State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Schenkel v. Richard Chevrolet, Inc.

CASE NO. 5302 CRB-8-07-12

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 21, 2008

NOEL SCHENKEL

CLAIMANT-APPELLEE

v.

RICHARD CHEVROLET, INC.

EMPLOYER

and

UTICA MUTUAL INSURANCE CO.

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Keith Marquis, Esq., Law Offices of Keith E. Marquis, 205 Church Street, Suite 636-637, New Haven, CT 06510.

The respondents were represented by Elycia S. Solimene, Esq., Gibson & Behman, P.C. 190 Washington Street, Middletown, CT 06457.

This Petition for Review from the November 16, 2007 Finding & Award/Dismissal of the Commissioner acting for the Eighth District was heard June 27, 2008 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Charles F. Senich and Scott A. Barton.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents in this matter have appealed from a Finding and Award/Dismissal to the claimant, awarding the claimant temporary total disability benefits, medical benefits and levying sanctions against the respondents for unreasonable delay. The respondents claim that the relief awarded to the claimant was inconsistent with the notice for the formal hearing, was not supported by competent evidence and was barred by the theories of res judicata and collateral estoppel. We are not persuaded by these arguments; hence we dismiss this appeal and affirm the trial commissioner’s decision.

The genesis of this case was a compensable back injury the claimant suffered June 16, 2000. A Finding & Award/Dismissal dated February 25, 2003 was issued for this injury. There was an appeal of this decision to this board. See Schenkel v. Richard Chevrolet, Inc., 4639 CRB-8-03-3 (March 12, 2004) [“Schenkel I”] which determined the original decision needed to be remanded for consideration of the permanency issue and apportionment of the permanency award. The commissioner resolved these issues on August 30, 2004.

The claimant then later asserted that his condition was such that he was now totally disabled, and in addition, he needed additional treatment for the compensable injury. Informal hearings commencing in August of 2005 failed to resolve the differences between the parties necessitating formal hearings on May 8, 2007 and June 13, 2007, with the record closing July 30, 2007. At the formal hearing the claimant also sought interest and attorney’s fees for the undue delay in treatment and payment of benefits.

The trial commissioner noted the evidence presented included testimony from the claimant. The claimant testified he has increased pain and numbness since the last formal hearing in this matter; and that he was bedridden 10-14 days a month due to pain. He also testified he was severely depressed since the prior formal hearing. He also testified as to the medication he was taking for his depression, and testified that the respondents had been delaying or not paying for prescription drugs and treatment. The claimant also presented medical reports and bills from his treating physicians, Dr. W. Jay Krompinger and Dr. James Brodey, as well as reports and a deposition transcript from the respondents’ expert witness, Dr. John Gevinski. The claimant’s spouse, Diane Schenkel also testified and his attorney testified as to the time he expended in obtaining benefits for the claimant.

The respondents introduced testimony from Brian Davis’ surveillance reports and a surveillance videotape of the claimant. They also introduced a report from Dr. Gevinski. Based on the evidence presented, the trial commissioner concluded the claimant’s testimony was credible and persuasive as to his position that his condition had deteriorated significantly since the last formal decision in this matter. He also found the claimant credible and persuasive on the issue of whether the respondents had delayed the payment for medical treatment in this case. The commissioner also found Dr. Krompinger’s reports credible and persuasive that the claimant’s symptoms had increased since the last formal hearing. The commissioner found that Dr. Krompinger was credible in prescribing aqua therapy for the claimant and that Dr. Brodey’s prescriptions for medications and treatment to be reasonable and necessary treatment. The trial commissioner also found Dr. Gevinski’s August 15, 2006 report credible and persuasive on the issues of pain management and medications, and also found Dr. Gevinski’s August 15, 2006 report credible finding the claimant is totally disabled from work. The commissioner did not find Dr. Gevinski’s November 22, 2006 report, submitted by the respondents, credible or persuasive, nor did he find Mr. Davis a credible and persuasive witness. The commissioner found the claimant and his witnesses credible on the issue of unreasonable delay in payment of claimant’s prescriptions and on the issue of unreasonable contest and delay of medical treatment.

Based on these findings the trial commissioner determined in his November 16, 2007 Finding that the claimant was totally disabled as of August 15, 2006. The trial commissioner ordered the respondents to pay for the claimant’s pain management treatment and further found the respondents had unreasonably contested this issue. The commissioner also found the claimant had prevailed on his claim of unreasonable contest and unreasonable delay in this matter as to his claims to indemnity benefits, medical treatment, medical bills and prescriptions and awarded statutory interest at the rate of 12% per annum. The trial commissioner also found there had been an unreasonable contest of the temporary total disability issue as the respondents’ expert had opined as of August 15, 2006 the claimant was totally disabled. As a result of the unreasonable contest the claimant was awarded $5,445 in attorney’s fees associated with the medical treatment and medical bill claim, with additional fees to be awarded for the disability aspect of the claim. The commissioner further determined the respondents’ defenses of res judicata and collateral estoppel raised in a Motion to Dismiss were denied.

