Mikucka v. St. Lucian's Residence, Inc.

183 Conn.App. 147

191 A.3d 1083

Barbara MIKUCKA

v.ST. LUCIAN'S RESIDENCE, INC., et al.

AC 39673

Appellate Court of Connecticut.

Argued March 20, 2018

Officially released July 3, 2018

Jennifer B. Levine, with whom was Harvey L. Levine, for the appellant (plaintiff).

Neil J. Ambrose, New Haven, for the appellees (defendants).

Alvord, Sheldon and Keller, Js.

KELLER, J.

The plaintiff, Barbara Mikucka, appeals from the decision of the Compensation Review Board (board) affirming the decision of the Workers' Compensation Commissioner for the Sixth District (commissioner) that she was no longer entitled to temporary total disability benefits after reaching maximum medical improvement. The plaintiff claims that (1) the commissioner, by not allowing her to present evidence to prove that she did not have a work capacity, violated her right to due process, and (2) the commissioner erred in determining that she was not totally disabled. We affirm the decision of the board and dismiss the appeal as to the second claim.

The following facts and procedural history are relevant to this appeal. The plaintiff worked for the defendant employer, St. Lucian's Residence, Inc.,¹ as a cook. The plaintiff sustained compensable bilateral shoulder injuries in the course and scope of her employment on May 10, 2011. The defendants accepted compensability for the plaintiff's injuries and paid her temporary total incapacity benefits.

On March 19, 2014, the defendants filed a form 36,² seeking to discontinue the plaintiff's temporary total disability benefits on the basis that she had "achieved maximum medical improvement" as of February 27, 2014. The defendants attached the opinion of the plaintiff's treating physician, Dr. Robert J. Carangelo, to the form 36. Carangelo opined that the plaintiff had reached maximum medical improvement and assigned a 17.5 percent permanent partial disability to her right shoulder and a 12.5 percent permanent partial disability to her left shoulder. At an informal hearing, the commissioner approved the form 36. The plaintiff objected and requested a formal hearing. On February 10, 2015, the plaintiff sent all parties notice of a formal hearing to address the "Form 36/Discontinuation of Benefits."

On March 11, 2015, the commissioner held a formal hearing on the form 36 to determine whether the plaintiff had achieved maximum medical improvement. At the hearing, the plaintiff neither provided evidence nor argued that she had not reached maximum medical improvement. Instead, the plaintiff testified about her background and her injuries. The following exchange between the plaintiff and her occurred:

"[The Plaintiff's Counsel]: What is your native tongue?

"[The Plaintiff]: Polish....

"[The Plaintiff's Counsel]: How well do you speak English? ...

"[The Plaintiff]: A little bit.

"[The Plaintiff's Counsel]: How old are you?

"[The Plaintiff]: Fifty-four.

"[The Plaintiff's Counsel]: "What country did you grow up in?

"[The Plaintiff]: In Poland.

"[The Plaintiff's Counsel]: What is your level of education?"

The defendants' counsel then objected, but the commissioner overruled the objection, stating: "Hang on. [These are] preliminary questions I think any lawyer would ask of any witness. I think you're afraid [the plaintiff's counsel] is leading into an Osterlund [v. State, 135 Conn. 498, 66 A.2d 363 (1949) ] claim³ .... I understand that. But right now, I would ask any witness what [is] your education level, where did you grow up. These are preliminary questions. I'm certainly going to let [the plaintiff's counsel] ask [them]. Go ahead .... Would you repeat the question, please?"

The plaintiff continued to testify:

"[The Plaintiff's Counsel]: What is your level of education?

"[The Plaintiff]: Elementary school and three years of vocational high school.

"[The Plaintiff's Counsel]: Are you married?

"[The Plaintiff]: Yes.

"[The Plaintiff's Counsel]: Do you have any children?

"[The Plaintiff]: No.

"[The Plaintiff's Counsel]: How long have you been married?

"[The Plaintiff]: Twenty-eight years.

"[The Plaintiff's Counsel]: What country were you married in?

"[The Plaintiff]: In Poland.

"[The Plaintiff's Counsel]: And after your vocational school, what kind of work did you do?

"[The Plaintiff]: I worked on the family farm.

"[The Plaintiff's Counsel]: And when did you come to the United States?

"[The Plaintiff]: 1994.

"[The Plaintiff's Counsel]: Did you come with your husband?

"[The Plaintiff]: Yes.

"[The Plaintiff's Counsel]: And where did you reside once you came to the United States?

"[The Plaintiff]: New Britain.

"[The Plaintiff's Counsel]: Did you start any sort of job after moving to the United States.

"[The Plaintiff]: Yes, I clean[ed] offices [for] four hours a day.

"[The Plaintiff's Counsel]: How long did you do that for?

"[The Plaintiff]: For about two, three years.

"[The Plaintiff's Counsel]: And what did you do after that?

