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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 7, 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 Petition for Review from the May 24, 1993 Finding and Dismissal of the Commissioner acting for the Fourth District, the Claimant’s two Motions to Submit Additional Evidence filed on April 15 and May 3, 1994, and the claimant’s motion for a new hearing, were together heard May 20, 1994 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 appeals from 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 on December 2, 1989 to her right master elbow and a contusion to her right hip. The trial commissioner specifically found that the claimant failed to meet her burden of proving any other compensable injuries. We affirm the trial commissioner’s decision.

We note that the claimant has filed a motion to reopen and a motion to submit additional evidence on January 31, 1995, which we will address in a subsequent decision.

In support of her appeal, the claimant reiterates the contention which she made at the formal hearing before the commissioner that on December 2, 1989 she injured her back and that the injury to her right hip was more severe than a mere contusion. The trial commissioner noted in his decision that there were conflicting medical opinions regarding whether the claimant’s alleged symptoms afflicting her right hip and her back were causally related to the December 2, 1989 injury. Clearly, the determination of whether the claimant’s alleged injuries to her back and right hip were causally related to her injury of December 2, 1989 was a question of fact, and was dependent upon the weight and credibility to be accorded all the evidence. SeeColucci v. Mattatuck Manufacturing Co., 9 Conn. Workers’ Comp. Rev. Op. 235, 1000 CRD-5-90-4 (Oct. 30, 1991); see also Northrop v. Boehringer Ingelheim, 9 Conn. Workers’ Comp. Rev. Op. 228, 1032 CRD-7-90-6 (Oct. 30, 1991). We will not disturb a conclusion based on such an assessment by the trial commissioner. Fair v. People’s Savings Bank, 207 Conn. 535 (1988). Our review of the evidence, particularly the medical reports submitted as exhibits, demonstrates a permissible basis for the commissioner’s conclusion.

We will now address the claimant’s two motions to submit additional evidence, which were filed with this Board on April 15, 1994 and May 3, 1994. The admission of additional evidence before the Compensation Review Board is controlled by Administrative Regulation § 31-301-9.1 This Board has held that the evidence must not only be unavailable at the time of the proceedings before the trier, but undiscoverable with due diligence. Murdock v. Squires, 6 Conn. Workers’ Comp. Rev. Op. 64, 550 CRD-7-87 (Dec. 1, 1988).

In support of her motion filed on April 15, 1994, the claimant seeks to present documentation to support her contention that the United Methodist Home of Connecticut (hereinafter “employer”) failed to file a factually correct report of injury in accordance with § 31-316 C.G.S. The claimant on April 15, 1994 also filed a request for a “new hearing” on this issue. However, the issue of the employer’s compliance with § 31-316 C.G.S. was the subject of an informal hearing held on March 15, 1994 by a commissioner acting for the Fourth District, and is not an issue presently before this Board. Moreover, the employer’s first report of injury was entered as Respondents’ Exhibit No. 2 and thereby made part of the record at the formal hearing. We deny the claimant’s request for a “new hearing.”

In addition, the claimant has attached numerous documents, including letters and medical notes, which were written prior to the formal hearings attended by the claimant on March 9, 1993 and March 16, 1993. The claimant has presented no reason for her failure to discover these documents prior to the formal hearings, at which the claimant was represented by legal counsel.2 In the absence of any reasons for failing to discover the documents which predate the formal hearings, we conclude that this documentation was discoverable at the time of the commissioner’s hearing. We therefore conclude that the claimant has not satisfied the requirements of § 31-301-9. SeeLesczynski v. New Britain Memorial Hospital, 10 Conn. Workers’ Comp. Rev. Op. 205, 1289 CRD-6-91-9 (Dec. 2, 1992). We further note that several of the documents which the claimant seeks to submit as new evidence were in fact submitted as exhibits during the formal hearings, and thus do not constitute new evidence.

