Carroll v. Flattery’s Landscaping, Inc.

The respondents were represented by Frank A. May, Esq., Montstream & May, L.L.P., Salmon Brook Corporate Park, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.

This Petition for Review from the July 15, 2004 Finding and Dismissal of the Commissioner acting for the First District was heard February 18, 2005 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Michelle D. Truglia and Leonard S. Paoletta.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant appeals from the July 15, 2004 Finding and Dismissal of the Commissioner acting for the First District. The pertinent facts in this matter are as follows.

The claimant sustained a compensable injury on November 28, 1995. On that date the claimant was working as a mechanic. The claimant was positioned under a pick up truck. The jack elevating the truck gave way and the truck fell on the claimant. The claimant suffered injuries to various body parts including his neck, shoulders, clavicle, ribs, chest and head. Liability for injuries to some of the body parts was accepted via voluntary agreements. See Finding, ¶8.

At the outset it is important to note that claims for benefits stemming from the November 28, 1995 accident were the subject of proceedings before Commissioner Jesse Frankl. On February 11, 2002, Commissioner Frankl issued a Finding and Award and Dismissal [hereafter Finding and Award] in which he concluded, inter alia, the claimant sustained a head injury as a result of the November 28, 1995 accident. Commissioner Frankl directed the respondents to issue a Voluntary Agreement for a 2 % loss of use of the brain. He also concluded that the treatment provided by Dr. Paul Tortland and Valley Physical Therapy after July 1, 1999 was palliative rather than curative and denied respondents’ liability for that care.

Following the February 11, 2002 Finding and Award the claimant filed an appeal with the Compensation Review Board. The Compensation Review Board heard the appeal and affirmed Commissioner Frankl’s conclusions. See Carroll v. Flattery’s Landscaping, Inc., 4499 CRB-8-02-2 (March 25, 2003). Thereafter, the claimant renewed his claim for physical therapy and sought an increase in his permanent partial disability for the loss of brain function. Additionally, the claimant sought to have counsel for the respondents, Attorney Frank May, disqualified from representing the respondents. The claimant sought Attorney May’s disqualification on grounds of fraud and/or malfeasance in his representation of the respondents.

Proceedings were held and thereafter the trial commissioner in this matter rendered his July 15, 2004 Finding and Dismissal in which he held the following; (1) the claimant’s request for increased permanent partial benefits due to the injury sustained to his head was denied, (2) the claimant’s request for physical therapy with Dr. Tortland was denied and (3) the claimant’s request to disqualify Attorney May from representing the respondents was denied.

On August 3, 2004 the claimant filed a Petition for Review. On that same date the claimant filed a letter which, for purposes of this appeal and in light of claimant’s pro se status, we have construed as his Reasons of Appeal. See Ferrin v. Glen Orne Leasing/Webster Trucking, 4802 CRB-8-04-4 (March 28, 2005). In essence, the claimant contends that it was error for the trial commissioner to fail to grant the claimant’s request for increased permanency benefits for his loss of brain function and to fail to authorize claimant’s treatment with Dr. Tortland and Valley Physical Therapy. The appellee contends that the benefits sought by the claimant-appellant were previously litigated and decided in Commissioner Frankl’s February 11, 2002 Finding and Award. We agree.

The claimant argues that the February 11, 2002 Finding and Award did not consider the opinion of Dr. James Pier and his assessment that the claimant sustained an 8% loss of function to the brain. As the trial commissioner here concluded and as the appellee notes, evidence claimant contends supports an award for an 8% permanent partial disability to his brain was admitted in the record before Commissioner Frankl. The issue of the degree of permanent partial disability to claimant’s brain was an issue squarely put before Commissioner Frankl. His February 11, 2002 Finding and Award for a 2% permanent partial disability to his brain clearly reflects his conclusion on the issue.

While § 31-315 permits the re-opening of a Voluntary Agreement on the basis of an increase in incapacity,1 the statute contemplates that a party seeking modification of a Voluntary Agreement bears the burden of proof and persuasion that a changed condition of fact has occurred. Courtright v. State/Connecticut Valley Hospital, 3573 CRB-6-97-4 (June 5, 1998). Much of the evidence upon which the claimant relies is evidence that was part of the record considered by Commissioner Frankl in the proceedings culminating in the February 11, 2002 Finding and Award. The only evidence proffered as to claimant’s loss of brain function for a period following the period at issue considered by Commissioner Frankl was the October 8, 2003 report of the Respondent’s Examiner Dr. Mark Rubenstein. Respondents’ Exhibit 5. That report conflicts with the claimant’s contention as to increased incapacity.

As to treatment with Dr. Tortland, Commissioner Frankl also determined in the February 11, 2002 Finding and Award that treatment with Dr. Tortland was palliative not curative. Nothing in the evidence presented in these proceedings supports a different conclusion. Therefore, the trial commissioner’s conclusion in paragraph A stating “I find that the Claimant’s new documents and/or new evidence as well as all evidence administratively noticed and were made part of this file did not present a prima facie claim as to any additional permanency and/or any additional claim for physical therapy.” is amply supported.

As to claimant’s argument Attorney May should be disqualified from appearing in this matter, the trial commissioner again was not so persuaded. There is nothing in the record offering any evidentiary support for a different conclusion.

We therefore affirm the July 15, 2004 Finding and Dismissal of the Commissioner acting for the First District.

Commissioners Michelle D. Truglia and Leonard S. Paoletta concur.

Any award of, or voluntary agreement concerning, compensation made under the provisions of this chapter or any transfer of liability for a claim to the Second Injury Fund under the provisions of section 31-349 shall be subject to modification in accordance with the procedure for original determinations, upon the request of either party or, in the case of a transfer under section 31-349, upon request of the custodian of the Second Injury Fund, whenever it appears to the compensation commissioner, after notice and hearing thereon, that the incapacity of an injured employee has increased, decreased or ceased, or that the measure of dependence on account of which the compensation is paid has changed, or that changed conditions of fact have arisen which necessitate a change of such agreement, award or transfer in order properly to carry out the spirit of this chapter. The commissioner shall also have the same power to open and modify an award as any court of the state has to open and modify a judgment of such court. The compensation commissioner shall retain jurisdiction over claims for compensation, awards and voluntary agreements, for any proper action thereon, during the whole compensation period applicable to the injury in question. BACK TO TEXT