State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Dunlevy v. Infra Metals Corp.

CASE NO. 4626 CRB-8-03-2

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 5, 2004

ARTHUR DUNLEVY

CLAIMANT-APPELLEE

v.

INFRA METALS CORP.

EMPLOYER

and

FIREMAN’S FUND INSURANCE CO.

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Robert L. Fiedler, Esq., 40 Grand Street, Hartford, CT 06106.

The respondents were represented by David Chapman, Esq., Genovese, Vehslage & Chapman, 500 Enterprise Drive, Rocky Hill, CT 06067.

This Petition for Review from the February 4, 2003 Finding and Award of the Commissioner acting for the Eighth District was heard September 26, 2003 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners James J. Metro and Stephen B. Delaney.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the February 4, 2003 Finding and Award of the Commissioner acting for the Eighth District. They raise several grounds of error on appeal. We affirm two of the trier’s rulings, but find error with regard to the trial commissioner’s failure to allow the respondents an opportunity to conduct a deposition, which requires that we reverse the commissioner’s award of benefits and remand for further proceedings.

The claimant injured his left knee on June 15, 1993, while in the course of his employment as a steelworker with the respondent Infra Metals Corp. There is no dispute that this injury is compensable. As of that date, the claimant was working 40 to 60 hours per week at Infra Metals and 15 to 20 hours per week at Ken-Mar Metals, with an average weekly wage of $631.65. Several years ago, he filed a claim for retrospective and prospective § 31-308a C.G.S.1 benefits, seeking compensation from January 15, 2000 through May 2003. Commissioner A. Thomas White, Jr., addressed this claim in a Finding and Award dated September 6, 2001.

The trier began by noting that the claimant has been paid for a 25% permanent partial disability of the left knee, consisting of 59.5 weeks of specific indemnity benefits. He has undergone four surgeries, and wears a medically-prescribed leg brace on his left knee. He has also been diagnosed with reflex sympathetic dystrophy (RSD). Dr. Moeckel, his treating orthopedist, advised him to do as much as he physically can tolerate, for a maximum of 20 hours per week. March 2, 2001 formal hearing, Claimant’s Exhibit A. Essentially, the claimant has a sedentary work capacity. His movement restrictions prevent him from returning to his lifelong occupation as a sheet metal worker, and he can no longer operate a forklift. His other training is limited: the claimant is an army veteran who obtained his high-school equivalency diploma in the service, and upon discharge from the military, he took a course in diesel mechanics.

After periods of extensive job searching, the claimant obtained part-time hourly employment in 1997 as a public safety escort at Wesleyan University, which requires him to operate a transport van. He explained that his work there is limited due to his need for pain medications. The claimant is able to earn $10 per hour at Wesleyan. He also collects Social Security Disability benefits. While the claimant stated he has gradually tried to increase his hours worked at Wesleyan, the respondent alleged that he was not maximizing his earning capacity, possibly due to rules that limit the number of hours one may work if one is to maintain full entitlement to Social Security. The claimant denied having any such motivation.

The trial commissioner concluded that the claimant had made reasonable efforts to maximize his earning capacity. He found the claimant capable of “a minimum of 20 hours per week part-time employment as a safety escort,” giving him a $200 weekly earning capacity. September 6, 2001 Findings, ¶ F. He ordered the respondents to pay $256.28 per week to the claimant from January 15, 2000 through the formal hearing date of May 25, 2001. The Second Injury Fund was also ordered to reimburse the respondents for 36% of all indemnity benefits they had already paid, based upon the concurrent employment provision of § 31-310 C.G.S. The trier then noted that the claimant had indicated a willingness to increase his employment hours at Wesleyan, or to look for supplemental employment. He closed his decision by declaring, “no additional § 31-308a orders will be entered without evidence submitted by the claimant of an effort to increase his working hours at Wesleyan and/or supplement his income with an additional position and/or a major change in his medical status.” September 6, 2001. Findings, ¶ M.

