State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Kalinowski v. City of Meriden

CASE NO. 5028 CRB-8-05-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 24, 2007

TADEUSZ KALINOWSKI

CLAIMANT-APPELLANT

v.

CITY OF MERIDEN

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLEE

and

CHWCT

ADMINISTRATOR

APPEARANCES:

The claimant was represented by Alan J. Rome, Esq. and Joel M. Ellis, Esq., Gersten Clifford & Rome, LLP, 214 Main Street, Hartford, CT 06106.

The respondent was represented by James F. Aspell, Esq., Furniss & Quinn, P.C., 248 Hudson Street, Stoneleigh Building, Hartford, CT 06106.

This Petition for Review1 from the November 4, 2005 Finding and Dismissal was heard June 23, 2006 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr., and Nancy E. Salerno.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The present appeal focuses on one issue: Can a trial commissioner find a nearly 15-year delay in pursuing a claim so substantial as to inherently prejudice the other party? The claimant in this case argues that his delay in seeking § 31-308(a) benefits from 1991 to 2005 did not prejudice his former employer. We disagree as the record demonstrates he had a prior opportunity to litigate this issue and experience argues extensive delays are detrimental to the fair adjudication of claims. We also find the trial commissioner had a valid alternative basis for his Finding and Dismissal. Hence, we dismiss the claimant’s appeal.

The claimant worked for the respondent City of Meriden in the late 1980s and the early 1990s. The file documents claims were filed for two compensable injuries, an elbow injury occurring on or about September 24, 1987 and a low back injury on or about February 28, 1990. A voluntary agreement for the 1987 injury was approved by the Commission on January 30, 1990. A voluntary agreement for the 1990 injury was approved on February 25, 1992. Following the approval of the voluntary agreements, further proceedings continued. Both agreements documented a date of maximum medical improvement. Commission records indicate the first informal hearing between these parties was held in the early 1990s and the first formal hearing scheduled on February 7, 1994.

In 1999 a series of formal hearings were held before Commissioner Vargas culminating in a Finding and Award dated April 24, 2000. The specific issues ruled on concerned 1998 elbow surgery for which the claimant sought to find compensable and the payment of temporary total disability benefits. The claimant’s proposed findings and award sought to attribute the surgery to the 1990 injury, but after considering the evidence Commissioner Vargas attributed the surgery to the 1987 injury. The claimant did not seek an award for unpaid § 31-308(a) C.G.S. benefits at the 1999 hearings.

In 2005 a new formal hearing was held concerning two issues: the claimant’s demand for payment of § 31-308(a) C.G.S. benefits he claims he should have received for the 1990 injury and a contemporaneous request under § 31-294d C.G.S. authorizing pain management treatment. Findings, ¶¶ 1-2. The respondent argued that under the voluntary agreement in place following the 1990 injury that they actually had overpaid the claimant during that time period and challenged the necessity of pain management treatment. They also asserted the claim for § 31-308(a) benefits was now barred by the doctrine of laches, as well as the doctrines of res judicata and collateral estoppel. Findings, ¶ 3. The respondents also filed a counterclaim seeking repayment of approximately $15,000 in overpayments from the early 1990s. Respondent’s August 4, 2005 trial brief.

Following a formal hearing that commenced March 28, 2005 and was continued to June 30, 2005 and August 22, 2005, Commissioner White issued his Finding and Dismissal on November 4, 2005. The trial commissioner found that the claimant denied having been paid temporary partial benefits in 1990 to 1991 and claimed he had never had the opportunity to present this issue before a trial commissioner. He found that claimant submitted evidence as to the contemporary issue of pain management, which the respondent challenged as unnecessary as the claimant had worked for ten years without back treatment.

The trial commissioner dismissed the claim for a number of reasons. He found the claimant had been before the Workers’ Compensation Commission in a number of formal hearings over the years. Findings, ¶ A. He found the claimant had been represented by knowledgeable counsel at all times. Findings, ¶ B. He found the claimant’s recollection appeared to vary based upon the issues he wished to address at a given time. Findings, ¶ C. Noting that the 1990 low back injury had been the subject of a prior formal hearing, Findings, ¶ D, and reviewing the terms of Commissioner Vargas’ 2000 Finding and Award he concluded the “claimant has waived any right to currently pursue a claim that may have existed to a June 1990 temporary partial benefit (31-308(a)) due to latches and collateral estoppel.”2 He further concluded the claimant had not proven his claim for pain management by a preponderance of credible evidence, Findings, ¶ E, and that the respondent’s claim for reimbursement of overpayment was also barred as “is also subject to a claim of latches and collateral estoppel.” Findings, ¶ G.

