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Burke v. Walmart Stores, Inc.

CASE NO. 4037 CRB-02-99-04

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JULY 11, 2000

ELIZABETH BURKE

CLAIMANT-APPELLEE

v.

WALMART STORES, INC.

EMPLOYER

and

CLAIMS MANAGEMENT, INC.

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Michael P. Carey, Esq., Brown, Jacobson, Tillinghast, Lahan & King, 22 Courthouse Square, P.O. Box 391, Norwich, CT 06360.

The respondents were represented by James Baldwin, Esq., Coles, Baldwin & Craft, L.L.C., 1261 Post Road, Fairfield, CT 06430.

This Petition for Review from the April 14, 1999 Finding and Award of the Commissioner acting for the Second District was heard January 21, 2000 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and CommissionersRobin L. Wilson and Leonard S. Paoletta.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the April 14, 1999 Finding and Award of the Commissioner acting for the Second District. In that decision, the trial commissioner found that the claimant sustained a compensable accidental injury on November 16, 1994 when she was exposed to pine and other materials which caused permanent reactive airways disease/asthma. In support of their appeal, the respondents contend that the claimant’s asthmatic condition, in order to be compensable, must meet the definition of an occupational disease. We find no error.

The trial commissioner found the following relevant facts. On November 16, 1994, the claimant was employed as a cashier for the respondent employer. On that day, she was unloading “cemetery boxes” which were made of tree log material and contained pine tree branches, poinsettias, and other things, and were sprayed with an artificial snow material. The claimant was unloading these cemetery boxes for approximately one half hour, during which time the branches scraped her forearms. The claimant developed a rash on her arms, hives and welts appeared on her face and chest, and she had increasing difficulty breathing. A co-employee took the claimant to the emergency room. At the hospital, she continued having difficulty breathing, and “had a feeling of having a heavy weight on her chest and trying to but not being able to force air into her lungs.” (Finding ¶ 15). Also, for the first time in her life the claimant experienced wheezing.

Prior to being discharged from the hospital, the claimant was prescribed Benadryl and an inhaler, and was advised to go to a private specialist. The claimant went to a lung specialist, Dr. Kamireddy, who is board certified in pulmonary medicine and critical care medicine. The claimant returned to work where she continued to be exposed to the cemetery boxes. Subsequently, the claimant was twice admitted to the emergency room, and her symptoms persisted to the point that she was admitted for a lengthy stay at the hospital on January 23, 1995.

Dr. Kamireddy, the claimant’s treating physician, opined that as a result of the exposure to the cemetery boxes at work on November 16, 1994, the claimant developed permanent reactive airways disease/asthma. At the request of the respondents, an independent medical examination was performed by Dr. Godar. Dr. Godar prepared a lengthy report in which he concluded that the claimant’s exposure to “Christmas trees” on November 16, 1994 “was within a reasonable degree of medical probability, the substantial causative factor in her developing permanent reactive airways disease/asthma as an adult.” (Finding ¶ 30, citing Exh. G). In a deposition, Dr. Godar explained that the claimant’s asthma resulted from her exposure to the pine material at work on November 16, 1994. He testified that the claimant had an attack in reaction to a specified agent that she was handling at work, and that the attack induced asthma. The trial commissioner concluded that the claimant sustained an accidental injury- permanent reactive airways disease/asthma- while at work on November 16, 1994.

The determination of whether an injury arose out of and in the course of the employment requires a factual determination by the trial commissioner. O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 816 (1999); McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 117 (1987). “In reviewing the factual determinations of the commissioner, the review [board’s] scope of review is limited. The review [board] may not disturb the conclusions that the commissioner draws from the facts found unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Ferrara v. Hospital of St. Raphael, 54 Conn. App. 345, 351 (1999) (citations omitted). The trial commissioner’s conclusion is entitled to the same deference as that of a trial judge or a jury on the issue of proximate cause. Rogers v. Laidlaw Transit, 45 Conn. App. 204, 206 (1997).

