Rogers v. Laidlaw Transit Inc.

CASE NO. 2154 CRB-3-94-9

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 4, 1995

MARGARET ROGERS

CLAIMANT-APPELLEE

v.

LAIDLAW TRANSIT INC.

EMPLOYER

and

CRAWFORD & COMPANY

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Thomas F. Keyes, Jr., Esq., 215 Church St., New Haven, CT 06510.

The respondents were represented by Jonathan F. Reik, Esq., McGann, Bartlett & Brown, 281 Hartford Tpke., Vernon, CT 06066.

This Motion to Submit Additional Evidence which was filed by the claimant in conjunction with the respondents’ Petition for Review from the September 15, 1994 Finding and Award of the Commissioner for the Third District, was heard March 24, 1995 before a Compensation Review Board Panel consisting of the Commission Chairman Jesse M. Frankl and commissioners Roberta Smith D’Oyen and Amado J. Vargas.

RULING ON MOTION TO SUBMIT ADDITIONAL EVIDENCE

JESSE M. FRANKL, CHAIRMAN. The claimant/appellee has filed a Motion to Submit Additional Evidence in conjunction with the respondents’ appeal from the decision of the trial commissioner. The trial commissioner found that the claimant suffered a compensable knee injury on September 16, 1992 while working for the respondent employer. The trial commissioner further found that the claimant’s subsequent knee replacement surgery was causally related to the compensable injury.

In her motion to submit additional evidence, the claimant seeks to present a medical opinion from her treating physician, Dr. Hubert Bradburn, dated October 5, 1994, which opines that the claimant’s knee surgery is causally related to her compensable injury. In support of this motion, the claimant contends that the medical report is cumulative, but is being presented in order to address the respondents’ contentions on appeal. This is not a permissible reason for presenting new evidence pursuant to Conn. Agencies Regs. § 31-301-9.

It is the claimant’s burden to prove that his disability is causally related to his compensable injury. Metall v. Aluminum Co. of America, 154 Conn. 48, 51 (1966). Therefore, it is also 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. Peters v. Corporate Air, Inc., 1679 CRB-5-93-3 (March 14, 1994); Lesczynski v. New Britain Memorial Hospital, 10 Conn. Workers Comp. Rev. Op. 205, 208-9, 1289 CRD-6-91-9 (Dec. 2, 1992). Moreover, a motion to submit additional evidence may not properly be used to alter a party’s evidentiary decisions regarding the presentation of evidence at a formal hearing. Lesczynski, supra; Lange v. J & B Excavating & Paving, 11 Conn. Workers’ Comp. Rev. Op. 42, 1249 CRD-3-91-6 (March 18, 1993).

In the instant case, evidence regarding the causation of the claimant’s knee replacement surgery was presented at the formal hearing. The claimant has failed to show good reason for presenting a medical opinion on this issue after the formal hearing had been closed. See Lesczynski, supra. 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. Id., see also Murdock v. Squires, 6 Conn. Workers’ Comp. Rev. Op. 64, 66, 550 CRD-7-87 (Dec. 1, 1988). We conclude that the claimant has failed to satisfy the requirements of Conn. Agencies Reg. § 31-301-9.

We , therefore, deny the claimant’s Motion to Submit Additional Evidence.

Commissioners Roberta Smith D’Oyen and Amado J. Vargas concur.