Palm v. Yale University

The claimant was represented by David L. Denvir, Esq., Law Offices of Geraldine Battistoli, 1201 Boston Post Road, P.O. Box 979, Westbrook, CT 06498.

The respondent was represented by Neil J. Ambrose, Esq., Letizia, Ambrose & Cohen, 1 Church Street, New Haven, CT 06510.

This Petition for Review from the October 21, 1998 Finding and Award of the Commissioner acting for the Third District was heard June 18, 1999 before a Compensation Review Board panel consisting of the then Commission Chairman, Jesse M. Frankl and Commissioners Angelo L. dos Santos and Stephen B. Delaney.

OPINION

JESSE M. FRANKL, COMMISSIONER. The respondent employer has petitioned for review from the October 21, 1998 Finding and Award of the trial commissioner acting for the Third District. In that decision the trial commissioner found that the claimant, who suffered a compensable injury to his right shoulder on September 15, 1995, was temporarily totally disabled from January 27, 1997 to March 17, 1997. The trial commissioner concluded that the Form 36 filed by the respondent on March 17, 1997 had been correctly approved. The trial commissioner further found that the claimant was capable of sedentary work and thus awarded benefits pursuant to § 31-308(a) from March 17, 1997 through May 20, 1997.

In support of its appeal, the respondent contends that the trial commissioner erred in awarding temporary partial disability benefits because that issue was specifically not before the parties during the formal hearing. We agree.

This board has repeatedly held that “(i)t is fundamental in proper judicial administration that no matter shall be decided unless the parties have fair notice that it will be presented in sufficient time to prepare themselves upon the issue.” Cummings v. Twin Tool Manufacturing, 13 Conn. Workers’ Comp. Rev. Op. 225, 2008 CRB-1-94-4 (April 12, 1995), appeal dismissed June 29, 1995, A.C. 14747, quoting Connolly v. Connolly, 191 Conn. 468, 475-76 (1983), (internal quotations omitted); see also Casertano v. Shelton, 3329 CRB-4-96-4 (Sept. 16, 1997); Fusco v. TRW Geometric Tool, 4 Conn. Workers’ Comp. Rev. Op. 132, 134, 472 CRD-3-86 (1987). In the instant case, the claimant’s counsel repeatedly asserted during the formal hearing that the only issue was whether the respondent wrongfully discontinued temporary total disability benefits, but that the claimant was not at that time making a claim for temporary partial benefits under § 31-308(a).1

In fact, the claimant’s counsel’s request to limit the issues was repeatedly discussed at the formal hearing. Specifically, the respondent’s counsel explained that if the claimant wished to pursue a claim of temporary partial benefits, then the respondent had a witness present and prepared to testify regarding the claimant’s activities. The claimant’s counsel objected to the witness as follows: “This is strictly a formal about wrongful Form 36 practice, whether or not Yale University discontinued the benefits wrongfully. That was the only small legal issue we came to discuss here today.” (8/11/98 TR. at p. 23). After carefully reviewing the transcript, we conclude that the parties were not afforded sufficient notice that the issue of temporary partial benefits under § 31-308(a) would be decided, and we therefore must set aside the commissioner’s § 31-308(a) award and remand that issue for a formal hearing. See Casertano, supra.

Accordingly, we reverse the award of § 31-308(a) benefits, and remand this issue to the trial commissioner.

Commissioners Angelo L. dos Santos and Stephen B. Delaney concur.

1 COMMISSIONER: The claimant, before we get into stipulations, specifically does not want to pursue any claim for temporary partial benefits for the period of time that is claimed; is that correct? At least at this time.