In support of their appeal, the respondents argue that in order to be compensable, the claimant’s asthmatic condition had to satisfy the definition of an “occupational disease” under § 31-275(15). We disagree. In Evans v. Shelton, 16 Conn. Workers’ Comp. Rev. Op. 155, 3108 CRB-4-95-6 (May 2, 1997), dismissed for lack of a final judgment, A.C. 17196 (1/14/98), we held that “an asthmatic condition does not have to satisfy the definition of ‘occupational disease’ to be compensable.” Id. at 161. We explained in Evans, supra, that a condition such as asthma or mental stress may satisfy the definition of “occupational disease” or “repetitive trauma” without “delineating some sort of separation between those two categories of injury.” Id. This analysis applies equally to the case at hand, where the claimant’s asthma was found to satisfy the definition of “accidental injury” under § 31-275(16)(A) as it was “definitely located as to the time when and the place where the injury occurred.” Indeed, we explained in Evans, supra, as follows:

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.
Evans, supra, at 161.

The respondents’ reliance on Hansen v. Gordon, 221 Conn. 29 (1992), is misplaced, as that decision dealt only with the claim that the claimant’s hepatitis constituted an occupational disease. In Hansen, the claimant contended that her exposure to the hepatitis virus was caused by her work as a dental hygienist, but there was no allegation of a specific incident, locatable as to time and place, which caused her to contract the disease. Thus, the court examined the requirements of an occupational disease in the context of proving causation. The court explained:

…the requirement that the disease be “peculiar to the occupation” and “in excess of the ordinary hazards of 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. at 35.

Recently, in Francis v. State of Connecticut/Connecticut Valley Hospital, 56 Conn. App. 90 (1999), the Appellate Court held that the claimant sustained a compensable, accidental injury on February 10, 1987 when the claimant was exposed to chemicals at work. On that date, the claimant “left work complaining of a severe cough, hoarseness, wheezing, a burning sensation in her throat and eyes, nausea and shortness of breath.” Id. at 91. The court noted that the “commissioner made findings that indicated that the plaintiff suffered an accidental injury and not an occupational disease. The board, however, inferred from the factual findings of the commissioner that the plaintiff’s injury may have resulted from repetitive trauma. Because the statute of limitations period in the present case would be the same for a repetitive trauma injury or an accidental injury, we need not decide whether the plaintiff suffered repetitive trauma….” Id. at 93, fn. 2.

In the instant case, the trial commissioner’s conclusion that the claimant sustained an accidental injury while at work on November 16, 1994 is fully supported by the record. Both the claimant’s treating physician and the independent medical examiner provided opinions which support the trial commissioner’s conclusion that the claimant sustained permanent reactive airways disease/asthma as a result of the November 16, 1994 exposure. Accordingly, we affirm that decision.

Finally, we will address the respondents’ contention on appeal that the trial commissioner erred in denying paragraph eight of their Motion to Correct. The respondents sought to add to the findings that subsequent to November 16, 1994, the claimant suffered numerous allergic reactions and asthma attacks, including hospitalization for an asthma attack which occurred while working for another employer where she was exposed to pine material. The trial commissioner denied this request, noting that the respondents sought to add information from the claimant’s deposition, which had not been admitted into evidence.

The respondents argue that in fact the deposition was admitted into evidence as it was entered as part of the documents which were reviewed by Dr. Godar along with his deposition, which was marked as Respondents’ Exh. 3. We need not determine whether the claimant’s deposition was entered into evidence, however, because the respondents’ proposed correction is immaterial to the case at hand. Specifically, the respondents’ proposed correction addresses the claimant’s condition subsequent to her injury, while the only issue at the formal hearing was the compensability of the claimant’s injury. As the medical evidence amply supports the trial commissioner’s conclusion that the claimant sustained a compensable injury, the claimant’s subsequent condition is not material, and thus we find no error in the denial of the Motion to Correct. See Fusco v. J.C. Penney Company, 1952 CRB-4-94-1 (March 20, 1997) (a Motion To Correct may be denied where the corrections are immaterial because the outcome of the case would not be altered by the substituted findings).

The trial commissioner’s decision is affirmed.

Commissioners Robin L. Wilson and Leonard S. Paoletta concur.

Workers’ Compensation Commission

Page last revised: January 4, 2005

Page URL: http://wcc.state.ct.us/crb/2000/4037crb.htm

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