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Calinescu v. CFD Associates

CASE NO. 4144 CRB-08-99-11



NOVEMBER 7, 2000











The claimant appeared pro se at oral argument.

The respondents were represented by David Schoolcraft, Esq., Duhamel & Schoolcraft, L.L.C., 131 New London Turnpike, Suite 317, Glastonbury, CT 06033.

This Petition for Review from the November 9, 1999 Ruling of the Commissioner acting for the Third District was heard July 14, 2000 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Robin L. Wilson and Leonard S. Paoletta.


JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the November 9, 1999 Ruling of the Commissioner acting for the Third District. He contends on appeal that the trier erred by dismissing his claim based on the preclusive doctrine of res judicata. We affirm the trial commissioner’s decision.

The claimant, a former building superintendent for the respondent CFD Associates, has filed Forms 30C for two separate events: a June 14, 1991 incident described as an injury to his “Right Master Arm and Shoulder and lacerations to the left eye,” and a July 12, 1991 incident described as an injury to his “Right Master Arm and Shoulder.” The respondents initially filed a timely notice of intention to contest liability for each of those alleged injuries, but later changed their position with respect to the first injury, and paid the claimant for his lost time and medical treatment. The second injury remains unaccepted. Several formal hearings were held in this case during 1992. The notice for each formal hearing listed its topic as compensability, and the relevant dates of injury as June 14, 1991 and July 12, 1991.

In a July 27, 1993 Finding and Dismissal, the trial commissioner noted the acceptance of the first injury, and the claimant’s subsequent claim for “a new and separate injury to his right master shoulder on the morning of 7/12/91 at around 8:30 a.m. while he was attempting to move a refrigerator on a hand truck up a flight of stairs to an apartment Claimant had been getting ready for an occupancy.” Findings, ¶ 9. The claimant alleged that he felt a pull in his right shoulder and elbow while trying to maneuver the refrigerator, whereupon he left the appliance in the basement and returned to his own apartment to ice his shoulder. Based on the emergency-room doctor’s description of the claimant’s posterior shoulder subluxation, the trier found that the injury could not have occurred in the manner alleged by the claimant, and dismissed his July 12, 1991 injury claim. This board, and later the Appellate Court, affirmed that decision on appeal. Calinescu v. CFD Associates, 13 Conn. Workers’ Comp. Rev. Op. 298, 1794 CRB-8-93-8 (April 21, 1995), affirmed, 40 Conn. App. 912 (1996) (per curiam). We also denied a motion by the claimant to submit as additional evidence the testimony of Dr. Biondino, an orthopedic surgeon who attested that the claimant’s dislocated shoulder could possibly have been caused by the refrigerator incident and/or the June 14, 1991 incident (where the claimant fell after being stung by a bee).

The claimant then requested a new formal hearing with respect to the June 1991 claim. There, he offered the live testimony of Dr. Biondino regarding the connection of his shoulder symptoms to the June 1991 injury. The respondents immediately moved for dismissal of this claim on the ground of res judicata. Though they acknowledged that the medical relationship between the claimant’s shoulder problems and his June 14, 1991 accident had not been conclusively determined, they maintained that the action should be barred because the claimant had already attempted to litigate the issue of his employer’s legal liability for these shoulder problems in the previous action. The claimant, meanwhile, urged that his claim be considered, as the prior Finding and Dismissal did not expressly implicate the 1991 injury, and the humanitarian purpose of the Workers’ Compensation Act outweighs the mechanical application of preclusion doctrines.

The trial commissioner1 accepted the respondents’ argument that the doctrine of res judicata properly applies to this case. She reasoned, “The Claimant knew about both claims at the time of his first formal proceedings. He knew that both claims were assigned for trial and had been the subject of prior hearings. The Claimant made a calculated decision to try to make the shoulder problems compensable by ascribing them to the July incident. Having failed he now seeks to try the same issues over, by now alleging a causal connection to a new date of injury.” (Emphasis in original.) She then cited the purposes behind the res judicata doctrine, and concluded that these purposes would not be served by allowing the claimant to relitigate his claim for shoulder damage under a new theory of injury. Accordingly, she granted the Motion to Dismiss, from which ruling the claimant has petitioned for review to this board.

