Mikucka v. St. Lucian's Residence, Inc. ( 2018 )

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BARBARA MIKUCKA v. ST. LUCIAN’S
RESIDENCE, INC., ET AL.
(AC 39673)
Alvord, Sheldon and Keller, Js.
Syllabus
The plaintiff appealed to this court from the decision of the Compensation
Review Board affirming the decision of the Workers’ Compensation
Commissioner determining that she was no longer entitled to temporary
total disability benefits. The plaintiff had sustained certain compensable
injuries in the course and scope of her employment with the defendant
company, S Co., which accepted compensability and paid her temporary
total disability benefits. Thereafter, the defendants filed a form 36, seek-
ing to discontinue those benefits on the ground that the plaintiff had
achieved maximum medical improvement. At an informal hearing, the
commissioner approved the form 36, but the plaintiff objected and
requested a formal hearing to address the form 36 and the discontinua-
tion of benefits. The commissioner subsequently held a formal hearing
on the form 36 to determine whether the plaintiff had achieved maximum
medical improvement. At the hearing, the plaintiff did not provide evi-
dence or argue that she had not reached maximum medical improvement
but, instead, raised a vocational total disability claim pursuant to Oster-
lund v. State (135 Conn. 498) and sought to present evidence in support
of that claim. The commissioner did not permit the plaintiff to present
such evidence but repeatedly invited her to return in three weeks for
a hearing to present evidence that she was vocationally totally disabled.
Following the hearing, the commissioner granted the form 36, determin-
ing that the plaintiff had reached maximum medical improvement and
that she had a work capacity. The plaintiff thereafter appealed to the
board, which affirmed the commissioner’s decision. On the plaintiff’s
appeal to this court, held:
1. The plaintiff could not prevail on her claim that the commissioner violated
her right to due process by not permitting her to present evidence in
support of her Osterlund claim at the formal hearing: the commissioner’s
decision did not prejudicially affect the plaintiff’s substantive rights, as
she inexplicably declined the commissioner’s invitation to return in
three weeks for a hearing to present evidence that she was vocationally
totally disabled, and, thus, she could not demonstrate how she was
harmed by the commissioner’s decision when she could have returned
three weeks later to pursue her Osterlund claim; moreover, the commis-
sioner’s decision to bifurcate the plaintiff’s claim protected the defen-
dants’ due process rights, as the plaintiff did not provided the defendants
with notice of her claim, and if the commissioner had permitted the
plaintiff to present evidence in support thereof, the defendants would
have been subjected to trial by ambuscade, in violation of their cogniza-
ble due process right to notice.
2. The plaintiff’s claim that the commissioner erred in determining that she
was not totally disabled pursuant to Osterlund was not ripe for review;
the plaintiff opted not to pursue this claim despite the commissioner’s
invitation to do so, and, as a result, it was not litigated, and for this
court to review it on appeal would violate the principles of ripeness by
prematurely adjudicating a hypothetical claim.
Argued March 20—officially released July 3, 2018
Procedural History
Appeal from the decision of the Workers’ Compensa-
tion Commissioner for the Sixth District determining
that the plaintiff was no longer entitled to certain dis-
ability benefits, brought to the Compensation Review
Board, which affirmed the commissioner’s decision,
and the plaintiff appealed to this court. Appeal dis-
missed in part; affirmed.
Jennifer B. Levine, with whom was Harvey L.
Levine, for the appellant (plaintiff).
Neil J. Ambrose, for the appellees (defendants).
Opinion
KELLER, J. The plaintiff, Barbara Mikucka, appeals
from the decision of the Compensation Review Board
(board) affirming the decision of the Workers’ Compen-
sation Commissioner for the Sixth District (commis-
sioner) that she was no longer entitled to temporary
total disability benefits after reaching maximum medi-
cal improvement. The plaintiff claims that (1) the com-
missioner, by not allowing her to present evidence to
prove that she did not have a work capacity, violated
her right to due process, and (2) the commissioner
erred in determining that she was not totally disabled.
We affirm the decision of the board and dismiss the
appeal as to the second claim.
The following facts and procedural history are rele-
vant to this appeal. The plaintiff worked for the defen-
dant employer, St. Lucian’s Residence, Inc.,1 as a cook.
The plaintiff sustained compensable bilateral shoulder
injuries in the course and scope of her employment on
May 10, 2011. The defendants accepted compensability
for the plaintiff’s injuries and paid her temporary total
incapacity benefits.
