CASE NO. 4183 CRB-8-00-1
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
MARCH 7, 2001
The claimant was represented by Michael Ewing, Esq., Adelman, Hirsch & Newman, 1000 Lafayette Boulevard, Bridgeport CT 06604.
The respondent was represented by Diane Duhamel, Esq., Duhamel & Schoolcraft, 131 New London Turnpike, Suite 317, Glastonbury, CT 06033.
This Petition for Review from the January 26, 2000 Finding of the Commissioner acting for the Fifth District was heard September 15, 2000 before a Compensation Review Board panel consisting of Commissioners Robin L. Wilson, Leonard S. Paoletta, and Ernie R. Walker.
ROBIN L. WILSON, COMMISSIONER. The claimant has petitioned for review from the January 26, 2000 Finding of the Commissioner acting for the Fifth District. In that decision the trial commissioner granted the respondents’ Form 36, which had been filed on June 23, 1994, effective October 7, 1994. In support of his appeal, the claimant argues that his state and federal constitutional due process rights were violated because the Form 36 was approved retroactively without adequate notice to the claimant, thus denying the claimant a meaningful hearing at a meaningful time. We find no error.
The trial commissioner found the following relevant facts. On February 22, 1993, the claimant sustained a compensable injury to his right hand which was accepted in a voluntary agreement approved on August 2, 1994. As a result of the injury, the claimant’s right hand was ultimately amputated. On May 9, 1994, at the request of the respondents, the claimant was evaluated by Dr. Calabrese, the surgeon who had performed the claimant’s initial surgery. Subsequent to said evaluation, on June 23, 1994 the respondents filed a Form 36, and the claimant filed a timely objection. An informal hearing was held on August 8, 1994, at which time the trial commissioner held the Form 36 in abeyance until receipt of a report from the claimant’s treating physician, Dr. Rago. On September 23, 1994, Dr. Rago opined that a disability rating should be made at this time and that the claimant should begin vocational training. The June 23, 1994 Form 36 was again held in abeyance at an informal hearing held on October 4, 1994.
On October 7, 1994, Dr. Rago opined that the claimant had a 100% impairment to his right hand which translated into a 90% permanent partial disability of the upper extremity, and further opined that the claimant needed vocational retraining. Following this report, the respondents filed three more Form 36s. At an informal hearing held on September 26, 1995, the June 23, 1994 Form 36 was granted effective October 7, 1994, based upon the above described report by Dr. Rago of that date.
The trial commissioner in the instant case made numerous findings regarding the claimant’s age, education, and vocational testing and training. The trial commissioner concluded that as of October 7, 1994, the claimant was capable of working and was no longer totally disabled. “Whenever a claimant asserts that he is totally incapacitated, the burden of proving such a disability falls upon him.” Garcia v. Bridgeport, 3595 CRB-4-97-4 (June 8, 1998), citing Cummings v. Twin Tool Mfg., 40 Conn. App. 36, 42 (1996); Curtiss v. State of Connecticut/Dept. of Mental Retardation Region 2, 3220 CRB-6-95-11 (Aug. 20, 1997). We have repeatedly held that whether a claimant is totally disabled is a question of fact for the trial commissioner to determine. Coutu v. Interroyal Corp., 13 Conn. Workers’ Comp. Rev. Op. 215, 1680 CRB-2-93-3 (April 12, 1995); Vuoso v. Custom Gunite Pools, 13 Conn. Workers’ Comp. Rev. Op. 50, 51, 1581 CRB-7-92-12 (Dec. 7, 1994).
The power and duty of determining the facts rests on the commissioner as the trier of fact. This fact-finding authority “entitles the commissioner to determine the weight of the evidence presented and the credibility of the testimony offered by lay and expert witnesses.” Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995) (citing Tovish v. Gerber Electronics, 32 Conn. App. 595, 599 (1993), appeal dismissed, 229 Conn. 587 (1994)). We will not disturb such determinations unless they are found without evidence, based on impermissible or unreasonable factual inferences or contrary to law. Fair v. People’s Savings Bank, 207 Conn. 535 (1988). In the instant case, the trial commissioner’s conclusion that the claimant was no longer totally disabled as of October 7, 1994 is fully supported by the evidence and by his findings, and was neither based on impermissible or unreasonable factual inferences nor contrary to law. Therefore, it must stand. Fair, supra.
In support of his appeal, the claimant contends that the trier erred by granting the June 23, 1994 Form 36 effective October 7, 1994, in that his due process rights were violated because the Form 36 was approved retroactively without adequate notice to the claimant. Initially we note that we do not agree with the claimant’s characterization of the Form 36 approval as “retroactive” as in fact the trial commissioner here approved the Form 36 effective on October 7, 1994, which was after the filing date of the Form 36. In his appeal, the claimant contends that he did not have adequate notice that the June 23, 1994 Form 36 would be an issue at the September 26, 1995 informal hearing. Rather, the claimant contends that he believed this hearing was intended only to address a subsequent Form 36. To the contrary, the hearing notice for the September 26, 1995 informal hearing indicates as follows: “Form 36/Discontinuance of Benefits.” We find this notice to be sufficient to include the June 23, 1994 Form 36 which had previously been held in abeyance. Moreover, any alleged lack of notice on the part of the claimant in preparing for the hearing was certainly remedied when he had a full and fair opportunity to present his case at the formal hearing held on May 7, 1998 and August 26, 1999.
