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Mahoney v. Bill Mann’s Tree Removal, Inc.

CASE NO. 4776 CRB-4-04-1

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

SEPTEMBER 19, 2005

JOHN MAHONEY

CLAIMANT-APPELLANT

v.

BILL MANN’S TREE REMOVAL, INC.

EMPLOYER

NO RECORD OF INSURANCE

RESPONDENT-APPELLEE

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Laurence Parnoff, Esq., 1566 Park Avenue, Bridgeport, CT 06604.

The respondent was represented by Harry Hirsch, Esq., 6 Woody Lane, Fairfield, CT 06825.

The Second Injury Fund waived appearance at oral argument and chose to adopt the brief of respondent-employer. Notice sent to Kenneth Kennedy, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the January 20, 2004 Finding and Order of the Commissioner acting for the Fourth District was heard June 17, 2005 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Stephen B. Delaney and James J. Metro.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the January 20, 2004 Finding and Order of the Commissioner acting for the Fourth District.1 He contends on appeal that the trier erred by dismissing his claim for a back injury and barring further proceedings on that matter and on neck permanency. We find no error of law and affirm the trial commissioner’s decision, though we do qualify the legal import of the language in that decision.

The relevant history and factual findings of this case are as follows. The claimant worked for the respondent Bill Mann Tree Service Company on April 19, 1993. He sustained a compensable injury during the course of his employment on that date, when he was struck by part of a tree that was being felled. The respondent did not carry workers’ compensation insurance at the time. The claimant filed a notice of claim on July 8, 1993 listing “multiple injuries including fractured shoulder, blood clot in lung; injury to the spleen; foot; back; and neck injuries.”

In a March 23, 1995 Finding and Award, the trial commissioner found that the claimant had received medical care from several different doctors, which was payable by the respondent. The claimant had also consulted a chiropractor, Dr. Forte, on his own, which treatment he was unable to demonstrate was for conditions causally related to his compensable injury. The respondent’s examiner, Dr. Homza, examined the claimant and diagnosed him with a 5% permanent partial disability of the cervical spine as a result of the April 19, 1993 accident. The trier concluded that the claimant was entitled to that 5% permanency award, as well as nine weeks of temporary total disability benefits. The claimant’s request for § 31-308a benefits was denied.

On appeal by the claimant to this board, we affirmed the denial of the § 31-308a benefits, while overturning the 5% permanency award on the ground that Dr. Homza’s medical report had not been offered into evidence as an exhibit. Mahoney v. Bill Mann Tree Service, 16 Conn. Workers’ Comp. Rev. Op. 17, 3025 CRB-4-95-3 (October 4, 1996)[hereinafter Mahoney I]. We also affirmed the trier’s denial of authorized treating physician status for Dr. Forte, and confirmed that the trier was entitled to reject Dr. Forte’s opinion that the claimant had a 7.5% permanent partial disability of the cervicothoracic spine, and a 10% permanency rating to the lumbar spine.

The case was remanded, whereupon a new trier of fact issued a Finding and Dismissal on July 29, 1999, stating that the evidence was unclear as to whether the claimant suffered any permanent partial disability to the cervical spine. The claimant offered Dr. Homza’s deposition into evidence, the tenor of which was to create doubt around the existence of any cervical permanency. Dr. Homza’s medical report was never introduced into evidence by either party, “despite the fact that this matter was remanded to the trial level for the purpose of establishing whether Dr. Homza’s deposition supported his medical report . . . .” Findings, ¶ 5. The trier then ruled that the claimant had failed to establish a claim of permanent partial disability to the cervical spine. This board affirmed that decision on appeal, ruling that the commissioner had properly limited the scope of the issues on remand. The Appellate Court then affirmed this board’s decision. Mahoney v. Bill Mann Tree Service, Inc., 67 Conn. App. 134 (2001).

Subsequently, the claimant sought further formal hearings regarding his neck and back injury claims, and their effect on his income. The respondent objected, claiming that the doctrines of res judicata and collateral estoppel precluded him from litigating the compensability of the low back and permanent partial impairment of the cervical spine. In a January 20, 2004 Finding and Order, the trial commissioner determined that the claimant had already been denied benefits for cervical spine permanency, and also determined that “[t]he claimant did not sustain a work related low back injury on April 19, 1993 as indicated by the Finding and Award issued on March 23, 1995.” Findings, ¶ C. He then ruled that “[t]he claimant is precluded from having any further formal hearings for the compensability of the low back claim and for permanent partial impairment benefits for the cervical spine claim in connection with his April 19, 1993 work incident.” Id., ¶ D. The claimant then filed the instant appeal.

