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Sellers v. Sellers Garage

CASE NO. 5090 CRB-5-06-5

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 11, 2007

HEYWARD SELLERS

CLAIMANT-APPELLANT

v.

SELLERS GARAGE

EMPLOYER

and

TRAVELERS INSURANCE COMPANY

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant appeared pro se.

The respondents Sellers Garage and Travelers Insurance Company were represented by Richard T. Stabnick, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

This Petition for Review from the May 4, 2006 Finding and Dismissal of the Commissioner acting for the Fifth District was heard November 17, 2006 before a Compensation Review Board panel consisting of Commissioners Nancy E. Salerno, George Waldron and Ernie R. Walker.

OPINION

NANCY E. SALERNO, COMMISSIONER. We are presented with another opportunity to determine whether a trial commissioner erred in failing to award benefits to the claimant. This particular appeal arises from the May 4, 2006 Finding and Dismissal of the Commissioner acting for the Fifth District. In that Finding and Dismissal the trial commissioner dismissed the claimant’s claim; for benefits predicated on the basis of the worsening of his depression and the concomitant symptomatology he relates to his depression and work related accidents, and total disability.

The claimant presents the following issues for review; (1) whether the trial commissioner erred in failing to find that his depression and the complaints he related to that condition were compensable and (2) whether the trial commissioner erred in failing to find that the claimant was totally disabled due to prior compensable injuries. We find no error.

The pertinent facts in this matter were set out in our prior opinions in Sellers v. Sellers Garage, Inc., 4762 CRB-5-03-12 (February 3, 2005), aff’d, 92 Conn. App. 650 (2005), Sellers v. Work Force One, 4807 CRB-5-04-5 (March 3, 2005) and restated in the Appellate Court’s decision Sellers v. Work Force One, 92 Conn. App. 683 (2005). That recitation was as follows:

“On September 25, 1995, when [the plaintiff] was employed by Sellers Garage, Inc., and while that entity was insured by Royal Insurance Company [(Royal)], the [plaintiff] suffered an injury to his right wrist and right shoulder. On November 14, 1995, the [plaintiff] suffered pain in his left wrist which was believed to be the result of overuse resulting from the September 25, 1995 injury to his right wrist. On March 21, 1997, again while in the employ of Sellers Garage, Inc., and while Royal . . . was the carrier, the [plaintiff] sustained a head injury when an automobile part fell on his head. Liability was accepted via a voluntary agreement.
“On April 21, 1998, when in the employ of [the defendant] Work Force One, Inc., and while [the defendant] Hanover Insurance Company [(Hanover)] was the carrier on the risk, the [plaintiff] complained of increased pain in his right wrist. The [defendants] . . . disputed the [plaintiff’s] claim. Claims for benefits were sought for employment periods while both Royal . . . and Hanover were on the risk. These claims were heard by [Donald Doyle, commissioner for the fifth district] and determined in his May 9, 2001 finding and award. Claims of error relating to that May 9, 2001 finding and award were considered by [the board] in [a companion case against Sellers Garage, Inc., and Work Force One, Inc.]. The [board] affirmed the findings and conclusions of [the commissioner],’ and this court subsequently affirmed the board’s decision.
“On December 11, 2003, [Commissioner Doyle] issued a finding and dismissal in which [he] considered the [plaintiff’s] claim of having sustained a fifty percent (50%) permanent partial disability to his brain. [On February 3, 2005, the board] affirmed the trial commissioner’s dismissal of the [plaintiff’s] claim for 50 percent . . . permanent partial disability to his brain. Following the commissioner’s December 11, 2003 finding and dismissal, the [plaintiff] filed a form 30C seeking benefits due to depression for which he claimed the [defendants] were liable. An informal hearing was held [before Amado J. Vargas, commissioner for the fifth district] and, thereafter, the [defendants] sent a letter dated March 22, 2004, to the trial commissioner with a copy to the [plaintiff] indicating their position that the claim should be dismissed on the basis of res judicata and collateral estoppel. The [defendants] contended that the [plaintiff’s] claims for depression and erectile dysfunction were previously litigated and determined in Commissioner Doyle’s May 9, 2001 finding and award. [Commissioner Vargas] issued [a] finding and dismissal [on April 29, 2004], in which he concluded [that] the [plaintiff’s] attempt to retry the matter was barred under the legal principles of res judicata and collateral estoppel.” (internal quotations and footnotes omitted)
Id., 683-85.

