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Holle v. The William Backus Hospital

CASE NO. 2039 CRB-2-94-4

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 10, 1995

CYNTHIA HOLLE

CLAIMANT-APPELLANT

v.

THE WILLIAM BACKUS HOSPITAL

EMPLOYER

and

EMPLOYERS INSURANCE OF WAUSAU

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Philip F. Spillane, Esq., Baker, Moots & Pellegrini, P.C., 46 Main St., New Milford, CT 06776.

The respondents were represented by William Brown, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Vernon, CT 06066.

This Motion to Submit Additional Evidence, which was filed in conjunction with the Petition for Review from the April 20, 1994 Finding and Dismissal of the Commissioner acting for the Second District, was heard March 10, 1995 before a Compensation Review Board Panel consisting of Commissioners George Waldron, Roberta Smith D’Oyen, and Amado J. Vargas.

RULING ON MOTION TO SUBMIT ADDITIONAL EVIDENCE

GEORGE WALDRON, COMMISSIONER. The claimant has filed a Motion to Submit Additional Evidence in conjunction with an appeal from the decision of the trial commissioner.1 The trial commissioner found that the claimant failed to sustain her burden of proof that she suffered any injuries which were causally related to her employment. Specifically, the trial commissioner found that the claimant, a registered nurse, failed to establish that her symptoms were causally related to a vaccine for measles, mumps, and rubella which was administered on April 27, 1990.

In her motion to submit additional evidence, the claimant seeks to present a medical report dated August 13, 1994 from a treating physician, Dr. Robert E. Levin, in which he opines that the claimant’s fibromyalgia was caused by the vaccine. The claimant contends that she did not provide this report at the formal hearing because Dr. Levin “had not at that time completed his research.”

It is the claimant’s burden to prove that her alleged injuries are causally related to a compensable injury. Metall v. Aluminum Co. of America, 154 Conn. 48, 51 (1966). Therefore, it is also the claimant’s burden to appreciate and meet 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 based on trial tactics or lack of diligence 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, by a letter dated December 28, 1990, Dr. Levin explained that he could not render an opinion regarding whether the claimant’s condition was related to the vaccination of the claimant on April 27, 1990 because several questions were left unanswered.2 (Finding of Fact No. 16). Over two years later, the respondents conducted a deposition of Dr. Levin on September 30, 1993, which was attended by the claimant, during which Dr. Levin testified that in his opinion, the vaccination was not a cause of the claimant’s medical condition. (Finding of Fact f). Subsequently, formal hearings were held on January 28, 1993, September 15, 1993, and December 20, 1993.

Under these circumstances, the claimant had ample time, approximately three years, to obtain a medical opinion which supported her contention that her medical condition was causally related to the vaccine. We note that Dr. Levin in his report dated August 13, 1994 does not provide any reason for his inability to provide this report during the formal hearings. The claimant does not contend that Dr. Levin’s report of August 13, 1994 was based on any new or undiscoverable information such as new medical research. Thus, we cannot find that the proffered evidence was really new or that it was undiscoverable with due diligence at the time of the original hearings. See Lesczynski, supra., see also Murdock v. Squires, 6 Conn. Workers’ Comp. Rev. Op. 64, 66, 550 CRD-7-87 (Dec. 1, 1988). We conclude that the claimant has failed to show good reason for her failure to present the medical report on the issue of causation at the formal hearing before the commissioner.

The claimant cites Canfield v. Consolidated Freightways, 10 Conn. Workers’ Comp. Rev. Op. 59, 1125 CRD-7-90-10 (Feb. 21, 1992). However, that decision is distinguishable from the case at hand in that Canfield involved the issue of whether surgery should be performed, and the claimant in that case sought to introduce evidence that the claimant’s treating physician had changed his opinion on this issue after the commissioner’s decision was issued. In contrast, the instant case involves the issue of causation, and the claimant has offered no reason for Dr. Levin’s three-year delay in providing his opinion dated August 13, 1994. We conclude that the claimant has failed to satisfy the requirements of Conn. Agencies Reg. § 31-301-9.

We , therefore, deny the claimant’s Motion to Submit Additional Evidence.

Commissioners Roberta Smith D’Oyen and Amado J. Vargas concur.

1 At oral argument on March 10, 1995, the respondents abandoned their motion to dismiss dated February 3, 1995. BACK TO TEXT

2 Dr. Levin stated in the letter that in order to decide whether the claimant’s condition was related to the vaccine, he needed to know the strain of the virus the claimant had been immunized with, whether the claimant “had a titer drawn for rubella prior to the immunization”, and “whether chronic arthralgia is seen after immunization that is present greater then 6 months following rubella immunization.” (Claimant’s Exhibit E). BACK TO TEXT

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