Smith v. UTC/Pratt & Whitney

The claimant was represented by Joseph Gillis, Gillis & Gillis P.C., 2 Whitney Ave., Suite 502, New Haven, CT 06510.

The respondents were represented by Lucas Strunk, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.

This Motion to Submit Additional Evidence which was filed by the claimant in conjunction with the claimant’s Petition for Review from the June 21, 1995 Finding and Award of the Commissioner for the Third District, was heard March 15, 1996 before a Compensation Review Board Panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Robin L. Wilson and Michael S. Miles.

RULING ON MOTION TO SUBMIT ADDITIONAL EVIDENCE

JESSE M. FRANKL, CHAIRMAN. The claimant has filed a Motion to Submit Additional Evidence in conjunction with the claimant’s appeal from the June 21, 1995 Finding and Award of the Commissioner for the Third District. The trial commissioner found that the claimant suffered a compensable bilateral carpal tunnel injury. The trial commissioner further found that the claimant did not meet her burden of proving compensable claims for her low back, cervical, leg, shoulder, or headache injuries. In her motion to submit additional evidence, the claimant seeks to present a medical opinion from her treating physician, Dr. Richard S. Blum, regarding the claims for neck and low back injures which were dismissed by the trial commissioner. In support of the claimant’s motion, the claimant contends that Dr. Blum refused to examine the claimant regarding her claim for neck and low back injuries because of an unpaid balance of approximately $109.00.

Section 31-301-9 of the Agency Regulations provides the permissible reasons for presenting new evidence, which includes the establishment that “there were good reasons for failure to present it in the proceedings before the commissioner.” It is the claimant’s burden to prove that her disability is causally related to her 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). 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). Moreover, a party must establish that the proffered evidence is really new or that it was undiscoverable with due diligence at the time of the original hearings. Murdock v. Squires, 6 Conn. Workers’ Comp. Rev. Op. 64, 66, 550 CRD-7-87 (Dec. 1, 1988).

In the instant case, evidence regarding the disputed claims was presented at the formal hearing. (Findings No. 19-26 and 33-34). During the formal hearing process, the claimant did not advise the trial commissioner that she was unable to obtain a medical examination from her treating physician, Dr. Blum, nor did the claimant raise this issue at the formal hearing in the form of a motion for a continuance until she could obtain such evidence. The claimant has not preserved this issue on the record, but rather is raising it now for the first time on appeal to this Board. We conclude that the claimant has not shown good reason for presenting a medical opinion after the formal hearing had been closed. See Lesczynski, supra.

The claimant cites Canfield v. Consolidated Freightways, 10 Conn. Workers’ Comp. Rev. Op. 59, 1125 CRD-7-90-10 (Feb. 12, 1992) and Fusco v. J.C. Penney Co., Case No. 1952 CRB-4-94-1 (Nov. 1, 1995). The decision in Canfield, supra, is distinguishable as that case involved compelling factual circumstances including the treating physician’s change in his opinion, after the trial commissioner had issued a decision, regarding whether surgery should be performed. The decision in Fusco, supra, is also distinguishable because in that case the claimant alleged that the parties had attempted to subpoena the doctor during the formal hearing process to no avail.

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.