CRB Case Annotations re: Section 31-296

Trial commissioner relied on respondent’s expert opinion to grant Form 36. CRB affirmed on appeal. See also, Shelesky, § 31-275 (1); § 31-294d; § 31-301 Factual findings.

Claimant asserted current medical condition was result of injuries sustained falling off running board of truck. Trial commissioner accepted opinion of respondents’ expert witness that injury was self-limiting and claimant’s condition result of preexisting injuries. CRB affirmed decision on appeal. See also, Spillane, § 31-294d; § 31-301 Factual findings; § 31-307.

Trial commissioner awarded claimant indemnity benefits from date of previously granted Form 36, which he vacated. Respondent challenged date of award. CRB affirmed; if after formal hearing commissioner determined claimant was temporarily totally disabled as of date of Form 36 it was appropriate to award such benefits going forward, citing Papa v. Jeffrey Norton Publishers, Inc., 4486 CRB-3-02-1 (February 25, 2003). See also, Pereira, § 31-301 Factual findings; § 31-307.

Claimant challenged multiple Forms 36 filed by respondent arguing that she did not have a work capacity and respondents had not offered work within her limitations. Commissioner accepted her argument and awarded indemnity and permanency benefits. On appeal, CRB remanded for new hearing. CRB unable to ascertain foundation for factual findings, particularly as commissioner found key witnesses “marginally credible” and “partially credible.” See also, Cortes, § 31-298; § 31-301 Factual findings; § 31-308(b).

Claimant sought to stipulate all claims with respondent and reached agreement to settle all claims for $22,500. At formal hearing claimant was canvassed and executed stipulation. Respondents then had claimant execute release of claims unrelated to Chapter 568. Claimant returned settlement check and sought to open stipulation, asserting it was invalid pursuant to Leonetti v. MacDermid, Inc., 5623 CRB-5-11-1 (March 19, 2012), aff’d, 310 Conn. 195 (2013). Trial commissioner denied this relief and CRB affirmed decision on appeal. Leonetti stands for position any release of claims under Chapter 568 must be supported with consideration and this release was supported by consideration. As per cases such as Nielsen v. MNS Therrien Construction Company, 6040 CRB-1-15-10 (July 21, 2016) agreements beyond scope of Chapter 568 cannot be adjudicated by this Commission. See also, Dombrowski, § 31-297; § 31-315.

Claimant challenged as abuse of discretion trial commissioner’s decision to limit scope of trial de novo on contested Form 36 to issue of maximum medical improvement and bifurcate issue of work capacity for future hearing. Claimant also contended trial commissioner erroneously relied on orthopedist’s opinion in concluding that claimant’s pain management treatment had reached maximum medical improvement. CRB affirmed, noting that subject Form 36 reflected respondents’ intention to convert temporary partial disability benefits, which by definition contemplate a work capacity, to permanent partial disability benefits, and claimant failed to apprise respondents in advance of hearing that claimant would be presenting a total incapacity claim. CRB found trier properly relied on orthopedist’s opinion, obtained through a Commissioner’s Examination, in determining maximum medical improvement and extent of claimant’s disability, noting that report did not reference claimant’s pain management regimen and trier agreed to set down issue of medical treatment for future hearings after claimant asserted respondents had discontinued pain management treatment on basis of report. CRB affirmed trier’s denial of claimant’s Motion to Correct. See also, Rivera, § 31-301. Factual Findings, § 31-307, § 31-308(a).