On March 19, 2014, the defendants filed a form 36,2
seeking to discontinue the plaintiff’s temporary total
disability benefits on the basis that she had ‘‘achieved
maximum medical improvement’’ as of February 27,
2014. The defendants attached the opinion of the plain-
tiff’s treating physician, Dr. Robert J. Carangelo, to the
form 36. Carangelo opined that the plaintiff had reached
maximum medical improvement and assigned a 17.5
percent permanent partial disability to her right shoul-
der and a 12.5 percent permanent partial disability to
her left shoulder. At an informal hearing, the commis-
sioner approved the form 36. The plaintiff objected and
requested a formal hearing. On February 10, 2015, the
plaintiff sent all parties notice of a formal hearing to
address the ‘‘Form 36/Discontinuation of Benefits.’’
On March 11, 2015, the commissioner held a formal
hearing on the form 36 to determine whether the plain-
tiff had achieved maximum medical improvement. At
the hearing, the plaintiff neither provided evidence nor
argued that she had not reached maximum medical
improvement. Instead, the plaintiff testified about her
background and her injuries. The following exchange
between the plaintiff and her occurred:
‘‘[The Plaintiff’s Counsel]: What is your native
tongue?
‘‘[The Plaintiff]: Polish. . . .
‘‘[The Plaintiff’s Counsel]: How well do you speak
English? . . .
‘‘[The Plaintiff]: A little bit.
‘‘[The Plaintiff’s Counsel]: How old are you?
‘‘[The Plaintiff]: Fifty-four.
‘‘[The Plaintiff’s Counsel]: ‘‘What country did you
grow up in?
‘‘[The Plaintiff]: In Poland.
‘‘[The Plaintiff’s Counsel]: What is your level of edu-
cation?’’
The defendants’ counsel then objected, but the com-
missioner overruled the objection, stating: ‘‘Hang on.
[These are] preliminary questions I think any lawyer
would ask of any witness. I think you’re afraid [the
plaintiff’s counsel] is leading into an Osterlund [v. State,
135 Conn. 498, 66 A.2d 363 (1949)] claim3 . . . . I
understand that. But right now, I would ask any witness
what [is] your education level, where did you grow up.
These are preliminary questions. I’m certainly going to
let [the plaintiff’s counsel] ask [them]. Go ahead . . . .
Would you repeat the question, please?’’
The plaintiff continued to testify:
‘‘[The Plaintiff’s Counsel]: What is your level of edu-
cation?
‘‘[The Plaintiff]: Elementary school and three years
of vocational high school.
‘‘[The Plaintiff’s Counsel]: Are you married?
‘‘[The Plaintiff]: Yes.
‘‘[The Plaintiff’s Counsel]: Do you have any children?
‘‘[The Plaintiff]: No.
‘‘[The Plaintiff’s Counsel]: How long have you been
married?
‘‘[The Plaintiff]: Twenty-eight years.
‘‘[The Plaintiff’s Counsel]: What country were you
married in?
‘‘[The Plaintiff]: In Poland.
‘‘[The Plaintiff’s Counsel]: And after your vocational
school, what kind of work did you do?
‘‘[The Plaintiff]: I worked on the family farm.
‘‘[The Plaintiff’s Counsel]: And when did you come
to the United States?
‘‘[The Plaintiff]: 1994.
‘‘[The Plaintiff’s Counsel]: Did you come with your
husband?
‘‘[The Plaintiff]: Yes.
‘‘[The Plaintiff’s Counsel]: And where did you reside
once you came to the United States?
‘‘[The Plaintiff]: New Britain.
‘‘[The Plaintiff’s Counsel]: Did you start any sort of
job after moving to the United States.
‘‘[The Plaintiff]: Yes, I clean[ed] offices [for] four
hours a day.
‘‘[The Plaintiff’s Counsel]: How long did you do
that for?
‘‘[The Plaintiff]: For about two, three years.
‘‘[The Plaintiff’s Counsel]: And what did you do
after that?
‘‘[The Plaintiff]: Then I [went] to St. Lucian’s [Resi-
dence, Inc.] to work.
‘‘[The Plaintiff’s Counsel]: And how long did you work
there for?
‘‘[The Plaintiff]: About fifteen, sixteen years.
‘‘[The Plaintiff’s Counsel]: And were you able to com-
municate with your coworkers at St. Lucian’s?
‘‘[The Plaintiff]: Yes, because my . . . immediate
boss . . . and all the workers were Polish.
‘‘[The Plaintiff’s Counsel]: Can you describe your job
at St. Lucian’s?
‘‘[The Plaintiff]: I cook there, I serve to residents,
clean up. Everything.
