CASE NO. 2125 CRB-8-94-8
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JUNE 29, 1995
HOFFMAN WATER TREATMENT CO.
COMMERCIAL UNION INS. CO.
The claimant was represented by Charles M. Rosenzweig, Esq., 136 Main St., Suite 201, New Britain, CT 06051.
The respondents were represented by John T. Scully, Esq., Cooney, Scully & Dowling, Hartford Square North, Ten Columbus Blvd., Hartford, CT 06106-1944.
This Petition for Review from the August 9, 1994 Finding and Award of the Commissioner acting for the Eighth District was heard April 21, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Amado J. Vargas and Michael S. Miles.
JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the August 9, 1994 Finding and Award of the Commissioner for the Eighth District. They argue on appeal that the commissioner improperly concluded that the claimant received permanent partial disability benefits rather than temporary total disability benefits prior to his death. We reverse the trial commissioner’s decision.
The claimant suffered a compensable lung injury on February 6, 1992 from exposure to cyclohexylamine. He died on May 26, 1993. Dr. Staw, a pulmonary medicine specialist, saw the claimant four months before his death. He diagnosed the claimant with a 75 percent disability of his lungs several days after the examination, and opined that the claimant could not return to his normal job. A September 14, 1993 report confirmed the 75 percent permanent partial disability of the claimant’s lungs, noting that 25 percent was related to the claimant’s smoking and obesity, and 50 percent to the cyclohexylamine exposure.
The claimant filed a Notice of Claim for benefits on March 23, 1992. A January 19, 1993 request by the respondents to discontinue benefits for lack of a causal connection between the claimant’s chemical exposure and his disability was denied for insufficient documentation. Despite the claimant’s subsequent death, his widow did not pursue a separate claim for dependent death benefits. The trial commissioner concluded that, from the forms and documents in the file, the respondents never agreed to pay either § 31-307 C.G.S. temporary total disability benefits or § 31-308 C.G.S. permanent partial disability benefits. Even though the commissioner found that maximum medical improvement was reached on January 27, 1993, the commissioner decided to treat the March 1992 Notice of Claim as a request for specific benefits under § 31-308(b). Thus, he determined that the claimant’s surviving spouse should be paid the unpaid portion of the 262.50 weeks of permanent partial disability benefits to which the claimant had been entitled by virtue of his 75 percent disability rating. The respondents have appealed from that decision.1
The respondents argue on appeal that the claimant failed to prove that he had requested specific benefits at the proper time pursuant to McCurdy v. State, 227 Conn. 261 (1993). They also argue that the commissioner erred in taking administrative notice of the March 23, 1992 Notice of Claim without providing the parties with an opportunity to be heard on that issue, and that he abused his discretion in concluding that said notice was a claim for specific benefits.
We first address the commissioner’s decision to take administrative notice of the “forms and documents in the Eighth District file,” including the March 23, 1992 Notice of Claim. This notice states that Daniel Burr sustained “severe chemical burns and chemical poisoning over entire body and internal poisoning to body,” and states that he “claims compensation in his own interest.” The commissioner concluded that none of the forms in the file specified which type of benefits the respondents had agreed to pay. It then appears that the commissioner chose to construe the Notice of Claim as a claim for § 31-308(b) benefits primarily because the decedent would otherwise lose his right to those benefits. The respondents contend that the Notice of Claim was a matter open to explanation and contradiction, and argue that the commissioner should have provided both parties with notice and an opportunity to be heard before taking judicial notice.
Every court of justice, including our Workers’ Compensation Commission, has the right to take judicial notice and apply it to the decision of a case. West Hartford v. Freedom of Information Commission, 218 Conn. 256, 264 (1991); De Luca v. Park Commissioners, 94 Conn. 7, 9-10 (1919). “Courts are not bound to take judicial notice of matters of fact. Whether they will do so or not depends on the nature of the subject, the issue involved and the apparent justice of the case.” Id., 10. A trial commissioner has discretion to take judicial notice of a fact. Pie Plate, Inc. v. Texaco, Inc., 35 Conn. App. 305, 316 (1994). “Where a ruling involves the exercise of the trial court’s discretion, its action will not be disturbed unless it has abused that broad discretion.” Id.
When a court takes judicial notice of its own initiative, Connecticut law requires prior notice and an opportunity to be heard only if the matter being noticed is susceptible to contradiction or explanation. Notice is not required for matters of established fact whose accuracy cannot be questioned. Tait and LaPlante, Handbook of Connecticut Evidence, 2d Ed., § 6.4.1 p. 130, citing Moore v. Moore, 173 Conn. 120, 122-23 (1977); Robertson v. Apuzzo, 170 Conn. 367, 371 (1976). In this case, there was little information as to the nature of the benefits being paid that could be gleaned from the Notice of Claim. Further explanation would be necessary before any meaning could be ascribed to that document on that issue. The commissioner ignored this limitation in the Notice of Claim and made a decision as to its proper construction based on outside factors that are unclear from the findings. We hold that it was an abuse of his discretion to attempt such an interpretation of the highly ambiguous Notice of Claim without affording the parties an opportunity to explain, clarify or contest its meaning. The latitude given the commissioner by § 31-298 regarding evidentiary matters does not suspend the parties’ rights to due process.
We next address the applicability of McCurdy, supra, to this case. As the trial commissioner correctly noted, the claimant would have had to affirmatively request payment of his permanent partial disability award after maximum medical improvement was reached in order for him and his surviving spouse to be entitled to payment of that award. Id., 269; see also Versage v. Kurt Volk, Inc., 11 Conn. Workers’ Comp. Rev. Op. 253, 262, 1313 CRD-3-91-10 (Nov. 17, 1993). Without such a request, the commissioner has discretion to continue temporary total disability payments notwithstanding the worker’s entitlement to the permanency award. Hall v. Gilbert & Bennett Mfg. Co., 12 Conn. Workers’ Comp. Rev. Op. 146, 147, 1449 CRB-7-92-7 (April 7, 1994). If a permanency award is requested, the commissioner does not have discretion to deny it. Id.
Here, the claimant reached maximum medical improvement on January 27, 1993, according to the commissioner’s unchallenged findings. However, the only request for payment of benefits of any kind was made on March 23, 1992, over ten months before maximum medical improvement was reached. The claimant argues that the November 22, 1992 report of Dr. Jordan and the January 20, 1993 denial of the respondents’ Form 36 support a finding that the claimant was not totally disabled, but partially disabled, and therefore it reasonably could be inferred that the respondents were paying specific indemnity benefits without prejudice. We disagree. McCurdy explicitly requires a request for payment of permanent partial disability benefits to be made after a worker reaches maximum medical improvement, as such an award does not vest until that time. Id., 268-69. The commissioner’s findings thus cannot legally support the conclusion that the claimant timely requested payment of his permanency award.
The trial commissioner’s decision is reversed. Payment of benefits under § 31-301(f) C.G.S. by the Second Injury Fund should therefore cease immediately.
Commissioners Amado J. Vargas and Michael S. Miles concur.
1 The respondents have also filed a Motion to Submit Additional Evidence, which we need not rule on because of our resolution of this case. BACK TO TEXT