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JUSTIN PASSALUGO v. GUIDA-SEIBERT DAIRY

COMPANY ET AL.

(AC 35262)

DiPentima, C. J., and Gruendel and Beach, Js.

Argued February 18—officially released April 15, 2014

(Appeal from Workers’ Compensation Review Board.)

Jennifer B. Levine, with whom was Harvey L.

Levine, for the appellant (plaintiff).

Marian H. Yun, for the appellees (defendants).
Opinion

GRUENDEL, J. Following an informal hearing, the

Workers’ Compensation Commissioner for the Sixth

District (commissioner) issued a decision approving

the filing of notice by the defendants, Guida-Seibert

Dairy Company and its insurer, Liberty Insurance Corporation, to discontinue workers’ compensation payments to the plaintiff, Justin Passalugo. The plaintiff

then filed a petition for review of that decision with

the Workers’ Compensation Review Board (board). In

ruling on that petition, the board emphasized that ‘‘no

record [of the informal hearing] exists’’ and that

‘‘[a]bsent a record this board cannot properly consider’’

the plaintiff’s appeal. Accordingly, the board dismissed

the petition and remanded the matter to the commissioner ‘‘for a formal hearing or other appropriate

action.’’ From that decision, the plaintiff now appeals.

In this appeal, the plaintiff challenges the propriety

of the commissioner’s decision. Specifically, he claims

that the commissioner (1) violated General Statutes

§ 31-296 by terminating his workers’ compensation benefits ‘‘without any medical evidence’’ at the informal

hearing, and (2) violated his right to due process and

fundamental fairness by terminating his benefits without an evidentiary hearing. We disagree and, therefore,

affirm the decision of the board.

Our recitation of the relevant facts is hampered by

the limited record before us, which consists of a handful

of documents and is devoid of any transcripts or exhibits. The following facts are thus gleaned from that slim

record and are undisputed by the parties. The plaintiff

sustained an injury on October 30, 2011, and thereafter

entered into a voluntary agreement with the defendants

regarding workers’ compensation benefits. On August

30, 2012, the defendants filed with the commission a

Form 36, thereby notifying the plaintiff of theirintention

to discontinue workers’ compensation payments.1 The

commissioner held an informal hearing,2 at the conclusion of which the commissioner on October 23, 2012,

approved the defendants’ Form 36 filing to discontinue

compensation payments. Although the plaintiff possessed ‘‘the right to challenge the notice [of intention

to discontinue compensation payments]in a subsequent

formal hearing’’; Anguish v. TLM, Inc., 53 Conn. App.

241, 242 n.2, 728 A.2d 1165, cert. denied, 250 Conn. 910,

734 A.2d 985 (1999); he declined to do so. He instead

filed a petition for review with the board on November

5, 2012. In response, the defendants filed with the board

an objection to that petition, stating in relevant part that

‘‘[t]he Form 36 which forms the basis for the [plaintiff’s]

petition for review was granted at an informal hearing

. . . . The matter should be remanded to the [commissioner] for a formal hearing . . . on the Form 36 issue.’’

The board dismissed the plaintiff’s petition forreview
on November 27, 2012.3

Its remand order states in relevant part: ‘‘On November 5, 2012, [the plaintiff] filed a

petition for review from the trial commissioner’s October 23, 2012 order granting [the defendants’] Form 36.

The order was issued as a result of an informal hearing.

No record exists. Due process requires an evidentiary

hearing wherein a record can be created. Absent a

record, this board cannot properly consider an appeal

under [General Statutes §] 31-301 (a). The matter is

therefore remanded to the trial commissioner acting

for the sixth district for a formal hearing or other appropriate action. . . .’’ Despite that remand order, the

plaintiff did not return to the commissioner for a formal

hearing. Rather, he filed an appeal of the board’s decision with this court.4

As a preliminary matter, we note that ‘‘[t]he principles

that govern our standard of review in workers’ compensation appeals are well established. . . . The board sits

as an appellate tribunal reviewing the decision of the

commissioner. . . . [T]he review . . . of an appeal

from the commissioner is not a de novo hearing of the

facts. . . . [T]he power and duty of determining the

facts rests on the commissioner . . . . [T]he commissioner is the sole arbiter of the weight of the evidence

and the credibility of witnesses . . . . Where the subordinate facts allow for diverse inferences, the commissioner’s selection of the inference to be drawn must

stand unless it is based on an incorrect application of

the law to the subordinate facts or from an inference

illegally or unreasonably drawn from them. . . .

