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

Court of Appeals of Connecticut

July 3, 2018

BARBARA MIKUCKA
v.
ST. LUCIAN'S RESIDENCE, INC., ET AL.

          Argued March 20, 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).

          Alvord, Sheldon and Keller, Js.

          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)] claim[3] . . . . 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 ...

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