Opinion
CASE NO. 825-CRD-3-89-2
AUGUST 6, 1990
The claimant was represented at the trial level by Edward H. Cantor, Esq. At the appellate level claimant appeared pro se.
The respondents were represented by Kevin J. Maher, Esq., Scott Wilson Williams, Esq., and Colette Mauborgne, Esq.
This Petition for Review from the February 16, 1989 Finding and Award of the Commissioner for the Third District was heard February 23, 1990 before a Compensation Review Division panel consisting of the Commissioner Chairman, John Arcudi, and Commissioners Robin Waller and George Waldron.
OPINION
Appellant contests the Third District conclusion that claimant was not totally disabled after February 25, 1987. The claimant was exposed to chlorine and other substances during the course of his employment. That exposure caused pulmonary medical problems. The trial Commissioner therefore found claimant suffered a compensable injury totally disabling him from work from October 2, 1986 through November 2, 1986 and from November 13, 1986 through February 24, 1987. It was further found that appellant was capable of returning to light employment after February 25, 1987.
Whether total disability exists is a factual determination for the trier. 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). See also, McConnell v. Hewitt Associates, 8 Conn. Workers' Comp. Rev. Op. 32, 764-CRD-7-88-8 (1990). We will not disturb a commissioner's factual findings unless without evidence, contrary to law or based on impermissible or unreasonable factual inferences. Fair v. People's Savings Bank, 207 Conn. 535 (1988). Our review of the tapes of the trial proceedings and the reports and other exhibits in evidence indicate that the medical evidence to support the conclusions reached, we may not substitute our findings for those below. Adzima v. UAC/Norden Division, 177 Conn. 107 (1979); Rivera v. Guida's Dairy, 167 Conn. 524 (1975) (per curiam) (citations omitted).
Claimant also seeks to present additional evidence. He seeks to proffer evidence as to his pulmonary function disability December 8, 1989. He contends that this evidence in conjunction with previous evidence submitted tends to support a claim of total disability between February 25, 1987 and July, 1988.
Our Administrative Regulation Sec. 31-301-9 provides:
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 or, 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.
The last hearing in the instant matter was held November 8, 1988. Therefore a December 8, 1989 medical opinion was unavailable to the claimant. But the additional evidence must also be "material". As we noted in Chapo v. Town of Westport, 3 Conn. Workers' Comp. Rev. Op. 14, 17, 170 CRD-4-82 (1985), "The test of materiality is whether or not it [the evidence] is necessary to the determination of the issue before us. BLACK'S LAW DICTIONARY 1128 [Rev. Ed. 1968]." The evidence proffered is not probative as to a total disability condition from February, 1987 to July, 1988. It is therefore immaterial, and we deny the claimant's Motion to Present Additional Evidence. However, he may wish to present that evidence below as to a disability claim in 1989.
We be therefore affirm the February 16, 1989 Finding and Award of the Third District Commissioner.
Commissioners Robin Waller and George Waldron concur.