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Dunn v. Roadway Express, Inc.

CASE NO. 3005 CRB-3-95-2

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

SEPTEMBER 18, 1995

WILLIAM DUNN

CLAIMANT-APPELLEE

v.

ROADWAY EXPRESS, INC.

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by Jeremiah Morytko, Esq., Giulietti & Morytko, 14 Broadway, North Haven, CT 06473-2301.

The respondents were represented by Charles E. Tiernan III, Esq., Lynch, Traub, Keefe & Errante, P.C., 52 Trumbull Street, P. O. Box 1612, New Haven, CT 06506-1612.

This Motion to Submit Additional Evidence based on a Petition for Review from the February 15, 1995 Finding and Award of the Commissioner acting 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 S. Tracy and Michael S. Miles.

RULING ON MOTION TO SUBMIT ADDITIONAL EVIDENCE

JESSE M. FRANKL, CHAIRMAN. The respondent has filed a Motion to Submit Additional Evidence in accordance with its petition for review from the February 15, 1995 Finding and Award of the Commissioner for the Third District. It seeks to introduce a videotape of the claimant’s post-injury activities. The claimant has objected to this motion on the ground of materiality. We agree that the additional evidence should not be admitted, and deny the Motion to Submit Additional Evidence.

The trial commissioner found that the claimant suffered compensable lumbar spine and cervical spine injuries on August 18, 1993 while in the respondent’s employment. The respondent accepted liability pursuant to a voluntary agreement. The commissioner also found that the claimant suffered severe chest pain when he was injured. The day after the injury, a cardiologist at Yale-New Haven Hospital admitted the claimant due to his chest pain and conducted diagnostic tests. The cardiologist ruled out any heart problem associated with the complaints of chest pain, and diagnosed his condition as a musculoskeletal injury. The respondent refused to pay the cardiologist’s bill and the hospital bill, which together add up to $10,043.41, because it contended that the treatment was unrelated to his back and neck injuries. The commissioner disagreed, concluding that the tests for the chest pain symptoms were reasonable and necessary medical treatment, and ordered payment of the bills by the respondent.

The respondent filed an appeal from that decision. In its Reasons of Appeal, the respondent alleges that the claimant was attempting to obtain a “cardiac work up” under the pretense of a workers’ compensation claim in order to avoid the high cost of such treatment. It seeks to offer a videotape of the claimant taken in September, 1994 performing tasks that “are clearly inconsistent with his claim of disability.” The respondent contends that this videotape will demonstrate that the claimant faked his symptoms in an effort to receive the cardiologist’s treatment for free. The claimant has objected to this motion, arguing that the issue is limited to the time around August 18, 1993, and that videos taken of the claimant after that date are irrelevant and immaterial.

Administrative Regulation 31-301-9 allows this board to admit additional evidence only where there were good reasons for failure to present it in the proceedings below and where said evidence is material to the issue in dispute. Evidence is material if it will affect the outcome of a case. See Plitnick v. Knoll Pharmaceuticals, 13 Conn. Workers’ Comp. Rev. Op. 26, 28, 1699 CRB-8-93-4 (Nov. 7, 1994). Although the proffered evidence might indicate that the claimant was untruthful about the extent of his disability at the time the videos were taken, this would be material only if continuing disability was at issue.

The issues, however, were the claimant’s condition on August 18, 1993, and whether the medical treatment of the claimant’s chest pains was reasonable and necessary on the following day. We cannot say that the negative inference the videos could create as to credibility would likely affect the commissioner’s decision that the cardiologist’s treatment was reasonable. There is no direct evidentiary link, through testimony or otherwise, between the cardiologist’s performance of the tests and the claimant’s description of the extent of his disability. Without more, we must deny the respondents’ Motion to Submit Additional Evidence on the ground that the videotapes are immaterial.

Commissioners Roberta S. Tracy and Michael S. Miles concur.

Workers’ Compensation Commission

Page last revised: January 21, 2005

Page URL: http://wcc.state.ct.us/crb/1995/3005msub.htm

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