Diaz v. Dept. of Social Services ( 2018 )

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ANGELA DIAZ v. DEPARTMENT OF SOCIAL
SERVICES ET AL.
(AC 39993)
Lavine, Alvord and Keller, Js.
Syllabus
The plaintiff appealed to this court from the decision of the Compensation
Review Board affirming the decision of the Workers’ Compensation
Commissioner denying and dismissing her claim for certain medical and
indemnity benefits. The plaintiff claimed, inter alia, that the commis-
sioner improperly failed to credit the allegedly uncontested expert testi-
mony from her primary care physician, D, that the permanent partial
disability of the plaintiff’s cervical spine and lumbar spine, as stated in
agreements that had been approved by the commissioner, were substan-
tial factors in causing the plaintiff to be disabled from her work. The
plaintiff had been involved in two motor vehicle accidents that were
not related to her employment. The second accident exacerbated her
preexisting spinal pain and caused her to miss work. The defendant
thereafter rearranged the plaintiff’s workstation to fit her in an ergo-
nomic fashion. A and M, two physicians who treated the plaintiff, recom-
mended that she undergo surgery to address the issues with her spine,
but she did not undergo that surgery. The commissioner determined,
inter alia, that the plaintiff had failed to establish that the aggravation
of her cervical and lumbar spine injuries was a substantial contributing
factor to the need for surgery that had been recommended for several
years before she filed her claim for benefits. The plaintiff thereafter
appealed to the board and filed a motion with the board to submit
additional evidence. The board denied the motion to submit additional
evidence and affirmed the commissioner’s decision. Held:
1. The board properly affirmed the commissioner’s denial and dismissal of
the plaintiff’s claim for benefits, as the commissioner’s determination
that the plaintiff’s claimed injuries were not a substantial factor in her
medical conditions and need for surgery was supported by the evidence
and was not inconsistent with the law: D’s opinion that the plaintiff was
totally disabled as a result of her compensable injury was not undisputed,
as the commissioner credited and relied, instead, on testimony and
statements from M that there was no evidence to suggest that the lack
of ergonomics at the plaintiff’s workplace played any role in her need
for surgery, and from A, who was reluctant to state that the plaintiff’s
failure to use an ergonomic workstation directly caused her cervical
spine condition; moreover, although D opined that the plaintiff’s need
for surgery was attributable to the lack of proper ergonomics at the
workplace, cervical fusion surgery had been recommended long before
the plaintiff filed her claim for benefits and before the voluntary
agreements were issued, and was continually delayed by the plaintiff
because of her fear of undergoing the surgery, and although portions
of the record could cast doubt on the conclusions of A and M, the
commissioner was entitled to credit all or any portion of the evidence
in reaching his conclusion.
2. The board properly affirmed the commissioner’s denial of the plaintiff’s
motion to correct the commissioner’s findings; the findings of the com-
missioner were supported by the evidence and included all material
facts as determined by the commissioner, and the plaintiff merely sought
to have the commissioner conform his findings to the plaintiff’s view
of the facts.
3. The board did not abuse its discretion in denying the plaintiff’s motion
to submit additional evidence; the board reasonably could have con-
cluded that the plaintiff did not demonstrate that she had good reason
for not presenting that evidence to the commissioner, as the documents
that the plaintiff sought to submit were in existence approximately four
years before the formal hearing on her workers’ compensation claim
commenced, and her motion merely sought to relitigate the issue of a
witness’ credibility.
Argued March 12—officially released September 4, 2018
Procedural History
Appeal from the decision by the Workers’ Compensa-
tion Commissioner for the Third District denying and
dismissing the plaintiff’s claim for certain medical and
indemnity benefits, brought to the Compensation
Review Board, which denied the plaintiff’s motion to
submit certain evidence; thereafter, the Compensation
Review Board affirmed the commissioner’s decision,
and the plaintiff appealed to this court. Affirmed.
Richard L. Jacobs, for the appellant (plaintiff).
Lisa Guttenberg Weiss, assistant attorney general,
with whom, on the brief, were George Jepsen, attorney
general, and Philip M. Schulz, assistant attorney gen-
eral, for the appellees (named defendant et al.).
Opinion
ALVORD, J. The plaintiff, Angela Diaz, appeals from
the decision of the Workers’ Compensation Review
Board (board) affirming the finding and dismissal of
her claim for medical and indemnity benefits against
the defendant, the Department of Social Services,1 by
the Workers’ Compensation Commissioner for the
Third District (commissioner). On appeal, the plaintiff
claims that the board improperly: (1) affirmed the com-
missioner’s finding and dismissal; (2) affirmed the com-
missioner’s denial of the plaintiff’s motion to correct
the finding; and (3) denied the plaintiff’s motion to
submit additional evidence. We affirm the decision of
the board.
The following facts, found by the commissioner or
otherwise undisputed in the record, and procedural his-
tory are relevant to the plaintiff’s appeal. The plaintiff
worked as an eligibility service specialist for the defen-
dant from October, 1986 through December 9, 2010.
The plaintiff worked in the defendant’s New Haven
office. During her period of employment, she worked
eight hours a day, five days a week. Her responsibilities
included determining a client’s eligibility for cash assis-
tance, food stamps, and medical benefits. Her position
required a ‘‘great deal of walking back and forth on the
[intake] line where she met applicants.’’ Although work
on the intake line consumed half of her workday, it did
not constitute a significant portion of her job duties.
In 1990, the plaintiff was involved in a motor vehicle
accident that was not related to her work. As a result
of this accident, she sustained disc herniations to her
cervical spine and lumbar spine. In 2006, the plaintiff
began treatment with Dr. Craig D. O’Connell, a chiro-
practor. In October, 2008, the plaintiff was involved in
a second motor vehicle accident that was not related
to her work, which exacerbated her preexisting cervical
and lumbar spinal pain and caused her to miss work
until March, 2009. In December, 2008, the plaintiff began
treatment with Dr. Michael E. Opalak, a neurosurgeon,
on referral from her primary care physician, Dr. Sudipta
Dey, regarding her injuries stemming from both motor
vehicle accidents. Dr. Opalak noted that the recent acci-
dent seemed to have worsened some of her lumbar
symptoms and increased her neck discomfort.
On January 5, 2009, Dr. Opalak reviewed the plain-
tiff’s imaging and noted that she had some element of
disc disease at the lower three levels of the lumbar
spine, but most of her symptoms were related to her
cervical complaints. Dr. Opalak recommended conser-
vative measures and epidural injections before consid-
ering surgery. The next day, Dr. O’Connell drafted a
letter from the plaintiff on his letterhead, stating: ‘‘I have
a history of cervical disc degeneration and herniations
dating back to 1990. I felt at that time and still feel
that cervical disc surgery is [too] risky. I have advised
neurosurgeon, Michael Opalak that I am not going to
have cervical surgery and I would like to continue with
conservative chiropractic care which has always helped
me in the past.
