Arrico v. Board of Education ( 2022 )

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JAMES ARRICO v. BOARD OF EDUCATION OF
THE CITY OF STAMFORD ET AL.
(AC 44409)
(AC 44488)
Elgo, Moll and Pellegrino, Js.
Syllabus
The defendants, an employer and its third-party administrator appealed to
this court from the decision of the Compensation Review Board, which
reversed in part the Workers’ Compensation Commissioner’s decision
approving a form 36 filed by the defendants. During the course of his
employment as a custodian, the plaintiff sustained a compensable injury
and entered into two voluntary agreements with his employer. The
plaintiff thereafter sustained another injury and two voluntary agree-
ments were approved with respect to that injury. Subsequently, the
defendants filed a form 36 seeking to discontinue or to reduce the
plaintiff’s workers’ compensation benefits, asserting that the plaintiff
had a work capacity and had reached maximum medical improvement.
After formal hearings on the form 36 and on the plaintiff’s entitlement to
total disability benefits pursuant to statute (§ 31-307), the commissioner
approved the form 36. The plaintiff appealed to the board, claiming inter
alia, that the commissioner incorrectly concluded that further medical
care of his compensable injuries would be palliative when that issue
was not noticed for or litigated during the formal hearings. The plaintiff
further claimed that the commissioner applied an improper standard in
determining that his current disability was the result of preexisting,
noncompensable injuries and, thus, not compensable under § 31-307.
The board concluded that substantial evidence supported the commis-
sioner’s decision approving the form 36. The board, however, stated
that it was persuaded that the manner in which the commissioner
addressed this evidence impaired the plaintiff’s right to a fair hearing.
Accordingly, the board vacated the majority of the commissioner’s con-
clusions and remanded the matter for further proceedings. The board
subsequently denied the plaintiff’s motion for articulation or reconsider-
ation in which he argued that a de novo trial before a different commis-
sioner was required on remand, and the plaintiff filed a separate appeal
to this court. Held:
1. The defendants could not prevail on their claims that the board improperly
reversed in part the commissioner’s decision approving their form 36:
a. The defendants’ claim that the board misconstrued the commissioner’s
decision regarding the plaintiff’s claim for § 31-307 benefits and in
remanding the attendant issues for further proceedings was unavailing;
the defendants’ contention that the commissioner found that the plaintiff
had a work capacity was belied by the commissioner’s decision because,
although the commissioner noted that certain physicians had opined
that the plaintiff had a work capacity, the commissioner neither indicated
that she deemed those opinions to be credible nor made a finding that
the plaintiff had a work capacity, the board could not have affirmed the
commissioner’s decision on the basis of a finding that the commissioner
never made, and the board correctly concluded that the commissioner
determined that the plaintiff remained totally disabled as a result of
preexisting, noncompensable injuries.
b. The board did not err in vacating the commissioner’s conclusions as
to the issue of further medical care for the plaintiff’s work-related injuries
and remanding that issue for further proceedings on the ground that the
parties did not receive notice and an opportunity to present argument
and evidence on that issue: the defendants conceded that the question
of whether the plaintiff required further medical care was not at issue
during the formal hearings; moreover, contrary to the defendant’s con-
tention, this court did not construe the commissioner’s determination
regarding further medical care as reinforcing her finding that the plaintiff
had reached maximum medical improvement, rather, this determination
implicated the issue of whether further medical care was reasonable or
necessary, which was not at issue before the commissioner; furthermore,
if the parties agree that the issue of further medical care is not germane
to the proceedings and decline to litigate it, they may alert the commis-
sioner in order to remove the issue from consideration on remand.
2. The plaintiff could not prevail on his claim that the board improperly
denied his motion for articulation or reconsideration in violation of
statute (§ 51-183c): the plaintiff’s claim that the board violated § 51-
183c by denying his request for an order that the issues that the board
remanded be tried de novo before a different commissioner was untena-
ble because § 51-183c applies only to judges, § 51-183c does not apply
in the workers’ compensation forum, and this court declined to extend
the policy underpinning § 51-183c to workers’ compensation proceed-
ings.
Argued November 18, 2021—officially released April 26, 2022
Procedural History
Appeal from the decision of the Workers’ Compensa-
tion Commissioner for the Seventh District finding,
inter alia, that the plaintiff had reached maximum medi-
cal improvement with respect to his claim for certain
workers’ compensation benefits, brought to the Com-
pensation Review Board, which reversed in part the
commissioner’s decision and remanded the case for
further proceedings; thereafter, the board denied the
plaintiff’s motion for articulation or reconsideration,
and the plaintiff and the defendants filed separate
appeals to this court. Affirmed.
Daniel A. Benjamin, for the appellant in Docket No.
AC 44488 and for the appellee in Docket No. AC 44409
(plaintiff).
Scott Wilson Williams, for the appellants in Docket
No. AC 44409 and for the appellees in Docket No. AC
44488 (defendants).
Opinion
MOLL, J. In this workers’ compensation dispute, the
plaintiff, James Arrico, and the defendants, the Board
of Education of the City of Stamford (city) and PMA
Management Corporation of New England,1 each appeal
from separate decisions of the Compensation Review
Board (board).2 In Docket No. AC 44409, the defendants
appeal from the decision of the board reversing in part
the decision of the Workers’ Compensation Commis-
sioner for the Seventh District (commissioner) of the
Workers’ Compensation Commission approving a form
363 that the defendants filed.4 The board vacated the
majority of the commissioner’s conclusions in her deci-
sion approving the form 36 and remanded the matter
to the commissioner for further proceedings on several
issues. On appeal, the defendants claim that the board
(1) misconstrued the commissioner’s decision as
including a finding that the plaintiff was totally disabled
as a result of preexisting, noncompensable injuries, (2)
failed to affirm the commissioner’s decision on the basis
of her purported finding, as supported by sufficient
evidence, that the plaintiff had a work capacity, and
(3) misconstrued the commissioner’s conclusion that
further medical care of the plaintiff’s compensable
injuries was palliative. In Docket No. AC 44488, the
plaintiff appeals from the decision of the board denying
his motion for articulation or reconsideration vis--vis
its ruling on the commissioner’s decision approving the
form 36. On appeal, the plaintiff claims that the board
improperly denied his request for an order that the
matter be remanded to a different commissioner for a
de novo trial. We affirm the decisions of the board.
