Lange v. J & B Excavating & Paving

CASE NO. 1249 CRD-3-91-6

COMPENSATION REVIEW BOARD/DIVISION

WORKERS’ COMPENSATION COMMISSION

MARCH 18, 1993

WILLIAM LANGE

CLAIMANT-APPELLANT

v.

J & B EXCAVATING & PAVING

EMPLOYER

UNINSURED

and

SECOND INJURY FUND

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented at the trial level by David Aaron, Esq., P.O. Box 119, Southport, CT 06490 and on appeal by Alexander Scheirer, Esq., 445 Orange St., New Haven, CT 06510.

The respondent employer was represented by John J. Coughlin, Esq., Coughlin and Malone, P.O. Box 209, 92 Cherry St., Milford, CT 06460.

The Second Injury Fund was represented at the trial level by Kathleen Smith, Esq., and on appeal by Robin Wilson, Esq., Assistant Attorney General, 55 Elm St., P. 0. Box 120, Hartford, CT 06101-0120, although no brief was filed on behalf of the Second Injury Fund at the appellate level.

This Petition for Review from the June 11, 1991 Finding and Dismissal of the Commissioner for the Third District was heard April 24, 1992 before a Compensation Review Division panel consisting of the then Commission Chairman, John Arcudi, and Commissioners Darius Spain and Angelo L. dos Santos.

OPINION

JOHN ARCUDI, COMMISSIONER. Claimant’s appeal contests the Third District June 11, 1991 dismissal of his claim. He alleges he injured his back August 1, 1990 when he bent down to pick up a marking string on the respondent employer’s job site. Because of the injury the neurosurgeon Dr. Kenneth Lipow operated December 14, 1990 on claimant’s lumbar spine.

The commissioner concluded that claimant’s injury was not causally related to work events of August 1, 1990. As part of his appeal claimant seeks to submit additional evidence, the oral testimony of his treating physicians. Administrative Regulation Sec. 31-301-91 governing such requests requires that the party making such a motion must indicate the nature of the evidence, the basis of the claim of materiality and the reasons why the evidence was not presented in the proceedings before the trial commissioner. As a reason for not presenting the evidence in the proceedings below the claimant stated:

Claimant’s then attorney of record was of the apparent opinion that the nexus between the injury and the employment relationship could or would be established through the claimant’s testimony. He failed to consider that the claimant had suffered previous injury, evidence of which served to confuse and obscure the fact the claimed injury did in fact arise out of or in the course of employment. The extent of the medical evidence provided by the claimant’s then attorney of record to establish the nexus between the injury and employment consisted of medical reports. It would have been not only more appropriate, but also probative of the fact that the injury arose out of or in the course of employment by adducing live testimony onto the record from the treating physicians.

The failure of claimant’s former counsel to appreciate the probative effect of live testimony by the treating physicians hardly seems a sufficient reason for granting a motion to submit additional evidence. See Lescynski v. New Britain Memorial Hospital, __Conn. Workers’ Comp. Rev. Op.__, 1289 CRD-6-91-9 (December 2, 1992). It does not constitute a good basis for granting the request.

Ultimately, whether the trier erred in finding claimant’s injury did not arise out of and in the course of his employment presents a question of fact. An appellate tribunal can only disturb such factual conclusions when they are found without evidence, contrary to law or based on unreasonable or impermissible factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535 (1988).

Here there was evidence which indicated that (1) claimant had a water skiing accident July 20, 1990 which caused claimant back pain and (2) claimant was involved in an automobile accident September 20, 1989 when he was thrown from the car, knocked unconscious and landed in a tree, TR January 11, 1991, 21, 25, 36-37, 44, 57-59. See also Respondent’s Exhibits 1, 3 and 5.

As the conclusion drawn by the trier was dependent upon the weight and credibility he accorded the evidence, it is not in our power to alter it. Rivera v. Guida’s Dairy, 167 Conn. 524 (1975), Wheat v. Red Star Express Lines, 156 Conn. 245 (1968).

We therefore affirm the Third District June 11, 1991 ruling and dismiss claimant’s appeal.

Commissioners Darius Spain and Angelo L. dos Santos concur.

1 Administrative Regulation Sec. 31-301-9 provides:

If 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. The compensation review division may act on such motion with or without a hearing, and if justice so requires may order a certified copy of the evidence for the use of the employer, the employee or both, and such certified copy shall be made a part of the record on such appeal. BACK TO TEXT