The respondents filed a Motion to Correct. The granted corrections did not materially change the result of the decision and this present appeal was taken to this panel.

The respondents assert a number of alleged errors. They argue that the hearing did not provide them with adequate notice that the claimant was seeking temporary total disability benefits. They argue that the 2003 Finding which denied the claimant temporary total disability benefits should have been res judicata on the issue of such benefits going forward. They argue that even if the trial commissioner was able to award temporary total benefits to the claimant, that the evidence did not support such an award. Finally, they seek a reversal on the finding of unreasonable contest, stating that they presented a credible defense at the hearing. We are not persuaded that any of these issues warrant a reversal.

On the issue of appropriate notice, the respondents argue the trial commissioner failed to cite § 31-315 C.G.S. in the hearing notice; thereby providing the respondents insufficient notice as to the issues in the hearing. We have reviewed the hearing notice for the May 8, 2007 hearing which clearly places the parties on notice that the issue of awarding the claimant benefits under § 31-307 C.G.S., reimbursement for expenses as well as medical treatment and medical bills under § 31-294d C.G.S., and whether sanctions should be levied were under consideration. The respondents argue that they were not apprised that the trial commissioner would consider as part of his deliberations medical evidence submitted prior to the 2005 hearing request. We believe this approach is inconsistent with the continuing nature of a workers’ compensation claim, which can stay “open” until a case is resolved by full and final stipulation. Schenkel I, supra.

We note that at the start of the May 8, 2007 hearing the trial commissioner specifically stated,

prior to the opening of the record the parties have requested that this Commissioner make as part of this exhibit any and all transcripts, exhibits and Finding & Awards in regards to the case of Noel Schenkel versus Richard Chevrolet. There was an earlier Finding & Award in this as well as a remand in regards to the case that has been issued, all those Findings including the CRB remand are now made part and parcel of this proceeding and will be taken into consideration in regards to the position being claimed by the claimant and respondent in this matter.

May 8, 2007 Transcript, p. 7. The commissioner then stated that the claimant was seeking medical bills and medical treatment. Counsel for the respondents answered affirmatively when asked, “I’m assuming you both are aware that all those issues are before me also?” May 8, 2007 Transcript, p. 8. Therefore, we fail to find a due process issue present in this matter.

The respondents also argue that the trial commissioner was barred from awarding the claimant benefits under § 31-307 C.G.S. since he had been denied these benefits at the prior formal hearing. Based on the respondents’ theory, res judicata and collateral estoppel bar an award of such benefits in the future. We believe this is an erroneous interpretation of the law.

In Schenkel I we specifically decided that the decision made as to whether the claimant was entitled to total disability benefits in 2003 was not dispositive of whether at some future point the claimant could receive such benefits. The relevant part of the decision is as follows:

Though a commissioner may determine that current circumstances at the time of a formal hearing do not warrant further benefits or ongoing treatment such as pain management therapy, a claimant always retains the right to seek medical treatment or benefits for future time periods should circumstances change. Given this limit on the trier’s authority, we read ¶ o of his findings as stating that the claimant’s current claims for compensation beyond November 4, 2002 were all denied, save for the 20% permanency award and the prescription for Elavil. (Emphasis added).

In Schenkel I, we followed the approach delineated in Valletta v. State/Department of Mental Retardation Southbury Training School, 4543 CRB-5-02-6 (March 26, 2003). In Valletta we explained why awards such as the one presently on appeal were legally appropriate. “The claimant is seeking temporary total benefits for a period following the period of time to which the Form 36 applied. Such claims are not uncommon in our Workers’ Compensation system.” Id. Therefore, we found the respondents’ reliance on Marone v. Waterbury, 244 Conn. 1, 17 (1998) in Valletta, misplaced, since the relief previously granted was not the subject of the hearing.

We cited Valletta as precedent in Bailey v. Stripling Auto Sales, Inc. d/b/a Willimantic Dodge/Nissan, 4516 CRB-2-02-4 (May 8, 2003). In Bailey we rejected arguments similar to the respondents’ argument in the present case that concepts of claim preclusion prohibited the granting of temporary total disability benefits to the claimant.

