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             NILDA RIVERA v. PATIENT CARE
                OF CONNECTICUT ET AL.
                       (AC 39154)
                      Sheldon, Bright and Harper, Js.

                                  Syllabus

The plaintiff appealed to this court from the decision of the Compensation
   Review Board affirming the decision of the Workers’ Compensation
   Commissioner, who approved the defendant employer’s request to trans-
   fer the plaintiff’s benefit status from temporary partial disability to
   permanent partial disability on the basis of a medical examination that
   determined that the plaintiff had reached maximum medical improve-
   ment. The plaintiff claimed that the board improperly affirmed the com-
   missioner’s decision because the commissioner failed to require the
   defendant to prove that she had a work capacity and improperly shifted
   the burden to her to prove that she did not have a work capacity. The
   board rejected the plaintiff’s claim, reasoning, inter alia, that a person
   could reach maximum medical improvement, have a permanent partial
   impairment and be temporarily totally disabled from working, all at the
   same time. The board also noted that it was within the commissioner’s
   discretion to bifurcate the issue of temporary total disability benefits
   and work capacity. On the plaintiff’s appeal to this court, held that the
   plaintiff’s claim that the burden of proving that she did not have a work
   capacity was improperly shifted to her was without merit; the board
   noted that the defendant requested only a finding of maximum medical
   improvement as to the plaintiff’s right lower extremity and a change to
   her disability designation from temporary partial to permanent partial,
   and given that the defendant did not seek any change to the plaintiff’s
   incapacity benefits, the commissioner did not need to address the issue
   of the plaintiff’s work capacity.
      Argued November 28, 2018—officially released March 5, 2019

                            Procedural History

   Appeal from the decision of the Workers’ Compensa-
tion Commissioner for the Sixth District dismissing the
plaintiff’s claim for benefits, brought to the Compensa-
tion Review Board, which affirmed the commissioner’s
decision, and the plaintiff appealed to this court.
Affirmed.
  Jennifer Levine, with whom was Harvey Levine, for
the appellant (plaintiff).
   Eric F. King, for the appellee (named defendant).
                          Opinion

