The Board has the power to enforce an agreement to settle that is reached by commutation, despite the claimant passing away prior to execution of the commutation documents and their approval by the Board.

This case came before the Board on a motion filed by claimant’s counsel to enforce a commutation agreement between the parties. The claimant had a compensable work injury on April 6, 2014, to her right upper extremity. She received compensation for temporary total disability and underwent several surgical procedures. A DACD Petition, filed on behalf of the claimant to include the cervical spine as part of the accepted injuries, was denied. The employer was later successful in having the claimant’s compensation benefits reduced to partial disability status.

In early 2020, counsel for both parties entered settlement negotiations. Eventually, on May 26, 2020, counsel agreed to resolve the case by way of full and final commutation for $40,000. However, a few days later, on June 1, 2020, the claimant and her husband were tragically killed in a motor vehicle accident, leaving behind three minor children. Since the commutation documents had not yet been executed nor approved by the Board, the employer took the position that it was not enforceable.

On the claimant’s motion to enforce the agreement, the Board relied on the 1998 Delaware Supreme Court case of Anchor Motor Freight v. Ciabattoni, where the court found that the parties had reached a meeting of the minds as to an agreement for future compensation even though the claimant had died before the agreement was formally approved by the Board. The Supreme Court held that the Board still had the authority to approve the agreement, reasoning that it did not serve the purposes of the Act to allow the employer to avoid their commitment based on the fortuity of the claimant dying before the Board acted.

Although the agreement in Ciabattoni did not technically involve a commutation, in this matter, the Board, nevertheless, found that it was applicable to this case. The Board’s analysis stated that the first issue is whether the parties reached a meeting of the minds. The Board concluded that they clearly had done so since both counsel had agreed to a full and final commutation for $40,000, with the added requirement that the employer would continue paying partial disability benefits up until the date of approval by the Board. The second issue is whether the commutation was in the best interests of the claimant. In analyzing this issue, the Board stated that the proper question is whether the agreement reached when the claimant was still alive was in her best interests. They concluded that it was since the claimant was only on partial disability benefits, her permanency claim had been resolved, and her cervical spine condition had been determined to be not work related.

Based on the foregoing analysis, the Board held that the commutation agreement was enforceable; there was clearly a meeting of the minds and it was in the best interests of the claimant. Therefore, the Board granted the claimant’s motion to enforce the agreement and directed the parties to prepare the necessary legal documents for submission to the Board.

_{What’s Hot in Workers’ Comp is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2020 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}