‘‘This court’s review of decisions of the board is similarly limited. . . . The conclusions drawn by [the commissioner] from the facts found must stand unless they

result from an incorrect application of the law to the

subordinate facts orfrom an inference illegally or unreasonably drawn from them. . . . [W]e must interpret

[the commissioner’s finding] with the goal of sustaining

that conclusion in light of all of the other supporting

evidence. . . . Once the commissioner makes a factual

finding, [we are] bound by that finding if there is evidence in the record to support it.’’ (Internal quotation

marks omitted.) Baron v. Genlyte Thomas Group, LLC,

132 Conn. App. 794, 799–800, 34 A.3d 423, cert. denied,

303 Conn. 939, 37 A.3d 155 (2012).

I

The plaintiff first contends that the commissioner

violated § 31-296 by terminating his workers’ compensation benefits without any medical evidence at the informal hearing.5 That claim requires little discussion. The

board specifically found, and the plaintiff does not dispute, that no record of the informal hearing exists. As

a result, the record before us is inadequate for review.

It is the responsibility of the appellant to provide this

court with an adequate record for review. See Practice
Book § 61-10. Without an adequate record, we are left

to speculation and conjecture; Gelormino v. Liberman,

36 Conn. App. 153, 154, 649 A.2d 259, cert. denied, 231

Conn. 946, 653 A.2d 826 (1994); which ‘‘have no place in

appellate review.’’ Narumanchi v. DeStefano, 89 Conn.

App. 807, 815, 875 A.2d 71 (2005). We therefore decline

to review the plaintiff’s claim.

II

The plaintiff also argues that the commissioner violated his right to due process and fundamental fairness

by terminating his benefits without an evidentiary hearing.6 For multiple reasons, his claim is untenable.

First and foremost, the record before us contains no

transcript orrecord whatsoever of the informal hearing.

As a result, we cannot ascertain, as a threshold matter,

whether or not an evidentiary hearing of any kind transpired before the commissioner. The paucity of materials in the record before us precludes any meaningful

review of the plaintiff’s claim.

Second, as this court previously has observed, an

‘‘emergency informal hearing . . . is not an appealable

decision, as it does not create a record that can be

reviewed.’’(Internal quotation marks omitted.) Brinson

v. Finlay Bros. Printing Co., 77 Conn. App. 319, 326 n.8,

823 A.2d 1223 (2003); accord 2 A. Sevarino, Connecticut

Workers’ Compensation After Reforms (Centennial Ed.

2012) § 5.16.10, p. 716 (‘‘Any [o]rder approving or disapproving a Form 36 at the informal hearing . . . will not

have a transcript of the proceedings or a record from

which an appeal may be taken to the [board]. Without

a transcript or exhibits, the [board] is absent a record

and cannot considerthe appeal pursuant to [§] 31-301 as

the matter is not ripe for appellate review.’’ [Emphasis

omitted.]). That precedent is grounded in the mandate

of § 31-301 (b), which provides in relevant part that the

board ‘‘shall hearthe appeal on the record of the hearing

before the commissioner . . . .’’ The board’s remand

order, in which it expressly stated that ‘‘[a]bsent a

record this board cannot properly consider an appeal’’

and then remanded the matter to the commissioner

for a formal hearing, thus is entirely consistent with

established Connecticut law.7

Third, even if the plaintiff could overcome those significant bars to appellate review, he could not prevail,

as this court recently considered—and rejected—an

almost identical claim. Like the present case, Pagan v.

Carey Wiping Materials Corp., 144 Conn. App. 413,

416, 73 A.3d 784, cert. denied, 310 Conn. 925, 77 A.3d

142 (2013), involved a commissioner’s approval, following an informal hearing, of the discontinuance of compensation payments. Like the present case, the plaintiff

in Pagan elected to bypass her right to a formal hearing

and instead filed an appeal with the board. Id., 416–17.

Like the present case, the board in Pagan remanded
the matter to the commissioner for a formal hearing,

stating in relevant part that the commissioner’s decision

was the ‘‘result of an informal hearing. No record exists.

Due process requires an evidentiary hearing wherein a

record can be created.’’8

Id., 417 n.9.

On appeal to this court, the plaintiff claimed that

‘‘due process requires the commissioner to conduct an

evidentiary hearing . . . prior to approving the discontinuance of compensation payments.’’ Id., 422. In

rejecting the merits of that claim, this court detailed

the contours of the informal hearing on a Form 36 filing.

We stated in relevant part: ‘‘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.

The informal hearing should be held as soon as possible

after the claimant has objected to the Form 36. . . .

While evidence is not taken at an informal hearing . . .

the employer/insurer has the burden of proof and must

submit documents . . . in support of the discontinuance or reduction. Thereafter, the burden shifts to the

injured worker who should be prepared to present competent medical evidence (usually by medical reports)

that support the contest of the Form 36. The [commissioner] will weigh the evidence and either approve or

disallow the discontinuance or reduction.’’ (Citation

omitted; footnote omitted; internal quotation mark

omitted.) Id., 420–21. We further explained that a commissioner’s ‘‘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.’’9

(Emphasis added; internal

quotation marks omitted.) Id., 421; see also Brinson v.

