Kasperski v. Bell Atlantic Corp.

CASE NO. 2106 CRB-6-94-7

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 15, 1995

JOHN KASPERSKI

CLAIMANT-APPELLANT

v.

BELL ATLANTIC CORP.

EMPLOYER

and

HARTFORD INSURANCE GROUP

INSURER

SECOND INJURY FUND

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Charles R. Douthat, Esq., 26 Trumbull St., New Haven, CT 06506.

The respondents, insurer and employer, were represented by Margaret Corrigan, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.

Respondent Second Injury Fund was represented by Ernie Walker, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.

This Motion to Submit Additional Evidence, which was filed in conjunction with the Petition for Review from the July 13, 1994 Finding and Award of the Commissioner acting for the Sixth 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. The trial commissioner found that the claimant suffered a compensable hernia injury on November 12, 1990 while working for the respondent employer, and awarded temporary total disability benefits and medical costs. The trial commissioner determined that the claimant suffered from a seventy-five percent permanent disability to his abdominal wall. However, he found that the claimant failed to establish that part of this permanent disability was caused by the November 12, 1990 injury rather than from a preexisting abdominal condition.

In his motion to submit additional evidence, the claimant seeks to present a medical opinion from the claimant’s treating physician, Dr. Shea, dated August 19, 1994, which opines that thirty-five percent of the claimant’s permanent disability is attributable to the November 12, 1990 injury. In support of his motion, the claimant contends that he did not obtain this opinion for the formal hearing because the apportionment of the permanent disability “did not appear to be an issue.”

It is the claimant’s burden to prove that his disability is causally related to his 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, evidence regarding the claimant’s preexisting abdominal condition was presented at the formal hearings. Thus, it became the claimant’s burden to prove that his work injury, rather than his preexisting condition, was a substantial factor which caused the permanent disability. The claimant has failed to show good reason for his failure to present a medical opinion on this issue at the formal hearings before the commissioner. 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). 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.