CRB Case Annotations re: Section 31-296

Respondents filed a Form 36 seeking to establish maximum medical improvement and permanency rating. Claimant objected and at hearing, argued Form 36 could not be granted without ruling on an Osterlund theory of total disability. Trial commissioner determined respondent had met burden on Form 36 and bifurcated issue of total disability for future proceedings. Claimant appealed. CRB affirmed. Case indistinguishable from Rivera v. Patient Care of CT, 6005 CRB-6-15-4 (April 12, 2016) and stare decisis requires reaching the same result. See also, Mikucka, § 31-298; § 31-301 Factual findings; § 31-301-9; § 31-307.

Claimant sustained numerous orthopedic injuries to both knees. After 2003 injury respondent filed Form 36 in 2008. This was approved at informal hearing with effective date of 2009; and later at formal hearing approved with original 2008 effective date. Claimant appealed claiming Form 36 was effectively “backdated” with later evidence. CRB affirmed decision. Cases such as Brinson v. Finlay Brothers Printing Co., 4307 CRB-1-00-10 (November 1, 2001), aff’d, 77 Conn. App. 219 (2003) allows commissioners consider medical evidence developed after Form 36 filed. CRB reiterated that rule in Torres v. Southern Connecticut Truck & Tire Center, 3144 CRB-3-95-8 (Feb. 5, 1997) that Form 36 is usually effective as of filing date requires prima facia proof of maximum medical improvement accompanying form when filed. See also, Butler, § 31-301 Factual findings; § 31-307.

Respondent employer appealed trier’s determination that termination agreement signed by claimant purporting to release workers’ compensation claim release was unenforceable in workers’ compensation forum. Trier also concluded claimant received no consideration for release of workers’ compensation claim. Record indicated subject agreement was never presented to trial commissioner for approval and employer ultimately instructed claimant to sign agreement or forfeit severance package. CRB affirmed, noting that claimant and his counsel had attempted unsuccessfully to persuade respondent employer to remove release language from agreement and respondent employer declined to send representative to informal hearing scheduled to address whether provision regarding release of workers’ compensation claim was enforceable absent trial commissioner approval. CRB also held that claimant’s testimony regarding his understanding of method by which respondent employer generally calculated severance packages provided adequate basis for trier’s inference that claimant was not paid consideration for release of workers’ compensation claim. CRB denied respondent employer’s Motion to Submit Additional Evidence on basis that proposed testimony of claimant’s supervisor could have been provided during proceedings below. See also, Leonetti, § 31-278; § 31-290; § 31-298; § 31-301-9.

Claimant appealed Finding and Award in which trial commissioner declined to enter written award of compensability following respondents’ proffer of voluntary agreement. Claimant also appealed trial’s failure to sanction respondents for unreasonable contest. Respondents moved for dismissal of claim on grounds of untimely filing of Reasons of Appeal. CRB denied motion for dismissal noting that respondents had filed motion for dismissal after ten-day period following expiration of claimant’s deadline and had failed to show prejudice because of claimant’s late filing. CRB affirmed trial commissioner on all grounds. Issuance of approved voluntary agreement does not confer upon trier obligation to find compensability; nor does it constitute a judicial admission. Claimant had opportunity to challenge terms of voluntary agreement in formal proceedings. CRB also held that claimant’s medical history, lack of medical causation report, and circumstances surrounding claimant’s injury, including claimant’s failure to inform her supervisors of the workplace incident, provided adequate support for trier’s determination that respondents did not engage in an unreasonable contest of claim. Trier could reasonably infer that respondents’ failure to produce a witness following a trial commissioner’s order likewise did not constitute unreasonable delay in light of respondents’ initial request for a protective order, claimant counsel’s failure to coordinate deposition scheduling with respondents’ counsel, and witness’s inability to appear because of illness. Respondents’ failure to answer discovery request relative to attendance reports did not compel trier to draw an adverse inference, particularly as respondents’ defense was not solely predicated on claimant’s attendance on date of injury. See also, Lamothe, § 31-278; § 31-300; § 31-301. Appeal Procedure, § 31-301-2; § 31-301-9.

Ayna v. Graebel Movers, Inc., 5452 CRB 4-09-03 (July 21, 2010), aff’d, 133 Conn. App. 65 (2012), cert denied, 304 Conn. 905 (2012).

Respondents sought to terminate temporary total disability benefits asserting medical evidence and claimant’s activities proved he had a work capacity. Claimant denied earning money after injury and relied on treating physician’s opinions. He further claimed Trial commissioner should have relied on prior commissioner’s denial of a Form 36. Trial commissioner discontinued benefits. Claimant appealed and CRB upheld trial commissioner. Respondents’ examiner offered probative evidence claimant had work capacity. Previous decision on earlier Form 36 did not rely on this evidence and was not binding herein. Trial commissioner cited evidence claimant was active individual who received money in Louisiana, plus Trial commissioner found ex-wife a credible witness on issue of operating business. Trial commissioner could reasonably find claimant had work capacity when he found claimant not to be credible. See also, Ayna § 31-300, § 31-301 Factual findings, § 31-303, § 31-307.