"[The Plaintiff]: Then I [went] to St. Lucian's [Residence, Inc.] to work.

"[The Plaintiff's Counsel]: And how long did you work there for?

"[The Plaintiff]: About fifteen, sixteen years.

"[The Plaintiff's Counsel]: And were you able to communicate with your coworkers at St. Lucian's?

"[The Plaintiff]: Yes, because my ... immediate boss ... and all the workers were Polish.

"[The Plaintiff's Counsel]: Can you describe your job at St. Lucian's?

"[The Plaintiff]: I cook there, I serve to residents, clean up. Everything.

"[The Plaintiff's Counsel]: And when did you stop working there.

"[The Plaintiff]: I stopped working September, 2011.

"[The Plaintiff's Counsel]: And why did you stop working there?

"[The Plaintiff]: I had an accident....

"[The Plaintiff's Counsel]: Can you describe how that injury occurred? ...

"[The Plaintiff]: I think I was ... [baking] some cakes in the big mixer which was on the level of the chair, maybe a little bit higher. And I put all the ingredients in the mixer. But [when] I tried to turn the mixer on with the special device ... the mixer switched [positions] and I [fell] and I started screaming to for people to help....

"[The Plaintiff's Counsel]: And can you explain which body parts you injured as a result of this?

"[The Plaintiff]: Both shoulders.

"[The Plaintiff's Counsel]: And did you ever have any surgeries as a result of this injury?

"[The Plaintiff]: Yes, three operations.

"[The Plaintiff's Counsel]: And can you tell me which arms, how many times per arm you had a surgery?

"[The Plaintiff]: On the right shoulder, I had it twice operated and once on the left.

"[The Plaintiff's Counsel]: And did Dr. Carangelo perform surgery on you?

"[The Plaintiff]: Yes. Two operations [were] done by Dr. Kelley and one operation was done by Dr. Carangelo.

"[The Plaintiff's Counsel]: Which arm was done by Dr. Carangelo?

"[The Plaintiff]: Second time, my right.

"[The Plaintiff's Counsel]: And do you currently treat with Dr. Carangelo?

"[The Plaintiff]: Yes, I visit him.

"[The Plaintiff's Counsel]: For both arms?

"[The Plaintiff]: Yes....

"[The Plaintiff's Counsel]: So, after all the surgeries have been completed, how do you presently feel?

"[The Plaintiff]: I didn't feel good. Every time I move my arms a little bit more than I should, the pain starts to increase, and it feels like a knife getting in my arms.

"[The Plaintiff's Counsel]: Has this feeling been present since after your surgeries? ...

"[The Plaintiff]: [I]t hurts me all the time....

"[The Plaintiff's Counsel]: How much activity with your arms does it take for your pain to worsen?

"[The Plaintiff]: The moment I start moving my arms, they start getting pain."

At this point, the commissioner interjected and the following colloquy occurred:

"[The Commissioner]: Is there a medical record that says [the plaintiff is] not at maximum medical improvement?

"[The Plaintiff's Counsel]: No, because I'm still arguing that a form 36 is a discontinuance of her [temporary total] benefits.

"[The Commissioner]: So, you don't have a medical record saying she's not at maximum medical improvement?

"[The Plaintiff's Counsel]: No....

"[The Commissioner]: Well, I told you we're going to proceed with the hearing on the form 36, whether or not it was providently or improvidently granted. I understand you're claiming that she has an Osterlund claim. That's not on the notice.... I cannot, based on the notice that I have, reach a determination whether she's vocationally disabled or not. And quite frankly, I don't think [the defendants' counsel] is prepared to litigate that any way, but it's not on the notice. We're here to determine whether she was ... at maximum medical improvement on the date the form 36 was granted. I appreciate what you're telling me.... Look, you may have a very good Osterlund claim, but this right now is not the place to litigate it. I'm not suggesting you may or may not do well on that, but what we're here to discuss is the form 36. I can certainly put it down for an Osterlund claim if you want and [the defendants' counsel] can get [a] vocational expert .... I think my hands are [somewhat] tied here in that the notice says that—"[The Plaintiff's Counsel]: Well, so are mine.

"[The Commissioner]: But the difference is this, I don't see the file until today for a trial. I don't know in advance what it's about. Unfortunately, I didn't handle the prior hearings, so I'm here on what we're here for. You know, [the form 36] was granted a year ago. You could certainly have pursued a vocational claim a year ago. Maybe you didn't have the evidence at that point or not, I don't know, or you could have asked to have that issue advanced. But I think where you and I may be differing is I think you think that you can just claim that she's vocationally disabled as a defense to [the] form 36.

"[The Plaintiff's Counsel]: "That's what I'm saying....

"[The Commissioner]: [T]he question I have is whether or not she's .... at maximum medical improvement. If you want to pursue [the vocational disability] claim, you're more than welcome to. You may have a very good claim. I'm not suggesting you don't. What I'm suggesting is, we're not going...