CASE NO. 3088 CRB-7-95-6Workers’ Compensation Commission
JUNE 4, 1996
The claimant was represented by Judith Rosenberg, Esq., Wofsey, Rosen, Kweskin Kuriansky, who did not appear at oral argument.
The respondents were represented by Robert Montstream, Esq., Montstream May.
The Fund was represented by Matthew B. Beizer, Assistant Attorney General.
This Order concerning respondents’ Motion to Submit Additional Evidence dated June 13, 1995 was heard March 15, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George Waldron and Robin L. Wilson.
RULING ON MOTION TO SUBMIT ADDITIONAL EVIDENCE
JESSE M. FRANKL, CHAIRMAN.
The respondents have filed a Motion to Submit Additional Evidence dated June 13, 1995, in conjunction with their appeal from the June 6, 1995 Finding and Order of the commissioner acting for the Seventh District. In that decision, the trial commissioner denied the respondents’ request for transfer of the claimant’s back injury to the Second Injury Fund pursuant to § 31-349. Specifically, the trial commissioner found that the claimant’s pre-existing degenerative disc disease did not cause his injury to be materially or substantially greater. In the Motion to Submit Additional Evidence, the respondents seek to submit further medical reports in support of their contention that the claimant’s pre-existing condition materially and substantially contributed to his injury. The respondents contend that such evidence should be allowed on the basis that subsequent to the trial commissioner s Finding and Order, the Supreme Court of Connecticut issued Rowe v. Plastic Design. Inc., 37 Conn. App. 131
(March 7, 1995).
In the instant case, the trial commissioner was presented with conflicting medical opinions regarding whether the claimant’s pre-existing degenerative disc disease made the claimant’s injury materially and substantially greater. The claimant’s treating physician, Dr. Prokop, opined that the claimant’s pre-existing condition did not cause his subsequent injury to be materially and substantially greater. (Finding of Fact No. 5). The medical opinions of Dr. Glass and Dr. Robinson were also considered by the trial commissioner. (Findings No. 1, 3, and 4). Where the medical evidence is conflicting, the trial commissioner as the finder of fact must assess the weight and credibility to be accorded the evidence. Miller v. TVCCA,12 Conn. Workers’ Comp. Rev. Op. 348, 1675 CRB-2-93-3 (July 29, 1994). In the instant case, the commissioner had the discretion to choose to accept the opinion of the claimant’s treating physician.
The admission of additional evidence before the Compensation Review Board is controlled by Administrative Regulation §31-301-9. The respondents seek to add an opinion by Dr. Glass dated January 29, 1996 and an opinion by Dr. Robinson dated February 5, 1996. This evidence was not undiscoverable during the course of the proceedings below, and could have been presented at the formal hearing. See Lange v. J B Excavating Paving,11 Conn. Workers’ Comp. Rev. Op. 42, 1249 CRD-3-91-6 (1993);Lesczynski v. New Britain Memorial Hospital,10 Conn. Workers’ Comp. Rev. Op. 205, 208-09, 1289 CRD-6-91-9 (1992); Murach v.City of New Britain, 10 Conn. Workers’ Comp. Rev. Op. 89, 91-92, 1172 CRD-6-91-2 (1992).
Additionally, the evidence contained in the medical reports now being offered by the respondents is essentially cumulative, and would not alter the trial commissioner’s decision which was based on the weight and credibility which he accorded to the treating physician’s opinion. “Where an issue has been fairly litigated, with proof offered by both parties, a (party) should not be entitled to a further hearing to introduce cumulative evidence, unless its character or force be such that it would be likely to produce a different result.” Gurski v. Concessionair,9 Conn. Workers’ Comp. Rev. Op. 282, 283-84, 1218 CRD-7-91-4 (Dec. 16, 1991), quoting Kearns v. Torrington, 119 Conn. 522, 529
We conclude that the respondents have not satisfied the requirements of Administrative Regulation § 31-301-9. The respondents’ Motion To Submit Additional Evidence is denied.
Commissioners George Waldron and Robin L. Wilson concur.