Case # 00543337
Date of Accident: 10/04/2005
District Office: NYC
Employer: NYCHA
Carrier: NYC Housing Authority
Carrier ID No.: W843254
Carrier Case No.: NHA 721
Date of Filing of Decision: 03/29/2012
Claimant's Attorney: Rubin Abramson LLP
Panel: Robert E. Beloten

The Full Board, at its meeting held on February 28, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on March 8, 2011.

ISSUE

The issue presented for Mandatory Full Board Review is whether the December 8, 2008, stipulation (Stipulation) regarding the schedule loss of use award for the right arm, should be rescinded because the claimant did not understand the agreement.

The Workers' Compensation Law Judge (WCLJ) denied the claimant's request to void the Stipulation, noting that the claimant's representative explained on the record the terms of the Stipulation to the claimant and the claimant advised the WCLJ that he fully understood the agreement.

The Board Panel majority affirmed the WCLJ's findings, noting that the terms of the Stipulation were explained to the claimant and no extraordinary circumstances were present to justify rescinding the Stipulation.

The dissenting Board Panel member found that the claimant was not advised that he would receive wage benefits only through April 14, 2006, and therefore the claimant had no reason to believe that he would not receive future benefits. The dissenting Board Panel member found that the Stipulation should be rescinded.

The claimant filed an application for Full Board Review on March 24, 2011.

The carrier filed a rebuttal on April 19, 2011.

Upon review, the Full Board votes to adopt the following findings and conclusions.

FACTS

The claimant, a maintenance worker, was injured on October 4, 2005, when he was struck in the head during an altercation between two of his fellow co-workers. The claimant sustained injuries to his forehead, neck and right shoulder.

The claimant returned to work on November 5, 2005, but left work on December 6, 2005, due to headaches. The claimant again returned to work on November 9, 2006.

The claimant was examined by the carrier's consultant, orthopedist Dr. Falvo, on January 30, 2006. Dr. Falvo noted that the claimant's only complaint was headaches. Dr. Falvo determined that, from an orthopedic standpoint, the claimant had no further disability.

At a hearing on December 8, 2008, regarding permanency, the parties advised the WCLJ that they had reached an agreement. The claimant's counsel advised the claimant on the record that he would receive a schedule loss of use of 8.75 percent to the right arm and the case would be closed. Counsel advised that the parties would ask the WCLJ to make awards from "10-5-05 to 10-12-05 at $400, and then from 10-14-05 to 10-12-05 at the $400 rate [and] [t]hen it will go from 12-6-05 to 1-30-06 at $400 [with] the balance … at $400 partial disability rate." Counsel stated that the employer would be reimbursed $5,968.90 out of the schedule awards, and a finding would be entered of no further disability. Counsel advised the claimant that approximately $4,950.00 would be moving pursuant to the stipulation, out of which he was requesting an attorney's fee of $700.00, so that claimant would receive $4,250.00. The claimant stated that he understood the Stipulation and agreed to it. The claimant asked what would happen if his injuries worsened, and was advised that he could request that the case be reopened.

The WCLJ approved the Stipulation, granted claimant's counsel a fee of $700.00, and incorporated those findings in a decision filed December 18, 2008, which provided for 27.3 weeks of benefits, totaling $10,920.00. After reimbursement of the employer and payment of attorneys' fees, the claimant received $4,251.00.

On January 23, 2009, the claimant filed a Request for Further Action, requesting a hearing regarding the fact that the claimant had not been paid for lost time through November 2006, and whether the claimant was entitled to an award for facial disfigurement. At a hearing on September 21, 2009, the WCLJ awarded the claimant $1,500.00 for a permanent facial disfigurement.

The claimant testified regarding the Stipulation at a hearing on February 10, 2010. The claimant's counsel noted that the claimant had agreed to the Stipulation because the SIE had Dr. Favlo's January 20, 2006, opinion of no further disability. The claimant testified that he was out of work until November 2006 due to headaches and arm pain. The claimant stated that he did not understand that by agreeing to the Stipulation, he would not receive wage benefits for all of his lost time. He testified he only realized that he was not receiving benefits after April 2006, when he received the December 18, 2008, NOD, at which time he contacted his attorney.

At the close of the hearing, the WCLJ denied the claimant's request to void the Stipulation. The WCLJ noted that the minutes of the December 8, 2008, hearing indicate that claimant understood the agreement and it was explained to him. The claimant filed a timely application for administrative review.

LEGAL ANALYSIS

Parties are permitted to stipulate to "uncontested facts or proposed findings" (12 NYCRR 300.5[b][1]). In order to be binding on the parties, the stipulation must be reduced to writing and approved by a WCLJ who has verified "through questioning that each party has been advised of the legal effect of the agreement and has signed it voluntarily" (Matter of Mickens v New York City Tr. Auth., 32 AD3d 1128 [2006] [citations omitted]). Once the WCLJ approves a stipulation entered pursuant to 12 NYCRR 300.5(b)(1), the terms of that stipulation become a part of the WCLJ's decision (12 NYCRR 300.5[b][2]). The stipulation thereby becomes subject to the provisions of WCL § 22, which addresses the Board's authority to modify awards, decisions, or orders upon discovery of an erroneous wage rate; WCL § 23 and 12 NYCRR 300.13, which discuss applications for Board review of WCLJ decisions; and WCL § 123, which provides for the Board's continuing jurisdiction.

Courts favor stipulations and they are not lightly to be set aside (Matter of Galasso, 35 NY 2d 319, 320 [1974]), especially when counsel represented the party seeking to vacate the stipulation. (Matter of Town of Clarkstown v M.R.O. Pump & Tank, Inc., 287 AD 2d 497 [2001].) The party moving to vacate a stipulation must show "cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident." (Matter of Hallock v State of NY, 64 NY 2d 224 [1984], citing Matter of Frutiger, 29 NY 2d 143 [1971].) The party seeking to vacate a stipulation for mistake must prove the unilateral or mutual mistake by clear and convincing evidence. (Matter of Vermilyea v Vermilyea, 224 AD 2d 759 [1996].)

In the present case, the claimant did not set forth sufficient grounds to invalidate the Stipulation. The record reveals that the terms of the Stipulation were explained to the claimant, who was represented by counsel, at the December 8, 2008, hearing. While counsel for the claimant did not state on the record the date through which awards would be made, the claimant was advised of the total amount of compensation he would receive, and that he was stipulating to the fact that he had no further disability at that time. The claimant indicated that he understood the Stipulation and asked questions regarding the future effect of his stipulating to no further disability.

Claimant's counsel admitted that the claimant agreed to the Stipulation because the SIE's consultant had opined that the claimant had no further disability as of January 2006. Accordingly, the claimant knew that he was compromising part of his claim in the Stipulation. Thus, the claimant's argument that he did not understand that he would not be compensated for the full period of lost time is unavailing, and does not amount to the "clear and convincing evidence" necessary to invalidate the Stipulation.

Therefore, the Full Board finds that the claimant has failed to state sufficient grounds to warrant vacating the Stipulation.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed on February 16, 2011, is AFFIRMED. No further action is planned by the Board at this time.