State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Lopez v. Chieppo Charter, Inc.

CASE NO. 2269 CRB-3-95-1

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

SEPTEMBER 18, 1995

NELSON LOPEZ

CLAIMANT-APPELLANT

v.

CHIEPPO CHARTER, INC.

EMPLOYER

and

AETNA LIFE & CASUALTY

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Robert Kowalczyk, Esq., Ronald M. Scherban, P.C., 395 Orange Street, New Haven, CT 06511, who did not appear at oral argument.

The respondents were represented by Stephen Ekern, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.

This Motion to Submit Additional Evidence, which was filed in conjunction with the Petition for Review from the January 5, 1995 Finding and Dismissal of the Commissioner for the Third District, was heard August 25, 1995 before a Compensation Review Board Panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta Smith-Tracy and Michael S. Miles.

RULING ON MOTION TO SUBMIT ADDITIONAL EVIDENCE

JESSE M. FRANKL, CHAIRMAN. The claimant has filed a motion to submit additional evidence in conjunction with his appeal from the decision of the trial commissioner dismissing his claim for benefits. The trial commissioner found that the claimant failed to sustain his burden of proof that he suffered an injury arising out of and in the course of his employment with the respondent employer. Specifically, the trial commissioner found that the claimant’s testimony that he fell from a ladder on December 10, 1993 while at work was not credible. In his motion to submit additional evidence, the claimant seeks to present testimony from a fellow employee who allegedly saw the claimant immediately following his alleged fall. The fellow employee did not appear at the formal hearing held before the trial commissioner.

In support of his motion, the claimant contends that he attempted to subpoena the witness, but that he could not be located for service of the subpoena prior to the formal hearing. In the Finding and Dismissal, the trial commissioner stated that the claimant had requested a continuance to locate the witness. The trial commissioner found that the witness was still employed by the respondent employer, that the witness lived in the area, and that the witness could have been located prior to the hearing. The trial commissioner thus denied the claimant’s request for a continuance. Administrative Regulation § 31-279-4 states in pertinent part that “[n]o party can assume the granting of a continuance to produce witnesses at a later date, or for any other reason not regularly recognized in a judicial proceeding.” It is within the broad discretion of the trial commissioner to grant or deny a continuance, and such a decision is virtually unreviewable. Muniz v. Koteas, 1720 CRB-4-93-5 (decided April 21, 1995).

We find no error in the trial commissioner’s denial of the claimant’s request for a continuance. See Muniz, supra. We conclude that the claimant has failed to satisfy the requirements of Administrative Regulation § 31-301-9.1

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

Commissioner Roberta Smith D’Oyen and Michael S. Miles concur.

1 Administrative regulation §31-301-9 provides in pertinent part, “[i]f 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.” BACK TO TEXT

Workers’ Compensation Commission

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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