ANGUISH v. TLM, INC., 3437 CRB-7-96-9 (1-20-1998)


CASE NO. 3437 CRB-7-96-9 CLAIM NO. 070001460Workers’ Compensation Commission
JANUARY 20, 1998

The claimant was represented by Melissa Balaban, Esq., and Stewart M. Casper, Esq., Casper de Toledo, L.L.C.

The respondents were represented by Joseph J. Passaretti, Jr., Esq., Law Offices of Christine Harrigan.

This Petition for Review from the September 17, 1996 Order of the Commissioner acting for the Seventh District was heard May 23, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.



The claimant has petitioned for review from the September 17, 1996 Order of the Commissioner acting for the Seventh District. He argues on appeal that the trier erred by finding that his constitutional right to due process was not violated when a previous commissioner approved a Form 36 without first conducting a formal hearing. We affirm the trial commissioner’s decision.

The claimant suffered a compensable back injury in 1986, and received temporary total disability benefits through 1994. The respondents filed a Form 36 on August 31, 1994 seeking to discontinue the claimant’s benefits on the ground that he had reached maximum medical improvement. The claimant objected, and am informal hearing was held on October 31, 1994, where the commissioner stated that he would withhold ruling on the Form 36 until the results of an upcoming independent medical examination were made available. Upon review of the doctor’s report, the trier approved the Form 36 retroactive to August 31, 1994.

The claimant appealed that decision, arguing that the trier deprived him of due process by rendering a decision on the Form 36 without first holding a formal hearing. In Anguish v. TLM, Inc.,14 Conn. Workers’ Comp. Rev. Op. 195, 2286 CRB-7-95-1 (July 13, 1995), we 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. See Stryczek v. Stateof Connecticut/Mansfield Training School,14 Conn. Workers’ Comp. Rev. Op. 32, 35, 1765 CRB-2-93-6 (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.” Anguish, 196.

We also explained that a claimant was still entitled to challenge the approval of the Form 36 at a subsequent formal hearing. The Stryczek
decision did not vitiate the claimant’s due process right to a formal hearing on the record. Instead, 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.” Id., 197. The claimant would still have the opportunity to present evidence and testimony at a formal hearing which normally would be held shortly after the Form 36 was approved. As such a hearing had not yet been held, we remanded this case to the Seventh District for a formal hearing on the approved Form 36.[1]

On remand, the trier found that the claimant’s temporary total disability benefits were reinstated on August 2, 1995 due to the claimant’s additional need for surgery. The respondents agreed that, from a medical standpoint, the claimant should have received benefits from January 9, 1995 (the date they were actually discontinued pursuant to the granting of the Form 36) through August 2, 1995. The trier thus revoked the granting of the Form 36. He also found that the claimant’s due process rights had not been violated when his request for a formal hearing prior to the approval of the Form 36 was denied. The claimant has again appealed that decision to this board.

The only issue raised on appeal is the constitutional and statutory adequacy of the “emergency informal hearing” procedure discussed inStryczek and in our previous opinion in Anguish. We have often stated that this board does not address questions which were or could have been raised in a previous appeal. Chase v. State of Connecticut/Dept. of MotorVehicles, 15 Conn. Workers’ Comp. Rev. Op. 292, 294-95, 2185 CRB-2-94-9
(June 20, 1996), rev’d., on other grounds, 45 Conn. App. 499 (1997);Peters v. State of Connecticut/Southern Connecticut State University,13 Conn. Workers’ Comp. Rev. Op. 131, 134, 1616 CRB-5-92-12 (Feb. 1, 1995). The claimant’s arguments here are virtually identical to those raised in his previous appeal, and we believe that our opinion in the first Anguish decision adequately explained our position on this issue. We do not believe it would be appropriate to address the same matter twice in one case.

We also note that the trial commissioner vacated the original ruling on the Form 36, from which the claimant’s initial appeal originated. Although the petition for review in this case comes from the subsequent commissioner’s order, there is no relief which we can grant the claimant. He has already been reinstated temporary total disability benefits, and the approval of the original Form 36 was vacated by the trier in the proceedings below. Therefore, it would seem that there is some merit to the respondents’ argument that the issues surrounding the procedure used in approving the Form 36 have been rendered moot before this board.

For the above reasons, we dismiss the claimant’s appeal.

Commissioners James J. Metro and John A. Mastropietro concur.

Frankl, J.

[1] The trial commissioner noted that the claimant appealed this decision to the Appellate Court, which dismissed the appeal for lack of final judgment on October 26, 1995. A petition for certification to the Supreme Court was denied on December 12, 1995. See 235 Conn. 934.