Opinion
CASE NO. 50 CRD-7-81
NOVEMBER 6, 1986
The claimant was represented by Samuel C. Derman, Esq.
The respondents were represented by Kevin J. Maher, Esq.
This Petition for Review from the January 30, 1981 Finding and Dismissal of Claim of the Commissioner for the Seventh District was heard May 27, 1983 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi and Commissioners A. Paul Berte and Frank Verrilli.
FINDING AND DISMISSAL OF CLAIM
The Finding and Dismissal of Claim by the Seventh District Commissioner is affirmed and adopted as the Finding and Dismissal of Claim of this tribunal.
OPINION
Appellant's claimed compensable injury of September 29, 1979 was a fracture of his right heel sustained in a fail from an eight (8) foot ladder while allegedly in the employ of the respondent, Color Tech.
The appeal presents two issues: (1) Whether the respondent-appellee should have been precluded from contesting liability since no disclaimer was filed within the statutory twenty day period; (2) Whether the Commissioner erred in denying claimant's Motion to Submit Additional Evidence.
An October 19, 1979 letter from claimant's attorney to the employer is cited by the appellant as the required Sec. 31-294 written notice triggering the provisions of Sec. 31-297(b). The employer-respondent answered this letter by a disclaimer filed December 3, 1979 long after the twenty day period for filing such a document had transpired. If the claimant appellant's argument is correct that the October 19 letter was a sufficient notice of claim, then the Motion to Preclude must lie as no disclaimer was filed within the statutorily mandated period.
However, this tribunal has ruled, Timothy v. Upjohn Co., 150 CRD-3-82. 2 Conn. Workers' Comp. Rev. Op. 1 (1983) that a notice of claim delivered by ordinary mail will not call into play the default and forfeiture provisions of Sec. 31-297(b). Therefore, the trial Commissioner was correct to deny the Motion to Preclude.
With respect to the second issue claimant seeks to offer evidence dealing with the issue of whether the claimant was an employee of the respondent or Samuel Judice or whether both were joint employers of the claimant. Specifically, claimant seeks the introduction of respondent's Form 43 in which the name of the employer is listed as "Color tech. T.V. and Samuel Jordice" (sic). As already stated the Connecticut Supreme Court has held that a Commissioner will be granted considerable discretion in deciding whether to re-open awards. The court has found the Commissioner's discretion in the consideration of such matters to be analogous to ". . . a court upon a motion for a new trial. . .", Meadow vs. Winchester Repeating Arms Co. 134 Conn. 269, 273 (1945). No less an authority than Chief Justice Maltbie declared in Kearns vs. Torrington, 119 Conn. 522, 529 (1935) that, "A party to a compensation case is not entitled to try his case piecemeal . . ."
As the evidence which the claimant proffers was evidence easily discoverable at the time of the original hearing before the Commissioner, the Commissioner did not err when he denied the claimant's request. Motions to Submit Additional Evidence made in compensation cases are not bound by the same procedural technicalities existing in courts. However, as the Supreme Court of Connecticut stated in Meadow, unless the evidence to be presented is of such nature that it is likely to produce a different result, a party which failed to present such available evidence on a previous occasion should not be permitted a new bite at the apple, Meadow, Supra, 273-5.
The Commissioner is accorded considerable latitude in deciding Motions to Submit Additional Evidence. That broad discretion was not abused when the Commissioner denied the claimant's motion. Further, Administrative Regulation 31-301-9 permits additional testimony or evidence only when the evidence is material and ". . . that there were good reasons for failure to present it in the proceedings before the Commissioner." Chapo vs. Town of Westport 170 CRD-4-82, 3 Conn. Workers' Comp. Rev. Op. 14 (1985). Therefore, the appeal of the claimant must be dismissed and the trial Commissioner's decision affirmed.
Commissioners A. Paul Berte and Frank Verrilli concur.