The claimant subsequently filed another claim for § 31-308a benefits extending from May 25, 2001 forward.2 A formal hearing was held on January 30, 2003 before a different trial commissioner, who stated on the record that he was taking administrative notice of the exhibits introduced into the record pursuant to the previous decision, along with the transcript of the March 2, 2001 formal hearing, the finding itself, and a stipulation regarding concurrent employment.3 January 30, 2003 Transcript, pp. 1-2. The claimant then offered his own testimony. The trial commissioner found “most of the claimant’s testimony to be credible;” February 4, 2003 Findings, ¶ 1; along with a February 28, 2002 letter from Dr. Moeckel that permanently restricts the claimant to 20 hours of sedentary work per week. The trier specifically credited the claimant’s testimony that he had requested additional work from his employer. He disagreed with the respondents’ contention that ¶ M of the September 6, 2001 award precluded him from awarding additional benefits, and did not find the principle of res judicata applicable with regard to that finding.

The trier found 20 hours per week to be the claimant’s work capacity. His hourly earning capacity was set at $10.55, creating an average weekly wage of $211 that translated into a weekly compensation rate of $144.18. The claimant’s base compensation rate being $393.66, the trier calculated a weekly wage differential of $249.48. He ruled that benefits were payable to the claimant from May 25, 2001 through May 31, 2001, and then again from September 1, 2001 through the January 30, 2003 formal hearing date. The respondents were liable for 64% of that amount, or $159.66 per week, with the remainder attributable to concurrent employment. Dissatisfied with the trier’s decision, the respondents have filed a petition for review with this board.

The respondents list seven issues in their appellate brief. We reach three of those issues on appeal. First, we consider the extent to which the trial commissioner’s order in ¶ M of the September 6, 2001 Finding and Award has a legally preclusive effect on a subsequent commissioner’s consideration of the claimant’s § 31-308a benefit eligibility. The respondents argue that, by the terms of that order, the claimant may not collect further § 31-308a benefits unless he proves that he has either undergone a change in medical status or that he has made an effort to (a) increase his working hours at Wesleyan or (b) supplement his income with another job. “It is the respondents’ position that Commissioner White’s order is res judicata and/or collateral estoppel on the issue of future § 31-308a benefits.” Brief, pp. 17-18.

Claim preclusion (res judicata) and issue preclusion (collateral estoppel) are related ideas on a continuum, differing mainly in degree. Crochiere v. Board of Education, 227 Conn. 333, 343 (1993); Schreiber v. Town & Country Auto Service, 4239 CRB-3-00-5 (June 15, 2001). The doctrine of claim preclusion prevents a party from relitigating a claim that has been decided on its merits. Crochiere, supra. “A judgment is final not only as to every matter which was offered to sustain the claim, but also as to any other admissible matter which might have been offered for that purpose.” Delahunty v. Massachusetts Mutual Life Ins. Co., 236 Conn. 582, 589 (1996); Schreiber, supra. Issue preclusion prevents a party from relitigating an issue that has been determined in a prior suit, as long as the issue has been fully and fairly litigated. Crochiere, supra. “Both claim and issue preclusion entail that a disputed factual matter, or a finding embodying an application of law to facts, has been conclusively determined in a previous action on a different claim involving the same parties or parties in privity with them.” Schreiber, supra (emphasis and footnote omitted). These preclusive principles further the interests of judicial economy and the finality of judgments, and are as applicable to adjudications by administrative tribunals as they are to judgments by courts. Lafayette v. General Dynamics Corp., 255 Conn. 762, 773 (2001); Bailey v. Willimantic Dodge/Nissan, 4516 CRB-2-02-4 (May 8, 2003).