Trial commissioner denied four separate Form 36’s filed by respondents. Evidence was supportive of conclusion that claimant still had total disability. See also, Ciaglia, § 31-307.

Parties entered into two stipulated agreements to pay claimant heart and hypertension benefits pursuant to § 7 433c C.G.S. Following publication of Genesky v. East Lyme, 4600 CRB 8 02 12 (December 8, 2003), employer sought to modify awards pursuant to provisions of § 31-315 C.G.S. arguing that trier never had subject matter jurisdiction to approve the awards because provisions of § 7-433c C.G.S. were not applicable to the Redding police department. Trier agreed both stipulated agreements were void ab initio but, per Salmeri v. Department of Public Safety, 70 Conn. App. 321 (2002), cert. denied, 261 Conn. 919 (2002), determined claimant’s initial incorrect selection of statutory remedy was irrelevant and, per DeMello v. Cheshire, 3633 CRB-8-97-6 (August 26, 1998), claimant’s Form 30C provided employer with sufficient notice of his application for benefits. Trier ordered parties to administer claim as if it had been brought pursuant to Chapter 568; trier also concluded respondent employer had improperly terminated payments and ordered further proceedings to determine amount of additional benefits due the claimant. CRB found conditions for modification pursuant to § 31-315 C.G.S. were not satisfied, in that publication of Genesky neither constituted a “changed condition of fact” nor warranted extension of equitable relief to respondents because of accident, mistake of fact, or fraud. CRB reversed and remanded. See also, Jones, § 7-433c, § 31-294c, § 31-315.

Respondents appealed from trial commissioner’s determination on remand that claimant was totally disabled, contending trial commissioner improperly used Motion for Articulation to change his original findings and issue a contradictory ruling. Respondents had filed Form 36 to discontinue temporary total benefits which was denied. On appeal, trier determined claimant was totally disabled. CRB remanded to trier for articulation and/or additional findings because Finding and Dismissal as written was unclear regarding (1) which medical evidence trier had relied on in determining total disability and (2) whether disability assessment had been based on medical or vocational factors. On remand, trier articulated which medical expert testimony he found most persuasive and indicated his initial assessment had been based on medical factors. CRB affirmed. See also, Bazelais, § 31-301. Factual findings, § 31-307.

Form 36 was filed seeking to convert temporary total disability benefits to permanent partial disability. Commissioner converted benefits to temporary partial disability. Parties later tried to agree on maximum medical improvement date and permanency rating, and stated at formal hearing that they had reached such agreement, but did not put terms of agreement into writing or explain them on record. Trier found insufficient evidence to establish agreement, and declined to characterize prior benefits paid as advances against permanency. CRB affirmed. No Form 36 was granted discontinuing temporary disability in favor of permanency, and there was no proof of a valid agreement to recharacterize previously paid benefits as permanency benefits. Issues that were undisputed—compromise rating of 6% and maximum medical improvement date—resulted in payment of permanency continuing to be payable as of date these matters were resolved. Also cited at Miller, § 31-308(b).

Respondents issued Form 36 to discontinue temporary total benefits. Trial commissioner found claimant was still totally disabled. CRB remanded to trier for articulation and/or additional findings. Findings were unclear as to medical evidence trier relied on in determining total disability. Also unclear whether disability was based on medical or vocational factors. See also, Bazelais, § 31-301. Factual findings, § 31-307.

As claimant returned to work following her physician’s release without work restrictions, and thereafter did not return to work until some time later, respondents were not compelled to file Form 36. Form 36 is required when an agreement between the parties exists. Here the respondents’ filing of a Form 36 on the basis of the physician’s release of the claimant to full duty and the claimant’s return to work, terminated their obligation to continue payments. See, Cogle, § 31-308(a), § 31-301. Factual findings.

CRB held evidence before trier was of such character that it was proper for the trial commissioner to reverse an earlier approval of uncontested Form 36.

CRB dismissed claimant’s appeal from ruling ordering repayment to the respondent for an overpayment of indemnity benefits following the formal approval of a Form 36. The claimant did not file any papers in support of her appeal other than a petition for review until after the matter was scheduled for oral argument. Furthermore, claimant’s argument before the CRB concerned issues relating to an earlier Finding and Dismissal from which the claimant did not take an appeal. See also, Greene, § 31-301. Appeal procedure. Prior decision at Greene, 4285 CRB-1-00-8 (September 21, 2000).

A flaw in service of a Form 36 is negated when claimant is afforded the opportunity to present his case against the approval of the Form 36 as if he received notice consistent with § 31-321. See also, Rurak, § 31-301, § 31-301-9. Additional evidence.

By holding de novo formal hearing on Form 36, parties rendered moot any alleged procedural inconsistencies regarding prior administrative approval of Form 36. With regard to substantive ruling, evidence supported trier’s determination that claimant had work capacity at time Form 36 was filed. See also, Krol, § 31-308(b).