The following facts, which are not in dispute, and
procedural history are relevant to our resolution of
these appeals. At all relevant times, the plaintiff was
employed by the city as a custodian. On July 21, 2008,
during the course of his employment, the plaintiff sus-
tained a compensable back injury (2008 injury). Two
voluntary agreements5 were approved in 2016, which
established a 16 percent permanent partial disability
rating as to the plaintiff’s back with a September 30,
2016 maximum medical improvement date.6 On Febru-
ary 10, 2017, during the course of his employment, the
plaintiff sustained another compensable back injury
when he fractured his sacrum while lifting a table (2017
injury). Two voluntary agreements were approved in
August, 2017, in relation to the 2017 injury.
On February 28, 2018, the defendants filed a form
36 seeking to discontinue or to reduce the plaintiff’s
workers’ compensation benefits. Relying on a report
dated February 20, 2018, by Stuart Belkin, an orthopedic
surgeon who had examined the plaintiff, the defendants
asserted that the plaintiff had a work capacity and had
reached maximum medical improvement with an addi-
tional 5 percent permanent partial disability rating as
to his back. On March 5, 2018, the plaintiff filed an
objection to the form 36. On September 7, 2018, follow-
ing an informal hearing, the form 36 was approved.
Formal hearings on the form 36 were held on Decem-
ber 12, 2018, and January 29, 2019.7 The commissioner
(1) heard testimony from the plaintiff and his wife and
(2) admitted exhibits, including medical records, into
evidence. During the January 29, 2019 formal hearing,
in response to a request by the plaintiff’s counsel, the
commissioner stated that the notice issued in relation
to the formal hearings listed two disputed issues: (1)
the form 36 filed by the defendants pursuant to General
Statutes § 31-296; and (2) the plaintiff’s entitlement to
total disability benefits pursuant to General Statutes
§ 31-307.8
On August 20, 2019, the commissioner issued a de
novo ruling approving the form 36. As summarized by
the board, the commissioner set forth the following
relevant facts and overview of the evidence. ‘‘[The com-
missioner] noted that the [plaintiff] had sustained two
different back injuries; the first occurred on July 21,
2008, at the L4 level and the second injury on February
10, 2017, when [he] fractured his sacrum lifting a table.
. . . The commissioner also noted the numerous ail-
ments unrelated to his work injury the [plaintiff] suf-
fered from during the period between [the 2008 injury
and the 2017 injury], which included colitis, essential
hypertension, seizures and epilepsy, and spinal steno-
sis. [The commissioner] noted that one of the [plain-
tiff’s] treaters, Vincent R. Carlesi . . . had diagnosed
him in 2008 with a history of chronic low back pain
which radiates into his buttocks and down his left lower
extremity. An MRI in 2008 noted [among other ailments]
‘degenerative disc narrowing at the L4-L5 level . . . .’
The commissioner noted the [plaintiff] chose not to
undergo surgery at that time and opted for pain manage-
ment. . . .
‘‘Carlesi examined the [plaintiff] on March 7, 2017,
and diagnosed him with lumbar radiculopathy and lum-
bar spinal stenosis. Carlesi noted the [plaintiff’s] medi-
cal history included colitis, ulcerative colitis, disc dis-
ease, degenerative joint disease, and that he is currently
an ‘every day smoker.’ . . . Carlesi also noted that the
[plaintiff’s] prior treatment had included the use of a
number of steroids. . . .
‘‘The [defendants] had their expert, [Belkin], examine
the [plaintiff] on February 20, 2018. Belkin found the
[plaintiff] had reached maximum medical improvement
. . . with a 5 percent permanent partial disability of
the lumbar spine, independent of any previous impair-
ment. . . .
‘‘On March 12, 2018, Carlesi sent a letter to [the plain-
tiff’s] counsel stating that the [plaintiff’s] 2017 injury
had ‘exacerbated his underlying pain and that he has
been incapable of returning to work due to the severity
of his pain. He is unable to ambulate without a cane
and he has severe pain [from his] back radiating [into]
both lower extremities. [His] pain worsens with activity,
[and there is a] significant decrease in [his] ability to
lift, bend, and carry anything at this point in time. [He]
is unable to perform most of his activities of daily living
and pretty much rests in a recliner or in a [bed]. He
lacks physical endurance and frequently awakens from
sleep due to pain.’ . . .
‘‘Carlesi deemed the [plaintiff] totally disabled from
all work activities as a result of the progressive degener-
ative disc disease, lumbar spinal stenosis, and sacral
insufficiency fractures. He did agree the [plaintiff] was
at [maximum medical improvement] and assigned an
11 percent permanent partial disability rating of the
lumbar spine. On March 20, 2018, Carlesi further
assessed the [plaintiff] as to his pain level and medica-
tion use, and noted the [plaintiff] was using a cane
and was unable to return to work. Carlesi’s notes also
indicate the [plaintiff] suffered from a number of diges-
tive system ailments.
‘‘A commissioner’s examination was performed by
Michael F. Karnasiewicz . . . on June 28, 2018.9 Karna-
siewicz opined that the [plaintiff] had reached [maxi-
mum medical improvement] from the 2017 injury and
had sustained a 5 percent additional permanent disabil-
ity to his sacral spine from the incident, and that the
[plaintiff] had a sedentary work capacity. The commis-
sioner noted these other opinions from [Karnasiewicz]:
‘‘a. The [plaintiff’s] underlying spinal stenosis was
probably aggravated by the injury of February 10, 2017,
and is causing the radiculopathy the [plaintiff] is experi-
encing. . . .
‘‘b. The [plaintiff’s] need for treatment is multifacto-
rial in that both the [2008 injury] and the [2017 injury]
were ‘substantial factors’ in the production of the [plain-
tiff’s] need for treatment. . . .
‘‘c. Other factors complicating the [plaintiff’s] current
inability to work are ulcerative colitis, acid reflux and
seizure disorder. He also has poor concentration skills
and a slowed thought process. He is an ‘easy’ bruiser
and bleeder and has unspecified difficulty with his
immune system. He uses a cane for ambulation, his
ankle reflexes are absent bilaterally with diminished
sensation bilaterally in both of his feet. . . .
‘‘d. Between the [plaintiff’s] first injury in 2008 and
his second injury in 2017, his diagnostics reveal a steady
worsening of his stenotic condition. In addition, an EMG
study with [another physician] shows multiple level
radiculopathy consistent with spinal stenosis.
‘‘e. [Karnasiewicz] gives the [plaintiff] a sedentary
work capacity and recommends that the [plaintiff] be
reevaluated by [Scott Simon, a neurosurgeon] for
decompressive surgery in the treatment of his bilateral
pain. . . .
‘‘The [plaintiff] continued to treat for his ailments
with Carlesi who [i]n July . . . 2018, examined him
and noted he ‘continues to experience chronic lower
back pain, sacral pain and radicular pain in both lower
extremities associated numbness, tingling and pins and
needles in his feet.’ . . . Carlesi said the [plaintiff] was
a surgical candidate for either a lumbar laminectomy
and decompression surgery to treat the spinal stenosis
or a spinal cord stimulator trial for pain relief. He also
opined that the [plaintiff] was still disabled. . . .
