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Niklewski v. K-Tron Manufacturing Co. et al.

CASE NO. 4299 CRB-5-00-10

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

OCTOBER 25, 2001

ROBIN NIKLEWSKI

CLAIMANT-APPELLANT

v.

K-TRON MANUFACTURING CO.

EMPLOYER

and

HARTFORD ITT INSURANCE GROUP

INSURER

and

D-ANN MANUFACTURING CO.

EMPLOYER

and

ST. PAUL FIRE & MARINE INSURANCE CO.

INSURER

and

REFAC ELECTRONICS

EMPLOYER

and

TRAVELERS PROPERTY & CASUALTY

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Brian S. Karpe, Esq., 81 Wethersfield Avenue, Hartford, CT 06114.

The respondent employer K-Tron Manufacturing Co. and Hartford ITT Insurance Group were represented by Richard T. Stabnick, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

The respondent employer D-Ann Manufacturing Co. and St. Paul Fire & Marine Insurance Co. were represented by Jean Molloy, Esq., Montstream & May, L.L.P., Salmon Brook Corporate Park, 655 Winding Brook Drive, P. O. Box 1087, Glastonbury, CT 06033-6087.

The respondent employer Refac Electronics and Travelers Property & Casualty were represented by William C. Brown, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Suite 401, Vernon, CT 06066.

This Petition for Review from the September 25, 2000 Finding and Dismissal of the Commissioner acting for the Fifth District was heard May 18, 2001 before a Compensation Review Board panel consisting of Commissioners George A. Waldron, Ernie R. Walker and Michael S. Miles.

OPINION

GEORGE A. WALDRON, COMMISSIONER. The claimant has petitioned for review from the September 25, 2000 Finding and Dismissal of the Commissioner acting for the Fifth District. She argues that the trier erred by failing to find that her lung disease was caused by chemical exposure at her workplace, and by failing to correct his findings as such. We find no error, and affirm the trial commissioner’s decision.

The trier found the following facts. The claimant worked for Refac Electronics from August 1985 through September 1987, for D-Ann Manufacturing from October 1987 through May 1988, and for K-Tron Manufacturing Co. for approximately two weeks in May 1988. At the Refac plant, her duties included soldering circuit boards, mixing flux and paint thinners, and drying the boards after dipping them in the resultant solution. She testified that she was also exposed to Freon1, liquid nitrogen, and sealing spray at that job. While working for D-Ann, the claimant used a solder pot in which she would dip the tips of wires so that they could be pre-soldered. During her two weeks at K-Tron, she soldered LED lights onto fire alarms. The claimant testified that she was not exposed to any chemicals outside the workplaces of those three employers.

In November 1987, the claimant began to experience respiratory problems. They continued to worsen, and she was referred to Dr. Bier, a pulmonary specialist, in June 1988. He diagnosed the claimant with chronic obstructive pulmonary disease, and admitted her to Charlotte Hungerford Hospital. Ultimately, she underwent a double lung transplant on May 6, 1998. After seeing Dr. Bier, the claimant was referred to Dr. Sulavik at the UConn Medical Center. He testified that the most probable diagnosis of the claimant’s condition “is severe panacinar emphysema developing from the inhalation of certain fumes, the most probable one being fumes of cadmium.” Findings, ¶ 19, quoting June 24, 1998 Deposition of Dr. Sulavik, p. 8. He testified that the element cadmium had been shown to cause another form of emphysema in animal experiments, and that it was unknown how it would affect humans. However, Dr. Sulavik acknowledged that there was contradictory information regarding whether cadmium was present at the claimant’s workplaces, and that he was unsure about the exact agent that had caused the claimant’s condition. He also could not pinpoint the exact time of the damaging exposure, though he believed the claimant’s condition to have been occasioned by workplace chemical exposure of some kind.

