CASE NO. 4516 CRB-2-02-4 CLAIM NO. 200016144Compensation Review Board WORKERS’ COMPENSATION COMMISSION
MAY 8, 2003

The claimant waived oral argument in this matter. claimant’s notice sent to Brian Prucker, Esq., Fitzgerald Prucker, 212 Talcottville Road, Vernon, CT 06066.

Respondents were represented by Louis N. George, Esq., Hassett
George, P.C., 555 Franklin Avenue, Hartford, CT 06114.

This Petition for Review from the March 25, 2002 Finding and Award of the Commissioner acting for the Second District was heard October 18, 2002 before a Compensation Review Board panel consisting of Commissioners Donald H. Doyle, Jr., Stephen B. Delaney, and Howard M. Belkin.


The respondents have petitioned for review from the March 25, 2002 Finding and Award of the Commissioner acting for the Second District. The gravamen of their appeal is that the trier erred by not applying the doctrines of res judicata and collateral estoppel to preclude the instant claim for total disability. We find no error, and affirm the trial commissioner’s decision.

The claimant suffered a compensable injury to his right hip on June 29, 1990. At a formal hearing that concluded on May 9, 1995, he alleged that he was entitled to temporary total disability benefits and §31-308a benefits as a result of that injury. These claims were unsuccessful. The trier based her dismissal on a June 21, 1993 medical report by Dr. Moskowitz (the most recent in evidence), which opined that the claimant’s complaints were out of proportion to any objective findings. June 12, 1995 Finding, ¶ V (C). She also found that the claimant had failed to establish that he could not find work within his restrictions due to his hip injury. Id., ¶ V (B). An appeal was taken to this board, which affirmed the trial commissioner’s decision, and denied a motion to submit as additional evidence unspecified proof that allegedly questioned the competence of the trial commissioner. Bailey v.Stripling Auto Sales, Inc., 15 Conn. Workers’ Comp.Rev.Op. 369, 3095 CRB-2-95-6
(June 28, 1996). “The Workers’ Compensation Act does not vest the Compensation Review Board with the authority to determine the competency of a workers’ compensation commissioner.” Id.

The claimant then moved to reopen that finding, which motion was denied on November 5, 1996. The trier therein found that there was no new evidence that could not have been discovered earlier, and held that the previous decision on the claimed periods of temporary total disability benefits and § 31-308a benefits was res judicata. This board again affirmed on appeal, reiterating our lack of authority to address issues concerning the capacity of a commissioner to preside over a case. “Section 51-51i (c) C.G.S. assigns responsibility for considering any alleged grounds for removal, suspension or censure of a workers’ compensation commissioner for `neglectful or incompetent performance of his duties,’ inter alia, to the Judicial Review Council established by § 51-51k.” Bailey v. Stripling Auto Sales, 3461 CRB-3-96-11 (April 9, 1998).

Several years then passed before a new formal hearing was held on March 12, 2002. The claimant therein sought total disability benefits from May 10, 1995 forward, whereupon the respondents argued that the issue raised was identical to the prior unsuccessful claim for total disability, as no change in circumstances had been alleged. They sought to apply the doctrines of collateral estoppel and res judicata to the instant proceeding. When the claimant sought to introduce certain medical records into evidence, the respondents objected on various grounds, including hearsay, insufficient factual foundation, reliance on information prepared prior to May 10, 1995, and late disclosure. The trier denied the respondents’ motion to dismiss and their motion to preclude the introduction of the challenged evidence. He held that the claimant “is entitled to his day in court” regarding the total disability claim after May 10, 1995. Findings, ¶ A. As for the doctors’ reports, they were ruled admissible as evidence, with the trier having the authority to assign them their proper weight, if any was merited. The report of a vocational rehabilitation expert was also admissible as long as the claimant took his deposition, and the respondents were given the opportunity to cross-examine him and to obtain their own expert within a reasonable period of time. The respondents have appealed that decision to this board.