‘‘Belkin was deposed on December 5, 2018, and dis-
cussed his prior February, 2018 examination and his
review of the [the plaintiff’s] medical records. He noted
the [plaintiff] had a bilateral sacral fracture on February
10, 2017, and needed no additional treatment as of Feb-
ruary, 2018. He deemed the [plaintiff] at [maximum
medical improvement] with a 5 percent permanent par-
tial disability rating in addition to any previous rating.
He opined that the [plaintiff] could return to work as
a custodian based solely on his lumbar spine condition
‘but that any current disability at the time [he] examined
[the plaintiff] was as a result of [the plaintiff’s] [preex-
isting] chronic spinal problems,’ which he testified were
‘diffuse degenerative disc disease and spinal stenosis of
the lumbar spine.’ . . . He agreed with Karnasiewicz’
opinions as to the [plaintiff’s] level of permanency and
having a sedentary work capacity. He was more equivo-
cal on [an opinion by Simon] that the [plaintiff] was
disabled from work, deeming it ‘possible.’ Belkin opined
the [plaintiff’s] comorbidities are not germane to his
orthopedic examination and he did not unequivocally
agree that the [plaintiff’s] comorbidities and medication
regime would necessarily preclude any form of work
status for the [plaintiff]. He did not believe the [plain-
tiff’s] spinal stenosis had necessarily worsened and
opined the [plaintiff’s] sacral fractures should have
healed.’’10 (Citations omitted; footnote added; footnote
omitted.)
On the basis of the record, the commissioner con-
cluded that the plaintiff had ‘‘reached maximum medi-
cal improvement on his low back with an additional 5
percent due on his sacrum. The combined permanent
partial disability rating from the 2008 [injury] and the
2017 [injury] is 21 percent to the low back.’’
The commissioner made the following additional con-
clusions. The commissioner rejected (1) Carlesi’s opin-
ion that the 2017 injury ‘‘had aggravated the plaintiff’s
underlying pain’’ and (2) Karnasiewicz’ opinion that
the plaintiff’s ‘‘underlying spinal stenosis was ‘probably
aggravated’ by the [2017 injury] and is causing the radi-
culopathy the [plaintiff] is experiencing and the need
for treatment of [the] same.’’ The commissioner rejected
those opinions because (1) in 2008, Carlesi had reported
that the plaintiff had a ‘‘ ‘history of chronic back pain’ ’’
that radiated down his body ‘‘ ‘with associated numb-
ness and weakness,’ ’’ which ‘‘ ‘precluded him from work-
ing and performing his daily activities,’ ’’ (2) a 2008 MRI
revealed, among other ailments suffered by the plaintiff,
‘‘ ‘degenerative disc narrowing,’ ’’ (3) the plaintiff was a
daily smoker, and (4) the plaintiff had declined to
undergo surgery in 2008, opting to pursue conservative
care and accepting a 16 percent permanent partial dis-
ability rating as to his back.
With regard to the plaintiff’s decision to reject sur-
gery, the commissioner stated that, ‘‘[f]or eleven years,
the [plaintiff] has turned down the surgical option to
remediate his back condition, despite recommenda-
tions from his treating physicians to do this at an earlier
point in time. Now, due to the passage of time and the
[plaintiff’s] various non-work related [comorbidities],
some of which are progressively degenerative in nature
. . . he is no longer a surgical candidate. The [plaintiff]
is entitled to turn down recommended surgery and opt
for conservative or palliative care, however, he must
do so with the understanding that the [Workers’ Com-
pensation Act, General Statutes § 31-275 et seq.] was not
designed to cause the [defendants] to pay for palliative
treatment in perpetuity, nor does it require the [defen-
dants] to pay indemnity benefits while the [plaintiff]
refuses reasonable and medically necessary surgery to
his back and/or while other, non-work related condi-
tions are interfering with the [plaintiff’s] ability to par-
ticipate in curative medical treatment for his work-
related low back injuries.’’
The commissioner then concluded that Belkin, Kar-
nasiewicz, and Carlesi all had determined that the plain-
tiff had reached maximum medical improvement with
respect to his back, which ‘‘signal[ed] to the parties and
to the commissioner that there is no further ‘curative’
treatment available to the [plaintiff].’’ The commis-
sioner further concluded that the plaintiff had been
out of work for a ‘‘protracted period of time’’ and that
‘‘[t]herapy designed to keep the employee at work or
to return him to work is curative,’’ whereas ‘‘[t]herapy
that does not return a claimant to work may be deemed
palliative and therefore not reasonable and necessary
medical care.’’ (Internal quotation marks omitted.)
Finally, the commissioner concluded that, ‘‘[t]o the
extent that the [plaintiff] remains totally disabled, it is
due to the various non-work related [comorbidities]
and the treatment for [the] same. Further treatment on
the [plaintiff’s] [work related] injuries to the low back
is palliative.’’
On September 3, 2019, the plaintiff filed a motion to
correct and a motion for reconsideration, both of which
the commissioner denied. On September 10, 2019, the
plaintiff filed a petition for review with the board.
On November 17, 2020, the board reversed in part
the commissioner’s decision approving the form 36. At
the outset of its decision, the board concluded that
there was substantial evidence supporting the commis-
sioner’s decision approving the form 36. Nevertheless,
the board was ‘‘persuaded by the [plaintiff] . . . that
the manner in which the commissioner addressed this
evidence was sufficiently unorthodox as to impair his
right to a fair hearing based on established standards
in this forum.’’ Specifically, the plaintiff claimed, inter
alia, that the commissioner improperly (1) concluded
that further medical care of his compensable injuries
would be palliative when that issue was neither noticed
for, nor litigated, during the formal hearings and (2)
failed to apply the proper standard in determining that
his current disability was the result of preexisting, non-
compensable injuries and, thus, not compensable under
§ 31-307.
The board first addressed the commissioner’s conclu-
sions that further medical care of the plaintiff’s compen-
sable injuries was palliative, which the board construed
as implicating the question of whether further medical
care was reasonable or necessary pursuant to General
Statutes § 31-294d.11 The board concluded that further
medical care ‘‘was not an issue noticed for consider-
ation at the formal hearing[s]. [The board does] not
find the commissioner clearly presented this issue as
a matter for consideration when she commenced the
formal hearing[s].’’ Observing that the question of
whether medical care satisfies the ‘‘reasonable or neces-
sary’’ standard set forth in § 31-294d is a question of
fact, the board concluded that due process required
the parties to be afforded an opportunity to present
argument and evidence on that issue. Additionally, the
board rejected an argument by the defendants that the
commissioner’s finding that the plaintiff had reached
maximum medical improvement vis--vis the 2017 injury
necessitated a determination that further medical care
was palliative, particularly as the defendants had cited
no authority to support their argument. Accordingly,
the board vacated the commissioner’s conclusions as
to further medical care12 and remanded the issue of
‘‘whether further medical care for the [plaintiff] is rea-
sonable or necessary’’ to the commissioner for further
proceedings.