Section 31-296 C.G.S. states that an employer cannot discontinue or reduce payment on account of total or partial incapacity under any compensation agreement unless “the employer, if it is claimed by or on behalf of the injured person that his incapacity still continues, [notifies] the commissioner and the employee, by certified mail, of the proposed discontinuance or reduction and the reason therefor, and, such discontinuance or reduction shall not become effective unless specifically approved in writing by the commissioner.”
We have repeatedly stated that “in granting a Form 36, a trial commissioner should discontinue or reduce benefits effective on the date the Form 36 was filed, unless extenuating circumstances dictate that a later date is more appropriate.” Stryczek v. State of Connecticut/Mansfield Training School, 14 Conn. Workers’ Comp. Rev. Op. 32, 34, 1765 CRB-2-93-6 (May 4, 1995). We have also noted that a Form 36 should be ruled on as soon as possible in order to avoid undue delay, as a claimant should stop receiving total disability benefits as soon as possible after incapacity ceases. Stefenski v. C. Raimondo & Sons, 3081 CRB-2-95-6 (Jan. 8, 1997); Stryczek, supra. “Preferably, a Form 36 should not be held in abeyance for more than 30 days, and a hearing on discontinuation of benefits should be held as soon as possible after a claimant objects to a Form 36.” Santala v. New Britain General Hospital, 3298 CRB-8-96-3 (Nov. 25, 1997), citing Torres v. Southern Connecticut Truck & Tire Center, 3144 CRB-3-95-8 n.2 (Feb. 5, 1997).
In Anguish v. TLM, Inc., 3437 CRB-7-96-9 (Jan. 20, 1998), aff’d., 53 Conn. App. 241 (1999)(per curiam), cert. denied, (7/21/99)(Dissenting Opinion), the claimant argued that the trier deprived him of due process by rendering a decision on the Form 36 without first holding a formal hearing. The board explained that “the term ‘hearing’ as used in § 31-296 C.G.S. refers to a single emergency informal hearing that is to be held as soon as possible after the claimant objects to the Form 36.” Anguish, supra, (citations omitted). The board further explained that the commissioner should render his or her decision at the hearing or shortly thereafter by providing a copy of the ruling to each party, and should normally stop payments effective on the date the Form 36 was filed. Id. The board also explained that a claimant was entitled to challenge the approval of the Form 36 at a subsequent formal hearing.1 The board explained that the Stryczek decision did not vitiate the claimant’s due process right to a formal hearing on the record, but it “merely recognize[d] the intent of the legislature to cease paying claimants as soon as possible after their disabilities cease, and treat[ed] employers who have reached voluntary agreements equally to employers who are paying under awards arising out of contested claims.” Anguish, supra.
In the instant case, we do not agree with the claimant’s argument that the trial commissioner erred in granting the June 23, 1994 Form 36. Certainly, as of June 23, 1994, the date the Form 36 was filed, the claimant was put on notice that his total disability benefits were being contested. See Ryba v. West-Con, 3196 CRB-2-95-10 (Feb. 27, 1997). As explained above, “in granting a Form 36, a trial commissioner should discontinue or reduce benefits effective on the date the Form 36 was filed, unless extenuating circumstances dictate that a later date is more appropriate.” Stryczek, supra, 34. This is because § 31-307 governs the payment of total disability benefits, and “[w]hen Form 36 procedure is considered in conjunction with § 31-307, it becomes evident that the legislature intended that a claimant should stop receiving total disability benefits as soon as possible after his or her incapacity ceases, effective on the date the incapacity ceases .” Stefenski, supra, citing Stryczek, supra, 34; see also Santala v. New Britain General Hospital, 3298 CRB-8-96-3 (Nov. 25, 1997).
Here, as the claimant was aware that his total disability benefits were being contested as of June 23, 1994, and the trial commissioner found that he was no longer totally disabled effective October 7, 1994, we find no error in the granting of the Form 36 effective on that date. We have stated that “allowing a Form 36 to become effective after the close of overly lengthy proceedings would only compound the injustice of such a delay by providing the claimant with an unwarranted windfall.” Stefenski, supra, citing Stryczek, supra, 34-35. As explained above, the trial commissioner in the instant case determined that the claimant was no longer totally disabled effective October 7, 1994, and that decision must stand as it is fully supported by the record.
Insofar as the claimant’s appeal is challenging the constitutionality of the Form 36 procedure in § 31-296 C.G.S., we remind the parties that this board is not empowered to rule upon the constitutionality of statutes. Fish v. Caldor, Inc., 3840 CRB-7-98-6 (May 11, 1999) (“When considering issues of constitutional magnitude, we may go no further than to interpret existing statutes and cases in the manner most consistent with constitutional guarantees, and to instruct all parties concerned to conduct themselves accordingly.”).
The trial commissioner’s decision is affirmed.
Commissioners Leonard S. Paoletta and Ernie R. Walker concur.
1 In Ryba v. West-Con, 3196 CRB-2-95-10 (Feb. 27, 1997), we explained as follows: “Once those formal proceedings begin... the trial commissioner is entitled to consider a broader range of issues, including the key question of whether the claimant continued to be totally disabled.” BACK TO TEXT