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Pasquale v. UTC/Pratt & Whitney

CASE NO. 4325 CRB-8-00-12

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 2, 2001

DAVID PASQUALE

CLAIMANT-APPELLANT

v.

UTC/PRATT & WHITNEY

EMPLOYER

and

ESIS, INC./ACE USA

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Nicholas W. Francis, Esq., Law Offices of Nicholas T. Kocian, L.L.C., 182 Collins Street, Hartford, CT 06105.

The respondents were represented by Michael J. McAuliffe, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

This Petition for Review from the November 28, 2000 Finding and Dismissal of the Commissioner acting for the Eighth District was heard June 22, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners George A. Waldron and Ernie R. Walker.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the November 28, 2000 Finding and Dismissal of the Commissioner acting for the Eighth District. He contends on appeal that the trier erred by concluding that he did not sustain a physical injury as a result of exposure to a noxious chemical odor. We affirm the trial commissioner’s decision.

The trial commissioner found that the claimant, a 25-year employee of the respondent Pratt & Whitney, was working in its Middletown plant on August 17 and August 18, 1995. At approximately 8:00 a.m. on each of those dates, he claims that he was exposed to a noxious odor reminiscent of rotten eggs that caused him physical symptoms resulting in fibromyalgia, post-traumatic stress disorder (PTSD) and muscle pain. He and a fellow worker, Kenneth Saunders1, were working in the “repair crib” both times they sensed the odor. The first time it happened, they immediately left the area, called an emergency line and notified their supervisor, after which they proceeded to the medical department. The claimant there reported that he had a headache, his stomach felt queasy, and he was a little disoriented with blurred vision. He was examined, and his vital signs were assessed as normal. He then sat outdoors for about half an hour, after which he revisited the medical department and lay down on a cot to sleep for two or three hours. He then returned to his work area, and finished his shift. The next morning, the recurrence of the odor again caused the claimant and Saunders to leave the repair crib area. The two workers followed the same procedure as they had the previous day; the claimant’s vital signs were again deemed normal, and he again sat outdoors in order to breathe fresh air. After an hour, he returned to his regular work at the repair crib, and finished his shift, as he had done the day before.

While at home that evening, the claimant fell ill and was taken to the emergency room by his wife. His examination was essentially negative, and he was sent home after being given oxygen. He was also advised to stop smoking, and was told to return posthaste if symptoms such as coughing, headaches or nausea recurred. The claimant continued to work at his regular job, and took a previously planned four-day vacation to the District of Columbia with his wife. When he returned, he saw the plant medical physician and was given medication because he was suffering from a headache. He was then moved to another area in the building, apparently to perform a lighter duty job. The claimant continued to complain of symptoms, including depression, and was referred to Dr. Fellows, a neurologist. He was also referred to a psychologist, whose tests elicited responses within normal limits. The claimant had been on anxiety-reducing medication prior to August 17, 1995.

In September 1995, the claimant felt that his vision was becoming a problem, possibly due to toxic exposure, and decided that he needed glasses. He thought that his overall symptoms were continuing to increase, and was referred to both Yale and UConn hospitals. Dr. Gray of the UConn School of Occupational and Environmental Medicine examined the claimant in October 1995, noting that he felt his “light duty” job change was very stressful, and that he was angry toward his employer regarding the handling of his work injury. However, Dr. Gray could not explain the connection between the claimant’s persistent physical symptoms and the transient chemical exposures he suffered in August 1995, even though the doctor worked closely with the Pratt & Whitney medical department and reviewed the building where the claimant worked. He surmised that the claimant might be experiencing PTSD and that he might need psychiatric treatment for his depression.

At Yale in October 1996, Dr. Rabinowitz opined that the claimant had sustained a low-level chemical exposure at Pratt & Whitney that produced transitory, self-limiting symptoms. He diagnosed the claimant with probable PTSD, depression and fibromyalgia related to that exposure, and treated the claimant with anti-depressant medication. The claimant then returned to work, though he continued being sporadically absent. Dr. Rabinowitz eventually referred him to a psychiatrist, Dr. Berv, who in 1998 observed major depression, PTSD, and many unexplained symptoms. A toxicologist, Dr. Bayer, conducted an independent medical examination of the claimant in 1998 and found him to be normal, with no disease process present due to chemical exposure. He believed that the claimant suffers from a psychological disorder, possibly non-work-related anxiety and depression with a degree of somatization. Dr. Kaplove, a psychiatrist and neurology specialist, also treated the claimant. He initially diagnosed fibromyalgia that might have been triggered by toxic exposure, but was unable to confirm the cause of his apparently worsening symptoms.

Back at the workplace, the respondent’s health/safety and maintenance personnel tested the air quality in the claimant’s work area for toxicity with the participation of outside testing agencies, as did union and OSHA personnel. The tests, which took place from August 17, 1995 through September, uncovered nothing of a toxic nature, including hydrogen sulfide. The material data sheets describing the chemicals used in the claimant’s building at Pratt & Whitney likewise revealed nothing that could be deemed causative of a “rotten egg” smell. The claimant had also alleged that sewage water had been observed running down the walls of the “crib” area from the second-floor bathrooms, but the health/safety representative and maintenance engineer denied ever receiving such complaints. They both recalled being summoned to the claimant’s building to check for odors on a few occasions, and the maintenance engineer stated that he managed to detect a quick whiff of a trace “rotten egg gas” scent on one occasion, though it did not produce any negative symptoms. Claimant’s Exhibit T, pp. 128-30. He was never able to locate the source or cause of that smell, however.

