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*********************************************** 
BARBARA MIKUCKA v. ST. LUCIAN’S

RESIDENCE, INC., ET AL.

(AC 39673)

Alvord, Sheldon and Keller, Js.

Syllabus

The plaintiff appealed to this court from the decision of the Compensation

Review Board affirming the decision of the Workers’ Compensation

Commissioner determining that she was no longer entitled to temporary

total disability benefits. The plaintiff had sustained certain compensable

injuries in the course and scope of her employment with the defendant

company, S Co., which accepted compensability and paid her temporary

total disability benefits. Thereafter, the defendants filed a form 36, seeking to discontinue those benefits on the ground that the plaintiff had

achieved maximum medical improvement. At an informal hearing, the

commissioner approved the form 36, but the plaintiff objected and

requested a formal hearing to address the form 36 and the discontinuation of benefits. The commissioner subsequently held a formal hearing

on the form 36 to determine whether the plaintiff had achieved maximum

medical improvement. At the hearing, the plaintiff did not provide evidence or argue that she had not reached maximum medical improvement

but, instead, raised a vocational total disability claim pursuant to Osterlund v. State (135 Conn. 498) and sought to present evidence in support

of that claim. The commissioner did not permit the plaintiff to present

such evidence but repeatedly invited her to return in three weeks for

a hearing to present evidence that she was vocationally totally disabled.

Following the hearing, the commissioner granted the form 36, determining that the plaintiff had reached maximum medical improvement and

that she had a work capacity. The plaintiff thereafter appealed to the

board, which affirmed the commissioner’s decision. On the plaintiff’s

appeal to this court, held:

1. The plaintiff could not prevail on her claim that the commissioner violated

her right to due process by not permitting her to present evidence in

support of her Osterlund claim at the formal hearing: the commissioner’s

decision did not prejudicially affect the plaintiff’s substantive rights, as

she inexplicably declined the commissioner’s invitation to return in

three weeks for a hearing to present evidence that she was vocationally

totally disabled, and, thus, she could not demonstrate how she was

harmed by the commissioner’s decision when she could have returned

three weeks later to pursue her Osterlund claim; moreover, the commissioner’s decision to bifurcate the plaintiff’s claim protected the defendants’ due process rights, as the plaintiff did not provided the defendants

with notice of her claim, and if the commissioner had permitted the

plaintiff to present evidence in support thereof, the defendants would

have been subjected to trial by ambuscade, in violation of their cognizable due process right to notice.

2. The plaintiff’s claim that the commissioner erred in determining that she

was not totally disabled pursuant to Osterlund was not ripe for review;

the plaintiff opted not to pursue this claim despite the commissioner’s

invitation to do so, and, as a result, it was not litigated, and for this

court to review it on appeal would violate the principles of ripeness by

prematurely adjudicating a hypothetical claim.

Argued March 20—officially released July 3, 2018

Procedural History

Appeal from the decision of the Workers’ Compensation Commissioner for the Sixth District determining

that the plaintiff was no longer entitled to certain disability benefits, brought to the Compensation Review

Board, which affirmed the commissioner’s decision,

and the plaintiff appealed to this court. Appeal dismissed in part; affirmed.
Jennifer B. Levine, with whom was Harvey L.

Levine, for the appellant (plaintiff).

Neil J. Ambrose, for the appellees (defendants).
Opinion

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 to do that

here because the issue is a form 36, and it’s a no decision. . . . Just like . . . if we were here for something

else, I wouldn’t let [the defendants] add something on

in a surprise to you. . . . [I]f you want to pursue a

vocational disability [claim], I would put this file down

for two or three weeks, and you could come and you

bring the evidence. . . .

‘‘[The Plaintiff’s Counsel]: I will have the Osterlund

claim that you think is appropriate.’’

