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O’Leary v. Wal-Mart Associates, Inc.

CASE NO. 5395 CRB-3-08-11



OCTOBER 27, 2009











The claimant was represented by Carl A. Secola, Jr., Esq., Kinney, Secola & Gunning, LLC, 685 State Street, Second Floor, P.O. Box 1814, New Haven, CT 06508.

The respondents were represented by Gerald Davino, II, Esq., Adelson, Testan, Brundo & Jimenez, 2080 Silas Deane Highway, Suite 304, Rocky Hill, CT 06067.

This Petition for Review from the October 31, 2008 Finding and Orders of the Commissioner acting for the Third District was heard April 24, 2009 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Peter C. Mlynarczyk and Randy L. Cohen.


JOHN A. MASTROPIETRO, CHAIRMAN. The claimant in this matter appeals from the Finding and Orders issued by the trial commissioner for this claim. In his decision, the trial commissioner dismissed a number of elements of the relief sought by the claimant. On appeal, the claimant asserts that the denial of his claim for permanent partial disability benefits and for benefits after May 8, 2006 was in error. We have reviewed the claimant’s argument and find the trial commissioner reached his decision based on evaluating the persuasiveness of the claimant’s evidence. Since this is a decision reserved for the trial commissioner, we affirm the Finding and Orders and dismiss this appeal.

The trial commissioner reached the following findings of fact after the conclusion of the formal hearing. He noted that the respondents had accepted the compensability of a February 23, 2006 accident which occurred while the claimant was employed stocking shelves at their Hamden store. The claimant testified that this incident occurred when he was bringing buckets of paint to the back of the store at about 4:30 a.m. A shelf gave way under the weight of accumulated paint cans, which knocked another Wal-Mart associate back into the claimant. The claimant testified that after this collision he felt a “pop” in his back. The claimant testified that the impact from the collision was “very forceful,” but he was able to continue work. Finding, ¶¶ 3 and 5. He reported the incident to a superior and testified he was directed to “see one of their doctors.” Finding, ¶ 6. He presented at Concentra Health Center with complaints of lumbar pain following the work incident. Dr. John Pito diagnosed the claimant with a “lumbar strain” as a result of an “exacerbation of underlying disorder.” Finding, ¶ 8.

The trial commissioner noted that the claimant testified at a September 1, 2006 deposition that he did not feel pain immediately after the paint can collision; but Dr. Pito’s report noted that pain at that time was “5” out of a possible “10.” Finding, ¶ 9. Dr. Pito’s February 23, 2006 report also noted the claimant related a history of years of back and sciatica pain resulting in the claimant treating three times a week with a chiropractor. This report did not reference leg pain and Dr. Pito released the claimant for light duty work. The claimant testified that Dr. Pito had “suggested I return to work, that it just might have been a spasm on the muscles contracting on my sciatic nerve.” Finding, ¶10.

On February 24, 2006 the claimant treated with a chiropractor, Dr. Robert M. Denes. Dr. Denes’s report stated that the claimant’s low back pain had resolved prior to the February 23, 2006 work-related incident, and had become worse since the incident. Dr. Denes prescribed daily manipulations for the first five to seven days and then “three times a week . . . for the next six to eight weeks.” Finding, ¶ 12. The claimant testified that prior to the work related incident he had not been treating with a chiropractor on a regular basis and was able to do heavy lifting despite having a sore back. He testified the earlier problems had largely resolved themselves. On cross-examination, the claimant admitted he had last treated with Dr. Denes at 4:48 p.m. on February 22, 2006; within 12 hours of the compensable injury and had treated with Dr. Denes since a 2002 motor vehicle accident. He further testified he had not ceased treating with Dr. Denes for the earlier accident as of February 23, 2006.

The trial commissioner found Dr. Denes had treated the claimant 24 times between January 11, 2006 and February 23, 2006. The claimant stated these treatments were for sciatica pain and not for back pain. Dr. Denes’s reports indicated that he had kept the claimant out of work from January 12, 2006 to February 18, 2006, at such time he was returned to work in a “supervisory capacity.” The claimant testified that prior to February 23, 2006 his group health insurer had advised Dr. Denes he was “over his limit” and would not be able to keep having this treatment paid for by his insurer.

