State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Fassett v. F. Castellucci & Sons

CASE NO. 2150 CRB-3-94-9

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

DECEMBER 7, 1995

FREDERICK FASSETT

CLAIMANT-APPELLEE

v.

F. CASTELLUCCI & SONS

EMPLOYER

and

AETNA LIFE & CASUALTY

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was not represented at oral argument. Notice sent to Thomas F. Keyes, Jr., Esq., 215 Church St., New Haven, CT 06510.

The respondents were represented by Christine C. Murphy, Esq., McGann, Bartlett & Brown, 281 Hartford Tpke., Vernon, CT 06066.

This Petition for Review from the September 16, 1994 Finding and Award of the Commissioner acting for the Third District was heard May 19, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta S. Tracy and Amado J. Vargas.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the September 16, 1994 Finding and Award of the Commissioner acting for the Third District. On appeal, they argue that the trial commissioner improperly left open the issue of total disability for the presentation of additional medical evidence. We agree, and reverse the decision of the trial commissioner.

The claimant’s left foot was injured in 1988, entitling the claimant to workers’ compensation benefits pursuant to an August 9, 1993 Finding and Award. At a formal hearing on May 19, 1994, the claimant sought indemnity benefits for 1989 through 1994. The trial commissioner found that there was evidence to support the existence of total disability for certain periods between 1989 and 1992. He also found that the claimant was totally disabled from March 10, 1993 to March 15, 1993, following the amputation of two toes on his left foot. The commissioner reasoned, however, that the claimant’s inability to obtain proof of his lost wages because of a fire at the employer’s workplace entitled him to the opportunity to present additional medical evidence regarding total disability after July 26, 1992. Thus, that issue was left open.

We have often stated that a party is not entitled to present his case in a piecemeal fashion, with a second bite at the apple forthcoming after failing to meet his burden of proof on the first try. Kearns v. Torrington, 119 Conn. 522, 529 (1935); Tutsky v. YMCA of Greenwich, 28 Conn. App. 536, 542 (1992); Germe v. Conway Eastern Express, 10 Conn. Workers’ Comp. Rev. Op. 148, 150, 1180 CRD-3-91-2 (June 29, 1992). In the interest of finality and of judicial economy, it is important that a claimant offer all available evidence the first time his claim is being considered. As an illustration, this board allows a party to an appeal to submit additional evidence only when there is a good reason for the failure to present it at trial and where it is material to the outcome of the case. See Administrative Regulation § 31-301-9; Carr v. Southern New England Telephone Co., 13 Conn. Workers’ Comp. Rev. Op. 21, 22, 1846 CRB-3-93-9 (Nov. 4, 1994). This prevents cases from continuing ad infinitum.

In the case on appeal, the trial commissioner had before him the issue of the claimant’s total disability from 1989 through the date of the formal hearing. The claimant was unable to provide sufficient evidence to support his claim for total disability after July 1992, apparently because he had not obtained a report from his current treating physician. The trial commissioner decided that this issue should remain open, however, justifying his ruling by noting that the claimant’s wage records were unavailable.

We are unable to understand what impact the absence of these records could have on this issue, however. The claimant and respondents stipulated to a base compensation rate of $310.00, however, as noted in the Finding and Award. Furthermore, by definition, there would be no wage records for the claimant in 1992, 1993 or 1994 if he was totally disabled. Thus, the relationship of this evidence to the claimant’s medical condition in those years remains a mystery.

Moreover, there is no indication that the claimant could not have obtained a medical report from his treating physician that would have addressed his work capacity through the time of the formal hearing. It seems that the claimant simply failed to obtain this evidence. The trial commissioner’s duty is to render a decision on the issues before him, however, using the evidence presented. If the claimant cannot meet his burden of proof, he is not entitled to have the issue put aside until he can gather further evidence in the future. The trial commissioner should have rendered a decision on his claim for all total disability benefits accrued through the date of the formal hearing. Since the claimant could not prove those in question, that part of his claim must be dismissed.

The trial commissioner’s decision is reversed.

Commissioner Roberta S. Tracy concurs.

AMADO J. VARGAS, COMMISSIONER, Dissenting. I disagree with the majority opinion. The respondents did not show that they were prejudiced by the trial commissioner’s decision to leave the post 1992 total disability claim open. Section 31-298 allows the trial commissioner to make inquiry in a manner that is “best calculated to ascertain the substantial rights of the parties and carry out the provisions and intent” of the Workers’ Compensation Act. In order to effectively do that, a commissioner must be given the discretion to hear a claim in the manner he deems appropriate. He is in a much better position to evaluate the evidence and decide how to handle it than is this board.

There is no jurisdictional bar that prevents the trial commissioner from postponing his decision on an issue until further evidence can be obtained. Although a commissioner has discretion to open and modify an award only where the circumstances warrant it, see Tutsky, supra, 541, no decision had yet been made on the issue of total disability. Thus, finality of the judgment is not truly an issue. I believe equity demands that the trial commissioner have the power to postpone a decision until all the facts are available. That power was appropriately exercised in this case. Consequently, I dissent.

Workers’ Compensation Commission

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