After reiterating that the plaintiff was welcome to

introduce evidence to suggest that she was not at maximum medical improvement, the commissioner stated:

‘‘What I’m going to do is put this down for a hearing

in three weeks . . . . The claim you’re going to make at

that time is [that the plaintiff is] vocationally disabled.’’

In his November 10, 2015 decision, the commissioner

determined that the plaintiff had reached maximum

medical improvement and that she had a work capacity.

Accordingly, he granted the form 36, effective as of the

date on which the defendants filed it, March 19, 2014.

On November 23, 2015, the plaintiff, without pursuing

the vocational total disability claim pursuant to Osterlund as the commissioner had recommended, appealed
to the board, arguing that ‘‘the trial commissioner could

not rule on a form 36 establishing her attainment of

maximum medical improvement without considering

whether she was still temporarily totally disabled.’’4

In its September 14, 2016 decision affirming the commissioner’s decision, the board found in relevant part

the following: ‘‘Essentially, on March 11, 2015, the

[defendants] were prepared to proceed with their arguments in favor of granting the form 36 and the [plaintiff]

had not offered notice to the trial commissioner nor to

the [defendants] that she was pursuing a claim that she

was entitled to total disability based on an Osterlund

theory; nor is it clear she had evidence necessary as of

that date to establish a prima facie case on such a claim.

Under these circumstances the trial commissioner

essentially was obligated to follow the precedent in

Martinez-McCord v. State, No. 5055, CRB-7-06-2 (February 1, 2007) to rule on the issue which was capable of

being addressed at that juncture and bifurcate the issues

and address the balance of the issues at a later proceeding. ‘Bifurcation of the trial proceedings lies solely with

the discretion of the trial court . . . and appellate

review is limited to a determination of whether this

discretion has been abused.’ Swenson v. Sawoska, [18

Conn. App. 597, 601, 559 A.2d 1153 (1989), aff’d, 215

Conn. 148, 575 A.2d 206 (1990)]. [The commissioner]

did not abuse his discretion in this matter.

‘‘Moreover, the [plaintiff’s] argument herein appears

to contravene our unequivocal precedent in Ghazal v.

Cumberland Farms, No. 5397, CRB-8-08-11 (November

17, 2009). If a new issue or new evidence is considered

at a formal hearing, the trial commissioner must offer

the opposing party the ability to prepare on the issue

and challenge the evidence. [The commissioner] offered

the parties this opportunity. The [plaintiff] does not

persuade us that this decision was erroneous in any

respect. Moreover, we believe that had the commissioner ruled on the [plaintiff’s] claim for [General Statutes] § 31-3075

. . . benefits solely on the record

available as of March 11, 2015, the claim may well have

failed. The decision of [the commissioner] to bifurcate

the proceedings comported with the due process standards delineated in Balkus v. Terry Steam Turbine Co.,

[167 Conn. 170, 177, 355 A.2d 227 (1973)], and protected

the interests of both parties.

‘‘We have long pointed out that the parameters of

[General Statutes] § 31-2986

. . . extend great deference to trial commissioners as to how to manage proceedings before them. See Reid v. Speer, No. 5818, CRB2-13-1 (January 28, 2014) and Valiante v. Burns Construction Co., No. 5393, CRB-4-08-11 (October 15, 2009).

We find no error in how [the commissioner] handled

an issue which was raised at the [eleventh] hour by

[the plaintiff’s] counsel, and which could not have been

addressed at that point in time.’’ (Footnotes added and
omitted.) This appeal followed.

Before addressing the plaintiff’s claims, we set forth

the standard of review on appeals from the board. ‘‘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 or

from an inference illegally or unreasonably drawn from

them. . . . It is well established that [a]lthough not

dispositive, we accord great weight to the construction

given to the workers’ compensation statutes by the

commissioner and [the] board.’’ (Internal quotation

marks omitted.) Leonetti v. MacDermid,Inc., 310 Conn.

195, 205–206, 76 A.3d 168 (2013).