‘‘[The Plaintiff’s Counsel]: And when did you stop
working there.
‘‘[The Plaintiff]: I stopped working September, 2011.
‘‘[The Plaintiff’s Counsel]: And why did you stop
working there?
‘‘[The Plaintiff]: I had an accident. . . .
‘‘[The Plaintiff’s Counsel]: Can you describe how that
injury occurred? . . .
‘‘[The Plaintiff]: I think I was . . . [baking] some
cakes in the big mixer which was on the level of the
chair, maybe a little bit higher. And I put all the ingredi-
ents in the mixer. But [when] I tried to turn the mixer
on with the special device . . . the mixer switched
[positions] and I [fell] and I started screaming to for
people to help. . . .
‘‘[The Plaintiff’s Counsel]: And can you explain which
body parts you injured as a result of this?
‘‘[The Plaintiff]: Both shoulders.
‘‘[The Plaintiff’s Counsel]: And did you ever have any
surgeries as a result of this injury?
‘‘[The Plaintiff]: Yes, three operations.
‘‘[The Plaintiff’s Counsel]: And can you tell me which
arms, how many times per arm you had a surgery?
‘‘[The Plaintiff]: On the right shoulder, I had it twice
operated and once on the left.
‘‘[The Plaintiff’s Counsel]: And did Dr. Carangelo per-
form surgery on you?
‘‘[The Plaintiff]: Yes. Two operations [were] done by
Dr. Kelley and one operation was done by Dr. Car-
angelo.
‘‘[The Plaintiff’s Counsel]: Which arm was done by
Dr. Carangelo?
‘‘[The Plaintiff]: Second time, my right.
‘‘[The Plaintiff’s Counsel]: And do you currently treat
with Dr. Carangelo?
‘‘[The Plaintiff]: Yes, I visit him.
‘‘[The Plaintiff’s Counsel]: For both arms?
‘‘[The Plaintiff]: Yes. . . .
‘‘[The Plaintiff’s Counsel]: So, after all the surgeries
have been completed, how do you presently feel?
‘‘[The Plaintiff]: I didn’t feel good. Every time I move
my arms a little bit more than I should, the pain starts
to increase, and it feels like a knife getting in my arms.
‘‘[The Plaintiff’s Counsel]: Has this feeling been pre-
sent since after your surgeries? . . .
‘‘[The Plaintiff]: [I]t hurts me all the time. . . .
‘‘[The Plaintiff’s Counsel]: How much activity with
your arms does it take for your pain to worsen?
‘‘[The Plaintiff]: The moment I start moving my arms,
they start getting pain.’’
At this point, the commissioner interjected and the
following colloquy occurred:
‘‘[The Commissioner]: Is there a medical record that
says [the plaintiff is] not at maximum medical
improvement?
‘‘[The Plaintiff’s Counsel]: No, because I’m still
arguing that a form 36 is a discontinuance of her [tempo-
rary total] benefits.
‘‘[The Commissioner]: So, you don’t have a medical
record saying she’s not at maximum medical
improvement?
‘‘[The Plaintiff’s Counsel]: No. . . .
‘‘[The Commissioner]: Well, I told you we’re going to
proceed with the hearing on the form 36, whether or
not it was providently or improvidently granted. I under-
stand you’re claiming that she has an Osterlund claim.
That’s not on the notice. . . . I cannot, based on the
notice that I have, reach a determination whether she’s
vocationally disabled or not. And quite frankly, I don’t
think [the defendants’ counsel] is prepared to litigate
that any way, but it’s not on the notice. We’re here to
determine whether she was . . . at maximum medical
appreciate what you’re telling me. . . . Look, you may
have a very good Osterlund claim, but this right now
is not the place to litigate it. I’m not suggesting you
may or may not do well on that, but what we’re here
to discuss is the form 36. I can certainly put it down
for an Osterlund claim if you want and [the defendants’
counsel] can get [a] vocational expert . . . . I think
my hands are [somewhat] tied here in that the notice
says that—
‘‘[The Plaintiff’s Counsel]: Well, so are mine.
‘‘[The Commissioner]: But the difference is this, I
don’t see the file until today for a trial. I don’t know in
advance what it’s about. Unfortunately, I didn’t handle
the prior hearings, so I’m here on what we’re here for.
You know, [the form 36] was granted a year ago. You
could certainly have pursued a vocational claim a year
ago. Maybe you didn’t have the evidence at that point
or not, I don’t know, or you could have asked to have
that issue advanced. But I think where you and I may
be differing is I think you think that you can just claim
that she’s vocationally disabled as a defense to [the]
form 36.
