LOUIS SANCHEZ v. EDSON

MANUFACTURING ET AL.

(AC 38480)

Alvord, Sheldon and Mullins, Js.

Syllabus

The plaintiff appealed to this court from the decision of the Workers’ Compensation Review Board affirming the decision of the Workers’ Compensation Commissioner that the plaintiff was not entitled to certain

temporary partial or total disability benefits. The plaintiff, who had

undergone two prior surgeries on his left shoulder, claimed that he

injured that shoulder during his employment with the defendant manufacturer, E Co., when he moved a barrel and felt a pop in the shoulder.

Thereafter, an independent surgeon, S, who had been selected by E Co.,

examined the plaintiff and concurred with the determination by the

plaintiff’s treating physician, O, that the plaintiff was suffering from a

fracture and lesions in his left shoulder. S, who did not have the plaintiff’s

entire prior medical history when he examined the plaintiff, determined

that the fracture and lesions were not caused in the incident in which

the plaintiff moved the barrel, which he determined caused nothing more

than a temporary strain of the plaintiff’s left shoulder. After obtaining

additional prior medical records of the plaintiff, S affirmed that finding

in a subsequent addendum to his medical report. After O examined the

plaintiff and recommended that a third surgery be performed on the

plaintiff’s shoulder, the commissioner ordered the plaintiff to undergo

an examination by B, a surgeon chosen by the commissioner. B determined that the fracture and lesions in the plaintiff’s left shoulder were

attributed to the barrel incident. The commissioner found that S’s opinion was more persuasive than those of O and B, and concluded, inter

alia, that the plaintiff had injured his left shoulder in the course of his

employment for which he was entitled to receive certain temporary

total disability benefits, but that the fracture and lesions were not caused

by the barrel incident. The commissioner, thus, denied the plaintiff’s

claim for certain temporary partial disability benefits. Held:

1. The board properly determined that the commissioner’s findings concerning the cause and extent of the plaintiff’s disability were supported by

sufficient underlying facts and that the inferences drawn from those

facts were reasonable and legally permissible:

a. The board did not err in finding that S provided a reasonable basis

for his opinion, which was supported by sufficient subordinate facts as

to constitute competent medical evidence on which the commissioner

properly could rely in making his findings; S physically examined the

plaintiff, performed a neurological assessment of him,reviewed medical

records from O and twice reviewed additional medical records that he

did not have at the time he examined the plaintiff, and S’s written

opinion was not so contradicted by his deposition testimony as to

render it speculative or conjectural.

b. The plaintiff’s claim that, because the medical examiners did not

testify before the commissioner, this court should depart from the

degree of deference usually afforded to the commissioner’s credibility

determinations and determine the appropriate weight to afford the

opinions of the medical experts was unavailing; there was no reason

for this court to give less deference to the commissioner’s credibility

determinations where, as here, the commissioner was not presented

with only written reports of nontestifying witnesses, and his credibility

determinations and findings were clearly influenced by the plaintiff’s

live testimony that he never engaged in weightlifting or other forms of

physical exercise, which was directly contradicted by O’s medical notes

and statements from the plaintiff’s former coworkers.

2. The board did not abuse its discretion in not remanding the matter to

the commissioner for an articulation as to why the commissioner, in

rendering his decision, disregarded the opinion of B, the medical examiner chosen by the commissioner to examine the plaintiff; the board,

guided by the state regulation (§ 31-301-3) that governs the requisite
content of a commissioner’s decision, determined that the commissioner’s decision complied with the standard for decisions that do not rely

on the opinion of a medical examiner chosen by the commissioner, and

this court deferred to the board’s interpretation and construction of its

own regulation.

Argued February 6—officially released August 1, 2017

Procedural History

Appeal from the decision by the Workers’ Compensation Commissioner for the Sixth District dismissing in

part the plaintiff’s claim for certain disability benefits,

brought to the Workers’ Compensation Review Board,

which affirmed the commissioner’s decision, and the

plaintiff appealed to this court. Affirmed.

Frank V. Costello, with whom, on the brief, was Austin Berescik-Johns, for the appellant (plaintiff).

Marian Yun, for the appellees (defendants).
Opinion

SHELDON, J. The plaintiff, Louis Sanchez, appeals

from the decision of the Workers’ Compensation

Review Board (board) affirming the decision of the

Workers’ Compensation Commissioner for the Sixth

District (commissioner), who dismissed, in part, his

claim for workers’ compensation benefits pursuant to

General Statutes §§ 31-307 and 31-308 (a). On appeal,

the plaintiff claims that the board erred (1) in affirming

the commissioner’s decision that the plaintiff was not

entitled to temporary partial or temporary total disability benefits from August, 2013 to July, 2014, because

the commissioner’s finding as to the nature and extent

of the plaintiff’s workplace injury was not supported

by sufficient subordinate facts; and (2)in notremanding

this case to the commissioner with instructions that he

articulate why, in reaching his decision, he disregarded

the opinion of his own medical examiner as to the

nature and extent of the plaintiff’s injury. We affirm the

decision of the board.

The following facts and procedural history are relevant to this appeal. In 1992, the plaintiff was hired by

Celus Fasteners, a Massachusetts manufacturer, where

he worked for approximately sixteen years making rivets. When Celus Fasteners went bankrupt, the plaintiff

took a job with Metz Personnel (Metz), also in Massachusetts, where he worked as a laminator. On July 23,

2008, while working for Metz, the plaintiff tripped and

fell, landing on his left shoulder. Following his fall,

the plaintiff began to experience sharp pains in his

shoulder. Although the plaintiff was given a cortisone

injection for his shoulderinjury and underwent a course

of physical therapy, his shoulder pain persisted for several months. Thus, in March, 2009, the plaintiff consulted with an orthopedic surgeon, Dr. Ergin,1 about the

advisability of undergoing surgery on his left shoulder

joint. After examining the plaintiff, however, Ergin concluded that surgery on the plaintiff’s left shoulder joint

was unnecessary. Instead, Ergin gave the plaintiff two

additional cortisone injections and instructed him to

seek a second opinion if he wanted to pursue surgery.

In accordance with Ergin’s instructions, the plaintiff

consulted with and was examined by James D. O’Holleran, an orthopedic surgeon. After reviewing a magnetic resonance imaging (MRI) scan of the plaintiff’s

shoulder, O’Holleran opined that the plaintiff was suffering from a torn rotator cuff, AC joint arthrosis, and

a superior labral tear in his left shoulder, for which

he recommended that the plaintiff undergo surgery.

O’Holleran performed the recommended surgery on

June 5, 2009. Almost six months later, after the plaintiff

completed another course of physical therapy, O’Holleran gave him a medical release to return to full work

duties on November 18, 2009.
Thereafter, the plaintiff took a new job with Charm

Sciences, another Massachusetts manufacturer, for

which he mixed commercial grade chemicals. While

working at Charm Sciences on December 30, 2009, the

plaintiff reinjured his left shoulder when lifting a forty

pound box. As a result of this reinjury, the plaintiff

experienced ‘‘difficulty reaching behind his shoulder as

well as . . . overhead.’’ The following week, the plaintiff was reexamined by O’Holleran, who gave him

another cortisone injection, placed him on a light duty

work restriction, and recommended that he undergo

an additional six weeks of physical therapy. On March

22, 2010, when the plaintiff was reexamined by O’Holleran after he had completed the recommended course

of physical therapy, he reported that his shoulder had

experienced ‘‘a dramatic improvement . . . .’’ Accordingly, the plaintiff requested that O’Holleran give him

a release to return to full work duty and a clearance

‘‘to do some weight training and lifting.’’ O’Holleran

gave the plaintiff a release to return to full work duty

and instructed him to return ‘‘on an as-needed basis.’’

