ALVAREZ v. WAL-MART STORES, INC., NO. 5378 CRB-5-08-9 (7-27-2009)


JULY 27, 2009

This Petition for Review from the August 26, 2008 Finding and Award of the Commissioner acting for the Fifth District was heard February 27, 2009 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Peter C. Mlynarczyk and Randy L. Cohen.

The claimant was represented by Jose Vivaldi Martinez, Esq., Law Office of Jose Vivaldi Martinez, 60 Old New Milford Road, Suite 3D, Brookfield, CT 06804 and David V. DeRosa, Esq., Law Office of David V. DeRosa, 42 Terrace Avenue, P.O. Box 992, Naugatuck, CT 06770.

The respondents were represented by Nicholas C. Varunes, Esq., Varunes Associates PC, 5 Grand Street, Hartford, CT 06106.


The claimant in the present action was awarded benefits for permanent partial disability. The respondent Wal-Mart Stores has appealed the award; arguing the award should be apportioned against a prior injury sustained by the claimant. We find that the trial commissioner rejected the testimony presented by the respondent which would have supported apportionment of the claimant’s award, and this decision was within his discretion. We affirm the trial commissioner and dismiss this appeal.

The trial commissioner found the following facts at the conclusion of the formal hearing. The trial commissioner took administrative notice of an October 10, 2003 Finding and Award which established the claimant’s December 27, 1999 back injury was compensable. The claimant sought a 23% permanent partial disability award for this injury. The respondents argue that they were responsible for only 25% of this injury.

The basis for the respondents’ position was that the claimant suffered a back injury on September 30, 1997 while working for Waldbaum’s Foodmart supermarket. No disability ratings were established for this injury and the claimant settled her claim with Waldbaum’s on July 14, 1999 for $9,500. Following her December 27, 1999 injury the claimant had a back fusion surgery performed by Dr. Hilary Onyiuke, a neurosurgeon.

Following the surgery, Dr. Michael Karnasiewicz performed a Commissioner’s examination of the claimant in 2001. Dr. Karnasiewicz determined that three-quarters of the claimant’s disability was attributable to the 1997 injury and the remaining one-quarter of the disability was due to the 1999 injury. The claimant’s treating physician did not apportion this rating.

Based on these facts, the trial commissioner determined that Dr. Onyiuke was persuasive and credible. The commissioner determined that while he accepted Dr. Karnasiewicz’s position on compensability he did not accept his position on apportionment. The trial commissioner concluded that the claimant achieved maximum medical improvement on May 11, 2007 and the respondents were to pay benefits based on a 23% permanent partial disability rating.

The respondents have appealed. They claim that they are legally entitled to a set-off pursuant to § 31-349 C.G.S. They also argue that the trial commissioner’s ruling was inconsistent with the evidence on the record. We are not persuaded the trial commissioner erred on these issues, however.

The statutory argument for this appeal is based on the language of § 31-349 C.G.S. The relevant provisions read as follows:

(a) The fact that an employee has suffered a previous disability, shall not preclude him from compensation for a second injury, nor preclude compensation for death resulting from the second injury. If an employee having a previous disability incurs a second disability from a second injury resulting in a permanent disability caused by both the previous disability and the second injury which is materially and substantially greater than the disability that would have resulted from the second injury alone, he shall receive compensation for (1) the entire amount of disability, including total disability, less any compensation payable or paid with respect to the previous disability, and (2) necessary medical care, as provided in this chapter, notwithstanding the fact that part of the disability was due to a previous disability. For purposes of this subsection, “compensation payable or paid with respect to the previous disability” includes compensation payable or paid pursuant to the provisions of this chapter, as well as any other compensation payable or paid in connection with the previous disability, regardless of the source of such compensation.

The respondents argue that the claimant had suffered a “previous disability” as a result of the 1997 injury working at Waldbaum’s Foodmart. Therefore the respondents believe some, if not all, of the sum the claimant received for that accident must be set-off against her award for this accident. The difficulty with this argument is that the record prior to the claimant’s settlement of that claim does not clearly establish the claimant was partially permanently disabled as a result of this accident. The record herein does not provide any means to ascertain how the settlement sum of $9,500 was reached, and therefore, any effort to infer this was a payment against a permanency rating would be “grounded in speculation or conjecture.” DiNuzzo v. Dan Perkins Chevrolet Geo, 99 Conn. App. 336, 344-346 (2007). We may distinguish Johnsonv. Manchester Bus Service, Inc., 3472 CRB-01-96-11 (April 1, 1998) from the present case on the facts. In Johnson the trial commissioner credited expert testimony on the record that ascribed a percentage of the claimant’s disability to a prior accident.[1]

The respondents argue that Dr. Karnasiewicz offered such testimony and that as the commissioner’s examiner he should have been relied upon. The trial commissioner may choose to give greater weight to the opinions of the commissioner’s examiner than the treating physician Gagliardi v.Eagle Group, Inc., 4496 CRB-2-02-2 (February 27, 2003), aff’d, 82 Conn. App. 905 (2004) (per curiam), but he is not required to do so. See Ben-Eli v. Lowe’s Home Improvement Center, 5006 CRB-3-05-10
(November 16, 2006). In Ben-Eli the commissioner offered an explanation for his decision not to rely on the opinions of the commissioner’s examiner. The trial commissioner in the present case also explained why he chose not to rely on Dr. Karnasiewicz.

