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Benlock v. New Haven Terminal/Cilco Terminal

CASE NO. 3034 CRB-4-95-4

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 25, 1997

CHARLES BENLOCK

CLAIMANT-APPELLEE

v.

NEW HAVEN TERMINAL/CILCO TERMINAL

EMPLOYER

and

LIBERTY MUTUAL INSURANCE CO.

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Carolyn Kelly, Esq., O’Brien, Shafner, Stuart, Kelly & Morris, P.C., 475 Bridge St., P.O. Drawer 929, Groton, CT 06340.

The respondents were represented by Scott Wilson Williams, Esq., Maher & Williams, 1300 Post Road, P. O. Box 590, Fairfield, CT 06430.

This Petition for Review from the April 3, 1995 Finding and Award of the Commissioner acting for the Fourth District was heard August 16, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Robin L. Wilson and Michael S. Miles.

OPINION

ROBIN L. WILSON, COMMISSIONER. The respondents have petitioned for review from the April 3, 1995 Finding and Award of the Commissioner acting for the Fourth District. They argue on appeal that the commissioner erred by finding that the claimant’s myocardial infarction was a compensable injury. We affirm the trial commissioner’s decision.1

The trial commissioner found that the claimant suffered a myocardial infarction on Sunday, October 2, 1988, about thirty hours after completing a twelve-hour work shift for his employer. The claimant had been working for the employer as a crane operator since 1979, and as a laborer for the eight years prior to that. His job as a crane operator was to unload heavy steel from ships, and he was very concerned that his crane would tip over due to the heaviness of the loads. This concern was heightened because an alarm bell designed to ring if his crane’s load was too heavy had fallen into disrepair (although there was another functioning safety device). The claimant had been operating a crane that tipped over eight years earlier, and he was afraid that an overload would cause another accident, possibly killing someone in the cargo hold. This tension had caused the claimant to increase his pack-a-day smoking to 2 packs of cigarettes daily. Along with this longtime bad habit, the claimant’s family history and hypertension increased his risk of heart disease.

Upon suffering his heart attack, the claimant was rushed to the hospital, where a cardiothoracic surgeon, Dr. Errett, performed a coronary artery bypass. He was of the opinion that the claimant’s job anxiety contributed to his heart disease. The claimant’s treating cardiologist, Dr. Lebowitz, thought that job stress could be a contributing factor, but was not reasonably medically certain. Another cardiologist, Dr. Fazzone, did not think that the myocardial infarction was employment-related. Finally, Dr. Wolfson, also a cardiologist, reviewed the claimant’s records and some of his testimony, and explained the effects of stress upon human physiology. He concluded that the claimant’s job stress superimposed on his pre-existing multiple risk factors was a significant contributory cause of the heart attack.

The commissioner found that the claimant’s myocardial infarction indeed arose out of and in the course of his employment “in that stress on the job was a contributory causative factor.” He found that the claimant was totally disabled from the date of the heart attack until March 27, 1989, and that he was left with a 20 percent permanent partial impairment of his heart. The commissioner thus ordered the respondents to pay all medical expenses, temporary total and permanent partial benefits, along with a 45-week award of benefits for surgical scars. The respondents have appealed that decision.

There are two distinct issues for this board to consider on appeal: the commissioner’s denial of most of the respondents’ Motion to Correct, and his finding that the claimant’s heart attack arose out of and in the course of his employment. To begin, we note that the trial commissioner is the individual charged with determining the credibility of all of the evidence offered in a workers’ compensation case, and making findings based on that evidence. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995). This includes proposed findings offered as corrections by a party in a Motion to Correct. See Smith v. Aetna Life & Casualty, 14 Conn. Workers’ Comp. Rev. Op. 336, 338, 2006 CRB-1-94-3 (Sept. 20, 1995), affirmed, 43 Conn. App. 910 (1996) (per curiam). This board cannot override a commissioner’s findings when they are dependent on the weight of evidence and on the credibility of witnesses; furthermore, a commissioner need only include the ultimate, relevant and material facts that he or she has found. Admin. Reg. § 31-301-3 C.G.S.; Adzima v. UAC/Norden Division, 177 Conn. 107, 118 (1979). A material fact is one that will affect the outcome of a case. Plitnick v. Knoll Pharmaceuticals, 13 Conn. Workers’ Comp. Rev. Op. 26, 28, 1699 CRB-8-93-4 (Nov. 7, 1994).

The respondents’ assertion of error here is predicated on the commissioner’s denial of numerous corrections. The first series of corrections sought to include findings that state law required cranes to be equipped with a “boom angle indicator” safety device rather than the less reliable “bell system” indicator, and that the crane operated by the claimant met this standard. True or not, these facts have little to do with the claimant’s subjective perception of the danger of his occupation and the stress that he may have experienced in pursuing it. Another set of corrections focused on the claimant’s failure to complain about the stress of his job, and the fact that he could have sought a different job than crane operator, but did not. First, these points are irrelevant because the failure of a claimant to quit a job that he finds stressful is not a prerequisite of compensability. Second, these facts are based on testimony that was somewhat contradicted by testimony of other witnesses. As stated above, this board will not reassess the credibility of evidence on review. Adzima, supra, 118; Smith, supra, 339. Similar reasoning applies to the commissioner’s denial of corrections concerning the absence of pressure on the employer’s workers to compromise safety for productivity. The corrections concerning Dr. Wolfson’s testimony would have been superfluous to the findings, as they would have no legal impact on the commissioner’s discretion to rely on his opinion. Thus, we find no error in the denial of the corrections propounded by the respondents.