On June 2, 2011, the plaintiff returned to O’Holleran,

complaining of persistent pain in his left shoulder.

O’Holleran gave the plaintiff another cortisone injection

and instructed him to undergo additional physical therapy. These conservative treatments proved to be unsuccessful, however, and the plaintiff remained unable to

return to work throughout July, 2011. Thereafter, the

plaintiff underwent another MRI scan on August 31,

2011. On September 15, 2011, when O’Holleran

reviewed the new MRI scan with the plaintiff, he opined

that, although the plaintiff had not suffered a new tear

in his left shoulder, there was ‘‘a high degree of [inflammation] within the tissue inside the AC joint.’’ After

discussing several treatment options with O’Holleran,

the plaintiff elected to undergo a second surgery for

shoulder arthroscopy, lysis of adhesions, and debridement,2 which O’Holleran performed on February 28,

2012. Although the second surgery was performed without complication, the plaintiff remained unable to work

for several months thereafter.

In April, 2013, the plaintiff was employed by the

defendant Edson Manufacturing,3 a Connecticut manufacturer, as a mechanic and machine operator. As part

of his duties, the plaintiff used a dolly4to bring barrels

of nails to the company’s rivet-making machines and

to transport finished rivets to other locations in the

factory after they were made. While working on April

15, 2013, the plaintiff prepared to move a barrel of

stainless steel nails weighing approximately 100

pounds. To do so, he first positioned himself behind

the dolly and barrel, then, with his right hand on the

back of the dolly, reached out with his left arm and

placed his left hand on the rim of the barrel. Then, with

his left hand gripping the rim of the barrel, the plaintiff
pulled the barrel of nails toward his chest until he felt

a sudden ‘‘pop’’ in his left shoulder. The plaintiff did

not inform anyone of his injury at the time he sustained

it, nor did he requesttime offfrom work after he finished

his shift that day. Rather, he continued to work for the

defendant, without complaint, for the next eleven days,

until he was laid off on April 26, 2013.

Because the layoff was supposed to be temporary, the

plaintiff intended to return to his job with the defendant

when it was over. On May 20, 2013, the defendant notified the plaintiff, by text message, that he could return

to work. The plaintiff responded by text message that

he would return to work the following Monday. The

defendant’s offer later was retracted, however, due to

an unexpected delay in receiving certain materials

and supplies.

Two days later, on May 22, 2013, thirty-seven days

after the plaintiff suffered his workplace injury, he went

to the emergency room of Lawrence General Hospital

in Lawrence, Massachusetts, complaining of pain in his

left shoulder. Thereafter, the plaintiff was referred back

to O’Holleran, who examined him on May 24, 2013.

During that examination, the plaintiff stated that he had

been experiencing ‘‘significant worsening pain’’ in his

left shoulder since the date of his injury, which had

caused him to be unable to sleep orto perform overhead

activities without pain. Accordingly, O’Holleran ordered

another MRI scan ofthe plaintiff’s left shoulder and gave

him documentation stating that he would be unable to

return to work until he was reevaluated.

On July 9, 2013, the plaintiff filed a form 30C notice

of his workers’ compensation claim.5 On July 7, 2013,

more than seventy days after the date of his workplace

injury, the plaintiff informed the defendant, for the first

time, that he had suffered a shoulder injury while working on April 15, 2013. After receiving the plaintiff’s form

30C, the defendant requested, pursuant to General Statutes § 31-294f (a),6

that an independent medical examination of the plaintiff be conducted in order to assist

it in determining whether to accept or contest the plaintiff’s workers’ compensation claim.

Prior to that examination, on June 8, 2013, the plaintiff underwent another MRI scan at the request of O’Holleran. On August 8, 2013, the plaintiff met with

O’Holleran to discuss his findings. After reviewing the

MRI scan, O’Holleran opined that the plaintiff had not

aggravated a previous injury to his left shoulder on

April 15, 2013, but, instead, had sustained a new injury—

an anterior glenoid fracture with a bony Bankart lesion7

and a Hill-Sachs lesion.8 O’Holleran then noted, ‘‘I feel

that his fracture fragment is in very good position and

does not need surgery at this time. Given that his original injury was in April, I feel that [the] fragment has

essentially healed. He still certainly has the labral tear

and he certainly has pain. . . . I have recommended a
course of physical therapy . . . . Regarding work, he

will be cleared for light duty with no lifting greater

than [ten] pounds.’’ On September 11, 2013, however,

O’Holleran changed that work restriction by ordering

that the plaintiff notreturn to work until he was reevaluated. He later reaffirmed that total work restriction on

October 23, 2013.

On September 25, 2013, the plaintiff was examined

by Steven E. Selden, an orthopedic surgeon selected

by the defendant as its independent medical examiner.

During that examination, the plaintiff informed Selden

that, on April 15, 2013, ‘‘he was moving a barrel [when

he] felt a pop in his left shoulder . . . [but] he did not

feel any actual pain.’’ After reviewing O’Holleran’s May

24, 2013 notes and the June 8, 2013 MRI scan that

O’Holleran had ordered, Selden noted that the plaintiff

had sustained a prior shoulderinjury in 2009, in connection with which he had undergone a ‘‘posterior capsular

shift and distal clavicle excision.’’ (Emphasis added.)

Selden concurred with O’Holleran that the plaintiff was

then suffering from a Hill-Sachs lesion and a bony Bankart lesion in his left shoulder. He did not agree, however,

that this injury had occurred on April 15, 2013. Rather,

he opined that ‘‘[the plaintiff] may have sustained a

strain of his left shoulder as a result of moving a barrel

. . . but he has a significant preexisting condition to

his left shoulder for which he had two surgical procedures. It would be very helpful to have Dr. O’Holleran’s

notes regarding prior treatment for the left shoulder.

Certainly, the [plaintiff’s] Bankart lesion and Hill-Sachs

lesion clearly preexisted April of 2013 based on the

history reviewed. A course of physical therapy at this

time would be appropriate.’’ Selden further opined that

the plaintiff was not totally disabled but, instead, was

capable of light duty work ‘‘with avoidance of lifting

more than [twenty-five] pounds and . . . overhead

reaching and lifting.’’

On December 23, 2013, O’Holleran reexamined the

plaintiff a final time. During that examination, the plaintiff maintained that he was still experiencing persistent

pain in his left shoulder, and thus he requested that a

third surgery be performed. In light of the plaintiff’s

repeated history of cortisone injections, use of antiinflammatories, and physical therapy, none of which

had yet proved to be successful, O’Holleran recommended that a third surgery be performed on the plaintiff’s left shoulder.

Thereafter, the commissioner directed the plaintiff,

pursuant to § 31-294f (a), to submit to another medical

examination by an independent medical examiner of

the commissioner’s own choosing, Dr. Peter R. Barnett.

After performing that examination on April 14, 2014,

Barnett noted: ‘‘Currently, the [plaintiff] feels that his

left shoulder complaints have worsened. . . . The

[plaintiff] . . . complains of numbness and tingling cir-
cumferentially throughout the entire left upper extremity, intermittently present both during the day and at

night since the injury.’’ After reviewing the plaintiff’s

medical records, Barnett opined: ‘‘It is my impression

based on information currently available that [the plaintiff’s] bony Bankart lesion and Hill-Sachs lesion [are]

attributable to the alleged work-related incident . . .

on April 15, 2013.’’ Barnett further opined that, although

the plaintiff had not yet reached maximum medical

improvement, he was capable of limited work duty with

restrictions against lifting or reaching overhead, repetitive use of the left arm, and lifting more than fifteen

pounds.