The board next considered whether the commis-
sioner had applied the proper standard in determining
that the plaintiff’s disability was the consequence of
preexisting, noncompensable injuries and, therefore,
not compensable under § 31-307. First, the board con-
cluded that the commissioner’s ruling was predicated
on ‘‘conjecture, speculation or surmise.’’ (Internal quo-
tation marks omitted.) The board observed that, in
rejecting Karnasiewicz’ opinion that the 2017 injury had
‘‘probably aggravated’’ the plaintiff’s underlying spinal
stenosis and was causing his radiculopathy, the com-
missioner relied on Carlesi’s opinion, rendered in 2008,
that the plaintiff was suffering from chronic back ail-
ments. Although the board remarked that it had ‘‘fre-
quently affirmed a trial commissioner who found a treat-
ing physician or a respondent’s examiner more
persuasive than a commissioner’s examiner,’’ it stated
that the commissioners in such cases had (1) relied
on medical examinations contemporaneous with the
compensable injuries at issue and (2) explained in detail
why other medical examiners were more credible or
persuasive than the commissioner’s examiner. In con-
trast, the board noted, the commissioner did not assess
the relative credibility or persuasiveness of the medical
examiners in the present case. The board continued:
‘‘Moreover, the rationale for [the commissioner’s] deci-
sion is based on an old examination [by Carlesi], the
failure of the [plaintiff] to seek surgery, and the lapse
of time . . . . Had the commissioner cited a medical
witness who stated this point, [the board] would find
the ruling sustainable. The ruling does not cite such
evidence, however.’’13 (Citation omitted.)
The board then explained that, in situations where a
claimant suffers from both a compensable and a non-
compensable injury, the claimant must demonstrate
that his or her compensable injury ‘‘was a substantial
factor in the claimed disability.’’ (Internal quotation
marks omitted.) The board cited decisions in which
trial commissioners had resolved similar claims, stating
that ‘‘[i]n all of those cases [the board] could ascertain
the manner in which the trial commissioners reached
their conclusions, which was by weighing the probative
value of conflicting contemporaneous opinions.’’ The
board concluded that the commissioner improperly
failed to identify ‘‘the specific expert witness or wit-
nesses who offered recent testimony supportive of the
result in this case. In the absence of the commissioner
stating this specifically in the text of the ruling, [the
board] cannot, as an appellate panel, sustain the conclu-
sion[s] reached [in the commissioner’s decision].’’
Accordingly, the board vacated the commissioner’s con-
clusions concerning the plaintiff’s claim for § 31-307
benefits14 and remanded ‘‘the issues of whether the
[plaintiff] is totally disabled [and] whether the [plain-
tiff’s] disability was caused by a compensable injury’’
to the commissioner for further proceedings. The board
affirmed the commissioner’s decision only insofar as
she concluded that the plaintiff had reached maximum
medical improvement with a combined 21 percent per-
manent partial disability rating as to his back, which
the parties did not contest. Thereafter, the defendants
appealed from the decision of the board (AC 44409).
On November 25, 2020, the plaintiff filed a motion for
articulation or reconsideration. The plaintiff asserted
that the board had concluded that the facts found by
the commissioner were incorrect and lacked a sufficient
evidentiary foundation, such that a de novo trial was
required before a different commissioner on remand.
Accordingly, the plaintiff requested that the board issue
an order to that effect. On December 2, 2020, the defen-
dants filed a response arguing that any additional formal
hearings on remand should be held by the commis-
sioner.
On December 23, 2020, the board denied the plaintiff’s
motion for articulation or reconsideration. In doing so,
the board stated that, in its November 17, 2020 decision,
it had ‘‘remand[ed] the [commissioner’s decision] back
to the . . . commissioner for findings consistent with
the appropriate standard of causation . . . .’’ The
board then reviewed this court’s opinion in Fantasia
v. Milford Fastening Systems, 86 Conn. App. 270, 860
A.2d 779 (2004), cert. denied, 272 Conn. 919, 866 A.2d
1286 (2005), which the plaintiff had cited in support of
his motion, and deemed it to be distinguishable. In
addition, the board noted that, following Fantasia, it
had ‘‘often ordered remands of decisions back to the
original trial commissioners with direction to rule based
on the appropriate legal standards. . . . [The board]
find[s] no compelling reason not to do so likewise in
this case.’’ (Citation omitted.)
The board also cited the precept of administrative
economy in denying the plaintiff’s motion, stating that
it had ‘‘vacated various conclusions from the commis-
sioner’s [decision approving the form 36] as either not
having been litigated between the parties or having been
based on the application of an erroneous standard of
law. The issues which were litigated have already
involved the submission of a great deal of testimony
and documentary evidence and [the board] believe[s]
that a de novo hearing would result in substantial delay
and redundancy. Permitting the . . . commissioner
familiar with the record to rule on this record serves
the purpose of administrative economy.’’ Thereafter,
the plaintiff appealed from the board’s denial of his
motion (AC 44488).
I
AC 44409
In AC 44409, the defendants appeal from the board’s
November 17, 2020 decision reversing in part the com-
missioner’s decision approving their form 36 and
remanding the matter for further proceedings as to the
issues of total disability and further medical care. The
defendants raise three distinct claims on appeal, two
of which are interrelated. First, the defendants assert
that the board (1) misconstrued the commissioner’s
decision to include a finding that the plaintiff was totally
disabled as a result of preexisting, noncompensable
injuries and (2) failed to affirm the commissioner’s deci-
sion on the basis of her purported finding that the plain-
tiff had a work capacity, which the defendants maintain
was supported by sufficient evidence. Second, the defen-
dants contend that the board misconstrued the commis-
sioner’s conclusion that further medical care of the
plaintiff’s compensable injuries was palliative. These
claims are unavailing.
‘‘The standard of review in workers’ compensation
appeals is well established. When the decision of a
commissioner is appealed to the board, the board is
obligated to hear the appeal on the record of the hearing
before the commissioner and not to retry the facts. . . .
The commissioner has the power and duty, as the trier
of fact, to determine the facts. . . . The conclusions
drawn by [the commissioner] from the facts found must
stand unless they result from an incorrect application
of the law to the subordinate facts or from an inference
illegally or unreasonably drawn from them. . . .