‘‘[The Plaintiff’s Counsel]: ‘‘That’s what I’m saying.
. . .
‘‘[The Commissioner]: [T]he question I have is
whether or not she’s . . . at maximum medical
improvement. If you want to pursue [the vocational
disability] claim, you’re more than welcome to. You
may have a very good claim. I’m not suggesting you
don’t. What I’m suggesting is, we’re not going to do that
here because the issue is a form 36, and it’s a no deci-
sion. . . . Just like . . . if we were here for something
else, I wouldn’t let [the defendants] add something on
in a surprise to you. . . . [I]f you want to pursue a
vocational disability [claim], I would put this file down
for two or three weeks, and you could come and you
bring the evidence. . . .
‘‘[The Plaintiff’s Counsel]: I will have the Osterlund
claim that you think is appropriate.’’
After reiterating that the plaintiff was welcome to
introduce evidence to suggest that she was not at maxi-
mum medical improvement, the commissioner stated:
‘‘What I’m going to do is put this down for a hearing
in three weeks . . . . The claim you’re going to make at
that time is [that the plaintiff is] vocationally disabled.’’
In his November 10, 2015 decision, the commissioner
determined that the plaintiff had reached maximum
medical improvement and that she had a work capacity.
Accordingly, he granted the form 36, effective as of the
date on which the defendants filed it, March 19, 2014.
On November 23, 2015, the plaintiff, without pursuing
the vocational total disability claim pursuant to Oster-
lund as the commissioner had recommended, appealed
to the board, arguing that ‘‘the trial commissioner could
not rule on a form 36 establishing her attainment of
maximum medical improvement without considering
whether she was still temporarily totally disabled.’’4
In its September 14, 2016 decision affirming the com-
missioner’s decision, the board found in relevant part
the following: ‘‘Essentially, on March 11, 2015, the
[defendants] were prepared to proceed with their argu-
ments in favor of granting the form 36 and the [plaintiff]
had not offered notice to the trial commissioner nor to
the [defendants] that she was pursuing a claim that she
was entitled to total disability based on an Osterlund
theory; nor is it clear she had evidence necessary as of
that date to establish a prima facie case on such a claim.
Under these circumstances the trial commissioner
essentially was obligated to follow the precedent in
Martinez-McCord v. State, No. 5055, CRB-7-06-2 (Febru-
ary 1, 2007) to rule on the issue which was capable of
being addressed at that juncture and bifurcate the issues
and address the balance of the issues at a later proceed-
ing. ‘Bifurcation of the trial proceedings lies solely with
the discretion of the trial court . . . and appellate
review is limited to a determination of whether this
discretion has been abused.’ Swenson v. Sawoska, [18
Conn. App. 597, 601, 559 A.2d 1153 (1989), aff’d, 215
Conn. 148, 575 A.2d 206 (1990)]. [The commissioner]
did not abuse his discretion in this matter.
‘‘Moreover, the [plaintiff’s] argument herein appears
to contravene our unequivocal precedent in Ghazal v.
Cumberland Farms, No. 5397, CRB-8-08-11 (November
17, 2009). If a new issue or new evidence is considered
at a formal hearing, the trial commissioner must offer
the opposing party the ability to prepare on the issue
and challenge the evidence. [The commissioner] offered
the parties this opportunity. The [plaintiff] does not
persuade us that this decision was erroneous in any
respect. Moreover, we believe that had the commis-
sioner ruled on the [plaintiff’s] claim for [General Stat-
utes] § 31-3075 . . . benefits solely on the record
available as of March 11, 2015, the claim may well have
failed. The decision of [the commissioner] to bifurcate
the proceedings comported with the due process stan-
dards delineated in Balkus v. Terry Steam Turbine Co.,
[167 Conn. 170, 177, 355 A.2d 227 (1973)], and protected
the interests of both parties.
‘‘We have long pointed out that the parameters of
[General Statutes] § 31-2986 . . . extend great defer-
ence to trial commissioners as to how to manage pro-
ceedings before them. See Reid v. Speer, No. 5818, CRB-
2-13-1 (January 28, 2014) and Valiante v. Burns Con-
struction Co., No. 5393, CRB-4-08-11 (October 15, 2009).
We find no error in how [the commissioner] handled
an issue which was raised at the [eleventh] hour by
[the plaintiff’s] counsel, and which could not have been
addressed at that point in time.’’ (Footnotes added and
omitted.) This appeal followed.