On July 14, 2014, the commissioner held a formal

hearing on the plaintiff’s claims (1) for total incapacity

benefits from June 24 to August 8, 2013; (2) for temporary partial benefits from August 9 to October 23, 2013;

and (3) for total incapacity benefits from October 24,

2013 to July 14, 2014. At that hearing, the plaintiff testified and produced documentary evidence, including

MRI scans, the medical records of O’Holleran, Selden

and Barnett, and transcripts of O’Holleran’s and Selden’s depositions. In response, the defendant produced,

inter alia, a July 14, 2014 addendum to Selden’s medical

report, wherein Selden stated that, although he had

reviewed additional medical records pertaining to the

plaintiff, he still believed that the plaintiff’s April 15,

2013 injury did not cause his glenoid fracture and

lesions. The defendant also submitted copies of certain

text messages between the plaintiff and his manager,

several documents regarding the plaintiff’s two prior

workers’ compensation claims for injuries to his left

shoulder, and several statements from the plaintiff’s

former coworkers describing past conversations with

the plaintiff, in which he had told them that he routinely

did pushups in the morning before going to work.

On January 5, 2015, the commissioner issued a written decision, in which he found, inter alia, that (1) the

plaintiff had not informed either his employer or his

coworkers of his workplace injury, or reported that he

had any difficulty performing his job duties after the

injury; (2) there was ‘‘[c]onflicting testimony . . . as

to the [plaintiff’s] weightlifting activities’’ around the

date of his injury; (3) Selden disagreed with the mechanism of injury, opining that the April 15, 2013 incident

had ‘‘caused nothing more than a temporary, self-limited strain of [the plaintiff’s] left shoulder’’; and (4) as

to the extent of the plaintiff’s disability caused by his

April 15, 2013 injury and resulting need forfurther medical treatment, Selden’s opinions were more persuasive

than those of O’Holleran and Barnett. On the basis of

those findings, the commissioner concluded that the

plaintiff had sustained a left shoulder injury in the

course of his employment, for which he was entitled

to receive ‘‘temporary total benefits for the period of

June 24, 2013 through August 8, 2013.’’ The commis-
sioner disagreed, however, that the April 15, 2013 incident had caused either the plaintiff’s anterior glenoid

fracture or his accompanying lesions. Instead, the commissioner adopted Selden’s opinion that on April 15,

2013, the plaintiff had suffered a shoulder sprain, and

thus that ‘‘any [current] restrictions or limitations on

his ability to work were unrelated to the April 15, 2013

injury.’’ On those grounds, the commissioner denied

the plaintiff’s claims for temporary partial benefits for

the period from August 9 to October 23, 2013, and for

temporary total benefits for the period from October

24, 2013 to July 14, 2014.

On February 18, 2015, the plaintiff appealed from the

commissioner’s decision to the board, claiming that the

commissioner had ‘‘erred in finding . . . Selden to be

more persuasive than . . . O’Holleran and Barnett on

the issues of extent of disability and medical treatment.’’

In his accompanying brief, the plaintiff argued that Selden had formed his opinion as to causation and extent of

disability without first reviewing the plaintiff’s medical

records concerning the treatment of his prior shoulder

injury from 2009 through 2012. As a result, he argued,

Selden was unaware that the plaintiff’s prior injury was

to the posterior labrum, whereas the April 15, 2013

injury here at issue was to his anterior labrum. The

plaintiff thus argued that ‘‘[b]ecause . . . Selden did

not have sufficient subordinate facts to render an opinion [to a reasonable degree of medical probability], the

commissioner erred in relying on his testimony.’’ Last,

the plaintiff claimed that the commissioner did not adequately articulate why he had disregarded the opinion

of Barnett, his own medical examiner, in making his

findings and issuing his award in this case. On those

grounds, the plaintiff requested that the board reverse

the commissioner’s decision and find that the plaintiff

was entitled to benefits ‘‘from August 8, 2013, to the

present and continuing until a form 36 is approved.’’

On June 26, 2015, the board held a hearing on the

plaintiff’s claims. On October 6, 2015, it issued a written

decision affirming the commissioner’s decision. In so

doing, the board found, inter alia, that (1) Selden had

offered a reasonable basis for his medical opinions as

to causation; (2) the commissioner’s findings were supported by adequate subordinate facts; (3) the commissioner correctly applied the law to the facts found; and

(4) the commissioner’s written decision ‘‘complie[d]

with the standard we have delineated for a decision

which does not rely on the opinion of the commissioner’s examiner.’’ Thereafter, the plaintiff filed the present

appeal. Additional facts will be set forth as necessary.

I

On appeal, the plaintiff first claims that the board

erred in affirming the commissioner’s decision because

the commissioner’s findings regarding the cause and

extent of the plaintiff’s disability were not supported
by sufficient subordinate facts. In support of his argument, the plaintiff asserts that Selden had formed his

opinion as to the cause and extent of the plaintiff’s

disability before he had reviewed the plaintiff’s medical

records regarding the prior injuries to and corresponding treatments for his left shoulder. The plaintiff argues

that, without first acquainting himself with the plaintiff’s entire medical history, Selden’s opinion that the

plaintiff’s fracture and lesions preexisted the April 15,

2013 injury was the product of speculation and conjecture, and thus his opinion could not be stated to a

reasonable degree of medical probability. Therefore,

the plaintiff argues, the commissioner’s decision, which

relied heavily on Selden’s opinion, was based on speculation and conjecture. In the alternative, the plaintiff

argues that because none of the medical examiners in

this case testified before the commissioner at the July

14, 2014 formal hearing, this court is not obligated to

defer to the commissioner’s credibility determinations

and, instead, should conclude that the commissioner

erred by not adopting the more persuasive opinions of

O’Holleran and Barnett. See 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 defendant disagrees, asserting that the board

deferred appropriately to the commissioner’s factual

findings and credibility determinations. In support of

its argument, the defendant argues that causation is a

question of fact and, if presented with conflicting medical testimony, the commissioner has the sole discretion

to determine whose opinions to credit and what weight

to give to such opinions. Therefore, the defendant

argues, the board correctly held that it could not reject

the commissioner’s finding that Selden’s opinion was

more persuasive than those of O’Holleran and Barnett.

The defendant further argues that the board correctly

held that Selden offered a reasonable basis for his opinions on causation and that, unlike the medical expert

in DiNuzzo v. Dan Perkins Chevrolet Geo, Inc., 294

Conn. 132, 982 A.2d 157 (2009)—a case upon which the

plaintiff relies for his argument that Selden’s opinion

was the product of speculation and conjecture—Selden

physically examined the plaintiff and, on two separate

occasions, reviewed additional medical information

prior to submitting the July 14, 2014 addendum to his

report, wherein he affirmed his original opinion that

the plaintiff suffered a shoulder sprain on April 15, 2013.

The defendant thus argues that the board did not abuse

its discretion in affirming the commissioner’s decision.

We agree with the defendant.

The following additional facts, as presented to the

commissioner, are relevant to this claim. As discussed

in the preceding paragraphs, the commissioner was presented with the plaintiff’s live testimony and documentary evidence of the plaintiff’s medical history and
examinations. In his testimony, the plaintiff was asked,

and he answered, several questions as to whether he

exercised or lifted weights around the date of his injury.

The plaintiff denied that he had ever engaged in weightlifting, exercising at a gym, or even exercising at home.

Moreover, the plaintiff denied that he had ever asked

O’Holleran to provide him with a medical release so

that he could resume weightlifting. The defendant challenged this testimony by submitting statements from

three of the plaintiff’s former coworkers, describing

separate conversations with the plaintiff, in which he

had told them that he did pushups and sit-ups every

day before going to work. In one such conversation, a

coworker recalled that the plaintiff had bragged about

‘‘how easy [his job] was because ‘he was used to doing

200 pushups and 200-300 sit-ups among other exercises

every morning before work’ . . . .’’

