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Gagliardi v. Eagle Group, Inc.

CASE NO. 4496 CRB-2-02-2



FEBRUARY 27, 2003











The claimant was represented by David C. Davis, Esq., McGann, Bartlett & Brown, LLC, 281 Hartford Tpke., Suite 401, Vernon, CT 06066.

The respondents were represented by Howard Levine, Esq., Law Offices of Grant H. Miller, Jr., 29 South Main St., Suite 310N, West Hartford, CT 06107-2445.

This Petition for Review from the February 20, 2002 Finding and Award of the Commissioner acting for the Second District was heard July 19, 2002 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr. and Amado J. Vargas.


JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the February 20, 2002 Finding and Award of the Commissioner acting for the Second District. He contends that the trier erred by finding that he failed to establish a causal connection between his disability and a compensable injury of January 24, 2001. We find no error on review, and affirm the trial commissioner’s decision.

The parties stipulated that the claimant struck his left shoulder, left arm and buttocks on Wednesday, January 24, 2001, while walking down an icy hill during the course of his employment as a commercial roofer. There is no dispute that this injury is compensable. The issue here concerns the extent of resulting disability. The trier found that, directly after falling, the claimant proceeded to take an elevator and climb a small ladder to the roof of the building on which he was working, where he took one or two prescribed Oxycodone pills that he had been carrying. He kept working for about 1½ hours, took a lunch break, and then returned to his job, where he swallowed another pill and remained on-site until 5:00 p.m. He appeared at work the next two mornings, and after taking the weekend off, continued to report for work until February 1, 2001, since which time he has been unemployed.

The claimant had a significant history of back injuries that predate his January 24, 2001 mishap. He was involved in a 1990 motor vehicle accident that obliged him to have surgery on his low back, and kept him out of work for two years, with lingering pain and tingling sensations down his left leg. He testified that he had been taking Vicodin, a prescribed narcotic pain reliever, intermittently since 1990. A 1992 MRI showed a disc herniation centrally and to the left at L4-5, while a 1993 MRI demonstrated that there was degenerative disc disease at L4-5 and L5-S1. Lower back pain persisted, and the claimant began wearing a TLSO brace that extended from his chest to his thighs. By May 13, 1994, Dr. Becker had assigned a 15% permanency rating to the claimant’s back as a result of the 1990 car accident. This was after the claimant had reinjured his back in two other car accidents, in February 1994 and on May 9, 1994.

At this point, the claimant stayed out of work for a year and a half. He had persistent pain in his low back, and the trier found that an MRI of August 22, 1994 showed a possible recurrent disc herniation at L5-S1. Dr. Druckemiller performed fusion surgery to relieve instability at L4-5, in consultation with Dr. Becker, who rated the claimant with 20% permanency of the back on June 15, 1995. During the next few years, the claimant frequently treated with Dr. Becker for low back pain, and continued to receive prescription Vicodin. He returned to work around 1996 doing flashing, which he described as a less strenuous aspect of the roofing trade. An August 11, 1997 myelogram showed decreased filling of the left S1 nerve root. In February 1999, he was complaining of lower back pain radiating down the left leg, which Dr. Becker attributed to the 1994 motor vehicle accidents. The following year, Dr. Becker decided to discontinue the claimant’s Vicodin prescription. The claimant testified that he was by then addicted to the narcotic, and sought out Dr. Beck with an eye toward obtaining further medication. He began treating with Dr. Beck on October 11, 2000, and canceled an October 18 appointment with Dr. Becker. Dr. Becker nonetheless reported that the claimant should not be on stronger narcotic medications, and that he did not need further medical treatments for his back.

Dr. Beck injected the claimant’s low back, and prescribed physical therapy as well as narcotics (OxyContin1 and Vicodin). When he re-examined the claimant on November 10, 2000, he was complaining of intensified symptoms in the back and left leg. Dr. Beck performed a nerve block, and increased the OxyContin and Vicodin ES prescriptions. On December 22, 2000, the claimant was still complaining of sharp back pain, now radiating down both legs (with the left being worse). Another nerve block was performed, and the strength of the Vicodin prescription was increased to Vicodin HP, for breakthrough pain.

The claimant’s next visit with Dr. Beck was January 30, 2001, six days after his compensable fall at work. He made no mention of that incident to the doctor. His complaint was of more pain radiating down the right leg than the left, so Dr. Beck completed a third nerve block procedure, and increased the frequency of the OxyContin dosage. The claimant then returned to Dr. Becker on February 14, 2001, when he diagnosed a back sprain and aggravation of the previous back condition. Dr. Beck again saw the claimant on March 27, 2001, whereupon the claimant first described his fall on the ice from two months earlier. At the request of Dr. Becker, the claimant underwent a myelogram on April 2, 2001, that revealed a left L5-S1 disc herniation. Dr. Becker noted changes in comparison to a prior study done on August 6, 1997, and recommended surgery.

