Swegel v. UTC/Pratt & Whitney

CASE NO. 2270 CRB-1-95-1

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

SEPTEMBER 14, 1995

THERESA SWEGEL

CLAIMANT-APPELLANT

v.

UTC/ PRATT & WHITNEY

EMPLOYER

CIGNA PROPERTY & CASUALTY

INSURER

and

SECOND INJURY FUND

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Howard B. Schiller, Esq., 55 Church Street, P.O. Box 699, Willimantic, CT 06226-0699.

The respondents were represented by Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.

The Second Injury Fund did not appear at oral argument.

This Motion to Submit Additional Evidence, which was filed in conjunction with the Petition for Review from the January 6, 1995 Finding and Award of the Commissioner for the First District, was heard August 25, 1995 before a Compensation Review Board Panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta Smith-Tracy and Michael S. Miles.

RULING ON MOTION TO SUBMIT ADDITIONAL EVIDENCE - REMAND

JESSE M. FRANKL, CHAIRMAN. The claimant has filed a motion to submit additional evidence in conjunction with her appeal from the January 6, 1995 decision of the trial commissioner acting for the First District. In that decision, the trial commissioner found that the claimant suffered compensable injuries to her right arm and cervical spine caused by repetitive trauma. The Commissioner also found that she suffered no permanent impairment of her left wrist. In her motion to submit additional evidence, the claimant seeks to present medical reports by Dr. Watson and Dr. D’Angelo regarding the need for surgery on the claimant’s left wrist. In support of his motion, the claimant contends that these medical reports were not available at the time of the formal hearing because neither Dr. Watson nor Dr. D’Angelo had yet examined the claimant at that time.

The formal hearings in this case occurred on September 15, 1992 and January 19, 1994.1 In his Finding and Award, the trial commissioner cited the opinion of Dr. Barnett which noted that the claimant had preexisting degenerative conditions in both of her wrists, but that no surgery was needed. In addition, the trial commissioner cited Dr. Selden’s opinion that the claimant did not sustain any permanent partial impairment of her left wrist. The commissioner concluded that the claimant’s injury to her left wrist did not result in any permanent partial impairment and further concluded that adequate medical treatment, which did not involve surgery, had been provided for her left wrist.

Subsequent to the last formal hearing, the claimant was examined for the first time by Dr. Watson on January 24, 1994, who opined that surgical treatment would be necessary on the claimant’s left wrist. Thereafter, Dr. D’Angelo performed an independent medical examination on January 31, 1994, pursuant to the respondents’ request. Dr. D’Angelo’s medical report confirmed Dr. Watson’s opinion that surgery on the claimant’s left wrist was medically necessary. The claimant underwent surgery on her left wrist on or about February 11, 1994. Following surgery, Dr. Watson opined that the claimant suffered from a degenerative condition of her left wrist due to repetitive stress caused by her work duties over many years.

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.” In the instant case, we conclude that the claimant has demonstrated that the medical reports which she seeks to submit are material and that there were good reasons for her failure to produce them at the formal hearing. See Canfield v. Consolidated Freightways, 10 Conn. Workers’ Comp. Rev. Op. 59, 1125 CRD-7-90-10 (Feb. 21, 1992). Moreover, this board has stated:

No case under this Act should be finally determined when the trial court, or this court, is of the opinion that, through inadvertence or otherwise, the facts have not yet been sufficiently found to render a just judgment.

Krouse v. Holmgren Subaru, 11 Conn. Workers’ Comp. Rev. Op. 37, 38, 1251 CRD-2-91-6 (Feb. 26, 1993), quoting Cormican v. McMahon, 102 Conn. 234, 238 (1925).

Under the compelling circumstances of this case, including extenuating circumstances regarding the trial proceedings which caused a delay in the issuance of a decision, we will exercise our equitable powers by construing the claimant’s motion to submit additional evidence as a motion to modify the award based on changed conditions of fact under § 31-315. See Vincent v. Town of New Milford, 8 Conn. Workers’ Comp. Rev. Op. 27, 30-31, 761 CRD-7-88-8 (Feb. 5, 1990). We grant the motion to reopen and remand the matter for a new hearing on the merits of the claimant’s workers’ compensation claim.

Accordingly, this matter is remanded to the First District for a de novo hearing and the issuance of a finding based on that hearing.

Commissioner Roberta Smith D’Oyen and Michael S. Miles concur.

1 On January 19, 1994, the trial commissioner allowed the record to remain open for the continued deposition of Dr. Selden and the possible deposition of Dr. Leavitt. BACK TO TEXT