28 Conn. App. 536 | Conn. App. Ct. | 1992
The plaintiff appeals from the January 17, 1991, decision of the workers’ compensation review division, dismissing his appeal from the commissioner’s July 31,1989, denial of a “motion to reopen”
The following facts are pertinent to this appeal. The plaintiff injured his back on February 27,1980, while working at the YMCA of Greenwich. The plaintiff, the YMCA, and its insurer, Royal Insurance Company (Royal), entered a voluntary agreement acknowledging compensability on April 29, 1981. The agreement was approved by the commissioner, and the plaintiff began receiving temporary total disability benefits. On March 17,1980, shortly after the work related accident, the plaintiff suffered a back injury that was not work
As part of Royal’s ongoing investigation of the compensation claim, the plaintiff was examined on April 15, 1983, by Arthur Brovender, an orthopedic surgeon. During the examination, the plaintiff allegedly suffered additional back injury, for which he later brought a malpractice action against Brovender.
On May 14,1984, Royal requested that the plaintiff submit to a second independent medical examination. The plaintiff agreed to undergo the exam, but advised Royal that, pursuant to General Statutes § 31-305, he wanted his treating physician, James D. Prokop, to be present. While arrangements were being made for the exam, Royal stopped paying benefits and filed a “Notice to Compensation Commissioner and Employee of Intention to Discontinue Payments” (form 36). The reason for termination stated on the form 36 was the plaintiff’s refusal to undergo an independent medical examination. The commissioner issued a conditional form 36 approval and suspended benefits on July 9, 1984. The plaintiff has received no further temporary total disability benefits since July 3, 1984. The exam was eventually performed on August 1, 1984.
The plaintiff contested the form 36 on July 13,1984. Thereafter, the commissioner held a series of seven hearings between December 1984 and August 1986, at which the plaintiff submitted medical information from both his treating physician and chiropractor. On December 26,1986, the commissioner issued a finding and dismissal of the plaintiff’s claim. The decision was based on the commissioner’s findings that the plaintiff’s March 1980 and April 1983 injuries were intervening causes of his disability, and that the plaintiff had failed to relate his current condition causally to the compensable event of February 27, 1980.
The plaintiff first claims that the review division improperly found that Royal did not have a duty to disclose to the commissioner the four letters between Royal and Prokop at the time this correspondence was exchanged. He bases this claim on General Statutes (Rev. to 1987) § 31-290b, which was in effect at that time
As we will discuss more fully below, the commissioner reviewed the four letters between Royal and Prokop, and found that, although they refer to the plaintiffs injury, the letters shed no light on the critical issue affecting liability in this case: whether the plaintiffs current condition is causally related to his February 1980 work related accident. The commissioner concluded that none of the letters specifically addressed the issue. While this evidence may have been new, in that the plaintiff did not have these particular letters in hand at the time his case was originally before the commissioner, the letters contained no new information about the plaintiff’s condition; they merely reiterated the medical data already submitted and would not have affected or materially changed the commissioner’s decision. General Statutes § 31-290b addresses only the consequences of a failure to disclose “material” facts. Since the commissioner found that the information in these letters was not “material,” Royal’s failure to disclose them could have no bearing on the outcome of the plaintiff’s case.
The plaintiff’s second and third claims challenge the review division’s affirmance of the commissioner’s determination that the plaintiff was not entitled to an opening of his compensation claim because of the newly discovered correspondence between Royal and Prokop. The commissioner held that this evidence was cumulative and not likely to change the outcome of the case, and the review division affirmed this decision. We agree.
While a workers’ compensation award may, under the appropriate circumstances, be opened, the decision to do so and to modify the award is within the sound discretion of the commissioner. Lucarelli v. Earle C. Dodds, Inc., 121 Conn. 640, 645, 186 A. 641 (1936). The commissioner must “deny the motion [to open] unless further hearing would produce evidence of such char
The test by which the commissioner determines whether to open a claim is “whether the new evidence [is] sufficient to show that an injustice had been done by his award and that a different result would probably be reached on a new hearing.” Meadow v. Winchester Repeating Arms Co., supra, 275-76. As our Supreme Court pointed out in Meadow, “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.” Id., 273. In Besade v. Interstate Security Services, supra, 452, the court specifically held that a claimant seeking to open a workers’ compensation proceeding must establish the following by a preponderance of the evidence: “(1) the proffered evidence is newly discovered, such that it could not have been discovered earlier by the exercise of due diligence; (2) it would be material on a new trial; (3) it is not merely cumulative; and (4) it is likely to produce a different result in a new trial.” Just as the decision whether to grant a new trial
In the present case, the plaintiff did not meet this burden. The commissioner specifically found that the additional evidence that the plaintiff sought to introduce in connection with the motion to open the award did not establish the requisite causal connection between his current condition and the February 1980 work related injury. “This conclusion, that a causal connection was not proven, is essentially one of fact to be determined in view of all of the relevant circumstances, and it must stand unless it is one which could not reasonably or logically be reached on the subordinate facts. It must be tested by the subordinate facts and must stand unless it resulted from an incorrect application of law to them or because of an inference illogically or unreasonably drawn from them.” Metall v. Aluminum Co. of America, supra, 52; Fair v. People’s Savings Bank, 207 Conn. 535, 539, 542 A.2d 1118 (1988).
