Opinion
CASE NO. 1062 CRD-1-90-6
DECEMBER 5, 1991
The claimant did not participate in any of the proceedings.
The respondents were represented by David Kelly, Esq., Montstream May.
The Second Injury Fund was represented by Brewster Blackall, Esq., and Cori-Lynn Webber, Esq., Assistant Attorneys General.
This Petition for Review from the June 20, 1990 Finding and Denial of the Commissioner for the First District was heard April 26, 1991 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Gerald Kolinsky and Andrew Denuzze.
OPINION
Respondents' appeal seeks to overturn the First District's refusal to transfer liability to the Second Injury Fund under Sec. 31-349, C.G.S. Claimant at the age of five had undergone an amputation of the leg below the knee and has worn a prosthesis ever since. In 1977 she sustained a fracture to her right patella due to a non-work related accident. On October 12, 1983 she sustained a work-related back injury causing a 17.5% permanent partial disability of her back. At various times between the patella fracture and the 1983 work injury she underwent psychiatric counseling.
Section 31-349 provides in pertinent part:
. . . If an employee who has previously incurred, by accidental injury, disease or congenital causes, total or partial loss of, or loss of use of, one hand, one arm, one foot or one eye, or who has other permanent physical impairment, incurs a second disability by accident or disease arising out of and in the course of his employment, resulting in a permanent disability caused by both conditions which is materially and substantially greater than that which would have resulted from the second injury alone, he shall receive compensation for the entire amount of disability, including total disability, less any compensation benefits payable or paid with respect to the previous disability, . . .
The trial commissioner found that she was more likely to suffer psychiatric problems when confronted with physical trauma due to the prior leg amputation, patella fracture and back injury. However, he also concluded that her preexisting permanent physical impairment did not so combine with the work related injury to make the resulting disability substantially and materially greater than that which would have occurred with the work injury alone.
As permitted under Administrative Regulation Sec. 31-301-9 respondents have filed a Motion to Submit Additional Evidence. Their motion seeks to have the April 23, 1991 report of Dr. Yannopoulis considered. That report states:
Section 31-301-9. Additional Evidence.
Administrative Regulator, 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 on 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.
Based on reasonable degree of medical probability, I believe it is fair to state that a person with a below-knee amputation such as Ms. Grey is more likely than not to develop low back problems. In addition, I believe it is fair that Ms. Grey's overall disability subsequent to the October 1983 accident was made materially and substantially grater due to her below-knee amputation. Basically, the below-knee amputation brings about not only an asymmetry in the gait, but frequently there is an asymmetry in the leg lengths, both of which result in low back disabilities.
Administrative Regulation Sec. 31-301-9 requires that the evidence proffered be (1) material and (2) "there were good reasons for failure to present it in the proceedings before the commissioner." See e.g., Sgambato v. Simkins Industries, Inc., 8 Conn. Workers Comp. Rev. Op. 131, 825 CRD-3-89-2 (1990); Chapo v. Town of Westport, 3 Conn. Workers' Comp. Rev. Op. 14, 170 CRD-4-82 (1985).
Since Dr. Yannopoulis' April 23, 1991 document was not written until long after the last evidentiary hearing in the First District, i. e. February 22, 1990, respondents argue it satisfies the criteria set down by the Regulation. As a matter of fact, claimant did not begin treating with Dr. Yannopoulis until January 3, 1991, also long after that last hearing date. The Compensation Review Division is very reluctant to grant motions to submit additional evidence at the appellate level. See e.g. Brusca v. Color Tech, Inc., 3 Conn. Workers' Comp. Rev. Op. 81, 50 CRD-7-81 (1986). Where the additional evidence proffered is merely cumulative of other evidence already before a commissioner it should not be admitted, "unless its character or force be such that it would be likely to produce a different result." Meadow v. Winchester Repeating Arms Co., 134 Conn. 269, 274 (1948) citing Gonirenki v. American Steel Wire Co., 106 Conn. 1, 11 (1927). Dr. Yannopoulos's report in the present case may not be sufficient to alter the ultimate conclusion, but it certainly presents that probability; it is material and relevant and it was not evidence discoverable at the time of trial. For those reasons we grant the motion and remand to the First District with instructions to admit the evidence proffered in the motion.
This in no way should be construed to mean that the commissioner might not ultimately reach the same conclusion even after considering the new evidence. However, the respondent deserves the opportunity at least to have the report considered.
We therefore remand to the First District for further proceedings consistent with this opinion.
Commissioners Gerald Kolinsky and Andrew Denuzze concur.