The following principles regarding a claimant’s eligibility for temporary total disability payments on the

basis of a vocational total disability are relevant to this

appeal. ‘‘Under the Workers’ Compensation Act, General Statutes § 31-275 et seq., [a] worker is entitled to

total disability payments pursuant to . . . § 31-307 only

when his injury results in a total incapacity to work,

which [our Supreme Court has] defined as the inability

of the employee, because of his injuries, to work at his

customary calling or at any other occupation which he

might reasonably follow. . . . Our Supreme Court

stated in Osterlund . . . that [a] finding that an

employee is able to work at some gainful occupation

within his reasonable capacities is not in all cases conclusive that he is not totally incapacitated. If, though

he can do such work, his physical condition due to his

injury is such that he cannot in the exercise of reasonable diligence find an employer who will employ him,

he is just as much totally incapacitated as though he

could not work at all. . . . If, because of the employee’s injury, his labor becomes unmarketable, in spite

of his diligent efforts to find work, his earning power

is gone and he is totally incapacitated. . . .

‘‘This court previously has stated that [i]n order to

receive total incapacity benefits under § 31-307, a plaintiff bears the burden to demonstrate a diminished earning capacity by showing either that she has made

adequate attempts to secure gainful employment or that

she truly is unemployable. . . . Whether the plaintiff

makes this showing of unemployability by demonstrating that she actively sought employment but could not

secure any, or by demonstrating through a nonphysician

vocational rehabilitation expert or medical testimony

that she is unemployable . . . as long as there is sufficient evidence before the commissioner that the plaintiff is unemployable, the plaintiff has met her burden.

. . .

‘‘Whether a claimant is realistically employable

requires an analysis of the effects of the compensable

injury upon the claimant, in combination with his preexisting talents, deficiencies, education and intelligence

levels, vocational background, age, and any other fac-
tors which might prove relevant. This is of course the

analysis that commissioners regularly undertake in total

disability claims . . . . A commissioner always must

examine the impact of the compensable injury upon

the particular claimant before him. . . .

‘‘The import of Osterlund . . . is that the commissioner must evaluate not only the physical incapacity

of the plaintiff, but the effect that the physical injury

has on the plaintiff’s employability.’’ (Citations omitted;

emphasis in original; internal quotation marks omitted.)

Bode v. Connecticut Mason Contractors, The Learning

Corridor, 130 Conn. App. 672, 679–81, 25 A.3d 687, cert.

denied, 302 Conn. 942, 29 A.3d 467 (2011).

I

The plaintiff’s first claim is that 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. We disagree.

‘‘Whether a party was deprived of his due process

rights is a question of law to which appellate courts

grant plenary review.’’ McFarline v. Mickens, 177 Conn.

App. 83, 100, 173 A.3d 417 (2017), cert. denied, 327

Conn. 997, 176 A.3d 557 (2018).

‘‘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, 85 Conn. App. 15, 24–25, 857 A.2d 354,

cert. denied, 272 Conn. 907, 863 A.2d 700 (2004).

‘‘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.) Pagan v. Carey Wiping Materials Corp., 144 Conn.

App. 413, 418–19, 73 A.3d 784, cert. denied, 310 Conn.

925, 77 A.3d 142 (2013).

‘‘Matters of procedure in compensation cases which

do not affect prejudicially the rights of parties, will not

avail upon appeal. Unless such rights be thus affected,

the form of procedure before the compensation commissioner is exclusively for his determination. It is only

when the rights of parties are prejudicially affected that

we will consider on appeal matters of procedure before

the commissioner.’’ (Internal quotation marks omitted.)

Gonirenki v. American Steel & Wire Co., 106 Conn. 1,
8–9, 137 A. 26 (1927).