‘‘Dr. O’Connell has informed me of the possible com-
plications of my cervical spinal herniations and canal
stenosis. Among these are possible drop foot, paralysis,
and bowel/bladder dysfunction. He also advised if I
experienced any of these complications or any other
questionable symptoms to contact Dr. [Opalak] (neuro-
surgeon) or go to the emergency room. (Immediately).’’
The plaintiff signed the letter.
On September 4, 2009, the plaintiff filed a request
with the defendant pursuant to the Americans with
Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., to
be taken off the intake line permanently and for an
ergonomic workstation. She requested, inter alia, a new
desk and headset. On December 31, Ray Primini of the
Department of Administrative Services conducted an
evaluation of the plaintiff’s workstation. Primini recom-
mended that the defendant provide the plaintiff with
an adjustable high-back chair with arms and lumbar
support to accommodate someone of her height.2 Prim-
ini also recommended that the defendant provide the
plaintiff with a document holder to reduce the need
for her to look down. He did not recommend that the
defendant provide a new headset, as the defendant had
already provided the plaintiff with one.
Primini determined that rather than providing the
plaintiff a new desk, the plaintiff’s workstation could
be rearranged by placing her computer tower and moni-
tor on already existing surfaces, and her keyboard on
the existing desk surface. Primini rearranged a table
and desk and placed the computer equipment in a way
that fit the plaintiff in an ergonomic fashion. On March
10, 2010, a new high-back desk chair was delivered
to and signed for by the plaintiff. The defendant also
provided the plaintiff with a document holder, which
could be adjusted from the back to accommodate verti-
cal and horizontal documents.
On December 9, 2010,3 the plaintiff filed a first report
of injury,4 complaining of extreme discomfort in the
cervical and lumbar spinal regions beginning approxi-
mately six months earlier. She attributed her injury
to lack of proper ergonomics at her workstation. On
January 11, 2011, the plaintiff returned to Dr. Opalak
after not having seen him for two years. Dr. Opalak
was concerned by how the plaintiff’s condition had
progressed, as she presented with much more neck and
back pain, had difficulty rising from a sitting position,
and had difficultly feeling her feet. The plaintiff
expressed fear of surgery. Dr. Opalak recommended
that, for safety’s sake, the plaintiff have a discectomy.
On April 1, 2011, Dr. O’Connell disabled the plaintiff
from work due to the absence of a proper ergonomic
work environment for her chronic spinal condition.
On May 24, 2011, the plaintiff consulted Dr. Khalid
Abbed for a second opinion about the need for surgery.
He recommended a cervical decompression surgery
prior to addressing the issues with the plaintiff’s lumbar
spine. On August 3, Dr. Abbed again recommended the
surgery, but at the plaintiff’s request, agreed to wait six
months and reassess. On December 20, Dr. Abbed again
recommended surgery, but agreed to wait for approval
because a workers’ compensation hearing was
scheduled.
On September 26, 2011, the commissioner approved
a jurisdictional voluntary agreement.5 The injury was
identified as a December 9, 2010 lumbar neuropathy
and cervical myelopathy injury due to sitting, which
caused an aggravation of prior injuries. Drs. O’Connell
and Opalak were listed as treating physicians. Also on
September 26, the commissioner approved a voluntary
agreement in which Dr. Opalak awarded the plaintiff a
30 percent permanent partial disability rating6 (PPD)
for the December 9 cervical myelopathy.
The plaintiff then requested a change in physician
because she believed that Dr. Opalak was rude to her
after she indicated that she did not want surgery on
her cervical spine because she feared paralysis. On Jan-
uary 26, 2012, Commissioner Scott A. Barton appointed
Dr. Abbed as the authorized treating physician. On
March 26, a voluntary agreement was approved, in
which Dr. Opalak awarded the plaintiff a 5 percent PPD
rating for the December 9, 2010 lumbar neuropathy. At
a July 23, 2012 informal hearing, Commissioner Barton
noted that the plaintiff could put the surgery through
her group health insurance and that the defendant
would issue a form 43 to disclaim responsibility for it.
On October 19, 2012, Dr. Jacob Mushaweh, a neuro-
surgeon, performed a medical examination of the plain-
tiff for the defendant. In his opinion, surgery at the C5-
C6 level was reasonable, while surgery at the C6-C7
level amounted to a judgment call. He concluded that
there was no evidence to suggest that the lack of ergo-
nomics at work played any role in the plaintiff’s need
for surgery.
On March 23, 2013, Dr. Abbed performed an anterior
cervical discectomy and fusion surgery on the plaintiff.
Subsequently, Dr. John Reilly, a plastic surgeon, per-
formed a bilateral trigger thumb release on both of the
plaintiff’s hands.7
Formal hearings were held before the commissioner
on September 22, 2014, October 23, 2014, November
18, 2014, January 12, 2015, April 7, 2015, and June 29,
2015. At the beginning of the September 22 hearing, the
parties agreed that the issues involved compensability
of the plaintiff’s cervical spine fusion surgery, total dis-
ability benefits,8 form 36,9 form 43,10 the plaintiff’s
motion to preclude,11 and, if the commissioner found
compensability, lien reimbursement.12 The record was
closed on November 9, 2015.
On January 5, 2016, the commissioner issued a finding
and dismissal. He found that the plaintiff ‘‘suffered spi-
nal injuries in separate non-work-related motor vehicle
accidents in 1990 and 2008.’’ He found that Dr. Opalak
and Dr. Abbed recommended surgery ‘‘long before’’ the
plaintiff filed her workers’ compensation claim and the
formal hearing on that claim, and that her ‘‘fear of under-
going surgery was well documented’’ by her treating
physicians and her own testimony. He further found
that the plaintiff was not credible, and concluded that
she failed to establish that ‘‘the aggravation of her cervi-
cal and lumbar spine injuries was a substantial contrib-
uting factor to the need for surgery that had been
recommended for several years.’’ He concluded that the
defendant ‘‘did not unreasonably contest the [plaintiff’s]
request for cervical fusion surgery,’’ and that the plain-
tiff failed ‘‘in her burden of persuasion to establish [that]
the cervical spine fusion surgery is compensable.’’ He
also concluded that the plaintiff failed to establish cau-
sation as to her bilateral thumb surgery. The commis-
sioner denied and dismissed the plaintiff’s claim for
medical and indemnity benefits.13
The plaintiff appealed to the board, arguing that the
commissioner ‘‘failed to credit what she considers to
be uncontested expert testimony supporting her claim,
and this constitutes reversible error.’’ The board
rejected this argument and affirmed the commissioner’s
finding and dismissal. The board concluded: ‘‘We are
not persuaded by this argument and find that the trial
commissioner’s decision is supported by probative evi-
dence that he found persuasive and credible, and a
determination by the commissioner that the [plaintiff’s]
expert witnesses were not persuasive.’’ The board fur-
ther concluded: ‘‘It was the [plaintiff’s] burden to per-
suade the trial commissioner that her workplace
conditions were a substantial contributing factor in her
need for surgery and resultant medical conditions. We
believe that on the record herein a reasonable fact
finder could be left unpersuaded.’’ This appeal followed.
