Passalugo v. Guida-Seibert Dairy Co.

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JUSTIN PASSALUGO v. GUIDA-SEIBERT DAIRY
COMPANY ET AL.
(AC 35262)
DiPentima, C. J., and Gruendel and Beach, Js.
Argued February 18—officially released April 15, 2014
(Appeal from Workers’ Compensation Review Board.)
Jennifer B. Levine, with whom was Harvey L.
Levine, for the appellant (plaintiff).
Marian H. Yun, for the appellees (defendants).
Opinion
GRUENDEL, J. Following an informal hearing, the
Workers’ Compensation Commissioner for the Sixth
District (commissioner) issued a decision approving
the filing of notice by the defendants, Guida-Seibert
Dairy Company and its insurer, Liberty Insurance Cor-
poration, to discontinue workers’ compensation pay-
ments to the plaintiff, Justin Passalugo. The plaintiff
then filed a petition for review of that decision with
the Workers’ Compensation Review Board (board). In
ruling on that petition, the board emphasized that ‘‘no
record [of the informal hearing] exists’’ and that
‘‘[a]bsent a record this board cannot properly consider’’
the plaintiff’s appeal. Accordingly, the board dismissed
the petition and remanded the matter to the commis-
sioner ‘‘for a formal hearing or other appropriate
action.’’ From that decision, the plaintiff now appeals.
In this appeal, the plaintiff challenges the propriety
of the commissioner’s decision. Specifically, he claims
that the commissioner (1) violated General Statutes
§ 31-296 by terminating his workers’ compensation ben-
efits ‘‘without any medical evidence’’ at the informal
hearing, and (2) violated his right to due process and
fundamental fairness by terminating his benefits with-
out an evidentiary hearing. We disagree and, therefore,
affirm the decision of the board.
Our recitation of the relevant facts is hampered by
the limited record before us, which consists of a handful
of documents and is devoid of any transcripts or exhib-
its. The following facts are thus gleaned from that slim
record and are undisputed by the parties. The plaintiff
sustained an injury on October 30, 2011, and thereafter
entered into a voluntary agreement with the defendants
regarding workers’ compensation benefits. On August
30, 2012, the defendants filed with the commission a
Form 36, thereby notifying the plaintiff of their intention
to discontinue workers’ compensation payments.1 The
commissioner held an informal hearing,2 at the conclu-
sion of which the commissioner on October 23, 2012,
approved the defendants’ Form 36 filing to discontinue
compensation payments. Although the plaintiff pos-
sessed ‘‘the right to challenge the notice [of intention
to discontinue compensation payments] in a subsequent
formal hearing’’; Anguish v. TLM, Inc., 53 Conn. App.
241, 242 n.2, 728 A.2d 1165, cert. denied, 250 Conn. 910,
734 A.2d 985 (1999); he declined to do so. He instead
filed a petition for review with the board on November
5, 2012. In response, the defendants filed with the board
an objection to that petition, stating in relevant part that
‘‘[t]he Form 36 which forms the basis for the [plaintiff’s]
petition for review was granted at an informal hearing
. . . . The matter should be remanded to the [commis-
sioner] for a formal hearing . . . on the Form 36 issue.’’
The board dismissed the plaintiff’s petition for review
on November 27, 2012.3 Its remand order states in rele-
vant part: ‘‘On November 5, 2012, [the plaintiff] filed a
petition for review from the trial commissioner’s Octo-
ber 23, 2012 order granting [the defendants’] Form 36.
The order was issued as a result of an informal hearing.