Both the claimant and respondent filed an appeal from this Finding and Dismissal. The respondent withdrew its appeal prior to a hearing before this board. The claimant filed a Motion for Articulation which was not received by the trial commissioner until April 2006. Commissioner White denied the motion on April 28, 2006. He also denied on that date a Motion to Correct filed by the claimant on April 17, 2006.

Prior to reviewing the claimant’s legal arguments in detail we believe a short discussion is warranted as to the purpose of the Workers’ Compensation Commission and the scope of review we exercise as an appellate panel. The Appellate Court has held “[t]he purpose of the Workmen’s Compensation Act is to provide a prompt, efficient, simple and inexpensive procedure for obtaining benefits related to employment” Middletown v. Local 1073, 1 Conn. App. 58, 65 (1983). In Duni v. United Technologies Corp./Pratt & Whitney Aircraft Division, 239 Conn. 19, 28 (1996) the Supreme Court applied the Workers’ Compensation Act and held that to “require employers to maintain records for a considerable period of time after each disability compensation claim had been settled,” would be “an interpretation that would undermine the statutory purpose of administrative simplicity.” The Duni opinion made clear that “the public interest in the prompt and comprehensive resolution of workers’ compensation claims” would be upheld by our appellate courts. Id., 27.

In reviewing this instant decision, our standard of review is deferential to the finder of fact. “As with any discretionary action of the trial court, appellate review requires every reasonable presumption in favor of the action, and the ultimate issue for us is whether the trial court could have reasonably concluded as it did.” Daniels v. Alander, 268 Conn. 320, 330 (2004).

The scope of review of a trial court’s factual decision on appeal is limited to a determination of whether it is clearly erroneous in view of the evidence and pleadings . . . Conclusions are not erroneous unless they violate law, logic or reason or are inconsistent with the subordinate facts . . . . A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Moutinho v. Planning & Zoning Commission, 278 Conn. 660, 665-666 (2006).

The claimant challenges the finding of laches as grounds for dismissal. In his brief his counsel argues that delay alone, even a delay of approaching 15 years, cannot establish laches. We note that the determination of whether a claim is barred by the equitable doctrine of laches has invariably been a fact driven exercise at all levels of litigation. As the Appellate Court held in Tinaco Plaza, LLC v. Freebob’s, Inc., 74 Conn. App. 760, 776 (2003) “[a] conclusion that a plaintiff has been guilty of laches is one of fact for the trier and not one which can be made by this court, unless the subordinate facts found make such a conclusion inevitable as a matter of law.”

“The principle that the passage of time can preclude relief has deep roots in our law.” City of Sherill v. Oneida Indian Nation of N.Y., 544 U.S. 197, 217 (2005). The U.S. Supreme Court recently provided guidance as to when a claim should be barred by laches in Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 379 (2004). Justice Kennedy held in the majority opinion, “[l]aches might bar a petition for a writ of mandamus if the petitioner ‘slept upon his rights . . . and especially if the delay has been prejudicial to the [other party], or to the rights of other persons’ Chapman v. County of Douglas 107 U.S. 348, 355 (1883).”

Our inquiry must center on whether there is evidence that the claimant “slept on his rights.” In his review of the evidence presented, the trial commissioner took reference to the respondent’s vehement objection to reopening what was then a 14 year-old claim. Findings, ¶ 3. The trial commissioner evidently agreed that the delay herein had been prejudicial to the respondents.3 We also can infer that the trial commissioner considered and rejected the claimant’s argument (Findings, ¶ 6) that he could not have brought this claim at an earlier date. This implicates the most definitive evidence that the claimant “slept on his rights;” the presence of prior hearings concerning the injury at issue herein.