Additional facts will be set forth as necessary.
I
The plaintiff first claims that the board improperly
affirmed the commissioner’s finding and dismissal. Spe-
cifically, she argues that the commissioner failed to
accept ‘‘undisputed testimony’’ of the plaintiff’s primary
care physician, Dr. Dey,14 which conclusively estab-
lished that: (1) the plaintiff has been disabled from work
since December 10, 2010; (2) the PPD of 30 percent of
her cervical spine, as stated in the January 6, 2012
voluntary agreement, was a substantial factor in causing
the plaintiff to be disabled from work; (3) the PPD of
5 percent of her lumbar spine, as stated in the March
26, 2012 voluntary agreement, was a substantial factor
in causing the plaintiff to be disabled from work; (4) the
combination of the 30 percent disability of the cervical
spine and 5 percent disability of the lumbar spine was
a substantial factor in causing the plaintiff to be disabled
from work; and (5) the PPD of 30 percent of the cervical
spine was a substantial factor in causing the plaintiff to
undergo cervical spine surgery. We are not persuaded.
The following additional facts and procedural history
are relevant to our resolution of this claim. At the April
7, 2015 formal hearing before Commissioner Jack R.
Goldberg, the plaintiff entered into evidence the com-
plete transcript of the deposition testimony of Dr. Dey.
Dr. Dey, who is board certified in internal medicine,
testified about his treatment of the plaintiff, which
began in 2002. Dr. Dey testified that he treated the
plaintiff for cervical myelopathy, cervical disc hernia-
tion, lumbar disc herniation, and lumbar neuropathy.
He testified that as early as 2003, he noted when he
examined the plaintiff that ‘‘she had all the signs and
symptoms of cervical myelopathy, and I actually
recorded in my notes, she had hyperreflexia, both sides.
And I wrote it down, ‘Cervical disc herniation with
probable cervical myelopathy. Needs intermittent trac-
tion. Neuropathic pain. Patient does not want neurosur-
gical intervention.’ ’’
He testified that, in his opinion, the plaintiff is totally
disabled from gainful employment. He testified that
‘‘there is a probable relationship with a reasonable
degree of medical probability the 30 percent impairment
was a substantial factor . . . [i]n being totally disabled
from gainful employment.’’ When questioned as to
whether the 5 percent PPD of the plaintiff’s lumbar
spine was a substantial factor in ‘‘bringing about’’ the
plaintiff’s disability, Dr. Dey responded, ‘‘[p]robably,
yes.’’ He further testified that the combination of the
disabilities of the lumbar and cervical spine ‘‘made her
completely disabled.’’ With respect to whether the 30
percent PPD of the plaintiff’s cervical spine was a sub-
stantial factor in causing her to undergo cervical spine
surgery, Dr. Dey testified that the plaintiff ‘‘had some
degree of neck pain as well as cervical disc herniation,
for a long time, which got exacerbated over a period
of time. She also sustained a motor vehicle accident in
between, and subsequently her condition progressed
so much that she needed surgical intervention. . . . It
was related. . . . It is related, probably related. I can-
not—probably related, yes.’’ When questioned about
a prior opinion that he gave attributing the plaintiff’s
permanent disability to her work-related injury,15 Dr.
Dey testified that it was not based on his own certainty.
Rather, it was based on the opinion of Dr. O’Connell
‘‘[t]o some degree.’’ In Dr. Dey’s opinion, however, the
lack of an ergonomic workstation was more likely to
have exacerbated the plaintiff’s preexisting injuries
than not.
The commissioner, in his finding and dismissal, cred-
ited Dr. Dey’s ‘‘opinion . . . that the [plaintiff] in 2003
exhibited the symptoms of cervical myelopathy and
displayed neuropathic pain, cervical disc herniation,
and did not want neurosurgical intervention.’’ He found,
however, that Dr. Dey’s opinion ‘‘attributing the [plain-
tiff’s] need for surgery to the lack of proper ergonomics
at the workplace’’ was not credible, as it was grounded
in speculation or conjecture. He credited the opinion
of Dr. Opalak that the plaintiff required cervical fusion
surgery in 2008. He also found Dr. Mushaweh’s testi-
mony ‘‘credible and persuasive that the recommended
cervical fusion surgery was reasonable but not attribut-
able to the lack of an ergonomic workstation.’’ He also
credited Dr. Abbed’s opinion regarding the plaintiff’s
need for cervical fusion surgery. He also credited and
found persuasive Dr. Abbed’s statement that he could
not ‘‘say that [a] failure to use an ergonomic workstation
directly caused the [plaintiff’s] cervical spine condi-
tion,’’ but found his statement that it ‘‘probably aggra-
vated a preexisting condition and increased her level
of discomfort’’ to be grounded in speculation and con-
jecture.
On appeal to the board, the plaintiff argued that ‘‘the
trial commissioner failed to credit what she considers to
be uncontested expert testimony supporting her claim,
and this constitutes reversible error.’’ She argued that,
pursuant to this court’s opinion in Bode v. Connecticut
Mason Contractors, The Learning Corridor, 130 Conn.
App. 672, 25 A.3d 687, cert. denied, 302 Conn. 942, 29
A.3d 467 (2011), ‘‘the trial commissioner was obligated
to adopt Dr. Dey’s opinion and find that she was totally
disabled as a result of her compensable injury.’’ The
board rejected the plaintiff’s argument, concluding that
Bode did not stand for the proposition put forth by the
plaintiff. The board concluded that ‘‘[a]fter reviewing
the totality of Dr. Dey’s testimony, we are satisfied that a
reasonable fact finder could have reached a conclusion
that it was insufficiently reliable to support the [plain-
tiff’s] position,’’ and noted that a commissioner is not
obligated to find a plaintiff’s expert persuasive and reli-
able and, therefore, could have ‘‘considered all [of the
relevant evidence of her treaters] and found it less per-
suasive than the evidence presented by the [defen-
dant].’’ The board noted the commissioner’s conclusion
that Dr. Dey’s opinions were ‘‘substantially influenced
and derivative of’’ Dr. O’Connell’s opinions, which the
commissioner declined to credit and found unpersua-
sive. The board further concluded that although the
plaintiff characterized Dr. Dey’s opinions as ‘‘uncontro-
verted,’’ both Dr. Abbed and Dr. Mushaweh offered
differing opinions, and the commissioner ‘‘found Dr.
