State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Mulroy v. Becton Dickinson & Co.

CASE NO. 4083 CRB-05-99-07

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

SEPTEMBER 29, 2000

AGNES M. MULROY

CLAIMANT-APPELLEE

v.

BECTON DICKINSON & CO.

EMPLOYER

and

TRAVELERS PROPERTY & CASUALTY

INSURER

RESPONDENTS-APPELLEES

and

SECOND INJURY FUND

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was not represented at oral argument. Notice sent to Richard Gross, Esq., Cantor, Floman, Gross, Kelly, Amendola & Sacramone, P.C., 378 Boston Post Road, P.O. Drawer 966, Orange, CT 06477.

The respondents were represented by William Brown, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Suite 401, Vernon, CT 06066.

The Second Injury Fund was represented by Taka Iwashita, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120. Michael J. Belzer, Esq., Assistant Attorney General, was also present at oral argument.

This Petition for Review from the June 24, 1999 Finding and Award of the Commissioner acting for the Fifth District was heard April 14, 2000 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Robin L. Wilson and Leonard S. Paoletta.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The Second Injury Fund has petitioned for review from the June 24, 1999 Finding and Award of the Commissioner acting for the Fifth District. The Fund contends on appeal that the trier erred by finding that there was no controversy regarding the existence of a previous disability in this case, thereby substituting his own judgment for that of the medical panel established by § 31-349c. We disagree with this argument, and affirm the trial commissioner’s decision.

As per a February 6, 1995 Finding and Award, the claimant is entitled to workers’ compensation for an occupational disease—a severe nerve disorder known as distal symmetric sensimotor polyneuropathy. Although it appears that she has long suffered from an underlying genetic neuropathy called Charcot-Marie-Tooth Disease, Type II (CMT II), her condition was dormant until she was exposed to neurotoxic chemicals at her employer’s workplace. Dr. Grey, the claimant’s treating physician, had opined that her condition was permanent and progressive, and that its existence was either due to, or exacerbated by, this chemical exposure. Mulroy v. Becton Dickinson, 15 Conn. Workers’ Comp. Rev. Op. 455, 457, 2295 CRB-8-95-2 (Sept. 6, 1996). The trial commissioner accepted his diagnosis over that of Dr. Donaldson, an independent medical examiner, who had ascribed the neuropathy solely to CMT II. This Finding and Award was affirmed on appeal by this board; Mulroy, supra; and by the Appellate Court as well. Mulroy v. Becton Dickinson Co., 48 Conn. App. 774 (1998).

Though the 1995 award established that the claimant was totally disabled and assigned permanency ratings to her arms and legs, it did not apportion a percentage of her disability to her underlying CMT II. In fact, the trial commissioner did not discuss the subject of CMT II in great depth. She noted in ¶ 38 of her findings that the respondents were alleging that the claimant’s illness was solely caused by CMT II, as diagnosed by Dr. Donaldson. See also ¶ 9. Then, in her conclusions, the trier stated that the claimant’s exposure to neurotoxic chemicals at Becton Dickinson “was a significant factor in causing her condition either directly or by exacerbating an underlying but asymptomatic genetic neuropathy known as Charcot-Marie-Tooth Disease, Type II.” ¶ 2. This cursory treatment of the CMT II issue was understandable, of course, as the claimant’s workplace chemical exposure was the main topic of concern at that time. The matter of apportionment had not yet arisen.

At the subsequent proceedings on apportionment, a different trial commissioner was presented with a report from Dr. Grey, the claimant’s treating physician, that ascribed 25% of the claimant’s overall impairment to her pre-existing condition. Dr. Grey opined that the CMT II would have remained asymptomatic if not for her occupational exposure to chemicals. He predicted that the claimant’s disability would progress over time, and thought that it could reasonably be attributed to the underlying ailment. The trier cited this opinion in his findings, and found accordingly.

However, the respondent Second Injury Fund had asserted that there was a controverted issue regarding the existence of a previous disability, and thus requested that this case be submitted to the medical panel pursuant to § 31-349c.1 Findings, ¶ 9. The trier refused that request, finding “as a matter of fact and law” that the claimant had suffered from the pre-existing, albeit asymptomatic, condition of CMT II, which constituted a permanent physical impairment. Findings, ¶¶ C-E. He ruled that there was no controversy regarding the existence of this disability, and declined to refer the case to the chairman so that it could be submitted to the medical panel. He then held that the case qualified for transfer to the Fund, as the combination of the claimant’s previous condition and the occupational chemical exposure resulted in a permanent disability that was materially and substantially greater than that which would have resulted from the exposure alone. The Fund has taken the instant appeal from that decision.