Finlay Bros. Printing Co., supra, 77 Conn. App. 326

(plaintiff possesses ‘‘right to request a formal hearing’’

that is ‘‘a de novo hearing’’); Anguish v. TLM, Inc.,

supra, 53 Conn. App. 242 n.2 (noting that ‘‘the term

‘hearing’ as used in . . . § 31-296 means an emergency

informal hearing to be held as soon as possible, but

that the employee had the right to challenge the notice

in a subsequent formal hearing’’).

Accordingly, our precedent instructs that the informal hearing conducted pursuant to § 31-296 is intended

to serve as an expedited and preliminary determination,

from which a claimant is ‘‘entitled to a reasonably

prompt posttermination formal hearing at which she

[is] permitted to cross examine adverse witnesses and

present evidence and testimony . . . .’’ Pagan v. Carey

Wiping Materials Corp., supra, 144 Conn. App. 428; see

also 2 A. Sevarino, supra, § 5.16.11, p. 717 (‘‘[a]ny prior

decision made by the [commissioner] at the emergency

informal hearing level is attune to an ‘interlocutory ruling’ at the administrative level’’). Furthermore, it is

undisputed that a claimant ‘‘is entitled to fullretroactive

relief if she ultimately prevails at the posttermination
formal hearing or thereafter on appeal.’’ Pagan v. Carey

Wiping Materials Corp., supra, 423. In light of those

procedural safeguards, this court in Pagan held that

‘‘the procedures provided by § 31-296 are constitutionally sufficient’’ and comply with the requirements of

due process under the fourteenth amendment to the

United States constitution.10 Id., 429–30. Given the preliminary nature of an informal hearing conducted pursuant to § 31-296 and the fact that a claimant retains an

absolute right to a de novo formal hearing at which the

commissioner’s preliminary determinations carry no

precedential weight, we conclude that the rationale set

forth in Pagan applies with equal force with respect to

a claimant’s right to fundamental fairness.11 We, therefore, disagree with the plaintiff that a commissioner is

required, as a matter of constitutional due process and

fundamental fairness, to conduct an evidentiary hearing

prior to terminating compensation benefits at the conclusion of an informal hearing conducted pursuant to

§ 31-296.

The decision of the Workers’ Compensation Review

Board is affirmed.

In this opinion the other judges concurred.

1

‘‘A [F]orm 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., 77 Conn. App. 319,

320 n.1, 823 A.2d 1223 (2003). ‘‘The content of the form is set out by § 31-

296.’’ Id., 325 n.5.

2

In their appellate brief, the defendants aver in relevant part that ‘‘[a]n

informal hearing was held on September 17, 2012, in response to the [plaintiff’s] objection to [the Form 36]. At that hearing, both parties presented

their positions and the commissioner held his decision concerning the Form

36 in abeyance allowing the parties to further advance their respective

positions at a subsequent hearing. . . . At the subsequent hearing held on

October 9, 2012, [the plaintiff] appeared for the hearing but his counsel

failed to appear. Once again, the commissioner held the Form 36 in abeyance

and scheduled another hearing thereby protecting the claimant’s rights to

be heard and properly represented by counsel. At the third informal hearing

held on October 23, 2012 concerning the Form 36 . . . the commissioner

considered the arguments presented by both parties, including the medical

reports of Dr. Sullivan and Dr. Sella, and granted the Form 36 . . . .’’ In

its appellate brief, the plaintiff does not acknowledge that the informal

hearing was convened on September 17 or October 9, 2012; rather, he states

that ‘‘[a] pre-termination informal hearing was held on October 23, 2012.’’

Because no record of that informal hearing is included in the materials before

us, we note simply that an informal hearing was held by the commissioner.

3 The record before us contains simply a one paragraph decision titled

‘‘Remand Order.’’ In that decision, the board does not reach the merits of

the plaintiff’s appeal, nor does it expressly grant or deny the plaintiff’s

petition. In similar cases, the board’s action in remanding a matter to the

commissioner for a formal hearing due to the lack of a record for review

has been described as a dismissal of the petition. See, e.g., Flamenco v.

Independent Refuse Service, Inc., 130 Conn. App. 280, 282, 22 A.3d 671

(2011). We thus interpretthe board’s action in the present case as tantamount

to a dismissal of the petition.

4

In its appellate brief, the defendants represent that ‘‘a formal hearing

notice issued on May 6, 2013, for a hearing to take place on June 13, 2013.

In response to this, [the plaintiff’s] counsel on May 13, 2013, filed a ‘Motion

for Order Cancelling June 13, 2013 Sua Sponte Formal Hearing on Form

36.’ This motion was granted by the commissioner on May 14, 2013.’’ At

oral argument before this court, counsel for the plaintiff conceded the
veracity of that representation.