Dr. Selden performed an independent medical examination on July 5, 2001. He opined that the January 24 incident was not a significant factor in the claimant’s back condition, given his long history of back problems and chronic use of pain medication. Dr. Selden also noted that the earlier myelogram had shown decreased filling at the S1 nerve root, suggesting that the herniation had been present for a long while. A § 31-294f C.G.S. commissioner’s exam was then conducted by Dr. Chozick, a neurosurgeon. Dr. Chozick initially stated that the claimant’s fall of January 24, 2001 aggravated his pre-existing back condition, and substantially brought about his current need for treatment and his inability to work. In response to questioning at the formal hearing, however, he opined that the claimant’s herniated disc of 1997 could have naturally degenerated with normal activities. He thought the 1997 myelogram showed a deficiency in left-side S1 nerve root filling, which had progressed slightly by the time of the 2001 myelogram. In his view, Dr. Beck’s findings of bilateral lower extremity and back pain indicated a worsening herniated disc. He also suspected that the claimant’s symptoms might have been masked by pain medication. He eventually said that he could not declare within a reasonable degree of probability that the fall had caused the claimant’s present condition. Then, on redirect examination, he changed his mind again, stating that Dr. Beck’s reports after the January 24, 2001 fall showed that it did cause an aggravation.

The trial commissioner concluded that the claimant had not met his burden of proof that his compensable fall at work caused his disability since February 2, 2001. Given his history of nearly four years’ lost work since 1990, three motor vehicle accidents, his need for a back brace, fusion surgery, habitual use of narcotic medication for back pain, and increased pain symptoms during the months prior to January 2001, she found that the fall was not a substantial factor in causing the claimant’s troubles. She accordingly dismissed the claim for temporary total disability benefits and medical care, from which decision the claimant has appealed to this board.

When we review the factual findings of a trial commissioner, we are bound by a deferential standard of scrutiny. The trier of fact is the sole person with the right to resolve issues concerning the credibility of the evidence, such as the amount of trust to place on a medical report, or the degree to which the live testimony of a witness is believable. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999); Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002). The claimant has the burden of convincing the commissioner that he has sustained a compensable injury (which is not disputed here), and that such injury has caused whatever incapacity is being claimed. Kudlacz v. Lindberg Heat Treating Co., 70 Conn. App. 559, 564 (2002); Warren v. Federal Express Corp., 4163 CRB-2-99-12 (Feb. 27, 2001). Inconsistencies in the evidence must be resolved by the trier, and she may give credit to all, part or none of the testimony given by a lay or expert witness, while also retaining the authority to reject evidence that superficially may appear to be uncontradicted. Phaiah, supra; Warren, supra. On review, we may not retry the facts of the case ourselves; rather, we review the findings to determine whether they are supported by evidence on which a reasonable person could rely, or whether they incorrectly omit material, undisputed facts. Kudlacz, supra; Warren, supra.

It is the position of the claimant on appeal that the trial commissioner made many findings that are unsupported by evidence in the record, and that said findings led the trier to erroneously dismiss his disability claim. After reviewing the claimant’s list of alleged errors and the evidence in the record, we believe that the trier’s decision is free of harmful error. Let us take the claimant’s brief point by point. First, with regard to the amount of medication the claimant took on January 24, 2001, and his general medication use since 1990, the evidence supports the trier’s finding that the claimant took four Oxycodone pills over the course of the day, and that he had been taking Vicodin on and off since 1990. August 23, 2001 Transcript, pp. 17, 54. Though his dosage had been cut down by Dr. Becker, Dr. Beck’s October 2000 report reflected the claimant’s belief that his pain control was no longer adequate, particularly due to his recent pain exacerbation. Claimant’s Exhibit A. The claimant’s OxyContin dosage was subsequently increased over the next few months preceding the January 24, 2001 injury. The claimant also spoke about a physical addiction to the Vicodin in his testimony. August 23, 2001 Transcript, pp. 59-60. Thus, the trier’s findings regarding medication use are adequately supported by the evidence.