The claimant argues on appeal that the trier incorrectly deprived him of the right to offer evidence regarding his current medical condition, and outstanding medical bills. We agree that some of the language of ¶ D in the trier’s findings is stated in too broad a manner, and must be construed in a more limited fashion. However, we do not find reversible error.

We begin by noting that the claimant failed to prove that he had sustained a permanent partial disability of the cervical spine in the earlier evidentiary proceedings, despite having established a compensable neck injury. The 1999 Finding and Award dismissing his claim for permanency, which was affirmed by this board and by the Appellate Court, acts as a bar to relitigating that claim based upon his physical condition at the time of the original formal hearings. Of course, as the trier specifically found a compensable injury, the claimant would be able to return to this forum should he experience further neck symptoms and require treatment for them. Section 31-315 C.G.S. allows for the modification of an award or voluntary agreement whenever “the incapacity of an injured employee has increased, decreased, or ceased, . . . the measure of dependence on account of which the compensation is paid has changed, or . . . changed conditions of fact have arisen which necessitate a change of such agreement, award or transfer . . . .” See, e.g., Wysocki v. Bradley & Hubbard Co., 113 Conn. 170, 172 (1931). Absent a full and final stipulation, the door always remains open for a claimant with an accepted compensable injury to offer evidence attempting to show that a change in circumstances warrants additional workers’ compensation benefits.

Meanwhile, the trial commissioner’s pronouncement regarding the claimant’s low back claim is adequately substantiated by the record upon close examination of the entire file. The issue noticed for the formal hearings in 1993 and 1994 was “compensability/no insurance,” with an injury date of April 19, 1993, implicating “multiple parts.” The March 1995 Finding and Award stated that the claimant was seeking various benefits, including permanent partial disability benefits of the back and neck, and payment for the chiropractic services of Dr. Forte. The trier concluded that the claimant had not proven that Dr. Forte’s treatment was for conditions causally related to his April 19, 1993 injury, nor had he been given proper authorization for those visits.

In his testimony, the claimant stated that the top of a broken tree had struck him “from the left side of the lower back to the right shoulder.” December 20, 1993 Transcript, p. 7. Following the claimant’s admission to the hospital on April 19, 1993, the staff noted a pulmonary contusion and a possible scapular fracture that was later recharacterized as a “somewhat widened AC joint of the left shoulder.” Claimant’s Exhibit A. Upon his readmission to the hospital on April 24, 1993, complaints of left upper quadrant pain were also noted. Claimant’s Exhibit B. Dr. Russo, a physician who treated the claimant on the date of his injury, observed that the claimant’s x-rays showed no evidence of fracture, compression or destruction of the lumbar, cervical, or thoracic vertebrae. Id. Dr. Carolan, a treating orthopedic physician, had recorded a dorsal spine contusion the day after the claimant’s injury, and later described the injury as having included “blunt trauma to the paravertebral muscles on either side of the thoracic spine” in a May 17, 1993 office note. Claimant’s Exhibit D.

With regard to Dr. Forte’s treatment, the claimant had just been returned to work by Dr. Carolan when he first sought out the chiropractor. He stated that he felt like he “had a knot right in the middle of [his] back when the tree went across [his] back,” and went to see Dr. Forte without a referral because of his back pain. November 8, 1994 Transcript, p. 14; December 20, 1993 Transcript, p. 10. At the claimant’s initial visit on June 23, 1993, he complained to Dr. Forte of severe lower back pain extending into the hips, and neck pain extending out into the shoulders. Claimant’s Exhibit C.

The claimant’s proposed findings of fact dated November 25, 1994 included requests for a 10% permanent partial disability of the back and a 7½% permanent partial disability of the neck. The respondent, meanwhile, proposed findings on December 5, 1994 that the claimant had not sustained any permanent partial disability of his neck or back as a result of the injury. No mention of a back injury was made in the trier’s March 23, 1995 decision other than the notation that the claimant had complained of an injury to his thoracic spine and scapula upon admission to St. Vincent’s Hospital in April 1993. The claimant then filed a Motion to Correct on April 4, 1995, seeking among other corrections findings that the claimant had injured his back as a result of the work-related injury, and that he had sought treatment for a back injury with Dr. Forte. The trial commissioner denied that Motion to Correct in its entirety.

