Brown v. Connecticut Aerosol

The claimant was represented by Charles Douthat, Esq., 26 Trumbull St., P. O. Box 1496, New Haven, CT 06506.

The respondents were represented by Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033.

This Petition for Review from the April 27, 1995 Finding of Denial of Temporary Total Benefits of the Commissioner acting for the Third District was heard September 20, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Robin L. Wilson and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the April 27, 1995 Finding of Denial of Temporary Total Benefits by the Commissioner acting for the Third District. The claimant was employed by the respondent Connecticut Aerosol on June 14, 1974, when he sustained serious burns to his legs, arms and body in a workplace chemical explosion. The respondents assumed liability for those injuries and paid benefits. The commissioner took notice of a prior decision he had issued on December 6, 1993, regarding the claimant’s claim for temporary total benefits for repetitive trauma injuries to his right leg and vascular system. That claim had been made against employers that the claimant worked for during the 1980s, subsequent to his injury at Connecticut Aerosol. The commissioner dismissed the claim against those employers because it was not filed in a timely manner pursuant to § 31-294 C.G.S., but stated that the claim against Connecticut Aerosol and its insurer remained open.

The claimant then sought temporary total disability benefits against Connecticut Aerosol only, now denying that the subsequent employments produced intervening repetitive trauma injuries. The commissioner found, however, that in 1991 the claimant notified the 1980s employers that he was seeking temporary total disability benefits from them because the repetitive trauma he suffered with them caused the vascular problems in his right leg. He also cited the testimony of Dr. Kwass, who had stated in the previous proceedings that he began treating the claimant for varicose veins and swelling in 1982 and leg ulcerations in 1985, performed surgery in 1988, and indicated that the claimant was totally disabled on July 24, 1990. In light of that evidence and his 1993 decision, the trial commissioner ruled that the claimant was estopped from alleging that Connecticut Aerosol was responsible for his current temporary total disability claim. The claimant has appealed that decision, as well as the denial of his Motion to Correct.

The Motion to Correct sought to add findings that would stress the relationship between the claimant’s 1974 work injury and the increase in his symptoms of thrombophlebitis, while downplaying the importance of his employment between 1976 and 1988 in contributing to that condition. A look at the commissioner’s Finding and Dismissal of December 6, 1993, however, shows several paragraphs stressing the long hours the claimant had to stand on his feet during most of his employment between 1976 and 1988. The commissioner cited Dr. Kwass’ discussion of “the relationship between the claimant working on his feet and the further aggravations that it caused in the form of the ulcerations in his leg.” (April 12, 1993 Deposition, p. 36). Although he found that the 1974 injuries caused the claimant to develop thrombophlebitis in his right leg, the commissioner also noted the effects of the claimant’s subsequent employment on that condition. The claimant did not appeal that decision.

In reviewing the denial of a Motion to Correct, this board is not permitted to reassess a trial commissioner’s determinations of evidentiary credibility, including the opinions of medical professionals. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). It is the claimant’s burden to prove the causal link between his condition and his employment, and the trier’s prerogative to either believe or disregard the evidence he presents to that end, even if there is no contrary testimony. Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151 (1972); Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (decided Jan. 24, 1997).

Here, the gist of Dr. Kwaas’ testimony is that the claimant first developed thrombophlebitis while bedridden after his 1974 injury, and that his return to work between 1976 and 1988 often left him on his feet all day, preventing him from elevating his legs higher than his chest so that ulcerations and other symptoms would not occur. (Deposition, supra, p. 6-7, 23-26). Assuming this evidence could support a relationship between the original injury and the claimant’s vascular problems, we could not go back and force the trial commissioner to find in accordance with that testimony, even if we were to disregard the effect of his prior decision in this case. Indeed, language in both of his decisions seems to indicate that he placed greater emphasis on the effect of the repetitive trauma on the claimant’s disability rather than the initial injury, and that if it were not for the late notice, the commissioner would have deemed the repetitive trauma to be the primary cause of the claimant’s condition, as per his initial claim.

The key to our decision in this matter, however, is the 1993 Finding and Dismissal. Even though the commissioner did not specifically reach a conclusion in that decision as to whether the claimant was totally disabled after July 24, 1990 or not, and made no finding as to the degree of causation the repetitive trauma and/or the original injury played in such a disability, those issues were addressed by the parties in the proceedings leading up to the decision. The commissioner did not have to address them in his conclusions because he dismissed on grounds of late notice the claim at issue—the repetitive trauma claim of January 25, 1991, against the claimant’s last two employers. That decision was not appealed, and is now a final judgment. Significantly, the claimant did not raise a claim against Connecticut Aerosol concerning dates of disability from 1990 forward, and there was technically no need for a finding regarding such.

“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.” Fassett v. F. Castellucci & Sons, 15 Conn. Workers’ Comp. Rev. Op. 83, 84, 2150 CRB-3-94-9 (Dec. 7, 1995). Here, the claimant failed to prove that his more recent employers should compensate him for total disability after July 24, 1990, and now seeks to make the same claim against his initial employer. Even though the initial claim against that employer may remain open, it does not mean that the claimant can seek compensation against that employer for the same period of disability that he already raised in prior proceedings. If the claimant wanted to implicate Connecticut Aerosol in that claim, he should have ensured that their potential responsibility for the post-1990 disability was officially an issue in the case. Instead, that employer’s involvement was raised collaterally, as a necessary point of discussion in the claim against the subsequent employers. However, the issue of total disability from July 24, 1990 through the date of the formal hearings has now been litigated. Compare Cuascut v. Waldbaum’s Foodmart, 3111 CRB-8-96-6 (decided Oct. 1, 1996) (central issue in prior decision was not germane to appeal, so panel was not prevented by “law of the case” doctrine from addressing medical provider’s appellate arguments). We do not believe that the trial commissioner committed error by declining to let the claimant back away from his prior allegations of repetitive trauma and raise the disability issue again against Connecticut Aerosol.