The documentary evidence presented at the formal

hearing included, inter alia, O’Holleran’s February 27,

2014 deposition. At the deposition, O’Holleran testified

that he had reviewed his notes from the years 2009 to

2013, as well as MRI scans and X-rays he had ordered

of the plaintiff’s shoulder. On the basis of those records,

O’Holleran opined, inter alia, that the incident on April

15, 2013, had caused the glenoid fracture, the bony

Bankart lesion and the Hill-Sachs lesion in the plaintiff’s

left shoulder; this injury was unrelated to the plaintiff’s

prior shoulder surgeries in 2009 and 2012; the plaintiff

had not yet reached maximum medical improvement

following his April 15, 2013 injury; and, in light of the

fact that the plaintiff had exhausted all conservative

treatment options for his shoulder, surgery would be

the next logical step, after which the plaintiff would

need approximately nine months to fully recover.

In explaining the basis for his opinions, O’Holleran

stated that the plaintiff’s present fracture and lesions

were in the anterior portion of the labrum, and thus

could not have been an aggravation of the plaintiff’s

prior injury, which was to his posterior labrum; the

plaintiff’s report of feeling a ‘‘pop’’ at the time he was

injured was consistent with experiencing a glenoid fracture and a labral tear; and, although a recent MRI scan

showed that the fracture had healed, it was likely that

the plaintiff’s labrum was still torn, and that the tear

was causing the plaintiff’s pain. Last, O’Holleran noted

the presence of bone marrow edema9

in the plaintiff’s

shoulder, which was consistent with a recent injury to

his shoulder joint.

O’Holleran’s testimony, however, was not unqualified. Thus, as to the mechanism of the plaintiff’s injury,

O’Holleran conceded: ‘‘I have zero opinion as to

whether or not he truly injured his shoulder as he said

he did at work. . . . I wasn’t there . . . . I can only

go by what the patient tells me in the office.’’ Moreover,

after he was asked to assume that the plaintiff had
operated the dolly in a conventional manner, O’Holleran

conceded that it would have been uncommon for such

activity to cause this type of injury. O’Holleran further

conceded that a glenoid fracture that causes a bony

Bankart lesion and Hill-Sachs lesion is a painful injury,

and that it was ‘‘unusual’’ for the plaintiff to have waited

five weeks before seeking medical treatment. Regarding

the current status of the plaintiff’s injury, O’Holleran

agreed that the recent scans showed that the fracture

had healed, but stated both that he would be unable to

determine the extent of the injury until he performed

an incision on the shoulder joint, and that he lacked

objective evidence to explain the plaintiff’s current neurological complaints. As to the benefits of undergoing

a third surgery, O’Holleran stated: ‘‘I think, given [that]

he has not improved in [ten] months, and . . . assuming that his condition hasn’t changed, I think [that] it’s

unlikely he’s going to get much better.’’ Last, when

asked about the March 22, 2010 note regarding the plaintiff’s desire to return to weightlifting and exercising,

O’Holleran stated that, although he had no independent

recollection of the plaintiff’s exercise habits, he did not

believe that the note was a mistake.

Selden’s deposition occurred on December 2, 2013.

At his deposition, Selden testified that, prior to forming

his opinions, he had physically examined the plaintiff,

performed a neurological assessment of him, and

reviewed O’Holleran’s May 24, 2013 notes as well as

the June 8, 2013 MRI scan that O’Holleran had ordered.

Selden further testified that, after his September 25,

2013 examination of the plaintiff but before he gave his

deposition, he had received and reviewed additional

medical records for the plaintiff.10 When questioned as

to the results of the June 8, 2013 MRI scan, Selden

acknowledged that it showed a glenoid fracture as well

as a bony Bankart lesion and a Hill-Sachs lesion. He

maintained, however, that this injury had not occurred

on April 15, 2013. Selden explained that his opinion was

based on two factors: (1) the mechanism of injury, as

described by the plaintiff, was inconsistent with causing

a glenoid fracture; and (2) the plaintiff’s claim that he

did not feel any pain when he sustained the injury was

inconsistent with sustaining a glenoid fracture. As to

the mechanism of injury, Selden testified that ‘‘lifting

a barrel, whether it’s manually . . . or using . . .

some type of dolly, is inconsistent with fracturing your

glenoid. . . . It’s the wrong mechanism to cause a fracture.’’ As to the amount of pain the plaintiff reportedly

felt at the time of his injury, moreover, Selden testified,

‘‘I have not seen anybody with a glenoid fracture that

didn’t have significant pain in their shoulder, as with

any fracture around the shoulder. That’s a painful injury.

I’ve personally not [seen] any patients with fractures

such as that, and I’ve seen lots over the years, who

have not had significant pain.’’

On those grounds, Selden opined, inter alia, that the
plaintiff likely suffered a shoulder strain on April 15,

2013; given the plaintiff’s history of shoulder injuries,

a sprain of this nature would have healed within approximately six to eight weeks; notwithstanding such a

shoulder sprain, the plaintiff would have retained a light

duty work capacity, and should have reached maximum

medical improvement within six months of the date of

the injury; there was no discernible reason for additional surgery on the shoulder; and he did not believe

that the plaintiff’s current complaints of persistent pain

and numbness were connected to the April 15, 2013

work injury because the plaintiff did not complain of,

nor did Selden observe any evidence that he was experiencing, any numbness or nerve damage when he performed his neurological examination of the plaintiff.

Selden’s testimony, like O’Holleran’s, was not unqualified. When asked his opinion as to what had occurred

when the plaintiff felt the ‘‘pop’’ in his shoulder, Selden

opined that the plaintiff had either subluxed11 his shoulder or felt the breaking of adhesions or residual scar

tissue from his prior surgery. Thereafter, Selden agreed

that the subluxation of the shoulder joint can cause a

glenoid fracture resulting in Bankart lesions or HillSachs lesions. He maintained, however, that the mechanism of injury and the amount of pain experienced

on April 15, 2013, were inconsistent with sustaining a

glenoid fracture.

In addition to these deposition transcripts, the plaintiff submitted the April 14, 2014 written report of Barnett, the commissioner’s medical examiner. In that

report, Barnett noted that he had reviewed O’Holleran’s

notes forthe period from 2009 to 2013, as well as several

X-rays and MRI scans performed between 2011 and

2013. He then noted that the plaintiff had stated that ‘‘he

was pushing with his left arm when he felt a popping

sensation and mild pain.’’ (Emphasis added.) Barnett

subsequently diagnosed the plaintiff as suffering from

an anterior-inferior bony Bankart lesion and a posterior-superior bony Hill-Sachs lesion, further noting the

presence of bone marrow edema in the plaintiff’s shoulder. On the basis of those findings, Barnett opined:

‘‘It is my impression based on information currently

available that [the plaintiff’s] bony Bankart lesion and

Hill-Sachs lesion is attributable to the alleged workrelated incident . . . on April 15, 2013. There is no

indication that either of these problems was present at

the time of his prior surgical procedures or prior care for

the shoulder.’’ He further noted that, ‘‘[a]t this juncture

surgical intervention on the left shoulder would not be

recommended. . . . [I]t is recommended that the

[plaintiff] undergo a neurologic assessment . . . to

determine the cause and origin of the [plaintiff’s] nonspecific neurologic complaints . . . .’’

