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Smith v. Town Dock3/31/2005
pon a physician's testimony as to when he believed the employee's condition had reached maximum medical improvement, without consideration as to the employee's state of mind. The Court remanded the matter with instructions for the trial judge to conduct a hearing and render a decision as to when the employee knew or should have known that his injury had reached an end result.
We do not believe that remand is appropriate in the case before this panel. The employee had ample opportunity to present whatever evidence he felt was necessary to prove the elements of his case at the trial. The trial judge concluded that the employee had failed to present evidence to establish a basic element of his case. We agree that the record reveals that this was a basic failure of proof on a key element which was required in order to proceed with this petition. We do not believe that fairness and equity require that we remand the matter in order to allow the employee a second opportunity to satisfy the necessary elements of proof.
Based upon the foregoing, we deny the employee's appeal and affirm the findings and orders of the trial judge.
In accordance with Rule 2.20 of the Rules of Practice of the Workers' Compensation Court, a final decree, a copy of which is enclosed, shall be entered on
Sowa and Connor, JJ. concur.
Olsson, J.
Sowa, J.
Connor, J.
FINAL DECREE OF THE APPELLATE DIVISION
This cause came on to be heard before the Appellate Division upon the appeal of the petitioner/employee and upon consideration thereof, the appeal is denied and dismissed, and it is:
ORDERED, ADJUDGED, AND DECREED:
The findings of fact and the orders contained in a decree of this Court entered on October 14, 2003 be, and they hereby are, affirmed.
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