Before addressing the plaintiff’s claims, we set forth
the standard of review on appeals from the board. ‘‘The
conclusions drawn by [the commissioner] from the
facts found must stand unless they result from an incor-
rect application of the law to the subordinate facts or
from an inference illegally or unreasonably drawn from
them. . . . It is well established that [a]lthough not
dispositive, we accord great weight to the construction
given to the workers’ compensation statutes by the
commissioner and [the] board.’’ (Internal quotation
marks omitted.) Leonetti v. MacDermid, Inc., 310 Conn.
195, 205–206, 76 A.3d 168 (2013).
The following principles regarding a claimant’s eligi-
bility for temporary total disability payments on the
basis of a vocational total disability are relevant to this
appeal. ‘‘Under the Workers’ Compensation Act, Gen-
eral Statutes § 31-275 et seq., [a] worker is entitled to
total disability payments pursuant to . . . § 31-307 only
when his injury results in a total incapacity to work,
which [our Supreme Court has] defined as the inability
of the employee, because of his injuries, to work at his
customary calling or at any other occupation which he
might reasonably follow. . . . Our Supreme Court
stated in Osterlund . . . that [a] finding that an
employee is able to work at some gainful occupation
within his reasonable capacities is not in all cases con-
clusive that he is not totally incapacitated. If, though
he can do such work, his physical condition due to his
injury is such that he cannot in the exercise of reason-
able diligence find an employer who will employ him,
he is just as much totally incapacitated as though he
could not work at all. . . . If, because of the employ-
ee’s injury, his labor becomes unmarketable, in spite
of his diligent efforts to find work, his earning power
is gone and he is totally incapacitated. . . .
‘‘This court previously has stated that [i]n order to
receive total incapacity benefits under § 31-307, a plain-
tiff bears the burden to demonstrate a diminished earn-
ing capacity by showing either that she has made
adequate attempts to secure gainful employment or that
she truly is unemployable. . . . Whether the plaintiff
makes this showing of unemployability by demonstra-
ting that she actively sought employment but could not
secure any, or by demonstrating through a nonphysician
vocational rehabilitation expert or medical testimony
that she is unemployable . . . as long as there is suffi-
cient evidence before the commissioner that the plain-
tiff is unemployable, the plaintiff has met her burden.
. . .
‘‘Whether a claimant is realistically employable
requires an analysis of the effects of the compensable
injury upon the claimant, in combination with his preex-
isting talents, deficiencies, education and intelligence
levels, vocational background, age, and any other fac-
tors which might prove relevant. This is of course the
analysis that commissioners regularly undertake in total
disability claims . . . . A commissioner always must
examine the impact of the compensable injury upon
the particular claimant before him. . . .
‘‘The import of Osterlund . . . is that the commis-
sioner must evaluate not only the physical incapacity
of the plaintiff, but the effect that the physical injury
has on the plaintiff’s employability.’’ (Citations omitted;
emphasis in original; internal quotation marks omitted.)
Bode v. Connecticut Mason Contractors, The Learning
Corridor, 130 Conn. App. 672, 679–81, 25 A.3d 687, cert.
denied, 302 Conn. 942, 29 A.3d 467 (2011).
I
The plaintiff’s first claim is that the commissioner,
by not allowing her to present evidence to prove that
she did not have a work capacity, violated her right to
due process. We disagree.
‘‘Whether a party was deprived of his due process
rights is a question of law to which appellate courts
grant plenary review.’’ McFarline v. Mickens, 177 Conn.
App. 83, 100, 173 A.3d 417 (2017), cert. denied, 327
Conn. 997, 176 A.3d 557 (2018).
‘‘Inquiry into whether particular procedures are con-
stitutionally mandated in a given instance requires
adherence to the principle that due process is flexible
and calls for such procedural protections as the particu-
lar situation demands. . . . There is no per se rule that
an evidentiary hearing is required whenever a liberty
[or property] interest may be affected. Due process
. . . is not a technical conception with a fixed content
unrelated to time, place and circumstances.’’ (Internal
quotation marks omitted.) West Hartford v. Murtha
Cullina, LLP, 85 Conn. App. 15, 24–25, 857 A.2d 354,
cert. denied, 272 Conn. 907, 863 A.2d 700 (2004).
‘‘The fundamental requisite of due process of law is
the opportunity to be heard. . . . The hearing must be
at a meaningful time and in a meaningful manner. . . .
[T]hese principles require that a [party] have . . . an
effective opportunity to defend by confronting any
adverse witnesses and by presenting his own arguments
and evidence orally.’’ (Internal quotation marks omit-
ted.) Pagan v. Carey Wiping Materials Corp., 144 Conn.