To begin, we must decide whether this matter is ripe for review. Under § 31-301 (a), this board may hear appeals not only from awards by the commissioner, but also from decisions upon motions. Thus, certain interlocutory rulings may be considered prior to the adjudication of the merits of a case. Mason v. Dale Construction, Inc., 4354 CR13-3-01-1 (Nov. 7, 2001). Parties must remain aware, however, that the Workers’ Compensation Act was designed to provide injured workers with speedy remedies and resolutions of their claims. Poventud v. Eagle Four, 6 Conn. Workers’ Comp.Rev.Op. 72, 775 CRD-5-88-10 (Dec. 30, 1988). “[I]t would be imprudent for a party to delay the progress of an action for many months at a time in order to immediately appeal every one of a commissioner’s interlocutory rulings to the Compensation Review Board before moving forward. . . . Unless the immediate actualization of an interlocutory ruling may result in some form of irreparable harm, such as the disclosure of sensitive and confidential information to opposing counsel; see Vetre v. State/Dept. of Children Families, 3948 CRB-6-98-12 (Feb. 14, 2000); this board discourages parties from filing appeals before the commissioner has had a chance to rule on the merits of a case.” Kuba v. Michael’s Landscaping Lawn Service, 4266 CRB-4-00-7 (Aug. 29, 2001).

The transcript from the March 12, 2002 formal hearing shows that the parties understood that the trial commissioner intended to rule on the Motion to Dismiss and the Motion to Preclude before he could fully consider the merits of this case. Transcript, pp. 41-43. When those motions were denied, the respondents filed this appeal instead of allowing the case to move forward for the consideration of the exhibits that originally had been marked for identification only, and any related testimony. Though this board has the statutory authority to consider this appeal, we note that no irreversible harm would have been occasioned by letting this case go forward on the merits. The respondents’ res judicata defense would have been just as viable following a full adjudication of the case, and might have been rendered moot by a dismissal of the underlying claim. By appealing the denial of their motions, the respondents have taken a step that guarantees a delay in the resolution of this matter. See Bailey v. State/GHCC, 3694 CRB-1-97-9 (Jan. 12, 1999), rev’d on other grounds, 65 Conn. App. 592 (2001); Poventud, supra. In this forum, the efficient and timely resolution of cases is of prime importance given the urgent need for remedial relief that many injured claimants experience. Maintaining the integrity of final judgments is crucial to the stability of our legal system, but this concern should not overshadow the fundamental need for speedy decisionmaking in the workers’ compensation arena.

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).

These preclusive principles are equally applicable to adjudications by an administrative tribunal, and this board has often discussed their potential applicability. Id., 773; see, e.g., Schreiber v. TownCountry Auto Service, 4239 CRB-3-00-5 (June 15, 2001). One of the major difficulties in applying the rules of claim preclusion is in defining the breadth of the term “same claim” or “cause of action.” In determining whether the instant claimant’s total disability claim can fairly be viewed as an outgrowth of his prior claim, we must ask ourselves whether the purposes of the res judicata doctrine — judicial economy, the prevention of inconsistent judgments, and the preemption of harassment by vexatious litigation would be served by applying it here. Delahunty, supra, 591. “The doctrines of preclusion . . . should be flexible and must give way when their mechanical application would frustrate other social policies based on values equally or more important than the convenience afforded by finality in legal controversies.” Id.

We must remember that, under § 31-315 C.G.S., this commission retains continuing jurisdiction over claims for compensation, awards and voluntary agreements during the whole compensation period applicable to the injury in question. Demarest v. Stamford, 4370 CRB-7-01-3 (March 14, 2002); Schreiber, supra. The claimant here has an accepted 1990 hip injury. Absent a full and final settlement of all workers’ compensation claims arising from that injury, any alleged periods of disability that may arise due to that injury would be the proper subject of a claim before this commission.

The respondents take the position that the June 12, 1995 Finding has resolved any further claim for total disability benefits as a matter of law. “In the present case claimant maintains that even though he has not suffered re-injury or deteriorated condition as of May 10, 1995, he should be allowed to bring a new legal theory [being disabled from May 10, 1995 forward, rather than from July 27, 1993 to May 10, 1995]. This is exactly what the doctrine of res judicata prohibits.” Brief, p. 5. They also argue, “the issue of whether claimant is entitled to temporary total disability benefits due to the hip injury . . . has been necessarily determined because without the determination that Claimant was not entitled to benefits, [the commissioner’s] judgment that the claim should be dismissed could not have been rendered.” Id., pp. 6-7. “To allow the Commissioner’s decision to stand in this matter would set a dangerous precedent, permitting unsuccessful claimants to relitigate their claims for the same injury over and over again simply by saying that now they seek benefits for a different time period.” Id., p. 8. The respondents contend that, procedurally, the claimant was required to move for modification of the award under § 31-315, which allows an award to be reopened when a claimant’s incapacity, measure of dependence, or other relevant factual circumstances have changed.