The claimant objects that the trier’s findings incorrectly imply that he continued to perform physical labor immediately after his injury, thereby downplaying the severity of the injuries sustained in his fall. He related in his testimony that, after he slipped, he lay on the ground for a few minutes, whereupon the “bell just rang for the college to come out.” As he was embarrassed to be lying on the ground with people walking by him, he got up and went to his work station on the roof, where he felt safer and less self-conscious. Id., pp. 15-16. Though he found it necessary to lay down for the next few hours, he did get up to show a co-worker how to perform the flashing job he was supposed to be doing, and supervised him later that afternoon. Id., pp. 18-21. As for the next two days, he returned to work, though he was in pain and suffering from numbness. He worked full days doing flashing, seated on his tool box with a back brace to support his spine. Id., pp. 23-24.

Putting aside the fact that the trier was not required to rely upon all of the claimant’s testimony even in the absence of contrary evidence, she was also not required to include excerpts from evidence or purely evidential facts in her decision. Admin. Reg. § 31-301-3. In dismissing the claim for disability after February 2, 2001, the trier did not profess to rely on the absence of pain symptoms following the January 24, 2001 injury. Rather, she relies on his prior history of back problems. We cannot say that material and undisputed facts were omitted here.

With regard to the claimant’s point that the trier failed to distinguish between the TLSO brace prescribed by Dr. Becker in 1993 and the lumbar corset he subsequently recommended, the claimant does not explain why this clarification would be material. The use of either device would seem to signify the continuation of pain and instability, even though the polypropylene TLSO brace was apparently a customized prescription item, while the other brace was presumably an amalgam of a brace Dr. Becker had given the claimant and a binding garment that had later been attached to it. See Transcript, p. 48. In his testimony, the claimant only described one brace, which he said he had been wearing regularly since 1990. Again, we do not find the precise distinction between these two braces to be a material fact that needed to be clarified in the findings.

The claimant next identifies a discrepancy between the evidence and the findings that may in fact reflect a minor mistake. In ¶ 23, the trier stated that the August 22, 1994 MRI showed a possible recurrent disc herniation at the left side of L5-S1. The claimant sought to correct this finding to reflect a possible herniation at L4-5, which request was denied along with his other proposed corrections. In looking at Claimant’s Exhibit D, one can see that Dr. Becker’s typewritten report of August 26, 1994 initially described the recurrent disc herniation as being “on the left at L5 S1,” and that he later used a pen to cross out the “S1” and write “L4 5,” initialing the modification in the left margin. We can confirm this change by noting that he addressed the left L4-5 disc herniation in his next office note of September 21, 1994. We think it likely that, in reading the August 26, 1994 office note, the trier overlooked the significance of the doctor’s handwritten markings, and instinctively followed the typewritten text in describing his diagnosis for the purpose of her factual findings. Thus, ¶ 23 would seem to be inaccurate.

However, we still need to decide if this error was material to the outcome of the case. The claimant contends that it was substantial because there is no evidence to support the conclusion that there was a possible herniation at L5-S1 prior to January 24, 2001. Given the subsequent events and medical reports in evidence, we disagree with this assertion. First, the trier found that the claimant underwent fusion surgery to relieve instability at L4-5 on November 8, 1994, which suggests that the error in ¶ 23 that resulted from a misreading of Dr. Becker’s report was self-limiting. Second, the MRI report from the radiology department at Hartford Hospital suggests that there was damage at the L5-S1 level, as it describes “post operative changes with enhancing scar at L4-5 on the left. Post-op changes are also seen at L5-S1 with incomplete enhancement. This most likely represents swollen nerve root although some small recurrent disc fragment cannot be completely excluded.” Claimant’s Exhibit E. Thus, evidence already existed to establish some irregularities at L5-S1.

Third, the August 6, 1997 myelogram was interpreted by Dr. Becker in an August 11, 1997 report as showing decreased filling of the left S1 nerve root “which may well be clinically significant,” which contemporaneous report the trier was entitled to credit insofar as it conflicted with Dr. Goldman’s report of August 6, 1997, and Dr. Becker’s July 27, 2001 report (in which he stated that any decreased filling of the S1 root sleeve in 1997 was not significant in comparison to the results of the scan that was performed in April 2001). Claimant’s Exhibits B, D, E. We note that a case cited by the respondents, Bryan v. Sheraton-Hartford Hotel, 62 Conn. App. 733 (2001), does not suggest otherwise; Bryan merely found error in a trier’s refusal to accept into evidence a doctor’s report that attempted to rescind an earlier report in which he had erroneously assessed the cause of the claimant’s injury due to the fact that vital records had not been available at the time it was prepared. No such error is claimed by Dr. Becker here in his July 27, 2001 report, and the trier was entitled to assess its relative credibility compared to his contemporaneous 1997 report. Thus, the commissioner could reasonably find that evidence of back trouble at the L5-S1 level existed prior to the January 24, 2001 fall.