App. 413, 418–19, 73 A.3d 784, cert. denied, 310 Conn.
925, 77 A.3d 142 (2013).
‘‘Matters of procedure in compensation cases which
do not affect prejudicially the rights of parties, will not
avail upon appeal. Unless such rights be thus affected,
the form of procedure before the compensation com-
missioner is exclusively for his determination. It is only
when the rights of parties are prejudicially affected that
we will consider on appeal matters of procedure before
the commissioner.’’ (Internal quotation marks omitted.)
Gonirenki v. American Steel & Wire Co., 106 Conn. 1,
8–9, 137 A. 26 (1927).
The plaintiff argues that the commissioner, by not
allowing her to present evidence about her vocational
total disability claim pursuant to Osterlund at the March
11, 2014 hearing, violated her right to due process. The
plaintiff’s due process claim is meritless because the
commissioner’s decision to not allow her to present
evidence in support of her Osterlund claim on that
particular day did not prejudicially affect her substan-
tive rights. The commissioner repeatedly invited the
plaintiff to return for a hearing in three weeks to present
evidence that she was vocationally totally disabled. The
plaintiff inexplicably declined the commissioner’s invi-
tation to do so. Thus, she cannot demonstrate how she
was harmed by the commissioner’s decision to not let
her present evidence regarding a potential vocational
disability at the March 11, 2014 hearing when she could
have returned three weeks later to pursue this claim.7
The plaintiff, primarily relying on O’Connor v. Med-
Center Home Health Care, Inc., 140 Conn. App. 542,
59 A.3d 385, cert. denied, 308 Conn. 942, 66 A.3d 884
(2013), argues that she could have rebutted the form
36 notice seeking to terminate her temporary total dis-
ability benefits on the basis of her reaching maximum
medical improvement by either showing that she was
medically or vocationally totally incapacitated. This is
the correct interpretation of the law. See id., 554, 556
n.8. The plaintiff, however, fails to acknowledge a key
distinction between the present case and O’Connor.
In O’Connor, the plaintiff litigated her vocation based
disability claim over a four session hearing. Id., 545. In
the present case, the commissioner offered the plaintiff
the opportunity to litigate this issue. As previously
stated, the plaintiff elected not to pursue this claim.
The plaintiff cannot, now on appeal, rely on O’Connor
to argue that the commissioner should have undergone
a holistic evaluation of her work capacity when, unlike
the plaintiff in O’Connor, she never presented this claim
despite the commissioner’s invitation to do so.
It is also important to note that the commissioner’s
decision to bifurcate the plaintiff’s claim protected the
defendants’ due process rights. At workers’ compensa-
tion hearings, ‘‘no matter shall be decided unless the
parties have fair notice that it will be presented in suffi-
cient time to prepare themselves upon the issue.’’ Oster-
lund v. State, 129 Conn. 591, 596, 30 A.2d 393 (1943).
‘‘Administrative hearings, including those held before
workers’ compensation commissioners, are informal
and governed without necessarily adhering to the rules
of evidence or procedure. . . . Nonetheless, adminis-
trative hearings must be conducted in a fundamentally
fair manner so as not to violate the rules of due process.
. . . A fundamental principle of due process is that
each party has the right to receive notice of a hearing,
and the opportunity to be heard at a meaningful time
and in a meaningful manner. . . . Due process of law
requires not only that there be due notice of the hearing
but that at the hearing the parties involved have a right
to produce relevant evidence, and an opportunity to
know the facts on which the agency is asked to act, to
cross-examine witnesses and to offer rebuttal evidence.
. . . Further, procedural due process mandates that
the commissioner cannot consider additional evidence
submitted by a party without granting the opponents
. . . the opportunity to examine that evidence and offer
evidence in explanation or rebuttal.’’ (Citations omitted;
internal quotation marks omitted.) Bryan v. Sheraton-
Hartford Hotel, 62 Conn. App. 733, 740, 774 A.2d
1009 (2001).
‘‘One of the fundamental purposes of the commission-
er’s expansive evidentiary reach is to encourage full
disclosure and cooperation among the parties during
the pendency of a claim. . . . [A] commissioner must
always protect the substantial rights of the parties
[which] include the right of the employer . . . indepen-
dently to examine the claimant, to notice his deposition,
and to insist on hearing his personal testimony at a
formal hearing. . . . Protecting such substantial rights
is part and parcel of ensuring that each party in a com-
pensation proceeding receives a fair hearing.’’ (Citation
omitted; internal quotation marks omitted.) Bidoae v.
