183 Conn. App. 147
Conn. App. Ct.2018Background
- Mikucka, a cook, sustained compensable bilateral shoulder injuries in 2011; the employer (St. Lucian’s) accepted liability and paid temporary total disability benefits.
- Employer filed a form 36 on March 19, 2014, seeking to discontinue benefits on the ground that Mikucka had reached maximum medical improvement (MMI); treating physician assigned permanent partial disability ratings.
- At an informal hearing the form 36 was approved; plaintiff requested a formal hearing and the commissioner scheduled one for March 11, 2015, to determine MMI.
- At the formal hearing Mikucka’s counsel did not present medical evidence rebutting MMI but instead sought to raise an Osterlund vocational total disability claim; the commissioner declined to litigate that new issue on the spot, offered a bifurcated hearing and invited the plaintiff to return in ~3 weeks to present vocational evidence.
- The plaintiff did not pursue the offered follow‑up hearing; the commissioner granted the form 36 (finding MMI and a work capacity) effective March 19, 2014; the Compensation Review Board affirmed.
- On appeal Mikucka argued (1) denial of due process by being prevented from presenting Osterlund evidence at the March 11 hearing; and (2) error in finding she was not totally disabled under Osterlund.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether commissioner’s refusal to hear Osterlund evidence at the March 11 hearing violated plaintiff’s due process rights | Mikucka: denial of meaningful opportunity to be heard; needed to present vocational evidence to rebut form 36 | Defendants: commissioner properly required notice so employer could prepare; plaintiff had opportunity to return and was not prejudiced | Held: No due process violation — plaintiff was invited to return and declined; bifurcation protected defendants’ notice rights |
| Whether commissioner erred in finding plaintiff not totally disabled under Osterlund | Mikucka: she is vocationally unemployable despite ability to perform menial work | Defendants: no evidence was timely presented to establish Osterlund claim at the March 11 hearing | Held: Claim not ripe for review — plaintiff chose not to litigate the vocational claim when given the chance, so court will not decide a hypothetical claim |
Key Cases Cited
- Osterlund v. State, 135 Conn. 498 (Conn. 1949) (establishes vocational/unmarketability theory of total disability)
- O’Connor v. Med-Center Home Health Care, Inc., 140 Conn. App. 542 (Conn. App. 2013) (plaintiff may rebut form 36 by showing medical or vocational total incapacity)
- Bode v. Connecticut Mason Contractors, The Learning Corridor, 130 Conn. App. 672 (Conn. App. 2011) (discusses proof required for Osterlund vocational unemployability showing)
- Balkus v. Terry Steam Turbine Co., 167 Conn. 170 (Conn. 1974) (due process protections in compensation proceedings)
- Swenson v. Sawoska, 18 Conn. App. 597 (Conn. App. 1989) (trial court discretion to bifurcate proceedings)