The trial commissioner also considered the testimony of Dr. Denes who testified that as of February 23, 2006 the claimant was not discharged from treatment for lumbar and sciatic pain symptoms. The doctor testified that as of February 20, 2006 he was treating the claimant for sciatica, but as of February 22 the claimant was only having low back pain. He testified the claimant’s pain increased in a “dramatic” fashion on February 24. Dr. Denes related the need for all treatment following February 23, 2006 on the work-related accident.

The claimant testified the type of treatment he received from Dr. Denes after the accident was not substantially different from his treatment before the accident. He said the amount of pain and location of pain had increased; relating right leg pain for the first time following the accident. He said the first time he felt right side pain was when he attempted to return to work after the February 2006 accident.

On March 29, 2006 the claimant was examined by a neurosurgeon, Dr. James Sabshin, whom he had been referred to by Dr. Pito. Dr. Sabshin diagnosed “Left L5-S1 disc herniation with nerve root compression, with improving sciatic pain.” The report stated the claimant had “. . . a history of a previous injury many years ago from an automobile accident with some left-sided sciatic pain and back pain for which he underwent therapy. He seemed to be stable and had returned to work until he was re-injured on February 23, 2006. . . .” Finding, ¶ 38. The initial medical report did not reference the claimant’s extensive treatment with Dr. Denes.

Dr. Sabshin then on May 1, 2006 released the claimant to full duty work with no restriction as of May 8, 2006. Dr. Sabshin reported that the claimant had done “extremely well” with his therapy and treatment and had no leg pain. The claimant said although he returned to work “with restriction” he could not do the work provided as it involved lifting forty or fifty pounds. On June 18, 2006 Dr. Sabshin reported the claimant was now reporting significant increase in his right leg pain. In a June 19, 2006 report Dr. Sabshin said an MRI continued to show a disc herniation which “might account for his bilateral leg pain at times.” Finding, ¶ 42. Dr. Sabshin opined in a February 23, 2007 medical report that the February 23, 2006 injury was the aggravation of an older injury and “there were pre-existing injuries prior to his February 23, 2006 incident with most likely disk herniation and sciatic pain and that the incident of February was an exacerbation of this previous injury.” Finding, ¶¶ 43-45. Dr. Sabshin also testified at a deposition that he was not aware of the frequent treatment the claimant was receiving from Dr. Denes prior to the work-related injury and he was not aware the claimant had been disabled from work by Dr. Denes during the weeks prior to the injury.

Dr. Sabshin’s deposition testimony indicated that he disagreed with Dr. Denes that the claimant’s pre-existing back injuries were “resolving themselves” prior to the work related injuries, calling Dr. Denes’s treatment “inconsistent” with that opinion. He also testified “he most likely did have disc herniation or problems such as a disc herniation causing leg pain prior to that incident.” Finding, ¶ 48. Dr. Sabshin did opine later that the February 23, 2006 injury was a substantial factor in the claimant’s present condition, and attributed 10% of what he found was a 15% disability rating for the claimant to the Wal-Mart accident.

The respondents had the claimant examined by their expert, neurosurgeon Dr. Stephen Torrey, on December 18, 2006. Dr. Torrey said the claimant reported that his pain had been quite mild and returned to baseline levels since he had been restricted from activities. Dr. Torrey believed sufficient evidence supported the position that the claimant’s condition was pre-existing and it appears the aggravation from the Wal-Mart accident was temporary. Dr. Torrey opined that the claimant had reached maximum medical improvement from the February 23, 2006 accident and had suffered no permanent impairment from this accident.

Finally, the trial commissioner noted that the claimant had testified that while he still had pain down both legs, his symptoms had “slowly but surely” gotten better. The commissioner also noted that Dr. Denes had performed 134 chiropractic manipulations from February 23, 2006 to March 7, 2007.

Based on this evidence, the trial commissioner concluded the claimant had an accepted injury on February 23, 2006. The trial commissioner found the opinion of Dr. Torrey as “fully credible and persuasive.” Conversely, the claimant was found not to be fully credible and persuasive. The commissioner noted inconsistent testimony regarding the level of pain and the location of pain; as well as inconsistent histories offered by the claimant to Dr. Denes and Dr. Sabshin. Due to the inconsistent histories, the trial commissioner decided that neither doctor’s opinion was credible and persuasive on the issue of causation. The commissioner concluded the claimant had a pre-existing herniated disc causing lumbar and sciatic pain when he was injured on February 23, 2006. After a period of aggravation following that injury, the claimant returned to a baseline condition when he was returned to work by Dr. Sabshin on May 8, 2006. The commissioner concluded that the treatment the claimant received prior to that date was reasonable and necessary treatment, but that the claimant failed to prove his present lumbar spine condition was causally related to the compensable injury. Therefore, the commissioner ordered the payment of benefits to the claimant only up to May 8, 2006, and denied the claimant’s bid for permanent partial disability benefits.