Claimant appealed denial of Motion to Preclude by trial commissioner who conducted additional formal hearings after trier who had presided over initial formal hearing passed away. Claimant challenged second trial commissioner’s authority to reopen formal hearing and also claimed as error trier’s denial of Motion to Preclude given that respondents never filed Form 43 or voluntary agreement. CRB affirmed, holding that Supreme Court’s directive in Stevens v. Hartford Accident & Indemnity Co., 29 Conn. App. 378 (1992), and provisions of §§ 31-278, 31-282 and 31-298 C.G.S. afforded trier ample discretion to reopen formal hearing and take additional evidence. CRB also found that because evidentiary record indicated claimant had been paid medical and indemnity benefits following date of injury continuing until Form 36 was approved, trier could have reasonably inferred that respondents never contested claim and were under no obligation to file Form 43. CRB rejected claimant’s contention that respondents’ failure to file voluntary agreement provided basis for preclusion, noting that provisions of § 31-294c(b) C.G.S. do not refer to voluntary agreements and provisions of § 31-296 C.G.S. and Admin. Reg. 31-296-1 C.G.S. identify penalty for non-compliance as sanctions per § 31-288 C.G.S. See also, Quinones, § 31-278; § 31-294c(b); § 31-298.

Respondents sought repayment of allegedly overpaid compensation to the claimant, citing in part moratorium from third party action and prior orders in the case. Trial commissioner denied claim for reimbursement. On appeal, CRB remanded matter. Record indicated that trial commissioner could have reasonably found respondent’s evidence as to amount sought unpersuasive, but the “law of the case” required implementing certain prior findings barring a change in circumstances. See also, Barichko, § 31-293; § 31-298; § 31-301 Factual findings; § 31-301(g).

CRB affirmed trial commissioner’s conclusion she lacked the requisite subject matter jurisdiction necessary to award a penalty for late payment pursuant to § 31-303. The late payment was claimed on the basis of the respondent’s failure to comply with a provision in a Stipulation stating how the claimant’s retirement benefits would be calculated. The method for computing retirement benefits was a matter of collective bargaining and thus, the trier was without jurisdiction to order a late payment penalty pursuant to § 31-303. See also, Murray, § 31-278; § 31-303.

Claimant and respondent agreed to stipulated settlement of claim for fixed sum and claimant executed agreement, but died prior to respondent executing agreement or commissioner approving settlement. Respondent withdrew approval and trial commissioner refused to approve settlement without their consent. Claimant’s counsel argued O’Neil v. Honeywell, Inc., 66 Conn. App. 332 (2001) required commissioner to approve settlement. CRB disagreed and affirmed commissioner. Agreement in O’Neil distinguished as it was fully executed by all parties while claimant was alive. Case more similar to Secola v. State/Comptroller’s Office, 3102 CRB-5-95-6 (February 26, 1997) and Drozd v. State/DMR, 5158 CRB-5-06-11 (October 19, 2007) where respondent withdrew approval before trial commissioner could approve agreement. Schiano v. Bliss Exterminating Co., 260 Conn. 21 (2002) stands for proposition agreements are ineffective until approved by a trial commissioner. See also, Snyder, § 31-278.

Claimant had accepted injury and respondents filed Form 36’s seeking to find claimant had a work capacity. Trial commissioner denied these requests and found claimant was totally disabled. On appeal respondents argued that trial commissioner applied doctrine of laches to dispute and improperly cited earlier voluntary agreement. CRB upheld commissioner, decisions herein consistent with the Schenkel line of cases. See also, Bryant, § 31-294d; § 31-301 Factual findings; § 31-307; § 31-349.

Claimant had compensable injuries but treating physician opined claimant had work capacity. Surveillance tape showed claimant banging cement mixer with hammer and directing workers on pool project. Claimant denied he had work capacity and said this pool project was an unpaid social activity. Trial commissioner found claimant not credible and that claimant had work capacity, therefore commissioner approved Form 36. CRB affirmed decision on appeal. Facts in case akin to Smith v. Federal Express Corporation, 5405 CRB-7-08-12 (December 1, 2009). See also, Clukey, § 31-301 Factual findings.

Claimant’s treating physician found claimant able to work and report affixed to Form 36. Trial commissioner at formal hearing affirmed previous approval of Form 36 at informal hearing. CRB affirmed. Trial commissioner had sufficient factual basis to approve Form 36. See also, Shepard, § 31-301 Factual findings; § 31-308(a); § 31-301-3.

