Rapuano v. Standard Builders, Inc.

The claimant was represented by Melissa Buckley, Esq., Buckley & Buckley, 250 Church St., New Haven, CT 06510.

The respondents were represented by Richard T. Stabnick, Esq. and Steven Ekern, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033.

The Second Injury Fund was not represented at oral argument. At the trial level, the Second Injury Fund was represented by Robin Wilson, Esq., Former Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.

This Order concerning claimant’s Motion to Submit Additional Evidence dated February 28, 1994 was heard November 18, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Nancy A. Brouillet.

RULING ON MOTION TO SUBMIT ADDITIONAL EVIDENCE

JESSE M. FRANKL, CHAIRMAN. The claimant has moved to submit additional evidence in conjunction with his petition for review from the February 15, 1994 Finding and Award of the commissioner for the Fifth District. He seeks to introduce the supplementary report of a vocational expert whose original testimony was discounted by the trial commissioner for its failure to consider various factors in evaluating the claimant’s employability. The Motion to Submit Additional Evidence is hereby denied.

The trial commissioner found that the claimant sustained a compensable work-related injury to his back on February 26, 1990, and that he reached maximum medical improvement on November 19, 1990 with a twenty-five permanent partial disability of his back. In support of his claim of total disability, the claimant produced a vocational expert who testified that, based upon his evaluation, the claimant was competitively unemployable and had no transferability of skills. The commissioner found that, in making this evaluation, the vocational expert had not inquired into the claimant’s prior work history, had not determined the claimant’s IQ, literacy, driving ability, or physical dexterity, and had not looked into part-time jobs or jobs outside the New Haven area. The commissioner ultimately found that the claimant had “failed to produce credible evidence that he is in fact totally disabled from any occupation which his education, training, physical ability and experience might reasonably allow him to pursue,” and denied the claim for total disability. The claimant now seeks to introduce a report which takes the factors cited by the commissioner into account.

Administrative regulation § 31-301-9 provides in pertinent part, “[i]f 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.” It is ironic that, while trying to meet this standard, the claimant himself opines that many of the missing inquiries cited by the trial commissioner are in fact irrelevant to the determination of the claimant’s total disability, and that it was improper for the commissioner to discredit the vocational expert’s testimony based on their absence. Of course, we can not address that issue until the merits of the appeal are considered. The argument of the claimant that we must consider here is that as long as the commissioner has improperly ascribed importance to certain tests, the claimant should be given the chance to present a vocational report that reflects those tests. We disagree.

The evidence now offered by the claimant could have been made available at the time of trial. The only reason it was not offered was that the claimant did not anticipate that it would be relevant or necessary to have the vocational expert conduct the inquiries focused on by the commissioner. This excuse does not satisfy the requirement of § 31-301-9 that there be a “good reason” for the failure of a party to offer evidence in prior proceedings. Moreover, the claimant himself alleges that the evidence is not actually material to the issue of whether the claimant is totally disabled, but is only being offered in response to the trial commissioner’s improper consideration of irrelevant tests that the vocational expert did not perform in making his evaluation. Although we appreciate the nuances of the claimant’s position, this still conflicts with the language in § 31-301-9 requiring a party to allege that additional evidence is material.