There have been several recent instances, both at this level of review and before our state courts of appeal, in which the doctrines of collateral estoppel and res judicata have been raised and discussed. See, e.g., Dowling v. Finley Associates, Inc., 248 Conn. 364, 373 (1999); Crochiere v. Board of Education, 227 Conn. 333, 342 (1993). Claim preclusion (res judicata) and issue preclusion (collateral estoppel) are often described as related ideas on a continuum, for both have been developed as a means of protecting the finality of legal judgments and preventing wasteful relitigation. Id., 343; Lafayette v. General Dynamics/Electric Boat, 3943 CRB-8-98-12 (April 18, 2000). Collateral estoppel eliminates the retrial of individual issues that have been settled in a prior suit; its invocation is dependent upon the actual litigation of said issues, and the indispensability of those issues to the prior judgment. Crochiere, supra; Lafayette, supra. Res judicata, meanwhile, prevents a claimant from reasserting a claim that has already been denied on its merits. Id. “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). Of course, neither doctrine should be applied overzealously, as a party must not be deprived of meaningful legal process. Lafayette, supra.

The claimant stresses that the first trial commissioner never made a decision regarding the compensable sequelae of his June 14, 1991 injury. He observes that the respondents’ attorney went so far as to specify in his original trial brief that the claimant’s June incident was not the subject of the hearings being held at that time. This description is incomplete, though. What the respondents’ attorney said was that the June incident was not then at issue because the claimant maintained that he had fully recovered from its effects. Brief, p. 2. The February 11, 1992 formal hearing transcript indeed shows that the claimant insisted his current shoulder symptoms were attributable to the July injury rather than the June injury, and that the June injury had completely healed. Id., pp. 57-60. He chose to argue that his impairment was due to the injury he allegedly suffered while trying to move the aforementioned refrigerator. The claimant ultimately failed to establish that claim, however, and now seeks the opportunity to prove that these same shoulder symptoms are indeed attributable to the June 1991 injury after all.

It is true that, for collateral estoppel purposes, the issue raised by the claimant in this case has not been decided. Res judicata, on the other hand, would seem to apply quite squarely here. The June 14, 1991 injury was included in all of the hearing notices, and was mentioned at trial. The claimant could have proposed that this injury was causally related to his shoulder ailment, either exclusively or jointly with the July 12, 1991 injury. Instead, he made the tactical decision to discount its effects, which led the trier to focus his findings on the details of the July 1991 injury. A different strategy would have enabled the trial commissioner to consider a potential relationship between the June injury and the claimant’s disability. Therefore, it is fair to say that this claim might, and should, have been raised during the trial that took place eight years ago.

The claimant’s opportunity to litigate the connection between his June 14, 1991 injury and his shoulder symptoms has passed. We do not believe that the remedial spirit of the Workers’ Compensation Act requires us to allow the claimant to return in order to rekindle discussions regarding the etiology of his shoulder injury. The claimant has already been given one opportunity to fully and fairly litigate his claim; justice does not require that he be allotted any greater share of our limited judicial resources. See Delahunty, supra, 592. The final judgment in this case should not be disturbed.

The trial commissioner’s decision is accordingly affirmed.

Commissioners Robin L. Wilson and Leonard S. Paoletta concur.

1 The trial commissioner in this matter, Nancy Brouillet, was also a member of the Compensation Review Board panel that considered the claimant’s previous petition for review. The claimant mentions this fact in his Reasons for Appeal. We agree with the respondents that the claimant waived any potential claim of bias on that ground by failing to object when the trial commissioner stated on the record that she had been a member of the CRB panel that upheld dismissal of the claimant’s earlier action. August 17, 1999 Transcript, p. 3; Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 516-17 (1986) (a party cannot withhold objection in anticipation of favorable outcome while reserving right to impeach decision if it later proves to be unfavorable). BACK TO TEXT

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