Total disability is a matter of continuing proof. Papa v. JeffreyNorton Publishers, Inc., 4486 CRB-3-02-1 (Feb. 25, 2003). It is normally the case that a contested claim for total disability covers a finite period of time, dating through the close of the record. See, e.g., Avilav. Parcel Port, 4481 CRB-3-02-1 (Feb. 13, 2003) (total disability issue should have been adjudicated through date of formal hearing). Though a trial commissioner has the discretion to award total disability benefits beyond the date of the last evidentiary hearing when it factually makes sense to do so; Carlson v. Bic Corporation, 4364 CRB-3-01-2 (Jan. 29, 2002); such an extension of the award is hardly required. Moreover, a claimant’s condition may warrant total disability benefits during certain time periods, but not during others.

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. BT 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.

The respondents also argue that the trial commissioner should have granted their motion to preclude the admission of certain medical reports. First, they contend that Dr. Browning’s reports depend on evidence that was already considered at the 1995 hearing, and that they are inadmissible because they were based solely on the history related by the claimant and were prepared in contemplation of a hearing before this Commission. Second, they contend that Dr. Lawrence’s reports are cumulative of evidence presented at the June 1995 hearing, and should not be admitted because (1) they contemplate facts previously investigated and litigated, and (2) because the diagnoses contained within them are not stated within a reasonable degree of medical probability.

Under § 31-298, the trial commissioner has broad discretion to admit records and testimony into evidence. He or she is not bound by the strictures of statutory and common-law evidentiary rules. In this forum, questions about the proper weight to give medical reports that contain an arguably tenuous diagnosis concern matters of credibility rather than admissibility. A trier is well within his authority to admit reports into the record that may constitute background or supplementary data on a pending disability claim, even if those reports would be insufficient standing alone to satisfy the “reasonable degree of medical probability” standard discussed in cases such as Struckman v. Burns, 205 Conn. 542, 554-55 (1987), and Costa v. Torrington Company, 4097 CRB-5-99-8 (July 28, 2000). Whether or not the contents of such reports suffice to establish a causal relation between injury and disability is a separate question to be determined by the commissioner as part of the credibility-dependent factfinding process. If this evidence appears to be derived from reports that were introduced during the proceedings on the first total disability claim, it is for the trial commissioner to decide whether that impacts the weight that may be assigned to those reports in light of previous findings.

Also, in regard to Dr. Browning’s report, the respondents cite Zawiszav. Quality Name Plate. Inc., 149 Conn. 115 (1961), in support of their argument that his reports are inadmissible because they are not based on the findings of a treating physician, but rather the evidence presented at the first hearing. However, the analytical descendant of the Zawisza case, Brown v. Blauvelt, 152 Conn. 274 (1964), has been overruled by our Supreme Court so that any physician’s opinion may be admissible as evidence in a civil case (or, by implication, a workers’ compensation matter) even though it is based in part upon the hearsay statements of a claimant. George v. Ericson, 250 Conn. 312 (1999). Therefore, the fact that the claimant visited Dr. Browning solely to obtain a medical opinion in contemplation of trial does not preclude the admission of his report into evidence. Any concern over the reliability of his report would, again, affect the weight to be assigned that report as opposed to its initial admissibility.

As we find no legal error, we hereby affirm the trial commissioner’s decision to deny the respondents’ Motion to Dismiss and Motion to Preclude.

Commissioners Stephen B. Delaney and Howard M. Belkin concur.

CERTIFICATIONTHIS IS TO CERTIFY THAT a copy of the foregoing was mailed this 8th day of May 2003 to the following parties:


BRIAN PRUCKER, ESQ. 7099 3400 0008 5540 5159


LOUIS N. GEORGE, ESQ. 7099 3400 0008 5540 5142

___________________ Lorraine Lockery Administrative Hearings Lead Specialist Compensation Review Board Workers’ Compensation Commission