State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Hicking v. State of Connecticut Department of Correction

CASE NO. 4935 CRB-2-05-4

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 10, 2006

SUSANNE V. HICKING

CLAIMANT-APPELLEE

v.

STATE OF CONNECTICUT DEPARTMENT OF CORRECTION

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLANT

and

GAB ROBINS OF NORTH AMERICA

ADMINISTRATOR

APPEARANCES:

The claimant was represented by Ralph A. Russo, Esq., 49 Welles Street, Suite 212, Glastonbury, CT 06033.

The respondent was represented by Michael J. Belzer, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the April 5, 2005 Finding & Award was heard October 14, 2005 before a Compensation Review Board consisting of the Commission Chairman John A. Mastropietro and Commissioners Stephen B. Delaney and Michelle D. Truglia.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondent, State of Connecticut, Department of Correction, herein appeals from an April 5, 2005 Finding and Award granting temporary partial disability benefits pursuant to § 31-301(f) to the claimant, Suzanne Hicking, during the pendency of an appeal. The claimant moves to dismiss this appeal stating it has been rendered moot by subsequent action of this board upholding the initial award on appeal in Hicking v. State/Department of Correction, 4825 CRB-2-04-6 (July 14, 2005). We agree with the claimant and herein dismiss this appeal.

The facts herein can be summarized rather succinctly. Ms. Hicking suffered a compensable injury as a correctional employee. The trial commissioner determined a subsequent household injury was related to the initial work injury and awarded temporary partial disability benefits under § 31-308a C.G.S. on May 9, 2004. The respondent appealed.1 After the appeal was filed, the claimant sought an award of benefits during the pendency of the appeal under § 31-301(f) C.G.S. which states,

“During the pendency of any appeal of an award made pursuant to this chapter, the claimant shall receive all compensation and medical treatment payable under the terms of the award to the extent the compensation and medical treatment are not being paid by any health insurer or by any insurer or employer who has been ordered, pursuant to the provisions of subsection (a) of this section, to pay a portion of the award. The compensation and medical treatment shall be paid by the employer or its insurer.”

The commissioner for the Second District held a formal hearing regarding the 31-301(f) claim on January 6, 2005, which was continued to March 9, 2005. On April 5, 2005, the trial commissioner determined that the claimant was entitled to temporary partial disability benefits during the appeal period, as offset by earnings from light duty work she had obtained during this period. The respondent filed a Motion to Correct on April 18, 2005, which sought to replace the commissioner’s findings with the respondent’s position that the claimant’s current injuries were not compensable, her physician’s medical testimony inadequate, and she was not entitled to an award. The trial commissioner denied the Motion to Correct on April 21, 2005.

As previously stated, since the filing of this appeal this board has rendered a decision on the underlying appeal. The CRB decision of July 14, 2005 affirmed the trial commissioner’s award of § 31-308(a) benefits. Our decision has the effect of res judicata regarding any and all issues which were before the trial commissioner in those proceedings. Therefore, as to issues regarding the claimant’s injuries and disability status prior to the 2004 formal hearing, “a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action on the same claim.” Delahunty v. Massachusetts Mutual Life Inc., Co., 236 Conn. 582, 589 (1996) as cited in Schreiber v. Town & Country Auto Service, 4239 CRB-3-00-5 (June 15, 2001).

In addition, the decision we reached on July 14, 2005 on the underlying appeal renders this appeal moot. As there is no longer a pending appeal, and no appeal was taken by the respondent to the Appellate Court pursuant to § 31-301a C.G.S., the Finding and Award of May 6, 2004 is fully enforceable against all parties. The claimant also states the respondent has made payment of all sums to which it was obligated to the claimant pursuant to the April 5, 2005 Finding and Award. Consequently, there is no longer an actual dispute in a legal or financial sense for the board to adjudicate.

This board must address one final point on the record. Even if this appeal had not been rendered moot, as a matter of law we would be compelled to dismiss it. A comparison of the Motion to Correct denied by the trial commissioner on April 21, 2005 with the Motion to Correct denied by the trial commissioner on June 22, 2004 reveals these motions simply revisit the same issues all over again.2 Respondent simply attempted to retry the medical evidence supportive of the claimant which the trial commissioner previously found credible.3

It is black letter law that this board shall not retry the facts. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Carney-Bastrzycki v. Hospital for Special Care, 4722 CRB-6-03-9 (September 3, 2004). The basic legal principles of res judicata and collateral estoppel also mean a party should not demand that a trial commissioner retry the same facts after a decision has already been reached on those facts. “Both doctrines ‘protect the finality of judicial determinations, conserve the time of the court, and prevent wasteful relitigation,’ Virgo v. Lyons, supra, 209 Conn. 501; and ‘express no more than the fundamental principle that once a matter has been fully and fairly litigated, and finally decided, it comes to rest.’ State v. Ellis, 197 Conn. 436, 465, 497 A.2d 974 (1985), on appeal after remand sub nom. State v. Paradise, 213 Conn. 388, 567 A.2d 1221 (1990),” Dowling, Sr. v. Finley Associates, Inc., 248 Conn. 364, 374 (1999).4

We have held “a claimant is not entitled to multiple opportunities to raise and resolve the same issue” Schreiber, supra, and respondents are also precluded from obtaining multiple hearings on the same issue. The respondent simply cannot overcome the fact that these issues are now precluded from further consideration. “To assert successfully the doctrine of issue preclusion, therefore, a party must establish that the issue sought to be foreclosed actually was litigated and determined in the prior action between the parties or their privies, and that the determination was essential to the decision in the prior case.” (Citations omitted; internal quotation marks omitted.) Dowling, supra, 374. The original Finding and Award was completely dependent on the trial commissioner making a determination as to which evidence he found credible and whether that evidence was legally sufficient to support an award. The dispute as to the claimant’s evidence had been heard and decided; hence, the elements of issue preclusion clearly exist. The trial commissioner was therefore obligated under the principle of res judicata to make the same decision he made previously regarding the same factual evidence and we as an appellate panel are required once again to uphold his findings of facts.

For those reasons, we dismiss this appeal.

Commissioners Stephen Delaney and Michelle Truglia concur

1 A complete discussion of Ms. Hicking’s injuries may be found in our July 14, 2005 decision Hicking v. State/Department of Correction, 4825 CRB-2-04-6 dismissing that appeal. BACK TO TEXT

2 For example, paragraphs A and B of the 2005 Motion to Correct are paraphrased versions of paragraphs 11, D, E and F from the Motion to Correct the trial commissioner denied in 2004. The 2005 Motion to Correct made at least nine references to the transcript of the 2003 formal hearing, even though the trial commissioner had rejected similar proposed “corrections” which, essentially sought to interpose respondent’s position regarding the credibility of the claimant and her physician, in denying the 2004 Motion to Correct. BACK TO TEXT

3 The trial commissioner found Dr. Collins a persuasive medical witness in 2004. “As finder of fact the trier has the sole authority to decide what evidence is reliable and what is not.” Byrd v. Bechtel/Fusco, 4765 CRB-2-03-12 (December 17, 2004). There were no legal grounds to revisit these issues either at the 2005 formal hearing or on appeal, particularly as the respondent once again focused on challenging his 2003 hearing testimony. BACK TO TEXT

4 Respondent may claim in a 31-301(f) proceeding it was proper to preserve the original issues in dispute for review since the original finding and award was on appeal. This rationale was extinguished when the original Finding and Award was upheld on appeal. Nonetheless, respondent did not withdraw this appeal after it was rendered moot, and indeed pursued a futile CRB hearing on the appeal. BACK TO TEXT

Workers’ Compensation Commission

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