No record exists. Due process requires an evidentiary
hearing wherein a record can be created. Absent a
record, this board cannot properly consider an appeal
under [General Statutes §] 31-301 (a). The matter is
therefore remanded to the trial commissioner acting
for the sixth district for a formal hearing or other appro-
priate action. . . .’’ Despite that remand order, the
plaintiff did not return to the commissioner for a formal
hearing. Rather, he filed an appeal of the board’s deci-
sion with this court.4
As a preliminary matter, we note that ‘‘[t]he principles
that govern our standard of review in workers’ compen-
sation appeals are well established. . . . The board sits
as an appellate tribunal reviewing the decision of the
commissioner. . . . [T]he review . . . of an appeal
from the commissioner is not a de novo hearing of the
facts. . . . [T]he power and duty of determining the
facts rests on the commissioner . . . . [T]he commis-
sioner is the sole arbiter of the weight of the evidence
and the credibility of witnesses . . . . Where the sub-
ordinate facts allow for diverse inferences, the commis-
sioner’s selection of the inference to be drawn must
stand unless it is based on an incorrect application of
the law to the subordinate facts or from an inference
illegally or unreasonably drawn from them. . . .
‘‘This court’s review of decisions of the board is simi-
larly limited. . . . The conclusions drawn by [the com-
missioner] 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 unrea-
sonably drawn from them. . . . [W]e must interpret
[the commissioner’s finding] with the goal of sustaining
that conclusion in light of all of the other supporting
evidence. . . . Once the commissioner makes a factual
finding, [we are] bound by that finding if there is evi-
dence in the record to support it.’’ (Internal quotation
marks omitted.) Baron v. Genlyte Thomas Group, LLC,
132 Conn. App. 794, 799–800, 34 A.3d 423, cert. denied,
303 Conn. 939, 37 A.3d 155 (2012).
I
The plaintiff first contends that the commissioner
violated § 31-296 by terminating his workers’ compensa-
tion benefits without any medical evidence at the infor-
mal hearing.5 That claim requires little discussion. The
board specifically found, and the plaintiff does not dis-
pute, that no record of the informal hearing exists. As
a result, the record before us is inadequate for review.
It is the responsibility of the appellant to provide this
court with an adequate record for review. See Practice
Book § 61-10. Without an adequate record, we are left
to speculation and conjecture; Gelormino v. Liberman,
36 Conn. App. 153, 154, 649 A.2d 259, cert. denied, 231
Conn. 946, 653 A.2d 826 (1994); which ‘‘have no place in
appellate review.’’ Narumanchi v. DeStefano, 89 Conn.
App. 807, 815, 875 A.2d 71 (2005). We therefore decline
to review the plaintiff’s claim.
II
The plaintiff also argues that the commissioner vio-
lated his right to due process and fundamental fairness
by terminating his benefits without an evidentiary hear-
ing.6 For multiple reasons, his claim is untenable.
First and foremost, the record before us contains no
transcript or record whatsoever of the informal hearing.
As a result, we cannot ascertain, as a threshold matter,
whether or not an evidentiary hearing of any kind tran-
spired before the commissioner. The paucity of materi-
als in the record before us precludes any meaningful
review of the plaintiff’s claim.
Second, as this court previously has observed, an
‘‘emergency informal hearing . . . is not an appealable
decision, as it does not create a record that can be
reviewed.’’ (Internal quotation marks omitted.) Brinson
v. Finlay Bros. Printing Co., 77 Conn. App. 319, 326 n.8,
823 A.2d 1223 (2003); accord 2 A. Sevarino, Connecticut
Workers’ Compensation After Reforms (Centennial Ed.
2012) § 5.16.10, p. 716 (‘‘Any [o]rder approving or disap-
proving a Form 36 at the informal hearing . . . will not
have a transcript of the proceedings or a record from
which an appeal may be taken to the [board]. Without
a transcript or exhibits, the [board] is absent a record
and cannot consider the appeal pursuant to [§] 31-301 as
the matter is not ripe for appellate review.’’ [Emphasis
omitted.]). That precedent is grounded in the mandate
of § 31-301 (b), which provides in relevant part that the
board ‘‘shall hear the appeal on the record of the hearing
before the commissioner . . . .’’ The board’s remand
order, in which it expressly stated that ‘‘[a]bsent a
record this board cannot properly consider an appeal’’
and then remanded the matter to the commissioner
for a formal hearing, thus is entirely consistent with
established Connecticut law.7
Third, even if the plaintiff could overcome those sig-
nificant bars to appellate review, he could not prevail,
as this court recently considered—and rejected—an
almost identical claim. Like the present case, Pagan v.