Two Forms 36 were permissibly denied by trial commissioner at informal hearing, and subsequent trier who presided over formal proceedings. The first, alleging full work capacity, was inconsistent with opinion of treating physician. Informal hearing commissioner was not required to accept credibility of respondents’ examiner. Second Form 36 was also not denied in error, as totality of evidence allowed finding that claimant was still entitled to partial disability benefits during three-month period prior to her undertaking exhaustive, unsuccessful job searches. See also, Murray, § 31-294d, § 31-300, § 31-301. Factual findings, § 31-307, § 31-308(a).

CRB affirmed trier’s denial of Form 36. See also, Kraemer, § 31-294f.

CRB affirmed trier’s denial of Form 36. Evidence supported finding that claimant did not refuse reasonable medical treatment, or unreasonably delay surgery to travel to Australia. Trier was not required to make findings regarding claimant’s disability status, as Form 36 did not address issue of light-duty work capacity, and claimant was not informed in advance that this would be a contested issue.

See, Simotas, § 31-300, § 31-307.

Matey v. Dember, 4488 CRB-7-02-2, 4532 CRB-5-02-5 (May 14, 2003), appeal dismissed for failure to comply with Supreme Court’s directive, 85 Conn. App. 198 (2004).

See, Matey v. Dember, 256 Conn. 456 (2004). See, Matey § 31-307.

CRB affirmed trial commissioner’s finding and conclusion claimant was entitled to temporary total disability for a period following the date of an approved Form 36. Respondent’s contention that no change of circumstance existed warranting an award of temporary total disability benefits not persuasive. See also, Valletta, § 31-301. Factual findings.

See, Carroll, § 31-294d (Form 43 should be used to contest liability for allegedly palliative medical treatment, rather than Form 36).

CRB affirmed trial commissioner’s ruling that the claimant had a work capacity and thus, the Form 36 was appropriately approved. See, Hansen, § 31-307.

CRB took administrative notice of approved Form 36 (as had trier), which was based on medical report stating that claimant had reached maximum medical improvement with regard to low back impairment. However, failure to contest Form 36 within ten days did not prevent trier from taking note of continuing total disability, and in awarding total disability benefits. See also, Papa, § 31-301. Factual findings, § 31-301-9, § 31-307.

Physician felt claimant capable of light duty. No error in granting Form 36 on strength of independent medical examiner’s report, after which claimant was no longer entitled to continue her light duty status by working four-hour days. See also, Duddy, § 31-298; § 31-301. Factual findings; § 31-307.

Trier appropriately construed pro se claimant’s letter as an objection to Form 36. Formal hearing affords de novo review of ruling on Form 36. Claimant later hired counsel who did not object to second Form 36, but trier held objection unnecessary given that parties were already debating issues raised by that Form 36 via the hearing process. Trier may take into account context of events. See also, Covaleski, § 31-294d, § 31-307.

CRB affirmed granting of Form 36 effective April 3, 2001 where claimant did not receive updated IME report until May 18, 2001, three days before formal hearing. Claimant was aware that benefits had been discontinued, and doctor had stated in prior report that she could perform light work, provided that blood tests came back negative for an occult infection. Reasonable for trier to infer that claimant was not unfairly prejudiced by delay in providing report, though § 31-294f(b) was technically violated. See also, Carozza, § 31-294f.

Total disability issue raised at outset of hearings was settled via stipulation through October 1999. Testimony of doctor gave rise to new issue of possible sedentary work capacity. CRB affirmed trier’s omission of a ruling on this issue, as Form 36 was not filed until formal hearings had essentially concluded. See also, Irizarry, § 31-294d.

Sellers v. Sellers Garage, 4391 CRB-5-01-5 (April 26, 2002), aff’d, 80 Conn. App. 15 (2003), cert. denied, 267 Conn. 904 (2003).

Pro se claimant argued that employer should have filed Form 36 before ceasing “without prejudice” disability payments after 23 weeks, as Admin. Reg. § 31-296-2 only allows six weeks of payments without prejudice. CRB disagreed that payment beyond six weeks constitutes acceptance of claim for disability, thereby obligating employer to file Form 36. 1993 amendment to § 31-294c discussed, by which legislature extended employer’s time for contesting compensation or extent of disability to one year; regulation was not amended to conform to change in § 31-294c, and CRB noted this conflict, along with importance of “without prejudice” payments. See also, Sellers, § 31-301. Appeal procedure. Subsequent decision at Sellers, 4762 CRB-5-03-12 (February 3, 2005), aff’d, 92 Conn. App. 650 (2005); 4807 CRB-5-04-5 (March 3, 2005), aff’d, 92 Conn. App. 683 (2005).

Board found no error in trier’s approval of Form 36 discontinuing total disability benefits. Trier adequately addressed claimant’s contention that surveillance tapes were misleading and that physician misinterpreted them, and trier had discretion to accept that doctor’s medical opinion.