The plaintiff argues that the commissioner, by not

allowing her to present evidence about her vocational

total disability claim pursuant to Osterlund at the March

11, 2014 hearing, violated her right to due process. The

plaintiff’s due process claim is meritless because the

commissioner’s decision to not allow her to present

evidence in support of her Osterlund claim on that

particular day did not prejudicially affect her substantive rights. The commissioner repeatedly invited the

plaintiff to return for a hearing in three weeks to present

evidence that she was vocationally totally disabled. The

plaintiff inexplicably declined the commissioner’s invitation to do so. Thus, she cannot demonstrate how she

was harmed by the commissioner’s decision to not let

her present evidence regarding a potential vocational

disability at the March 11, 2014 hearing when she could

have returned three weeks later to pursue this claim.7

The plaintiff, primarily relying on O’Connor v. MedCenter Home Health Care, Inc., 140 Conn. App. 542,

59 A.3d 385, cert. denied, 308 Conn. 942, 66 A.3d 884

(2013), argues that she could have rebutted the form

36 notice seeking to terminate her temporary total disability benefits on the basis of her reaching maximum

medical improvement by either showing that she was

medically or vocationally totally incapacitated. This is

the correct interpretation of the law. See id., 554, 556

n.8. The plaintiff, however, fails to acknowledge a key

distinction between the present case and O’Connor.

In O’Connor, the plaintiff litigated her vocation based

disability claim over a four session hearing. Id., 545. In

the present case, the commissioner offered the plaintiff

the opportunity to litigate this issue. As previously

stated, the plaintiff elected not to pursue this claim.

The plaintiff cannot, now on appeal, rely on O’Connor

to argue that the commissioner should have undergone

a holistic evaluation of her work capacity when, unlike

the plaintiff in O’Connor, she never presented this claim

despite the commissioner’s invitation to do so.

It is also important to note that the commissioner’s

decision to bifurcate the plaintiff’s claim protected the

defendants’ due process rights. At workers’ compensation hearings, ‘‘no matter shall be decided unless the

parties have fair notice that it will be presented in sufficient time to prepare themselves upon the issue.’’ Osterlund v. State, 129 Conn. 591, 596, 30 A.2d 393 (1943).

‘‘Administrative 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. . . . Due process of law

requires not only that there be due notice of the hearing

but that at the hearing the parties involved have a right

to produce relevant evidence, and an opportunity to

know the facts on which the agency is asked to act, to

cross-examine witnesses and to offer rebuttal evidence.

. . . Further, procedural due process mandates that

the commissioner cannot consider additional evidence

submitted by a party without granting the opponents

. . . the opportunity to examine that evidence and offer

evidence in explanation or rebuttal.’’ (Citations omitted;

internal quotation marks omitted.) Bryan v. SheratonHartford Hotel, 62 Conn. App. 733, 740, 774 A.2d

1009 (2001).

‘‘One of the fundamental purposes of the commissioner’s expansive evidentiary reach is to encourage full

disclosure and cooperation among the parties during

the pendency of a claim. . . . [A] commissioner must

always protect the substantial rights of the parties

[which] include the right of the employer . . . independently to examine the claimant, to notice his deposition,

and to insist on hearing his personal testimony at a

formal hearing. . . . Protecting such substantial rights

is part and parcel of ensuring that each party in a compensation proceeding receives a fair hearing.’’ (Citation

omitted; internal quotation marks omitted.) Bidoae v.

Hartford Golf Club, 91 Conn. App. 470, 477, 881 A.2d

418, cert. denied, 276 Conn. 921, 888 A.2d 87 (2005),

cert. denied, 547 U.S. 1112, 126 S. Ct. 1916, 164 L. Ed.

2d 665 (2006). ‘‘The matter rests in the legal discretion

of the commissioner, and that requires such notice as

is reasonable under the circumstances.’’ Pallanck v.

Donovan, 109 Conn. 469, 472, 147 A. 14 (1929).