Hartford Golf Club, 91 Conn. App. 470, 477, 881 A.2d
418, cert. denied, 276 Conn. 921, 888 A.2d 87 (2005),
cert. denied, 547 U.S. 1112, 126 S. Ct. 1916, 164 L. Ed.
2d 665 (2006). ‘‘The matter rests in the legal discretion
of the commissioner, and that requires such notice as
is reasonable under the circumstances.’’ Pallanck v.
Donovan, 109 Conn. 469, 472, 147 A. 14 (1929).
In the present case, the plaintiff did not provide the
defendants notice of her Osterlund claim. In her request
for a formal hearing, she only identified ‘‘Form 36/Dis-
continuation of Benefits’’ as an issue for the formal
hearing. The form 36 filed by the defendants stated that
‘‘maximum medical improvement’’ was the basis for the
discontinuation of temporary total benefits. As a result,
the March 11, 2015 hearing was scheduled to determine
whether the plaintiff had reached maximum medical
improvement. As the plaintiff conceded at the hearing,
she did not have evidence to rebut the defendants’ claim
that she had reached maximum medical improvement.
Instead, she sought to present evidence in support of
an Osterlund claim, without providing fair notice. If the
commissioner had let this occur, the defendants would
have been subjected to trial by ambuscade, a violation
of their cognizable due process right to notice. Thus,
the plaintiff’s due process claim is further undermined
because, as a result of plaintiff’s trial tactics, the com-
missioner was left with no choice but to delay the plain-
tiff from presenting her vocational total disability claim
pursuant to Osterlund in order to protect the defen-
dants’ right to due process.
II
The plaintiff also claims that the commissioner erred
in determining that she was not totally disabled. We
conclude that this claim, as the plaintiff frames it, is
not ripe for review.
‘‘[R]ipeness is a sine qua non of justiciability . . . .’’
(Internal quotation marks omitted.) Milford Power Co.,
LLC v. Alstom Power, Inc., 263 Conn. 616, 624, 822 A.2d
196 (2003). ‘‘Because courts are established to resolve
actual controversies, before a claimed controversy is
entitled to a resolution on the merits it must be justicia-
ble. . . . Justiciability requires (1) that there be an
actual controversy between or among the parties to the
dispute . . . (2) that the interests of the parties be
adverse . . . (3) that the matter in controversy be
capable of being adjudicated by judicial power . . .
and (4) that the determination of the controversy will
result in practical relief to the complainant. . . . As we
have recognized, justiciability comprises several related
doctrines, namely, standing, ripeness, mootness and the
political question doctrine, that implicate a court’s sub-
ject matter jurisdiction and its competency to adjudi-
cate a particular matter. . . . Finally, because an issue
regarding justiciability raises a question of law, our
appellate review is plenary. (Citations omitted; footnote
omitted; internal quotation marks omitted.) Office of
the Governor v. Select Committee of Inquiry, 271 Conn.
540, 568–69, 858 A.2d 709 (2004)
‘‘[T]he rationale behind the ripeness requirement is
to prevent the courts, through avoidance of premature
adjudication, from entangling themselves in abstract
disagreements . . . . Accordingly, in determining
whether a case is ripe, a trial court must be satisfied
that the case before [it] does not present a hypothetical
injury or a claim contingent upon some event that has
not and indeed may never transpire.’’ (Citation omitted;
internal quotation marks omitted.) Chapman Lumber,
Inc. v. Tager, 288 Conn. 69, 86–87, 952 A.2d 1 (2008).
The plaintiff argues that because she was vocationally
totally disabled pursuant to Osterlund, the commis-
sioner improperly found that she has a work capacity.
As previously discussed in this opinion, the plaintiff
opted not to pursue this claim despite the commission-
er’s invitation to do so, and, thus, it was not litigated.
Now, on appeal, we can only speculate what evidence
the plaintiff8 could have presented in support of this
theory and how the defendants could have challenged
it. Moreover, the commissioner never made a finding
with respect to whether the plaintiff was vocationally
totally disabled pursuant to Osterlund, and, if the plain-
tiff’s pattern of reluctance to pursue this claim through
the offered channels continues, a final decision may
never be reached on it. For us to now review this claim,
as the plaintiff characterizes it, on appeal, would violate
the principles of ripeness by prematurely adjudicating
a hypothetical claim. As a result, the plaintiff’s decision
not to return for a hearing only a few weeks later to
present evidence that she was vocationally totally dis-
abled pursuant to Osterlund has left this claim unripe
for review.