Trier properly approved Form 36 where claimant was capable of non-strenuous work and had reached MMI based upon medical report of independent medical examiner. See also, Rodrigues, § 31-279-3, § 31-298, § 31-301-9. Prior decision at Rodrigues, 4043 CRB-5-99-4 (July 26, 2000), § 31-301. Appeal procedure, Factual findings, § 31-308a.

Respondents argued that it was error to reverse approval of Form 36, as prior commissioner had discretion to grant it based on medical evidence available at that time. CRB disagreed. At formal hearing, trier may review approval or denial of Form 36 that was made at informal hearing, and must make decision based on evidence presented at formal hearing. See also, Brinson, § 31-301-4, 31-308(a).

Board affirmed trier’s award of four weeks of temporary total disability benefits, and disagreed with claimant’s argument that Form 36 was necessary where there was no evidence that respondents agreed to pay total disability benefits, or that ongoing total disability benefits were being paid. See also, LaPierre, § 31-307, 31-308(a).

See, Audi, § 31-298, § 31-301-9, § 31-315 (CRB affirmed reopening of voluntary agreement and Form 36); See also, Audi, § 31-307. See prior decision Audi, 3418 CRB-3-96-9 (August 4, 1997), § 31-349. Also see subsequent decision Audi, 4311 CRB-3-00-10, 4624 CRB-3-03-2 (February 10, 2004), § 31-278, § 31-284(b), § 31-288, § 31-300.

CRB affirmed trier’s approval of Form 36, which had been filed on June 23, 1994, effective October 7, 1994. Trier found that claimant was no longer temporarily totally disabled as of October 7, 1994. Board disagreed with claimant’s characterization of Form 36 approval as “retroactive,” as trier approved it effective October 7, 1994, which was after its filing date. CRB discussed Form 36 procedure, but declined to address constitutional issues.

CRB affirmed trier’s decision granting respondents’ two Forms 36 dated March 6, 1989 and November 15, 1985. 1989 Form 36 was based on medical report that indicated claimant capable of working. 1985 Form 36 was based on a report describing claimant as capable of light duty work. Claimant argued that 1985 Form 36 was legally insufficient because it was not certified by a licensed physician. CRB concluded that trier considered totality of evidence, and found claimant was not totally disabled as of 1985.

See, Christman, § 31-301. Appeal procedure, § 31-308(a)(CRB found error in post-filing approval date of Forms 36).

Board affirmed trier’s ruling that claimant was no longer disabled, as evidenced by a medical report issued by a § 31-294f examiner. Trier found that Form 36 had properly been granted effective April 30, 1998 (the date it was filed), and that medical treatment was not reasonable or necessary subsequent to that date. Issue was one of fact for the commissioner to decide. See also, Covert, § 31-294d, § 31-301-4, § 31-301-9.

See, Brown, § 31-298 (trier in subsequent proceeding did not err by awarding total disability benefits predating an earlier formal hearing, as previous commissioner had only considered issue of disability through date Form 36 was filed). See also, Brown, § 31-307. Prior decision at Brown, 3100 CRB-2-95-6 (December 23, 1996), infra, § 31-298.

Trier denied claimant’s request to reopen Form 36 in order to change maximum medical improvement date of March 12, 1996, presumably relying on a medical report upon which the commissioner who presided over the initial Form 36 proceeding had also relied. CRB held that trier had discretion to choose among various reports in ascribing MMI date, as question was purely factual. Claimant also failed to offer into evidence any documentation to show that the parties had previously agreed to set an MMI date of November 1997 should he decline surgery. No error in trier’s failure to discuss this alleged agreement. However, CRB ruled that MMI date would have to be amended because Form 36 was not filed until August 19, 1996, and claimant continued to maintain that he was entitled to temporary disability benefits. Permanency benefits cannot commence retroactively to MMI date if it occurs prior to filing of Form 36. See also, Bennett, § 31-301. Factual findings.

Lirot v. Mashantucket Pequot Gaming, 4015 CRB-2-99-3 (March 13, 2000), aff’d, 62 Conn. App. 908 (2001)(per curiam), cert. denied, 257 Conn. 908 (2001).

CRB affirmed granting of Form 36 where physician did not sign form, but signed note was attached releasing claimant to light duty. Prior decision at Lirot, 3400 CRB-2-96-8 (April 7, 1997).

Auger v. Stratford, 3944 CRB-4-98-12 (January 14, 2000), rev’d, 64 Conn. App. 75 (2001).

See, Auger, § 31-284b, § 31-300, § 7-433c.

Trier found that claimant had not been totally disabled during disputed period, and then concluded that he had “most probably [been] partially disabled” through date of maximum medical improvement. Although neither party had alleged temporary partial disability, the distinction (which was supported by medical evidence) was irrelevant for the purposes of this case. Respondents had not filed a Form 36 seeking to discontinue payment of benefits, and whether paying temporary total or temporary partial disability benefits, the respondents were required to file a Form 36 before discontinuing payment. See also, Hyde, § 31-300, § 31-301. Factual findings.

