Opinion
CASE NO. 1389 CRB-1-92-3
DECEMBER 8, 1993
The claimant was represented by Brian W. Prucker, Esq.
The respondent-employer was represented by Kevin D. O'Leary, Esq.
The respondent-insurer was represented by Anne Kelly Zovas, Esq., Pomeranz, Drayton and Stabnick, who appeared at oral argument but did not file a brief.
This Petition for Review from the March 3, 1992 Finding and Dismissal of the Commissioner for the First District was heard January 22, 1993 before a Compensation Review Board panel consisting of Commissioners John Arcudi, Donald H. Doyle, Jr. and Roberta S. D'Oyen.
OPINION
Claimant's appeal contends she met her burden of proof as to compensability of her back injury in the First District proceedings. But, as an appeals tribunal, we do not retry factual issues.
Here, the trier did not credit claimant's version as there were gaps and inconsistencies in the evidence. The conclusions reached from the facts found did not result from incorrect application of law or from inferences illegally or unreasonably drawn from those facts. They therefore must stand. Fair v. People's Savings Bank, 207 Conn. 535 (1988).
All of the evidence in this case pertained to events occurring in 1989. In Paragraph B of his Finding and Dismissal, the commissioner states in pertinent part: "The claimant did not seek any medical attention [for her alleged injury] until October 15, 1990. . . ." (Emphasis added.) Although neither party has brought this obvious scrivener's error to our attention, we correct the year recited to read "1989", as that is the date consistent with the facts adduced before the commissioner.
Claimant also attacks the commissioner's failure to draw an adverse inference from respondents' failure to produce certain witnesses to refute claimant's testimony, basing her claim on Secondino v. New Haven Gas Co., 147 Conn. 672 (1960). The adverse inference authorized by Secondino "merely gives rise to a permissive inference and not to a mandatory presumption." (Internal quotation marks omitted.) Seperack v. Solaz, 17 Conn. App. 684, 691 (1989); Grabowski v. Fruehauf Trailer Corporation, 2 Conn. App. 167, 172 (1984); see also Ross v. Koenig, 129 Conn. 403, 408 (1942). A trier of fact may, but is not required to, draw such and adverse inference. The commissioner's failure to draw such an inference is not a basis for reversal.
We, therefore, affirm the trial commissioner and deny the appeal.
During the pendency of this appeal, the claimant filed a motion to submit additional evidence. That motion failed to identify the evidence which the claimant seeks to offer in support of her claim, its materiality or the reasons why it was not presented in the proceedings before the commissioner. The motion therefore fails to satisfy the requirements of Administrative Regulation Sec. 31-301-9 and must be denied.
Commissioners Donald H. Doyle, Jr. and Roberta S. D'Oyen concur.