Nevertheless, we are here, and the respondents’ appeal is before us. In order for the doctrine of res judicata to prevent the claimant from asserting his claim for total disability benefits, the respondents must demonstrate that the claim was substantially identical to the claimant’s prior, unsuccessful action for total disability benefits. “The rule of claim preclusion prevents reassertion of the same claim regardless of what additional or different evidence or legal theories might be advanced in support of it.” Delahunty v. Massachusetts Mutual Life Ins. Co., 236 Conn. 582, 589 (1996). A closely related doctrine, collateral estoppel, prevents the retrial of issues that were actually litigated and necessarily determined in prior actions between the same parties. Lafayette v. General Dynamics Corp., 255 Conn. 762, 772 (2001).
If a claim covering a certain period of time is denied based on a lack of proof that a compensable injury led to total disability during that period, that decision need not be reopened pursuant to § 31-315 before a claimant may seek benefits for a later time period. Valletta v. State/Dept. of Mental Retardation, 4543 CRB-5-02-6 (March 26, 2003). The two claims are legally distinct, even though they may stem from the same compensable injury, and even though the initial dismissal order may contain relevant findings of fact whose preclusive effect under the collateral estoppel doctrine would make it harder for a claimant to later prove that his condition has worsened enough to establish total disability. See, e.g., Calderoni v. B&T Contractors, 4207 CRB-5-00-3 (May 4, 2001)(previous finding that total disability was due to heart disease and not to compensable injuries was adopted by trier, who found no substantial change in medical condition with regard to compensable injuries, and denied subsequent total disability claim). We therefore cannot say that, as a matter of law, a claim for disability from May 10, 1995 forward would be precluded by a dismissal of a disability claim for an earlier time period under the doctrine of res judicata. As long as there is an accepted compensable injury and the case remains open, a claimant has legal standing to bring a total disability claim for a subsequent time period.

Bailey, supra.

We therefore conclude the concepts of claim preclusion are inapplicable to the present case.1 The question properly before this panel is whether the trial commissioner had sufficient grounds to award the claimant temporary total disability benefits based on the record before the commissioner.

The respondents argue that the claimant failed to establish that his condition had deteriorated since the prior Finding and Award, primarily asserting he did not present medical evidence on that issue which comported with the legal standards in Struckman v. Burns, 205 Conn. 542 (1987). The claimant argues that the evidence he presented from treating physicians and the respondents’ expert witness, Dr. Gevinski, met this standard. Since Struckman requires us to examine “the entire substance of the expert’s testimony,” id., at 555, we will examine the various reports and testimony referred to by the trial commissioner in his Finding & Award.

The trial commissioner found the reports of Dr. Krompinger credible on the issue of whether the claimant was presently totally disabled and whether the claimant’s condition had deteriorated. Dr. Krompinger’s July 22, 2003 report stated the patient “feels that there has been an overall increased level of lower extremity symptomatology.” On April 6, 2004 his report stated “[a]t this point, this gentleman has had increasing symptoms” and recommended aquatic physical therapy. On July 20, 2004 his report stated “[t]his gentleman has had an overall increase of back pain with diffuse leg pain.” The October 11, 2005 report cited by the trial commissioner stated the claimant “feels that he has had an overall increase in symptoms,” noted that the claimant’s 38% permanency rating “could conceivably increase to the mid 40s pending the evolution of his degenerative process” and that “[h]e presently, I do not believe, has a working capability.” Claimant’s Exhibit A. The trial commissioner found this evidence sufficiently persuasive to determine the claimant’s condition had deteriorated since the 2003 formal hearing. We find Dr. Krompinger’s reports comport with the standards in Struckman, supra. We also find the Appellate Court has upheld a trial commissioner who relied on similar evidence to approve a temporary total disability order in Marandino v. Prometheus Pharmacy, 105 Conn. App. 669, 684 (2008), cert. granted, 286 Conn. 916 (2008).2

The trial commissioner also referenced the August 15, 2006 report of Dr. Gevinski, the respondents’ expert witness, as credible and persuasive. Dr. Gevinski specifically stated “I agree with his treating physicians that he [the claimant] is permanently, totally disabled from work.” At a March 13, 2007 deposition, Dr. Gevinski testified consistently with this opinion. Claimant’s Exhibit K, pp. 14-15. Therefore, we believe the trial commissioner properly could have found the claimant was entitled to temporary total disability benefits as of the date of Dr. Gevinski’s August 15, 2006 report.

