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Paternostro v. Turner Construction Co. et al.

CASE NO. 1723 CRB-5-93-5

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 18, 1995

ANTONIO PATERNOSTRO

CLAIMANT-APPELLEE

v.

TURNER CONSTRUCTION CO.

EMPLOYER

and

LIBERTY MUTUAL INSURANCE CO.

INSURER

and

INSURANCE CO. OF NORTH AMERICA (CIGNA)

RESPONDENTS-APPELLEES

and

O & G INDUSTRIES

EMPLOYER

and

AETNA LIFE & CASUALTY

INSURER

and

HARTFORD INSURANCE GROUP

INSURER

RESPONDENTS-APPELLANTS

and

WATERTOWN CONSTRUCTION CO.

EMPLOYER

and

AETNA LIFE & CASUALTY

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Leonard Bren, Esq., 433 South Main St., West Hartford, CT 06110.

The respondent Turner Construction Co. was represented by Karen Fritzinger, Esq. and Scott Wilson Williams, Esq. (also representing Liberty Mutual), both of Maher & Williams, P. O. Box 550, 1300 Post Road, Fairfield, CT 06430-0550 and David W. Schoolcraft, Esq., Trowbridge, Schoolcraft & Basine, P.C., 207 Main Street, Hartford, CT 06106-5314 (also representing CIGNA).

The respondent O & G Industries was represented by Brian E. Prindle, Esq. (also representing Hartford Insurance Group), 627 Main St., Manchester, CT 06040, and Kathy S. Bower, Esq. (also representing Aetna Life & Casualty), P. O. Box 2480, Waterbury, CT 06722.

The respondents Watertown Construction Co. and Aetna Life & Casualty were represented by Margaret Corrigan, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.

These Petitions for Review from the May 6, 1993 Finding and Award of the Commissioner acting for the Fifth District were heard May 20, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Nancy A. Brouillet.

OPINION

JESSE M. FRANKL, CHAIRMAN. The several respondent/appellant insurers have individually petitioned for review from the May 6, 1993 Finding and Award of the Commissioner for the Fifth District. They each contest the commissioner’s finding that the claimant’s asbestosis was caused in part by his relatively brief exposure to asbestos while in the employ of O & G Industries and Watertown Construction Co., and the resultant liability for the claimant’s injuries that springs from said finding. We affirm the trial commissioner’s decision.

The claimant, Antonio Paternostro, had been employed as a laborer, mason and carpenter helper since 1969. It is undisputed that he now suffers from asbestosis. He claims that this disability arose from three separate periods of asbestos exposure: employment with Turner Construction Co. in 1969-1971; employment with O & G Industries from 1980-1982; and, while employed by Watertown Construction Co. in 1984-1985. Turner Construction Co. did not contest its liability for the claimant’s asbestos exposure. The other two employers argued that the claimant had not shown exposure during their employment, or if there was exposure, that it was minimal, and further argued that such minimal exposure could not have contributed to the claimant’s lung disability. Watertown Construction Co. also argued that its employment was too recent to have contributed to the disability.

However, the commissioner found that the claimant had been exposed to asbestos and asbestos dust at two demolition sites while employed by O & G Industries and at one site while employed by Watertown Construction Co. The commissioner considered the respondents’ arguments regarding causation, but relied on the conclusion of Dr. Jegathesan, the claimant’s treating physician, that all of the claimant’s exposures to asbestos played a part in the development of the claimant’s disabling asbestos disease. He also cited the testimony of Dr. Godar, the respondents’ medical expert, who stated that lung scarring occurs with each new asbestos exposure even if it does not immediately show on x-rays, and that a person with existing asbestos-related lung disease will suffer an accelerated or exaggerated response upon subsequent exposure to asbestos. All of the respondents were thus found liable for benefits to be awarded to the claimant.

Each of the appellants sets forth the same basic argument to this Board: that the commissioner improperly found that the claimant was exposed to asbestos during his employment with O & G Industries (as insured by both Aetna and Hartford Insurance Group) and Watertown Construction Co., and that the medical evidence did not support a finding that the alleged exposure contributed to the claimant’s disease. With regard to the first claim, it is the commissioner’s role to consider the evidence and determine the facts. Adzima v. UAC/Norden Division, 177 Conn. 107, 117 (1979); Tovish v. Gerber Electronics, 32 Conn. App. 595, 598 (1993), appeal dismissed, 229 Conn. 587 (1994). “The conclusions drawn by him 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.” Adzima v. UAC/Norden Division, supra, 118. To that end, “[i]f supported by evidence and not inconsistent with the law, the Commissioner’s inference that an injury did or did not arise out of and in the course of employment is conclusive.” Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).

The claimant testified regarding each of the instances of asbestos exposure found by the commissioner. His assertions of exposure while employed by O & G Industries covered periods when O & G’s workers’ compensation insurance carrier was the Aetna as well as the Hartford Insurance Group. The claimant also asserted exposure during his employment with Watertown Construction Co. The commissioner was entitled to rely on the testimony of the claimant regarding his exposure to asbestos. Adzima v. UAC/Norden Division, supra, 177 Conn. 118; Cholewinski v. Brake Systems, Inc., 6 Conn. Workers’ Comp. Rev. Op. 105, 601 CRD-4-87 (Jan. 27, 1989). As there was thus sufficient evidence to support his conclusion as to the periods of the claimant’s exposure, we are bound by the commissioner’s findings on that issue. Fair v. People’s Savings Bank, supra, 207 Conn. 541.

Our analysis of the respondents’ claim regarding the insufficiency of the medical evidence is similar. It is, of course, necessary to rely on expert medical opinion in occupational disease cases in which it is difficult to ascertain whether the disease arose out of the employment. Metall v. Aluminum Co. of America, 154 Conn. 48, 52 (1946). Here, the claimant’s treating physician testified that all of the claimant’s exposures to asbestos had contributed to his lung disease, including his 1981, 1982 and 1984 exposures, because “there is medical evidence that, whether the exposure is small or large or intense exposure, all these can cause asbestos-related lung disease.” (Claimant’s Ex. G, 17-18). Dr. Godar also stated that he did not intend to suggest that the difficulty in detecting the effects of the recent, brief periods of asbestos exposure on the existing condition of the claimant’s lungs indicated that the more recent exposure had not contributed to a worsening of the claimant’s condition. (Respondent’s Ex. 8, 63-64). On the whole, we do not think that the medical evidence mandated a contrary result to that reached by the commissioner regarding the liability of any of the respondents, as there was sufficient testimony to support the commissioner’s findings regarding causation.

The trial commissioner’s decision is affirmed.

Commissioners Angelo L. dos Santos and Nancy A. Brouillet concur.

Workers’ Compensation Commission

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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