Not long ago, this board stated in Fish v. Caldor, Inc., 3840 CRB-7-98-6 (May 11, 1999) that “the fundamental nature of due process in our legal system counsels that the construction of ‘previous disability’ in § 31-349c must be limited to disputes regarding the existence of a preexisting physical impairment only . . . . The medical panel was not granted the authority . . . to determine the effect of the claimant’s subsequent injury on her previous disability.” Though the Fund asserts that this language is nothing more than “erroneous dicta [with] no precedential value;” Brief, p. 3; we have recently confirmed the Fish analysis. “Because the streamlined medical panel protocol sacrifices a great deal of process in honor of speed, . . . the ambiguous language of the statute should be narrowly construed in order to contain the number of issues that would be resolved without the traditional procedural safeguards of the workers’ compensation forum.” Johnson v. East Haven Hay & Grain Supply, Inc., 4075 CRB-3-99-7 (Aug. 10, 2000).

In Johnson, we stated that the trier of fact was required to accept the medical panel’s finding as to whether the claimant suffered from a previous disability due to an earlier physical injury. She was not bound, however, to rely upon the medical panel’s assessment of the legal consequences of that injury, i.e., whether the combination of the previous and subsequent injuries led to a materially and substantially greater disability than would have occurred due to the second injury alone. “[I]t remains the trier’s prerogative to apply the law to the facts, and make the ultimate legal determination as to whether a pre-existing condition rises to a legally significant level with respect to § 31-349.” Id. This reasoning best protects the due process rights of the parties, and it applies just as much to the case before us today. It would not have been necessary to involve the medical panel in the instant case unless the parties disagreed as to whether the claimant suffered from a pre-existing disability, because that is the precise and limited issue that lies within the panel’s exclusive jurisdictional domain under § 31-349c.

The Fund naturally disagrees with the trier’s finding that there was no controversy regarding the existence of a previous disability here. In fact, the Fund contends that the mere raising of that issue required the commissioner to refer the question to the chairman so that it might be presented to the medical panel. We believe, however, that the inclusion of the word “controverted” in § 31-349c implies that the Fund must make more than a pro forma objection to the assertion of an employer or insurer that a claimant suffers from a pre-existing condition. Seeing that the purpose of P.A. 95-277 was to facilitate the speedy resolution of all remaining disputes concerning medical qualification for transfer to the Second Injury Fund; Hall v. Gilbert & Bennett Mfg. Co., 241 Conn. 282, 303-304 (1997); we doubt that the legislature would have favored the submission of cases to the panel that did not appear to be the subject of a legitimate disagreement at the time of trial. The addition of such a superfluous step would only slow down the decisionmaking process. Instead, the phrase “all controverted issues regarding the existence of a previous disability” should be read to encompass situations in which the record contains at least some conflicting evidence regarding the presence of a previously incurred permanent partial impairment, thereby creating a valid factual issue whose resolution might be expedited with the assistance of an expert medical panel.

As noted above, the February 6, 1995 Finding and Award gave relatively short shrift to the debate over whether the claimant suffered from underlying CMT II. A full discussion of the issue did not appear necessary at the time. Still, the commissioner’s findings suggest that, in her view, such a condition existed. She cited Dr. Robinson’s medical opinion in ¶ 9 of her decision, and the other physicians’ reports in the record ranged from straightforward diagnoses of CMT II to the January 12, 1993 opinion of Dr. Grey, who merely said that the claimant “may have an underlying hereditary sensory motor neuropathy.” (Emphasis added.) Respondents’ Exhibit 3; see also Appendix of Claimant-Appellee to her Appellate Court brief, pp. 157, 317, 345, 395 (citing Dr. Grey’s testimony and report, and medical reports of Drs. Schaumburg and Felice). When read carefully, her conclusion in ¶ 2 that toxic chemical exposure caused the claimant’s condition “either directly or by exacerbating an underlying but asymptomatic genetic neuropathy known as Charcot-Marie-Tooth Disease, Type II” establishes that CMT II was present. Her use of the conjunctive “or” merely left undecided the subsidiary question of whether this ailment was implicated in the causal chain of the claimant’s compensable occupational disease. That is a matter that continues to fall within the province of the trial commissioner. Johnson, supra.