The respondents argue that the trial commissioner should have relied on a November 22, 2006 report of Dr. Gevinski which opined that there had been no change in the claimant’s condition since 2002. The trial commissioner specifically found this report not to be credible or persuasive. We cannot revisit this conclusion, especially since at his deposition Dr. Gevinski agreed that his opinion on that issue was “speculation based on the medical records.” Claimant’s Exhibit K, p. 28. “We have reiterated the maxim that a trial commissioner need not credit every opinion an expert witness offers when she relies on that expert for an opinion she does credit. See O’Connor v. Med-Center Home Healthcare, Inc., 4954 CRB-5-05-6 (July 17, 2006) and Lopez v. Lowe’s Home Improvement Center, 4922 CRB-6-05-3 (March 29, 2006).” Risola v. Hoffman Fuel Company of Danbury, 5120 CRB-7-06-8 (July 20, 2007), dismissed for lack of final judgment, A.C. 29056 (October 18, 2007). The trial commissioner could reasonably rely on the opinion of Dr. Gevinski as to the claimant’s present condition, while relying on the opinion of Dr. Krompinger that the claimant’s condition was continuing to deteriorate. We find the decision herein consistent with prior cases where a claimant who failed to prove temporary total disability at one point in time proffered sufficient evidence at a later date that he or she was then entitled to § 31-307 C.G.S. benefits. See Howard v. CVS Pharmacy, Inc., 5063 CRB-2-06-3 (April 4, 2007).

We finally look to the issue of whether sanctions should be imposed. In Kuhar v. Frank Mercede & Sons, Inc., 5250 CRB-7-07-7 (July 11, 2008) we pointed out that “[w]hether the respondents’ conduct warranted sanctions under the facts in this case was clearly a judgment call for the trial commissioner.” In Kuhar, after reviewing the standards delineated in Duffy v. Greenwich-Board of Education, 4930 CRB-7-05-3 (May 15, 2006) we concluded such a judgment call must be upheld, and declined to reverse the commissioner’s decision that sanctions were not warranted in that case.

We refuse to second-guess the trial commissioner in this case as well. The commissioner explained that on the issues of delay of medical treatment and delay of prescriptions he found the testimony of the claimant, his spouse and his attorney credible. He also found Dr. Gevinski’s testimony did not justify delay on those matters. Counsel for the respondent appears to have attempted to shift blame for the delays to a pharmacy manager. May 8, 2007, Transcript, pp. 10-11. We can conclude the trial commissioner did not find this a sufficient explanation. The claimant also points out that this matter was the subject of 12 different hearings within a 24 month period. Claimant’s Brief, pp. 3-4. The inability of the parties to resolve these issues despite multiple hearings certainly could have weighed in favor of levying sanctions.

On the issue of whether there was an unreasonable contest of the claimant’s bid for § 31-307 C.G.S. benefits we find this situation akin to when we upheld sanctions in Marra v. Ann Taylor Stores Corp., 5027 CRB-3-05-11 (December 29, 2006). In Marra we determined “the trial commissioner herein concluded the evidence provided by the respondents’ medical expert actually concurred with the treating physician on the decisive issues, and penalized the respondents for not reaching a timely agreement with the claimant.” We cannot find error with the trial commissioner concluding in this case that on the issue of § 31-307 C.G.S. benefits Dr. Gevinski’s testimony supported the claimant’s bid and that the respondents should be sanctioned for an unreasonable contest.3

We therefore conclude that the trial commissioner could reasonably have reached the conclusions he reached in the Finding and Award. We affirm the Finding and Award and dismiss this appeal.

Commissioners Charles F. Senich and Scott A. Barton concur in this opinion.

1 We are perplexed at the respondents’ reliance on Kalinowski v. Meriden, 5028 CRB-8-05-11 (January 24, 2007) on the issue of claim preclusion. Kalinowski was a case where the trial commissioner concluded the claimant had “slept on his rights” in seeking over a decade later to raise claims which should have been resolved at a prior formal hearing. We also noted the nature of that claim was “purely retrospective in nature.” In the present case, the factual findings were that the respondents had engaged in undue delay and the time period for which relief is being sought is subsequent to the prior award. BACK TO TEXT

2 In Marandino v. Prometheus Pharmacy, 105 Conn. App. 669, 684 (2008), the claimant had obtained a voluntary agreement for a compensable injury and moved to have the agreement reopened due to a deteriorating condition. She presented evidence from her treating physicians as to increased pain and immobility. The Appellate Court held, “[t]he commissioner was entitled to rely on this evidence to determine that the plaintiff suffered a change in medical condition sufficient to warrant a modification of the voluntary agreement.” BACK TO TEXT

3 Respondents claim it was error for the trial commissioner to reject those corrections in their Motion to Correct which were not approved. Since the Motion to Correct essentially sought to interpose the respondents’ conclusions as to the facts presented, we find no error. See Liano v. Bridgeport, 4934 CRB-4-05-4 (April 13, 2006), and D’Amico v. Dept. of Correction, 73 Conn. App. 718 (2002). BACK TO TEXT

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