‘‘[O]n review of the commissioner’s findings, the
[board] does not retry the facts nor hear evidence. It
considers no evidence other than that certified to it by
the commissioner, and then for the limited purpose
of determining whether or not the finding should be
corrected, or whether there was any evidence to sup-
port in law the conclusions reached. It cannot review
the conclusions of the commissioner when these depend
upon the weight of the evidence and the credibility of
witnesses. . . . Our scope of review of the actions of
the board is similarly limited. . . . The role of this
court is to determine whether the . . . [board’s] deci-
sion results from an incorrect application of the law to
the subordinate facts or from an inference illegally or
unreasonably drawn from them.’’ (Citation omitted;
internal quotation marks omitted.) Ayna v. Graebel/CT
Movers, Inc., 133 Conn. App. 65, 69–70, 33 A.3d 832,
cert. denied, 304 Conn. 905, 38 A.3d 1201 (2012).
A
The defendants first claim that the board, in vacating
the commissioner’s conclusions made in connection
with her rejection of the plaintiff’s claim for § 31-307
benefits and in remanding the total disability issues for
further proceedings, misconstrued the commissioner’s
decision vis--vis her conclusion that, ‘‘[t]o the extent
that the [plaintiff] remains totally disabled, it is due to
the various non-work related [comorbidities] and the
treatment for [the] same.’’ The defendants assert that
the commissioner found that the plaintiff had a work
capacity and that there was sufficient evidence in the
record supporting that purported finding, such that the
board should have affirmed the commissioner’s deci-
sion as to the same. The defendants further maintain
that the commissioner did not find that the plaintiff
was totally disabled because of his non-work related
comorbidities, instead positing that the commissioner’s
statements regarding the plaintiff’s disability consti-
tuted ‘‘extraneous language, or dicta . . . .’’ We dis-
agree.
First, the defendants’ contention that the commis-
sioner found that the plaintiff had a work capacity is
belied by the commissioner’s decision. Although the
commissioner, in summarizing the evidence in the
record, noted that certain physicians had opined that
the plaintiff had a work capacity, the commissioner
neither indicated that she deemed those opinions to be
credible nor made a finding, express or implied, that
the plaintiff had a work capacity. The board could not
have affirmed the commissioner’s decision on the basis
of a finding that the commissioner never made. Thus,
whether the record contained sufficient evidence to
support a finding that the plaintiff had a work capacity
is of no moment.
Second, we agree with the board that the commis-
sioner made a determination that the plaintiff remained
totally disabled as a result of preexisting, noncompensa-
ble injuries. This determination was neither extraneous
nor stated in dicta as surmised by the defendants. One
of the issues before the commissioner was whether the
plaintiff was entitled to benefits pursuant to § 31-307.
‘‘[A] worker is entitled to total disability payments pur-
suant 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.’’
(Internal quotation marks omitted.) Bode v. Connecti-
cut Mason Contractors, The Learning Corridor, 130
Conn. App. 672, 679–80, 25 A.3d 687, cert. denied, 302
Conn. 942, 29 A.3d 467 (2011). Whether the plaintiff
was totally disabled and, if so, the cause of his total
disability, were questions for the commissioner to
resolve. The commissioner addressed these questions
in her decision, albeit improperly, as determined by
the board.
In sum, we reject the defendants’ claim that the board
committed error in vacating the commissioner’s conclu-
sions regarding the plaintiff’s claim for § 31-307 benefits
and in remanding the attendant issues for further pro-
ceedings.
B
The defendants next claim that the board, in vacating
the commissioner’s conclusions regarding further medi-
cal care and in remanding that issue for further proceed-
ings, misconstrued the commissioner’s determination
that ‘‘[f]urther treatment on the [plaintiff’s] [work
related] injuries to [his] low back is palliative.’’ The
defendants concede that the question of whether the
plaintiff required further medical care was not at issue
during the formal hearings; however, they contend that
the commissioner’s determination regarding further
medical care was made to support her finding that the
plaintiff had reached maximum medical improvement
as to the 2017 injury. In addition, the defendants main-
tain that, even if the board properly vacated the commis-
sioner’s conclusions as to further medical care, the
board improperly remanded that issue for further pro-
ceedings. We are not persuaded.
General Statutes § 31-294d (a) (1) provides in relevant
part that ‘‘[t]he employer, as soon as the employer has
knowledge of an injury, shall provide a competent phy-
sician, surgeon or advanced practice registered nurse
to attend the injured employee and, in addition, shall
furnish any medical and surgical aid or hospital and
nursing service, including medical rehabilitation ser-
vices and prescription drugs, as the physician, or
advanced practice registered nurse surgeon deems rea-
sonable or necessary. . . .’’ (Emphasis added.) ‘‘ ‘Rea-
sonable or necessary medical care is that which is cura-
tive or remedial. Curative or remedial care is that which
seeks to repair the damage to health caused by the job
even if not enough health is restored to enable the
employee to return to work. Any therapy designed to
keep the employee at work or to return him to work
is curative. Similarly, any therapy designed to eliminate
pain so that the employee can work is curative. Finally,
any therapy which is life prolonging is curative.’ Bowen
v. Stanadyne, Inc., No. 232, CRB-1-83 (June 19, 1984).’’
Sellers v. Sellers Garage, Inc., 155 Conn. App. 635, 641
n.4, 110 A.3d 521 (2015). In contrast, ‘‘therapy that does
not return a claimant to work may be deemed palliative
and therefore not reasonable [or] necessary medical
care.’’ Jodlowski v. Stanley Works, No. 5609, CRB 6-10-
11 (November 16, 2011).
Mindful of this context, we turn to the defendants’
contention that the commissioner’s further medical
care determination merely supported her finding that
the plaintiff had reached maximum medical improve-
ment as to the 2017 injury. This argument is unavailing.
The defendants do not cite any authority, and we are
aware of none, underpinning the proposition that fur-
ther medical care of a compensable injury with respect
to which a claimant has reached maximum medical
improvement is palliative per se. In fact, the board has
issued decisions that undermine that notion. See, e.g.,
DeFelippi v. Wal-Mart Stores, Inc., No. 4349, CRB 5-01-
1 (January 15, 2002) (rejecting argument that claimant’s
treatment was unnecessary and palliative after claimant
had reached maximum medical improvement); Flyer v.