Mushaweh in particular credible and persuasive on the
issue of workplace causation.’’
We begin by setting forth the applicable standard of
review and legal principles. ‘‘A party aggrieved by a
commissioner’s decision to grant or deny an award may
appeal to the board pursuant to General Statutes § 31-
301. . . . The appropriate standard applicable to the
board when reviewing a decision of a commissioner is
well established. [T]he review [board’s] hearing of an
appeal from the commissioner is not a de novo hearing
of the facts. . . . [I]t is oblig[ated] to hear the appeal
on the record and not retry the facts. . . .
‘‘Similarly, on appeal to this court, [o]ur role is to
determine whether the review [board’s] decision results
from an incorrect application of the law to the subordi-
nate facts or from an inference illegally or unreasonably
drawn from them . . . . [Therefore, we ask] whether
the commissioner’s conclusion can be sustained by the
underlying facts. . . .
‘‘The [commissioner] alone is charged with the duty
of initially selecting the inference [that] seems most
reasonable and his choice, if otherwise sustainable, may
not be disturbed by a reviewing court.’’ (Citation omit-
ted; internal quotation marks omitted.) Jodlowski v.
Stanley Works, 169 Conn. App. 103, 108–109, 147 A.3d
741 (2016).
On appeal, the plaintiff challenges the commission-
er’s failure to find that her claimed December 9, 2010
injuries16 were substantial factors in her medical condi-
tions and need for surgery. ‘‘[I]n Connecticut traditional
concepts of proximate cause constitute the rule for
determining . . . causation [in workers’ compensation
cases]. . . . [T]he test of proximate cause is whether
the [employer’s] conduct is a substantial factor in bring-
ing about the [employee’s] injuries. . . . [Our Supreme
Court] has defined proximate cause as [a]n actual cause
that is a substantial factor in the resulting harm . . . .
The question of proximate causation . . . belongs to
the trier of fact because causation is essentially a factual
issue. . . . It becomes a conclusion of law only when
the mind of a fair and reasonable [person] could reach
only one conclusion; if there is room for a reasonable
disagreement the question is one to be determined by
the trier as a matter of fact. . . . [W]hether a sufficient
causal connection exists between the employment and
a subsequent injury is . . . a question of fact for the
commissioner. It is axiomatic that, in reaching that
determination, the commissioner often is required to
draw an inference from what he has found to be the
basic facts. [As (our Supreme Court) previously (has)
explained] [t]he propriety of that inference . . . is vital
to the validity of the order subsequently entered. But
the scope of judicial review of that inference is sharply
limited . . . . If supported by evidence and not incon-
sistent with the law, the . . . [c]ommissioner’s infer-
ence that an injury did or did not arise out of and in
the course of employment is conclusive. No reviewing
court can then set aside that inference because the
opposite one is thought to be more reasonable; nor
can the opposite inference be substituted by the court
because of a belief that the one chosen by the . . .
[c]ommissioner is factually questionable. . . . Only if
no reasonable fact finder could have resolved the proxi-
mate cause issue as the commissioner resolved it will
the commissioner’s decision be reversed by a reviewing
court.’’ (Citation omitted; internal quotation marks
omitted.) Turrell v. Dept. of Mental Health & Addiction
Services, 144 Conn. App. 834, 844–45, 73 A.3d 872, cert.
denied, 310 Conn. 930, 78 A.3d 857 (2013).
We have thoroughly reviewed the record and the
decisions of both the commissioner and the board. We
agree with the board that it was bound to accept the
commissioner’s decision as to which medical evidence
he found more persuasive. Although the plaintiff char-
acterizes Dr. Dey’s testimony as ‘‘undisputed,’’ we note,
as did the board, that both Dr. Abbed and Dr. Mushaweh
offered differing opinions from those of Dr. Dey. The
commissioner specifically credited and relied on por-
tions of Dr. Abbed’s and Dr. Mushaweh’s testimony,
and statements that differed from the opinions of Dr.
Dey in determining that the plaintiff’s claimed Decem-
ber 9, 2010 injuries were not a substantial factor in
her medical conditions and need for surgery.17 That
evidence included Dr. Mushaweh’s opinion, after exam-
ining the plaintiff, that ‘‘there was simply no evidence
to suggest that the lack of ergonomics at work played
any role in the need for surgery,’’ and Dr. Abbed’s ‘‘reluc-
tance to state that failure to use an ergonomic worksta-
tion directly caused the [plaintiff’s] cervical spine
condition . . . .’’ Although Dr. Dey opined that the
plaintiff’s need for surgery was attributable to the lack
of proper ergonomics at the workplace, as the commis-
sioner found and the board noted, ‘‘cervical fusion sur-
gery was recommended by Dr. Opalak and Dr. Abbed
long before the [plaintiff] filed the present claim and
before the voluntary agreements were issued, and was
continually delayed by her because of fear of undergo-
ing the surgery. . . . [T]he [plaintiff’s] fear of undergo-
ing surgery was well documented by Dr. O’Connell, Dr.
Opalak, and Dr. Abbed and by the [plaintiff’s] tes-
timony.’’18
Although there are portions of the record that may
cast doubt on Dr. Abbed’s and Dr. Mushaweh’s conclu-
sions, the commissioner was entitled to credit all or
any portion of the evidence submitted by the parties in
reaching his conclusion. See Turrell v. Dept. of Mental
Health & Addiction Services, supra, 144 Conn. App.
846. ‘‘It is well within the authority of the commissioner
to choose which evidence he found persuasive and
which evidence he found unpersuasive, and adjudicate
the claim accordingly. As the fact finder, the commis-
sioner may reject or accept evidence . . . . It is not
the province of this court to second-guess the commis-
sioner’s factual determinations. [T]he trier of fact—the
commissioner—was free to determine the weight to be
afforded to [the] evidence. . . . This court, like the
board, is precluded from substituting its judgment for
that of the commissioner with respect to factual deter-
minations.’’ Jodlowski v. Stanley Works, supra, 169
Conn. App. 109. Because the commissioner’s determina-
tion is supported by the evidence and not inconsistent
with the law,19 we cannot conclude that he erred in
determining that the plaintiff’s December 9, 2010 injury
was not a substantial factor in her medical conditions
and need for surgery.20
Accordingly, the board did not err in affirming the
commissioner’s dismissal of the plaintiff’s workers’
compensation claim.
II
The plaintiff next claims that the board improperly
affirmed the commissioner’s denial of her motion to
correct the finding. Specifically, the plaintiff argues that
the commissioner incorrectly denied certain para-
graphs of her motion, ‘‘which were based on undis-
puted evidence.’’
