5378 CRB-5-08-9 (2009). Alvarez v. Wal-Mart Stores, Inc.

• Court: Connecticut

Connecticut Workers Compensation 2009. 5378 CRB-5-08-9 (2009). Alvarez v. Wal-Mart Stores, Inc CASE NO. 5378 CRB-5-08-9COMPENSATION REVIEW BOARD WORKERS' COMPENSATION COMMISSIONJULY 27, 2009DAMARIS ALVAREZ CLAIMANT-APPELLEE v. WAL-MART STORES, INC. EMPLOYER and CLAIMS MANAGEMENT, INC. INSURER RESPONDENTS-APPELLANTSAPPEARANCES: The claimant was represented by Jose Vivaldi Martinez, Esq., Law Office of Jose Vivaldi Martinez, 60 Old New Milford Road, Suite 3D, Brookfield, CT 06804 and David V. DeRosa, Esq., Law Office of David V. DeRosa, 42 Terrace Avenue, P.O. Box 992, Naugatuck, CT 06770. The respondents were represented by Nicholas C. Varunes, Esq., Varunes & Associates PC, 5 Grand Street, Hartford, CT 06106. This Petition for Review from the August 26, 2008 Finding and Award of the Commissioner acting for the Fifth District was heard February 27, 2009 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Peter C. Mlynarczyk and Randy L. Cohen.OPINION JOHN A. MASTROPIETRO, CHAIRMAN. The claimant in the present action was awarded benefits for permanent partial disability. The respondent Wal-Mart Stores has appealed the award; arguing the award should be apportioned against a prior injury sustained by the claimant. We find that the trial commissioner rejected the testimony presented by the respondent which would have supported apportionment of the claimant's award, and this decision was within his discretion. We affirm the trial commissioner and dismiss this appeal.The trial commissioner found the following facts at the conclusion of the formal hearing. The trial commissioner took administrative notice of an October 10, 2003 Finding and Award which established the claimant's December 27, 1999 back injury was compensable. The claimant sought a 23% permanent partial disability award for this injury. The respondents argue that they were responsible for only 25% of this injury. The basis for the respondents' position was that the claimant suffered a back injury on September 30, 1997 while working for Waldbaum's Foodmart supermarket. No disability ratings were established for this injury and the claimant settled her claim with Waldbaum's on July 14, 1999 for $9,500. Following her December 27, 1999 injury the claimant had a back fusion surgery performed by Dr. Hilary Onyiuke, a neurosurgeon. Following the surgery, Dr. Michael Karnasiewicz...