In the motion filed on April 15, 1994, the claimant has also submitted numerous letters which postdate the formal hearings of March 9 and March 16, 1993, including correspondence between herself and the employer’s insurer and correspondence between herself and the Occupational Safety and Health Administration. Before additional evidence will be considered, it must be shown to be material. Chapo v. Westport, 3 Conn. Workers’ Comp. Rev. Op. 14, 17, 170 CRD-4-82 (Aug. 20, 1985). These letters submitted by the claimant are not material to her appeal from the commissioner’s Finding and Dismissal issued on May 24, 1993. Accordingly, the letters are not admissible pursuant to § 31-301-9.

In addition, the claimant has presented a letter dated February 17, 1994 signed by Cosmo Filiberto, MD.; reports by Dr. Filiberto dated September 10, 1993 and October 19, 1993; a handwritten note dated “8/93” by Dr. Filiberto referring the claimant to Dr. Sliber, a chiropractor; and an unsigned report apparently by Dr. Sliber dated October 15, 1993. Essentially, the claimant is attempting to retry her case, which this Board cannot do. SeeFair v. People’s Savings Bank, 207 Conn. 535 (1988). The trial commissioner specifically stated that the case “presented the often occurring situation in which the evidence before the Commissioner is in conflict, and the ultimate conclusion is dependent upon the weight and credibility to be afforded to the differing evidence presented.” In Finding of Fact No. 25, the trial commissioner found that Dr. Cosmo Filiberto was a family doctor who treated the claimant beginning on November 20, 1990, for “back and right elbow injuries and for stress reaction, all of which he related to the December 2, 1989 accident (Claimant’s Exhibit K, L, and M- April 1, 1991 report, three March 15, 1993 reports, and November 13, 1991 report of Dr. Filiberto).” The trial commissioner, however, found that there were medical reports, including the report dated April 24, 1991 by Dr. Katz, the claimant’s orthopedic surgeon, which did not relate the claimant’s complaints regarding her right hip and back to the injury of December 2, 1989. (See Finding No. 15) The trial commissioner further found, after examining all of the evidence, that the claimant “failed to meet her burden of establishing that the injuries which she suffered in the accident of December 2, 1989 included anything more than the injury to her right master elbow and a contusion to her right hip.” (Paragraph B.)

“Where an issue has been fairly litigated, with proof offered by both parties, a claimant should not be entitled to a further hearing to introduce cumulative evidence, unless its character or force be such that it would be likely to produce a different result.” Gurski v. Concessionair, 9 Conn. Workers’ Comp. Rev. Op. 282, 283-84, 1218 CRD-7-91-4 (Dec. 16, 1991), quoting Kearns v. Torrington, 119 Conn. 522, 529 (1935); seealsoWoehrle v. Bridgeport, 2 Conn. Workers’ Comp. Rev. Op. 35, 175 CRD-4-82 (Oct. 4, 1983). In the instant case, the claimant has not presented any reason for her failure to obtain the medical statements, which she now seeks to submit, prior to the hearings in March of 1993, over two years following her work related accident.

Indeed, the record indicates that the initial formal hearing of March 9, 1993 was continued to March 16, 1993 in order to allow the claimant, who was represented by legal counsel, to produce medical documentation. Specifically, the trial commissioner advised the claimant and her attorney during the March 9, 1993 hearing that the claimant needed medical reports in order to substantiate her claim, and that if proper medical documentation could not be presented at the continued hearing, that the claimant’s attorney should issue subpoenas to the claimant’s physicians. (Transcript of Formal Hearing, March 9, 1993, at p. 55) The claimant did present new medical reports at the March 16, 1993 hearing, including three reports dated March 15, 1993 by Dr. Filiberto. Dr. Filiberto’s statement dated February 17, 1994, along with the other medical statements submitted by the claimant which postdate the formal hearings, are merely cumulative of the medical reports by Dr. Filiberto which were submitted by the claimant during the formal hearing. We conclude that the information contained in the medical reports which the claimant now seeks to submit could have been produced at the formal hearing if the claimant had acted with due diligence. We further conclude that the statements themselves are merely cumulative of other medical reports submitted by the claimant, and would not affect the outcome of the case. We thus deny the claimant’s April 15, 1994 motion to submit additional evidence.

