Opinion
The sole issue in this appeal is whether the statutory provisions that allow an employer to terminate workers’ compensation
The record discloses the following relevant facts and procedural history. The plaintiff suffered a compensa-ble back injury on February 22, 2010, for which she received temporary partial disability benefits until October 24, 2011. On the latter date, the defendant filed a Form 36 notice seeking to discontinue the plaintiff’s workers’ compensation benefits because, according to the plaintiff’s treating physician, Dr. Roberto V. Dominguez,
The plaintiff claims that the statutory provisions of § 31-296 deprived her of a protected property interest without due process of law in violation of the fourteenth amendment to the United States constitution and article first, §§ 8 and 10, of the Connecticut constitution.
We note at the outset that challenging a statute on constitutional grounds always imposes a difficult burden on the challenger. “We have consistently held that every statute is presumed to be constitutional .... [T]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it . . . .” (Citations omitted; internal quotation marks omitted.) Rayhall v. Akim Co.,
“Inquiry into whether particular procedures are constitutionally mandated in a given instance requires adherence to the principle that due process is flexible and calls for such procedural protections as the particular situation demands. . . . There is no per se rule that an evidentiary hearing is required whenever a liberty [or property] interest may be affected. Due process ... is not a technical conception with a fixed content unrelated to time, place and circumstances.” (Internal quotation marks omitted.) West Hartford v. Murtha Cullina, LLP,
“Our due process inquiry takes the form of a two part analysis. [W]e must determine whether [the plaintiff] was deprived of a protected interest, and, if so, what process was [she] due.” (Internal quotation marks omitted.) Giaimo v. New Haven,
“The fundamental requisite of due process of law is the opportunity to be heard. . . . The hearing must be at a meaningful time and in a meaningful manner. . . . [T]hese principles require that a [party] have ... an effective opportunity to defend by confronting any adverse witnesses and by presenting his own arguments and evidence orally.” (Internal quotation marks omitted.) Giaimo v. New Haven, supra,
“The United States Supreme Court [has] set forth three factors to consider when analyzing whether an individual is constitutionally entitled to a particular judicial or administrative procedure: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. . . . [T]he degree of potential deprivation that may be created by a particular decision is a factor to be considered in assessing the validity of any administrative decision-making process. . . . Due process analysis requires balancing the government’s interest in existing procedures against the risk of erroneous deprivation of a private interest inherent in those procedures.” (Citations omitted; internal quotation marks omitted.) Id., 511-12.
Prior to beginning our due process analysis, we review the statutory scheme for discontinuing or reducing workers’ compensation benefits, as set forth in § 31-296. Thereafter, we consider the factors bearing upon the constitutional adequacy of these procedures. Section 31-296 (b) provides in relevant part: “Before discontinuing or reducing payment on account of total or partial incapacity . . . the employer or the employer’s insurer, if it is claimed by or on behalf of the injured employee that such employee’s incapacity still continues, shall notify the commissioner and the employee, by certified mail, of the proposed discontinuance or reduction of such payments. Such notice shall specify the reason for the proposed discontinuance or reduction and the date such proposed discontinuance or reduction will commence. No discontinuance or reduction shall become effective unless specifically approved in writing by the commissioner. The employee may request a hearing on any such proposed discontinuance or reduction not later than fifteen days after receipt of such notice. . . .” (Emphasis added.)
The form notice set forth in § 31-296, as amended by No. 07-80 of the 2007 Public Acts, provides that the pretermination hearing an employee can seek if he disputes a proposed discontinuance or reduction of benefits is an informal hearing.
A decision rendered after an informal hearing “is not an appealable decision, as [an informal hearing] does not create a record that can be reviewed. . . . Instead, the initial ruling on a Form 36 may be challenged at a subsequent formal [evidentiary] hearing, at which the previous ruling has no precedential weight. The issue is tried de novo.” (Citation omitted; emphasis omitted.) Brinson v. Finlay Bros. Printing Co.,
The plaintiff contends that due process requires the commissioner to conduct an evidentiary hearing, at which she has the opportunity to cross-examine adverse witnesses, prior to approving the discontinuance of compensation payments. The parties agree that Mathews v. Eldridge,
First, the private interest affected in the present case is the uninterrupted payment of the plaintiffs workers’ compensation benefits pending a final decision on the employer’s request to discontinue benefits. Pursuant to our statutes, the plaintiff is entitled to full retroactive relief if she ultimately prevails at the posttermination formal hearing or thereafter on appeal. While we do not diminish the significance of the plaintiffs interest in the timely receipt of workers’ compensation benefits to which she is entitled, we recognize that the availability of post-termination remedies lessens the “degree of potential deprivation.” Id., 341.