   SHELDON, J. The plaintiff, Nilda Rivera, appeals from
the decision of the Compensation Review Board
(board) affirming the decision of the Workers’ Compen-
sation Commissioner (commissioner), in which the
commissioner approved a form 361 filed by the defen-
dant Patient Care of Connecticut2 based upon a finding
that the plaintiff had reached maximum medical
improvement as to one of the three injuries claimed by
the plaintiff and accepted by the defendant for which
she had been receiving and continues to receive tempo-
rary incapacity benefits.3 On appeal, the plaintiff claims
that the board erred in affirming the commissioner’s
ruling because the commissioner did not require the
defendant to prove that she had a work capacity and
improperly shifted the burden to her to prove that she
did not have a work capacity. Because the commis-
sioner limited his finding on the defendant’s form 36
to the issue of whether the plaintiff reached maximum
medical improvement as to her partial disability to her
right lower extremity, he did not need to address the
issue of the plaintiff’s work capacity. Consequently, the
record does not support the plaintiff’s contention that
the commissioner improperly required her to prove that
she lacked a work capacity. Accordingly, we affirm the
decision of the board.
   The following relevant facts were found by the com-
missioner.4 On May 30, 2006, the plaintiff was working
as a certified nursing assistant and day care instructor
for the defendant, when she sustained a fracture of
the third metatarsal of her right foot, which required a
surgical repair. Following surgery, she has experienced
significant and persistent pain as a result of her injury.
As a result of her persistent pain, she has become clini-
cally depressed. As a result of the injury to her right
foot, she also has developed bursitis in her right hip.
The defendant has accepted all three of these injuries.
Since the date of the plaintiff’s initial injury, she has
received incapacity benefits.
   On August 29, 2012, the defendant filed a form 36
in which it requested ‘‘transfer of benefit status from
[temporary partial disability] to [permanent partial dis-
ability] based on commissioner’s exam[ination] by Dr.
Enzo Sella dated July 2, 2012, that places [the plaintiff]
at maximum medical improvement with 6 percent
impairment rating to the right lower extremity.’’ At an
informal hearing held on October 2, 2012, the commis-
sioner approved the form 36.
   On December 2, 2014, the commissioner held a formal
hearing on the form 36, limited to the issue of ‘‘[w]hether
the [plaintiff] has reached maximum medical improve-
ment to [her] right lower extremity with a permanent
partial disability rating of six (6) percent.’’5 The commis-
sioner issued his written finding and dismissal on March
31, 2015. The commissioner held, inter alia: ‘‘I find the
opinion of Dr. Sella persuasive in that the [plaintiff] has
reached maximum medical improvement of her right
lower extremity with a permanent partial disability rat-
ing of 6 percent to the right lower extremity, which
equates to 9 percent rating of the [plaintiff’s] right foot.’’
The plaintiff thereafter filed a motion to correct the
commissioner’s decision, which was denied.
   The plaintiff filed a petition for review with the board,
claiming that ‘‘the . . . commissioner’s decision to
limit the scope of the trial de novo on the form 36
approved on October 2, 2012, to the issue of maximum
medical improvement and exclude the issue of work
capacity constituted error . . . .’’6 The plaintiff argued
that the commissioner ‘‘erred by ignoring the incapacity
issue and refusing to require that the [defendant] sustain
[its] burden of proof showing that . . . she . . . has
a work capacity.’’ (Internal quotation marks omitted.)
The board rejected the plaintiff’s claim, explaining that
‘‘[a] person may reach maximum medical improvement,
have a permanent partial impairment, and be temporar-
ily totally disabled from working all at the same time.
. . . Moreover, a [plaintiff] deemed totally disabled due
to one injury or condition is entitled to receive ongoing
total disability benefits even if the claimant has reached
maximum medical improvement for a different injury
or condition.’’ (Citations omitted; emphasis omitted;
internal quotation marks omitted.) The board noted
that, here, the defendant was not seeking to terminate
or reduce the plaintiff’s incapacity benefits. Instead, the
defendant’s form 36 sought a change in the designation
of her right lower extremity injury from temporary par-
tial disability to permanent partial disability based on
a claim that the plaintiff had reached maximum medical
improvement as to that injury. Because the defendant
was not seeking to terminate or reduce the plaintiff’s
incapacity benefits, the board concluded that it was
‘‘well within [the commissioner’s] discretion to bifur-
cate the issue of temporary total disability benefits and
work capacity.’’7 The board thus affirmed the commis-
sioner’s decision. This appeal followed.
  The plaintiff claims that the board erred in affirming
the commissioner’s approval of the form 36 because
the commissioner failed to require the defendant to
prove that she had a work capacity and improperly
shifted the burden to her to prove that she did not have
a work capacity. We disagree.
   As the board aptly noted, the defendant’s form 36
requested only a finding of maximum medical improve-
ment as to the plaintiff’s right lower extremity and a
change to the plaintiff’s disability designation as to her
right lower extremity from temporary partial to perma-
nent partial. The defendant did not seek any change
to the plaintiff’s incapacity benefits. Consequently, the
commissioner did not need to address the issue of the
plaintiff’s work capacity. Accordingly, the plaintiff’s
claim that the burden of proving that she did not have
a work capacity was improperly shifted to her is with-
out merit.8
   The decision of the 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
[plaintiff] of the intention of the employer and its insurer to discontinue [or
reduce] compensation payments. The filing of this notice and its approval
by the commissioner are required by statute in order properly to discontinue
[or reduce] payments.’’ (Internal quotation marks omitted.) Brinson v. Fin-
lay Bros. Printing Co., 77 Conn. App. 319, 320 n.1, 823 A.2d 1223 (2003);
General Statutes § 31-296 (a).
    2
      Zurich American Insurance Company, the defendant’s workers’ compen-
sation insurance carrier, also is a defendant but is not a party to this appeal.
We therefore refer to Patient Care Connecticut as the defendant.
    3
      The commissioner also rejected the plaintiff’s claims for injuries to her
left foot and right shoulder. The plaintiff did not challenge that ruling.
    4
      The plaintiff filed an extensive motion to correct the findings of the
commissioner. That motion was denied by the commissioner and the denial
of that motion was affirmed by the board. The board’s ruling affirming the
denial of the motion to correct has not been challenged on appeal.
    5
      As noted herein, the commissioner also addressed the compensability
of the plaintiff’s claimed injuries to her left foot and right shoulder. The
commissioner determined that those injuries were not related to her initial
injury and therefore were not compensable.
    6
      The plaintiff asserted two additional claims of error, but does not chal-
lenge the board’s holdings on those issues on appeal.
    7
      The board noted that the plaintiff had been receiving incapacity benefits
pursuant to General Statutes § 31-308 (a), ‘‘which, by definition, contem-
plates a partial work capacity.’’ The board concluded that any claim for
temporary total disability benefits asserted by the plaintiff was outside the
scope of the form 36.
    8
      The plaintiff also claims that the ‘‘posttermination evidentiary hearing
was fundamentally unfair and violated the plaintiff’s due process rights.’’
She claims that her constitutional right to due process was violated because
‘‘[t]he posttermination evidentiary hearing did not reconsider the plaintiff’s
work incapacity, and the defendant did not bear the burden of proving work
capacity.’’ As explained herein, the commissioner did not consider or make
any ruling regarding the plaintiff’s work capacity. The plaintiff thus raises
a claim of procedural error that did not actually yield any error.