The claimant filed a Motion to Correct, essentially seeking to have the Finding and Orders adopt Dr. Sabshin’s opinions. The trial commissioner denied this Motion and the claimant has pursued this appeal.

The claimant bases his appeal on two theories. First, he argues that the trial commissioner failed to properly credit testimony he believes was “undisputed,” in particular, evidence that the claimant was still disabled from work after May 8, 2006. The claimant also argues that the trial commissioner failed to properly apply the law regarding the aggravation of a pre-existing injury as enunciated in Epps v. Beiersdorf, Inc., 41 Conn. App. 430 (1996). We are not persuaded that either approach warrants reversal of the trial commissioner’s decision.

We note that the claimant argues that the record does not contain credible evidence that the compensable injury was not a substantial factor in the claimant’s present disability. Claimant’s Brief, p. 2. This analysis reverses the evidentiary standard for a hearing before a trial commissioner. As we stated in Hernandez v. American Truck Rental, 5083 CRB-7-06-4 (April 19, 2007) “[w]e have consistently held it is the claimant’s burden to establish total disability and entitlement to benefits under our statute.” The claimant had the burden of presenting probative evidence which the trial commissioner would find persuasive. The commissioner was not persuaded by this evidence. In his decision, the trial commissioner explained his rationale as finding that the claimant had presented inconsistent prior statements to his treaters. Our precedent clearly establishes that when a trial commissioner believes the claimant offered an unreliable history to his physicians, the trial commissioner may properly decide the doctor’s opinions are also unreliable.

The principal case on this point is Abbotts v. Pace Motor Lines, Inc., 4974 CRB-4-05-7 (July 28, 2006), aff’d, 106 Conn. App. 436 (2008), cert. denied, 287 Conn. 910 (2008). In Abbotts, the claimant maintained his disc herniation was the result of a work injury. The trial commissioner, however, ascertained discrepancies in the history the claimant offered his treating physician and deemed the resulting opinion on causation unreliable. The Appellate Court affirmed her denial. We find no material difference between the present case and Abbotts; hence, we must rely on stare decisis to reach the same result.

We also note that while the claimant argues certain evidence was “uncontroverted” and therefore, must establish the claimant’s present condition is compensable, the claimant made a similar argument in Ialacci v. Hartford Medical Group, 5306 CRB-1-07-12 (December 2, 2008).1 Since the trial commissioner in Ialacci found the claimant was not credible due to inconsistent testimony we rejected the claimant’s argument on appeal. We reach a similar conclusion regarding the claimant’s “uncontroverted” evidence. The trial commissioner clearly identified specific reasons for his lack of reliance on the claimant’s narrative, and we cannot revisit such a determination. Burton v. Mottolese, 267 Conn. 1, 40 (2003). As we stated in Do v. Danaher Tool Group, 5029 CRB-6-05-12 (November 28, 2006), the trial commissioner could properly disregard uncontroverted expert testimony when he found the claimant lacked credibility.

The trial commissioner specifically credited the respondent’s expert witness Dr. Torrey as credible and persuasive. Dr. Torrey’s December 18, 2006 report specifically identifies the February accident as creating a temporary aggravation and that as of the date of his examination, the claimant was “now doing fairly well.” Dr. Torrey stated he believed the claimant “strained the L5-S1 disc as a result of the 2/23/06 incident, but has returned to baseline.” See Dr. Torrey’s report attached to the Form 43 dated December 28, 2006. Dr. Torrey also declined to assign a permanency rating to the claimant as a result of his February 2006 accident. The claimant argues that Dr. Torrey’s report was inconsistent and unreliable. Claimant’s Brief, pp. 7-8. Since it is the trial commissioner’s responsibility “to assess the weight and credibility of medical reports and testimony. . . .” O’Reilly v. General Dynamics Corp., 52 Conn. App. 813 (1999), we find this argument unpersuasive.2 It is the trial commissioner’s responsibility to resolve discrepancies in medical testimony Williams v. Bantam Supply Co., Inc., 5132 CRB-5-06-9 (August 30, 2007). We also must respect the trial commissioner’s determination in “dueling expert” cases. See Dellacamera v. Waterbury, 4966 CRB 5-05-6 (June 29, 2006), n.1.

