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Ayres v. United Methodist Home of Connecticut

CASE NO. 1743 CRB-4-93-6

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

AUGUST 10, 1995

LINDA AYRES

CLAIMANT-APPELLANT

v.

UNITED METHODIST HOME OF CONNECTICUT

EMPLOYER

and

CONNECTICUT HOSPITAL ASSOC. WORKERS’ COMPENSATION TRUST

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant appeared pro se. The claimant was represented at the trial level by Thomas Weihing, Esq. and John Bochanis, Esq., Daly, Weihing, & Bochanis, 1115 Main Street, Bridgeport, CT 06604.

The employer was represented by John Letizia, Esq., Byrne & Letizia, Woodbridge Corporate Park, 1764 Litchfield Turnpike, Suite 106, Woodbridge, CT 06525.

The Claimant’s Motion to Submit Additional Evidence and Motion to Reopen the May 24,1993 Finding and Dismissal issued by the commissioner acting for the Fourth District were together heard May 19, 1995 before a Compensation Review Board panel consisting of Commissioners Angelo L. dos Santos, Nancy A. Brouillet, and Michael S. Miles.

OPINION

ANGELO L. dos SANTOS, COMMISSIONER. The claimant has filed a motion to submit additional evidence and a motion to reopen the decision of the trial commissioner which awarded the claimant temporary total disability benefits for the period from February 16, 1990 to March 5, 1990 and from June 27, 1990 to June 30, 1990; awarded her benefits for a three percent permanent partial disability to the right master arm; and which denied benefits pursuant to §§ 31-308(a), 31-308a, 31-312, and 31-313 C.G.S. The trial commissioner’s award was based on his finding that the claimant sustained an injury to her right master elbow and a contusion to her right hip, but that the claimant failed to meet her burden of proving any other compensable injuries. The trial commissioner noted that there were conflicting opinions in the medical reports regarding whether the claimant’s alleged symptoms regarding her right hip and her back were causally related to the compensable injury which occurred on December 2, 1989.

In the instant case, the claimant states that in May, 1994 she requested an informal hearing based upon her contention that her injuries had not “healed over.” (Claimant’s Motion to Submit Additional Evidence filed on Jan. 31, 1995). She further contends that an informal hearing was in fact held by the commissioner acting for the Fourth District, who granted her request for a further medical evaluation. The claimant contends that she was thereupon seen by Dr. Rago and Dr. Naiman. The claimant has attached numerous documents, including a letter dated August 22, 1994 by Dr. Naiman regarding her alleged hip injury, notes and reports written by a physical therapist, a medical report dated April 26, 1994 by Dr. Filiberto, and letters written by the claimant.

In support of her motion to reopen which was filed with this Board on January 31, 1995, the claimant contends that her “incapacity” has increased. Motions to reopen are governed by § 31-315, which provides in pertinent part:

Any award of ... compensation made under the provisions of this chapter shall be subject to modification, upon the request of either party and in accordance with the procedure for original determinations, 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 changed conditions of fact have arisen which necessitate a change of such agreement or award in order properly to carry out the spirit of this chapter....

The decision of whether to reopen an award pursuant to § 31-315 is a discretionary decision to be made by the trial commissioner. Chemero v. Westreco, Inc., 10 Conn. Workers’ Comp. Rev. Op. 142, 144, 1081 CRD-7-90-7 (June 29, 1992).

The record does not contain a decision by a trial commissioner regarding the claimant’s motion to reopen. In order to pursue a motion to reopen under § 31-315, the claimant should request a formal hearing with a trial commissioner on that issue. Until we have a written decision by a commissioner and a transcript of the formal hearing, we do not have an adequate record on which to base a decision. See Bogli v. Town of Glastonbury, 10 Conn. Workers’ Comp. Rev. Op. 226, 1537 CRB-8-92-10 (Dec. 28, 1992). The medical documents submitted by the claimant may be relevant to § 31-315 regarding whether the claimant’s incapacity has increased and whether there are changed conditions of fact. We therefore suggest that the claimant, in support of her motion to reopen, submit to the trial commissioner the medical documents which she has attached to her motion to submit additional evidence.

We note that on May 19, 1995, at oral argument before this Board, the claimant submitted a further motion to submit additional evidence dated May 15, 1995. In that motion, the claimant requests that it be joined and heard with her motion to submit additional evidence and with her motion to reopen, which were filed on January 30, 1995. We suggest that the claimant also submit to the trial commissioner the medical documentation contained in her motion filed on May 15, 1995.

We have reviewed the documents which predate the formal hearings attended by the claimant, which were submitted by the claimant in her motions to submit additional evidence filed on January 30, 1995 and May 19, 1995. We conclude that these documents fail to satisfy the requirements of Conn. Agencies Reg. § 31-301-9. It is the claimant’s burden to prove that her disability is causally related to her compensable injury. Metall v. Aluminum Co. of America, 154 Conn. 48, 51 (1966). Therefore, it is also the claimant’s burden to recognize and resolve any inconsistencies in the evidence at the formal hearing, whether or not those discrepancies seemed significant to the claimant at the time of the hearing. Peters v. Corporate Air, Inc., 1679 CRB-5-93-3 (March 14, 1994); Lesczynski v. New Britain Memorial Hospital, 10 Conn. Workers Comp. Rev. Op. 205, 208-9, 1289 CRD-6-91-9 (Dec. 2, 1992). Moreover, a motion to submit additional evidence may not properly be used to alter a party’s evidentiary decisions regarding the presentation of evidence at a formal hearing. Lesczynski, supra; Lange v. J & B Excavating & Paving, 11 Conn. Workers’ Comp. Rev. Op. 42, 1249 CRD-3-91-6 (March 18, 1993).

In the instant case, evidence regarding the causation of the claimant’s alleged injuries was presented at the formal hearing. The claimant has failed to show good reason for presenting medical opinions on this issue after the formal hearing had been closed. See Lesczynski, supra. Moreover, the claimant offers no indication that the proffered evidence was really new or that it was undiscoverable with due diligence at the time of the original hearings. Id., see also Murdock v. Squires, 6 Conn. Workers’ Comp. Rev. Op. 64, 66, 550 CRD-7-87 (Dec. 1, 1988).

The claimant’s motion to reopen and motions to submit additional evidence are denied as to the proceedings before this Board.

Commissioners Nancy A. Brouillet and Michael S. Miles concur.

Workers’ Compensation Commission

Page last revised: January 21, 2005

Page URL: http://wcc.state.ct.us/crb/1995/1743cr3.htm

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