The factual findings contained in the September 6, 2001 Finding and Award constitute final judgments on the disputed issues that were before the trial commissioner. These include the trier’s conclusion that the claimant was entitled to benefits through the date of the formal hearing, as well as his conclusion in ¶ M that no further entitlement to benefits would be warranted absent a change in circumstances. However, we must also keep in mind that the trier’s legal authority was limited to adjudicating whether compensation was appropriate given the claimant’s status at the time of the proceedings. Perri v. Mitchell Motors, 16 Conn. Workers’ Comp. Rev. Op. 242, 3259 CRB-6-96-1 (June 24, 1997). This Commission retains continuing jurisdiction over open workers’ compensation claims, and though a trial commissioner may enter a finding that a claimant’s current circumstances do not warrant further benefits, he or she is not free to circumscribe a future commissioner’s discretion to determine whether or not an alleged change in circumstances is sufficient to justify additional compensation.4 Id.; see also, Fusciello v. Ronnie Demeo, Inc., 4340 CRB-6-01-1 (Jan. 7, 2002)(principle of res judicata applies as follows: commissioner’s denial of continuing total disability claim via 1996 ruling required that claimant demonstrate change in circumstances before he could prove entitlement to total disability benefits for time period immediately postdating 1996 ruling).

In assessing whether the instant claimant experienced a change of circumstances sufficient to justify a further § 31-308a award, the trial commissioner was not required to treat ¶ M of the September 6, 2001 Finding and Award as a mandatory checklist of potential qualifying factors, which the claimant would need to satisfy in order to establish entitlement to additional benefits. The language of ¶ M can be no more than an estimate of the conditions prerequisite to a further award, because a commissioner cannot anticipate every potential event that might befall a claimant following the close of the evidentiary record. Thus, in reviewing the trier’s award of benefits, we will not insist that the claimant prove that he specifically met one of the criteria in ¶ M. If another, factually supported change in circumstances occurred that could be reasonably viewed as affecting the claimant’s work capacity, the trier would also have the authority to use that factor as the basis for an additional award.

Second, we consider the respondents’ assertion that the proceeds of the claimant’s stipulation with the Second Injury Fund must be treated as earnings under § 31-308a, or that they should take a credit for the proceeds of that settlement against any future § 31-308a benefits payable. We disagree. The amount that a claimant is able to earn under § 31-308a contemplates the inclusion of “gains . . . derived from . . . services or labor without the aid of capital; money or property gained or merited by labor, service, or the performance of something.” Rinaldi v. Enfield, 4459 CRB-1-01-11 (Dec. 27, 2002), citing Black’s Law Dictionary, 5th Edition. In general, wage-loss benefits paid on account of disability are included in a claimant’s earnings under § 31-308a, while private pensions unrelated to a claimant’s work capacity are excluded. Rinaldi, supra; Starks v. State/University of Connecticut, 4467 CRB-2-02-12 (Feb. 13, 2003).

Admittedly, the claimant’s settlement with the Fund was for the concurrent employment portion of the § 31-308a claim that is now pending before us, which is the epitome of a wage-loss benefit. However, to construe the “wage-loss” benefit offset approach as encompassing this particular settlement would not make sense. It would counteract the purpose of § 31-310 to treat the claimant’s concurrent employment benefits, or a settlement for them, as earnings, thereby diminishing the respondents’ payable share of the very same § 31-308a benefit. A claimant should not be penalized for settling a portion of a claim by having to compromise the remainder when that claimant is legally entitled to both. The trial commissioner was therefore correct in avoiding that counterintuitive result. He was also correct in ruling that the respondents’ § 31-308a liability would continue to be reduced by 36% of the claimant’s weekly compensation rate, representing the portion of that rate attributable to concurrent employment. As the Second Injury Fund saw fit to settle its potential future liability with the claimant and vice-versa, the respondents need only concern themselves with their own outstanding § 31-308a liability.5

In the normal course of events, the next step of our review would be to consider the substance of the trial commissioner’s finding that the claimant was entitled to an award of benefits pursuant to § 31-308a. We are unable to take that step, however, because the respondents have raised an evidentiary issue that requires this board to reverse that portion of the trier’s decision, and to remand for further proceedings.