Barrieau Moving & Storage, No. 3985, CRB 1-99-3
(April 18, 2000) (treatment was reasonable or necessary
following claimant reaching maximum medical
improvement); see also Liebel v. Stratford, No. 5070,
CRB 4-06-3 (May 17, 2007) (‘‘[o]nce a claimant has
reached maximum medical improvement, there is often
a valid ground to ask whether a physician’s course
of treatment is ‘reasonable [or] necessary’ within the
meaning of § 31-294d’’ (emphasis added)). Thus, we do
not construe the commissioner’s further medical care
determination as reinforcing her finding that the plain-
tiff had reached maximum medical improvement;
rather, it implicated the issue of whether further medi-
cal care was reasonable or necessary pursuant to § 31-
294d, which, as the board concluded and as the defen-
dants concede, was not at issue before the commis-
sioner. Accordingly, we conclude that the board did
not err in vacating the commissioner’s conclusions as
to the issue of further medical care on the ground that
the parties did not receive notice and an opportunity
to present argument and evidence on that issue.
The defendants further assert that, even if vacating
the commissioner’s conclusions as to further medical
care was proper, the board should not have remanded
the issue for further proceedings because (1) further
medical care is not a current issue between the parties,
(2) no request for medical treatment has been denied,
and (3) the plaintiff is not precluded from seeking autho-
rization for further medical care. Under the circum-
stances of this case, we perceive no harm in the remand
order. Should both parties agree that the issue of further
medical care is not germane to the proceedings and
decline to litigate it, they may alert the commissioner
of the same in order to remove the issue from consider-
ation on remand.15
In sum, we reject the defendants’ claim that the board
committed error in vacating the commissioner’s conclu-
sions regarding the issue of further medical care and
in remanding that issue for further proceedings.
II
AC 44488
In AC 44488, the plaintiff appeals from the board’s
denial of his motion for articulation or reconsideration.
The plaintiff contends that the board violated General
Statutes § 51-183c in denying his request for an order
that the issues remanded by the board in its November
17, 2020 decision be tried de novo before a different
commissioner. We disagree.
‘‘Whether a case should be remanded, and the scope
of that remand, presents questions to be determined by
the . . . board in the exercise of its sound discretion.’’
(Internal quotation marks omitted.) Fantasia v. Milford
Fastening Systems, supra, 86 Conn. App. 278. In the
present case, however, our resolution of the plaintiff’s
claim requires us to interpret § 51-183c, which invokes
our plenary review. Chase Home Finance, LLC v. Scrog-
gin, 194 Conn. App. 843, 851, 222 A.3d 1025 (2019).
‘‘The principles that govern statutory construction are
well established. When construing a statute, [o]ur fun-
damental objective is to ascertain and give effect to the
apparent intent of the legislature. . . . In other words,
we seek to determine, in a reasoned manner, the mean-
ing of the statutory language as applied to the facts
of [the] case, including the question of whether the
language actually does apply. . . . In seeking to deter-
mine that meaning, General Statutes § 1-2z directs us
first to consider the text of the statute itself and its
relationship to other statutes. If, after examining such
text and considering such relationship, the meaning of
such text is plain and unambiguous and does not yield
absurd or unworkable results, extratextual evidence of
the meaning of the statute shall not be considered. . . .
When a statute is not plain and unambiguous, we also
look for interpretive guidance to the legislative history
and circumstances surrounding its enactment, to the
legislative policy it was designed to implement, and to
its relationship to existing legislation and [common-
law] principles governing the same general subject mat-
ter . . . .’’ (Internal quotation marks omitted.) Id., 851–
52.
We first turn to the text of § 51-183c, which appears
in chapter 882 of the General Statutes governing the
Superior Court and provides: ‘‘No judge of any court
who tried a case without a jury in which a new trial is
granted, or in which the judgment is reversed by the
Supreme Court, may again try the case. No judge of
any court who presided over any jury trial, either in a
civil or criminal case, in which a new trial is granted,
may again preside at the trial of the case.’’
In light of the plain language of § 51-183c, the plain-
tiff’s argument that the board violated § 51-183c by
declining to remand the matter to a different commis-
sioner for a de novo trial is untenable. As our Supreme
Court has expressly recognized, ‘‘§ 51-183c, by its plain
terms, applies only to judges.’’ State v. AFSCME, Coun-
cil 4, Local 1565, 249 Conn. 474, 480, 732 A.2d 762(1999). Moreover, ‘‘[o]ur Supreme Court, as well as this
court, have previously held that § 51-183c applies exclu-
sively to ‘trials’ and not to other types of adversarial
proceedings.’’ Chase Home Finance, LLC v. Scroggin,
supra, 194 Conn. App. 852. Put simply, § 51-183c has
no applicability in the workers’ compensation forum.16
Insofar as the plaintiff invites this court to extend the
policy underpinning § 51-183c to workers’ compensa-
tion proceedings, we decline to do so. ‘‘We consistently
have acknowledged that the [Workers’ Compensation
Act, General Statutes § 31-275 et seq.] is an intricate
and comprehensive statutory scheme. . . . The com-
plex nature of the workers’ compensation system
requires that policy determinations should be left to
the legislature, not the judiciary.’’ (Internal quotation
marks omitted.) Salerno v. Lowe’s Home Improvement
Center, 198 Conn. App. 879, 884, 235 A.3d 537 (2020);
see also, e.g., State v. AFSCME, Council 4, Local 1565,
supra, 480 (declining to extend ‘‘legislative policy
embodied in . . . § 51-183c’’ to arbitration proceed-
ings); Board of Education v. East Haven Education
Assn., 66 Conn. App. 202, 215–16, 784 A.2d 958 (2001)
(same).
The plaintiff relies on Fantasia v. Milford Fastening
Systems, supra, 86 Conn. App. 270, to support his claim
that the board committed error in failing to remand the
matter to a different commissioner for a de novo trial.
In Fantasia, a workers’ compensation commissioner
awarded a claimant temporary partial disability benefits
but denied the claimant’s request for temporary total
disability benefits. Id., 275. On appeal, the board con-
cluded that the commissioner’s decision contained
inconsistent findings because the commissioner cred-
ited a physician’s opinion that the claimant was tempo-
rarily totally disabled but failed to award the claimant
temporary total disability benefits, and remanded the
matter to the original commissioner for an articulation.
Id., 276. On remand, the commissioner articulated that
he had awarded the claimant temporary total disability
benefits. Id. The board later affirmed the articulation.
Id., 277.