The trial commissioner concluded that the claimant’s symptoms on August 17 and August 18, 1995 were nominal, and that his exposure to a noxious smell was so limited in time and place that any symptoms were minor and self-limiting. In this he relied on Dr. Bayer’s deposition, along with the opinions of most of the other medical specialists, who believed that the claimant’s symptoms were unexplainable and reported an unrelated depressive psychological condition. The trier explained that “post-traumatic stress disorder . . . is not a sustainable diagnosis under Chapter 568 vis-à-vis the definition of injury and the findings in the context of the within claim.” Findings, ¶ G. He also stressed that plant personnel and outside air quality testers were unable to obtain any positive findings of a toxic gas or smell. Accordingly, he dismissed the instant claim for benefits, from which decision the claimant has appealed to this board.

The claimant here seeks compensation that includes total disability benefits and permanent partial disability benefits for alleged damage done to his brain. Claimant’s Brief, p. 1. In a workers’ compensation case, a claimant must prove that he has sustained a compensable injury, and that the injury has caused him to require medical treatment and to suffer a recognizable disability. Warren v. Federal Express Corp., 4163 CRB-2-99-12 (Feb. 27, 2001); Gibbons v. UTC/Pratt & Whitney, 4000 CRB-8-99-3 (April 12, 2000), aff’d, 63 Conn. App. 482 (2001). This burden of proof has several distinct implications here, as the claimant was obligated to demonstrate that harmful toxic exposure likely occurred at his workplace, that said exposure constituted a physical injury under the Workers’ Compensation Act, and that said injury caused symptoms which rendered him totally disabled and which caused him to sustain a permanent impairment of the function of his brain. Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 447 (2001). Failure to prove any of these necessary elements would require the trier of fact to dismiss the claimant’s action.

The role of the trial commissioner is to evaluate the evidence and testimony offered by the parties, and to decide which, if any, version of the facts he finds the most credible. Warren, supra. The trier of fact possesses the sole authority to perform this task, and this board may not second-guess his decisions regarding credibility on review. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999); Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). We may disturb the findings of the trier only if they contain facts found without any supporting evidence, or if they omit material facts that are truly undisputed. Warren, supra. The legal conclusions of the trial commissioner must also be upheld unless they “result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Id., quoting Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).

In performing our review, we observe that the trial commissioner decided all three of the fact-based legal questions mentioned above in a manner adverse to the claimant’s case. He did not believe that the claimant’s alleged symptoms constituted a physical injury under § 31-275(16), he found that the claimant’s depression and psychological condition were unrelated to whatever events did occur at the workplace, and he found that there was little objective evidence that a toxic gas of some kind had actually been released on the dates in question. Nonetheless, the claimant asserts in his appellate brief that the evidence overwhelmingly establishes that the claimant sustained an initial physical injury due to workplace exposure to a low level of hydrogen sulfide, which injury or injuries have caused the claimant to suffer PTSD and a significant amount of brain damage. He argues that the evidence supports no other conclusion.

The trial commissioner explicitly relied upon the opinion of Dr. Bayer as the controlling medical opinion here. Findings, ¶ H. On page 18 of his deposition, Dr. Bayer states, “There is no objective evidence that Mr. Pasquale is suffering from a disease process induced by a chemical exposure.” Respondents’ Exhibit 1. He adds that none of the chemicals present at his work area on the dates in question would have produced hydrogen sulfide, and cites a safety report that revealed no hydrogen sulfide detection in that area. Id., p. 19. “Apparently,” he explains, “there was some sort of odor that Mr. Pasquale experienced for a brief period of time, minutes, on August 17th and 18th, 1995, at Pratt & Whitney. . . . [T]he odor could be caused by any sulfur-like compound. . . . [Odor] is only a very crude guide to any kind of exposure level. . . . It is also clear that the exposure Mr. Pasquale experienced was very brief. Although the symptoms initially experienced by Mr. Pasquale were discomforting, they were in no way life or limb threatening. [His] persistent symptoms are not consistent with exposure to any known chemical. . . . My opinion is that Mr. Pasquale suffers from anxiety and depression with a degree of somatization. There is no physical illness associated with the odor that [he] experienced on August 17th and 18th of 1995.” Id., pp. 23-24. Dr. Bayer represented that his diagnosis of a substantial anxiety disorder with somatization (i.e., the attribution of symptoms to organic or physical ailments that are in fact due to a psychiatric disorder) was accurate within a reasonable degree of medical probability. Id., 28.

Much of the parties’ discussion in this case has addressed the character of the claimant’s symptoms following his exposure to the source of the “rotten egg” smell, specifically analyzing whether they amount to a personal injury within the meaning of § 31-275(16). Section 31-275(16)(B)(ii) excludes mental or emotional impairments such as PTSD from the definition of “personal injury” unless the impairment itself arises from a physical injury or occupational disease, and there has been debate over whether the transitory symptoms that the claimant mentioned such as headaches, nausea and eye irritation constitute the requisite precedent physical injury. Doe v. Stamford, 241 Conn. 692 (1997) (possible exposure to contagious diseases constituted “personal injury” within meaning of Act, despite absence of physical trauma); see also, Driscoll v. General Nutrition Corp., 252 Conn. 215 (2000) (mental anguish resulting from sexual assault is compensable under Act); