State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Evans v. City of Shelton

CASE NO. 3108 CRB-4-95-6

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 2, 1997

DOLORES EVANS

CLAIMANT-APPELLEE

v.

CITY OF SHELTON

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by Thomas Welsh, Esq., Brown & Welsh, Meriden Executive Park, 638 Preston Ave., P. O. Box 183, Meriden, CT 06450-0183.

The respondents were represented by James Baldwin, Esq., formerly of Cotter, Cotter & Sohon, P.C., 500 Boston Post Road, Milford, CT 06460. Notice also sent to James T. Baldwin, Esq., Coles, Baldwin & Craft, L.L.C., 1200 Post Road East, Westport, CT 06880.

This Petition for Review from the June 5, 1995 Finding and Award of the Commissioner acting for the Fourth District was heard June 14, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Robin L. Wilson.

OPINION

GEORGE A. WALDRON, COMMISSIONER. The respondent has petitioned for review from the June 5, 1995 Finding and Award of the Commissioner acting for the Fourth District. It argues on appeal that the claimant offered insufficient evidence to prove that workplace exposure caused her asthma, and that her condition was not compensable as either a repetitive trauma injury or an occupational disease. We affirm the trial commissioner’s decision.

Before addressing the facts, we must deal with the claimant’s motion to dismiss the respondent’s appeal.1 The claimant argues that the respondent failed to file a timely statement of reasons for appeal as required by Admin. Reg. § 31-301-2, and that his request for an extension of time was erroneously filed with the trial commissioner rather than this board, thus nullifying its effects. Assuming that the claimant’s motion was timely filed under Practice Book § 4056, this board would still not be required to dismiss the appeal. Late reasons for appeal make an appeal voidable, not void. Sager v. GAB Business Services, 11 Conn. App. 693, 697 (1987). Besides, the Chairman himself granted the respondent’s Motion for Extension of Time. There was no prejudice to the claimant from the respondent’s minor error, and we will not dismiss the appeal on that ground. See Brown v. Interstate Pallet Co., 3064 CRB-3-95-2 (decided Oct. 25, 1996).

We now turn to the facts of the case as found by the trial commissioner. The claimant started working for the respondent City of Shelton in 1968, serving full-time as Executive Secretary to the Mayor for most of her tenure. Since the early 1980s, she had also worked part-time as the clerk of the Board of Aldermen. During the 1970s, the city moved its offices to an old school building. The refurbishment of that building was not complete when the offices were moved, exposing the city hall staff to demolition activities, painting, sheetrocking, etc. Additional construction over the years included the tearing down of walls, gluing of paneling, and staining of doors. The claimant was exposed to all of these activities, as she normally spent 42 to 45 hours per week in the building, not including time spent at Board of Aldermen meetings during the evenings. The claimant could also smell pesticides when they were sprayed in the building. The only sources of ventilation in her 8’ by 12’ office were four doors and two windows, one of which held an air conditioner in place and was sealed in the winter months.

The claimant enjoyed fairly good health prior to 1991, although during the late 1980s she began having headaches and feeling nauseous at times in city hall. Those symptoms would always disappear once she left the premises for a few hours. In January of 1991, the claimant became ill enough to keep her out of work for over a week. She consulted Dr. Zaretsky, who prescribed medication. Her condition grew more severe, and the doctor suggested that she stay away from the city hall building. Eventually, her respiratory problems began to occur in other places besides city hall. Dr. Zaretzky referred the claimant to the Yale-New Haven Occupational Disease Center, whose staff opined that the claimant’s symptoms were due to exposure to indoor air pollution. The follow-up report of Dr. Hopkins at the Center indicated that the claimant had asthma, which was presumably secondary to the occupational exposure. Dr. Zaretsky discussed the claimant’s problem with the city’s administrative assistant, who told him that the claimant would not be able to perform her work duties in any other building, and that a transfer to another position was impossible.

The claimant again became ill in September 1991, at which point Dr. Zaretsky ordered her out of the building. She continued to perform work duties from her home for a few months with the permission of the mayor and the administrative assistant. At the time of the formal hearings, Dr. Zaretsky had not released the claimant to return to work. She filed her Form 30C on August 29, 1991, listing upper respiratory difficulties as her injury, and February 1, 1991 as the date of its occurrence. Dr. Zaretsky opined that the claimant had asthma induced by her work conditions, a condition she did not suffer from prior to April, 1991. The commissioner referred the claimant to Dr. Godar, who thought that the claimant was predisposed to develop asthma due to her history of allergies, and that her workplace exposure substantially contributed to her condition. Based on this evidence, the commissioner found that the claimant’s condition resulted from repetitive trauma due to exposure to nonspecific workplace irritants, and that her injury was compensable. The respondent has appealed that decision.

We first address its contention that the claimant did not offer sufficient proof to establish a causal link between her employment and her asthma. In doing so, we must keep in mind that this board hears an appeal on the record of the hearing before the trial commissioner, and does not conduct a de novo hearing of the facts. Six v. Thomas O’Connor & Co., 235 Conn. 790, 798 (1996). The only time this board may disturb a commissioner’s factual findings is when they lack any evidentiary support in the record, or when undisputed material facts have been ignored. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 71, 1859 CRB-5-93-9 (May 12, 1995). Simply put, the power and duty of determining the facts rests on the trier. The conclusions he draws from those facts 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. Id., 798-99, citing Adzima v. UAC/Norden Division, 177 Conn. 107, 117-18 (1979). Where the evidence permits the drawing of diverse inferences, the one chosen by the trial commissioner must be upheld if legally sustainable. Six, supra, 799, citing Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).

Dr. Zaretsky, the claimant’s treating physician, testified that the claimant’s chronic asthmatic condition was triggered by an allergic reaction to various irritants present at her workplace. Claimant’s Exhibit M, p. 48, 76, 129-30. Although he could not pinpoint one substance or a combination of particular substances that sensitized the claimant, he was confident that her condition was precipitated by her exposure at city hall because her symptoms manifested themselves when she was there. He reported observing her runny nose, itchy eyes, coughing and wheezing on several visits she made to his office directly after she had left city hall. Id., 49-50. Thus, he made the connection between her workplace and her symptoms, and believed it important that the claimant not return to city hall, lest she suffer an even more severe allergic asthma attack. Id., 133.

The respondent argues that Dr. Zaretsky’s medical opinions were unfounded because they were based on misinformation in the history the claimant provided Dr. Zaretsky. The doctor stated that he had seen the claimant exhibit symptoms of her condition on two occasions immediately after she left work: April 29, 1991, and September 19, 1991. The respondent argues, however, that overwhelming evidence indicates that the claimant was not at work on those dates. Without that connection, the respondent contends that Dr. Zaretzky’s opinion has no factual basis, as there would no longer be a close temporal proximity between the aforementioned asthmatic symptoms and any presumed exposure to allergens at the claimant’s workplace.

The “overwhelming evidence” cited by the respondent consists of time cards from April and September of 1991 that fail to show the claimant worked on either of the dates in question. (Respondent’s Exhibit 1). Specific attention was paid to the September 19, 1991 date while the claimant was testifying at the formal hearing. April 6, 1993 Transcript, pp. 63-68. She had only been working on Tuesdays and Thursdays during the several weeks leading up to that date, and believed that the date she last worked was the last Tuesday of the month, which happened to be the 24th. Id., 64. She thought that was the day because she remembered returning to city hall for a meeting of the Board of Aldermen finance committee, who regularly met on the last Tuesday of every month, on the date she was ordered out of the building. Id., 67. The time cards indicate that she neither worked that week nor the two weeks before, however, which the respondent cites as evidence that her statements were incorrect. The commissioner did not cite that discrepancy in the Finding and Award, and denied the respondent’s requested correction stating that the claimant had not worked at city hall since September 5, 1991.

We find no error in the commissioner’s refusal to rely on the time cards to dispute the claimant’s version of the facts and, in turn, the credibility of Dr. Zaretsky’s opinion. The time cards through September 7, 1991 were signed by the claimant’s supervisor, whose signature she identified at the formal hearing. Id., p. 66. However, all of the time cards for weeks between September 10, 1991 and January 24, 1992 were filled out and signed by a different person whose signature the claimant could not identify. Each of those time cards was simply marked “sick.” No one was brought in to authenticate the accuracy of those time cards, or the accompanying attendance record. Respondent’s Exhibit 3. Thus, their accuracy could reasonably be questioned.

Furthermore, Dr. Zaretsky’s records indicated that the claimant was examined on September 19, 1991, which was a Thursday. It would have been relatively consistent with the claimant’s testimony for the commissioner to conclude that the claimant in fact went to work on Thursday, September 19, and thereafter went to see Dr. Zaretsky. The doctor testified that he spoke to the claimant’s supervisor on Monday, September 23, 1991, and after speaking with him, advised the claimant to stay home from work pending studies on possible environmental allergens that her supervisor was going to request. Claimant’s Exhibit M, p. 123. Assuming the claimant found out the next day that Dr. Zaretsky was ordering her out of the building, and then went back for the meeting that night to “tie up loose ends,” the error in her testimony would have been small. Our point is that the commissioner twice declined to rely on the time cards, and it was his job to weigh their credibility as evidence—not ours. See Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995).

The respondent also argues that the claimant’s failure to submit the report of an inspection of the city hall building should be held against her under the rule of Secondino v. U.S. Gas Company, 147 Conn. 672 (1960). The Secondino rule allows a fact-finder to draw an adverse inference from a party’s failure to call a witness if the party seeking the adverse inference shows (1) that the witness is available and (2) that the other party would naturally produce that witness based on his or her superior or peculiar information material to the case. Id., 675; Barksdale v. Harris, 30 Conn. App. 754, 762-63 (1993). This issue generally arises in cases where jury instructions are at issue, however. When a trial commissioner is acting as the fact-finder, the situation is different because no jury instructions are available for an appellate body to review. Nowhere in our law does it say an adverse inference is ever required in a given situation; thus, if the trier declines to draw an adverse inference from the absence of a particular witness, it would likely not be discussed in the written decision.

In this case, the missing “witness” is the written report of a September , 1992 examination of city hall by Mystic Air Quality Consultants. The issue was raised at the December 16, 1994 formal hearing, where the commissioner ruled that the respondent should have moved for the admission of the report at one of the many hearings that had been held earlier, for the record had now been closed with the exception of Dr. Godar’s report. Transcript, p. 6-8. Also, neither Dr. Zaretsky nor Dr. Godar appeared to believe that such a report would significantly help them analyze the cause of the claimant’s condition, as an environmental test revealing no apparent problem would not rule out work exposure to allergens that are present only at certain times, or harmful exposure to sub-toxic levels of pollutants. Claimant’s Exhibit M, p. 138-39; Claimant’s Exhibit T, pp. 49-50, 76. We thus hold that the Secondino adverse inference rule does not apply to the claimant’s failure to introduce the Mystic Air Quality Consultants’ report.

We have often noted the increased importance of expert medical opinions regarding the causal relationship between employment and injury in cases where the etiology of a condition is difficult to identify. Mulroy v. Becton Dickinson, 2295 CRB-8-95-2 (decided Oct. 2, 1996), citing Murchison v. Skinner Precision Industries, 162 Conn. 142, 151-52 (1972). The trial commissioner is the sole judge of the credibility of such opinions. Mulroy, supra; Webb, supra. Both Dr. Zaretsky and Dr. Godar concluded that the claimant had been exposed to allergens at her workplace that materially contributed to the development of her asthma. The fact that the claimant’s own statements played an important part in the development of those diagnoses does not somehow render those opinions legally unreliable; doctors frequently rely on their patients’ descriptions of past symptoms in diagnosing ailments. See, e.g., Colello v. Dresser Industries, 13 Conn. Workers’ Comp. Rev. Op. 14, 15, 1691 CRB-4-93-4 (Nov. 3, 1994). The commissioner found the medical opinions to be credible, and as such, they offer sufficient support to establish that workplace exposure to allergens was a cause of the claimant’s condition.

Taking this into account, the respondent argues that the claimant still has not suffered a compensable injury. According to the respondent, the commissioner improperly “fused” the definitions of repetitive trauma and occupational disease under the Workers’ Compensation Act, and improperly found that the claimant had suffered a repetitive trauma injury. We disagree. Despite the respondent’s arguments to the contrary, an asthmatic condition does not have to satisfy the definition of “occupational disease” to be compensable.

In Crochiere v. Board of Education, 227 Conn. 333 (1993), our Supreme Court concluded that a mental stress injury qualified as repetitive trauma because it resulted from repeated exposure to allegations of sexual misconduct during the claimant’s employment. Id., 353. The injury did not satisfy the definition of occupational disease because it was no more distinctively associated with his job as a music teacher than it would be with any other profession. Implicit in this holding, however, was the notion that the claimant’s injury could have satisfied both definitions, or neither definition, for that matter. The question is simply whether a given condition satisfies the definition of “repetitive trauma” or “occupational disease,” without regard to delineating some sort of separation between those two categories of injury. See also Codding v. Colchester Egg Farms, Inc., 11 Conn. Workers’ Comp. Rev. Op. 4, 1232 CRD-2-91-5 (Feb. 4, 1993) (claimant’s exposure to chicken products resulted in hypersensitivity reaction that was “in effect a response to accumulated trauma”); Riccitelli v. New Haven, 2090 CRB-3-94-7 (decided Jan. 18, 1996) (one-year statute of limitations applied to hypertension claim, as no evidence was produced that it was an occupational disease).

Here, the medical testimony indicated that the claimant became sensitized to certain unspecified allergens because of repeated exposure at her workplace. This falls directly within the parameters of the definition of “repetitive trauma.” There is also no question that the claimant filed a timely Form 30C regardless of whether her condition was labeled an occupational disease or a repetitive trauma injury. The commissioner’s statement that the claimant filed her claim within one year of “the manifestation of the symptoms of her illness” is thus of little consequence, as he noted that it was filed before her last date of employment. See Borent v. State, 33 Conn. App. 495, 499 (1994) (notice period begins to run on last date of exposure, which is usually last date of employment). Above all, the Workers’ Compensation Act was enacted for remedial and humanitarian reasons. Epps v. Beiersdorf, Inc., 41 Conn. App. 430, 433 (1996). It would contradict these purposes to exclude from compensation an injury that a commissioner found to be both timely claimed and causally related to the claimant’s employment.

The trial commissioner’s decision is affirmed.

Commissioner Robin L. Wilson concurs.

JESSE M. FRANKL, CHAIRMAN, DISSENTING. I respectfully dissent from the majority’s opinion. As I read the trial commissioner’s findings I note that he concludes that the claimant’s asthma is a result of “repetitive trauma” and exposure to irritants in the workplace. I do not believe that the factual findings legally support the trier’s conclusion. Firstly, I note in paragraph 32 of the Finding and Award, the trial commissioner finds that the claimant had reactions to perfume when attending the theater, diesel fumes and newly constructed hotel rooms when on vacation. Secondly, the trial commissioner’s findings refer to the renovation activities of the employer over an unspecified period of years (paragraph 13); the claimant’s recollection that in the late 1980’s she experienced headaches and nausea while on the employer’s premises and upon leaving the building noticed relief (paragraph 27); and the good health of the claimant prior to 1991, when she routinely built up sick time (paragraph 23). I believe that these factual findings are inconsistent in relation to each other. Additionally, I believe the trier’s findings are inconsistent with the evidence upon which he relies.