In the present case, the plaintiff did not provide the

defendants notice of her Osterlund claim. In her request

for a formal hearing, she only identified ‘‘Form 36/Discontinuation of Benefits’’ as an issue for the formal

hearing. The form 36 filed by the defendants stated that

‘‘maximum medical improvement’’ was the basis for the

discontinuation of temporary total benefits. As a result,

the March 11, 2015 hearing was scheduled to determine

whether the plaintiff had reached maximum medical

improvement. As the plaintiff conceded at the hearing,

she did not have evidence to rebut the defendants’ claim

that she had reached maximum medical improvement.

Instead, she sought to present evidence in support of

an Osterlund claim, without providing fair notice. If the

commissioner had let this occur, the defendants would

have been subjected to trial by ambuscade, a violation

of their cognizable due process right to notice. Thus,

the plaintiff’s due process claim is further undermined

because, as a result of plaintiff’s trial tactics, the commissioner was left with no choice but to delay the plaintiff from presenting her vocational total disability claim

pursuant to Osterlund in order to protect the defendants’ right to due process.
II

The plaintiff also claims that the commissioner erred

in determining that she was not totally disabled. We

conclude that this claim, as the plaintiff frames it, is

not ripe for review.

‘‘[R]ipeness is a sine qua non of justiciability . . . .’’

(Internal quotation marks omitted.) Milford Power Co.,

LLC v. Alstom Power, Inc., 263 Conn. 616, 624, 822 A.2d

196 (2003). ‘‘Because courts are established to resolve

actual controversies, before a claimed controversy is

entitled to a resolution on the merits it must be justiciable. . . . Justiciability requires (1) that there be an

actual controversy between or among the parties to the

dispute . . . (2) that the interests of the parties be

adverse . . . (3) that the matter in controversy be

capable of being adjudicated by judicial power . . .

and (4) that the determination of the controversy will

result in practical relief to the complainant. . . . As we

have recognized, justiciability comprises several related

doctrines, namely, standing, ripeness, mootness and the

political question doctrine, that implicate a court’s subject matter jurisdiction and its competency to adjudicate a particular matter. . . . Finally, because an issue

regarding justiciability raises a question of law, our

appellate review is plenary. (Citations omitted; footnote

omitted; internal quotation marks omitted.) Office of

the Governor v. Select Committee of Inquiry, 271 Conn.

540, 568–69, 858 A.2d 709 (2004)

‘‘[T]he rationale behind the ripeness requirement is

to prevent the courts, through avoidance of premature

adjudication, from entangling themselves in abstract

disagreements . . . . Accordingly, in determining

whether a case is ripe, a trial court must be satisfied

that the case before [it] does not present a hypothetical

injury or a claim contingent upon some event that has

not and indeed may never transpire.’’ (Citation omitted;

internal quotation marks omitted.) Chapman Lumber,

Inc. v. Tager, 288 Conn. 69, 86–87, 952 A.2d 1 (2008).

The plaintiff argues that because she was vocationally

totally disabled pursuant to Osterlund, the commissioner improperly found that she has a work capacity.

As previously discussed in this opinion, the plaintiff

opted not to pursue this claim despite the commissioner’s invitation to do so, and, thus, it was not litigated.

Now, on appeal, we can only speculate what evidence

the plaintiff8 could have presented in support of this

theory and how the defendants could have challenged

it. Moreover, the commissioner never made a finding

with respect to whether the plaintiff was vocationally

totally disabled pursuant to Osterlund, and, if the plaintiff’s pattern of reluctance to pursue this claim through

the offered channels continues, a final decision may

never be reached on it. For us to now review this claim,

as the plaintiff characterizes it, on appeal, would violate
the principles of ripeness by prematurely adjudicating

a hypothetical claim. As a result, the plaintiff’s decision

not to return for a hearing only a few weeks later to

present evidence that she was vocationally totally disabled pursuant to Osterlund has left this claim unripe

for review.

The appeal is dismissed in part; the decision of the

Compensation Review Board is affirmed.

