Anguish v. TLM, Inc.

The claimant was represented by Renée Mayerson Cannella, Esq., Casper & de Toledo, 600 Summer St., Stamford, CT 06901.

The respondents were represented by Janine M. D’Angelo, Esq., Law Offices of Christine L. Harrigan, 1952 Whitney Avenue, Hamden, CT 06517.

This Petition for Review from the August 31, 1994 Approval of the Respondents’ Form 36 by the Commissioner acting for the Seventh District was heard May 19, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta S. D’Oyen and Angelo L. dos Santos.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the August 31, 1994 approval of the respondents’ Form 36 by the Commissioner for the Seventh District. The claimant argues on appeal that this matter must be remanded for a formal hearing in light of due process requirements, and that the claimant’s benefits should be reinstated until a decision can be rendered on the basis of a formal hearing. We agree in part and disagree in part with the claimant’s argument.

The claimant suffered a compensable back injury on December 16, 1986, for which he was receiving temporary total disability benefits. The respondents filed a Form 36 on August 29, 1994 that was received on August 31, 1994 by the Seventh District office. The respondents sought to discontinue the claimant’s total disability payments as of August 17, 1994 on the grounds that the claimant had reached maximum medical improvement as of that date. The claimant objected to the Form 36 and requested a hearing on the matter.

The commissioner held an informal hearing on October 31, 1994, which counsel for both parties attended. The commissioner told the parties that he would postpone ruling on the Form 36 until he received the results of an independent medical examination scheduled to take place on November 29, 1994 with Dr. Rubenstein. Upon receipt and review of that report, the commissioner approved the Form 36 retroactive to August 31, 1994.

Although the commissioner approved the Form 36 on December 19, 1994, the claimant was not notified of this approval until a telephone call on January 10, 1995. The claimant’s attorney first received a copy of the approved Form 36 on January 13, 1995, and filed a petition for review seven days later. This petition for review was timely under Conaci v. Hartford Hospital, 36 Conn. App. 298 (1994), as meaningful notice of the decision on the Form 36 was not sent to the claimant until January 10, 1995 at the earliest. Therefore, dismissal of the appeal under § 31-301(a) is unwarranted.

The claimant argues that the commissioner improperly rendered a decision on the Form 36 without first holding a formal hearing. We disagree. We have interpreted the term “hearing” as used in § 31-296 C.G.S. to mean a single emergency informal hearing that should be held as soon as possible after the claimant has objected to the Form 36. Stryczek v. State of Connecticut/Mansfield Training School, 1765 CRB-2-93-6 (decided May 4, 1995). The commissioner should render his or her decision at the hearing or shortly thereafter by providing a copy of the ruling to each party, as per a February 14, 1994 directive of Chairman Jesse M. Frankl. As was done here, the commissioner should normally stop payments effective on the date the Form 36 was filed. Id.

This is not to say, however, that the claimant is not entitled to challenge the Form 36 in a subsequent formal hearing. The claimant is correct in stating that this Board cannot adequately review a decision made without a record, and we do recognize the due process right of the claimant to a formal hearing. Stryczek, supra, does not vitiate that right. That case merely recognizes the intent of the legislature to cease paying claimants as soon as possible after their disabilities cease, and treats employers who have reached voluntary agreements equally to employers who are paying under awards arising out of contested claims. The claimant will still have the opportunity to present evidence, cross-examine witnesses and obtain a reviewable record at a formal evidentiary hearing, which ordinarily should be held shortly after the Form 36 is approved.

To date, a formal hearing has not been held in this matter. We therefore remand this case back to the Seventh District for a formal hearing on the approved Form 36.