The following additional facts and procedural history
are relevant to our resolution of this claim. On February
3, 2016, the plaintiff filed a motion to correct the finding.
In her motion, the plaintiff requested that the commis-
sioner amend his findings by adding forty-two findings
to the commissioner’s findings of fact. On appeal to
this court, the plaintiff claims only that the commis-
sioner erred in denying seven of her forty-two proposed
corrections, specifically, those set forth in paragraphs
thirteen through sixteen and eighteen through twenty
of her motion. Those paragraphs proposed the addition
of the following findings: (13) ‘‘[a]s the result of the
aforementioned compensable injuries to the [plaintiff’s]
cervical spine and lumbar spine, the [plaintiff] has been
disabled from work from [December 10, 2010] through
the present time’’; (14) ‘‘[the 30 percent PPD] of the
cervical spine was a substantial factor in causing the
[plaintiff’s] disability from work’’; (15) ‘‘[the 5 percent
PPD] of the lumbar spine was a substantial factor in
causing the [plaintiff’s] disability from work’’; (16)
‘‘[t]he combination of the permanent disability of the
cervical spine and the permanent disability of the lum-
bar spine was a substantial factor in causing the [plain-
tiff’s] disability from work’’; (18) ‘‘[t]he 30 [percent]
impairment of the cervical spine was a substantial fac-
tor in causing the cervical anterior [discectomy] and
fusion surgery’’; (19) ‘‘[a]s the result of that surgery
the [plaintiff] incurred medical bills’’; and (20) ‘‘[t]he
[plaintiff] had no change in her spinal condition after
the surgery.’’
The plaintiff also requested the modification or dele-
tion of four additional findings.21 On February 9, 2016,
the commissioner denied the motion to correct in its
entirety. On appeal to the board, the board character-
ized the plaintiff’s motion as an effort to ‘‘substitute
findings supportive of compensability for the findings
reached by Commissioner Goldberg’’ and concluded
that the commissioner properly denied the motion.
We begin by setting forth the applicable standard of
review and legal principles that guide our analysis. ‘‘The
finding of the commissioner cannot be changed unless
the record discloses that the finding includes facts
found without evidence or fails to include material facts
which are admitted or undisputed. . . . It [is] the com-
missioner’s function to find the facts and determine the
credibility of witnesses . . . and a fact is not admitted
or undisputed merely because it is uncontradicted. . . .
A material fact is one that will affect the outcome of
the case. . . . Thus, a motion to correct is properly
denied when the additional findings sought by the mov-
ant would not change the outcome of the case. . . . It
is the commissioner . . . who has the discretion to
determine the facts. . . . Once the commissioner
makes a factual finding, [we are] bound by that finding if
there is evidence in the record to support it.’’ (Citations
omitted; internal quotation marks omitted.) Ayna v.
Graebel/CT Movers, Inc., supra, 133 Conn. App. 72–73.
The plaintiff asserts that the commissioner erred in
declining to include in his findings these facts, ‘‘which
were based on undisputed evidence.’’ The plaintiff
merely seeks to have the commissioner conform his
findings to the plaintiff’s view of the facts. It is the
commissioner, however, who must determine which
portions of a witness’ statement or what medical opin-
ions were credible and therefore, formed the basis of
the commissioner’s conclusion. See Testone v. C. R.
Gibson Co., 114 Conn. App. 210, 222, 969 A.2d 179, cert.
denied, 292 Conn. 914, 973 A.2d 663 (2009). ’’Once the
commissioner makes a factual finding, [we are] bound
by that finding if there is evidence in the record to
support it.’’ (Internal quotation marks omitted.) Ayna
v. Graebel/CT Movers, Inc., supra, 133 Conn. App. 73.
The plaintiff cannot expect the commissioner to substi-
tute the plaintiff’s conclusions for his own. Further-
more, this claim amounts to little more than a
restatement of her previous claim, which we already
have rejected, in part I of this opinion.
Because the findings of the commissioner were sup-
ported by the evidence and included all material facts as
determined by him, we conclude that the board properly
affirmed the commissioner’s denial of the plaintiff’s
motion to correct.
III
The plaintiff finally claims that the board improperly
denied her motion to submit additional evidence. Spe-
cifically, she argues that this evidence, which was ‘‘dis-
covered in response to a freedom of information request
that [she] made . . . more than nine months after the
evidence was closed,’’ would have ‘‘cast [a] new light
upon the credibility’’ of a witness.
The following additional facts and procedural history
are relevant to this claim. After the plaintiff’s September
4, 2009 ADA request for an ergonomic workstation,
Primini recommended that the defendant provide the
plaintiff with an adjustable high-back chair with arms
and lumbar support. The defendant’s employee, Hays-
teen Nickelson, who was responsible for the purchase
of the new chair, arranged for a new high-back desk
chair to be delivered to the plaintiff. The new high-
back desk chair was delivered to and signed for by the
plaintiff on March 10, 2010.
At the January 12, 2015 hearing, the plaintiff testified
that the chair was broken when delivered to her. She
testified that the chair was not a ‘‘[brand new high-
back] chair . . . . It was a broken chair they brought
from another district office.’’ She further testified that
Nickelson ‘‘came down and they removed the chair.
. . . They took and told me they were going to order
me a brand new chair. Which I waited from March
until I left in December, and it never came, I never got
anything.’’ She testified that when the broken chair was
provided, she ‘‘was given a blank piece of paper to sign
that was matched separately to the purchase order to
make it appear as if she approved the delivery of the
chair.’’ She further testified that after the broken chair
was delivered, Nickelson procured another chair for
her from a different district office of the defendant. On
November 9, 2015, the commissioner closed the record.
On January 5, 2016, the commissioner issued his finding
and dismissal. The commissioner found that the plain-
tiff was not credible, and found the testimony of both
Primini and Nickelson to be ‘‘credible and persuasive.’’
On April 28, 2016 the plaintiff filed a motion
requesting that the board hear additional evidence or
testimony. In her motion, the plaintiff contended that
the additional evidence would ‘‘[raise] questions about
the accuracy of Ms. Nickelson’s testimony.’’ The addi-
tional evidence consisted of: (1) a December 17, 2010
invoice for a new desk chair from Insalco Corporation,
which she obtained through a April 6, 2016 freedom
of information request, which showed a ‘‘due date’’ of
January 16, 2011; (2) e-mails between employees of the
defendant concerning her ergonomic accommodations;
and (3) an April, 2016 correspondence from the plain-
tiff’s counsel to the defendant’s counsel concerning the
plaintiff’s chair.
