Opinion
CASE NO. 1218 CRD-7-91-4
DECEMBER 16, 1991
The claimant appeared pro se on appeal. At the trial level the claimant was represented by Stuart Sheiman, Esq.
The respondents were represented by Thomas Cotter, Esq., Cotter, Cotter and Sohon.
This Petition for Review from the April 10, 1991 Finding and Dismissal of the Commissioner for the Seventh District was heard September 27, 1991 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners George Waldron and Angelo dos Santos.
OPINION
Claimant has filed a pro se appeal from the Seventh District's April 10, 1991 dismissal of her claim. She did not file a Motion to Correct or Reasons of Appeal. Nonetheless, as the appeal is pro se, we consider the matter on the merits despite the failure to observe procedural rules.
She argues that she was denied a fair hearing and that the commissioner should have found that her disability arose in and out of the course of her employment with the respondent. She testified that on August 30, 1990 while she was putting away stock in her employ's gift shop on Interstate 95 in Darien she injured her back. The Commissioner found that she had had at least two other back injuries previous to that one alleged in 1990 and also had undergone two back surgeries for the removal of discs. He also found there was no medical evidence submitted relating her 1990 disabilities to any incident with this respondent.
Whether an injury rose in and out of the course of the employment is a factual determination for the commissioner to make. We will not disturb it unless reached contrary to law, without evidence or based on unreasonable or impermissible factual inferences. Fair v. People's Savings Bank, 207 Conn. 535 (1988). Here the trial commissioner's conclusions were based on the weight and credibility accorded to the evidence. An appellate tribunal cannot disturb such conclusions. They are not so unreasonable as to justify appellate interference. Bailey v. Mitchell, 113 Conn. 721 (1931) [.]
Claimant in the CRD proceedings offered the statement of an additional witness, the October 16, 1990 statement of Theresa Virgulak. Administrative Regulation Sec. 31-301-9 and case law applies. She gave no reasons why the proffered evidence was not available and not submitted to the commissioner below. Further the evidence is cumulative of other testimony. See Transcript of January 15, 1991 Formal Hearing at 34. As noted in Kearns v. Torrington, 119 Conn. 522, 529 (1935), "Where an issue has been fairly litigated, with proof offered by both parties, a claimant should be entitled to a further hearing to introduce cumulative evidence, unless its character or force be such that it would be likely to produce a different result." (citation omitted).
Administrative Regulation Sec. 31-301-9 provides:
Sec. 31-301-9. Additional Evidence. 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 compensation review division may act on such motion with or without a hearing, and if justice so requires may order a certified copy of the evidence for the use of the employer, the employee or both, and such certified copy shall be made a part of the record on such appeal.
We therefore affirm the Seventh District's Finding and Dismissal.
Commissioners George Waldron and Angelo dos Santos concur.