Counsel for parties reached an agreement to settle claim for § 31-307 benefits but before written agreement approved by the trial commissioner, respondents rescinded offer stating counsel lacked authority to settle. Claimant sought to enforce agreement and trial commissioner denied this relief. Claimant appealed on grounds that respondent counsel’s apparent authority bound the respondent. CRB dismissed appeal. Precedent cited by claimant involved cases where defendant had received benefits from the contract and were then estopped from escaping its obligations. Schiano v. Bliss Exterminating, requires a binding agreement to be in writing and approved by the trial commissioner.

Commission did not err by approving voluntary agreement that factored in as concurrent employment claimant’s wages from Foxwoods Casino, even though Commission lacks jurisdiction over Mashantucket Pequot Tribal Nation, and Casino is not an employer within meaning of § 31-310. Claimant and respondent employer entered into agreement, without purporting to create any obligation on part of Foxwoods. Tribal Nation was not a party to agreement or approval process, and it was not Commission’s responsibility to raise issue of jurisdiction sua sponte. Risk of erroneous payment fell on respondents in this case. Second Injury Fund was not a party to agreement, and is not bound by its terms. Thus, Fund properly raised and prevailed on jurisdictional issue in subsequent proceedings. “Law of case” doctrine inapplicable. See also, Hudgens, § 31-310.

Voluntary agreement provision applies to dependent death claims under § 31-306. See, Gauthier, § 31-306 (decision in Green v. General Dynamics Corp., 245 Conn. 66 (1998), applied retroactively to dependent death claim that legally remained pending by virtue of fact that no separate award or voluntary agreement had been issued for said claim). See also, Gauthier, § 31-307a, § 31-310.

Claimant sustained 1986 back injury that led to depression. Second Injury Fund accepted transfer. Claimant then suffered compensable injuries to back, knee, and other body parts in a 1991 fall. Back injury liability again transferred to Fund, while other injuries remained with insurer CIRMA. Claimant again developed symptoms of depression, relatable to chronic post-surgical pain in knee and to chronic back pain. Total disability was paid from 1991 through 1997. In November 1997, claimant entered into stipulation with Fund expressly addressing 1986 lumbar spine and psychosocial conditions, and 1991 lumbar spine injury. Stipulation also contained standard language releasing Fund from liability for “claims of any nature out [of] the foregoing accidents either wholly, partially, specifically, physical or mental, known or unknown.” Fund’s settlement specialist had been operating under mistaken assumption that psychiatric claim arose from 1986 injury only. Presiding commissioner also testified that, in his understanding, 1991 psychiatric injury was not part of stipulation, and that some aspects of claim were being left open. Trier found that both CIRMA and the Fund shared ongoing liability for the psychiatric condition. CRB affirmed. First, board held that extraneous notation “partial stip only” on copy of settlement in evidence should not be deemed part of contract, as parties did not mutually consent to alteration of agreement. Next, board found that no mutual mistake existed with regard to existence of 1991 psychiatric claim. Claimant’s understanding of his condition was accurate, and any mistake on Fund’s part was unilateral. Insufficient grounds to invalidate agreement. CRB’s third step was to determine that contract language was ambiguous, i.e., susceptible to two reasonable constructions, as one could rationally read stipulation to support inclusion or exclusion of 1991 psychological claim. This allowed trier to consider extrinsic evidence as to intended meaning of contract. Evidence supported trier’s finding that the parties did not intend to include 1991 psychological condition in stipulation. Thus, claimant was not precluded from seeking further benefits for that condition. See also, Horobin, § 31-300, § 31-301. Appeal Procedure, § 31-301. Factual findings, § 31-307, § 31-349, § 31-298.

Approved stipulation settled disputed total disability claim at two-thirds of difference between TT rate and § 31-308(a) rate (if applicable). Contrary to trier’s finding, this did not equate to acceptance of total disability status for purposes of five-year total disability computation under § 31-307a. No ground for trier to reopen underlying controversy to decide this issue, as it was fully settled by the approved agreement. See also, Malz, § 31-307a, § 31-349, § 31-299b.

