Fusco v. J.C. Penney Company

CASE NO. 1952 CRB-4-94-1

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 1, 1995

BARBARA FUSCO

CLAIMANT-APPELLANT

v.

J.C. PENNEY COMPANY

EMPLOYER

and

LIBERTY MUTUAL INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Laurence V. Parnoff, Esq., 1566 Park Ave., Bridgeport, CT 06604.

The respondents were represented by Kevin J. Maher, Esq., Maher & Williams, 1300 Post Rd., Fairfield, CT 06430-0550.

This Motion to Submit Additional Evidence, which was filed in conjunction with the Petition for Review from the January 12, 1994 Finding and Dismissal of the Commissioner acting for the Fourth District, was heard May 5, 1995 before a Compensation Review Board Panel consisting of the Chairman Jesse M. Frankl and Commissioners Roberta Smith Tracy and Amado J. Vargas.

RULING ON MOTION TO SUBMIT ADDITIONAL EVIDENCE

JESSE M. FRANKL, CHAIRMAN. The claimant has filed a Motion to Submit Additional Evidence in conjunction with an appeal from the decision of the trial commissioner. The trial commissioner found that the claimant failed to sustain her burden of proof that she suffered any injuries which were causally related to her employment. Specifically, the trial commissioner found that the claimant’s February 5, 1991 back surgery to remove a herniated disc was not causally related to an alleged lifting incident which occurred at work on January 14, 1991. The trial commissioner found that prior to the alleged injury of January 14, 1991, the claimant had already scheduled the back surgery with Dr. Nijensohn due to a pre-existing condition which was not related to work. In her motion to submit additional evidence, the claimant seeks to present testimony from Dr. Nijensohn, who was a treating physician, and testimony from a “new neurosurgeon.” (Motion to Submit Additional Evidence at p. 1).

First, we will address the respondents’ motion to dismiss the claimant’s appeal. The respondents contend that the claimant’s appeal should be dismissed for failure to file a brief. However, only the claimant’s motion to submit additional evidence, and not the claimant’s appeal, was scheduled to be heard by this Board on May 5, 1995. This Board does not require a brief to be filed in conjunction with a motion for additional evidence. Cf. Lennon v. Genest Subaru Motors, 13 Conn. Workers’ Comp. Rev. Op. 63, 1589 CRB-5-92-12 (Dec. 28, 1994) (claimant’s appeal dismissed for failure to file timely appeal brief). Accordingly, the respondents’ motion to dismiss is denied.

Section 31-301-9 of the Agency Regulations 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....”

The claimant has provided no reason for her failure to seek a medical opinion in order to present testimony from the “new” neurosurgeon prior to the close of the formal hearing. 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 v. New Britain Memorial Hospital, 10 Conn. Workers Comp. Rev. Op. 205, 208-9, 1289 CRD-6-91-9 (Dec. 2, 1992). Moreover, we note that the claimant’s motion does not provide the name of the neurosurgeon nor does it state the nature of the testimony which she intends to present. We deny the claimant’s motion to submit additional evidence as it pertains to a new medical witness.

We will now address the claimant’s request to present testimony from Dr. Nijensohn, the claimant’s treating physician who performed the surgery on February 5, 1991. The claimant contends that “Dr. Nijensohn, despite attempts by the claimant and the Respondent to obtain his presence at the formal hearings, consistently made himself unavailable and impossible to subpoena.” This Board is troubled by this alleged conduct on the part of a treating physician. Based upon the above quoted contention, we conclude that the claimant has demonstrated good reason for her failure to present testimony from Dr. Nijensohn at the formal hearing before the commissioner. Moreover, we conclude that such testimony is material as it relates to the issue of whether the claimant suffered a compensable injury on January 14, 1991.

Accordingly, we grant the claimant’s Motion to Submit Additional Evidence, limited to testimony from Dr. Nijensohn.

Commissioners Roberta Smith Tracy and Amado J. Vargas concur.