Last, on the day of the formal hearing, the defendant

submitted an addendum to Selden’s report, dated July
14, 2014, wherein Selden stated, ‘‘I have reviewed additional medical records provided regarding [the plaintiff].12 Itremains my opinion that [the plaintiff] sustained

a strain of his left shoulder as a result of moving a

barrel on [April 15, 2013]. . . . It is my opinion that

the incident of [April 15, 2013] caused nothing more

than a temporary, self-limited strain of his left shoulder

. . . [and] that any limitations on his ability to work at

this time are unrelated to the incident of [April 15, 2013].

(Footnote added.)

In summarizing the commissioner’s findings, the

board recalled that the commissioner had ‘‘noted that

the medical evidence in this claim was disputed, and

there was inconsistency between the [plaintiff’s] narrative as to his exercise regimen and the reports of his

treating physician.’’ Thereafter, the board held that, in

light of Selden’s examination and conclusions, as confirmed by his July 14, 2014 addendum, ‘‘the opinions

that [Selden] provided in this case were . . . competent evidence that the trial commissioner could reasonably rely upon. To the extent the initial opinions

rendered by [Selden] had deficiencies, we believe that

they were sufficiently clarified by the addendum submitted . . . to constitute a reliable expert opinion.’’

Thus, the board held that the commissioner’s conclusion ‘‘[was] consistent with a medical opinion he found

persuasive and reliable.’’ With these additional facts in

mind, we turn to the merits of the plaintiff’s claims.

A

We first address the plaintiff’s argument that Selden’s

opinion was not competent medical evidence supported

by sufficient subordinate facts, and thus that the commissioner’s decision, which relied heavily on that opinion, was based on speculation and conjecture. The

gravamen of the plaintiff’s argument is that Selden was

unaware, when formulating his opinions, that the plaintiff’s prior injuries were to the posterior labrum—

whereas his current injury was to the anterior labrum—

and that his written opinion was directly contradicted

by his subsequent deposition testimony. We are unpersuaded.

‘‘[W]e first set forth our standard of review for workers’ compensation appeals. The commissioner is the

sole trier of fact and [t]he conclusions drawn by [the

commissioner] from the facts found must stand unless

they result from an incorrect application of the law to

the subordinate facts or from an inference illegally or

unreasonably drawn from them. . . . The review

[board’s] hearing of an appeal from the commissioner

is not a de novo hearing of the facts. . . . [I]t is [obligated] to hear the appeal on the record and not retry

the facts. . . . On appeal, the board must determine

whether there is any evidence13 in the record to support

the commissioner’s findings and award. . . . Our

scope of review of [the] actions of the [board] is [simi-
larly] . . . limited. . . . [However] [t]he decision of

the [board] must be correct in law, and it must not

include facts found without evidence or fail to include

material facts which are admitted or undisputed.’’

(Emphasis added; footnote added; internal quotation

marks omitted.) Mahoney v. Bill Mann Tree Service,

Inc., 67 Conn. App. 134, 136, 787 A.2d 61 (2001).

‘‘A commissioner’s conclusion regarding causation

is conclusive, provided it is supported by competent

evidence and is otherwise consistent with the law.’’

(Citation omitted.) Dengler v. Special Attention Health

Services, Inc., 62 Conn. App. 440, 451, 774 A.2d 992

(2001). Moreover, ‘‘[i]t matters not that the basic facts

from which the [commissioner] draws this inference

are . . . controverted. . . . It is likewise immaterial

that the facts permit the drawing of diverse inferences.

The [commissioner] alone is charged with the duty of

initially selecting the inference which seems most reasonable and [the commissioner’s] choice, if otherwise

sustainable, may not be disturbed by a reviewing court.’’

(Internal quotation marks omitted.) Gartrell v. Dept.

of Correction, 259 Conn. 29, 36, 787 A.2d 541 (2002).

‘‘[T]here must [however] be subordinate facts from

which the conclusion that there is a causal connection

between the employment and the injury can be drawn.

. . . [Thus, the] right of a claimant to compensation

must be based [on] more than speculation and conjecture.’’ (Internal quotation marks omitted.) DiNuzzo v.

Dan Perkins Chevrolet GEO, Inc., supra, 294 Conn. 143.

Accordingly, ‘‘[a]lthough . . . the board is prohibited

from retrying the case or substituting its inferences for

those drawn by the commissioner, the board certainly

[is] free to examine the record to determine whether

competent evidence supported the commissioner’s

findings, inferences drawn from such findings and conclusions.’’ Dengler v. Special Attention Health Services,

Inc., supra, 450.

In the present case, the plaintiff argues that the commissioner’s findings were not supported by competent

medical evidence because, at the time he formed his

opinions, Selden was unaware that the plaintiff’s prior

injuries involved the plaintiff’s anterior labrum, not the

posterior labrum. The plaintiff thus argues, citing

DiNuzzo v. Dan Perkins Chevrolet Geo, Inc., supra, 294

Conn. 132, that, without knowing the entirety of the

plaintiff’s prior medical history, Selden’s opinion on

causation and extent of disability amounted to mere

speculation and conjecture, and thus ‘‘there were insufficient subordinate facts in the record to support the

commissioner’s finding’’; id., 143; which was predicated

on Selden’s expert testimony.

After carefully reviewing the record in this case, we

conclude that the board did not err in determining that

Selden offered a reasonable basis for his opinion, and

thus that the commissioner’s decision, which relied
upon that opinion, was supported by sufficient subordinate facts to require that it be affirmed. First, in his

September 25, 2013 report, Selden specifically noted

that he had reviewed the plaintiff’s past medical history,

which revealed that, in 2009, the plaintiff had injured

his shoulder and ‘‘underwent a posterior capsular shift

and distal clavicle excision. He did not do well and had

a second surgery in June of 2012. He underwent lysis

of adhesions.’’ (Emphasis added.) Thereafter, during

his December 2, 2013 deposition, Selden agreed with

the statement by the defendant’s counsel that he

reviewed ‘‘a couple of additional medical records from

the past which [he] did not have’’ at the time of his

examination. Last, in his July 14, 2014 addendum, Selden again reported that he had reviewed additional

medical records, but that his opinion remained

unchanged: the April 15, 2013 incident had caused nothing more than a shoulder strain, and any current limitations on the plaintiff’s ability to work were unrelated

to that incident. Looking at ‘‘the entire substance of

the expert’s testimony’’; O’Reilly v. General Dynamics

Corp., 52 Conn. App. 813, 817, 728 A.2d 527 (1999); it

is apparent that Selden was aware that the plaintiff’s

2009 injury was to the posterior labrum and that, after

personally examining the plaintiff, reviewing his past

medical history, and twice reviewing additional medical

reports, his opinion remained constant.

For that reason, we conclude that the board correctly

determined that Selden’s opinions were unlike those of

the claimant’s medical examiner in DiNuzzo v. Dan

Perkins Chevrolet Geo, Inc., supra, 294 Conn. 132. In

DiNuzzo, the decedent’s spouse ‘‘submitted a claim for

dependent widow’s benefits pursuant to . . . [General

Statutes] § 31-306.’’ (Internal quotation marks omitted.)

Id., 134. In support of her claim, the claimant submitted

a medical report prepared by the decedent’s physician,

in which the doctor ‘‘stated that the cause of [the decedent’s] death was heart disease, secondary to atherosclerotic heart disease . . . brought about by the

curtailment of his physical activities . . . [and that the

decedent’s prior] compensable injury and its treatment

substantially contributed to his death . . . because

they severely limited his ability to maintain his physical

fitness and aerobic conditioning.’’ (Internal quotation

marks omitted.) Id., 135. Thereafter, the commissioner

in DiNuzzo found ‘‘that there was a relationship

between the compensable injury and the decedent’s

death . . . [and, on that basis,] concluded that the

plaintiff was entitled to benefits pursuant to § 31-306.’’

