Opinion
CASE NO. 1081 CRD-7-90-7
JUNE 29, 1992
The claimant was represented by Philip F. Spillane, Esq., Cramer Anderson.
The respondents were represented by Scott W. Williams, Esq., Maher and Williams.
This Petition for Review from the July 11, 1990 Finding and Order of the Commissioner for the Seventh District was argued January 24, 1992 before a Compensation Review Division panel consisting of the then Commission Chairman, John Arcudi and Commissioners Robin Waller and Angelo dos Santos.
OPINION
Claimant's appeal seeks to overturn the Seventh District July 11, 1990 ruling approving respondents' Form 36 and discontinuing benefits. The commissioner found that claimant as of April 26, 1990 was not psychiatrically temporarily totally disabled. In addition to the appeal claimant filed a Motion for Articulation and a Motion for Modification; both motions were denied by the commissioner.
Whether a claimant is totally disabled is a factual determination. See e.g. Sgambato v. Simkins Industries, Inc., 8 Conn. Workers' Comp. Rev. Op. 131, 825 CRD-3-89-2 (1990) citing Damelio v. Anaconda, Inc., 4 Conn. Workers' Comp. Rev. Op. 31, 281 CRD-5-83 (1987), no error, 15 Conn. App. 805 (1988) (per curiam), cert. denied 208 Conn. 814 (1988). That determination dependent upon the weight and credibility accorded the evidence presented and we will not disturb such conclusions unless they are so unreasonable as to justify appellate interference. See Rivera v. Guida's Diary, 167 Conn. 524 (1975) (per curiam), Bailey v. Mitchell, 113 Conn. 721 (1931).
As to the argument on the Motion for Articulation, such motions are granted when the basis of the commissioner's conclusion is unclear. "An articulation may be necessary where the trial court fails completely to state any basis for its decision; or where the basis, although stated, is unclear." (citations omitted). State v. Wilson, 199 Conn. 417, 434 (1986). In paragraph #6 of his factual findings, the commissioner stated:
The respondent-insurer had the claimant examined by a psychiatrist of its choice, Dr. Mark Rubinstein, with offices in both New York City and in Wilton, Connecticut, also board certified, who saw claimant for approximately one (1) hour on June 2, 1989, having reviewed claimant's medical and hospital records beforehand, and found that psychiatrically there was no disabling disorder applicable to claimant, and that "Rather, he presents as an individual who does not follow a reasonable cardiac routine as concerns his physical health, engages in a variety of activities, travels freely and enjoys himself thoroughly in a variety of venues, and who seems to have both dependency and compensation motives being satisfied by his present status as a non-working individual." (Respondents' Exhibit 1 — 6/2/87 report of Dr. Rubenstein).
He then found in paragraph #7 "I [f]ind that as of April 26, 1990 the claimant is not psychiatrically temporarily totally disabled." At the very least paragraphs 6 and 7 set out a basis for the trial commissioner's conclusion and that basis is further elucidated when read together with the other facts found in the commissioner's ruling. Therefore there is no error in the commissioner's denial of articulation.
To support his Motion for Modification, claimant cites newly discovered evidence, i.e. evidence which first became available after the April 26, 1990 formal hearing. His argument based on Sec. 31-315 which permits an award to be re-opened in instances of changed conditions of fact which may support a modification of the decision.
Sec. 31-315. Modification of award or voluntary agreement. Any award of, or voluntary agreement concerning, compensation made under the provisions of this chapter shall be subject to modification, upon the request of either party and in accordance with the procedure for original determinations, whenever it appears to the compensation commissioner, after notice and hearing thereon, that the incapacity of an injured employee has increased, decreased or ceased, or that the measure of dependence on account of which the compensation is paid has changed, or that changed conditions of fact have arisen which necessitate a change of such agreement or award in order properly to carry out the spirit of this chapter. The commissioner shall also have the same power to open and modify an award as any court of the state has to open and modify a judgement [judgment] of such court. The compensation commissioner shall retain jurisdiction over claims compensation, awards and voluntary agreements, for any proper action thereon, during the whole compensation period applicable to the injury in question.
The new evidence which claimant proffers is as follows; (1) the February 27, 1990 and May 9, 1990 reports of Dr. Rene A. Langou, M.D., and (2) the July 11, 1990 report of Dr. Richard T. Kramer. Dr. Langou's reports are an assessment of claimant's cardiac capacity and Dr. Kramer's June 11, 1990 report relies on the reports of Dr. Langou as providing "further evidence that Patrick [the claimant] has been suffering from pain secondary to a heart attack. These factors lead him to feelings of depression and anxiety encompassed by the diagnosis Major Depressive Disorder."
Decisions by triers on opening of awards under Sec. 31-315 or on granting motions for additional evidence are largely discretionary. Brusca v. Color Tech, Inc., 3 Conn. Workers' Comp. Rev. Op. 81, 50 CRD-7-81 (1986). As noted in Brusca, our Supreme Court stated in Kearns v. Torrington, 119 Conn. 522, 529 (1935) "[A] party to a compensation case is not entitled to try his case piecemeal." A motion to re-open should not be granted unless it "would produce evidence of such character and force that it would be likely to cause a different result". Metall v. Aluminum Co. of America, 154 Conn. 48, 53 (1966) citing Meadow v. Winchester Repeating Arms Co., 134 Conn. 269, 274 (1948). Evidence that is merely cumulative does not generally satisfy this criteria. See Kearns, supra at 529. Arguably, the evidence proffered is merely cumulative of other evidence already presented. There is no question that the claimant suffered a myocardial infarction. It is the disabling affect of that injury in relation to total incapacity which was at issue before the trial commissioner. Dr. Kramer appeared before the trial commissioner in the April 26, 1990 formal hearing and testified at greater length to virtually the same facts and theories as reflected in his June 11, 1990 report. See e.g., April 26, 1990 TR at 20-25.
We find no error in the original decision or in the denial of the two motions. We therefore affirm the Seventh District and deny claimant's appeal.
Commissioners Robin Waller and Angelo dos Santos concur.