Opinion
CASE NO. 527 CRD-7-86
AUGUST 18, 1988
The claimant was represented by Daniel A. Benjamin, Esq.
The respondent-employer was not represented at the trial level. On appeal respondent was represented by Daniel Beharry, Esq., Cohen, Channin Phillips and Francis G. Pennarola, Esq., Gager, Henry Narkis.
No appearance was made nor was a brief filed by the Second Injury Fund.
This Petition for Review from the October 21, 1986 Finding and Award as amended October 28, 1986 of the Commissioner for the Seventh District was heard February 26, 1988 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Darius Spain and A. Thomas White, Jr.
OPINION
Respondent appeals the October 21, 1986 Finding and Award of the Commissioner of the Seventh District as corrected October 28, 1986. She also has moved to submit more evidence. Her Motion to Present Additional Evidence recites that there are material facts which if heard by the C.R.D. or the trial Commissioner would establish that the claimant was not a covered employee under the Act.
The claimant made a Motion to Correct, the purpose of which was solely to correct typographical errors. The Commissioner granted the claimant's Motion to Correct October 28, 1986.
As a reason for her failure to offer this new evidence in the earlier proceeding, she relates that she had mistaken the date of the formal hearing before the trial Commissioner and cites Bourget v. Overhead Door Co., 121 Conn. 127 (1936). Bourget permitted further proceedings "When through mistake, inadvertence or misunderstanding of a respondent there has not been a disclosure of facts adequate to a fully informed and just determination of the issues of a claimant's right to compensation and a respondent's liability therefor", Id. at 133. Our administrative regulation Sec. 31-301-9 provides in pertinent part, "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. . . ." (emphasis added). A failure to appear at a formal hearing due to the respondent's alleged failure properly to note the date on her calendar does not constitute a good reason for reopening the evidentiary hearing. There had previously been an informal hearing held April 30, 1986 before the October 20, 1986 formal. Respondent was sent notices of both hearings. The notice for the August formal was sent by certified mail. We therefore deny the Motion to Present Additional Evidence.
Absent new evidence, the trial Commissioner's finding that Claimant was an employee must stand, Fair v. People's Savings Bank, 207 Conn. 535 (1988). With regard to appellant's legal argument that Claimant was a casual employee, "As used in our Act, the casual employment means the occasional or incidental employment, the employment which comes without regularity", Thompson v. Twiss, 90 Conn. 444, 451 (1916). Even if the Commissioner below had permitted the requested new evidence, appellant's October 31, 1986 motion in the District stated, "The Claimant's employment with Respondent was expected to last through the day on which he was injured, a total of 3 days" (Paragraph 3). That would hardly have qualified Claimant as a casual employee. The evidence thus proffered would have shown he was a regularly scheduled employee for at least three days, not an occasional or incidental employee.
The appeal is dismissed and the Seventh District Finding and Award is affirmed pursuant to Sec. 31-301c(b), C.G.S.
Commissioners Darius Spain and A. Thomas White, Jr. concur.