During the January 30, 2003 formal hearing, the claimant offered eight exhibits. Among them were two letters from the Public Safety department at Wesleyan University dated November 15, 2001 and February 28, 2002, which were respectively offered as Exhibits C and D. Transcript, p. 4. Respondents’ counsel objected to the introduction of those documents on the ground that they both constituted hearsay, that they were without proper foundation, and that Exhibit C had not been previously disclosed to the respondents, creating no opportunity for cross-examination of the author, Joseph Fortier (who was not present at the hearing). Id., p. 5. Exhibit C consists of a general recommendation letter that praises the claimant’s character and experience, while Exhibit D explains that the claimant was working 15 hours per week as of February 28, 2002, and that he “has requested to work additional hours when they are available.” The trier allowed them into evidence, and stated, “You may have an exception and I will allow you any opportunity to depose Joseph Fortier or to call [him] into an additional proceeding if you so deem it appropriate. So you may have a right to cross and present questions to Mr. Fortier.” Transcript, pp. 5-6. The claimant’s counsel agreed that the respondents should be allowed to depose Mr. Fortier within 30 days after the close of evidence. Id., p. 6.

The claimant proceeded to testify at the formal hearing. After he stepped down from the witness stand, the record was closed, and the parties began making their closing remarks. In response to an assertion by claimant’s counsel regarding the nature of the $25,000 Second Injury Fund settlement, the trial commissioner said, “I’m going to agree with that, counsel,” and then proceeded to dictate a ruling from the bench regarding the key disputed issues, such as the claimant’s credibility, the res judicata effect of the prior award, the correct average weekly wage, and his periods of further eligibility for § 31-308a benefits. Transcript, pp. 36-37. After setting forth his findings, the trial commissioner closed the record and terminated the hearing, noting that a formal written decision would be issued within a few days. Id., p. 37. The respondents’ objection to Exhibits C and D was not discussed. Simultaneously with the issuance of the trier’s written decision on February 4, 2003, the respondents filed a Motion to Reconsider the trier’s ruling, listing among other errors that Exhibits C and D were hearsay documents improperly entered into evidence, and that the trier’s bench award violated their right to depose the author of said documents, contrary to his own order earlier in the formal hearing. This motion was denied by the trial commissioner.

The trier states in his written decision that the claimant was credible insofar as he claimed to have sought additional hours at Wesleyan—which, as noted above, was one of the criteria listed by Commissioner White in the 2001 award as a prerequisite to the claimant’s collecting further § 31-308a compensation. Clearly, the letters from the Public Safety Department could serve to corroborate the claimant’s assertions and enhance his credibility. Given their potential relevance, the trial commissioner correctly admitted them into the record as exhibits, in the process taking the necessary step of protecting the respondents’ due process rights by allowing them an opportunity for cross-examination of the author. Balkus v. Terry Steam Turbine Co., 167 Conn. 170, 177 (1974)(admission of hearsay material without opportunity to cross-examine is ordinarily a deprivation of due process); Bailey v. State, 65 Conn. App. 592, 604 (2001)(“Each party has the right to produce relevant evidence and to offer rebuttal evidence”). Later, when the trier issued his bench ruling on the merits and followed it up with a written decision memorializing that ruling, he neglected to address this issue.

On review, we have no way of knowing how much weight, if any, the trier placed on these two exhibits. Nevertheless, due process principles concerning the right to confront witnesses unambiguously apply to this case. The respondents were entitled to an opportunity to cross-examine the author of Exhibits C and D upon their being offered into evidence—an entitlement that was recognized by the trial commissioner on the record, and acknowledged by opposing counsel. Whether through inadvertence or otherwise, the respondents did not receive that chance to question Mr. Fortier, whose letters were relevant to the ultimate issue of the claimant’s entitlement to § 31-308a benefits.

The claimant speculates that, due to the respondents’ long-standing awareness that the claimant worked for Wesleyan University, and their familiarity with Exhibit D well prior to the hearing, there was no prejudice in this regard. We cannot make that assumption, however. There is nothing in the record to suggest that, during the course of the formal hearing, the trier drew the conclusion that the respondents had been given sufficient opportunity to depose Mr. Fortier prior to the formal hearing, but failed to avail themselves of it. As such, the trier’s award of benefits must be reversed. This case is hereby remanded so that the trial commissioner may allow the respondents to depose the author of Exhibits C and D, as required by the constitutional principle of due process. The trial commissioner should then consider all the evidence and make a determination regarding the claimant’s entitlement to benefits, while remaining consistent with our above rulings on the preclusive effect of ¶ M and the impact of the claimant’s settlement of his concurrent employment claim with the Second Injury Fund.

