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Pekar v. Warnaco, Inc., Warner’s Div.

CASE NO. 3611 CRB-04-97-05

CASE NO. 3721 CRB-04-97-10

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

OCTOBER 16, 1998

MICHAEL PEKAR, JR.

CLAIMANT-APPELLEE

v.

WARNACO, INC., WARNER’S DIV.

EMPLOYER

and

RISK ENTERPRISE MANAGEMENT

INSURER

RESPONDENTS-APPELLANTS

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Robert Carter, Esq., Carter & Civitello, Woodbridge Office Park, One Bradley Road, Suite 301, Woodbridge, CT 06525.

The respondents were represented by James L. Pomeranz, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033-4412.

The Second Injury Fund was represented by Richard Hine, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.

These Petitions for Review from the May 7, 1997 Finding and Award and the October 17, 1997 Order for Payment Pursuant to C.G.S. Section 31-301(f) of the Commissioner acting for the Fourth District were heard April 24, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Donald H. Doyle, Jr., and Michael S. Miles

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from two decisions by the Commissioner acting for the Fourth District: the May 7, 1997 Finding and Award, and the October 17, 1997 Order for Payment Pursuant to C.G.S. Section 31-301(f).1 They argue on appeal that the trial commissioner erred by finding that the claimant’s contraction of cryptococcal meningitis was caused by exposure to pigeon droppings during the course of his employment, and by failing to specify whether that malady constituted an accidental injury or an occupational disease for purposes of § 31-294c. We affirm the trial commissioner’s decision in part, and reverse in part with direction that this case be remanded for further proceedings.

The findings reflect that the claimant was employed as the Director of Facilities at the respondent Warnaco until July 15, 1996, when he was laid off. His job was to oversee the mechanical operation of several different plants, including facilities in other countries. He was routinely required to inspect rooftop mechanical apparatus at buildings in Stratford and Bridgeport, along with machines inside and outside those facilities. The claimant was often exposed to areas contaminated with pigeon feces while performing these inspections, and while supervising the periodic removal of these bird droppings. In January 1995, while he was overseeing construction at manufacturing plants in Costa Rica and the Dominican Republic, the claimant became ill, suffering severe headaches and cognitive dysfunction. He was hospitalized and diagnosed with cryptococcal meningitis, an uncommon brain infection that has left him with significant permanent partial disabilities to his brain, his ability to speak, and the left side of his body.

Two of the claimant’s co-workers confirmed his testimony that, both inside and outside the company buildings, there were bird droppings with which the claimant came into frequent contact. Neither knew of anyone else who had become ill because of exposure to this avian waste. Basil Bocynesky, an industrial hygiene and safety expert, testified that he did not believe that there were any conditions concerning bird droppings at the Bridgeport or Stratford plants that posed a safety hazard to employees, although he did acknowledge observing such droppings on the work site. The trial commissioner specifically noted that photographs presented into evidence displayed bird feces in various places on the plant sites. She also noted that Bocynesky did not visit the interior of certain buildings, nor had he been informed that a roof had been built over the courtyard shortly before he visited in 1996. There was no set clean-up program for bird droppings at the Warnaco facilities.

The trier cited the testimony and reports of four doctors. Dr. Quagliarello, who treated the claimant while he was an inpatient at Yale-New Haven Hospital, stated that the most likely source of the claimant’s exposure to cryptococcus fungi was the bird droppings he encountered during his employment. Dr. Sena, a neurologist, also opined that it was reasonably probable that the claimant acquired the cryptococcal infection from his job duties. Dr. Hoffman, who reviewed the claimant’s medical records at the respondents’ request, was of the opinion that the cryptococcus fungus is an infectious disease that is ubiquitous in the environment, and did not think that the claimant’s employment substantially contributed to his contraction of it. He noted that this malady generally arises among individuals with suppressed immunity to disease, such as AIDS patients. Dr. Sugar, an infectious disease specialist, examined the claimant at the respondents’ request, and opined that the cryptococcus fungus could have been present anywhere the claimant went. He could not pinpoint one location that would create a higher or lower risk of exposure to the disease for a normal active person, as the cryptococcal organism must be aerosolized and inhaled in order to infiltrate the body.

The trial commissioner found that the claimant was significantly exposed to pigeon droppings during his employment with Warnaco, and that this contact with bird excrement could have been the location where the fungus was aerosolized into his body. She decided that the cryptococcal meningitis and its neurological and motor sequelae arose out of and in the course of the claimant’s employment, specifically finding the diagnosis of Dr. Quagliarello credible, and noting that the respondents’ doctors could not pinpoint the place where the infection came from. The trier also found that the claimant’s medical records indicated that he did not have a compromised immunological system, and, based on Dr. Hoffman’s testimony, only a very small percentage of healthy people become ill from fungi, including cryptococcal fungi. The trier enumerated the claimant’s serious physical impairments that resulted from this case of meningitis, and ordered the respondents to pay benefits accordingly. The respondents have appealed that decision.

We first address the respondents’ argument that the trial commissioner failed to specify the legal nature of the claimant’s injury for the purpose of § 31-294c(a). Under that statute, there are two separate time periods within which a notice of claim may be filed: one year from the date of an accidental injury, or three years from the first manifestation of a symptom of an occupational disease. Discuillo v. Stone & Webster, 242 Conn. 570, 575-78 (Court also explained that repetitive trauma injury may fall into either category). This Commission has no jurisdiction over claims that have not been filed in a timely fashion. Crochiere v. Board of Education, 227 Conn. 333, 346 (1993). In this case, the claimant began suffering symptoms of cryptococcal meningitis sometime in January, 1995. The record indicates that the claimant filed his notice of claim with this Commission on March 28, 1996, based on the date stamped in the lower right-hand corner of the notice. Thus, it would appear to be important whether this claim is categorized as an accidental injury claim or an occupational disease claim, because a claim for the former would be untimely, absent satisfaction of one of the notice exceptions in § 31-294c(c) (a possibility that has not been raised by either party).

The trial commissioner here made no findings regarding the issue of timely notice, including a finding as to the precise date of injury, the date notice was actually filed, or the date notice was due. The latter finding, of course, would require that the injury be characterized as an accident or an occupational disease, which also has not been done in this case. Section 31-275(15) defines “occupational disease” as “any disease peculiar to the occupation in which the employee was engaged and due to causes in excess of the ordinary hazards of employment as such . . . .” Our Supreme Court has explained that such a disease “need not be unique to the occupation of the employee or to the work place; it need merely be ‘so distinctively associated with the employee’s occupation that there is a direct causal connection between the duties of the employment and the disease contracted.’” Hansen v. Gordon, 221 Conn. 29, 35 (1992) (hepatitis contracted by dental hygienist was occupational disease). This would not include a disease which resulted from particular conditions surrounding employment in a kind of work which “would not from its nature be more likely to cause it than would other kinds of employment carried on under the same conditions.” Crochiere, supra, 333-34, quoting Madeo v. I. Dibner & Brother, Inc., 121 Conn. 664, 667 (1936); see also, Discuillo, supra, 579-80; Dorsey v. United Technologies Group, 47 Conn. App. 810 (1998).

Whether or not the claimant’s contraction of cryptococcal meningitis from exposure to bird excrement at the workplace constitutes an occupational disease is essentially a factual question that the trial commissioner must answer. This board is not empowered to make factual findings on review. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). As such, we must remand this matter to the Fourth District for further proceedings on the issue of the proper characterization of the claimant’s injury and the relevant dates surrounding notice under § 31-294c.

The issue of causation need not be readdressed on remand, however, as we do not believe the trial commissioner erred in finding that the claimant’s meningitis was caused by his workplace exposure to pigeon droppings. The respondents essentially argue that the commissioner could not have reasonably relied on the opinions of Drs. Quagliarello and Sena as the basis for finding a causal connection between the claimant’s disease and his employment. As we have stated many times before, it is the duty of the trial commissioner to scrutinize the documentary and testimonial evidence presented by both parties and to decide which is the most credible. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995); Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (Jan. 24, 1997). This board may not retry the facts upon review, and cannot change the commissioner’s findings unless they have been found without evidence, or fail to include undisputed material facts. Kish v. Nursing Home & Care, Inc., 47 Conn. App. 620, 627 (1998). The commissioner’s legal conclusions also must stand unless they are the product of an incorrect application of the law to the facts found, or an inference illegally or unreasonably drawn from them. Id., 623.

Dr. Sena’s report of October 17, 1996 states that it is “reasonably probable” that the claimant acquired the cryptococcus infection in his line of work. Claimant’s Exhibit E. There is no reason why the commissioner could not have relied upon that report, as it specifically diagnoses causation within a reasonable degree of medical probability. See Struckman v. Burns, 205 Conn. 542, 554-55 (1987). The fact that the trial commissioner did not specifically state in her findings that she was relying on Dr. Sena’s opinion does not remove the substance of this report from the foundation of her decision. See Keenan v. Union Camp Corp., 49 Conn. App. 280, 285-86 (1998) (commissioner is not required to enumerate every piece of credible evidence that contributes to her ruling). Likewise, Dr. Quagilarello’s April 18, 1996 report (Claimant’s Exhibit D) is not legally insufficient because it states that the claimant’s occupational setting “appears to be the most likely source of his cryptococcal infection.” This board would be guilty of retrying the facts if it were to make its own interpretation of the sufficiency of a physician’s use of the phrase “most likely” in establishing a causal nexus between injury and employment. See Keenan, supra; Rogers v. Laidlaw Transit, 45 Conn. App. 204 (1997). There is adequate medical evidence in the record to support the commissioner’s conclusion that the claimant’s contraction of cryptococcal meningitis arose out of and in the course of his employment, and that portion of the trier’s decision must stand. Fair, supra.

Accordingly, the trial commissioner’s decision is affirmed in part and reversed in part. Further proceedings regarding the issue of timely notice must be held upon remand to the Fourth District, as discussed above.

Commissioners Donald H. Doyle, Jr., and Michael S. Miles concur.

1 At oral argument, the respondents stated that, in accordance with the Supreme Court decision in Coley v. Camden Associates, 243 Conn. 311 (1997), they have begun paying the claimant’s benefits pending appeal, and requested that their petition for review from the October 17, 1997 Order for Payment Pursuant to C.G.S. Section 31-301(f) be withdrawn. As that issue has indeed been settled by Coley in favor of the Second Injury Fund, we need not discuss this appeal any further. We will limit our attention to the appeal from the May 7, 1997 Finding and Award. BACK TO TEXT

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