Though it was possible that the trier of fact could have construed the 1995 Finding and Award differently, the Fund did not introduce any evidence to support its contention that there continued to be a disputed fact concerning the existence of a previous disability, i.e., CMT II. In the prior proceedings, the only doctor who had expressed substantial uncertainty regarding the claimant’s diagnosis of Charcot-Marie-Tooth Disease was Dr. Grey. Respondents’ Exhibit 3. At trial in this matter, the respondents offered into evidence a report by Dr. North, a neurologist, dated November 23, 1998, in which he observed that the claimant’s symptoms had initially improved following her departure from the workplace and her cessation of exposure to neurotoxic chemicals. More recently, however, her weakness had worsened, which led the doctor to state that “observation over time allows us to make the diagnosis of a genetically determined neuropathy with a superimposed toxic neuropathy.” Respondents’ Exhibit 1. Notably, Dr. Grey also provided an updated opinion on March 31, 1999, in which he opined that the claimant possibly, even probably, had suffered from CMT II prior to her toxic exposures at Becton Dickinson. In fact, he ascribed 25% of her current impairment to this underlying condition. Respondents’ Exhibit 2. Thus, the one doctor who had previously been unconvinced regarding the presence of CMT II now favored that diagnosis as well.

With neither party presenting any contrary evidence that might tend to refute the most natural interpretation of the 1995 award, it was reasonable for the trial commissioner to decide below that there was no legitimate controversy regarding the existence of a prior disability. The purpose of § 31-349c was to expedite the resolution of good faith disputes. It was not to provide the Fund with a procedural crowbar that it could wield in every § 31-349 case to pry open any pending issue regarding medical qualification for transfer, and send it to the medical panel. Thus, we uphold the trial commissioner’s conclusion that there was no controverted issue regarding the existence of a previous disability in this case.

The Fund also argues that, even if the trier had jurisdiction to determine whether this case medically qualified for transfer, the respondents did not meet their legal burden of proof. They cite McQuiller v. The Miller Company, 3219 CRB-6-95-11 (April 10, 1997), and Staton v. Automotive Controls, 16 Conn. Workers’ Comp. Rev. Op. 79, 3035 CRB-3-95-3 (Oct. 30, 1996), in support of their argument. In McQuiller, this board affirmed the decision of a trial commissioner that the claimant’s latent predisposition to rheumatoid arthritis did not constitute a pre-existing permanent impairment. This was directly based upon the testimony of a doctor who opined that the claimant’s predilection to the development of rheumatoid arthritis had not yet become an active condition. In Staton, we overruled a commissioner’s transfer order, as there was no medical evidence to establish that the claimant’s diabetes had manifested itself at the time of her arm injury. Instead, she was merely predisposed to develop diabetes in the future. Both of these cases rely upon Rowe v. Plastic Design, 37 Conn. App. 131 (1995), a case in which a claimant had suffered an initial injury from which he had fully recovered, causing no permanent impairment. The Appellate Court explained that the material and substantial worsening of a claimant’s condition on account of a prior injury does not a fortiori qualify the previous injury as a permanent partial impairment. Id., 135-36. There must be a proper finding to establish the existence of such a pre-existing impairment first.

Here, the trier specifically found in his June 24, 1999 award that the claimant’s pre-existing CMT II “was more than a predisposition, it was in existence, albeit asymptomatic, prior to her occupational exposure.” Findings, ¶ D. He then went on to label this condition a permanent physical impairment. Id., ¶ E. This distinguishes the instant matter from Staton, supra, and McQuiller, supra, in which cases the triers of fact did not find that the claimants’ predispositions to develop diabetes and arthritis, respectively, had spawned active conditions at the times of their compensable injuries. Though no symptoms of the CMT II were yet apparent at the time of injury, the doctors described the claimant as actually having the disease at that point, as opposed to having a predisposition to develop it some time in the future. The trial commissioner was entitled to credit those diagnoses. Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). This satisfies the requirement of Rowe that there be some measurable permanent physical disability at the time of the second injury as a result of the pre-existing condition. Therefore, the trier’s order is proper as a matter of law.

The trial commissioner’s decision is hereby affirmed.

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

1 Section 31-349c(a), which took effect on July 1, 1995 as part of P.A. 95-277, provides that “[t]he custodian of the Second Injury Fund and an insurer or self-insured employer seeking to transfer a claim to the fund shall submit all controverted issues regarding the existence of a previous disability under section 31-349 to the chairman of the Workers’ Compensation Commission. The chairman shall appoint a panel of three physicians, as defined in subdivision (17) of section 31-275, and submit such dispute to the panel, along with whatever evidence and materials he deems necessary for consideration in the matter. The panel may examine the claimant, who shall submit to any examination such panel may require. Within sixty days of receiving the submission, the panel shall file its opinion, in writing, with the chairman, who shall forward it, along with any records generated by the panel’s work on the case, to the commissioner having jurisdiction over the claim in which the dispute arose. The panel’s opinion shall be determined by a majority vote of the three members. Such opinion shall be binding on all parties to the claim and may not be appealed to the Compensation Review Board pursuant to section 31-301.” BACK TO TEXT

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