Trial commissioner found that physical therapy, occupational therapy, and psychological treatment of claimant’s pain constituted reasonable and necessary medical treatment. Respondent contended on appeal that an approved stipulation settled any and all of the claimant’s psychological claims, because it closed out a claim for depression. Trier found that the 1996 stipulation closed out all future claims arising out of the December 21, 1990 injury except for claims for future medical treatment regarding the cervical spine injury. Accordingly, because the psychological treatment constituted reasonable and necessary medical treatment of the claimant’s 1990 cervical spine injury, said treatment was not foreclosed by the 1996 stipulation. See also, Caprio, § 31-294d.

Voluntary agreement form contained language stating that employer remained liable for COLAs for concurrent employment wages. CRB ruled that the statute requires the Second Injury Fund to pay those COLAs. As the voluntary agreement form was promulgated by this commission, and was not drafted by either party, the respondents were not bound by the “fine print.” CRB also noted that said form was revised in 1992 to eliminate the language making employer responsible for concurrent employment COLAs. See also, Lizcano, § 31-310, § 31-307a.

Commissioner ruled that “tender” was accomplished within meaning of stipulation when respondent mailed check to claimant, not when claimant received it. He also awarded claimant interest, but not attorney’s fees, in response to a request that he correct the findings to allow such additional sums under § 31-296. CRB affirmed trier’s interpretation of “tender;” adequate evidence supported finding that check was mailed on 9/16/97, and the definition of “tender” in Mayron’s Bake Shops, Inc. v. Arrow Stores, Inc., 149 Conn. 149 (1961), could include the mailing of a check where the claimant never objected to the respondent’s previous use of the mail system, as control over the check is relinquished by the insurer once it is mailed. As for interest award, trier’s explicit denial of attorney’s fees should be read as an adoption of the “delay without fault” basis for the awarding of interest under § 31-300. As trier used the higher rate in § 31-296 to calculate interest, CRB had to remand for recalculation. See also, Serfilippi, § 31-300.

In separate case, claimant stipulated that she suffered from a 16% permanent partial disability of the low back. This did not bind commissioner in assignment of low back disability for previous injury. Medical reports in evidence supported higher percentage of permanent partial disability. Stipulations are compromise-and-release type agreements that bind the contracting parties as to the facts recited in the document, but do not carry the same weight in unrelated proceedings involving different parties. Not a judicial admission. As there was evidence to support the trier’s finding, the CRB affirmed.

Trier dismissed § 7-433c claim for lack of jurisdiction because of prior stipulation. CRB held that release of liability by stipulation is an affirmative defense, not a jurisdictional matter. CRB also held that, as claimant had offered evidence that hypertension was due to repetitive trauma subsequent to the date of the stipulation and not due to rheumatic heart disease addressed by stipulation, trier should have evaluated merits of claimant’s claim. Panel rejected argument that § 7-433c, by requiring claimant to prove that she did not suffer from hypertension at time of hire, somehow prevents her from “skipping over” the 1990 stipulation. See also, Graves, § 7-433c.

The trial commissioner interpreted the approved stipulation between the claimant dependent widow and certain employers and their insurers as barring the claimant from proceeding against other employers and their insurers who were not named in the stipulation. CRB reversed, as the language of the stipulation specifically left open the claimant’s right to pursue respondents not listed in the stipulation. Subsequent decision at Harbec, 4308 CRB-8-00-10 (August 29, 2001), § 31-299b.

Trial commissioner did not err by failing to reopen claimant’s first stipulation, or in refusing to approve a subsequent agreement with which the claimant was no longer in accord. Pro se claimant did not produce any proof in support of his position that the first stipulation should be reopened due to fraud or mistake.

CRB affirmed trial commissioner’s award of supplemental benefits where parties attempted to enter into a stipulation that was not approved by the commissioner. Trier has authority to deny approval of stipulation for various reasons. See, Dowling, § 31-290, § 31-301. Appeal procedure. See also, Dowling, § 31-301(f). Prior decision at Dowling, 3062 CRB-4-95-5, 3277 CRB-4-96-2 (February 5, 1997), aff’d, rev’d and remanded in part, 244 Conn. 781 (1998)(with dissenting opinion), § 31-275(9), § 31-288, § 31-301. Appeal procedure, § 31-307.