In this case, the commissioner’s finding was not unreasonable, nor was it unsupported by subordinate facts. Until the time the plaintiff filed the third motion to open his claim, he had failed repeatedly to establish a causal connection between the February 1980 accident and his existing disability. Between 1984 and 1986, a series of seven evidentiary hearings were held during which the plaintiff had ample opportunity to make this necessary connection. “To be entitled to workers’]
Nor was this nexus established in the plaintiff’s first two motions to open the proceedings. The first motion to open was denied because the commissioner concluded that the medical information the plaintiff sought to introduce “was or should have been available at the time of the Formal Hearings, since the hearings revolved about the respondent’s claims, among others, that the claimant’s disability was attributable to incidents other than the compensable accident of February 27, 1980. . . .”
Similarly, the plaintiff’s second motion to open was denied on the basis that the three additional medical reports he sought to introduce “contain[ed] findings which verified] a back injury, however none of them distinguish[ed] the reason for the claimant’s disability as being attributable to his concededly compensable injury of February 27,1980, a subsequent alleged injury on April 15,1983 during the course of an independent medical examination by the insurance company’s physician, or a fall down stairs on March 17, 1980.”
The commissioner’s determination that the proffered letters were cumulative and not material to the causality question, being one of fact, was committed to his discretion. Fair v. People’s Savings Bank, supra, 541 (the question whether an injury arose out of the employment is factual in nature and is committed to the commissioner’s discretion); see also Besade v. Interstate Security Services, supra, 448; Adzima v. UAC/Norden Division, supra, 117-18. “[T]he discretion of a commissioner in a matter of this kind should not be lightly disturbed.” Furlani v. Avery, 112 Conn. 333, 339, 152 A. 158 (1930).
Where the decision of the commissioner was neither arbitrary nor capricious nor an abuse of discretion, the review division was bound by the commissioner’s conclusion. Besade v. Interstate Security Services, supra; Fair v. People’s Savings Bank, supra. The review division’s “hearing of an appeal from the commissioner is not a de novo hearing of the facts. . . . [I]t is obliged
We have reviewed the record and the proffered letters and find nothing to warrant disturbing the commissioner’s factual conclusion or the review division’s affirmance. The August 18 and September 4,1987 letters from Royal to Prokop requesting medical information about the plaintiff do refer briefly to the February 27, 1980 work related injury. But neither these letters nor Prokop’s August 26 and September 9, 1987 replies address or resolve the crucial issue affecting liability: whether the plaintiff’s current condition is causally related to that particular injury.
Finally, the plaintiff urges that he has been denied procedural due process by the commissioner’s failure to hold a hearing on his motion to open.
The plaintiff contends that because the correspondence between Royal and Prokop was “material,” the
Section 31-315 provides for modification of an award “whenever it appears to the compensation commissioner, after notice and hearing thereon, that the incapacity of an injured employee has increased, decreased or ceased, or that the measure of dependence on account of which the compensation is paid has changed, or that changed conditions of fact have arisen which necessitate a change of such agreement or award . . . .” These notice and hearing requirements, however, which are prerequisites to the commissioner’s modification of an award, come into play only after a threshold determination has been made that “conditions of fact have arisen which necessitate a change”; in other words, after the commissioner has determined that the new evidence is “material” and warrants opening the claim. Besade v. Interstate Security Services, supra, 452; Meadow v. Winchester Repeating Arms Co., supra.
In this case, the commissioner, in his discretion, determined that no new conditions of fact had arisen that necessitated a change; the proffered evidence was “merely cumulative.” There was, therefore, no reason to proceed to the “notice and hearing” stage.
The decision is affirmed.
In this opinion the other judges concurred.
The plaintiff moved to “reopen and modify” the compensation proceedings. Unless a decision has been opened previously, however, the appropriate term is a motion to open. See National Iron Bank v. Gelormino, 28 Conn. App. 7, 8 n.1, 609 A.2d 666 (1992). We will therefore treat the motion as a motion to open.
The statute was repealed in 1990. Public Acts 1990, No. 90-244, § 2.
General Statutes § 31-315 provides: “Any award of, or voluntary agreement concerning, compensation made under the provisions of this chapter shall be subject to modification, upon the request of either party and in accordance with the procedure for original determinations, whenever it appears to the compensation commissioner, after notice and hearing thereon, that the incapacity of an injured employee has increased, decreased or ceased, or that the measure of dependence on account of which the compensation is paid has changed, or that changed conditions of fact have arisen which necessitate a change of such agreement or award in order properly to carry out the spirit of this chapter. The commissioner shall also have the same power to open and modify an award as any court of the state has to open and modify a judgment of such court. The compensation commissioner shall retain jurisdiction over claims for compensation, awards and voluntary agreements, for any proper action thereon, during the whole compensation period applicable to the injury in question.”
It is noteworthy that the plaintiff merely alluded to this claim in the proceedings below and in his appellate brief. In response to questioning by this court at oral argument, however, the plaintiff pursued this argument more forcefully.