What is even more noteworthy is the evidence of back symptomatology that immediately predated January 24, 2001. On February 12, 1998, and again on March 16, 1998, Dr. Becker noted persistent pain down the claimant’s left leg, with the source of the problem being at the L5-S1 level. Claimant’s Exhibit D. Though the February 26, 1999 report notes that he “continues to have pain in his lower back,” without specifically mentioning leg pain, Dr. Becker did observe mildly positive readings on the left side during a straight leg raising test. These reports of pain became pronounced as 2000 came to a close. In a December 22, 2000 report, Dr. Beck noted complaints of continuing pain in the claimant’s back that would radiate sharply down the left leg and at times down the right leg, which seemed to be aggravated by his busy work schedule. Claimant’s Exhibit A. By then, the claimant had already begun increasing his dosages of narcotic medication again, and was also seeking relief through therapeutic nerve block injections, which seemed to provide him with about three weeks of relief each time. See November 10, 2000 report; December 22, 2000 report; January 30, 2001 report.

Indeed, there is quite a bit of evidence to suggest that the claimant’s pain symptoms had significantly increased prior to the January 24, 2001 fall, and it would be understandable if the trier concluded that any further worsening of those symptoms after that date was part of a continuing deterioration process that culminated in a disc herniation first identified on April 13, 2001 by Dr. Becker. We would also observe in support of the trier’s findings that no evidence of disc herniation at L5-S1 was found in a March 2, 2001 CT scan. Claimant’s Exhibit C. This would further call into doubt the role of the January 24, 2001 fall as an important contributor to the progression of the claimant’s back symptoms, as there is a dearth of clear evidence that a significant change occurred immediately following the fall.

With regard to Dr. Selden’s report, the trier does not indicate in her decision that she relied on it heavily. Respondent’s Exhibit 1. We have already explained, however, that the trier could have reasonably chosen to rely on Dr. Becker’s August 11, 1997 office note stating that the recent myelogram showed some decreased filling of the left S1 root sleeve. Insofar as Dr. Selden’s report also relied on that interpretation of the myelogram, we recognize that it would be up to the trial commissioner to decide whether that fact in some way weakened the persuasiveness of his opinion.

The claimant also devotes much attention to Dr. Chozick’s testimony, which he alleges that the trier misinterpreted and then improperly disregarded without sufficient explanation. It is true that a § 31-294f examination is usually expected to provide strong guidance to a commissioner, and that a commissioner should attempt to articulate the reasons for disregarding such an opinion in recognition of the § 31-294f examiner’s traditional role. However, cases such as Tartaglino, supra, and Nieves v. SCM Company, 3317 CRB-6-96-4 (July 9, 1997), establish that the trier of fact is not absolutely bound to credit any doctor’s opinion, including that of a commissioner’s examiner, and that a trier’s decision is not erroneous as a matter of law simply by virtue of the fact that he or she has not given a reason for failing to adopt such an opinion. See also Gillis v. White Oak Corp., 49 Conn. App. 630, 636-38 (1998).

Moreover, we have compared Dr. Chozick’s testimony to the trier’s findings, and we find the trier’s description of that testimony to be accurate. Essentially, he did not have a strong opinion regarding the origin of the claimant’s L5-S1 condition, and was unsure as to what type of surgery he would need without further x-rays and a discogram. Though he was willing to ultimately settle on an opinion that the claimant’s fall aggravated his pre-existing disc problem at L5-S1 within a reasonable degree of medical probability; December 13, 2001 Transcript, p. 50; he was also unable to say definitively that the claimant did not need surgery prior to the fall, as he had not known the patient prior to 2001, and could not be sure just from looking at the records. Id., pp. 53-54. In judging the weight to give Dr. Chozick’s opinion, the trial commissioner was certainly entitled to decide that it was not reliable enough to establish the causal connection that the claimant was attempting to prove. Thus, we cannot fault her for not relying on this evidence.

In conclusion, we find no reversible error in the trial commissioner’s decision. It was ultimately her prerogative to decide whether the claimant offered sufficient evidence to prove that his disability and need for surgery were caused by the January 24, 2001 accident. In her judgment, which she appears to have reasonably exercised, the evidence was not clear enough to establish that claim. Therefore, we must affirm the trial commissioner’s decision on appeal.

Commissioners Donald H. Doyle, Jr. and Amado J. Vargas concur.

1 OxyContin is a trade name for the narcotic pain reliever oxycodone hydrochloride, which is manufactured by Purdue Pharmaceuticals. BACK TO TEXT


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