(Internal quotation marks omitted.) Id., 136.

On appeal in DiNuzzo, our Supreme Court affirmed

the judgment of this court, which reversed the board’s

affirmance of the commissioner’s decision. In so doing,

the DiNuzzo court noted that the medical examiner,

upon whose opinion the commissioner had relied, had

made the following concessions of fact which under-
mined his opinion: (1) the decedent had not been diagnosed with atherosclerotic heart disease; (2) the

medical examiner was unaware that ‘‘the decedent had

been hospitalized approximately one month before his

death for certain side effects of Interferon’’; id., 145;

(3) the symptoms exhibited by the decedent shortly

before his death ‘‘could have been the result of his use

of Interferon’’; id.; and (4) because he did examine the

decedent’s body postmortem, ‘‘it would be impossible

to know whether the heart attack could have been prevented if the decedent had been able to exercise more

because some heart attacks are caused by congenital

heart defects that are not amenable to improvement

through exercise.’’ Id., 146. The court then noted that,

aside from this unsupported medical opinion, ‘‘the

plaintiff produced no evidence linking the decedent’s

death to a heart attack.’’ Id., 144. Accordingly, the court

held that that medical opinion amounted to no more

than speculation and conjecture, and thus ‘‘the causal

link between his compensable injury and his alleged

manner of death simply [became] too attenuated to

support a reasonable inference that the two events were

connected.’’ Id., 148.

Here, unlike the medical examiner in DiNuzzo, Selden physically examined and performed a neurological

assessment of the plaintiff, reviewed O’Holleran’s May,

2013 medical notes, the June 8, 2013 MRI scan, which

O’Holleran had ordered, and twice reviewed additional

medical records concerning the plaintiff’s prior shoulder injuries. In light of these facts, the commissioner

in this case had far more evidence on the record before

him to substantiate Selden’s opinion as to the nature

and extent of the plaintiff’s injury than the medical

examiner whose opinion was rejected as speculative

and conjectural in DiNuzzo. See id., 145–48. Because

Selden provided a reasonable basis for his opinion, that

opinion was competent medical evidence supported by

sufficient underlying facts to justify the commissioner’s

reliance upon it in reaching his decision in this case.

Last, we are not persuaded by the plaintiff’s argument

that Selden’s written report was so contradicted by

his deposition testimony, or that any inconsistencies

between the report and the deposition were so substantial, as to make it inappropriate for the commissioner

to rely on the report in making his findings in this

case. Although the plaintiff correctly notes that Selden

testified that he believed that the plaintiff may have

subluxed his shoulder on April 15, 2013, and that a

shoulder subluxation can result in a glenoid fracture,

there are two fundamental flaws in the plaintiff’s argument. First, Selden testified that the ‘‘pop’’ in the plaintiff’s shoulder could have been either a subluxation or

a tearing of preexisting adhesions and scartissue, either

of which could have caused the plaintiff’s shoulder

strain without causing the glenoid fracture. Second, the

plaintiff fails to acknowledge that, even if he did sublux
his shoulder on April 15, 2013, and a subluxation can

cause a glenoid fracture, those possibilities do not compel a finding that the particular subluxation, if any, that

occurred on April 15, 2013, is what caused the glenoid

fracture. Instead, both Selden and the commissioner

reasonably could have concluded that the plaintiff, who

claimed to have routinely done 200 pushups per day,

sustained a second subluxation that caused the glenoid

fracture after the date of his workplace injury on April

15, 2013, but before he went to the hospital on May 22,

2013. We thus cannot find that Selden’s written opinion

was so squarely contradicted by his deposition testimony as to render his opinion speculative or conjectural.

‘‘Once the commissioner makes a factual finding, [we

are] bound by that finding if there is evidence in the

record to support it. . . . Similarly, the conclusions

drawn by the commissioner from the facts found must

stand unless they result from an incorrect application

of the law to the subordinate facts or from an inference

illegally or unreasonably drawn from them. . . . It [is]

within the commissioner’s discretion to credit all, part

or none of the . . . [expert] testimony. That determination cannot be overruled by the board unless it could not

find any evidence to support the conclusion.’’(Citations

omitted; emphasis added; internal quotation marks

omitted.) O’Reilly v. General Dynamics Corp., supra,

52 Conn. App. 818–19. In light of the foregoing analysis,

we agree with the board that Selden’s opinion was supported by sufficient subordinate facts to constitute competent medical evidence upon which the commissioner

properly could rely in making his findings in this case.

We thus conclude that the board correctly determined

that the commissioner’s findings were supported by

sufficient underlying facts to uphold them, and that any

inferences drawn from such facts were reasonable and

legally permissible. See, e.g., Blakeslee v. Platt Bros. &

Co., 279 Conn. 239, 243, 902 A.2d 620 (2006).

B

Notwithstanding our conclusion that the commissioner’s findings were supported by sufficient underlying facts, the plaintiff argues, in the alternative, under

Bode v. Connecticut Mason Contractors, The Learning

Corridor, supra, 130 Conn. App. 672, that this court

should depart from the degree of deference usually

afforded to the commissioner’s credibility determinations and conclude that the commissioner erred in not

adopting the opinions of O’Holleran and Barnett. This

is so, the plaintiff argues, because none of the medical

examiners gave live testimony before the commissioner

at the July, 2014 formal hearing; rather, each examiner

submitted a written report concerning his own medical

evaluation of the plaintiff. The plaintiff argues that,

under these circumstances, the commissioner’s credibility determinations were not influenced by the live
testimony of those witnesses, and thus this court is

equally capable of determining the appropriate weight

to afford the opinions of Selden, O’Holleran andBarnett.

We disagree and conclude that the defendant’s reliance

on Bode is misplaced.

In Bode, the claimant sought temporary total disability benefits for fractures to his spine and shoulder that

he sustained in 2002, after falling thirty feet from scaffolding. Id., 674. Although the claimant submitted a

number of medical records in support of his claim,

‘‘[n]one of the physicians opined that the [claimant]

was totally disabled or unable to work on or after April

26, 2005.’’ Id., 676. In addition to these reports, the

claimant submitted four vocational evaluations.

Although the first two evaluations, performed in October, 2003, and January, 2004, had concluded that the

claimant was ‘‘ ‘presently employable,’ ’’ the last two

evaluations, which were performed in August, 2004, and

July, 2008, had concluded that ‘‘due to his worsening

condition the [claimant] was completely unemployable.’’ Id., 677. In January, 2009, the commissioner dismissed the claimant’s request for disability benefits. Id.,

678. Thereafter, the board affirmed the commissioner’s

finding, concluding, inter alia, that ‘‘the [claimant] failed

to meet his burden of proving eligibility for temporary

total disability benefits because . . . he did not introduce one medical report in which a physician opined

that [he] was totally disabled . . . . [Thus] because

this board is not empowered to overturn a trier’s evidentiary determinations unless they lack foundation in the

record . . . the trial commissioner’s decision . . .

must stand.’’ (Internal quotation marks omitted.) Id.

On appeal in Bode, the claimant argued that the board

had improperly affirmed the commissioner’s decision

because, inter alia, the commissioner ‘‘arbitrarily disregarded . . . the uncontroverted vocational expert

opinions . . . .’’ Id., 679. This court agreed and

reversed the decision of the board. Id. In so doing, the

court in Bode acknowledged that the claimant had not

introduced a single medical report establishing his total

disability. It held, however, that ‘‘[t]he commissioner’s

inquiry . . . as to whether the plaintiff was realistically

employable should not have ended with his review . . .

of the plaintiff’s physical capabilities. Under the facts

of this case, the commissioner’s decision necessarily

involved his consideration of the . . . four vocational

reports’’ as part of his decision as to whether the claimant proved his entitlement to temporary total disability

benefits. Id., 681–82.

