Marandino & Marandino v. Marandino’s d/b/a John Marandino

CASE NO. 3130 CRB-6-95-7

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 4, 1996

JOANNE MARANDINO (Dependent Widow of John Marandino) and ESTATE OF JOHN MARANDINO

CLAIMANT-APPELLANT

v.

MARANDINO’S d/b/a JOHN MARANDINO

EMPLOYER

and

LIBERTY MUTUAL INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Harold J. Geragosian, Esq., 380 West Main St., New Britain, CT 06052.

The respondents were represented by Ellen Aspell, Esq., Law Offices of Nancy S. Rosenbaum, 655 Winding Brook Dr., P.O. Box 695, Glastonbury, CT 06033.

This Motion to Submit Additional Evidence, which was filed in conjunction with the Petition for Review from the July 14, 1995 Finding and Dismissal of the Commissioner acting for the Sixth District, was heard March 15, 1996 before a Compensation Review Board Panel consisting of the Chairman Jesse M. Frankl and Commissioners George Waldron and Robin L. Wilson.

RULING ON MOTION TO SUBMIT ADDITIONAL EVIDENCE

JESSE M. FRANKL, CHAIRMAN. The claimant (dependent widow of decedent) has filed a Motion to Submit Additional Evidence in conjunction with an appeal from the July 14, 1995 Finding and Dismissal of the trial commissioner acting for the Sixth District. The trial commissioner found that the decedent was a sole proprietor at the time he suffered a fatal heart attack on May 20, 1992, and thus was not covered under the Workers’ Compensation Act. The trial commissioner further found that the claimant had not elected to be covered under the workers’ compensation system pursuant to § 31-275(10).1 In her motion to submit additional evidence, the claimant seeks to present evidence and testimony regarding “the customary practice... for an insurance agent to take care of any filings concerning election of coverage forms with the Workers’ Compensation Commission....” (Motion to Submit Additional Evidence at p. 1).

Section 31-301-9 of the Agency Regulations provides, in pertinent part:

If 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.

The claimant has provided no reason for her failure to provide, prior to the close of the formal hearing, the evidence or testimony which she now seeks to submit in her Motion to Submit Additional Evidence. It is 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. Lesczynski v. New Britain Memorial Hospital, 10 Conn. Workers Comp. Rev. Op. 205, 208-9, 1289 CRD-6-91-9 (Dec. 2, 1992). In the instant case, formal hearings were held between November 29, 1993 and February 29, 1995. The claimant has not alleged that the evidence she now seeks to submit was unavailable during the formal hearing process, nor does the claimant allege any good reason for her failure to present such evidence. Accordingly, we deny the claimant’s motion to submit additional evidence. See Lange v. J & B Excavating & Paving, 11 Conn. Workers’ Comp. Rev. Op. 42, 1249 CRD-3-91-6 (March 18, 1993).

The claimant’s Motion to Submit Additional Evidence is denied.

Commissioners George Waldron and Robin L. Wilson concur.

1 Section 31-275(1) provides in pertinent part: “A person who is the sole proprietor of a business may accept the provisions of this chapter by notifying the commissioner, in writing, of his intent to do so.” BACK TO TEXT