On appeal following the board’s decision affirming
the articulation, this court concluded that (1) the board
properly exercised its discretion, pursuant to its statu-
tory authority, to remand the matter to the commis-
sioner for an articulation, (2) the board improperly
accepted the commissioner’s articulation because the
commissioner, rather than issuing an articulation in
compliance with the board’s remand order, made a new
finding and entered a new award for benefits, and (3)
the board should have remanded the matter to a differ-
ent commissioner for a formal hearing on the issue of
whether the claimant was entitled to temporary total
disability benefits. Id., 278–89. As to the third point,
this court determined that (1) ‘‘the board’s statutory
authority over appeals [pursuant to General Statutes
§ 31-301 (c)17] from decisions of commissioners
includes the authority to remand a case for a new hear-
ing before a different commissioner’’ and, (2) ‘‘when
inconsistent decisions by a trial commissioner would
put the board in the untenable position of retrying the
facts, which it may not do, the board may exercise its
authority to remand the case for a new hearing before a
different commissioner.’’ (Footnote added.) Id., 288–89.
This court further stated that ‘‘remanding th[e] case
to the same commissioner for a third decision would
appear to be a mere exercise in going through the
motions [and] the claimant would not emerge from
these proceedings with the feeling that he has had a
meaningful day in court. That is a result we seek to
avoid.’’ (Internal quotation marks omitted.) Id., 289.
The plaintiff’s reliance on Fantasia is misplaced.
Although Fantasia recognized that the board has statu-
tory authority to remand a matter to a different commis-
sioner for a new hearing, Fantasia does not compel
such a remand under the circumstances of this case.
In Fantasia, this court concluded that remanding the
case for a new hearing before a different commissioner
was the proper remedy when the original commissioner
had issued inconsistent decisions that had left the board
‘‘in the untenable position of retrying the facts, which
it may not do . . . .’’ Id. In the present case, the board
did not remand the matter to the commissioner to issue
an articulation, which would have created the possibil-
ity of the commissioner issuing two inconsistent deci-
sions; rather, the board reversed in part the commis-
sioner’s decision approving the form 36 and remanded
the matter to the commissioner to resolve several
issues. Because the portion of the commissioner’s deci-
sion reversed by the board is no longer effective, there
is no risk of the board being placed ‘‘in the untenable
position of retrying the facts’’ at this juncture. Id. In
addition, because this is the first remand to the commis-
sioner ordered by the board, it would be premature to
deem the board’s remand to the commissioner to be
‘‘a mere exercise in going through the motions’’ and to
anticipate ‘‘the claimant . . . not emerg[ing] from
these proceedings with the feeling that he has had a
meaningful day in court.’’ (Internal quotation marks
omitted.) Id. In short, Fantasia does not advance the
plaintiff’s claim.
The plaintiff also cites Cantoni v. Xerox Corp., 251
Conn. 153, 740 A.2d 796 (1999), in support of his claim.
In Cantoni, an employer and its insurer appealed from
the board’s decision reversing a workers’ compensation
commissioner’s dismissal of a workers’ compensation
claim with an attendant remand for a new hearing
before a different commissioner. Id., 155 and n.1. This
court, in an unpublished order, dismissed the appeal
for lack of a final judgment. Id. After granting certiorari,
our Supreme Court affirmed this court’s judgment; id.,
154; concluding that the board’s decision ‘‘direct[ing] a
rehearing to be held before a commissioner other than
the one who originally heard the case does not raise a
colorable claim of jurisdiction and, therefore, is not an
appealable final judgment.’’ Id., 168.
In affirming this court’s judgment dismissing the
appeal in Cantoni, our Supreme Court rejected an argu-
ment by the employer and its insurer that the board
needed to have express statutory authority to remand
the matter to a different commissioner. Id., 166–67. Our
Supreme Court stated that, ‘‘[i]n light of the broad
authority conferred upon the . . . board by the terms
of § 31-301 (c), we are not persuaded that the legislature
intended to impose unstated limitations on the . . .
board’s discretion to order appropriately adjudicated
new hearings. Such an unstated limitation would be
difficult to reconcile with the provisions of . . . § 51-
183c . . . . Given the legislature’s expressed prefer-
ence that retrials not take place before the same judge
who previously tried the case, we decline to conclude,
without any supporting statutory evidence, that the leg-
islature intended, as a jurisdictional matter, to preclude,
in workers’ compensation cases, the very practice that
it endorsed in civil and criminal cases.’’ Id. Notably,
our Supreme Court did not state that § 51-183c applied
so as to require a remand to a different commissioner;
instead, it emphasized the absence of statutory author-
ity governing workers’ compensation proceedings that
precluded such a remand order. Id. Moreover, in later
rejecting a separate argument raised by the employer
and its insurer, our Supreme Court commented that
‘‘administrative convenience might often counsel in
favor of . . . a remand [to the original commissioner]
. . . .’’18 Id., 167. Accordingly, Cantoni does not support
the plaintiff’s claim.19
In sum, we reject the plaintiff’s claim that the board
improperly denied his motion for articulation or recon-
sideration, in which he requested an order that the
issues remanded by the board in its November 17, 2020
decision be tried de novo before a different commis-
sioner.
The decisions of the Compensation Review Board
are affirmed.
In this opinion the other judges concurred.
1
PMA Management Corporation of New England is a third-party adminis-
trator for the city.
2
The two appeals, although not consolidated, were heard together at oral
argument before this court pursuant to an order from this court.
3
‘‘‘A [f]orm 36 is a notice to the compensation commissioner and the
[plaintiff] of the intention of the employer and its insurer to discontinue [or
reduce] compensation payments. The filing of this notice and its approval
by the commissioner are required by statute in order properly to discontinue
[or reduce] payments.’ . . . Brinson v. Finlay Bros. Printing Co., 77 Conn.
App. 319, 320 n.1, 823 A.2d 1223 (2003); General Statutes § 31-296 (a).’’
Rivera v. Patient Care of Connecticut, 188 Conn. App. 203, 204 n.1, 204
A.3d 761 (2019).
4
We note that General Statutes § 31-275d (a) (1), effective as of October
1, 2021, provides in relevant part that ‘‘[w]herever the words ‘workers’
compensation commissioner’, ‘compensation commissioner’ or ‘commis-
sioner’ are used to denote a workers’ compensation commissioner in [several
enumerated] sections of the general statutes, [including sections contained
in the Workers’ Compensation Act, § 31-275 et seq.] the words ‘administrative
law judge’ shall be substituted in lieu thereof . . . .’’
As all events underlying this appeal occurred prior to October 1, 2021,
we will refer to the workers’ compensation commissioner who approved
the defendants’ form 36 in this matter as the commissioner, and all statutory
references herein are to the 2021 revision of the statutes.
5
See General Statutes § 31-296 (a), which provides in relevant part: ‘‘If
an employer and an injured employee . . . reach an agreement in regard
to compensation, such agreement shall be submitted in writing to the com-
missioner by the employer with a statement of the time, place and nature
of the injury upon which it is based; and, if such commissioner finds such
agreement to conform to the provisions of this chapter in every regard, the
commissioner shall so approve it. A copy of the agreement, with a statement
of the commissioner’s approval, shall be delivered to each of the parties
and thereafter it shall be as binding upon both parties as an award by the
commissioner. . . .’’
