CASE NO. 2277 CRB-5-95-1
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JANUARY 22, 1997
GENERAL SIGNAL CORP.
TRAVELERS INSURANCE CO.
SECOND INJURY FUND
The claimant was represented by John Serrano, Esq., Serrano & Serrano, 690 Flatbush Ave., West Hartford, CT 06110-1308.
The respondents were represented by Janine D’Angelo, Esq., Law Offices of Christine Harrigan, 1952 Whitney Ave., Hamden, CT 06517.
The Second Injury Fund was not represented at oral argument. Notice sent to Taka Iwashita, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the January 13, 1995 Memorandum of Decision on Claimant’s Motion to Open Formal Hearing of the Commissioner acting for the Fifth District was heard October 13, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta Smith Tracy and Amado J. Vargas.
JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the January 13, 1995 Memorandum of Decision on Claimant’s Motion to Open Formal Hearing. They argue on appeal that the trial commissioner erroneously granted the claimant’s motion to open the record of the formal hearing. We reverse the decision of the trial commissioner.
The commissioner made the following findings: the claimant sustained a compensable injury on September 3, 1991. His treating physician was Dr. Richard Matza. A formal hearing was held on May 11, 1994 to determine whether surgeries performed in 1992 and 1993 were necessary and reasonable. At the formal hearing, the claimant introduced as an exhibit a subpoena served on Dr. Matza, and stated that he was aware of the proceedings, but not available. The respondent introduced documentary evidence without objection, including reports by Dr. Matza. Neither party sought to continue the proceedings for the introduction of additional evidence.
Once the parties had rested, a briefing schedule was established. The respondent insurer filed a proposed finding and dismissal on July 22, 1994. On August 25, 1994, the claimant’s attorney filed a proposed finding and dismissal identical to the one filed by the respondent insurer. Soon after, the claimant obtained a new attorney, who filed a Motion To Open Formal Hearing in order to present additional evidence. After a formal hearing was held on that motion, the trial commissioner ruled that “the claimant through his new counsel should be provided the opportunity to introduce original photographs of the arthroscopic procedures done by Dr. Matza and should be provided the opportunity to elicit the testimony of Dr. Matza.” The respondents would then be allowed to elicit relevant testimony from their own experts. The respondents have appealed from the decision to open the formal hearing.
Motions to open workers’ compensation proceedings in order to submit further evidence have most commonly been discussed in the context of cases in which an award has already been made by a trial commissioner. See, e.g., McCulloch v. Pittsburgh Plate Glass Co., 107 Conn. 164 (1927); Tutsky v. YMCA of Greenwich, 28 Conn. App. 536 (1992). The general rule in such situations is that an award may be modified whenever the commissioner is shown that a claimant’s incapacity or degree of dependence on compensation has changed, “or that changed conditions of fact have arisen which necessitate a change of such agreement or award in order properly to carry out the spirit of this chapter.” Section 31-315 C.G.S. The statute also gives the commissioner the same power to open and modify an award as a state court has to open its own judgment.
As both parties have acknowledged, the commissioner in this case had not yet made an award when the claimant filed his Motion to Open. The case had progressed to the point where the record had been closed and the parties had each filed proposed findings. The commissioner expressed a belief that he had “the right to reopen the case if [he felt] that there was insufficient evidence or not enough evidence for [him] to make a decision.” (Transcript of Jan. 9, 1995 Formal Hearing, p. 15). He cited Morganelli v. Derby, 105 Conn. 545 (1927), in support of his statement.
In Morganelli, the trial commissioner held a “more or less informal hearing” before filing an informal finding of facts. Id., 547. The claimant’s attorney moved to submit additional evidence on the ground that the claimant spoke poor English and had failed to convey his real claims at the first hearing. The trial commissioner then held a further hearing over the respondent’s objection. Our Supreme Court stated that the commissioner “had jurisdiction and power, before he made his award, to open the proceedings and take further evidence, as clearly appears from our ruling in Thompson v. Towle, 98 Conn. 738, 741, 742.” Id., 548.
Although the trial commissioner likewise did not make an award in the case at bar, there is a difference between this case and Morganelli. Here, the parties had proceeded through the formal hearing stage of the proceedings, and had agreed that the record should be closed and that proposed findings should be presented to the commissioner. Indeed, it is apparent that the 120-day period in § 31-300 C.G.S., which mandates that a trial commissioner issue written findings, had begun running, and the parties were simply waiting for a decision. Once the proceedings have reached that phase, the commissioner no longer has the same discretion to reopen the case that he would have before the record were closed. He or she would need a good reason to allow the introduction of further evidence.
Unlike the Morganelli case, no one has alleged here that the claimant was unable to present his claims to the commissioner. Instead, the reason given for opening the record was that additional evidence was needed for the commissioner to make a proper determination of the case. We recognize that “the liberal spirit and policy of the [Workers’] Compensation Act should not be defeated or impaired by a too strict adherence to procedural niceties,” and that the opening of a judgment is at the legal discretion of the court trying the case. McCulloch, supra, 167. However, when the availability of additional evidence is the basis of a motion to open a completed formal hearing, the requirements of § 31-315 are still applicable. “A party to a compensation case is not entitled to try his case piecemeal . . . . Where an issue has been fairly litigated, with proof offered by both parties, a claimant should not be entitled to a further hearing to introduce cumulative evidence, unless its character or force be such that it would be likely to produce a different result.” Kearns v. Torrington, 119 Conn. 522, 529 (1935).
In this case, it is apparent that all of the evidence sought to be introduced by the claimant through the motion to open was available at the time of the first formal hearing. The claimant’s counsel could have introduced Dr. Matza’s testimony and the photographs of his arthroscopic procedures, especially considering that Dr. Matza stated in his August 17, 1993 report that said photographs would be needed for the respondents’ doctors to concur that the claimant’s surgery was necessary. (Claimant’s Exhibit B). The importance of this evidence could clearly have been anticipated in advance. Said counsel’s choice to try the case differently does not provide adequate grounds for replacement counsel to open the formal hearing later. Therefore, we hold that the trial commissioner erred in granting the claimant’s motion to open.
The trial commissioner’s decision is reversed.
Commissioner Roberta Smith Tracy concurs.
AMADO J. VARGAS, COMMISSIONER, DISSENTING. The majority has noted in its opinion that the liberal spirit and policy of the Workers’ Compensation Act should not fall prey to an overemphasis on procedural details. Yet, that is precisely what is happening here. The respondents have shown no prejudice from the commissioner’s decision to grant the Motion to Open, as they were to be given the opportunity to present testimony opposing Dr. Matza’s anticipated opinions. The trial commissioner obviously felt that more evidence would be helpful in this case, and chose to allow the claimant to present that evidence. Section 31-298 gives the commissioner broad authority in that regard. As our supreme court stated in Morganelli v. Derby, 105 Conn. 545, 548 (1927), the trial commissioner has the authority to open the proceedings and take further evidence before he issues his decision. Yet, the majority would interfere with that discretion here. Accordingly, I dissent.