The claimant subsequently attempted to raise his back injury in the proceedings that followed this board’s remand in Mahoney I. In his October 19, 1998 Proposed Findings of Fact, the claimant noted that Dr. Homza had confirmed in his deposition that doctors were worrying about his upper back immediately following his injury, and that his complaints of aching and discomfort in his lower back could have resulted from the compensable work injury. However, the trial commissioner held in his Finding and Award that the issue on remand was limited to permanent partial disability of the claimant’s cervical spine. In his written decision, the trier did not address the respondent’s proposed finding of December 4, 1998, which had sought a determination that the lumbar back claim had already been adjudicated, and was subject to dismissal.

In order for a claimant to be precluded from requesting a particular issue, that issue must have been raised in a prior action as a disputed factual matter that was litigated and actually determined. “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.” Schreiber v. Town & Country Auto Service, 4239 CRB-3-00-5 (June 15, 2001), quoting Delahunty v. Massachusetts Mutual Life Ins. Co., 236 Conn. 582, 589 (1996). This principle of finality is important to the functioning of our legal system, which demands that cases be finally resolved. Marone v. City of Waterbury, 244 Conn. 1, 12-13 (1998). Closely related to this notion is the principle of judicial economy, which is served by the doctrine of res judicata and related principles such as collateral estoppel and the judicial doctrine of “law of the case.” Schreiber, supra.

Another aspect of judicial economy is our policy against the trying of cases in piecemeal fashion. Id. “In the interest of finality and judicial economy, it is important that a claimant offer all available evidence the first time his claim is being considered.” Fassett v. F. Castellucci & Sons, 15 Conn. Workers’ Comp. Rev. Op. 83, 84, 2150 CRB-3-94-9 (December 7, 1995). “If a claimant has failed to address relevant issues during the first set of formal hearing proceedings, he does not get a second, third or fourth bite at the apple when he later realizes that he forgot something. . . . [N]or may he indulge in a second opportunity to prove his case if he initially fails to meet his burden of proof.” Krajewski v. Atlantic Machine Tool Works, Inc., 4500 CRB-6-02-3 (March 7, 2003).

Although there was not much direct discussion of the claimant’s low back claim in the 1995 Finding and Award, the claimant did attempt to raise the issue of permanent partial disability to his back during the proceedings. The trial commissioner noted that the claimant was seeking permanent partial disability benefits of the back and neck, and the claimant had been mentioning his thoracic spine injury to his physicians and to his chiropractor from the outset of his hospitalization and treatment. The thoracic spine is considered part of the back under § 31-308(b) C.G.S. See Siebold v. Helicopter Support, Inc., 4392 CRB-3-01-5 (September 6, 2002). The claimant also sought corrections relating to his back injury in the Motion to Correct that followed the trier’s award, which the trial commissioner denied. Such a denial is an indication that the trier did not find that evidence persuasive. Beedle v. Don Oliver Home Improvement, 4491 CRB-3-02-2 (February 28, 2003). Moreover, the hearing notice sent out by this agency listed the compensability of “multiple [body] parts” as the issue scheduled to be addressed at the formal hearing.

Given the medical reports of Dr. Carolan and Dr. Forte, both of which mentioned back injuries, the claimant should have recognized that the hearing was going to include discussion of all of the body parts that were alleged to have been injured in the April 19, 1993 workplace accident. See Hartford Electric Light Co. v. Water Resources Comm., 162 Conn. 89, 110 (1971)(adequate notice sufficiently apprises affected parties so as to make possible intelligent preparation for participation in hearing); Siebold, supra. The claimant’s attempt to have Dr. Forte’s chiropractic treatment authorized also implies that he viewed the condition of his lower back as part of his compensable claim. The adjudication of this issue would almost certainly have required a determination that his lower back condition was compensable. Subsumed within the denial of Dr. Forte’s treatment and the denial of the claimant’s Motion to Correct is an implicit finding by the trial commissioner that the claimant had not proven the existence of a compensable lower back injury, despite offering evidence in support of that claim. The trial commissioner properly ruled that the claimant cannot return to relitigate that claim again with newer or stronger evidence, unless the claimant can somehow satisfy the conditions of § 31-315.

The trial commissioner’s decision is accordingly affirmed.

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

1 We note that there has been a delay in the resolution of this appeal due to the rescheduling of oral argument. The parties were not all present for their scheduled oral argument on August 27, 2004, and attempted to waive oral argument via a facsimile transmission that was filed on that day. The Compensation Review Board was of the opinion, however, that oral argument would assist in the resolution of this case. The matter was eventually heard on June 17, 2005. BACK TO TEXT

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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