Subsequent to the above noted proceedings, the claimant renewed his claims and proceedings were held in the Fifth District. The trial commissioner rendered his decision and this appeal followed.

Our review in this appeal begins with our consideration of whether the trial commissioner erred in failing to find that the claimant’s depression was compensable. In proceedings before the trial commissioner the respondents defended the claimant’s claim on the basis of the collateral estoppel and res judicata doctrines. The respondents’ argument was based on the prior ruling of Commissioner Donald Doyle in Sellers v. Sellers Garage, issued in his May 9, 2001 Finding and Award. In that Finding and Award Commissioner Doyle concluded that the claimant’s depression was not compensable. Commissioner Doyle’s Finding and Award was affirmed by this board in Sellers v. Sellers Garage, Inc., 4391 CRB-5-01-5 (April 26, 2002), and affirmed by the Appellate Court in Sellers v. Sellers Garage, Inc., 80 Conn. App. 15 (2003), cert. denied, 267 Conn. 904 (2003).

The claimant again brought aspects of the same claim to proceedings before Commissioner Amado Vargas. In his Finding and Dismissal issued December 11, 2003 and April 29, 2004, Commissioner Vargas concluded that the claimant was collaterally estopped from bringing a claim for sexual dysfunction and denied his request for an increase in his permanent partial disability rating. In the instant proceedings before this trial commissioner the claimant argued that he was seeking benefits for the worsening of his depression. The claimant contends the principles res judicata and collateral estoppel should not apply as this is the first consideration of his claims for the increase in his symptoms.

We find no merit to the claimant’s argument. If the prior condition(s) for which compensation was sought was not found compensable we fail to see how the alleged worsening of a non-compensable condition would be elevated to the status of compensable. Thus, as the claimant’s claim for depression and erectile dysfunction was litigated previously the trial commissioner’s dismissal of such claims on the basis the relitigation of the issues is precluded is affirmed.1

In the proceedings below the claimant also contended that he was totally disabled. Whether a claimant is totally disabled is a question of fact to be resolved by the trial commissioner. See Gombas v. Custom Air Systems, Inc., 4996 CRB-4-05-9 (September 20, 2006). In the instant matter the trial commissioner determined that the claimant had a work capacity. Such a finding and conclusion will not be disturbed unless contrary to law, without evidentiary support or based on unreasonable or impermissible inferences. The appellant has failed to persuade us that any of these tenets were violated.

The claimant also requested an opportunity to present additional evidence. The claimant sought to supplement the record in appeal with the transcripts of hearings before Commissioner Donald Doyle and communications between Commissioner Doyle and Dr. Steven Levin. We have noted on a number of occasions that we allow pro se litigants some latitude in terms of their conformance to established legal procedure. However, their status as pro se litigants does not absolve them from all procedural requirements and expectations in the prosecution of their claims. Aley v. Aley, 97 Conn. App. 850, 853 (2006); Sellers v. Sellers Garage, Inc., 80 Conn. App. 15 (2003) (note 2). The record here includes reports from Dr. Steven Levin covering the period of claimant’s treatment from March 5, 2002 through January 20, 2005. We believe Commissioner Doyle’s May 9, 2001 Finding and Award speaks for itself. The claimant has not referenced any specific portion of the transcripts in the proceedings before Commissioner Doyle which buttress his argument on appeal. Further, pursuant to Admin. Reg. 31-301-9 additional evidence will be considered when:

[A] party to an appeal shall allege that additional evidence or testimony is material and that there were good reasons for failure to present it in the proceedings before the commissioner, he shall by written motion request an opportunity to present such evidence or testimony to the compensation review division, indicating in such motion the nature of such evidence or testimony, the basis of the claim of materiality, and the reasons why it was not presented in the proceedings before the commissioner. . . .

The documents which the claimant now seeks to add to the record were available at the time of the proceedings below. Further, the litigation of a claim and the proffering of evidence on a piecemeal basis is a practice that is not favored in our courts. See Kearns v. Torrington, 119 Conn. 522 (1935).

We therefore affirm the May 4, 2006 Finding and Dismissal of the Commissioner acting for the Fifth District.

Commissioners George Waldron and Ernie R. Walker concur.

1 For a discussion of the principles of issue preclusion and their application in the instant matter we refer to the Appellate Court’s opinion in Sellers v. Work Force One, 92 Conn. App. 683 (2005). BACK TO TEXT

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