In Finding, ¶ 13 the trial commissioner found the claimant’s need for major back surgery following the 1999 accident inconsistent with ascribing 75% of the resulting disability to a prior accident. The trial commissioner was not persuaded by the evidence supporting this result since he found the resulting permanency rating as “not reasonable.” The commissioner also noted that “Dr. Karnasiewicz did not examine the Claimant towards an eye on assigning a rating whereas Dr. Onike [sic][2]
did.” In circumstances like this, we must respect the trial commissioner’s evaluation of contested evidence; O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 818 (1999), especially since an appellate body must extend “every reasonable presumption” to the fact-finder’s decision. Daniels v. Alander, 268 Conn. 320, 330 (2004).[3]

We also note that the respondents failed to file a Motion to Correct to challenge the trial commissioner’s factual findings in this matter. Under these circumstances, “we must accept the validity of the facts found by the trial commissioner, and that this board is limited to reviewing how the commissioner applied the law.” Stevens v. RaymarkIndustries, Inc., 5215 CRB-4-07-4 (March 26, 2008).

The respondents argue that this result may lead to a “double recovery” for the claimant. We disagree. We distinguish McFarland v. Dept. of Developmental Services, 115 Conn. App. 306 (2009) from the present case. In McFarland, supra, “the plaintiff received wages and benefits for the same time period.” Id., at 314. However, in the present case, the claimant’s basis for prior recovery was not defined as to a period of lost wages or other ascertainable measurement.

Nor do we find Deschenes v. Transco, Inc., 288 Conn. 303 (2008) applicable to this case. Deschenes is a case dealing with whether injuries attributable to both compensable and noncompensable disease may be apportioned. In the present case, both injuries to the claimant were clearly work related, although they occurred while the claimant was employed by different employers. Therefore, the apportionment analysis called for in Deschenes, id., 322-324, does not apply to separate compensable injuries.

Instead we find cases such as LaMontagne v. F F ConcreteCorporation, 5198 CRB-4-07-2 (February 25, 2008) and Marroquin v. F.Monarca Masonry, 5310 CRB-4-07-12 (December 19, 2008) more applicable. In both LaMontagne and Marroquin the trial commissioner found the initial injury was the proximate cause of the claimant’s medical condition. In the present case the trial commissioner concluded the subsequent event was the proximate cause. As we pointed out in LaMontagne, supra, “when two injuries are found to have occurred to a claimant `the second injury must be of legal significance in the proximate cause analysis'” in order to require apportionment. In the present case the trial commissioner concluded only the second injury was legally significant; therefore apportionment was not warranted. This is consistent with the Supreme Court’s holding in Fimiani v. Star Gallo Distributors, Inc., 248 Conn. 635
(1999).[4] We cannot conclude that this assessment was clearly erroneous.

We believe that the respondents in this matter had the burden of establishing that apportionment was legally necessary. The trial commissioner did not find their evidence was persuasive. Since this decision is within the discretion of the trial commissioner and we find no abuse of that discretion, we must affirm the Finding and Award and dismiss this appeal.

Commissioners Peter C. Mlynarczyk and Randy L. Cohen concur in this opinion.

[1] While the stipulation acknowledged the claimant had sought benefits alleging permanent partial disability, the text of the agreement also contains a denial by the respondents that the claimant was entitled to any further compensation as to that date. The agreement was the resolution of a contested matter and does not establish that in fact the claimant was permanently disabled as a result of that accident; nor does it discuss any need for surgery.
[2] The record indicates the doctor’s surname is spelled “Onyiuke.” Claimant’s Exhibit A. We deem this to be a harmless scrivener’s error. See Hernandez v. American Truck Rental, 5083 CRB-7-06-4 (April 19, 2007).
[3] Counsel for the claimant points out that Dr. Karnasiewicz reached this conclusion despite acknowledging he did not review the actual x-ray films following the 1997 injury. See Respondents’ Exhibit 12. Since the trial commissioner did not find Dr. Karnasiewicz persuasive and credible on this issue, the respondents offered no evidence the commissioner found probative on the central issue herein.
[4] Respondents argue that Fimiani v. Star Gallo Distributors, Inc., 248 Conn. 635 (1999) supports their position. However, in light of the fact that the prior stipulation is silent on what relief, if any, was to be applied against the contested and undetermined level of disability from the first injury, we must presume that the trial commissioner concluded the entire level of the claimant’s present disability was due to the subsequent injury, and that no set-off was required against the prior stipulated amount.