CRB Case Annotations re: Section 31-297

Respondents appealed from commissioner’s imposition of a fine pursuant to § 31-288(b)(2) for failure to appear at an informal hearing. Respondents argued that the hearing notice did not comply with § 31-297 as it did not provide 10 days notice. Also respondents claimed they received notice of the hearing after the hearing took place. As the fine was imposed at an informal hearing, CRB remanded the matter in order to give respondents an opportunity to prepare an evidentiary record and present their claims at a formal hearing. However, CRB noted that § 31-297 vests a commissioner with the authority to waive the 10 day notice requirement when emergency circumstances exist. See Chung, § 31-301 Appeal Procedure, § 31-288.

CRB ruled that a remand was appropriate on § 31-308a claim, as it was unclear whether respondents had been properly notified that claimant’s allegedly worsening physical condition and related depression were at issue. Though evidence was introduced at trial to establish a basis for finding related to cervical/thoracic spinal injury and depression, board had doubt that due process was provided, and erred on side of caution. Also cited at Siebold, § 31-308a.

On appeal, claimant contended that he was not mentally competent at time of formal hearing. Board found no merit to this argument, as the formal hearing was held to determine the claimant’s overpayment which he did not dispute, and his wife testified regarding all pertinent information as she was in charge of the household finances. See, Czujak, § 31-301(g).

See, Schreiber, § 31-278 (discussion of res judicata, collateral estoppel and “law of the case” doctrines).

The claimant contended on appeal that the parties agreed during the formal hearing that the trial commissioner would only address the issue of compensability, and thus the trial commissioner should not have addressed the claimant’s entitlement to temporary total or temporary partial disability benefits. As the transcript supported this contention, the board vacated those portions of the Finding and Award which addressed the claimant’s disability status, and remanded the issue for a further hearing. Additionally, the claimant contended that during the formal hearing she requested attorney’s fees and interest due to the respondent’s unreasonable contest, but that the trial commissioner failed to address that issue in his decision. As this assertion was supported by the record, the board remanded this issue to the trial commissioner as well.

CRB held that, though formal hearing notices did not mention it, state was nonetheless aware that total disability was at issue because the state raised the subject in its Form 43 and total disability was cited in the pre-formal hearing notice. No express waiver of this issue at trial. See also, Vetre, § 31-298, § 31-300, § 31-307. Prior decisions in Vetre, 3948 CRB-6-98-12 (February 14, 2000), § 31-298, § 31-301. Appeal procedure; and Vetre, 3443 CRB-6-96-10 (January 16, 1998), § 31-298.

CRB affirmed trier’s dismissal of claim on ground that it was precluded by doctrine of res judicata. Hearing notices at prior proceedings cited two dates of injury, including the one claimant now wished to litigate. Claimant could have raised connection between shoulder symptoms and first injury at trial, rather than proceeding under theory that first injury had resolved itself by the time of later injury. Prior decision in Calinescu, 13 Conn. Workers’ Comp. Rev. Op. 298, 1794 CRB-8-93-8 (April 21, 1995), cited at § 31-301. Factual findings, § 31-301-9.

Adequate notice of formal hearing was provided to respondent where notice was sent to employer’s counsel (Office of the Attorney General), to the employer, and to the Administrator. Issues listed on notice were sufficient because, even though § 31-300 was referenced rather than § 31-303, notice stated that the issue was the imposition of a twenty percent penalty for late payment. See also, Borici, § 31-303.

After reviewing the transcript, CRB concluded that the parties were not afforded sufficient notice that the issue of temporary partial benefits under § 31-308(a) would be decided. Claimant’s counsel specifically limited issues at formal hearing so as not to include a claim for § 31-308(a) benefits. Board therefore set aside commissioner’s § 31-308(a) award and remanded that issue for a formal hearing.

The claimant contended that he did not receive proper notice that the formal hearing would include the issue of causation of his psychiatric claim. CRB found sufficient notice provided. Notice of a hearing is not required to contain an accurate forecast of the precise action which will be taken on the subject matter referred to in the notice, but is adequate if it fairly and sufficiently apprises those who may be affected of the nature and character of the action proposed, so as to make possible intelligent preparation for participation in the hearing. See, Liano, § 31-294c, § 31-301. Factual findings. Subsequent decisions at Liano, 3561 CRB-4-97-3 (June 3, 1998), rev’d in part, 55 Conn. App. 75 (1999), cert. denied, 252 Conn. 909 (1999), § 31-300; Liano, 3447 CRB-4-96-10 (January 6, 1998), aff’d, 51 Conn. App. 905 (per curiam), cert. denied, 248 Conn. 907 (1999), § 7-433c; companion decision at Liano, 3199 CRB-4-95-10 (March 25, 1997), § 31-279-3, § 31-298, § 31-307; prior decision at Liano, 14 Conn. Workers’ Comp. Rev. Op. 201, 2033 CRB-4-94-5 (July 25, 1995), appeal and cross appeal dismissed, lack of final judgment, A.C. 15082 (June 6, 1996), cert. denied, 238 Conn. 906 (1996), § 7-433b, § 31-300, § 31-310.

On appeal, the employer contended that it was denied due process because its failure to appear at a formal hearing was due to its reliance upon its insurance company to appear on its behalf. However, employer did not deny that it received proper notice of the formal hearing, which was mailed via certified mail. The notice, which states the names of the parties notified, does not list the insurer as a party. Under these circumstances, CRB found that the employer was not denied due process, as it was properly sent timely notice of the formal hearing. See also, Proto, § 31-288(c).

Greiner v. Pratt Associates, 13 Conn. Workers’ Comp. Rev. Op. 222, 2000 CRB-8-94-3 (April 12, 1995), aff’d and appeal dismissed, A.C. 14646, A.C. 14596 (June 6, 1996) pursuant to Figueroa v. C & S Ball Bearing, 237 Conn. 1 (1996).

Workers’ Compensation Commission lacks jurisdiction to assign hearings requested by medical provider where no Chapter 568 claim exists. See, Baigert, 13 Conn. Workers’ Comp. Rev. Op. 78, infra.

Chairman’s directive postponing medical provider’s request for an informal hearing indefinitely was proper where there was no evidence an underlying workers’ compensation claim existed. (Arcudi, C., dissenting) (Chairman does not have statutory power to deny medical provider due process. Chairman’s administrative powers may have been expanded by 1991 amendments to the workers’ compensation act, however, adjudicatory powers were left undisturbed). But see, Figueroa v. C & S Ball Bearing, aff’d, 237 Conn. 1 (1996). See also, Baigert, § 31-294d, and § 31-280.

Chairman, acting for the Eighth District, erred in ordering an indefinite postponement of medical provider’s request of an informal hearing where it appears a workers’ compensation claim exists. See also, Cookson, § 31-294d.

Soares v. Glass Industries, 12 Conn. Workers’ Comp. Rev. Op. 189, 1377 CRB-3-92-1 (May 4, 1994).

Respondents’ contention they were denied due process where trial commissioner notified all parties at conclusion of morning informal that the matter would proceed to trial at a formal hearing that afternoon held unpersuasive. Given totality of circumstances, i.e. claimant’s financial hardship, cutting of benefits, and prior informal hearings, it was within trier’s statutory authority to find an emergency existed. See also, Soares, § 31-300, § 31-307b and § 31-315.

Monroe v. Twin County Sanitation Co., 4 Conn. Workers’ Comp. Rev. Op. 78, 337 CRD-2-84 (June 2, 1987).

Notice of hearing which stated hearing was to determine liability was not merely limited to existence of liability.