The plaintiff also attached to her motion an affidavit,
in which she averred that she did not receive a high-
back chair. In support of this, she noted that: (1) the
invoice stated that the high-back office chair was deliv-
ered on December 17, 2010, eight days after her last
day of work on December 9, (2) e-mails, attached to the
motion as exhibit C, showed a department employee,
Deborah A. McMullen, writing, ‘‘I was verbally informed
that the chair brought down on [March 10, 2010] was
not a high-back chair,’’ and (3) on April 27, 2016, counsel
sent a letter to the defendant’s counsel concerning the
plaintiff’s chair.
The defendant subsequently filed an objection to the
plaintiff’s motion. It argued, inter alia, that because
the documents which the plaintiff sought to offer as
additional evidence predated the formal hearings, the
plaintiff could have offered them in the proceedings
before the commissioner before resting her case. The
defendant contended that the plaintiff did not ‘‘provide
any reason why the additional evidence is material or
why it was not presented to the commissioner.’’ The
defendant further argued that even if the proposed addi-
tional evidence were considered by the board, that
because the majority of the commissioner’s findings
were based on medical records and testimony, and only
a small majority of those findings related to the plain-
tiff’s desk chair, ‘‘it does not negate or alter the medical
evidence upon which the commissioner relied.’’
In addressing the motion in its memorandum of deci-
sion, the board observed: ‘‘The [plaintiff] argues that
additional evidence is warranted on the issue of the
ergonomic chair provided to her because contradictory
evidence was presented by Ms. [Nickelson] at the June
29, 2015 hearing which she wishes to challenge. We
note that the [plaintiff] did not object to this witness’
testimony at that hearing or advise the trial commis-
sioner at the conclusion of her testimony that rebuttal
evidence would be proffered to refute her narrative
and documentation. Instead, counsel for the [plaintiff]
agreed with the trial commissioner [that] the record
was complete and the parties would proceed to brief
the case.’’ The board agreed with the defendant that
the plaintiff lacked sufficient justification for the admis-
sion of additional evidence, and also concluded that,
because it found in the record ‘‘no discussion to the
effect that the evidence the [plaintiff] presented at that
time was incomplete, we believe admission of this evi-
dence at this juncture would be an effort to try the
case in an inappropriate piecemeal fashion.’’ (Internal
quotation marks omitted.) The board sustained the
defendant’s objection and denied the motion to submit
additional evidence.
We begin by setting forth the applicable standard of
review and legal principles that guide our analysis. ‘‘The
board is statutorily authorized to review additional evi-
dence, not submitted to the commissioner, in limited
circumstances. General Statutes § 31-301 (b) provides:
The appeal [from the commissioner] shall be heard by
the . . . [b]oard as provided in [General Statutes §] 31-
280b. The . . . [b]oard shall hear the appeal on the
record of the hearing before the commissioner, pro-
vided, if it is shown to the satisfaction of the board that
additional evidence or testimony is material and that
there were good reasons for failure to present it in the
proceedings before the commissioner, the . . . [b]oard
may hear additional evidence or testimony. The proce-
dure that parties must employ in order to request the
board to review additional evidence is provided in § 31-
301-9 of the Regulations of Connecticut State Agencies,
which provides: If any party to an appeal shall allege
that there were good reasons for failure to present it
in the proceedings before the commissioner, he shall
by written motion request an opportunity to present
such evidence or testimony to the compensation review
division, indicating in such motion the nature of such
evidence or testimony, the basis of the claim of material-
ity, and the reasons why it was not presented in the
proceedings before the commissioner. The compensa-
tion review division may act on such motion with or
without a hearing, and if justice so requires may order
a certified copy of the evidence for the use of the
employer, the employee or both, and such certified copy
shall be made a part of the record on such appeal.
‘‘Thus, in order to request the board to review addi-
tional evidence, the movant must include in the motion
(1) the nature of the evidence, (2) the basis of the claim
that the evidence is material and (3) the reason why it
was not presented to the commissioner. . . . The ques-
tion whether additional evidence should be taken calls
for an exercise of discretion by the board, which we
review under the abuse of discretion standard.’’ (Cita-
tion omitted; internal quotation marks omitted.) Diaz
v. Pineda, 117 Conn. App. 619, 627–28, 980 A.2d 347
(2009).
In its memorandum of decision, the board noted that
the plaintiff sought to submit additional evidence
‘‘because contradictory evidence was presented by
[Nickelson] at the June 29, 2015 hearing which she
wishes to challenge,’’ but noted that the plaintiff did
not object to the witness’ testimony at the hearing, nor
advise the commissioner that she would offer rebuttal
evidence to refute her testimony. The board concluded
that the plaintiff lacked sufficient justification for the
admission of the additional evidence and that ‘‘admis-
sion of this evidence at this juncture would be an effort
to try the case in an inappropriate piecemeal fashion.’’
(Internal quotation marks omitted.) We agree with the
board’s conclusion. The plaintiff’s motion merely
sought, without justification, to relitigate the issue of
a witness’ credibility through the submission of addi-
tional evidence.
We conclude that this court’s decision in Diaz v.
Pineda, supra, 117 Conn. App. 619, is instructive on
this issue. In Diaz, the plaintiff sought, after the com-
missioner issued his finding and award on July 5, 2007,
to submit additional evidence to the board. Id., 627.
The additional evidence consisted of a medical report
dated October 29, 2007. Id. The plaintiff argued before
the board that ‘‘he had good reason to submit [the
doctor’s] medical report after the close of the formal
hearing before the commissioner because he could not
afford to be examined at the time of the hearing . . . .’’
Id., 628. This court, in concluding that the board reason-
ably could have concluded that the plaintiff had not
demonstrated that he had good reasons for not pre-
senting such evidence to the commissioner, noted the
board’s finding that ‘‘the plaintiff had not established
that the evidence could not have been obtained at the
time of the original hearing.’’ Id. Here, the plaintiff sub-
mitted her freedom of information request in April,
2016, five months after the commissioner closed the
record in November, 2015. In her motion, she offers no
reason why the additional evidence was not presented
to the commissioner during the formal hearing.22 Fur-
thermore, we note that in Diaz, the additional evidence
was not in existence at the time of the formal hearing,
and this court still concluded that the board did not
abuse its discretion in finding that the plaintiff had
not demonstrated good reason for not presenting such
evidence to the commissioner. Here, although the plain-
tiff characterizes this evidence as ‘‘new evidence,’’ the
documents that the plaintiff sought to submit as addi-
tional evidence were in existence in 2010, approxi-
mately four years before the formal hearing on her
workers’ compensation claim commenced in 2014. In
light of this, we conclude that the board reasonably
could have concluded that the plaintiff did not demon-
strate that she had good reason for not presenting such
evidence to the commissioner. The board did not abuse
its discretion in denying the plaintiff’s motion to submit
additional evidence.
The decision of the Compensation Review Board is
affirmed.
In this opinion the other judges concurred.
