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Geery v. Travelers Insurance Company2/13/2003
hat it had accepted liability for the injury. The response went on to allege that claimant had been paid a 1% award for a 1% impairment, had returned to work, did not suffer a wage loss, and was entitled to neither permanent partial nor rehabilitation benefits. During his testimony in this proceeding, claimant acknowledged that he was aware of Travelers' position that he was not entitled to any further benefits.
Travelers was represented in the prior proceeding by Mr. Kelly M. Wills (Wills).
The prior petition was scheduled for trial during the week of October 16, 2000. (Scheduling Order dated August 2, 2000, WCC No. 2000-0149.)
In early October 2000, Toole and Wills planned to take depositions of various witnesses, including expert witnesses. (Ex. 11.) Claimant's deposition was taken October 4, 2000. A deposition of Gerry Blackman (Blackman), a vocational consultant hired by the insurer, was scheduled for October 9, 2000 at Wills' office. (Exs. 12, 23.) A deposition of Mark Schwager, a vocational consultant hired by Toole on behalf of claimant, was to be taken the next day, October 10th. (Ex. 26.)
Upon arrival at Mr. Wills' office on October 9, 2002, Toole and Wills discussed settlement and arrived at an agreement which was expressly subject to the claimant's approval. They agreed to postpone Blackman's deposition to the next day so Toole could consult with claimant.
The tentative settlement called for a payment of $8,000 in final settlement of claimant's claims for further compensation benefits, with medical to be left open.
Toole testified that he returned to his office and talked to claimant either by telephone or in person at his office and told him the terms of the settlement, including the fact that the settlement would be a full and final settlement of his claim. According to Toole, by the end of the day claimant agreed to the terms.
Toole and Wills then executed a Stipulation for Dismissal and Order of Dismissal with Prejudice. (Court File in WCC No. 2000-0149.) The stipulation was executed on October 12, 2000, and forwarded by Toole to the Court the same day. (Id. and Ex. 16.) On October 16, 2000, the Court entered a Judgment and Order of Dismissal with Prejudice in accordance with the terms of the stipulation. (Court File in WCC No. 2000-0149. )
Under the stipulation, all claims "arising out of the September 6, 1998 industrial accident claim" were resolved for the sum of $8,000, out of which 20% was payable to Toole as an attorney fee. The stipulation reserved medical benefits to claimant, i.e., under the agreement he continued to be entitled to medical benefits with respect to the accident. Finally, it provided for entry of judgment dismissing his petition with prejudice. The full stipulation is set out in Appendix A.
The judgment entered pursuant to the stipulation provided for payment of $8,000 in settlement of all claims for the September 6, 1998 injury, with medicals reserved to claimant, and dismissal of the petition with prejudice. A full copy of the judgment is set out in Appendix B.
Claimant acknowledged he received and cashed a settlement check for $6,400, however, he denies he was told by Toole that the money he received was in full and final settlement of his claim for further benefits. He testified that when he got the check Toole told him more benefits would be coming to him. I am unpersuaded by his testimony and found Toole the more credible witness. My credibility finding is based on my personal observation of the witnesses and is buttressed by the following:
Claimant had previously entered into a full and final settlement
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