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CASE NO. 3619 CRB-05-97-05
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JUNE 5, 1998
MATTATUCK MANUFACTURING CO.
FIREMAN’S FUND INSURANCE CO.
The claimant appeared on her own behalf.
The respondent employer and insurer were represented by William C. Brown, Esq., McGann, Bartlett & Brown, 281 Hartford Trnpk., Vernon, CT 06066.
This Petition for Review from the May 14, 1997 Finding and Award of Denial of the Commissioner acting for the Fifth District was heard December 19, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.
JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the May 14, 1997 Finding and Award of Denial of the Commissioner acting for the Fifth District. In that decision, the trial commissioner concluded that the claimant’s symptoms commencing September 23, 1987 were caused by a prior noncompensable automobile accident which had occurred on March 17, 1987. In support of her appeal, the claimant contends that the evidence which she submitted supports a determination that she sustained compensable injuries while working for the employer on September 23, 1987. We find no error on the part of the trial commissioner.
We will first address the respondents’ Motion to Dismiss. The trial commissioner’s decision in this case was issued on May 14, 1997, and the tenth day fell on Saturday, May 24, 1997. As Monday, May 26, 1997 was a holiday, we conclude that the claimant filed a timely appeal on May 27, 1997. Moreover, the claimant, who is representing herself in regard to this appeal, has filed a timely brief. We therefore deny the respondents’ Motion to Dismiss.
Next, we will address the claimant’s Motion to Submit Additional Evidence. Specifically, the claimant seeks to submit medical records from 1987 and 1988. 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 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). Moreover, 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, supra.
We conclude that the claimant has failed to show good reason for presenting medical records 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 thus conclude that the claimant has failed to satisfy the requirements of Conn. Admin. Reg. § 31-301-9.
We now turn to the merits of the claimant’s appeal. Essentially, the claimant is seeking to retry her case, which this board may not do. The claimant contends that she did not have the cervical disc condition until she returned to light duty work on September 23, 1987, and thus argues that the cervical disc condition was caused by the work that she performed on that date rather than by the prior automobile accident. Whether an injury arose out of and in the course of the employment requires a factual determination. McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 117 (1987).
The power and duty of determining the facts rests on the commissioner as the trier of fact. This fact-finding authority “entitles the commissioner to determine the weight of the evidence presented and the credibility of the testimony offered by lay and expert witnesses.” Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995) (citing Tovish v. Gerber Electronics, 32 Conn. App. 595, 599 (1993), appeal dismissed, 229 Conn. 587 (1994)). We will not disturb such determinations unless they are found without evidence, based on impermissible or unreasonable factual inferences or contrary to law. Fair v. People’s Savings Bank, 207 Conn. 535 (1988).
In the instant case, the trial commissioner’s conclusion that the claimant’s cervical disc condition was caused by the March 17, 1987 accident rather than by her employment is fully supported by the record. Specifically, the trial commissioner’s conclusion is supported by the medical opinion of Dr. Sterling, who treated the claimant commencing August 7, 1987. Dr. Sterling opined that the claimant’s work activity on September 23, 1987 did not cause the claimant’s cervical disc condition, and was not a significant factor in the worsening of her symptoms subsequent to September 23, 1987. Dr. Sterling further opined that the claimant’s work activity on September 23, 1987 did not produce any disability, and that the course of claimant’s symptoms and eventual outcome would have been the same regardless of the work activity on September 23, 1987. (Findings No. 22; see also 11/23/93 Depo. at 19-20). Where, as here, the commissioner’s decision is supported by the evidence, we will not disturb it. See Fair, supra.
The trial commissioner’s decision is affirmed.
Commissioners James J. Metro and John A. Mastropietro concur.
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