Roy v. General Dynamics Corp./Electric Boat Division

The respondent employer and insurer were represented by Peter Quay, Esq., Murphy & Beane, Courtney Building, P.O. Box 590, New London, CT 06320-0590.

This Petition for Review from the February 22, 1996 Finding and Dismissal of the Commissioner acting for the First District was heard November 22, 1996 before a Compensation Review Board panel consisting of Commission Chairman Jesse M. Frankl and Commissioners George Waldron and Robin L. Wilson.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the February 22, 1996 Finding and Dismissal of the Commissioner acting for the First District. In that decision, the trial commissioner concluded that the claimant failed to meet his burden of proof that his physical or psychological condition arose out of or in the course of his employment. In support of his appeal, the claimant contends that the evidence which he submitted supports a determination that he sustained compensable injuries while working for the employer and that his current medical condition was caused by said employment. We find no error on the part of the trial commissioner.

First, we will address the claimant’s motion to submit additional evidence. Specifically, the claimant seeks to submit a medical evaluation form dated 1969; a medical report dated March 1, 1985; an application form dated August 15, 1989; and medical reports and notes dated August 28, 1995, June 7, 1996, September 10, 1996, and October 29, 1996. A motion to submit additional evidence may not properly be used to alter a party’s evidentiary decisions regarding the presentation of evidence at a formal hearing. Lange v. J & B Excavating & Paving, 11 Conn. Workers’ Comp. Rev. Op. 42, 1249 CRD-3-91-6 (March 18, 1993). Lesczynski v. New Britain Memorial Hospital, 10 Conn. Workers Comp. Rev. Op. 205, 208-9, 1289 CRD-6-91-9 (Dec. 2, 1992); Moreover, it is the claimant’s burden to recognize and resolve 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. Lesczynski, supra.

We conclude that the claimant has failed to show good reason for presenting medical records after the formal hearing had been closed. 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 thus conclude that the claimant has failed to satisfy the requirements of Conn. Agencies Reg. § 31-301-9.

We now turn to the merits of the claimant’s appeal. In the instant case, the trial commissioner found the following relevant facts. The claimant worked for the employer from August 23, 1989 until October 24, 1989. The claimant alleged that he was physically and mentally abused by several of his co-workers. The claimant further alleged that he sustained injuries while using a hand jack. In addition, the claimant alleged that he became stuck between two pipes which also caused injuries. Accordingly, the claimant contended that he suffered numerous physical injuries and also suffered psychological and emotional injuries. The trial commissioner ordered an examination pursuant to § 31-294(f) with Dr. Steckler, an orthopedic surgeon. Dr. Steckler characterized much of the claimant’s complaints as subjective, and diagnosed cervical disc and lumbosacral disc degeneration which was age related. (Finding No. 15). In addition, an independent medical evaluation was made by Dr. Borden, a psychiatrist, who diagnosed psychiatric problems. Dr. Borden concluded that the claimant’s condition was not related to his employment.

The claimant’s argument on appeal is essentially that the commissioner’s conclusion is not supported by the evidence. The claimant contends that the trial commissioner did not give enough weight to the evidence which he presented. Whether an injury arose out of and in the course of the employment requires a factual determination. McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 117 (1987). The power and duty of determining the facts rests on the commissioner as the trier of fact. This fact-finding authority “entitles the commissioner to determine the weight of the evidence presented and the credibility of the testimony offered by lay and expert witnesses.” Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995) (citing Tovish v. Gerber Electronics, 32 Conn. App. 595, 599 (1993), appeal dismissed, 229 Conn. 587 (1994)). We will not disturb such determinations unless they are found without evidence, based on impermissible or unreasonable factual inferences or contrary to law. Fair v. People’s Savings Bank, 207 Conn. 535 (1988).

The trial commissioner’s conclusion that the claimant’s physical and mental conditions were not causally related to his employment is fully supported by the record, including the medical reports of Dr. Steckler and Dr. Borden. (See Findings No. 15 and 17). Where, as here, the commissioner’s determinations are based upon the weight and credibility that he has accorded the evidence, we will not disturb such determinations. Dickey v. Harris Graphics, 12 Conn. Workers’ Comp. Rev. Op. 218, 1481 CRB-2-92-8 (March 22, 1994).