Lopez v. Bradlees, Inc.

CASE NO. 4968 CRB-7-05-7

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JULY 21, 2006

MARIA LOPEZ

CLAIMANT-APPELLANT

v.

BRADLEES, INC.

EMPLOYER

NO RECORD OF INSURANCE

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Cori-Lynn S. Webber, Esq., 126 Palisado Avenue, Windsor, CT 06095.

The respondent-employer was represented by Clayton Quinn, The Quinn Law Firm, 204 South Broad Street, Milford, CT 06460.

This Petition for Review filed from the June 28, 2005 Finding and Dismissal of the Commissioner acting for the Seventh District was heard January 20, 2006 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr., and Nancy E. Salerno.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant appeals from the June 28, 2005 Finding and Dismissal of the Commissioner acting for the Seventh District.1 In that Finding and Dismissal the commissioner dismissed the claimant’s claim for benefits relating to injuries sustained April 24, 1985 and July 6, 1988. The pertinent facts are as follows.

The claimant sustained a work related injury to her right ankle on April 24, 1985 and on July 6, 1988. After the July 1988 injury the claimant underwent two surgeries to the right ankle and sustained a 15% permanent partial disability to the right lower extremity. In 1997 formal proceedings were held before former Commissioner Robin L. Wilson (now Judge Robin L. Wilson). The claim presented to Commissioner Wilson sought compensation for low back pain and right hip pain which claimant contended was causally related to injuries sustained April 27, 1985 and July 6, 1988. In her November 4, 1997 Finding and Award, Commissioner Wilson noted that the respondents voluntarily accepted liability for both injury dates and Voluntary Agreements were executed providing claimant with permanent partial disability for her right ankle. The dispute presented to Commissioner Wilson sought her determination as to whether claimant’s hip and lower back pains were related to her compensable right ankle injury. Commissioner Wilson concluded that claimant’s July 6, 1988 injury and the subsequent surgeries resulted in the altering of claimant’s gait. She then concluded that claimant’s altered gait caused the claimant to suffer pain in her lower back and right hip in addition to the pain she continued to suffer in her right ankle. Consequently, she awarded the claimant an additional 5% permanent partial disability award for her lower back and authorized medical treatment for same.

Proceedings were held before the trial commissioner here for the purpose of determining whether the respondent was liable for additional medical treatment for claimant’s hip and lower back pains. The trial commissioner acknowledged Commissioner Wilson’s November 4, 1997 Finding and Award. The trial commissioner referenced Commissioner Wilson’s conclusion as to the causal relationship between the claimant’s ankle injury and hip and back pains. However, in the instant matter the trial commissioner concluded that the claimant’s present need for medical treatment for her lower back was not related to her prior ankle injury.

The claimant filed this appeal and ultimately asks us to consider whether the trial commissioner erred in failing to conclude claimant’s current need for medical treatment was related to her earlier compensable injuries. The claimant argues that the trial commissioner erred in failing to apply either the “law of the case” or collateral estoppel doctrines to the instant matter. We are not persuaded by any of the claimant’s arguments raised on appeal.

The appellant argues that the trial commissioner erred in failing to apply the law of the case doctrine in the instant matter. As the appellant points out the law of the case is a flexible doctrine and provides:

According to this doctrine, a determination once made will be treated as correct throughout all later stages of the proceeding except when the question comes before a higher court. State v. Daniels, 209 Conn. 225, 237 (1988), cert. denied, 489 U.S. 1069 (1989). This procedural device may not affect the jurisdiction of an appellate tribunal, but it is necessary to keep parties from relitigating issues that have been decided previously. Bowman v. Jack’s Auto Sales, 54 Conn. App. 289, 294 (1999). Thus, “[w]here a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance.” Westbrook v.Savin Rock Condominiums Assn., Inc., 50 Conn. App. 236, 240 (1998). Examples of such circumstances include substantial new evidence, the issuance of an inconsistent Supreme Court decision subsequent to the first ruling, or a conviction on the part of the second reviewing court that its predecessor’s ruling was clearly erroneous. Id., citing Pagano v. Board of Education, 4 Conn. App. 1, 11, cert. denied, 197 Conn. 809 (1985). (Emphasis ours).