I also believe that the medical reports and testimony of Dr. Zaretzky and Dr. Godar are inconsistent with their own conclusions and predicated on an inaccurate history provided, in part, by the claimant. For instance, I note that Dr. Zaretzky, the claimant’s treating physician, bases some of his conclusions on his observation of the claimant directly after her departure from the employer’s premises, e.g., Sept. 19, 1991. However, the attendance records of the respondent indicate that the last day claimant worked in the employer’s premises was Sept. 5, 1991. (See Respondent’s Exhibit 1 and Deposition of Dr. Joel Zaretzky p. 57). Additionally, the claimant alleges, and the commissioner found, that she enjoyed good health prior to 1991. However, Dr. Zaretzky clearly states that the claimant had a history of viral infections and upper respiratory problems since 1987. See Deposition of Dr. Joel Zaretzky pp. 8-31. Clearly, as the respondent points out in its motion to correct, the expert opinion of Dr. Zaretzky is based on an inaccurate history of the claimant’s symptoms and occurrences. Therefore, as the foundation for Dr. Zaretzky’s opinion is faulty, the opinion as to causation which follows is also flawed.

Further compounding the error is that the claimant’s history and symptomatology as reported by the claimant to Dr. Zaretzky was also communicated to the independent medical examiner, Dr. Thomas Godar. As the medical history upon which Dr. Godar relies is tainted, his conclusion is also legally insufficient and cannot support the causal relationship between the claimant’s asthma and workplace exposure. Given that the conclusion of the trial commissioner is based on these experts’ medical opinions, the trier’s conclusion cannot stand. I would therefore reverse.

More simply stated, Dr. Zaretzky opines that the claimant worked in an environment which contained irritants, and claimant’s exposure to those workplace irritants resulted in her development of asthma. Much of the basis of Dr. Zaretzky’s conclusion lies in his belief that the claimant exhibited asthmatic symptomatology while working in City Hall, but improved once she stopped working in City Hall. On September 19, 1991, Dr. Zaretzky claims to have examined the claimant and noted the presence of wheezing. Deposition of Dr. Joel Zaretzky, Session II p. 123 (Claimant’s Exhibit M). Yet, time and attendance records indicate that the claimant last worked in City Hall on Sept. 5, 1991. (See Respondent’s Exhibit 1). Thus, following the logic of Dr. Zaletzky, if the claimant was not exposed to City Hall’s environs for two weeks prior to his examination of her, it would seem that Dr. Zaretzky should have noted, and the claimant should have reported, an alleviation of symptoms.

Additionally, Dr. Godar testified that irritants which may have triggered the claimant’s asthma are such things as general dust, carpet cleaner, insecticides and pesticides, mold, cigarette smoke, strong perfumes, and volatile agents. Dr. Godar conceded that these irritants are present in the ordinary course of life. See Deposition of Dr. Thomas Godar of November 8, 1994 pp. 68-69, 89-90 (Claimant’s Exhibit T). I have to agree with Dr. Godar on this particular point, as I am one who also suffers from asthma, the etiology of which is unknown. Furthermore, there is testimony from Dr. Zaretzky that he treated the claimant’s asthma symptoms in December, 1992 and February, 1993, and it was his recollection that these consultations were prompted by the claimant’s exposure to perfume and paints, during a trip. See Deposition of Dr. Joel Zaretzky p. 67 and 69 (Claimant’s Exhibit M). Thus, I do not believe that the doctors can opine within a reasonable degree of medical certainty that the claimant’s asthma was the result of exposure to such offending agents present at work when, as Dr. Godar testified, and the general populace knows, such irritants are commonplace in everyday life.

For all of the above reasons, I do not believe that the claimant carried her burden of proof as to the workplace exposure being a substantial factor in producing the claimant’s asthma, and I would therefore reverse the trial commissioner’s Finding and Award.

1 The claimant’s counsel also filed an April 3, 1996 Motion to Disqualify Chairman Frankl from considering this appeal on the ground that the law firm representing the claimant has had repeated conflicts with the Chairman on a different case. The Chairman denied that motion on April 12, 1996. Although the denial of that motion was not mentioned in the claimant’s brief, we note that the Chairman stated at oral argument that he did not know the claimant, and had no bias against her or this case. Without further discussion, we simply note that his denial of the claimant’s motion was well within the bounds of our case law regarding recusal and disqualification. See Hartford Federal Savings & Loan v. Tucker, 192 Conn. 1, 7-8 (1984); Costa v. United Nuclear Corp., 2296 CRB-2-95-1 (decided Nov. 20, 1996). BACK TO TEXT

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