1
Gallagher Bassett Services and Meridian Resource Co., LLC, the workers’
compensation insurance carriers for the Department of Social Services, also
were named as defendants. In the interest of simplicity, we refer in this
opinion to the Department of Social Services as the defendant.
2
The plaintiff is five feet, eleven inches tall.
3
The plaintiff’s last day of work for the defendant was also on December
9, 2010.
4
See General Statutes § 31-294b (a) (‘‘[a]ny employee who has sustained
an injury in the course of his employment shall immediately report the injury
to his employer, or some person representing his employer’’).
5
See General Statutes § 31-296 (a) (‘‘If an employer and an injured
employee, or in case of fatal injury the employee’s legal representative or
dependent, at a date not earlier than the expiration of the waiting period,
reach an agreement in regard to compensation, such agreement shall be
submitted in writing to the commissioner by the employer with a statement
of the time, place and nature of the injury upon which it is based; and, if
such commissioner finds such agreement to conform to the provisions of
this chapter in every regard, the commissioner shall so approve it. A copy
of the agreement, with a statement of the commissioner’s approval, shall
be delivered to each of the parties and thereafter it shall be as binding upon
both parties as an award by the commissioner. . . .’’).
6
See General Statutes § 31-308 (a) (‘‘[i]f any injury for which compensation
is provided under the provisions of this chapter results in partial incapacity,
the injured employee shall be paid a weekly compensation equal to seventy-
five per cent of the difference between the wages currently earned by an
employee in a position comparable to the position held by the injured
employee before his injury . . . and the amount he is able to earn after
the injury’’).
7
Dr. Mark Melendez, a plastic surgeon of the same office as Dr. Reilly,
recommended the bilateral trigger thumb release on January 27, 2014. On
March 17, Dr. Reilly noted that the sutures on both thumbs were removed.
The medical reports do not contain the date of the procedure, but it is
reasonable to assume that it occurred between January 27 and March 17,
2014.
8
See General Statutes § 31-307 (a) (‘‘[i]f any injury for which compensation
is provided under the provisions of this chapter results in total incapacity
to work, the injured employee shall be paid a weekly compensation equal
to seventy-five per cent of the injured employee’s average weekly earnings
as of the date of the injury’’).
9
‘‘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
compensation payments. The filing of this notice and its approval by the
commissioner are required by statute in order properly to discontinue pay-
ments.’’ (Internal quotation marks omitted.) Brinson v. Finlay Bros. Print-
ing Co., 77 Conn. App. 319, 320 n.1, 823 A.2d 1223 (2003).
10
‘‘A form 43 is a disclaimer that notifies a [plaintiff] who seeks workers’
compensation benefits that the employer intends to contest liability to pay
compensation. If an employer fails timely to file a form 43, a [plaintiff] may
file a motion to preclude the employer from contesting the compensability
of his claim.’’ (Internal quotation marks omitted.) Dubrosky v. Boehringer
Ingelheim Corp., 145 Conn. App. 261, 265 n.6, 76 A.3d 657, cert. denied, 310
Conn. 935, 78 A.3d 859 (2013).
11
On September 9, 2014, the plaintiff filed a motion titled ‘‘Motion to
Preclude Defense.’’ In it, the plaintiff argued that, because the commissioner
approved three voluntary agreements in this case, which ‘‘conclusively estab-
lished’’ that the need for cervical surgery was causally related to the plaintiff’s
work injury, the defendant should be precluded from ‘‘relitigat[ing] the issue
of compensability.’’
12
The amount of the lien was $61,046.21.
13
Because the commissioner did not find compensability, he did not reach
the issue of lien reimbursement. The commissioner also denied the plaintiff’s
motion to preclude, and concluded that ‘‘[a]lthough [the] parties initially
agreed the issues included form 36, no evidence or testimony was given
regarding form 36 approval or denial, and the issue is deemed to be
abandoned.’’
14
At the formal hearings, Dr. O’Connell also testified about his treatment
of the plaintiff. On appeal to this court, however, the plaintiff does not make
any argument with respect to the testimony of Dr. O’Connell, but rather
only argues that the commissioner failed to accept the ‘‘undisputed evidence’’
presented through the testimony of Dr. Dey.
15
Dr. Dey’s opinion was contained in a December 18, 2013 letter, stating:
‘‘I believe that [the plaintiff’s] permanent disability is directly contributed
to her work-related injury . . . .’’
16
Throughout this opinion, we refer to the plaintiff’s cervical myelopathy
and lumbar neuropathy, as described in the voluntary agreements, as the
plaintiff’s December 9, 2010 injuries. The defendant does not contest that
the injuries, which the plaintiff first reported to the defendant on December
9, 2010, were compensable work-related injuries.
17
The board also noted that Dr. Dey ‘‘had difficulty delineating his rationale
for finding the [plaintiff] totally disabled as ‘[t]he reason for [the] opinion
is that I can’t tell you because I am not [a] medical disability examiner, the
30 percent impairment has been established before.’ ’’ The board also noted
that in drafting letters on behalf of the plaintiff, Dr. Dey relied on medical
reports and opinions provided by Dr. O’Connell. Furthermore, ‘‘[w]hen asked
if the prior motor vehicle accidents the [plaintiff] had sustained could have
required her to undergo surgery in the absence of workplace exposure he
said that [t]here’s a big if in there. . . . He agreed with counsel that his
theory of workplace causation of the [plaintiff]’s condition was based on
the [Dr. O’Connell’s] theory of causation to some degree.’’ (Citation omitted;
internal quotation marks omitted.)
We agree with the board’s conclusion that, on the basis of these observa-
tions, ‘‘[a]fter reviewing the totality of Dr. Dey’s testimony, we are satisfied
that a reasonable fact finder could have reached a conclusion that [the
testimony] was insufficiently reliable to support the [plaintiff’s] position.
We also find evidence in the record supporting the trial commissioner’s
conclusion that Dr. Dey’s opinions were substantially influenced and deriva-
tive of the opinions of Dr. O’Connell, which the commissioner found unper-
suasive in [paragraph 1 of his conclusion]. We note that Dr. O’Connell
offered live testimony before the trial commissioner, and the commissioner’s
assessment of the persuasive value of this witness is essentially inviolate
on appeal.’’ See Ayna v. Graebel/CT Movers, Inc., 133 Conn. App. 65, 71,
33 A.3d 832 (‘‘[i]t is within the discretion of the commissioner alone to
determine the credibility of witnesses and the weighing of the evidence’’),
cert. denied, 304 Conn. 905, 38 A.3d 1201 (2012).