After reviewing the evidence presented to the commissioner, the court in Bode noted that none of the

vocational experts had testified before the commissioner and that, of the four vocational reports, only

the February, 2004 report unequivocally stated that the

plaintiff presently was employable. Id., 682. Further,
the court in Bode noted that the November, 2003 and

the July, 2008 vocational reports had been authored by

the same evaluator, who had changed his opinion in

his 2008 report by finding that the claimant, at that time,

was ‘‘ ‘totally unemployable.’ ’’ Id., 684. Last, the court

noted that the commissioner’s decision discussed only

the vocational reports suggesting that the plaintiff was

employable, but made no finding as to the reliability of

the August, 2004 or July, 2008 reports that had stated

that the plaintiff was unemployable. Id., 684.

In reversing the decision of the board, the court in

Bode ‘‘declined to afford deference to the commissioner’s credibility determinations when such determinations were based solely on documentary evidence,

noting that ‘no testimony regarding any of the underlying assertions was taken. All of the facts . . . were

reflected in the medical reports from the physicians

. . . . Thus, the deference [that] we normally would

give to the commissioner on issues of credibility is not

warranted in the present case, because we are as able

as he was to gauge the reliability of those documents.’ ’’

Id., 685, quoting Pietraroia v. Northeast Utilities, 254

Conn. 60, 75, 756 A.2d 845 (2000).

In the present case, the plaintiff argues, pursuant to

Bode, that this court should decline to give deference to

the commissioner’s credibility determinations because

here, as in Bode, none of the medical examiners testified

before the commissioner, and thus this court is assertedly no less capable than the commissioner of deciding

what weight to give to those reports. We disagree. Our

conclusion rests on the fact that the commissioner’s

credibility determinations and findings in the present

case were clearly influenced by the plaintiff’s live testimony that he never engaged in weightlifting or other

forms of physical exercise. As discussed in the preceding paragraphs, the plaintiff was questioned as to

whether he had ever lifted weights, requested a medical

release from O’Holleran to resume weightlifting, or had

conversations at work about doing pushups and situps every day before going to work. The plaintiff flatly

denied these allegations. His testimony was directly

contradicted, however, both by O’Holleran’s medical

notes and by the statements of his former coworkers.

In his decision, the commissioner expressly found that

there was ‘‘[c]onflicting testimony . . . between the

[plaintiff] and [O’Holleran] as to the [plaintiff’s] weightlifting activities and performing pushups’’; that Selden

‘‘disagreed with the [plaintiff’s] mechanism of the

injury’’; and that ‘‘the opinions and conclusions of [Selden are] more persuasive in part than those of . . .

O’Holleran andBarnett on the issues of extent of disability and need for further medical treatment.’’

Against this background, we conclude that here,

unlike in Bode, the commissioner was presented with

‘‘ ‘[live] testimony regarding . . . the [claimant’s]
underlying assertions’ ’’; Bode v. Connecticut Mason

Contractors, The Learning Corridor, supra, 130 Conn.

App. 685; not just written reports from nontestifying

experts, upon which to make his findings and conclusions. It is well settled that ‘‘[the] authority to find the

facts entitles the commissioner to determine the weight

of the evidence presented and the credibility of the

testimony offered by lay and expert witnesses.’’ (Internal quotation marks omitted.) Ryker v. Bethany, 97

Conn. App. 304, 314, 904 A.2d 1227, cert. denied, 280

Conn. 932, 909 A.2d 958 (2006). Moreover, ‘‘[e]ven if

the medical evidence . . . is not refuted, the [commissioner] can still dismiss the claim if [he] does not find

the injured worker to be credible.’’ 3 A. Sevarino, Connecticut Workers’ Compensation After Reforms (J. Passaretti, Jr., ed., 6th Ed. 2014) § 6.02.3, p. 760. Under the

circumstances ofthis case, we see no compelling reason

to give less deference to the commissioner’s findings

than we usually give to such findings in similar cases.14

II

The plaintiff’s final claim is that the board erred in

not remanding the case to the commissioner with

instructions that the commissioner articulate why he

disregarded the opinion of Barnett, the medical examiner he chose to examine the plaintiff. In support of this

claim,the plaintiff argues that, although a commissioner

may ‘‘[choose] not to adopt the diagnosis of the physician performing [the commissioner’s] examination,’’ the

commissioner ‘‘should articulate the reasons behind

his or her decision to disregard the examiner’s report’’

because it ‘‘has long been the expectation within workers’ compensation law . . . that the [commissioner’s]

examiner’s opinion will provide strong guidance to the

commissioner’s ultimate decision.’’ (Internal quotation

marks omitted.) The plaintiff asserts that the commissioner’s decision in this case ‘‘summarily states the opinions and conclusions of [Selden]’’ without including

‘‘any explanation whatsoever for this departure,’’ and

thus the board erred in not remanding this case to the

commissioner for further articulation. We disagree.

The following facts are pertinent to this claim. In his

decision, the commissioner found, inter alia, that (1)

Selden ‘‘opined in pertinent part that the [plaintiff] may

have sustained a strain to his left shoulder’’; (2) ‘‘Dr.

Barnett opined, in relevant part, causally relating the

present injury to the April 15, 2013 work-related incident, did not recommend surgical intervention . . .

and recommended the [plaintiff] undergo a neurologic

assessment’’; and that(3)‘‘the opinions and conclusions

of [Selden are] more persuasive in part than those of

. . . O’Holleran and Barnett on the issues of extent of

disability and need for further medical treatment.’’ On

those grounds, the commissioner agreed with Selden

that the plaintiff’s April 15, 2013 injury ‘‘was self-limiting

in nature . . . any restrictions or limitations on his
ability to work were unrelated to the April 15, 2013

injury . . . [and that] no further medical treatment is

required as it relates to the April 15, 2013 injury.’’

In affirming that decision, the board held, in part,

thatit‘‘reviewed the finding [and] award and [identified]

no legal error.’’ The board further held that ‘‘the text

of the finding [and] award complies with the standard

we have delineated for a decision which does not rely

on the opinion of the commissioner’s examiner.’’ After

reviewing the contents of the commissioner’s decision,

the board concluded that the reasoning for the commissioner’s departure from Barnett’s medical opinion ‘‘is

clearly ascertainable in this opinion.’’

When reviewing the decision of the board, ‘‘[t]he role

of this court is to determine whether the . . . [board’s]

decision results from an incorrect application of the law

to the subordinate facts or from an inference illegally or

unreasonably drawn from them.’’ (Internal quotation

marks omitted.) Tartaglino v. Dept. of Correction, 55

Conn. App. 190, 193, 737 A.2d 993, cert. denied, 251

Conn. 929, 742 A.2d 364 (1999). ‘‘[T]he discretion [to

remand the case] is a legal discretion vested in the

[board],’’ and thus we review that decision to determine

‘‘whether the [board’s] failure to remand the case to

the commissioner constituted an abuse of its discretion

. . . .’’ (Internal quotation marks omitted.) Matey v.

Estate of Dember, 256 Conn. 456, 489, 774 A.2d 113

(2001).

