Cummings v. Twin Tool Mfg. Co., Inc.

• Decision Date: 02 January 1996
• Docket Number: No. 13865,13865
• Citation: 668 A.2d 1346,40 Conn.App. 36
• Court: Connecticut Court of Appeals
• Parties: David CUMMINGS v. TWIN TOOL MANUFACTURING COMPANY, INC., et al.

Page 1346

668 A.2d 1346

40 Conn.App. 36

David CUMMINGS v. TWIN TOOL MANUFACTURING COMPANY, INC., et al.

No. 13865.

Appellate Court of Connecticut.

Argued Sept. 26, 1995.

Decided Jan. 2, 1996.

Richard W. Gifford, Hartford, for appellant (plaintiff).

William C. Brown, Vernon, for appellees (defendants).

Before EDWARD Y. O'CONNELL, SPEAR and SHEA, JJ.

SPEAR, Judge.

The plaintiff, David Cummings, appeals from a decision of the compensation review board (board) denying him temporary total disability benefits pursuant to the workers' compensation statutes. He asserts that the board improperly (1) held that no notice of intention to discontinue temporary total disability benefits was required, (2) affirmed the commissioner's decision despite concluding that she had relied in part on a document that was marked for identification only and had made findings that were beyond the scope of the hearing, (3) affirmed the denial of the plaintiff's motion to submit additional evidence, and (4) affirmed the commissioner's refusal to recuse herself. We affirm the decision of the board.

The record discloses the following factual and procedural history. On December 7, 1984, the plaintiff sustained a compensable injury in the course of his employment and filed a claim for workers' compensation benefits. On May 14, 1990, following a hearing, Commissioner James Metro found that the plaintiff had attained maximum medical improvement from his injuries on October 30, 1986. Commissioner Metro also found that the plaintiff had a permanent disability of 55 percent of the brain, for which the commissioner awarded him 156 weeks of specific benefits. Those benefits were paid and are not at issue here. Further, the commissioner found that the plaintiff had become temporarily totally disabled again on November 6, 1989, and that the disability continued to May 14, 1990. The commissioner ordered the defendant employer and its defendant workers' compensation insurance carrier to pay temporary total disability benefits for that period. For reasons that are not apparent on the record, the defendants continued to make payments until December, 1991.

After the defendants stopped payments, the plaintiff filed a claim for temporary total incapacity benefits. On June 25, 1992, a formal hearing was held before Commissioner Roberta Smith D'Oyen on the claim for total disability benefits. On October 20, 1992, Commissioner D'Oyen, in dismissing the plaintiff's claim, found that the plaintiff had not been totally or partially disabled from December, 1991, to June 25, 1992. The plaintiff appealed to the board, which affirmed the commissioner's decision. This appeal followed.

"As a preliminary matter, we note that when a decision of a commissioner is appealed to the review [board], the review [board] is obligated to hear the appeal on the record of the hearing before the commissioner and not to retry the facts." Vanzant v. Hall, 219 Conn. 674, 677, 594 A.2d 967 (1991). The commissioner must determine the facts. Castro v. Viera, 207 Conn. 420, 435, 541 A.2d 1216 (1988). "The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them." Adzima v. UAC/Norden Division, 177 Conn. 107, 118, 411 A.2d 924 (1979). "Our scope of review of the actions of the review [board] is similarly limited." (Internal quotation marks omitted.) Romanski v. West Hartford, 34 Conn.App. 307, 316, 641 A.2d 439 (1994).

I

The plaintiff first claims that the defendants were required to file a Form 36 ¹ pursuant to General Statutes § 31-300 ² prior to discontinuing payments pursuant to the 1990 award. The plaintiff argues that despite the facts that the award covered a specific time period and that all payments have been made, the defendants were required to file a Form 36 before discontinuing payments. ³ We disagree.

Commissioner Metro correctly found temporary total incapacity only to the date of the evidentiary hearing, and made no finding of total incapacity beyond that date. A commissioner cannot make a finding of temporary total incapacity beyond the date of the most recent evidentiary hearing. Neurath v. UTC/Pratt & Whitney, 7 Conn.Workers' Comp.Rev.Op. 99, 100 (1989). "[T]otal incapacity becomes a matter of continuing proof for the period claimed.... [A]dditional proceedings are necessary to provide the requisite factual basis for a conclusion of continued total incapacity." Id.; Besade v. Interstate Security Services, 6 Conn.Workers' Comp.Rev.Op. 83, 87, aff'd, 212 Conn. 441, 562 A.2d 1086 (1989). In the present case, there would have to be a new claim and a new hearing before a finding of total incapacity for any further period could be made.