CRB reversed decision of trial commissioner granting Form 36 effective as of formal hearing date. Absent evidence of extenuating circumstances, Form 36 must be granted effective the date it is filed. (Miles, C., DISSENTING) CRB should remand to give trier opportunity to explain whether the use of formal hearing date had a basis.

Trial commissioner affirmed Form 36 effective on date filed. Respondents argued on appeal that it was undisputed that the maximum medical improvement date was actually several months earlier, and that the trier should have made the Form 36 ceasing payment of § 31-308(a) benefits effective at that time. CRB held that § 31-296 specifically requires a Form 36 to be filed before benefits for total or partial incapacity are discontinued, which includes benefits being paid under § 31-308(a). Trier correctly ordered that the maximum medical improvement date be treated as the date the Form 36 was filed. See also, Jones, § 31-308(a).

Form 36 filed December 21, 1994. Trier discontinued benefits effective October 3, 1995. CRB explained that trier should discontinue benefits effective on the filing date of a Form 36 unless extenuating circumstances indicate a later date is more appropriate. There was no hint of such circumstances here. See also, Santala, § 31-307.

See, Liano, § 31-279-3, § 31-298, § 31-307. Subsequent decisions at Liano, 3561 CRB-4-97-3 (June 3, 1998), rev’d in part, 55 Conn. App. 75 (1999), cert. denied, 252 Conn. 909 (1999), § 31-300; Liano, 3447 CRB-4-96-10 (January 6, 1998), aff’d, 51 Conn. App. 905 (per curiam), cert. denied, 248 Conn. 907 (1999), § 7-433c; companion decision at Liano, 3299 CRB-4-95-10 (March 25, 1997), § 31-294c, § 31-297, § 31-301. Factual findings. Prior decision at Liano, 14 Conn. Workers’ Comp. Rev. Op. 201, 2033 CRB-4-94-5 (July 25, 1995), appeal and cross appeal dismissed, lack of final judgment, A.C. 15082 (June 6, 1996), cert. denied, 238 Conn. 906 (1996), § 7-433b, § 31-300, § 31-310.

Commissioner approved Form 36 effective on its filing date of January 3, 1994, on the ground the claimant had not proven total disability subsequent to that date. Claimant argued error in that the Form 36 was based on failure to continue treatment, which became moot when he agreed to treatment; second Form 36 was not filed until March 10, 1994, and could not be effective any earlier. Held: although trier is normally restricted to the grounds listed in the Form 36 at the “speedy emergency informal hearing” that must be held soon after the claimant objects to discontinuance of benefits, the same is not true at a later formal hearing on the matter. There, the trier may consider a broader range of issues, including the existence of total disability. Also: Motion to Submit Additional Evidence denied; failure of counsel to anticipate need for claimant to be present to testify at formal hearing is not an adequate reason for allowing additional evidence on appeal. Existence of total disability is a factual issue based on trier’s evaluation of credibility of evidence; accuracy of doctor’s reports could reasonably be questioned by commissioner. See also, Ryba, § 31-301-9 and § 31-307.

Claimant entered into stipulation with insurer for over $40,000 three days before claimant died of terminal cancer. Insurer was not aware of terminal illness, and potential entitlement to future benefits was considered in calculating stipulation. Commissioner declined to enforce stipulation on ground it would be inequitable. Claimant appealed. Held: most case law regarding stipulations concerns protection of claimant’s interests, but protecting employee’s rights does not mean ignoring the rights of the employer or insurer. Fairness and equity are two-way streets. Commissioner found respondent no longer agreed with stipulation at time it was submitted for approval, and had the authority to withhold approval of that contract.

Trial commissioner erred by approving Form 36 effective on date claimant reached maximum medical improvement, as Form 36 was not filed until 1� years later. Respondent must notify commissioner and employee of proposed discontinuance of benefits prior to the proposed cut-off date, and Form 36 may not become effective before date it is filed. Also, commissioner should not hold Form 36 in abeyance for more than 30 days, as a hearing should be completed as soon as possible after a claimant objects to a Form 36. (Brouillet, C., CONCURRING) Limited situations exist where Form 36 should be approved retroactively, such as where claimant has returned to work, or where award paid pursuant to approved voluntary agreement has run out.

Fund filed Form 36 on May 18, 1993 along with April 1993 medical report stating claimant had light duty capability. Commissioner found claimant not totally disabled, but with severely limited work capability; approved Form 36 as of date of decision, which was almost two years after Form 36 was filed. CRB held that no finding supported the use of a severance date for total disability benefits later than the filing date of the Form 36, which should have been ruled on soon after it was filed to avoid undue delay. Reversed. See also, Stefenski, § 31-308a.