We are aware of only one instance in which the United States Supreme Court held that due process requires an evidentiary hearing prior to the deprivation of statutorily-created benefits. Id., 340. In Goldberg v. Kelly,
By the foregoing logic, the present case is analogous to Mathews rather than to Goldberg. As with social security disability benefits, a claimant’s eligibility for workers’ compensation benefits is not based upon financial need.
Second, we consider “the risk of an erroneous deprivation of [the plaintiffs interest] through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards.” Id., 335. This second element of the Mathews test involves consideration of the risk that the commissioner improperly will approve a discontinuance or reduction of workers’ compensation benefits pursuant to § 31-296 in the absence of a pretermination evidentiary hearing. The risk of an improper deprivation is low based upon the nature of the commissioner’s inquiry at an informal hearing, the procedural safeguards in place before and during such a hearing, and the postdeprivation remedies available to the plaintiff.
Central to our evaluation of the permissibility of the § 31-296 procedures is the nature of the relevant inquiry. See id., 343. At the informal hearing, the employer must present competent medical evidence in support of the proposed discontinuance or reduction of benefits. To challenge a Form 36 successfully, and thus remain eligible for workers’ compensation benefits, a claimant must present evidence, usually in the form of medical reports, to contest the Form 36.
As the court noted in Mathews, a medical assessment is “more sharply focused and easily documented . . . than the typical determination of welfare entitlement. In the latter case, a wide variety of information may be deemed relevant, and issues of witness credibility and veracity often are critical to the decision making process.” Id., 343-44. As iaMathews, however, a determination of whether to discontinue workers’ compensation benefits “will turn, in most cases, upon routine, standard, and unbiased medical reports by physician specialists . . . concerning a subject whom they have personally examined. . . . [W]hile there may be professional disagreement with the medical conclusions, the specter of questionable credibility and veracity is not present. ... To be sure, credibility and veracity may be a factor in the ultimate disability assessment
Under § 31-296, several procedural safeguards protect against the possibility of improper discontinuances or reductions of benefits. These safeguards include requiring the employer or insurer to “notify the commissioner and the employee, by certified mail, of the proposed discontinuance or reduction of [benefits].” General Statutes § 31-296 (b). Moreover, the employer or insurer must “specify the reason for the proposed discontinuance or reduction and the date such proposed discontinuance or reduction will commence. No discontinuance or reduction shall become effective unless specifically approved in writing by the commissioner.” General Statutes § 31-296 (b). “The employee may request [an informal] hearing on any such proposed discontinuance or reduction not later than fifteen days after receipt of such notice” and “[t]he commissioner shall not approve any such discontinuance or reduction prior to the expiration of the period for requesting a hearing or the completion of such hearing, whichever is later.” General Statutes § 31-296 (b).
A further safeguard against erroneous deprivation of workers’ compensation benefits at an informal hearing is a claimant’s right to full access to the medical report filed in support of his employer’s Form 36.
In Mathews, the United States Supreme Court explained that its decision in Goldberg “was based on the [c]ourt’s conclusion that written submissions were an inadequate substitute for oral presentation because they did not provide an effective means for the [claimant] to communicate his case to the decisionmaker.” Mathews v. Eldridge, supra,
In the present case, the challenged pretermination procedures established by § 31-296 afford claimants for workers’ compensation benefits greater opportunities to defend themselves against proposed terminations of their benefits than those found sufficient to protect the due process rights of social security disability claimants in Mathews. Such opportunities include the right to argue orally at the informal hearing in opposition to the proposed discontinuance or reduction of their benefits and the right to submit medical reports at the hearing to contest the employer’s or insurer’s Form 36.
As previously stated, the plaintiff was entitled to a reasonably prompt posttermination formal hearing at which she was permitted to cross-examine adverse witnesses and present evidence and testimony, but she declined to proceed with that hearing. Because the formal hearing would have produced an adequate record for review, the plaintiff could have appealed to the board and ultimately sought judicial review, if necessary. Accordingly, in light of the nature of the commissioner’s inquiry, the procedural safeguards, and the postdeprivation remedies available, we conclude that the potential value of an evidentiary hearing prior to the termination or reduction of workers’ compensation benefits is slight and the provisions of § 31-296 provide substantial protection against the risk of an erroneous deprivation of benefits sufficient to satisfy due process requirements.
Finally, we consider “the [gjovemment’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews v. Eldridge, supra,
According to the board: “ [It is] evident that the legislature intended that a claimant should stop receiving total disability benefits as soon as possible after his or her incapacity ceases, effective on the date the incapacity ceases.” Stryczek v. Mansfield Training School, 14 Conn. Workers’ Comp. Rev. Op. 32, 34 (1995). To encumber the § 31-296 proceedings with additional pretermi-nation procedural requirements would significantly impair the function of the commissioner to resolve workers’ compensation disputes expeditiously through an initial informal hearing, while only marginally bene-fitting claimants, who may pursue their claims in
The most evident burden on the government’s interests would be the incremental cost resulting from the increased number of evidentiary hearings and the increased expenditures of employers and their insurers in providing benefits to ineligible recipients pending benefit termination decisions. The additional procedural requirements would thus impede the important public policies of providing “a speedy, effective and inexpensive method for determining claims for compensation.” (Internal quotation marks omitted.) Stec v. Raymark Industries, Inc.,
The decision of the workers’ compensation review board is affirmed.
