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Epps v. Beiersdorf, Inc.

CASE NO. 1733 CRB-7-93-5

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 11, 1995

BENNIE EPPS

CLAIMANT-APPELLANT

v.

BEIERSDORF, INC.

EMPLOYER

and

ITT HARTFORD

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Lawrence D. Church, Esq., Pirro & Church, 120 East Ave., P.O. Box 487, Norwalk, CT 06852-0487.

The respondents were represented by Michael T. Bologna, Esq., Ackerly & Bologna, 1318 Bedford St., P.O. Box 3347, Stamford, CT 06905-0347.

This Petition for Review from the May 13, 1993 Finding and Dismissal of the Commissioner acting for the Seventh District was 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 claimant, Bennie Epps, has petitioned for review from the May 13, 1993 Finding and Dismissal of the Commissioner for the Seventh District. He argues on appeal that, in light of the medical evidence presented, the commissioner improperly concluded that the claimant had failed to prove that he suffered a work-related injury. We affirm the trial commissioner’s decision.

The claimant worked as a chemical compounder for the respondent employer from 1985 through October 30, 1990, the first date on which he sought medical treatment for the alleged compensable injury. On that date, he experienced shortness of breath and pain in the left side of his chest. He periodically had been experiencing those symptoms, along with spitting up blood, since 1987. The claimant attempted to return to light duty work with the employer, but the pains returned, and he was forced to remain out of work from that point forward. His treating physician, Dr. Garland Jackson, later diagnosed him as having industrial bronchitis. The commissioner found that said physician was unaware that the claimant had been treated for a viral infection in 1987.

The commissioner also found that Dr. Thomas Godar, who examined the claimant at the insurer’s request, had concluded that the claimant’s workplace exposure was not the cause of his condition, “but was an aggravating factor on his already existing hyper-reactive airways, upon which was superinposed [sic] claimant’s 1987 viral infection, including clinical asthma.” Both physicians diagnosed the claimant with some percentage of permanent partial disability of each lung. Noting that the claimant’s symptoms did not decrease when he left the workplace and that dust, smoke or household products such as bleach could trigger those symptoms, the commissioner concluded that the claimant had failed to sustain his burden of proving that his injury arose out of and in the course of his employment. The claimant contends that such a finding was improper, as the only medical testimony presented was to the effect that the claimant had suffered either a work-related injury or a work-related aggravation of a pre-existing condition, both of which are compensable under the Workers’ Compensation Act.

“A disease is compensable as an ‘injury’ ... (1) if it arises out of and in the course of the employment; ... and (2) if it is an occupational disease that is ‘peculiar to the occupation in which the employee was engaged’ and ‘due to causes in excess of the ordinary hazards of employment as such.’” Hansen v. Gordon, 221 Conn. 29, 32 (1992) (citations omitted). “[T]he requirement that the disease be ‘peculiar to the occupation’ and ‘in excess of the ordinary hazards of the employment,’ refers to those diseases in which there is a causal connection between the duties of the employment and the disease contracted by the employee.” Id., 35; see also § 31-275 (15) C.G.S. Section 31-275 (1) (D) also provides that “for aggravation of a preexisting disease, compensation shall be allowed only for that proportion of the disability . . . due to the aggravation of the preexisting disease as may be reasonably attributed to the injury upon which the claim is based.” See Prisco v. North & Judd, 10 Conn. Workers’ Comp. Rev. Op. 154, 156, 1190 CRD-8-91-3 (June 30, 1992).

The claimant contends that the commissioner could not have relied on the medical testimony of Dr. Godar in finding the claimant’s injury noncompensable, for at the very least, that testimony established that the claimant’s workplace chemical exposure was an “aggravating factor” operating on the claimant’s pre-existing hyper-reactive airways, thus falling within the meaning of § 31-275 (1) (D). Upon review of Dr. Godar’s testimony, however, we believe that it was within the commissioner’s discretion to interpret the doctor’s testimony somewhat differently.

Dr. Godar testified that the chemicals that the claimant had been exposed to in the course of his employment were not regarded as toxic and did not appear to be hazardous enough to cause significant lung injury. He stated that it appeared that the claimant was treated for a respiratory infection in 1988 (described as 1987 by the commissioner) that progressed into a post-viral type of bronchitis, at which time coughing and shortness of breath became a problem for the claimant. In his opinion, this was significant “in that the workplace chemicals that previously were not a problem for him could now become nonspecific irritants. . . . It’s common in non-occupational disease to find that adults may acquire a low grade asthma which is manifested mostly by cough and shortness of breath.” (Transcript, p. 13).