Herwerth v. Groton, 3105 CRB-2-95-6 (December 24, 1996), aff’d, 45 Conn. App. 922 (1997)(per curiam).

Form 36 procedure reviewed; as claimant maintained continuing total disability, commissioner inappropriately ordered retroactive commencement of permanent partial disability benefits prior to filing date of Form 36, even though maximum medical improvement may have been reached earlier. Claimant had no notice until 1993 that respondent was contesting disability back to 1990. See also notes on § 31-301. Appeal procedure re: Motion to Dismiss for late Reasons of Appeal.

Wrubleski v. Kimberly-Clark Corp., 3106 CRB-7-95-6 (December 24, 1996). Trial commissioner ruled that 1992 stipulation did not preclude carpal tunnel claim. Affirmed. Stipulations are intended to foreclose future claims flowing from a compensable injury. However, a release will not be construed to include claims not contemplated by the parties. Absence of relationship between carpal tunnel syndrome and previous injury, coupled with finding that claimant did not make a claim for carpal tunnel before stipulation approved, supports commissioner’s decision.

Claimant appealed approval of Form 36 to CRB. Issue regarding authority of Acting Commissioner to rule on Form 36 at informal hearing was moot, as issue tried de novo at a later formal hearing, superseding the first ruling. At formal hearing, trial commissioner was entitled to use doctor’s testimony in assessing meaning of report, even though doctor failed to sign report. Commissioner could rely on it in later proceedings, as doctor authenticated it in his deposition. Evidence thus supported discontinuation of total disability benefits. No improper shifting of burden of proof; claimant simply failed to rebut respondent’s evidence. See also, Brown, § 31-298. Subsequent decision at Brown, 4053 CRB-2-99-5 (July 27, 2000), § 31-298, § 31-307, and cited supra.

Respondents failed to file Form 43, and stopped noting that payments to claimant were being made without prejudice over six years before they attempted to discontinue payment. CRB affirmed finding that they had accepted compensability of claim, noting that Admin. Reg. § 31-296-2 allows payments without prejudice for only six weeks. See also, Infante, § 31-294d, and § 31-315.

Dichello v. Holgrath Corporation, 15 Conn. Workers’ Comp. Rev. Op. 441, 2249 CRB-5-94-12 (September 5, 1996), aff’d, 49 Conn. App. 339 (1998).

No error in granting Form 36; trial commissioner was not required to credit doctor’s testimony that claimant’s disability continued over conflicting testimony by other doctors. Unchallenged findings also supported decision. See also, Dichello, § 31-294d, and § 31-300.

No error for commissioner to fail to penalize respondents for failing to file Form 36 before discontinuing benefits. Claimant had ceased performing light duty work and was cleared for regular work by treating physician and attempted to resume regular work before payment stopped, thus ending period of partial incapacity under § 31-308(a). Fact that compensability had been presumed under § 31-294c(b) did not change fact that claimant had to allege continuing incapacity to be entitled to advance notice under § 31-296. See also, Landry, § 31-294d, and § 31-301.

Kelley v. New England Railroad, 15 Conn. Workers’ Comp. Rev. Op. 206, 2274 CRB-2-95-1 (April 23, 1996), rev’d, 45 Conn. App. 448 (1997).

Retroactive approval of Form 36 permissible, as claimant did not allege continuing incapacity. See also, Kelley, § 31-349 (transfer to Second Injury Fund upheld, notice timely; Appellate Court reversed).

Petition for review from approval of Form 36. No formal hearing yet, so case remanded to district.

Hurley v. Bridgeport, 14 Conn. Workers’ Comp. Rev. Op. 366, 2037 CRB-4-94-5 (September 26, 1995).

The commissioner determined that the employer’s payments to the claimant did not constitute temporary total or partial disability payments, but rather constituted a continuation of his salary pursuant to his employment contract. In the absence of an order or a written or oral agreement to make workers’ compensation payments, the trial commissioner properly concluded that the employer was not required to file a notice prior to discontinuing such payments. See also, Hurley, § 31-307.

Crowe v. DBD, Inc., 14 Conn. Workers’ Comp. Rev. Op. 283, 1941 CRB-7-93-12 (September 11, 1995), correction, 15 Conn. Workers’ Comp. Rev. Op. 1 (September 27, 1995).

Commissioner approved Form 36 retroactively effective to maximum medical improvement date. Held, earliest date on which Form 36 can become effective is its filing date. Case remanded.

Anguish v. TLM, Inc., 14 Conn. Workers’ Comp. Rev. Op. 195, 2286 CRB-7-95-1 (July 13, 1995), appeal dismissed for lack of final judgment, A.C. 15034 (October 26, 1995), cert. denied, 235 Conn. 934 (1995).

In light of Conaci v. Hartford Hospital, 36 Conn. App. 298 (1994), notice of decision on Form 36 was not deemed sent until claimant was actually notified of its approval. Thus, petition for review was timely. Also, a formal hearing is unnecessary before rendering a decision on a Form 36; a single emergency informal hearing will suffice, as discussed in Stryczek (below). However, the claimant was entitled to challenge the Form 36 in a subsequent formal hearing, which ordinarily should be held shortly after the Form 36 is approved. Remanded.