The trial commissioner would need to have been presented with persuasive evidence that the claimant did not have a prior opportunity to present his claim for § 31-308(a) benefits to determine this claim was timely at this time. Otherwise, he was permitted to find the delay was contrary “to the public interest in the prompt and comprehensive resolution of workers’ compensation claims.” Duni, supra. The basis for this conclusion can be found in an analysis of the respondent’s argument the claim is barred by collateral estoppel.4

The trial commissioner’s conclusion collateral estoppel barred consideration of both the claimant’s belated demand for a § 31-308(a) award and the respondent’s demand for reimbursement provides both independent grounds for the dismissal and supports a dismissal for laches. While we believe the trial commissioner may have misidentified the form of claim preclusion present herein, his overall conclusion is consistent with relevant precedent barring consideration of claims when they could have been resolved at an earlier formal hearing and were not.

In Schreiber v. Town & Country Auto Service, 4239 CRB-3-00-5 (June 15, 2001) we pointed out the close relationships between the various legal theories involving claim preclusion. Comparing “res judicata,” “collateral estoppel” and the “law of the case” doctrine we noted “because these related ideas all descend from a judicial concern for systemic efficiency, and the sanctity of final judgment, they are often confused and commingled by parties attempting to define the applicable legal rules in situations such as this.” In Schreiber we concluded that “we also agree with the claimant’s observation that the collateral estoppel doctrine is technically inapplicable here.” In the present case we also agree that collateral estoppel is a misnomer for the form of claim preclusion present herein. Collateral estoppel requires a finding that an issue was previously litigated, as it is “that aspect of res judicata which prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties upon a different claim.” Rinaldi v. Enfield, 82 Conn. App. 505, 516 (2004). In the present case, the trial commissioner concluded that the claimant had the opportunity to pursue this matter before Commissioner Vargas, but chose not to. Findings, ¶¶ A-B.

This situation is more accurately described as a res judicata situation wherein “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 Ins. Co., 236 Conn. 582, 589 (1996). This involves a “transactional test” where the trier must ascertain if the present claim is the same claim as was presented earlier “[t]he judicial doctrines of res judicata and collateral estoppel are based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate . . . . ” Id., 591.

Therefore, it has long been settled law in workers’ compensation cases that a party cannot raise issues at a later date when he or she fails to avail themselves of an earlier opportunity to obtain a resolution. In Meadow v. Winchester Repeating Arms Co., 134 Conn. 269 (1948) the Supreme Court held, “A party to a compensation case is not entitled to try his case piecemeal, to present a part of the evidence reasonably available to him and then, if he loses, have a rehearing to offer testimony he might as well have presented at the original hearing.” Id., 273-274. “We have often stated that a party is not entitled to present his case in a piecemeal fashion, with a second bite at the apple forthcoming after failing to meet his burden of proof on the first try.” Hines v. Naugatuck Glass, 4816 CRB-5-04-6 (May 16, 2005) citing Fassett v. F. Castellucci & Sons, 15 Conn. Workers’ Comp. Rev. Op. 83, 2150 CRB 3-94-9 (December 7, 1995). “In the interest of finality and judicial economy, it is important that a claimant offer all available evidence the first time his claim is considered” Schreiber, supra, citing Fassett, supra.

A review of the April 24, 2000 Finding and Award indicates it dealt in detail with the 1990 injury which the claimant now seeks to litigate over again. While a trial commissioner certainly can reopen proceedings over an old injury given a change in circumstances, see Meadow, supra and Dellacamera v. Waterbury, 4966 CRB-5-05-6 (June 29, 2006), this dispute is purely retrospective in nature. The trial commissioner did not abuse his discretion by concluding that this matter had the opportunity to be fully litigated previously; thus not reopening proceedings over the 1990 injury.5

The standard of review herein is whether the trial commissioner’s findings on laches and claim preclusion were “clearly erroneous” as per the standard of review delineated in Moutinho, supra. Based on the record, we conclude they were not.6

Even if we were to conclude that the trial commissioner erred in dismissing the claim based on the theories of laches and claim preclusion, we would be compelled to uphold his finding and dismissal. In his Finding and Dismissal, the trial commissioner clearly indicated that he did not find the claimant a credible witness. In Findings, ¶ C the commissioner held, “I find the claimant’s recollections of pertinent facts appear to vary based upon the issues that he wishes to address at any given time.” As a result the rationale of Wierzbicki v. Federal Reserve Bank of Boston, 4147 CRB-1-99-11 (December 19, 2000) mandates an affirmance of the trial commissioner “[i]f the trier is not persuaded by the claimant’s evidence, there is nothing that this board can do to override that decision on appeal.” We are not empowered to reconsider a trial commissioner’s credibility assessments. See Liano v. Bridgeport, 4934 CRB-4-05-4 (April 13, 2006).7