Carey Wiping Materials Corp., 144 Conn. App. 413,
416, 73 A.3d 784, cert. denied, 310 Conn. 925, 77 A.3d
142 (2013), involved a commissioner’s approval, follow-
ing an informal hearing, of the discontinuance of com-
pensation payments. Like the present case, the plaintiff
in Pagan elected to bypass her right to a formal hearing
and instead filed an appeal with the board. Id., 416–17.
Like the present case, the board in Pagan remanded
the matter to the commissioner for a formal hearing,
stating in relevant part that the commissioner’s decision
was the ‘‘result of an informal hearing. No record exists.
Due process requires an evidentiary hearing wherein a
record can be created.’’8 Id., 417 n.9.
On appeal to this court, the plaintiff claimed that
‘‘due process requires the commissioner to conduct an
evidentiary hearing . . . prior to approving the discon-
tinuance of compensation payments.’’ Id., 422. In
rejecting the merits of that claim, this court detailed
the contours of the informal hearing on a Form 36 filing.
We stated in relevant part: ‘‘The form notice set forth
in § 31-296, as amended by No. 07-80 of the 2007 Public
Acts, provides that the pretermination hearing an
employee can seek if he disputes a proposed discontinu-
ance or reduction of benefits is an informal hearing.
The informal hearing should be held as soon as possible
after the claimant has objected to the Form 36. . . .
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 discontinu-
ance or reduction. Thereafter, the burden shifts to the
injured worker who should be prepared to present com-
petent medical evidence (usually by medical reports)
that support the contest of the Form 36. The [commis-
sioner] will weigh the evidence and either approve or
disallow the discontinuance or reduction.’’ (Citation
omitted; footnote omitted; internal quotation mark
omitted.) Id., 420–21. We further explained that a com-
missioner’s ‘‘initial ruling on a Form 36 may be chal-
lenged at a subsequent formal [evidentiary] hearing, at
which the previous ruling has no precedential weight.
The issue is tried de novo.’’9 (Emphasis added; internal
quotation marks omitted.) Id., 421; see also Brinson v.
Finlay Bros. Printing Co., supra, 77 Conn. App. 326(plaintiff possesses ‘‘right to request a formal hearing’’
that is ‘‘a de novo hearing’’); Anguish v. TLM, Inc.,
supra, 53 Conn. App. 242 n.2 (noting that ‘‘the term
‘hearing’ as used in . . . § 31-296 means an emergency
informal hearing to be held as soon as possible, but
that the employee had the right to challenge the notice
in a subsequent formal hearing’’).
Accordingly, our precedent instructs that the infor-
mal hearing conducted pursuant to § 31-296 is intended
to serve as an expedited and preliminary determination,
from which a claimant is ‘‘entitled to a reasonably
prompt posttermination formal hearing at which she
[is] permitted to cross examine adverse witnesses and
present evidence and testimony . . . .’’ Pagan v. Carey
Wiping Materials Corp., supra, 144 Conn. App. 428; see
also 2 A. Sevarino, supra, § 5.16.11, p. 717 (‘‘[a]ny prior
decision made by the [commissioner] at the emergency
informal hearing level is attune to an ‘interlocutory rul-
ing’ at the administrative level’’). Furthermore, it is
undisputed that a claimant ‘‘is entitled to full retroactive
relief if she ultimately prevails at the posttermination
formal hearing or thereafter on appeal.’’ Pagan v. Carey
Wiping Materials Corp., supra, 423. In light of those
procedural safeguards, this court in Pagan held that
‘‘the procedures provided by § 31-296 are constitution-
ally sufficient’’ and comply with the requirements of
due process under the fourteenth amendment to the
United States constitution.10 Id., 429–30. Given the pre-
liminary nature of an informal hearing conducted pursu-
ant to § 31-296 and the fact that a claimant retains an
absolute right to a de novo formal hearing at which the
commissioner’s preliminary determinations carry no
precedential weight, we conclude that the rationale set
forth in Pagan applies with equal force with respect to
a claimant’s right to fundamental fairness.11 We, there-
fore, disagree with the plaintiff that a commissioner is
required, as a matter of constitutional due process and
fundamental fairness, to conduct an evidentiary hearing
prior to terminating compensation benefits at the con-
clusion of an informal hearing conducted pursuant to
§ 31-296.