The appeal is dismissed in part; the decision of the
Compensation Review Board is affirmed.
In this opinion the other judges concurred.
1
The Workers’ Compensation Trust, the workers’ compensation insurer
for St. Lucian’s Residence, Inc., is also a defendant in this case.
2
‘‘A [f]orm 36 is a notice to the compensation commissioner and the
claimant of the intention of the employer and its insurer to discontinue
compensation payments. The filing of this notice and its approval by the
commissioner are required by statute in order properly to discontinue pay-
ments. General Statutes §§ 31-296, 31-296a, 31-300.’’ (Internal quotation
marks omitted.) Brinson v. Finlay Bros. Printing Co., 77 Conn. App. 319,
320 n.1, 823 A.2d 1223 (2003).
3
‘‘The essence of an Osterlund type argument is that even though the
injured worker can do some theoretical menial work, the injured worker’s
physical or mental condition due to his or her injury or illness is such that
[she] cannot in the exercise of reasonable diligence find employment and,
therefore, is just as much totally disabled as though the injured worker
could not work at all.’’ (Emphasis in original.) 3 A. Sevarino, Connecticut
Workers’ Compensation After Reforms (7th Ed. 2017) § 6.02.5, p. 908.
4
On November 23, 2015, the plaintiff also filed a motion to add additional
evidence to the record, seeking to introduce a vocational capacity evaluation,
and a motion to correct. The commissioner denied the motion to correct
and did not rule on the motion to introduce evidence.
5
General Statutes § 31-307 (a) provides: ‘‘If any injury for which compensa-
tion is provided under the provisions of this chapter results in total incapacity
to work, the injured employee shall be paid a weekly compensation equal
to seventy-five per cent of his average weekly earnings as of the date of
the injury, calculated pursuant to section 31-310, after such earnings have
been reduced by any deduction for federal or state taxes, or both, and for
the federal Insurance Contributions Act made from such employee’s total
wages received during the period of calculation of the employee’s average
weekly wage pursuant to section 31-310; but the compensation shall not be
more than the maximum weekly benefit rate set forth in section 31-309 for
the year in which the injury occurred. No employee entitled to compensation
under this section shall receive less than twenty per cent of the maximum
weekly compensation rate, as provided in section 31-309, provided the mini-
mum payment shall not exceed seventy-five per cent of the employee’s
average weekly wage, as determined under section 31-310, and the compen-
sation shall not continue longer than the period of total incapacity.’’
6
General Statutes §31-298 provides: ‘‘Both parties may appear at any
hearing, either in person or by attorney or other accredited representative,
and no formal pleadings shall be required, beyond any informal notices that
the commission approves. In all cases and hearings under the provisions
of this chapter, the commissioner shall proceed, so far as possible, in accor-
dance with the rules of equity. He shall not be bound by the ordinary common
law or statutory rules of evidence or procedure, but shall make inquiry,
through oral testimony, deposition testimony or written and printed records,
in a manner that is best calculated to ascertain the substantial rights of the
parties and carry out the provisions and intent of this chapter. No fees shall
be charged to either party by the commissioner in connection with any
hearing or other procedure, but the commissioner shall furnish at cost (1)
certified copies of any testimony, award or other matter which may be of
record in his office, and (2) duplicates of audio cassette recordings of
any formal hearings. Witnesses subpoenaed by the commissioner shall be
allowed the fees and traveling expenses that are allowed in civil actions,
to be paid by the party in whose interest the witnesses are subpoenaed.
When liability or extent of disability is contested by formal hearing before
the commissioner, the claimant shall be entitled, if he prevails on final
judgment, to payment for oral testimony or deposition testimony rendered
on his behalf by a competent physician, surgeon or other medical provider,
including the stenographic and videotape recording costs thereof, in connec-
tion with the claim, the commissioner to determine the reasonableness of
such charges.’’
7
The plaintiff argues that the commissioner’s decision not to allow her
to present evidence could have a preclusive effect in later proceedings. She
has failed to support this assertion with any authority. At oral argument
before this court, the defendants conceded that the plaintiff can still pursue
a vocational total disability claim.
8
The record does contain some evidence that the plaintiff presented in
support of her Osterlund claim. This evidence includes her limited testimony
at the March 11, 2015 hearing, her vocational capacity evaluation, and her
functional capacity evaluation. We do not know, however, what else she
might have testified to, what her neighbor, a purported fact witness, might
have testified to, and whether or on what grounds the defendants would
rebut this claim.