Dr. Godar, who examined the claimant in 1991 at the respondents’ request, thought differently. He diagnosed her with probable hypersensitivity pneumonitis, with indeterminate etiology. He believed that the K-Tron exposure did not have a significant effect on the claimant’s status, as her symptoms had pre-existed that exposure, and that it had no impact on the etiology of her disease. Because the claimant left Refac with no complaints, he also thought that her disease would be difficult to associate with that employment. While the D-Ann exposures were a possible cause, he knew of no specific exposures, and stated that it would be difficult to determine whether that period of employment had caused her disease. The trial commissioner acknowledged this opinion in his conclusions, and also observed that Dr. Sulavik was unable to identify what the claimant had inhaled, when she had inhaled it, or how much of it had been inhaled. He concluded that the claimant had failed to sustain her burden of proof that her employment at any of the three aforementioned companies either caused or substantially contributed to the development of her lung condition. The claimant has appealed that decision to this board, along with the denial of her Motion to Correct.

When this board reviews the factual findings and legal conclusions of a trial commissioner, we do not retry the case by reassessing the weight of the evidence ourselves. Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 447 (2001); Warren v. Federal Express Corp., 4163 CRB-2-99-12 (Feb. 27, 2001). Where the commissioner’s conclusions depend upon an assessment of conflicting evidence and the credibility of various witnesses, including medical experts, this board must defer to the inferences drawn by the trier of fact. Administrative Regulation § 31-301-8; Dengler, supra. It is the claimant who bears the burden of proving that she has sustained a compensable injury, or that an acknowledged disability has been caused by such an injury. Warren, supra, citing Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151 (1972). Such proof must be established by competent evidence. Id.; Dengler, supra. In a case where the origin of a particular injury is too complex to be plainly ascertained by a lay person “as a matter of common knowledge,” the claimant must introduce the testimony of a qualified medical expert who can state within a reasonable degree of medical probability that there is a causal link between injury and employment. Id., 449, quoting Garofola v. Yale & Towne Mfg. Co., 131 Conn. 572, 574 (1945); Costa v. Torrington Co., 4097 CRB-5-99-8 (July 28, 2000). The effect of this burden of proof may be illustrated by stating that, if a trial commissioner were to find none of the medical evidence in a particular record trustworthy, the employer would essentially prevail by default. Warren, supra.

The instant case features a complicated disease etiology for which supportive medical testimony would be necessary in order to establish causation. The claimant’s position on appeal is that the evidence irrefutably shows that her lung condition was caused by exposure to various chemicals at each of the three respondents’ workplaces, for nothing else in her background would have caused such chemical exposure. She argues that the diagnoses of the respondents’ experts were without a basis in the medical record, and points out that both of the treating physicians who became familiar with her case (Drs. Sulavik and Bier) made diagnoses of an occupational illness. She then goes on to criticize the basis of a 1997 report by Dr. Godar in which he reversed his earlier opinion that the claimant’s symptoms were consistent with an occupational disease.

Our review of Dr. Sulavik’s deposition indicates that he deduced that the claimant suffered from panacinar emphysema because of the presence of unknown agents in her workplace. See, e.g., December 15, 1998 Deposition, p. 80; June 24, 1998 Deposition, p. 31. Yet, he was unable to identify the specific causal agent. Though he suspected the culprit to be cadmium, he knew of no hard evidence that such exposures had occurred at her workplace. December 15, 1998 Deposition, supra. Moreover, the type of emphysema that had been produced in animals by cadmium exposure was centrilobular rather than panacinar. Id. Clearly, certain presumptions would be necessary for the trier to make the evidentiary leap toward compensability.

Engaging in a debate over the merit behind Dr. Sulavik’s opinion is futile for the purposes of our review, however. Whether or not one could characterize Dr. Sulavik’s diagnosis as having been given within a reasonable degree of medical probability, the most important fact here is that the trier did not find it persuasive. Regardless of the merit behind any of the respondents’ medical reports, this board cannot reverse the trier’s impression that the claimant failed to satisfy her burden of proof. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Warren, supra. Perhaps, in some instances, a trier may be persuaded by “process of elimination” that a disease is related to workplace chemical exposure. There are, of course, other instances in which he may decline to make such an assumption. We would be usurping the authority of the finder of fact if we were to insist upon a contrary inference on review. Therefore, this appellate board must respect and defer to the trier’s ultimate rejection of Dr. Sulavik’s medical opinion.

The trial commissioner’s decision is hereby affirmed.

Commissioners Ernie R. Walker and Michael S. Miles concur.

1 Freon is a trademark for a group of nonflammable gaseous or liquid fluorocarbons that are often used in refrigeration, air conditioning and aerosol products. BACK TO TEXT

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