18
In her brief to this court, the plaintiff argues that ‘‘the trial commissioner
did not rule on whether the plaintiff was disabled from work. His opinion
touched only on the need for surgery.’’ We conclude that the plaintiff’s
observation is immaterial to our analysis. Although the commissioner did
not explicitly find that the plaintiff was not totally disabled from work, logic
dictates that by finding that the claimed December 9, 2010 injury was not
a substantial factor in causing the plaintiff’s need for surgery, he implicitly
found that the plaintiff was not totally disabled as the result of a compensa-
ble, work-related injury. Put another way, the December 9 injury, if not a
substantial factor in causing the plaintiff’s need for surgery, also could not
be a substantial factor in causing her to be totally disabled.
19
The plaintiff argues, as she did on appeal to the board, that this court’s
decision in Bode v. Connecticut Mason Contractors, The Learning Corridor,
supra, 130 Conn. App. 672, supports her claim that ‘‘[t]here was no basis in
the record in the present case for rejecting the testimony of Dr. Dey.’’
According to the plaintiff, Bode held, inter alia, that ‘‘the trier of fact may
not ignore undisputed probative evidence.’’
In Bode, the issue was whether the plaintiff was employable during a
three and one-half year period following a work injury. Id., 674, 676. In his
finding and dismissal, the commissioner failed to make findings with respect
to the reliability of the vocational evidence offered by the plaintiff. Id., 684.
Specifically, the commissioner did not discuss two vocational reports, both
of which stated that the plaintiff was unemployable, and both of which were
conducted closer in time than the others to his claim and the hearings. Id.,
683. This court concluded: ‘‘The record reflects that there was no evidence
that the plaintiff was employable, at any time, after February 5, 2004. There
were two vocational reports dated August, 2004, and July, 2008, both of
which stated that the plaintiff was not employable. The commissioner also
had before him the job search forms showing the plaintiff’s failed attempts
to secure employment. Despite this evidence, he (1) made no conclusions
as to the reliability of the vocational reports or regarding the plaintiff’s
employability, (2) ignored the August, 2004 vocational report and the job
search forms and (3) concluded that the plaintiff was not entitled to total
temporary disability benefits.’’ (Emphasis in original.) Id., 686.
Although we agree with the plaintiff that this court in Bode concluded
that the commissioner erred in discounting documentary evidence which
showed that the plaintiff was temporarily disabled from work, Bode is distin-
guishable from the present case. Here, as we have concluded, Dr. Dey’s
testimony was not ‘‘undisputed . . . .’’ Dr. Abbed disputed Dr. Dey’s testi-
mony, and Dr. Mushaweh disputed Dr. Dey’s testimony. This was not a
case where there was ‘‘no evidence’’ from which the commissioner could
conclude that the plaintiff’s claimed December 9, 2010 injury was not a
substantial factor in her medical conditions and need for surgery. This is
also not like Bode, where the commissioner failed to make findings with
respect to material pieces of evidence. The finding and dismissal contained
an abundance of well reasoned findings, which are supported by the record.
We therefore conclude that the plaintiff’s reliance on Bode is misplaced.
20
The plaintiff also argues that the voluntary agreements awarding 30
percent PPD to the plaintiff for an injury to her cervical spine, and 5 percent
PPD to the plaintiff for an injury to her lumbar spine, ‘‘negates the trial
commissioner’s finding that the disabilities were caused by discrete events,
the motor vehicle accidents.’’ Essentially, the plaintiff argues that the volun-
tary agreements established that she suffered from ‘‘disabilities . . . as a
result of her compensable injuries of December 9, 2010.’’ In the plaintiff’s
view, ‘‘[t]he trial commissioner was not at liberty to conclude that the
plaintiff had not suffered 30 percent PPD of the cervical spine and 5 percent
of the lumbar spine as the result of her injuries of December 9, 2010. Those
PPDs existed notwithstanding that the plaintiff had been injured in two
motor vehicle accidents.’’ We are not persuaded.
The commissioner found that the plaintiff suffered spinal injuries in motor
vehicle accidents in 1990 and 2008 that were not related to her work, and
that the voluntary agreements regarding the plaintiff’s cervical spine and
lumbar spine injuries ‘‘attributed the December 9, 2010 injuries to sitting
that caused an aggravation of previous injuries.’’ Despite the voluntary
agreements, the commissioner went on to find that the plaintiff had not
‘‘established the aggravation of her cervical and lumbar spine injuries was
a substantial contributing factor to the need for surgery that had been
recommended for several years.’’ He did not, as the plaintiff contends,
‘‘conclude that the plaintiff had not suffered 30 percent PPD of the cervical
spine and 5 percent of the lumbar spine as the result of her injuries of
December 9, 2010.’’ With respect to the commissioner’s finding that ‘‘the
disabilities were caused by discrete events, the motor vehicle accidents,’’
we note that a commissioner’s conclusion as to causation of an injury ‘‘is
afforded deference similar in degree to that afforded a conclusion by a trial
judge or jury on an issue of proximate cause.’’ Funaioli v. New London, 61
Conn. App. 131, 136, 763 A.2d 22 (2000). Because, as we have concluded,
the commissioner’s conclusion is supported by competent evidence and is
otherwise consistent with the law, we reject the plaintiff’s argument that,
in light of the voluntary agreements, the commissioner was not entitled to
find that the plaintiff failed to meet her burden of proof with respect to the
issue of causation.
21
The requested modifications included replacing ‘‘Finding and Dismissal’’
with ‘‘Finding and Award,’’ replacing the statement, ‘‘I Find that the [plaintiff]
has failed in her burden of persuasion to establish the cervical spine fusion
surgery is compensable,’’ with, ‘‘I find that the [plaintiff] has proved by a
preponderance of the evidence that the cervical spine fusion surgery is
compensable,’’ and finally, replacing, ‘‘WHEREFORE, it is Ordered,
Adjudged, Decreed and Awarded that: The claim for medical and indemnity
benefits pursuant to the claimed injury of December 9, 2010, under the
Workers’ Compensation Act [General Statutes § 31-275 et seq.] is denied
and dismissed,’’ with, ‘‘WHEREFORE, it is Ordered, Adjudicated, Decreed
and Awarded that the claim for medical and indemnity benefits pursuant
to the injuries of December 9, 2010, under the Workers’ Compensation Act
is granted.’’ As support for her requests, the plaintiff attached to her motion
portions of the testimony of Dr. O’Connell, the plaintiff, and Dr. Dey.
22
In her brief to this court, the plaintiff cites Brady v. Maryland, 373 U.S.
83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), for the proposition that ‘‘the
defendant was required to disclose that evidence to the plaintiff before the
trial evidence was completed, since that evidence from its records was
contrary to the position that the defendant took before the trial commis-
sioner.’’ Brady is a criminal case, in which the United States Supreme Court
held: ‘‘[T]he suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is material
either to guilt or to punishment, irrespective of the good faith or bad faith
of the prosecution.’’ Id. Brady is plainly inapposite to the present case, and
as such, does not warrant further discussion.