212 Conn.App. 1
Conn. App. Ct.2022Background
- Plaintiff James Arrico, a city custodian, suffered a compensable L4 back injury in 2008 (voluntary agreements later fixed a 16% PPD with MMI in 2016) and a sacral fracture at work in 2017 (separate voluntary agreements).
- Defendants (Board of Education and PMA) filed a Form 36 (Feb. 28, 2018) seeking to discontinue/reduce benefits, relying on an independent examiner (Belkin) who found MMI and a work capacity with an additional 5% sacral rating.
- Formal hearings were held Dec. 2018 and Jan. 2019; the commissioner issued a de novo ruling (Aug. 20, 2019) approving the Form 36, finding combined 21% PPD and concluding any remaining total disability was due to nonwork comorbidities and that further treatment for the work injuries was palliative.
- The Compensation Review Board (Nov. 17, 2020) concluded substantial evidence supported the Form 36 result but vacated most of the commissioner’s reasoning because (1) the palliative-treatment finding was not noticed or litigated and (2) the commissioner failed to apply/identify the correct causation standard when resolving whether the compensable injury was a substantial factor in total disability; the board remanded those issues.
- The board denied the plaintiff’s motion requesting a de novo remand before a different commissioner; both sides appealed to the Appellate Court, which affirmed the board’s decisions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the board erred in vacating the commissioner’s conclusions about causation/§31-307 total-disability findings | Arrico: commissioner’s findings were inconsistent and required remand to a different commissioner for de novo trial | Defs: commissioner implicitly found a work capacity supported by substantial evidence; board should have affirmed | Court: board properly vacated commissioner’s causation conclusions because the commissioner did not identify whose recent, persuasive medical opinions supported her causation inference; remand for further proceedings was appropriate |
| Whether the board erred in vacating the commissioner’s finding that further treatment was palliative | Arrico: commissioner’s palliative finding was legal error affecting his right to a fair hearing; board should remand for de novo hearing before different commissioner | Defs: palliative finding simply supported MMI determination; issue need not have been remanded | Court: palliative/“reasonable or necessary” medical-care question under §31‑294d was not noticed or litigated; due process required vacatur and remand to allow parties to address that factual issue |
| Whether the board should have affirmed because the commissioner found a work capacity | Defs: commissioner adopted opinions finding a work capacity and the board should have deferred | Arrico: commissioner never actually credited those opinions as dispositive | Court: commissioner summarized opinions but made no explicit credibility/finding of work capacity; board could not affirm on a finding the commissioner never made |
| Whether §51‑183c or precedent required remand to a different commissioner for a de novo trial | Arrico: Fantasia and related authority require remand to a different commissioner when prior findings are inconsistent | Defs: remand to original commissioner is permissible and preferred for administrative economy | Court: §51‑183c applies only to judges/trials and not to workers’ compensation commissioners; Fantasia does not compel a different‑commissioner remand here; board did not abuse discretion in denying plaintiff’s request |
Key Cases Cited
- Fantasia v. Milford Fastening Systems, 86 Conn. App. 270 (Conn. App. 2004) (board may remand for a new hearing before a different commissioner when necessary to avoid retrying facts)
- Cantoni v. Xerox Corp., 251 Conn. 153 (Conn. 1999) (board has authority under §31‑301(c) to order rehearings before different commissioners; decision about remand forum is discretionary)
- State v. AFSCME, Council 4, Local 1565, 249 Conn. 474 (Conn. 1999) (§51‑183c by its terms applies only to judges)
- Chase Home Finance, LLC v. Scroggin, 194 Conn. App. 843 (Conn. App. 2019) (statutory interpretation and scope of appellate review principles)
- Ayna v. Graebel/CT Movers, Inc., 133 Conn. App. 65 (Conn. App. 2011) (standard of review for workers’ compensation appeals: board reviews commissioner’s record and limited to evidence certified)
- Bode v. Connecticut Mason Contractors, The Learning Corridor, 130 Conn. App. 672 (Conn. App. 2011) (definition of total incapacity under §31‑307)
- Cappellino v. Cheshire, 27 Conn. App. 699 (Conn. App. 1992) (definition of maximum medical improvement)
- Sellers v. Sellers Garage, Inc., 155 Conn. App. 635 (Conn. App. 2015) (discussion of reasonable or necessary medical care under §31‑294d)