The next question is whether there was sufficient evidence to support the commissioner’s conclusion that the claimant’s myocardial infarction arose out of and in the course of his employment within the meaning of the Workers’ Compensation Act. The commissioner found that stress on the claimant’s job was a “contributory causative factor” of his myocardial infarction. Our cases have held that traditional proximate cause concepts apply in cases involving the compensability of heart attacks. McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 118 (1987). To satisfy causation requirements, the claimant here need only prove that, within a reasonable degree of medical probability, work-related stress was a substantial factor in producing his myocardial infarction. Thompson v. State of Connecticut, 15 Conn. Workers’ Comp. Rev. Op. 178, 180, 2206 CRB-6-94-11 (March 22, 1996); Tomkus v. Upjohn Company, 9 Conn. Workers’ Comp. Rev. Op. 163, 165, 972 CRD-3-90-1 (June 28, 1991).

Dr. Wolfson was the physician who offered the most support for the claimant’s claim. After reviewing a portion of the claimant’s testimony and the medical reports of the other three doctors involved in the case, he concluded that the stress the claimant experienced on his job was probably, as opposed to possibly, a cause of his heart attack. (Claimant’s Exhibit G, p. 46). Dr. Wolfson noted in his testimony that two physicians who treated the claimant thought that stress was a factor in causing the infarction, while only one thought that it was not relevant. Id. He agreed with the former, adding that his opinion “is strengthened by the fact that we have a man with preexisting disease and abnormal family history, cigarette smoking, probably hypercholesterolemia, and perhaps some degree of hypertension. You started out with a man who had a tendency to develop heart disease. Then you superimpose on top of that the stress of not knowing from day to day whether he was going to be injured or whether his work was going to injure somebody else. I think that it’s a fairly clear-cut statement.”

The trial commissioner was entitled to credit this opinion over that of Dr. Fazzone, who offered the only opinion that strongly opposed the claimant’s case. Dr. Wolfson’s opinion provides sufficient foundation to establish a reasonable probability that the claimant’s heart attack was related to job stress, as his use of the term “probably” connotes his belief that it was more likely than not that there was a causal relationship between injury and employment. See Dumont v. Southern Connecticut State University, 11 Conn. Workers’ Comp. Rev. Op. 122, 125, 1320 CRD-3-91-10 (June 16, 1993), quoting Struckman v. Burns, 205 Conn. 542, 554-55 (1987). As it is outside of the scope of our review to second-guess the trial commissioner’s rulings on evidentiary credibility, see Webb, supra, 70-71, we must affirm the trial commissioner’s decision.

Commissioner Michael S. Miles concurs.

JESSE M. FRANKL, COMMISSIONER, DISSENTING. I disagree with the respondents’ arguments concerning McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104 (1987), as the claimant correctly contends that there is a two-prong test in heart attack cases, and the “accidental injury” test requiring a sudden, unusual and unexpected employment factor need not be used exclusively in all situations. However, I do not believe that the claimant has offered sufficient evidence to establish that his myocardial infarction was work-related under any test. Given his personal history of cigarette smoking and hypertension and his family history of heart attacks (see Finding No. 8), the medical opinions in this case are simply not conclusive enough to meet the necessary evidentiary standard of reasonable medical certainty.

Neither Dr. Errett nor Dr. Lebowitz, both of whom treated the claimant, were able to offer more than conjecture that the claimant’s heart attack was related to employment stress. Dr. Wolfson’s opinion was the only one emphatically in favor of the requisite causal link; however, he was not a treating physician. Instead, he merely reviewed 18 pages of the claimant’s testimony and the reports of the other doctors, and posited that stress caused by the claimant’s lack of control over his job contributed significantly to his heart attack. He was plainly brought into the proceedings by the claimant’s attorney after it became apparent to counsel that she might have insufficient proof to win her pending case, and the doctor was aware that his purpose in this forum was to establish the requisite causal connection under the standard of proximate cause required by the Workers’ Compensation Act. (See Claimant’s Exhibit G, p. 47.) Even taking into account the commissioner’s authority to weigh the credibility of evidence and our relaxed standard of review for his findings under Fair v. People’s Savings Bank, 207 Conn. 535 (1988), and Adzima v. UAC/Norden Division, 177 Conn. 107 (1979), I do not believe that the evidence was sufficient here to establish proximate cause within a reasonable medical probability. Accordingly, I dissent.

1 The claimant has filed a Motion to Dismiss the respondents’ appeal on the ground that the respondents failed to state a reason for requesting an extension of time to file their Motion to Correct, and failed to certify a copy of their Motion for Extension of Time to the claimant. The respondents’ motion was filed along with their petition for review, and sought a three week extension of time within which to file their Motion to Correct. The extension was granted almost nine months later by the trial commissioner. Although we agree that a copy of the motion for extension of time should have been sent to the claimant, thereby giving him a chance to object, we do not believe that this error and the delay in filing the Motion to Correct constitute valid grounds for dismissing the appeal in this case. If the claimant had truly assumed that this appeal had been abandoned, he should not have waited until after the Motion to Correct was finally filed to file a Motion to Dismiss the appeal. There were over eight months of inaction by the respondents after the petition for review was filed, yet the claimant did not seek to have the appeal dismissed for failure to prosecute with proper diligence during that time. We do not see how he can reasonably claim prejudice now. BACK TO TEXT

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