State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Capozzo v. Milford Jai Alai

CASE NO. 4655 CRB-3-03-3

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 26, 2004

PASQUALE CAPOZZO

CLAIMANT-APPELLEE

v.

MILFORD JAI ALAI

EMPLOYER

and

FAIRFIELD INSURANCE COMPANY

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Edward Gillis, Esq., Gillis & Gillis, Two Whitney Avenue, Suite 502, New Haven, CT 06510.

The respondents were represented by Karen Acquarulo, Esq., Montstream & May, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.

This Petition for Review from the March 18, 2003 Finding and Order of the Commissioner Acting for the Third District was heard October 31, 2003 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners James J. Metro and Howard H. Belkin.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents appeal from the March 18, 2003 Finding and Order of the Commissioner acting for the Third District. In that Finding and Order the trial commissioner dismissed the claimant’s claim for benefits pursuant to § 31-308(a) and found the respondents unduly delayed authorization for claimant’s knee surgery.

The pertinent facts in this matter are as follows. On or about June 25, 1998, the claimant sustained a compensable injury to his left knee. On November 18, 1998 claimant’s treating physician performed arthroscopic surgery on the claimant’s left knee. Following that surgery, the claimant continued to complain of clicking in his left knee and consulted his treating physician, Dr. Robert Stanton. In June 1999 an MRI was done of the claimant’s left knee and Dr. Stanton advised the claimant that another arthroscopic surgery was necessary. The claimant indicated he did not want to undergo another surgery at that time.

In July 1999, Dr. Stanton advised the claimant he could not continue his employment as a professional jai alai player due to the claimant’s physical restrictions, which included no heavy lifting, climbing, or repetitive squatting or bending. Dr. Stanton also opined the claimant was at maximum medical improvement and suffered a 5% permanent partial disability of the left knee. Pursuant to a Voluntary Agreement, the respondents paid 7.75 weeks of permanent partial disability. The claimant again saw Dr. Stanton in November 1999 regarding various complaints among which was pain and clicking in the left knee. Dr. Stanton again advised that arthroscopic knee surgery was necessary.

On December 26, 2000, the claimant advised Dr. Stanton that he was willing to undergo arthroscopic surgery. The arthroscopic surgery recommended by Dr. Stanton was causally related to the claimant’s June 25, 1998 compensable injury. On May 24, 2001 at the request of the respondents, the claimant was examined by Dr. Peter Jokl. On August 6, 2001, Dr. Jokl concurred with Dr. Stanton’s opinion as to claimant’s need for arthroscopic surgery. That surgery was performed by Dr. Stanton on November 21, 2001.

In his Finding and Order the trial commissioner concluded the respondents’ unduly delayed authorization of the claimant’s knee surgery and ordered a further hearing for the purpose of determining penalties under § 31-288(b) and § 31-300. The respondents took this appeal.

The only issue presented for review is whether the trial commissioner erred in concluding the respondents unduly delayed authorization of claimant’s knee surgery. The appellants argue their due process rights were violated as they were not afforded the opportunity to be heard on this issue. The appellee contends that the appellants were aware that the issue of undue delay was under consideration by the trial commissioner.

The formal hearing notice identified the issues as relating to § 31-308(a) temporary partial benefits. The record reflects the issue of undue delay was orally raised at the May 2, 2002 Formal Hearing. However, the record also reflects the undue delay claim was raised in the context of a delay in the payment of § 31-308(a) benefits. See May 2, 2002 Formal Hearing Transcript, pp. 6-7. Ultimately, the trier dismissed the claimant’s claim for 31-308(a) benefits relating to his knee injury. We agree with the appellants and remand this matter so as to give the respondents an opportunity to be heard on the issue of whether the respondents unduly delayed authorization of the claimant’s November 2001 knee surgery.

As we noted in Blaha v. Logistec Connecticut, Inc., 4544 CRB-3-02-6 (July 9, 2003):

Procedural due process is a requirement of adjudicative administrative hearings like workers’ compensation proceedings. Balkus v. Terry Steam Turbine Co., 167 Conn. 170, 177 (1974); Milliot v. Yale University, 4527 CRB-3-02-5 (May 14, 2003). Though Chapter 568 proceedings here in Connecticut do not require formal pleadings, the hearing notices that this Commission sends out must be detailed enough to provide parties with a working overview of the issues scheduled for discussion, in order to allow sufficient preparation. Audi v. Blakeslee Arpaia Chapman, 4234 CRB-3-00-5 (June 26, 2001). A party may also be apprised that a claim is at issue by other means, such as the statements of the parties at trial, the nature of the evidence they have presented, or the papers they have filed. Kudlacz v. Lindberg Heat Treating Co., 250 Conn. 581, 588 (1999).

Blaha, supra.

In the instant matter the claimant raised the issue of undue delay orally at the May 2, 2002 Formal Hearing. We do not think that the context of the claim nor the documents submitted in evidence adequately apprised the respondents that a claim for undue delay in the authorization of surgery was to be considered by the trial commissioner. The respondents are entitled to be heard on this issue.

We therefore reverse the March 18, 2003 Finding and Order of the Commissioner acting for the Third District insofar as it determines the appellants’ unduly delayed authorization for claimant’s November 2001 surgery and remand the matter for proceedings consistent with respondents’ due process rights.

Commissioners James J. Metro and Howard H. Belkin concur.

Workers’ Compensation Commission

Page last revised: April 30, 2004

Page URL: http://wcc.state.ct.us/crb/2004/4655crb.htm

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