In this opinion the other judges concurred.
Notes
The fourteenth amendment to the United States constitution provides in relevant part: “No State shall . . . deprive any person of life, liberty or property, without due process of law . . .
Article first, § 8, of the constitution of Connecticut provides in relevant part: “No person shall ... be deprived of life, liberty or property without due process of law. . . .”
Article first, § 10, of the constitution of Connecticut provides: “All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.”
“A Form 36 is a notice to the compensation commissioner and the claimant of the intention of the employer and its insurer to discontinue compensation payments. The filing of this notice and its approval by the commissioner are required by statute in order properly to discontinue payments. General Statutes §§ 31-296, 31-296a, 31-300.” (Internal quotation marks omitted.) Brinson v. Finlay Bros. Printing Co.,
The Hartford Insurance Company, the employer’s insurer, is also a defendant. For purposes of simplicity, we refer herein to Carey Wiping Materials Corp. as the defendant.
The plaintiff contends, however, that Dr. Edward Braun, rather than Dr. Dominguez, was her treating physician.
A preformal hearing may be held when issues “have not been resolved at one or more informal hearings. . . . [T]he Workers’ Compensation Commission utilizes [preformal hearings] to facilitate the settlement of claims and preparation of a claim for trial at the Formal hearing.” A. Sevarino, Connecticut Workers’ Compensation After Reforms (Centennial Ed. 2012) § 10.11, p. 1245; see also Brown v. Dept. of Mental Health & Addiction Services, No. 4053 CRB 02-99-05 (July 27, 2000), aff'd,
Neither the plaintiff nor her attorney attended the December 5, 2011 preformal hearing.
The board stated, inter alia: “[The commissioner’s] ruling was the result of an informal hearing. No record exists. Due process requires an evidentiary hearing wherein a record can be created.”
Because the plaintiff does not supply a “state constitutional analysis of [her] claim pursuant to State v. Geisler,
Specifically, General Statutes § 31-296 (c) provides that the notice of intention to discontinue or reduce payments should comply substantially with the following: “IMPORTANT
“STATE OF CONNECTICUT WORKERS’ COMPENSATION COMMISSION
“YOU ARE HEREBY NOTIFIED THAT THE EMPLOYER OR INSURER INTENDS TO REDUCE OR DISCONTINUE YOUR COMPENSATION PAYMENTS ON (date) FOR THE FOLLOWING REASONS:
“If you object to the reduction or discontinuance of benefits as stated in this notice, YOU MUST REQUEST A HEARING NOT LATER THAN 15 DAYS after your receipt of this notice, or this notice will automatically be approved.
“To request an Informal Hearing, call the Workers’ Compensation Commission District Office in which your case is pending.
“Be prepared to provide medical and other documentation to support your objection. For your protection, note the date when you received this notice.”
We note, however, that “[our appellate courts have] jurisdiction to review a constitutional challenge on appeal from the decision of an administrative agency, despite the agency’s lack of jurisdiction to rule on the constitutional claim.” St. Paul Travelers Cos. v. Kuehl,
The Workers’ Compensation Act “provides for two unique categories of benefits—those designed to compensate for loss of earning capacity and those awarded to compensate for the loss, or loss of use, of a body part. . . . Total or partial incapacity benefits fall into the first category. . . . Disability benefits, also referred to as specific indemnity awards or permanency awards, fall into the second category.” (Citations omitted; internal quotation marks omitted.) Marandino v. Prometheus Pharmacy, 294 Conn. 564, 577,
Here, because the defendant had alleged that the plaintiff had reached maximum medical improvement, the plaintiff was required to submit competent medical evidence demonstrating that she, in fact, had not reached maximum medical improvement.
General Statutes § 31-296 (c) provides in relevant part: “The employer’s or insurer’s notice of intention to discontinue or reduce payments shall (1) identify the claimant, the claimant’s attorney or other representative, the employer, the insurer, and the injury, including the date of the injury, the city or town in which the injury occurred and the nature of the injury, (2) include medical documentation that (A) establishes the basis for the discontinuance or reduction of payments . . . .”
Alternatively, the plaintiff claims that her “common law right to fundamental fairness in administrative hearings” affords her “an absolute right to cross-examination in adjudicative administrative hearings.” The plaintiff, however, fails to cite any authority or to provide adequate analysis in support of her claim that such a right must be afforded in a pretermination hearing, and we therefore decline to review it. See State v. Orr,