Dr. Godar then testified that, within a reasonable degree of medical certainty, the claimant’s sensitivity to the chemicals at work developed as a result of the viral infection. Although he described the workplace exposure as an “aggravating factor” throughout his testimony, it is clear from the substance of his testimony that he was referring to the tendency of the chemicals to irritate the condition the claimant had acquired as a result of the viral infection, and not to a worsening of the claimant’s condition caused by his exposure to “nonspecific irritants.” This diagnosis of the claimant’s malady is devoid of the causal relationship between employment and disease contemplated in cases such as Hansen v. Gordon, supra, 221 Conn. 29, and Prisco v. North & Judd, supra, 10 Conn. Workers’ Comp. Rev. Op. 154, and would support the conclusion that the claimant’s disease was not aggravated by his employment within the meaning of § 31-275 (1) (D).

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. This includes the making of a determination whether an injury arose out of and in the course of employment. Fair v. People’s Savings Bank, 207 Conn. 535, 541 (1988).

Here, the commissioner could reasonably have relied on Dr. Godar’s testimony in concluding that the claimant did not prove that his disease was caused or aggravated by occupational exposure within the meaning of the Workers’ Compensation Act. As it is not the place of this Board to substitute our own conclusions for those of the commissioner, his decision must stand. Adzima v. UAC/Norden Division, supra, 120.

The trial commissioner’s decision is affirmed.

Commissioners Angelo L. dos Santos concurs.

NANCY A. BROUILLET, COMMISSIONER, DISSENTING. I dissent. A careful review of the record in this case reveals that the uncontradicted medical evidence indicates that the claimant’s exposure to chemicals during his employment substantially aggravated his respiratory condition. Specifically, the claimant’s treating physician, Dr. Jackson, a post-doctoral fellow in occupational and environmental medicine at Yale University Medical School, diagnosed the claimant’s condition as industrial bronchitis which was more probably than not a direct result of his employment. (Finding No. 17) The other physician who testified regarding the claimant’s condition was Dr. Godar, who examined the claimant on only one occasion, on behalf of the respondent insurer. Dr. Godar concluded that the claimant’s exposure to chemicals while at work “was an aggravating factor on his already existing hyper-reactive airways, upon which was superinposed (sic) claimant’s 1987 viral infection, inducing clinical asthma.” (Finding No. 20)

The majority opinion in this case admits that Dr. Godar described the claimant’s workplace exposure to chemicals as an “aggravating factor” throughout his testimony, but concludes that the claimant’s condition “was not aggravated by his employment within the meaning of § 31-275 (1)(D) C.G.S.” In reaching this conclusion, the majority explains that when Dr. Godar testified regarding the aggravation caused by workplace chemicals, he was referring to the “tendency of the (workplace) chemicals to irritate the condition (which) the claimant had acquired as a result of the viral infection....” It appears that the majority has found the claimant’s viral infection to be an intervening cause which made the claimant more sensitive to chemicals and thereby interrupted the chain of causation. Such an analysis overlooks the general rule in workers’ compensation that the employer, as in torts, “takes the victim as it finds him.” Prisco v. North & Judd, 10 Conn. Workers’ Comp. Rev. Op. 154, 157, 1190 CRD-8-91-3 (June 30, 1992).

I find Prisco, supra, to be on point. In Prisco, the claimant suffered from lung disease due to smoking, but sustained an aggravation of the lung disease during his exposure to heat and fumes in a foundry where he was employed. A physician attributed thirty-five percent of the claimant’s lung impairment to the work environment. This Board affirmed the commissioner’s determination that the employer was liable for the entire disability, citing Cashman v. McTernan School, Inc., 130 Conn. 401 (1943), which held that the apportionment under § 31-275 (1)(D) C.G.S. of the aggravation of a preexisting disease applies only to cases where the preexisting disease is an occupational disease. In the instant case, there is no finding that the claimant’s viral infection constituted an occupational disease. Thus, I would find the claimant’s disability to be compensable, because his contact with workplace chemicals constituted a substantial causal factor1 which aggravated his preexisting respiratory condition.

For the above reason, I respectfully dissent. Commissioner Nancy A. Brouillet.

1 Dr. Godar was asked whether he had an opinion, based upon reasonable medical certainty, as to the cause of the claimant’s respiratory symptoms. Dr. Godar responded: “Yes. I think he had reactive airways and the symptoms were induced by a viral infection and then were aggravated by workplace exposures.” (Transcript of 12/23/92 at p. 29) BACK TO TEXT

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