Cappelletti v. Christopher Charles d/b/a Charles Construction

The claimant was represented by Howard W. Shelnitz, Esq., Zailckas & Zailckas, 51 Holmes Ave., Waterbury, CT 06710.

The respondent was represented by Lawrence R. Pellett, Esq., Feeley, Nichols, Chase, McDermott & Pellett, P. C., 37 Leavenworth St., P. O. Box 2300, Waterbury, CT 06722-2300.

This Motion to Submit Additional Evidence filed in conjunction with a Petition for Review from the January 20, 1994 Finding and Award of the Commissioner for the Fifth District was heard October 7, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Michael S. Miles.

RULING ON MOTION TO SUBMIT ADDITIONAL EVIDENCE

JESSE M. FRANKL, CHAIRMAN. The respondent employer has moved to submit additional evidence in conjunction with its petition for review from the February 2, 1994 denial of the respondent’s motion to correct. Respondent contends that the Fifth District Commissioner’s Amended Finding and Award of February 2, 1994 should be reconsidered in light of a written statement that was not offered into evidence at the formal hearing. We hereby deny the respondent’s motion to submit additional evidence.

Administrative regulation §31-301-9 provides in pertinent part, “[i]f 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.”

Here, the respondent alleges that the materiality and relevance of the evidence speaks for itself. We disagree. The proffered evidence is an out-of-court statement by a co-worker of the claimant directly contradicting the claimant’s testimony that he suffered an injury. No opportunity was given for the claimant to cross-examine the witness. There is no reason for this Board to credit the co-worker’s written statement with any intrinsic characteristics of reliability, as it would seem to be a textbook example of inadmissible hearsay.

The reason given for the respondent’s failure to present the written statement at the December 16, 1993 formal hearing is that the respondent employer’s principal had to leave the hearing room early in order to pick up his son, whom he would not see again before Christmas. Apparently, the start of the hearing was delayed and the claimant took longer than expected to present his case, thus forcing the employer to leave during the claimant’s testimony. After the employer left, the claimant testified as to a discussion he had had with a co-worker concerning the alleged injury. The employer was in possession of a written statement from the co-worker contradicting that testimony. As the commissioner relied in part on that testimony in his findings, the respondent now seeks to introduce the co-worker’s statement. The employer’s attorney also stated that he did not realize that further hearings would not be scheduled. Although we understand the importance of spending time with one’s children, we cannot classify this excuse as a “good reason” for failing to offer the evidence to the commissioner within the meaning of §31-301-9. The statement was available at the time of the hearing, and the commissioner was therefore not bound to vacate his decision in order to take the omitted evidence into account. See Lindholm v. Moscowitz, 6 Conn. Workers’ Comp. Rev. Op. 7, 527 CRD-7-86 (1988).