he called claimant’s counsel on or about December 7, 2009 informing him that the employer would not change the terms of the separation agreement and that claimant’s counsel advised him that the separation would not be effective without the approval of the workers’ compensation commission. July 21, 2010 Transcript, pp. 18, 23. The record also contains correspondence dated December 22, 2009 from claimant’s counsel to Attorney Cordani reiterating the claimant’s position that the termination agreement “really has no effect without the Commissioner’s approval” and providing a copy of the January 8, 2010 hearing notice. Claimant’s Exhibit D. Nevertheless, while a representative from Liberty Mutual did attend the hearing, the respondent employer declined to send its own representative. May 4, 2010 Transcript, p. 20. BACK TO TEXT

9 Section 31-301-9 C.G.S. (Rev. to 2003) states, in pertinent part: “If any party to an appeal shall allege that additional evidence or testimony is material and that there were good reasons for failure to present it in the proceedings before the commissioner, he shall by written motion request an opportunity to present such evidence or testimony to the compensation review division, indicating in such motion the nature of such evidence or testimony, the basis of the claim of materiality, and the reasons why it was not presented in the proceedings before the commissioner. The compensation review division may act on such motion with or without a hearing....” BACK TO TEXT


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