6
‘‘Maximum medical improvement is that time when there is no reasonable
prognosis for complete or partial cure and no improvement in the physical
condition or appearance of the injured body member can be reasonably
made.’’ Cappellino v. Cheshire, 27 Conn. App. 699, 703 n.2, 608 A.2d 1185(1992), aff’d, 226 Conn. 569, 628 A.2d 595 (1993).
7
An employee who objects to a form 36 may request an informal hearing.
See General Statutes § 31-296 (b); Passalugo v. Guida-Seibert Dairy Co.,
149 Conn. App. 478, 486, 91 A.3d 475 (2014). ‘‘While evidence is not taken
at an informal hearing . . . the employer/insurer has the burden of proof
and must submit documents . . . in support of the discontinuance or reduc-
tion. Thereafter, the burden shifts to the injured worker who should be
prepared to present competent medical evidence (usually by medical
reports) that support the contest of the [f]orm 36. The [commissioner] will
weigh the evidence and either approve or disallow the discontinuance or
reduction. . . . [A] commissioner’s initial ruling on a [f]orm 36 may be
challenged at a subsequent formal [evidentiary] hearing, at which the previ-
ous ruling has no precedential weight. The issue is tried de novo.’’ (Citation
omitted; emphasis omitted; internal quotation marks omitted.) Passalugo
v. Guida-Seibert Dairy Co., supra, 486–87.
8
General Statutes § 31-307 (a) provides in relevant part: ‘‘If any injury for
which compensation 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 the injured employee’s aver-
age weekly earnings as of the date of the injury . . . .’’
9
See General Statutes § 31-294f (a), which provides: ‘‘An injured employee
shall submit himself to examination by a reputable practicing physician or
surgeon, at any time while claiming or receiving compensation, upon the
reasonable request of the employer or at the direction of the commissioner.
The examination shall be performed to determine the nature of the injury
and the incapacity resulting from the injury. The physician or surgeon shall
be selected by the employer from an approved list of physicians and surgeons
prepared by the chairman of the Workers’ Compensation Commission and
shall be paid by the employer. At any examination requested by the employer
or directed by the commissioner under this section, the injured employee
shall be allowed to have in attendance any reputable practicing physician
or surgeon that the employee obtains and pays for himself. The employee
shall submit to all other physical examinations as required by this chapter.
The refusal of an injured employee to submit himself to a reasonable exami-
nation under this section shall suspend his right to compensation during
such refusal.’’
10
The record contained additional medical evidence, which the commis-
sioner summarized in her decision. We need not detail that additional evi-
dence for purposes of this appeal.
11
General Statutes § 31-294d (a) (1) provides in relevant part: ‘‘The
employer, as soon as the employer has knowledge of an injury, shall provide
a competent physician, surgeon or advanced practice registered nurse to
attend the injured employee and, in addition, shall furnish any medical and
surgical aid or hospital and nursing service, including medical rehabilitation
services and prescription drugs, as the physician, or advanced practice
registered nurse surgeon deems reasonable or necessary. . . .’’
We note that § 31-294d (a) (1) was amended by No. 21-196, § 56, of the
2021 Public Acts by adding references to physician assistants and making
a technical change. That amendment has no bearing on the merits of this
appeal. For purposes of clarity, we refer to the current revision of the statute.
12
More specifically, the board vacated the commissioner’s conclusions
set forth in paragraphs G, H, and I of her decision approving the form 36.
13
The board also determined that the opinion of Belkin, the defendants’
medical examiner, did not salvage the commissioner’s ruling because (1)
Belkin testified at his deposition that he did not ‘‘ ‘unequivocally agree’ ’’
that the plaintiff’s comorbidities and medications necessarily precluded
‘‘ ‘any form of work status’ ’’ for the plaintiff and, in any event, (2) the
commissioner did not assess Belkin’s credibility and persuasiveness in rela-
tion to the other examiners.
14
More specifically, the board vacated the commissioner’s conclusions
set forth in paragraphs D, E, and F of her decision approving the form 36.
15
During oral argument before this court, the parties’ respective counsel
made comments suggesting that none of the parties believed that it was
necessary to pursue the issue of further medical care on remand.
16
The Workers’ Compensation Act, General Statutes § 31-275 et seq., con-
tained in chapter 568 of the General Statutes, has no provision that parallels
§ 51-183c.
17
General Statutes § 31-301 (c) provides in relevant part: ‘‘Upon the final
determination of the appeal by the [board], but no later than one year after
the date the appeal petition was filed, the [board] shall issue its decision,
affirming, modifying or reversing the decision of the commissioner. . . .’’
18
In denying the plaintiff’s motion for articulation or reconsideration, the
board cited Goulbourne v. Dept. of Correction, No. 5461, CRB 1-09-5 (May
12, 2010), as an example of a case in which it had remanded a matter to
the original commissioner with direction to rule on the basis of the appro-
priate legal standard. The plaintiff claims that the board’s reliance on Goul-
bourne to support the remand ordered in this case was misplaced. Whether
the board properly relied on Goulbourne does not affect the outcome of
this appeal. Accordingly, we need not address this issue further.
19
In his principal appellate brief, the plaintiff also asserts that the board’s
remand order contravened § 31-301 (c). See footnote 17 of this opinion. This
assertion is unavailing. The board acted in accordance with § 31-301 (c) by
affirming in part and reversing in part the commissioner’s decision approving
the form 36 with an accompanying remand order. Nothing in § 31-301 (c)
precluded the board from remanding the matter to the commissioner for
further proceedings on the relevant issues.
Additionally, in his principal appellate brief, the plaintiff cites § 31-301
(e) and Practice Book § 60-5 for the proposition ‘‘that reversals by the
[board] must . . . conform to the same laws as those from the Supreme
Court, where applicable.’’ General Statutes § 31-301 (e) provides in relevant
part that ‘‘[t]he procedure in appealing from an award of the commissioner
shall be the same as the procedure employed in an appeal from the Superior
Court to the Supreme Court, where applicable. . . .’’ Practice Book § 60-5,
applicable to workers’ compensation appeals pursuant to Practice Book
§ 76-1, provides in relevant part that ‘‘[t]he court may reverse or modify the
decision of the trial court if it determines that the factual findings are clearly
erroneous in view of the evidence and pleadings in the whole record, or
that the decision is otherwise erroneous in law. . . .’’ We do not construe
these provisions as supporting the plaintiff’s claim that the board committed
error in remanding the matter to the commissioner.