1980 injury accepted by voluntary agreement; Form 36 request to discontinue benefits filed on 8/8/88. Commissioner found on 3/10/92 that respondents had met burden of proving claimant no longer disabled, and ruled that benefits should be discontinued as of the last formal hearing date on 11/14/91. Held, when Form 36 procedure is considered with § 31-307, it is evident that the legislature intended that claimants should stop receiving total disability benefits effective on the date incapacity ceases. No reason why same rule should not apply where voluntary agreement in effect. Thus, unless circumstances dictate otherwise, a commissioner should grant a Form 36 effective on the date of its filing. The word “hearing” in § 31-296 refers to a single emergency informal hearing, which should be held as soon as possible after the claimant objects to the Form 36.

Appeal dismissed absent a record of the trial proceedings wherein respondents’ Form 36 was approved. See also, Eldridge, § 31-301. Appeal procedure.

Santiago v. Metropolitan Insurance Co., 12 Conn. Workers’ Comp. Rev. Op. 388, 1631 CRB-6-93-1 (September 1, 1994), appeal dismissed (February 3, 1995).

CRB held ten day provision is directory as opposed to mandatory. When ten day provision is not complied with, it is within the trier’s discretion whether to permit claimant to contest and challenge an already approved Form 36. See also, Santiago, § 31-307 and § 31-315.

Cummings v. Twin Tool Mfg. Co., 12 Conn. Workers’ Comp. Rev. Op. 341, 1542 CRB-1-92-10 (July 11, 1994), aff’d, 40 Conn. App. 36 (1996).

No Form 36 required where previous finding awarded total disability benefits and limited those benefits through the date of the decision. A claim for further total disability benefits therefore is a matter of continuing proof. See also, Cummings, § 31-298, § 31-301. Factual findings, § 31-301-9. Additional evidence and § 31-307.

See, Mulligan, § 31-293(a) Reimbursement and third party suits. See, Mulligan v. Hall, 32 Conn. App. 203 (1993).

CRB affirmed trier’s determination that respondents had disputed liability, and thus respondents were not required to either issue a voluntary agreement or to follow Form 36 procedure in order to terminate temporary total benefits. Respondents’ payment of temporary total benefits did not constitute acceptance of compensability under § 31-296-2. See also, Lee, § 31-307.

Byars v. Whyco Chromium Company, 11 Conn. Workers’ Comp. Rev. Op. 39, 1257 CRD-5-91-7 (March 10, 1993), dismissed for lack of final judgment, 33 Conn. App. 667 (1994).

Evidence supports trier’s determination claimant was no longer totally disabled and could perform selected work. See also, Byars, § 31-294d, § 31-300 and § 31-301-9. Additional evidence.

Graziano v. St. Mary’s Hospital, 11 Conn. Workers’ Comp. Rev. Op. 10, 1230 CRD-5-91-5 (February 8, 1993).

Notice to discontinue benefits not required for discontinuing partial incapacity benefits for a neck and shoulder injury where temporary total benefits are being paid for a separate right leg injury. See also, Graziano, § 31-307, § 31-308a and § 31-310.

Muldoon v. Homestead Insulation, 10 Conn. Workers’ Comp. Rev. Op. 255, 1226 CRD-4-91-5 (January 13, 1993), rev’d, 33 Conn. App. 695 (1994), rev’d, 231 Conn. 469 (1994), aff’d on remand, 37 Conn. App. 266 (1995).

See, Muldoon, § 31-275(1), § 31-275(15), § 31-284(a), § 31-299b. Subsequent decisions.

Trier found claimant had some work capacity and was not totally disabled due to chronic pain syndrome. Where the medical testimony is conflicting and there is supporting evidence, trier’s conclusion must stand.

Molbury v. Midwest Drivers Corporation, 10 Conn. Workers’ Comp. Rev. Op. 202, 1278 CRD-7-91-8 (November 12, 1992).

Medical evidence, although conflicting, supports trier’s conclusion claimant was no longer totally disabled. See also, Molbury, § 31-301. Appeal procedure.

Gillette v. State/J.B. Gates Correctional Unit, 10 Conn. Workers’ Comp. Rev. Op. 69, 1145 CRD-2-90-11 (March 26, 1992), vacated and reissued (July 8, 1992).

No grounds exist under § 31-315 for modification of a voluntary agreement for claim of state employee to receive benefits pursuant to § 5-142(a). Trier found claimant was not in the actual performance of guard duties at the time of his injury thereby not entitled to receive benefits under § 5-142(a). See also, Gillette; § 5-142(a) and § 31-315.

Chemero v. Westreco, Inc., 10 Conn. Workers’ Comp. Rev. Op. 142, 1081 CRD-7-90-7 (June 29, 1992).