It is well settled that ‘‘when a commissioner orders

a medical examination, there is usually an expectation

among the parties that said examination will provide

strong guidance to the commissioner. Where a commissioner chooses not to adopt the diagnosis of the physician performing that examination, he or she should

articulate the reasons behind his or her decision to

disregard the examiner’s report. . . . [A]lthough a

commissioner should articulate the reasons behind his

decision to disregard a § 31-294f examiner’s opinion,

the ultimate decision is always with the commissioner

. . . .’’ (Citations omitted; internal quotation marks

omitted.) Gillis v. White Oak Corp., 49 Conn. App. 630,

636–37, 716 A.2d 115, cert. denied, 247 Conn. 919, 722

A.2d 806 (1998).

In concluding that the commissioner’s decision ‘‘complied with the standard . . . delineated for a decision

which does not rely on the opinion of the commissioner’s examiner,’’ the board was necessarily guided by

§ 31-310-3 of the Regulations of Connecticut State Agencies,15 which governs the requisite content of a commissioner’s decision. After interpreting the mandates of

that rule, the board concluded that the commissioner’s

decision in this case satisfied those requirements. It is

well settled that ‘‘[an appellate] court affords deference

to the construction of a statute applied by the administrative agency empowered by law to carry out the stat-
ute’s purposes. . . . [A]n agency’s factual and

discretionary determinations are to be accorded considerable weight by the courts.’’ (Internal quotation marks

omitted.) Bailey v. State, 65 Conn. App. 592, 602–603,

783 A.2d 491 (2001); see also Bode v.Connecticut Mason

Contractors, The Learning Corridor, supra, 130 Conn.

App. 679 (‘‘[i]t is well established that [a]lthough not

dispositive, we accord great weight to the construction

given to the workers’ compensation statutes by the

commissioner and [the] board’’ [internal quotation

marks omitted]).

In light of the foregoing case law and principles,

which afford considerable deference to the board’s

interpretation and construction of its own regulations;

see, e.g., Bailey v. State, supra, 65 Conn. App. 602–603;

we conclude that the board did not abuse its discretion

in not remanding the commissioner’s decision for further articulation.

The decision of the Workers’ Compensation Review

Board is affirmed.

In this opinion the other judges concurred.

1 The record before this court does not contain any reference to Dr. Ergin’s

first name.

2 O’Holleran later explained that this second surgery was performed to

cut away portions of residual scar tissue in the plaintiff’s shoulder, thereby

reducing stiffness and increasing the range of motion in the left shoulder.

3 Peerless Insurance Company, the workers’ compensation insurer for

Edson Manufacturing, is also a defendant in this case. For convenience, we

refer in this opinion to Edson Manufacturing as the defendant. See Sellers

v. Sellers Garage, Inc., 155 Conn. App. 635, 636 n.1, 110 A.3d 521 (2015).

4 During the formal hearing before the commissioner, the plaintiff agreed

with his counsel’s statements that the dolly he used was a ‘‘vertical piece

of metal with a flat bottom’’ with two wheels in the back, and that, to operate

the dolly, the operator would place an item on the flat bottom, pull the item

back toward the vertical piece of metal, and rest the weight of the item on

the dolly’s wheels.

5 General Statutes § 31-294c (a) provides in relevant part: ‘‘No proceedings

for compensation under the provisions of this chapter shall be maintained

unless a written notice of claim for compensation is given within one year

from the date of the accident . . . which caused the personal injury . . . .

Notice of claim for compensation may be given to the employer or any

commissioner and shall state, in simple language, the date and place of the

accident and the nature of the injury resulting from the accident . . . . An

employee of the state shall send a copy of the notice to the Commissioner

of Administrative Services. . . .’’

6 General Statutes § 31-294f (a) provides in relevant part: ‘‘An injured

employee shall submit himself to examination by a reputable practicing

physician or surgeon, at any time while claiming or receiving compensation,

upon the reasonable request of the employer or at the direction of the

commissioner. The examination shall be performed to determine the nature

of the injury and the incapacity resulting from the injury. The physician or

surgeon shall be selected by the employerfrom an approved list of physicians

and surgeons prepared by the chairman of the Workers’ Compensation

Commission and shall be paid by the employer. . . . The refusal of an

injured employee to submit himself to a reasonable examination under this

section shall suspend his right to compensation during such refusal.’’

7 During his deposition, O’Holleran testified that a Bankart lesion ‘‘is a

tear of the labrum [the cartilage that surrounds the socket in the shoulder]

off of the glenoid in . . . [the] socket.’’ He further testified that a bony

Bankart lesion is caused ‘‘by the shoulder sliding out of [the] joint either

partially, which is a subluxation, or fully, which is a dislocation,’’ which

results in ‘‘an avulsion of the labrum where it takes off a fleck of bone with it.’’

8 Dr. Steven E. Selden testified that ‘‘[a] Hill-Sachs lesion is a depression

in the humeral head that is a result of dislocations of your shoulder, where
the ball and socket come apart.’’

9 O’Holleran described bone marrow edema as ‘‘fluid [in the bone] from

an injury . . . that goes away a few months after the injury.’’ He further

testified that, because edema typically subsides after six months, the presence of edema in the plaintiff’s shoulder indicated that the plaintiff’s injury

was new and unrelated either to the 2009 or 2012 surgery.

10 At the outset of Selden’s deposition, the following colloquy occurred:

‘‘Q. You physically examined [the plaintiff], correct?

‘‘A. That is correct as well.

‘‘Q. You issued a report . . . and that’s the full report, is it not?

‘‘A. Correct.

‘‘Q. Since that time, just recently, you have been given a couple of additional medical records from the past, which you did not have, correct?

‘‘A. That is correct.’’

Neither the plaintiff nor the defendant inquired as to which additional

medical records Selden had received and reviewed prior to his December

2, 2013 deposition.

11 Subluxation is the medical term for a partial dislocation of the joint,

‘‘where the shoulder goes partly out of place.’’

12 Notably, Selden’s written addendum, much like his deposition testimony,

does not state with any degree of specificity what additional medical records

he reviewed between his December 2, 2013 deposition and his July 14, 2014

addendum to his written report. See footnote 10 of this opinion.

13 Pursuant to § 31-301-8 of the Regulations of Connecticut State Agencies,

the board ‘‘considers no evidence other than that certified to it by the

commissioner, and then for the limited purpose of determining . . .

whether there was any evidence to support in law the conclusion reached.

It cannot review the conclusions of the commissioner when these depend

upon the weight of the evidence and the credibility of witnesses. . . .’’

(Emphasis added.)

14 Since the Bode decision, the board has held: ‘‘We do not believe Bode

. . . has limited such precedents as [O’Reilly v. General Dynamics Corp.,

supra, 52 Conn. App. 813] as to the trial commissioner’s prerogative to

assess and weigh medical evidence. A trial commissioner is not obligated

to accept the most recent medical opinion presented to the tribunal. . . .

However, when a medical witness offers subsequent testimony which deviates from a prior opinion, a trial commissioner must acknowledge and

reconcile the differing opinions and should the commissioner seek to rely

on the prior opinion, grounds for the reliance must be provided.’’ (Citation

omitted.) Sullins v. United Parcel Service, Inc., No. 5611, CRB 1-10-12, 2012

WL 979543, *3 n.2 (January 6, 2012), rev’d on other grounds, 146 Conn. App.

154, 77 A.3d 196 (2013), aff’d, 315 Conn. 543, 108 A.3d 1110 (2015).

15 Section 31-301-3 of the Regulations of Connecticut State Agencies provides: ‘‘The finding of the commissioner should contain only the ultimate

relevant and material facts essential to the case in hand and found by him,

together with a statement of his conclusions and the claims of law made

by the parties. It should not contain excerpts from evidence or merely

evidential facts, nor the reasons for his conclusions. The opinions, beliefs,

reasons and argument of the commissioner should be expressed in the

memorandum of decision, if any be filed, so far as they may be helpful in

the decision of the case.’’