5 Although the record is inadequate to substantiate their assertion, we

note that the defendants in their appellate brief dispute the factual predicate

to the plaintiff’s claim, alleging specifically that the commissioner considered

‘‘the medical reports of Dr. Sullivan and Dr. Sella’’ at the informal hearing,

which included a report stemming from an independent medical examination

of the plaintiff. The record likewise is inadequate to evaluate the plaintiff’s

assertion that, contrary to the defendants’ representation, the commissioner

at the informal hearing ‘‘did not seek or require the employer to present

medical reports establishing the plaintiff’s medical recovery. In fact, the

commissioner did not require any objective evidence to be demonstrated

to him and instead simply relied on the unsworn representations of defense

counsel and those found in the Form 36.’’

6 As our appellate courts previously have observed,there exists an inherent

overlap between the right to due process and the right to fundamental

fairness in administrative proceedings. See Grimes v. Conservation Commission, 243 Conn. 266, 273 n.11, 703 A.2d 101 (1997); Megin v. Zoning

Board of Appeals, 106 Conn. App. 602, 607 n.6, 942 A.2d 511, cert. denied,

289 Conn. 901, 957 A.2d 871 (2008). ‘‘[A]dministrative hearings, including

those held before workers’ compensation commissioners, are informal and

governed without necessarily adhering to the rules of evidence or procedure.

. . . Nonetheless, administrative hearings must be conducted in a fundamentally fair manner so as not to violate the rules of due process. . . . A

fundamental principle of due process is that each party has the right to

receive notice of a hearing, and the opportunity to be heard at a meaningful

time and in a meaningful manner.’’ (Internal quotation marks omitted.)

Flamenco v. Independent Refuse Service, Inc., 130 Conn. App. 280, 282–83,

22 A.3d 671 (2011). Notably, the common-law right to fundamental fairness

‘‘is not coextensive with constitutional due process. . . . The right to fundamental fairness in administrative proceedings encompasses a variety of

procedural protections, including the right to adequate notice . . . . [Our

Supreme Court at times has] characterized these procedural protections as

due process rights. . . . Although the due process characterization, at first

blush, suggests a constitutional source, there is no discussion in these cases

of a property interest in terms of constitutional due process rights. These

decisions are, instead, based on a line of administrative law cases and reflect

the development, in Connecticut, of a common-law right to due process in

administrative hearings.’’ (Citation omitted; internal quotation marks omitted.) Megin v. Zoning Board of Appeals, supra, 607 n.6.

7

Indeed, one noted commentator indicates that such a result is routine

protocol in Form 36 proceedings: ‘‘Should a [claimant decline to exercise

the right to a formal hearing and instead] file . . . an appeal [with the

board] without a transcript or record [the claimant] is going to receive a

remand order from the [board] dismissing the appeal and remanding the

matter back to the [commissioner for a] formal hearing, which then will

produce a transcript and record.’’ 2 A. Sevarino, supra, § 5.16.10, p. 716.

8 The remand order in the present case contains that exact language.

9

In his appellate brief and at oral argument before this court, the plaintiff

has argued that the issue of compensation benefits termination is not tried

de novo during the formal hearing, alleging the claimant bears the burden

of proof ‘‘at all times’’ in that proceeding. That proposition is contrary to

Connecticut law. See Pagan v. Carey Wiping Materials Corp., supra, 144

Conn. App. 421; Brinson v. Finlay Bros. Printing Co., supra, 77 Conn. App.

326; A. Sevarino, supra, § 5.16.11, p. 716–17 (employer seeking discontinuance or reduction of compensation payments bears preliminary burden at

de novo formal hearing).

10 The facts of the present case underscore the safeguards available to an

aggrieved claimant. Prior to commencing the present appeal with this court,

the plaintiff twice had the opportunity to obtain a de novo evidentiary

hearing regarding the termination of his benefit payments. He first declined

to exercise his right to proceed to a de novo formal hearing following the

commissioner’s initial ruling. When the board subsequently remanded the

matter to the commission for a de novo formal hearing, he again declined

to proceed with that evidentiary hearing, instead opting to commence this

appeal. Moreover, as the plaintiff’s counsel acknowledged at oral argument

before this court, a formal hearing on the matter was scheduled for June

13, 2013, to which the plaintiff filed a written request to cancel that then was

granted by the commissioner. See footnote 4 of this opinion. The plaintiff’s

repeated election to bypass those opportunities for de novo evidentiary

hearings undermines his contention that, on the facts of this case, he was
deprived of his right to procedural due process and fundamental fairness

before the commissioner.

11 It is undisputed that the right to cross-examine witnesses and the right

to offer rebuttal evidence, two hallmarks of fundamental fairness, are

retained by a claimant in a de novo formal hearing.