Horn v. State of Connecticut/Dept. of Correction, 4177 CRB-3-00-1(February 22, 2001).

We most recently considered the application of the law of the case in Dellacamera v. City of Waterbury, 4966 CRB-5-05-6 (June 29, 2006) and noted, “[t]he ‘law of the case’ doctrine does not deprive a commissioner of the ability to determine conditions have changed since the issuance of a prior ruling.” In the instant matter, the trial commissioner was presented with new evidence which he found persuasive. The weight and credibility accorded to the evidence presented is a matter within the trial commissioner’s discretion. We will not disturb conclusions dependent upon such assessments unless they are contrary to law or the result of an abuse of discretion. We find no basis to set aside the commissioner’s conclusion in this matter.

We find the appellant’s argument that the trier erred in failing to apply the doctrine of collateral estoppel similarly unavailing. Application of the doctrine of collateral estoppel requires an identity of issues between the proceedings. In the instant matter the prior proceedings, inter alia, concerned the proximate causation of hip and low back complaints between the time of claimant’s last injury, July 1988 and the 1997 proceedings. Here the issue relates to the causal relationship to low back and hip pain for a period after the November 4, 1997 Finding and Award. As the issue before the trial commissioner was the respondents’ liability for a different time period of medical treatment, there is not an identity of issues between the proceedings.

The appellant also raises the issue of whether the trial commissioner erred in dismissing the claimant’s claim for medical treatment on the basis of the evidence presented. We note the trial commissioner found there was a period between 1999 and 2002 in which the claimant did not undergo any treatment for her lower back.2 Additionally, Dr. Robert Dawe, a board certified Orthopedic specialist opined that claimant’s low back pain exacerbation in 2002 was causally related to the claimant’s weight, smoking and physical deconditioning. Findings, ¶¶ 15-17.

Finally, the claimant argues the trial commissioner erred in failing to grant the claimant’s Motion To Correct. The trier’s ruling on a Motion To Correct will not be disturbed where the corrections sought even if granted would not compel a different legal outcome. Mele v. City of Hartford, 4870 CRB-1-04-10 (September 29, 2005). A number of the corrections sought merely reflect the claimant’s assessment of the weight and credibility to be accorded the evidence, others are not material. Conclusions drawn by the trial commissioner will not be disturbed unless without evidentiary support, contrary to law or based on unreasonable or impermissible factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535 (1988). We believe the trial commissioner’s conclusion is amply supported by the evidentiary record.

We therefore affirm the June 28, 2005 Finding and Dismissal of the Commissioner acting for the Seventh District.

Commissioners Donald H. Doyle, Jr., and Nancy E. Salerno concur.

1 We note in the course of this appeal extensions of time were granted. BACK TO TEXT

2 The appellant claims the “Statement of the Case” in the initial paragraphs of the June 28, 2005 Finding and Dismissal incorrectly note the claimant failed to treat for her lower back for a period of five years when the evidence reflects the claimant did not treat for a period between 1999 and September 2002. The appellant seeks correction and claims legal error on the part of the commissioner as the reference to a lack of treatment for five years is legally incorrect. We might give some greater weight to the appellant’s claim if other parts of the June 28, 2005 Finding and Dismissal repeated this purported error. Paragraph 5 of the commissioner’s finding states, “Between 1999 and September 2002, Claimant did not treat with any medical providers for problems with her lumbar spine.” Therefore, at most the inconsistent reference to the duration between periods of treatment to claimant’s lower back in the trier’s “Statement of the Case” is merely harmless error. BACK TO TEXT