McNerney v. City of New Haven

CASE NO. 2098 CRB-3-94-7

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 20, 1995

KEVIN MCNERNEY

CLAIMANT-APPELLEE

v.

CITY OF NEW HAVEN

EMPLOYER

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by Thomas Farver, Esq., 2842 Old Dixwell Avenue, Hamden, CT 06518.

Respondent did not appear at oral argument. However, the matter was considered on the basis of papers submitted on behalf of the respondent. The respondent was represented by Cheryl D. White-Mink, Esq., Assistant Corporation Counsel, 165 Church Street, New Haven, CT 06510, and is now represented by Donna Chance Dowdie, Esq., of the same address.

This Order concerning respondent’s Motion to Submit Additional Evidence dated July 25, 1994 was heard January 27, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta S. D’Oyen and Amado J. Vargas.

RULING ON MOTION TO SUBMIT ADDITIONAL EVIDENCE

JESSE M. FRANKL, CHAIRMAN. The respondent’s Motion to Submit Additional Evidence dated July 25, 1994 was considered by the Compensation Review Board panel on January 27, 1995.1 In its Motion to Submit Additional Evidence respondent sought to submit a written report of Dr. Sigfried J. Kra, a board-certified cardiologist, relating to issues of primary versus secondary hypertension and whether claimant’s hypertension was “curable”. The admission of additional evidence before the Compensation Review Board is largely controlled by Administrative Regulation § 31-301-9 which 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.

In respondent’s Motion to Submit Additional Evidence the reason given for failing to present the evidence which it now seeks to offer was that respondent had no notice of claimant’s intention to raise the issues of primary versus secondary hypertension and the “curable” nature of hypertension until February 17, 1994, the date of the hearing. Respondent contends that the evidence is material as it goes to the essence of claimant’s contentions at the February 17, 1994 formal hearing.

It appears the evidence which respondent seeks to add is evidence which should have been presented to the trier below. Once respondent became aware of claimant’s contention as to his hypertensive history, respondent could have requested an opportunity to present evidence on this issue to the trier. We do not think that respondent’s failure to foresee claimant’s intention to raise the issues of primary versus secondary hypertension and the “curable” nature of hypertension, as good reasons for not presenting its evidence before the trial commissioner. See Lange v. J & B Excavating & Paving, 11 Conn. Workers’ Comp. Rev. Op. 42, 43 - 44, 1249 CRD-3-91-6 (1993); Lesczynski v. New Britain Memorial Hospital, 10 Conn. Workers’ Comp. Rev. Op. 205, 208-09, 1289 CRD-6-91-9 (1992); Murach v. City of New Britain, 10 Conn. Workers’ Comp. Rev. Op. 89, 91-92, 1172 CRD-6-91-2 (1992). Additionally, it is impossible for us to discern whether the evidence arguably contained in Dr. Kra’s report was “undiscoverable” during the course of the proceedings below. Respondent’s motion is silent as to what evidence in Dr. Kra’s report was, arguably, undiscoverable at the time of the proceedings below.

Thus, the respondent did not satisfy the requirements of Administrative Regulation § 31-301-9. Therefore, in a ruling announced from the bench by this panel at oral argument on January 27, 1995, respondent’s Motion To Submit Additional Evidence was denied.

Commissioners Roberta S. D’Oyen and Amado S. Vargas concur.

1 At oral argument , claimant’s counsel stated that he had conversed by telephone with respondent’s counsel, who indicated that she was unaware that oral argument was scheduled for January 27, 1995.Claimant’s counsel was asked to seek a continuance from the panel at oral argument. The Compensation Review Board panel declined to continue the matter and respondent’s motion was considered on the basis of respondent’s papers. BACK TO TEXT