57 A.2d 138 | Conn. | 1948
The plaintiff appealed to the Superior Court from a finding and award of the compensation commissioner denying his claim for compensation and filed a separate appeal from the refusal of the commissioner to open the award. In the record it appears that on a stipulation of the parties and by consent of court the appeals were consolidated, and the court affirmed the award of the *271
commissioner and his denial of the motion to open. The plaintiff appealed to this court. In the interest of accuracy and simplicity of procedure, we point out that two appeals were unnecessary. The motion to open the award was filed on the same day as the appeal from the award. Where such a motion is made by a party who intends to appeal from the award if the motion is denied, he may postpone the filing of the appeal until the motion is determined; Galway v. Doody Steel Erecting Co.,
The plaintiff's sole claim before this court is that he was entitled to a new hearing before the commissioner because of newly discovered evidence, for he concedes that the award was based on conflicting evidence. The defendant claims that the evidence offered in support of a new trial was cumulative, was *272 not newly discovered and was not likely to change the result.
At the original hearing the commissioner found that there was a voluntary agreement for compensation for an injury described as "pain lower back" occurring on October 5, 1944; that in the agreement weekly payments were to be made during a period of total incapacity; and that on January 3, 1945, notice of discontinuance of such payments was given stating that they ceased on October 30, 1944, as the plaintiff had then returned to work. The commissioner further found that the plaintiff continued to work for the defendant until August 21, 1945, when he was laid off because of lack of work resulting from the cancellation of war contracts; that he claimed to have been totally disabled since that time; that he was examined or treated by the defendant's physician, Dr. Vestal, by his family physician, Dr. Falsey, and by two other doctors, one of whom was Dr. Poverman; and that Drs. Vestal and Poverman testified at the hearing. The commissioner further found that following the injury the plaintiff reported to Dr. Vestal on six occasions, October 5 to November 2, 1944, inclusive, and did not report again until July 10, 1945, when he complained of pain ill the center of his back from lifting slides. The commissioner recites in his finding that it was the opinion of Dr. Poverman, who first saw the plaintiff on February 14, 1946, that he was totally incapacitated as a result of his injury and required further medical treatment, and that in the opinion of Dr. Vestal the plaintiff had entirely recovered from the effects of the accidental injury but suffered from an enlarged heart, high blood pressure, tremors of the fingers and arthritis of the spine, and that there was no causal connection between the *273
plaintiff's present physical condition and the accidental injury of October 5, 1944. These statements are recitals of evidence and have no proper place in the finding; Mages v. Alfred Brown, Inc.,
On the motion to reopen the finding and award, plaintiff's counsel stated, in substance, that he did not offer new witnesses on the ground that they were not available at the original hearing, that he presumed they were, but that he had not supposed that the tremors of the fingers, the arthritis or the heart condition would be an issue in the original hearing. He then offered the testimony of three doctors for the purpose of proving that the plaintiff did not suffer disability from these conditions.
Generally, the action of a compensation commissioner upon a motion to open his award for the purpose of hearing further evidence is like that of a court upon a motion for a new trial. Wysocki v. Bradley Hubbard Co., supra. In Kearns v. Torrington,
The evidence offered can well be said not to be within the classification of cumulative evidence or such as to charge the plaintiff with laches in failing to produce it at the original hearing. He appeared at the original hearing prepared to show an accidental injury resulting in incapacity. He was met with medical testimony that his incapacity was caused by an arthritic condition. In the motion to reopen he sought to show that he had no arthritis, a fact of a different character. See Link v. State,
This is not, however, wholly determinative of the plaintiff's right to have his case reopened. The question remains whether the new evidence offered was such as probably would have changed the result. and the burden was upon the plaintiff to establish this. Jobbes v. State,
To refute this testimony the plaintiff offered that of four physicians who had not testified at the original hearing. Of these, Dr. Falsey testified that he was the plaintiff's family physician, had attended the plaintiff on six occasions, October 5 to October 28, 1944, inclusive, and had then referred him back to the defendant's hospital; that he again treated the plaintiff on December 10, 1944, for a complaint of pain in the back and later treated him in 1945 and 1946. He said he had never treated him for arthritis. He further testified that the plaintiff told him that he received his injury on October 5, 1944, when he lost his balance while lifting a heavy box and fell, striking his back. He attributed the plaintiff's condition to this injury. Dr. Wheatley, a radiologist, examined an x-ray of the plaintiff's back taken February 14, 1946, and testified that he saw nothing therein that was definitely an arthritic condition that he found a spurring formation on the vertebrae that could exist "without necessarily [involving] arthritic evidence." Dr. Goldberg testified that he examined the plaintiff on September 18, 1946, and found his heart and cardiovascular system within the range of normal for his age. Dr. Marinoff testified that he examined the plaintiff in February, 1946, that he complained of a low backache which he said was caused when he fell and struck his back while lifting a box in October, 1944, and that he, Dr. Marinoff, could find no other cause for the backache. The commissioner had, on the one hand, the positive statement of Dr. Vestal that the plaintiff's trouble was arthritis, which incapacitated him from time to time, and, on the other hand, the more or less negative *278 testimony of the absence of arthritis and that the plaintiff was suffering from an injury.
The commissioner was met with a situation where the evidence on the original hearing was contradictory and that offered on the motion to reopen added little to it. We cannot say that the commissioner's decision was unreasonable or was an abuse of his discretion; Wysocki v. Bradley Hubbard Co.,
There is no error.
In this opinion the other judges concurred.