The trial commissioner’s decision is accordingly affirmed in part and reversed in part, with an order for further proceedings on remand in accordance with this opinion.

Commissioners James J. Metro and Stephen B. Delaney concur.

1 At the time of the claimant’s injury, § 31-308a provided, “In addition to the compensation benefits provided by section 31-308 for specific loss of a member or use of the function of a member of the body, or any personal injury covered by this chapter, the commissioner, after such payments provided by said section 31-308 have been paid for the period set forth in said section, may award additional compensation benefits for such partial permanent disability equal to eighty per cent of the difference between the wages currently earned by an employee in a position comparable to the position held by such injured employee prior to his injury, after such wages have been reduced by any deduction for federal taxes and for the federal Insurance Contributions Act in accordance with section 31-310, and the weekly amount which such employee will probably be able to earn thereafter, after such amount has been reduced by any deduction for federal taxes and for the federal Insurance Contributions Act in accordance with section 31-310, to be determined by the commissioner based upon the nature and extent of the injury, the training, education and experience of the employee, the availability of work for persons with such physical condition and at the employee’s age, but not more than one hundred per cent, raised to the next even dollar, of the average weekly earnings of production and related workers in manufacturing in the state, as determined in accordance with the provisions of section 31-309. If evidence of exact loss of earnings is not available, such loss may be computed from the proportionate loss of physical ability or earning power caused by the injury. The duration of such additional compensation shall be determined upon a similar basis by the commissioner. span class="back">BACK TO TEXT

2 We note, as did the trial commissioner, that the claimant’s injury occurred several weeks before the July 1, 1993 effective date of Public Act 93-228, whose many effects included a change to § 31-308a that precludes a claimant from collecting discretionary benefits for a period of time longer than the duration of the claimant’s permanent partial impairment award. This change in the law does not apply to the instant claim. Merola v. The Jackson Newspaper, Inc., 3344 CRB-3-96-5 (Oct. 27, 1997). span class="back">BACK TO TEXT

3 The trial commissioner also took administrative notice of exhibits entered into the record at a February 25, 2002 hearing, and a resultant July 25, 2002 ruling ordering the Second Injury Fund to pay $1000 to the respondent Fireman’s Fund pursuant to § 31-303 C.G.S. span class="back">BACK TO TEXT

4 Similarly, in cases where a trial commissioner extends an award of benefits beyond the last date of the formal hearing, it is understood that the employer or insurer will be monitoring the status of the case, and will have the right to file a Form 36 to discontinue benefits in the event circumstances change. Hidvegi v. Nidec Corporation, 3607 CRB-5-97-5 (June 15, 1998); see also, Dzamko v. Danbury, 4588 CRB-7-02-11 (Nov. 26, 2003) (temporary partial disability benefits may be awarded beyond date of last formal hearing). span class="back">BACK TO TEXT

5 The wording of § 31-310 (as of the claimant’s date of injury) states that the Fund must pay the concurrent employment portion of a claimant’s compensation rate “upon submission to the treasurer by the employer or the employer’s insurer of such vouchers and information as the treasurer may require.” The employer, meanwhile, is statutorily responsible for “medical and hospital costs and a pro rata portion of the compensation rate based upon the ratio of the amount of wages paid by him to the total wages paid the employee in that average week . . . .” (Emphasis added.) This language does not define the concurrent employment contribution right as the exclusive reimbursement right of the employer; rather, it suggests a direct responsibility by the employer to the claimant for its portion of compensation, and an eventual responsibility by the Fund to pay the remainder. The statute does not specify whether the Fund need pay the claimant directly for concurrent employment benefits, or pay through the employer. In the face of this ambiguous language, we do not believe that the concurrent employment settlement between the Fund and the claimant was invalid without the signature of the respondents or their representatives. span class="back">BACK TO TEXT

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