The claimant did present evidence to the trial commissioner that consistent with the test in McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104 (1987) established causation and compensability. The difficulty herein is the trial commissioner did not find this evidence persuasive and credible. Carroll v. Flattery’s Landscaping, Inc., 5385 CRB-8-08-10 (September 24, 2009). Since the trial commissioner proffered reasonable grounds for this conclusion, we are not in a position to reach a different result. Hernandez, supra.

We now address the claimant’s argument that the trial commissioner improperly applied the Epps case. We agree with the claimant that the Epps case stands for the proposition that one “takes the claimant as he finds him” and must accept the compensability of a pre-existing condition if it is aggravated by a work-related injury. However, to overturn the trial commissioner 2’s finding that the claimant did not suffer any increase in permanent disability as a result of the compensable injury, one would need to determine this conclusion was “clearly erroneous.” Berube, supra. This case closely resembles Chmielewski v. Reno Machine Company, Inc., 5273 CRB-6-07-9 (May 4, 2009) where an expert witness testified that the claimant’s condition “returned to baseline.” In the present case Dr. Torrey offered similar testimony to that offered by Dr. Selden in the Chmielewski case and we reach a similar result upholding the trial commissioner.

We also note that the trial commissioner had the opportunity to observe the claimant testify and reach a conclusion as to whether his narrative of having suffered a permanent injury from the February 23, 2006 incident was credible. See Burton, supra, Ialacci, supra, and Clarizio v. Brennan Construction Company, 5281 CRB-5-07-10 (September 24, 2008). We cannot intercede under these circumstances to second-guess the trial commissioner.

As a result, we conclude the trial commissioner’s determination was a reasonable exercise of his discretion. The burden of proof in a workers’ compensation claim for benefits rests with the claimant. Dengler v. Special Attention Health Svcs., Inc., 62 Conn. App. 440 (2001); Lentini v. Connecticut College, 4933 CRB-2-05-4 (May 15, 2006). The trial commissioner did not find the claimant’s evidence persuasive on this issue of total disability after May 8, 2006 or on the issue of having sustained a permanent partial disability and we cannot reach a contrary determination. Wierzbicki v. Federal Reserve Bank of Boston, 4147 CRB-01-99-11 (December 19, 2000),3 appeal dismissed, A.C. 21533 (2001). Therefore, we affirm the Finding and Orders and dismiss this appeal.

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

1 The claimant argues that the trial commissioner was bound to have accepted the proposed correction to Finding, ¶ 39 finding that the claimant remained totally disabled. In light of the fact the trial commissioner did not find Dr. Sabshin fully persuasive and credible we conclude he properly could have denied this correction. BACK TO TEXT

2 The claimant argues that since Dr. Torrey’s December 18, 2006 report predates a March 2007 MRI that supports Dr. Sabshin’s opinion, that the trial commissioner should not have credited Dr. Torrey’s opinions. Claimant’s Brief, p. 14. We reject this argument for two reasons. First, this is a “weight of the evidence” question which an appellate board cannot act to retry. Goldberg v. Ames Department Stores, 4160 CRB-1-99-2 (December 19, 2000). Second, had the claimant sought to elicit a revised opinion from Dr. Torrey based on the new test, he could have deposed the physician and inquired as to whether the new MRI changed his opinion. Since this did not occur, the trial commissioner could consider Dr. Torrey’s opinion “as is.” Berube v. Tim’s Painting, 5068 CRB-3-06-3 (March 13, 2007). BACK TO TEXT

3 We uphold the trial commissioner’s denial of the claimant’s Motion to Correct. This motion sought to interpose the claimant’s conclusions as to the law and the facts presented. To the extent “undisputed” facts were not added to the record, they would not have compelled a different result. Liano v. Bridgeport, 4934 CRB-4-05-4 (April 13, 2006) and D’Amico v. Dept. of Correction, 73 Conn. App. 718, 728 (2002). BACK TO TEXT


   You have reached the original website of the
   Connecticut Workers' Compensation Commission.

   Forms, publications, statutes, and most other
   information is now located at our NEW site: