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O’Reilly v. General Dynamics Corp./Electric Boat Division

CASE NO. 3339 CRB-2-96-5

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

DECEMBER 5, 1997

ANNIE O’REILLY, dependent Spouse of MICHAEL O’REILLY

CLAIMANT-APPELLEE

v.

GENERAL DYNAMICS CORP./ELECTRIC BOAT DIVISION

EMPLOYER

and

CIGNA

INSURER

and

AETNA LIFE & CASUALTY

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

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

The respondents were represented by Michael McAuliffe, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.

This Petition for Review from the undated Finding and Award of the Commissioner acting for the Second District was heard February 28, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the undated1 Finding and Award of the Commissioner acting for the Second District. They argue on appeal that the trier erred in finding that asbestos exposure caused the claimant to develop cancer, and that he erred in awarding the claimant benefits because he was retired at the time he became disabled. We agree with the respondents on their first claim of error, and reverse the trial commissioner’s decision.

The trier found that the claimant was employed by Electric Boat almost continuously from 1958 to 1980 as a welder and inspector. He died on July 12, 1989, and is survived by his wife of 43 years. The surviving spouse (who is seeking benefits) testified that her husband often told her that he was exposed to asbestos at work, and that he came home with asbestos dust on his overalls many times. A former co-worker of the claimant testified that the claimant worked in areas where asbestos particles were floating in the air, and that he often inspected the work of welders who used asbestos blankets. He retired from work in 1980 after suffering a disabling injury to his knee.

The commissioner found that the claimant began experiencing shortness of breath in May 1989, and was admitted to the hospital on the twelfth of that month. The claimant gave a history of longtime asbestos exposure at work and extensive cigarette smoking. He was treated by Dr. Sullivan and Dr. Keltner, who diagnosed lung cancer with metastases to the left femur, congestive heart failure, and chronic obstructive pulmonary disease. He was readmitted to the hospital on June 28, 1989 for a fractured left femur. The effects of his lung cancer progressed rapidly, and he died on July 12, 1989.

Dr. Clayton, the pathologist who performed an autopsy on the claimant, reported that the claimant’s lungs showed adhesions and pulmonary fibrosis. He also noted the presence of ferruginous bodies. Dr. Keltner testified that there is a strong association between heavy smoking and lung cancer, as well as between asbestos exposure and the presence of ferruginous bodies in the lungs. He opined that the claimant’s asbestos exposure at work was a significant contributing factor to the development of the claimant’s lung cancer, even though he did not find actual asbestos bodies in the lungs. He described a synergistic effect between smoking and asbestos exposure that increases a person’s likelihood of developing lung cancer. The trier noted that, given this effect, Dr. Keltner felt that it was more likely than not that the claimant’s asbestos exposure played an important role in the development of his lung cancer.

Dr. Pasquale, a hematologist and oncologist, testified that there was not enough evidence of asbestosis or asbestos particles in the lungs to justify the conclusion that asbestos exposure caused the claimant’s lung cancer. However, he did discuss the general principle of the synergistic effect that Dr. Keltner had talked about. The commissioner accepted the synergistic relationship that the combination of smoking and asbestos exposure had on lung cancer, and found that all of the conditions had been present in the claimant that Dr. Keltner had said were necessary to deduce the existence of asbestos-caused lung cancer. He concluded that the claimant’s surviving spouse was entitled to compensation benefits, and ordered the respondents to pay them at a rate of $216.34 per week. The respondents have appealed that decision.

“As we have often stated, the power and duty of determining the facts rests on the commissioner, who is the trier of fact. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988), citing Czeplicki v. Fafnir Bearing Co., 137 Conn. 454, 457 (1951). This 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. . . . On review, the commissioner’s conclusions 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. Fair, supra, 539. . . . This Board will not retry the facts or hear evidence on review. Id. The commissioner’s findings can be changed only if they contain facts found without evidence or fail to include material facts which are admitted and undisputed.” Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995).

Although this board does not engage in fact-finding on review, in a case like this, there must be adequate medical evidence in the record to establish a causal relationship between the claimant’s exposure to asbestos at work and his development of lung cancer. See Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151 (1972). Expert opinions must be based on reasonable probabilities instead of speculation or conjecture if they are to be admissible in establishing causation. Struckman v. Burns, 205 Conn. 542, 554-55 (1987). The specific use of the words “reasonable degree of medical probability” is not required; rather, the substance of the entire testimony must rise to that level in the doctor’s opinion. Struckman, supra, 555; Webb, supra, 72.

The determinative question on this issue is straightforward: is the testimony of Dr. Keltner sufficient to support a finding of compensability in this case? If it does, the commissioner’s findings on that issue must stand. The evidence certainly supports findings that the claimant was exposed to asbestos, and that ferruginous bodies (asbestos fibers) were found in his lungs, which are a “hallmark” of asbestos exposure. Deposition of Dr. Keltner, p. 9. The claimant also had scarred lung tissue that could have been asbestos-caused. Id.

After discussing the claimant’s smoking history, which was “most definitely” a significant factor in his development of lung cancer; Id., 10; Dr. Keltner said that “it has been shown repetitively that patients who both smoke cigarettes and have had exposure to asbestos the risk of development of cancer in this setting is, in fact, multiplicative rather than additive.” Id., 11-12. In other words, there is a “synergistic” effect between the two. The claimant’s attorney then asked Dr. Keltner, “given the fact that Mr. O’Reilly was both exposed to asbestos and was a cigarette smoker could you give me an opinion whether . . . his asbestos exposure was a significant contributing factor in the development of his lung cancer?” The doctor responded, “I believe that it is quite significant, yes.” Id., 12.

On cross-examination, however, Dr. Keltner made it clear that there was no way from the type of cancer the claimant had that one could determine exactly which carcinogen or combination thereof caused the claimant’s cancer. Id., 18, 20. He then stated there are “many, many different problems and diseases that can result in pulmonary interstitial fibrosis . . . it is a nonspecific diagnosis in terms of just what the etiology would be.” Id., 22. The doctor had previously stated in a report that “it is my medical opinion that the patient’s exposure to asbestos could have played a significant contributory role in the development of . . . lung cancer.” Id. (emphasis added). When asked to clarify the meaning of “could,” he said “it is possible. Saying probable is getting a little too strong.” Id., 23.

The claimant’s attorney then reexamined the witness. After clarifying that it was probable that cigarette smoking played a part in the claimant’s developing lung cancer, he asked the doctor if, given the general synergistic effect between asbestos exposure and cigarette smoking, it was also probable that the claimant’s asbestos exposure contributed to the development of lung cancer in this case. Id., 24. The doctor replied that “I would say it is more likely than not, but, as I said before, it is—there is no way to really quantitate this any more than just, just taking a well-educated rough guess.” Id., 25.

This is a difficult situation. The doctor here was unable to state with much confidence that the claimant’s asbestos exposure was clearly linked to his lung cancer, even though he felt strongly that there were traces of asbestos present in the claimant’s lungs. Because of the claimant’s history of smoking, he could not pinpoint the exact cause of the lung cancer that ultimately took the claimant’s life. He was relying instead on the general synergistic effect of asbestos exposure and smoking toward lung cancer when he drew connections between the claimant’s cancer and his workplace exposure to asbestos. Also, although the doctor testified that asbestosis and lung cancer are not mutually inclusive conditions; Id., 17; he was unable to find any evidence of asbestosis via the presence of pleural plaques and calcifications or scarring beyond nonspecific fibrosis. Id., 15-16. Thus, there is no definitive opinion that asbestos exposure had any serious effect on the condition of the claimant’s lungs.

Taken as a whole, we do not believe that Dr. Keltner’s testimony ever reaches the level of diagnostic certainty necessary to qualify his opinion as being within a reasonable degree of medical probability. He never got beyond the notion that he was ultimately just guessing as to the cause of the lung cancer based on a theory of synergistic effect between asbestos exposure and smoking. Even if one credits everything Dr. Keltner said, he simply couldn’t make a definitive enough connection between the asbestos exposure and the lung cancer to provide sufficient legal support for the existence of a compensable injury. Therefore, we must uphold the respondents’ appeal, without reaching the issue of the claimant’s retirement prior to becoming disabled.

The trial commissioner’s decision is reversed.

Commissioners James J. Metro and John A. Mastropietro concur.

1 The undated Finding and Award was apparently postmarked May 10, 1996. An identical Corrected Finding and Award dated May 17, 1996 was sent out on May 29, 1996. The absence of a date on the original award is not relevant to the contested issues in this case. BACK TO TEXT

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