In support of her motion filed on May 3, 1994, the claimant seeks to present the following documents: (1) a one-page typed diagnosis dated January 11, 1990, which is unsigned but which contains the typed name and address of Eric J. Katz, M.D.; (2) two itemized lists of claims payable issued by Blue Cross/Blue Shield, dated December 10, 1993 and December 22, 1993; (3) an undated, unsigned typed document which states: “Linda, For your information: M.R.I. order of 3-27-90 was not signed off can’t be ordered. Also see new address we have in your file.” ; and (4) one handwritten page of notes which appear to have been written on January 8, 1990, March 8, 1990, June 27, 1990, and August 8, 1990.

The first document, the one-page typed diagnosis dated January 11, 1990, is a copy of the Respondent’s Exhibit No. 2 which was submitted at the formal hearing. Therefore, this does not constitute new evidence.3 Secondly, the claimant contends that the itemized list of claims payable to Blue Cross/Blue Shield which postdate the formal hearings support her contention that her back injury was causally related to the compensable injury because of the typed statement on them that: “OUR RECORDS INDICATE THESE SERVICES ARE THE RESULT OF A CONDITION ARISING FROM THE PATIENT’S EMPLOYMENT....” This unsigned statement, apparently generated by a computer, does not by any stretch of the imagination prove a causal relationship between the claimant’s alleged back injuries and the accident of December 2, 1989, and certainly does not justify the claimant’s motion to submit additional evidence. Similarly, we conclude that the third document submitted by the claimant, the unsigned, undated, typed message, does not support a motion to submit new evidence.

The final document which we will address is the handwritten page of doctor’s notes with the following dates on the page: January 8, 1990, March 8, 1990, June 27, 1990, and August 8, 1990. The claimant contends that the first two notes, dated January 8 and March 8, 1990, were written by Dr. Sica, the physician whom she initially saw following the December 2, 1989 accident. The claimant contends that the notes establish that her alleged back injury was causally related to the December 2, 1989 injury. We disagree. The notes dated January 8 and March 8, 1990 are not wholly legible, but indicate that the claimant’s back condition was worsening since an accident which had occurred in May, 1989. We note that the deceased Dr. Sica was a general practitioner, who referred the claimant to an orthopedic surgeon, Dr. Katz, for treatment. (See Finding Nos. 4 and 14.) The claimant submitted numerous medical reports by Dr. Katz and by other specialists at the formal hearings. We cannot conclude that these brief notes by Dr. Sica would affect the outcome of the claimant’s case. For the above reasons, we deny both of the claimant’s motions to submit additional evidence in their entirety.

We affirm the May 24, 1993 Finding and Dismissal and dismiss the claimant’s appeal.

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

1 Section 31-301-9 provides: “If any party to an appeal shall allege that additional evidence or testimony is material and that there were good reasons for failure to present it in the proceedings before the commissioner, he shall by written motion request an opportunity to present such evidence or testimony to the compensation review division, indicating in such motion the nature of such evidence or testimony, the basis of the claim of materiality, and the reasons why it was not presented in the proceedings before the commissioner. The compensation review division may act on such motion with or without a hearing....” BACK TO TEXT

2 In the instant case, the claimant participated in extensive formal hearings. Specifically, the claimant participated in a formal hearing on March 9, 1993 at which she was represented by legal counsel; the claimant participated in a continued formal hearing on March 16, 1993, at which she was represented by legal counsel; the claimant participated in a formal hearing on May 13, 1993 regarding her Motion to Present Additional Evidence at which she was represented by legal counsel; and the claimant participated pro se in a formal hearing held on August 17, 1992 and September 22, 1992 regarding her claim that she was discharged in violation of §31-290a C.G.S. BACK TO TEXT

3 We note that the copy submitted by the claimant does not contain the entire page of the document which was submitted as Respondent’s Exhibit No. 2, but contains one paragraph copied from that page. BACK TO TEXT

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