The decision of the Workers’ Compensation Review
Board is affirmed.
In this opinion the other judges concurred.
1
‘‘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). ‘‘The content of the form is set out by § 31-
296.’’ Id., 325 n.5.
2
In their appellate brief, the defendants aver in relevant part that ‘‘[a]n
informal hearing was held on September 17, 2012, in response to the [plain-
tiff’s] objection to [the Form 36]. At that hearing, both parties presented
their positions and the commissioner held his decision concerning the Form
36 in abeyance allowing the parties to further advance their respective
positions at a subsequent hearing. . . . At the subsequent hearing held on
October 9, 2012, [the plaintiff] appeared for the hearing but his counsel
failed to appear. Once again, the commissioner held the Form 36 in abeyance
and scheduled another hearing thereby protecting the claimant’s rights to
be heard and properly represented by counsel. At the third informal hearing
held on October 23, 2012 concerning the Form 36 . . . the commissioner
considered the arguments presented by both parties, including the medical
reports of Dr. Sullivan and Dr. Sella, and granted the Form 36 . . . .’’ In
its appellate brief, the plaintiff does not acknowledge that the informal
hearing was convened on September 17 or October 9, 2012; rather, he states
that ‘‘[a] pre-termination informal hearing was held on October 23, 2012.’’
Because no record of that informal hearing is included in the materials before
us, we note simply that an informal hearing was held by the commissioner.
3
The record before us contains simply a one paragraph decision titled
‘‘Remand Order.’’ In that decision, the board does not reach the merits of
the plaintiff’s appeal, nor does it expressly grant or deny the plaintiff’s
petition. In similar cases, the board’s action in remanding a matter to the
commissioner for a formal hearing due to the lack of a record for review
has been described as a dismissal of the petition. See, e.g., Flamenco v.
Independent Refuse Service, Inc., 130 Conn. App. 280, 282, 22 A.3d 671(2011). We thus interpret the board’s action in the present case as tantamount
to a dismissal of the petition.
4
In its appellate brief, the defendants represent that ‘‘a formal hearing
notice issued on May 6, 2013, for a hearing to take place on June 13, 2013.
In response to this, [the plaintiff’s] counsel on May 13, 2013, filed a ‘Motion
for Order Cancelling June 13, 2013 Sua Sponte Formal Hearing on Form
36.’ This motion was granted by the commissioner on May 14, 2013.’’ At
oral argument before this court, counsel for the plaintiff conceded the
veracity of that representation.
5
Although the record is inadequate to substantiate their assertion, we
note that the defendants in their appellate brief dispute the factual predicate
to the plaintiff’s claim, alleging specifically that the commissioner considered
‘‘the medical reports of Dr. Sullivan and Dr. Sella’’ at the informal hearing,
which included a report stemming from an independent medical examination
of the plaintiff. The record likewise is inadequate to evaluate the plaintiff’s
assertion that, contrary to the defendants’ representation, the commissioner
at the informal hearing ‘‘did not seek or require the employer to present
medical reports establishing the plaintiff’s medical recovery. In fact, the
commissioner did not require any objective evidence to be demonstrated
to him and instead simply relied on the unsworn representations of defense
counsel and those found in the Form 36.’’
