Lestage v. Yellow Freight Systems, Inc.

The claimant was represented by Joshua Hawks-Ladds, Sorokin, Sorokin, Gross, Hyde & Williams, P.C., One Corporate Center, Hartford, CT 06103.

The respondents were represented by Scott Wilson Williams, Esq., Maher & Williams, 1300 Post Rd., P.O. Box 550, Fairfield, CT 06430.

The Second Injury Fund was represented by Michael J. Belzer, Esq., Assistant Attorney General, 55 Elm St., P.O. Box 120, Hartford, CT 06141-0120, who did not appear at oral argument.

This Motion to Submit Additional Evidence, which was filed in conjunction with the Petition for Review from the April 19, 1995 Finding and Award of the Commissioner for the Fifth District, was heard December 1, 1995 before a Compensation Review Board Panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta Smith Tracy and Amado J. Vargas.

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 appeal from the April 19, 1995 Finding and Award of the Commissioner for the Fifth District. In that decision, the trial commissioner awarded five percent permanent partial disability for a cervical injury which was the subject of a voluntary agreement. In addition, the trial commissioner dismissed the claim for an accidental injury caused by an alleged chemical exposure. The trial commissioner found that the claimant failed to sustain his burden of proof that he was exposed to chemicals from a ripped package on September 26, 1991 during the course of his employment. In his motion to submit additional evidence, the claimant seeks to present: (1) testimony from Paul Oliveri, terminal manager at the employer’s Connecticut facility; (2) testimony from Joseph Perron, an employee at the employer’s Massachusetts facility; and (3) the original documents of claimant’s Exhibits No. 3 and 4, which are copies.

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.”

It is the claimant’s burden to prove that he sustained an injury which arose out of and in the course of his employment. Pereira v. State, 228 Conn. 528, 542 (1994). A motion to submit additional evidence may not properly be used to alter a party’s evidentiary decisions based on trial tactics or lack of diligence regarding the presentation of evidence at a formal 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); Lange v. J & B Excavating & Paving, 11 Conn. Workers’ Comp. Rev. Op. 42, 1249 CRD-3-91-6 (March 18, 1993). Furthermore, the evidence which the party seeks to produce must not only be unavailable at the time of the proceedings before the trial commissioner, but also be undiscoverable with due diligence. Searles v. West Hartford Board of Education, 12 Conn. Workers’ Comp. Rev. Op. 414, 418 1617 CRB-1-93-1 (Sept. 28, 1994).

The claimant seeks to present testimony from Paul Oliveri and Joseph Perron regarding the claimant’s alleged exposure to the chemical and the delivery of the chemical to the employer’s facility. The claimant testified at the formal hearing regarding these two witnesses. (Memorandum of Law in Support of Claimant’s Motion to Submit Additional Evidence at p. 2; Finding of Fact No. 32). In support of his motion to submit testimony, the claimant contends that because the respondents did not produce any evidence to rebut the claimant’s testimony regarding the alleged chemical exposure, therefore “Claimant did not attempt to call Mr. Oliveri or Mr. Perron in its case in chief or as rebuttal witnesses.” Rather, the claimant requested that the trial commissioner make a “proper inference in favor of the Claimant.” (Memorandum of Law in Support of Claimant’s Motion to Submit Additional Evidence at pp. 4-5). This was a calculated risk on the part of the claimant regarding the presentation of his case, and he may not now decide to produce these witnesses. See Lange, supra.

We note that the claimant also argues that the respondents failed to “produce” Joseph Perron. (Motion to Submit Additional Evidence at p. 2). However, it was the claimant’s burden to produce witnesses to support his claim. The claimant could have subpoenaed the witnesses prior to the close of the formal hearing, and if necessary, the claimant could have employed a Massachusetts law firm to subpoena Joseph Perron. Accordingly, the claimant has not presented sufficient cause for his failure to present testimony from either Paul Oliveri or Joseph Perron at the formal hearing.

Finally, we will address the claimant’s request to submit the original documents of Claimant’s Exhibits No. 3 and 4, which are copies of the documents relating to the shipping of the chemical involved in the alleged exposure incident. The claimant has not stated any reason why the original documents, rather than the copies which were entered as exhibits, are material. Moreover, the claimant has not contended that the originals were unavailable at the time of the formal hearings.

We conclude that the claimant has failed to satisfy the requirements of Administrative Regulation § 31-301-9. We, therefore, deny the claimant’s Motion to Submit Additional Evidence.