The trial commissioner also made a finding on the issue of pain management which we cannot disturb. In Findings, ¶ E the trial commissioner concluded the claimant failed to meet his burden of proving the care would be curative, and not palliative. Our precedent in Carroll v. Flattery’s Landscaping, Inc., 4499 CRB-8-02-2 (March 25, 2003) is dispositive, “[w]e have in past cases addressed the subject of the ‘curative/palliative’ distinction upon which the compensability of his medical treatment hinges, and have explained that it is a factual matter as to whether medical care satisfies the ‘reasonable and necessary’ standard of § 31-294d C.G.S.” (Emphasis added). The evidence proffered is that the claimant “may benefit” from pain management. The trial commissioner concluded this evidence was inadequate. Consequently, as this is an issue of fact we are compelled to reach the same result as Carroll, supra, and uphold the trial commissioner’s dismissal on this issue.

As a result, we affirm the trial commissioner’s Finding and Dismissal and dismiss this appeal.

Commissioners Donald H. Doyle, Jr. and Nancy E. Salerno concur in this opinion.

1 We note that extensions of time were granted during the pendency of this appeal. BACK TO TEXT

2 We deem the trial commissioner’s use of the word “Latches” instead of “laches” to be a harmless scrivener’s error. See D’Amico v. Dept. of Correction, 73 Conn. App. 718, 729 (2002)(scriveners errors normally should be overlooked on review), cert. denied, 262 Conn. 933 (2003). BACK TO TEXT

3 We also note that our prior decisions clearly state that the respondent is deemed to be potentially prejudiced by a lapse of time. In DeMello v. Cheshire, 3633 CRB-8-97-6 (August 26, 1998) we remanded a three year old § 7-433c claim brought under Chapter 568 to determine if the respondent was prejudiced. Citing DeMello we upheld the dismissal of a belated § 31-306 claim in Chambers v. General Dynamics Corp./Electric Boat Division, 4952 CRB-8-05-6 (June 7, 2006) n.2 as “[h]ere the claim is two decades after manifestation of illness and the decedent’s departure from the respondent’s work force. The issue of potential prejudice to the respondent’s ability to investigate the claim is obviously exacerbated by the lapse of time herein.” BACK TO TEXT

4 The trial commissioner also deemed that the respondent’s effort to seek reimbursement of alleged overpayment to the claimant in the 1990-1992 time period was time barred as well by the doctrine of laches and collateral estoppel. Findings, ¶ G. We agree the claimant would have been prejudiced from having to defend such an untimely reimbursement request and for the legal and policy reasons stated herein regarding the claimant’s case we concur in this finding. BACK TO TEXT

5 Claimant’s reliance on Albahary v. Bristol, 276 Conn. 426 (2005) as authority for reversal of the trier’s finding of issue preclusion is unpersuasive. Albahary is a land use case where the Supreme Court upheld the trier’s finding of issue preclusion. Id., 445. BACK TO TEXT

6 As noted herein, all findings of laches are fact driven. Tinaco Plaza, supra. We have previously upheld a trial commissioner who on the basis on the record presented, refused to find a claim barred by laches, Mignosa v. New Britain, 3 Conn. Workers’ Comp. Rev. Op. 75, 135 CRD-6-82 (October 8, 1986). We must extend similar deference to the present finding of laches by the trial commissioner. Since one Connecticut court has found a delay of seven months adequate to sustain the bar of laches, Plymouth v. Church-Dlugokenski, 48 Conn. Supp. 481 (2004), we cannot find the present decision “clearly erroneous.” BACK TO TEXT

7 As the claimant’s Motion to Correct sought to interpose his legal theories and factual conclusions for that of the trial commissioner, we find no error in its denial. See Liano, supra, and D’Amico, supra, 728 n.1. In regards to the Motion for Articulation we find the legal standards governing the trial commissioner’s decision self-apparent, and find no error in its denial. See Chernak v. Stamford, 5012 CRB-7-05-10 (December 13, 2006). BACK TO TEXT

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