6
As our appellate courts previously have observed, there exists an inherent
overlap between the right to due process and the right to fundamental
fairness in administrative proceedings. See Grimes v. Conservation Com-
mission, 243 Conn. 266, 273 n.11, 703 A.2d 101 (1997); Megin v. Zoning
Board of Appeals, 106 Conn. App. 602, 607 n.6, 942 A.2d 511, cert. denied,
289 Conn. 901, 957 A.2d 871 (2008). ‘‘[A]dministrative hearings, including
those held before workers’ compensation commissioners, are informal and
governed without necessarily adhering to the rules of evidence or procedure.
. . . Nonetheless, administrative hearings must be conducted in a funda-
mentally 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.’’ (Internal quotation marks omitted.)
Flamenco v. Independent Refuse Service, Inc., 130 Conn. App. 280, 282–83,
22 A.3d 671 (2011). Notably, the common-law right to fundamental fairness
‘‘is not coextensive with constitutional due process. . . . The right to funda-
mental fairness in administrative proceedings encompasses a variety of
procedural protections, including the right to adequate notice . . . . [Our
Supreme Court at times has] characterized these procedural protections as
due process rights. . . . Although the due process characterization, at first
blush, suggests a constitutional source, there is no discussion in these cases
of a property interest in terms of constitutional due process rights. These
decisions are, instead, based on a line of administrative law cases and reflect
the development, in Connecticut, of a common-law right to due process in
administrative hearings.’’ (Citation omitted; internal quotation marks omit-
ted.) Megin v. Zoning Board of Appeals, supra, 607 n.6.
7
Indeed, one noted commentator indicates that such a result is routine
protocol in Form 36 proceedings: ‘‘Should a [claimant decline to exercise
the right to a formal hearing and instead] file . . . an appeal [with the
board] without a transcript or record [the claimant] is going to receive a
remand order from the [board] dismissing the appeal and remanding the
matter back to the [commissioner for a] formal hearing, which then will
produce a transcript and record.’’ 2 A. Sevarino, supra, § 5.16.10, p. 716.
8
The remand order in the present case contains that exact language.
9
In his appellate brief and at oral argument before this court, the plaintiff
has argued that the issue of compensation benefits termination is not tried
de novo during the formal hearing, alleging the claimant bears the burden
of proof ‘‘at all times’’ in that proceeding. That proposition is contrary to
Connecticut law. See Pagan v. Carey Wiping Materials Corp., supra, 144
Conn. App. 421; Brinson v. Finlay Bros. Printing Co., supra, 77 Conn. App.
326; A. Sevarino, supra, § 5.16.11, p. 716–17 (employer seeking discontinu-
ance or reduction of compensation payments bears preliminary burden at
de novo formal hearing).
10
The facts of the present case underscore the safeguards available to an
aggrieved claimant. Prior to commencing the present appeal with this court,
the plaintiff twice had the opportunity to obtain a de novo evidentiary
hearing regarding the termination of his benefit payments. He first declined
to exercise his right to proceed to a de novo formal hearing following the
commissioner’s initial ruling. When the board subsequently remanded the
matter to the commission for a de novo formal hearing, he again declined
to proceed with that evidentiary hearing, instead opting to commence this
appeal. Moreover, as the plaintiff’s counsel acknowledged at oral argument
before this court, a formal hearing on the matter was scheduled for June
13, 2013, to which the plaintiff filed a written request to cancel that then was
granted by the commissioner. See footnote 4 of this opinion. The plaintiff’s
repeated election to bypass those opportunities for de novo evidentiary
hearings undermines his contention that, on the facts of this case, he was
deprived of his right to procedural due process and fundamental fairness
before the commissioner.
11
It is undisputed that the right to cross-examine witnesses and the right
to offer rebuttal evidence, two hallmarks of fundamental fairness, are
retained by a claimant in a de novo formal hearing.