Glenn v. Glenn Fence Company, Inc.

The claimant was represented by John L. Laudati, Esq., Murphy, Laudati & Kiel, P.C., The Exchange--Suite 360, 270 Farmington Ave., Farmington, CT 06032.

The employer and Peerless Insurance Co. were represented by Dominick Statile, Esq., Montstream & May, P. O. Box 1087, Glastonbury, CT 06033.

The employer and Maryland Casualty Co. were represented by Margaret Corrigan, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.

Hanover Insurance Co. was represented at trial by William C. Brown, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Vernon, CT 06066. Hanover was not represented at oral argument.

The Second Injury Fund was represented at trial by Taka Iwashita, Esq., A.A.G., 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120. The Fund was not represented at oral argument.

This Motion to Submit Additional Evidence filed in conjunction with a Petition for Review from the August 22, 1994 Finding and Dismissal of the Commissioner acting for the First District was heard February 24, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta Smith D’Oyen and Linda Blenner Johnson.

RULING ON MOTION TO SUBMIT ADDITIONAL EVIDENCE

JESSE M. FRANKL, CHAIRMAN. The claimant has filed a Motion to Submit Additional Evidence in conjunction with his petition for review from the August 22, 1994 Finding and Dismissal of the Commissioner for the First District. Under § 31-301(b) and Administrative Regulation § 31-301-9, this Board may consider additional evidence if a party alleges that such evidence or testimony is material and that there were good reasons for failure to present it in the proceedings before the trial commissioner. See, e.g., Lesczynski v. New Britain Memorial Hospital, 10 Conn. Workers’ Comp. Rev. Op. 205, 209, 1289 CRD-6-91-9 (Dec. 2, 1992). The claimant contends that this standard is met by the testimony he seeks to introduce.

The claimant alleged that he injured his back in the course of his employment on July 27, 1991. The commissioner noted in the Finding and Dismissal that there was confusion surrounding the date of that injury in both the doctors’ reports and the claimant’s own written statement. The claimant also alleged that he injured both his back and right knee on February 11, 1993. The commissioner noted that the First Report of Injury dated March 9, 1993 indicated no disability in connection with that injury. Furthermore, there were no witnesses produced to verify that either injury had actually occurred. The commissioner concluded that the claimant had not satisfied his burden of proof with respect to either injury.

The claimant maintains that the commissioner’s dismissal of the July 1991 claim of injury was supported in part by the fact that the claimant produced no witnesses to the injury. The claimant alleges that all known witnesses to that injury were and continue to be beyond the reach of subpoenas. He argues that the commissioner failed to inquire about the availability of these witnesses before drawing a negative inference from their absence, unfairly depriving the claimant of the opportunity to rebut that negative inference. We stress that in considering the claimant’s Motion to Submit Additional Evidence, it is not within the scope of our determination under § 31-301-9 to rule on the propriety of the commissioner’s claimed negative inference or the applicability of Secondino v. New Haven Gas Co., 147 Conn. 672 (1960), to this case.

The claimant avers that he has located Brian Eaton, a witness to the injury whose whereabouts were unknown at the time of the formal hearing. Eaton, who is currently living in Cape Cod, would allegedly provide testimony corroborating the claimant’s testimony insofar as he witnessed the claimant’s 1991 injury. The claimant also seeks to introduce the testimony of two recently located witnesses who, contrary to the commissioner’s findings, will testify that the claimant did not intend to sell his house and move out of state at the time of the 1993 incident.

The respondents object to the claimant’s request to produce additional evidence, as the claimant never mentioned out-of-state witnesses during the proceedings. They also contend that the testimony is unlikely to produce a different result, that no change of circumstances has been demonstrated regarding the availability of the out-of-state witnesses, and that the claimant could have taken a deposition of these witnesses had he bothered to find them. We agree that the claimant has failed to satisfy § 31-301-9.

The main reason for the absence of these witnesses at trial was the claimant’s failure to anticipate that they would be necessary to prove his case. The fact that they presumably would have been difficult to find at the spur of the moment does not relieve the claimant of responsibility for their presence. As the respondents point out, there has been no showing by the claimant that these witnesses could not have been located and deposed before the formal hearing. Indeed, they were not even mentioned during the proceedings below. It simply appears that the claimant did not attempt to find his witnesses until he realized the commissioner did not find his own testimony credible. Failure to anticipate the need to present certain evidence at trial is not a good reason for being allowed to submit it afterward. See Lesczynski, supra.