Sharkey v. Triangle/PWC

The claimant was represented by Katherine E. Meshako, Esq., Law Offices of John Haymond, 999 Asylum Ave., Hartford, CT 06105-2450.

The respondents, insurer and employer, were represented by John M. Walsh, Jr., Esq., Lynch, Traub, Keefe & Errante, 52 Trumbull St., New Haven, CT 06506.

The respondent, Second Injury Fund, was represented by Taka Iwashita, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.

This Motion to Submit Additional Evidence in conjunction with the Petition for Review from the July 22, 1994 Finding and Award of the Commissioner for the Second District was heard March 10, 1995 before a Compensation Review Board Panel consisting of Commissioners George Waldron, Donald H. Doyle, Jr., and Amado J. Vargas.

RULING ON MOTION TO SUBMIT ADDITIONAL EVIDENCE

GEORGE WALDRON, COMMISSIONER. The claimant has appealed from the decision of the trial commissioner dismissing his claim for benefits. The trial commissioner found that the claimant failed to sustain his burden of proof that he suffered an injury arising out of and in the course of his employment with the respondent employer.

In his motion to submit additional evidence, the claimant seeks to present testimony from the claimant’s supervisor and from the claimant’s coworker, neither of whom appeared at the formal hearings held before the trial commissioner. In support of his motion, the claimant contends that he was not aware that the respondents contested the claimant’s allegation that his injury occurred while at work.

The claimant has failed to satisfy the requirements of Administrative Regulation § 31-301-9. At oral argument, the claimant’s legal counsel explained that the claimant seeks an opportunity to address discrepancies in the evidence which did not appear to be significant until the commissioner rendered his decision. Because it was the claimant’s burden to prove that his injury arose out of and in the course of his employment; Metall v. Aluminum Co. of America, 154 Conn. 48, 51 (1966); it was also his burden to appreciate and meet any inconsistencies in the evidence, whether or not those discrepancies seemed significant to the claimant at the time of the hearing. Peters v. Corporate Air, Inc., 1679 CRB-5-93-3 (decided March 14, 1994). In the instant case, in the respondents’ Form 43 and at the formal hearing, the respondents clearly contested the claimant’s allegation that his back injury occurred while at work. (8/4/93 Transcript, pp. 6-7). Thus, the claimant has failed to show good reason for his failure to present the evidence in the hearings before the commissioner. Id., see also Lesczynski v. New Britain Memorial Hospital, 10 Conn. Workers Comp. Rev. Op. 205, 208-9, 1289 CRD-6-91-9 (1992). 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. See Murdock v. Squires, 6 Conn. Workers’ Comp. Rev. Op. 64, 66, 550 CRD-7-87 (1988).