CRB affirmed trial commissioner’s refusal to open the Voluntary Agreement executed between the surviving spouse and the self-insured employer. See, Soares v. Glass Industries, 12 Conn. Workers’ Comp. Rev. Op. 189, 1377 CRB-3-92-1 (May 4, 1994).

Anguish v. TLM, Inc., 3437 CRB-7-96-9 (January 20, 1998), aff’d, 53 Conn. App. 241 (1999)(per curiam), cert. denied, 250 Conn. 910 (1999)(Dissenting Opinion).

CRB declined to readdress the issue of whether a claimant was deprived of due process by the use of the “emergency informal hearing” procedure discussed in Stryczek v. State/Mansfield Training School, 14 Conn. Workers’ Comp. Rev. Op. 32, and in the previous decision in Anguish, 14 Conn. Workers’ Comp. Rev. Op. 195. This panel does not address arguments that it has already ruled on in previous appeals, and this issue was dealt with in the prior Anguish decision. Further, there was no longer any relief that could be granted to the claimant, as a subsequent formal hearing resulted in the reinstatement of temporary total disability benefits, and the vacating of the prior approval of the Form 36. Issue likely moot.

Decedent died of malignant mesothelioma due to work-related asbestos exposure. He had signed a stipulation in 1976 settling “all his claims and cases both known and unknown” against Uniroyal, as he had suffered numerous injuries to various body parts (but nothing in the nature of a respiratory ailment). CRB cited Duni v. United Technologies Corp./Pratt & Whitney Aircraft Division, 239 Conn. 19 (1996), in which a similar stipulation was discussed. Just as the Duni court did there, the CRB ruled here that this language extinguished the rights of the claimant, as the settlement was made in “complete satisfaction of all claims due or to become due at any time in favor of anybody on account of the claimed injuries or on account of any condition in any way resulting out of the said injuries.” Although the decedent was presumably unaware of his latent mesothelioma at the time of the stipulation, all of the work-related exposure leading to the development of that disease had occurred. Unknown, inchoate claims existing at the time of the release are ordinarily covered by such language. See also, Krampetz, § 31-306.

CRB held that a trial commissioner, under appropriate circumstances, has the discretion to award ongoing temporary total disability benefits for the period following the last evidentiary hearing.

Festa v. Hamden, 16 Conn. Workers’ Comp. Rev. Op. 46, 3052 CRB-3-95-4 (October 16, 1996).

Respondents sought to enforce stipulation against claimant, but commissioner denied motion to enforce on ground that claimant was not competent to understand terms of agreement at that time. Affirmed by CRB. Although prior commissioner had questioned claimant regarding his understanding of agreement, the transcript does not indicate that claimant demonstrated an actual understanding of the agreement. Commissioner did not ask claimant if he realized that the settlement was final or if he wanted to formally enter into agreement at that time; claimant testified that he believed a stipulation had to be reduced to writing and signed before it could become effective, which was not done here. Use of “Stipulation and What It Means” form discussed. Commissioner also found that claimant had suffered from hypoglycemic attack on morning of formal hearing, and could not fully understand purported agreement. Facts supported decision not to enforce agreement.

Role of stipulation of facts discussed; See also, Wonacott, § 31-310.

Discussion of process by which commissioners approve a voluntary agreement. In this case, commissioner refused to approve a voluntary agreement which had been signed by both parties, and noted that the insurance company signed without knowledge that the claimant suffered from terminal cancer which was unrelated to her compensable injury. Findings do not indicate that claimant intentionally failed to disclose a material fact. CRB remanded because reason for refusal to approve voluntary agreement was not clear. See also, Secola, § 31-290c; See also subsequent decision, Secola, 3102 CRB-5-95-6 (February 26, 1997).

Remanded where trier’s finding approving respondents’ Form 36 contains summaries of medical evidence unsupported by factual findings.

CRB Case Annotations re: Section 31-296

Voluntary agreements (approval of).