In this opinion the other judges concurred.

1 The Workers’ Compensation Trust, the workers’ compensation insurer

for St. Lucian’s Residence, Inc., is also a defendant in this case.

2

‘‘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).

3

‘‘The essence of an Osterlund type argument is that even though the

injured worker can do some theoretical menial work, the injured worker’s

physical or mental condition due to his or her injury or illness is such that

[she] cannot in the exercise of reasonable diligence find employment and,

therefore, is just as much totally disabled as though the injured worker

could not work at all.’’ (Emphasis in original.) 3 A. Sevarino, Connecticut

Workers’ Compensation After Reforms (7th Ed. 2017) § 6.02.5, p. 908.

4 On November 23, 2015, the plaintiff also filed a motion to add additional

evidence to the record, seeking to introduce a vocational capacity evaluation,

and a motion to correct. The commissioner denied the motion to correct

and did not rule on the motion to introduce evidence.

5 General Statutes § 31-307 (a) provides: ‘‘If any injury for which compensation is provided under the provisions of this chapter results in total incapacity

to work, the injured employee shall be paid a weekly compensation equal

to seventy-five per cent of his average weekly earnings as of the date of

the injury, calculated pursuant to section 31-310, after such earnings have

been reduced by any deduction for federal or state taxes, or both, and for

the federal Insurance Contributions Act made from such employee’s total

wages received during the period of calculation of the employee’s average

weekly wage pursuant to section 31-310; but the compensation shall not be

more than the maximum weekly benefit rate set forth in section 31-309 for

the year in which the injury occurred. No employee entitled to compensation

under this section shall receive less than twenty per cent of the maximum

weekly compensation rate, as provided in section 31-309, provided the minimum payment shall not exceed seventy-five per cent of the employee’s

average weekly wage, as determined under section 31-310, and the compensation shall not continue longer than the period of total incapacity.’’

6 General Statutes §31-298 provides: ‘‘Both parties may appear at any

hearing, either in person or by attorney or other accredited representative,

and no formal pleadings shall be required, beyond any informal notices that

the commission approves. In all cases and hearings under the provisions

of this chapter, the commissioner shall proceed, so far as possible, in accordance with the rules of equity. He shall not be bound by the ordinary common

law or statutory rules of evidence or procedure, but shall make inquiry,

through oral testimony, deposition testimony or written and printed records,

in a manner that is best calculated to ascertain the substantial rights of the

parties and carry out the provisions and intent of this chapter. No fees shall

be charged to either party by the commissioner in connection with any

hearing or other procedure, but the commissioner shall furnish at cost (1)

certified copies of any testimony, award or other matter which may be of

record in his office, and (2) duplicates of audio cassette recordings of

any formal hearings. Witnesses subpoenaed by the commissioner shall be

allowed the fees and traveling expenses that are allowed in civil actions,

to be paid by the party in whose interest the witnesses are subpoenaed.

When liability or extent of disability is contested by formal hearing before

the commissioner, the claimant shall be entitled, if he prevails on final

judgment, to payment for oral testimony or deposition testimony rendered

on his behalf by a competent physician, surgeon or other medical provider,

including the stenographic and videotape recording costs thereof, in connec-
tion with the claim, the commissioner to determine the reasonableness of

such charges.’’

7 The plaintiff argues that the commissioner’s decision not to allow her

to present evidence could have a preclusive effect in later proceedings. She

has failed to support this assertion with any authority. At oral argument

before this court, the defendants conceded that the plaintiff can still pursue

a vocational total disability claim.

8 The record does contain some evidence that the plaintiff presented in

support of her Osterlund claim. This evidence includes her limited testimony

at the March 11, 2015 hearing, her vocational capacity evaluation, and her

functional capacity evaluation. We do not know, however, what else she

might have testified to, what her neighbor, a purported fact witness, might

have testified to, and whether or on what grounds the defendants would

rebut this claim.