CASE NO. 902-CRD-7-89-8Workers’ Compensation Commission
JANUARY 17, 1991
The claimant was represented by Lawrence E. Larson, Esq.
The respondents were represented by Thomas A. Mulligan, Esq., McNamara and Kenny.
This Petition for Review from the July 31, 1989 Ruling denying Claimant’s Motion to Re-Open of the Commissioner for the Eighth District acting for the Seventh District was heard June 29, 1990 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners A. Thomas White, Jr. and James Metro.
OPINION
JOHN ARCUDI, CHAIRMAN.
Claimant again seeks to have the proceedings below opened and the commissioner’s decision reconsidered. We note that the claimant appeared before us earlier Tutsky v. Y. M. C. A., 6 Conn. Workers’ Comp. Rev. Op. 167, 543 CRD-7-87 (1989) aff’d 21 Conn. App. 806 (1990). There the claimant alleged the trial commissioner erred in his December 26, 1986 Finding and Dismissal and in his May 31, 1988 Ruling denying claimant’s Motion to Re-Open. We held there was evidence supporting the commissioner’s conclusion and further that claimant’s appeal some three plus months after the commissioner’s ruling was untimely. We, therefore, affirmed the December 26, 1986 Finding and Dismissal.
In this new appeal, the claimant alleges the commissioner should have granted his July 21, 1989 Motion to Re-Open. In that Motion claimant sought to proffer four documents which he contended were newly discovered and material to the case. Those documents represented correspondence between Vincent Afasano of the Royal Insurance Company and Dr. James D. Prokup, M. D., the claimant’s treating physician. The letters dated August 18, 1987, August 26, 1987, September 4, 1987 and September 9, 1987, contain no statement concerning the causation of the alleged continuing disability and whether it related to the accepted February 27, 1980 compensable injury. We note that paragraph #21 of the December 26, 1986 Finding and Dismissal stated, “None of the medical evidence made available on the claimant’s behalf satisfies the requisite quantum of proof, in that none of said evidence causally relates the claimant’s problem at the time of these hearings to a compensable event based upon reasonable medical probability and accordingly the claimant has failed to sustain his burden of proof and his claim is, therefore, dismissed.”
Section 31-315 C.G.S. provides in pertinent part that an award may be opened or modified “whenever . . . the incapacity of an injured employee has increased, decreased or ceased, or that the measure of dependence . . . has changed, or that changed conditions of fact have arisen which necessitate a change of such . . . 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 . . .”
Claimant argues that the newly discovered evidence represents a changed condition of fact as to claimant’s incapacity; thus, under Sec. 31-315 the December 26, 1986 Finding and Dismissal should be opened so as to allow the commissioner to consider this previously undiscovered evidence. Kearns v. Torrington, 119 Conn. 522, 529 (1935) states:
“A party to a compensation case in not entitled to try his case piecemeal . . . . He must be assumed to be reasonably familiar with his rights and with the requisites of proof necessary to establish his claim; and to permit him intentionally to withhold proof, or to shut his eyes to the reasonably obvious sources of proof open to him, would be fair neither to the commissioner and the court nor to the defendant. Where an issue has been fairly litigated, with proof offered by both parties, a claimant 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. Gonirenki v. American Steel Wire Co., 106 Conn. 1, 11 (1927).”
Applying the Kearns ruling to the instant matter, it is unlikely evidence claimant proffers would change the ultimate result as it is not material to the causation of claimant’s alleged continuing disability.
For the reasons stated we dismiss claimant’s appeal.
Commissioners A. Thomas White and James Metro concur.