CRB affirmed trier’s ruling approving respondents’ Form 36. Also affirmed finding that claimant was not psychiatrically temporarily totally disabled as that finding was supported by evidence. Further, where finding is clear as to basis for conclusion and additional evidence proffered is merely cumulative trier’s denial of claimant’s Motion for Articulation and Motion for Modification will not be disturbed. See also, Chemero, § 31-301. Appeal procedure, Factual findings, § 31-315.

Germe v. Conway Eastern Express, 10 Conn. Workers’ Comp. Rev. Op. 148, 1180 CRD-3-91-2 (June 29, 1992).

Any Form 36 issue as to whether claimant remained totally disabled should have been made at the formal hearing below. As hearing notice referred to neck and shoulder injury, respondents had ample time to present evidence at the formal hearing below as to causation and employment relationship, and thus the scope of the formal hearing was not limited to the approval of the Form 36. See also, Germe, § 31-301. Factual findings.

Goncalves v. Cornwall & Patterson, 10 Conn. Workers’ Comp. Rev. Op. 43, 1111 CRD-4-90-9 (January 28, 1992).

Remanded as trier’s conclusion claimant was able to work, however no work was found or available during period in question lacks evidentiary factual findings. Work search procedure is an informally accepted evidentiary basis to demonstrate a willingness to work. However, it is not the only evidentiary means by which a claimant may demonstrate reasonable efforts to find work. See also, Goncalves, § 31-301. Factual findings, § 31-308a.

Fiore v. Office Furniture Depot, 10 Conn. Workers’ Comp. Rev. Op. 15, 1093 CRD-3-90-8 (December 27, 1991).

Remanded as employment contract provided for time and a half for each Sunday worked and two (2%) commission on sales. The computations on which the voluntary agreement was based derived from inconsistent or mistaken facts. See also, Fiore, § 31-310 and § 31-315.

Holevinski v. State/Southbury Training School, 9 Conn. Workers’ Comp. Rev. Op. 215, 988 CRD-5-90-3 (September 12, 1991).

Where claimant returns to work after sustaining a compensable injury and then suffers a new and separate injury, no Form 36 is required. See, Platt v. UTC/Pratt & Whitney Aircraft Div., 3 Conn. Workers’ Comp. Rev. Op. 3, 164 CRD-6-82 (August 16, 1985). See also, Holevinski, § 31-300, § 31-307. Remanded on § 31-300 issue.

Haluschak v. J.F. Barrett & Sons, Inc., & S.I.F., 9 Conn. Workers’ Comp. Rev. Op. 93, 925 CRD-3-89-10 (March 1, 1991).

A party without notice or participation in proceedings involving an approval of a voluntary agreement cannot be held liable for payments.

Applebee v. State/Southbury Training School, 8 Conn. Workers’ Comp. Rev. Op. 142, 841 CRD-5-89-4 (August 20, 1990).

See, Applebee, § 31-294f.

Minotti v. State, 6 Conn. Workers’ Comp. Rev. Op. 165, 611 CRD-2-87 (June 2, 1989).

Evidentiary basis for trial commissioner to discontinue § 5-142(a) temporary total disability benefits based on maximum medical improvement.

Hankey v. Hamden Steel and Aluminum Corp., 6 Conn. Workers’ Comp. Rev. Op. 153, 644 CRD-5-87 (April 28, 1989).

Remanded where trial commissioner’s finding failed to apprise respondents of why their Form 36 was not proper. See also, Hankey, § 31-301. Appeal procedure.

Richardson v. H.B. Sanson, Inc., 6 Conn. Workers’ Comp. Rev. Op. 107, 590 CRD-1-87 (February 23, 1989).

Remanded. A voluntary agreement is a consensual agreement requiring the approval of both parties. A trial commissioner may not order its enforcement on a party that has not consented to it.

Stearns v. First National Supermarkets, 6 Conn. Workers’ Comp. Rev. Op. 103, 588 CRD-1-87 (January 26, 1989).

Trial commissioner’s conclusion as to continuing total incapacity will not be disturbed where evidence in conflict. See also, Stearns, § 31-307.

Muir v. Trailways of New England, 4 Conn. Workers’ Comp. Rev. Op. 120, 419 CRD-6-85 (November 9, 1987).

A valid approved Form-36 is a condition precedent to the discontinuance of payments.

Damelio v. Anaconda, Inc., 4 Conn. Workers’ Comp. Rev. Op. 31, 281 CRD-5-83 (March 4, 1987), no error, 15 Conn. App. 805 (1988)(per curiam), cert. denied, 208 Conn. 814 (1988).

Validity of Form-36 (Discontinuance) upheld where physician’s signature could be incorporated by reference to another form.

Platt v. UTC/Pratt & Whitney Aircraft Div., 3 Conn. Workers’ Comp. Rev. Op. 3, 164 CRD-6-82 (August 16, 1985).

CRB Case Annotations re: Section 31-296

Voluntary agreements (discontinuance of payments).