The plaintiff argues to the contrary in reliance on Platt v. UTC/Pratt & Whitney, 3 Workers' Comp.Rev.Op. 3 (1985). In Platt, the commissioner had awarded temporary total incapacity benefits for a specific period. The defendant discontinued benefits before the termination date set forth in the award because the plaintiff returned to work before that date. On appeal to the board, the defendant argued that, although the award had not terminated by its terms, the defendant was entitled to discontinue benefits on the date on which the plaintiff returned to work. The plaintiff argued that the defendant needed to file a Form 36 before those benefits could be discontinued.

The board in Platt held that a Form 36 is required to be filed "in certain instances before the employer is allowed to discontinue payments of compensation for total or partial incapacity." Platt v. UTC/Pratt & Whitney, supra, 3 Worker's Comp.Rev.Op. 6. It explained that a Form 36 is required only where "an employee is receiving compensation for total or partial incapacity under an agreement, oral or written, [or] an award ... and the employee contends that his incapacity still continues, if the employer intends to discontinue such payments...." Id., 7. Because benefits had been awarded beyond the date on which the plaintiff returned to work, the board found that a Form 36 was required.

Platt can be distinguished from the present case. In Platt, the defendant sought to terminate benefits that were previously awarded to the plaintiff. To terminate payments prior to the date set forth in the award was tantamount to altering the award without notice or a hearing and without the consent of the commissioner. In the present case, as in Platt, the award provided for payment for a definite time period. Unlike the defendant in Platt, however, the defendants in this case discontinued payments only after making all of the payments ordered in the award.

It is implicit in the statutory scheme that General Statutes § 31-296 does not apply where the award is limited by its own terms. "In construing a statute, common sense must be used, and the courts will assume that the legislature intended to accomplish a reasonable and rational result." (Internal quotation marks omitted.) Board of Education v. State Board of Labor Relations, 217 Conn. 110, 126, 584 A.2d 1172 (1991). It would not be reasonable or rational to require a second hearing on the proposed termination of an award that on its face provides for termination on a date certain. "Such a bizarre result could not have been intended by the legislature." State v. Jimenez, 228 Conn. 335, 341, 636 A.2d 782 (1994).

II

The plaintiff next asserts that the board improperly affirmed the commissioner's decision after striking paragraph eight of her findings, and paragraph C and a portion of paragraph E of her conclusions. The board struck paragraph eight of Commissioner D'Oyen's decision because it was based on a report that was marked for identification only and was not made a full exhibit. The board struck paragraph C and a part of paragraph E because those findings related to the plaintiff's future need for medical care, whereas the sole issue before the commissioner was whether the plaintiff was entitled to temporary total disability benefits from December, 1991, to the date of the hearing. The plaintiff argues that the portions of the testimony remaining after removal of those portions of the decision do not support the board's finding that the plaintiff was not totally disabled from December, 1991, to the date of the hearing. The plaintiff's assertion would place the burden on the wrong party. On a claim for workers' compensation benefits, the burden of proof is on the claimant. Tovish v. Gerber Electronics, 19 Conn.App. 273, 275, 562 A.2d 76, cert. denied, 212 Conn. 814, 565 A.2d 538 (1989). A claimant must prove that "(1) the workers' compensation commission has jurisdiction over the claim; (2) the claim has been timely brought ... (3) the claimant is a qualified claimant ... (4) the respondent is a covered employer ... (5) the claimant has suffered a personal injury ... arising out of and in the course of employment. J. Asselin, Connecticut Workers' Compensation Practice Manual (1985) § 1." Id., at 275-76, 562 A.2d 76. Further, "total incapacity becomes a matter of continuing proof for the period claimed." Neurath v. UTC/Pratt & Whitney, supra, 7 Conn. Workers' Comp.Rev.Op. 100; Besade v. Interstate Security Services, supra, 6 Conn.Workers' Comp.Rev.Op. 87. The defendants were not required to establish that the plaintiff was not totally incapacitated from December, 1991, to the date of the hearing. Rather, the burden of proof was on the plaintiff to establish his continuing total incapacity from December, 1991, forward. Neurath v. UTC/Pratt & Whitney, supra, 100.

As to the issue of total disability, the plaintiff offered the expert testimony of Alan Russakov, a physiatrist, as to the plaintiff's need for continuing treatment. In addition, on the basis of the case summary of John K. Stanwood, a clinical psychologist, the commissioner found that the plaintiff had seen Stanwood...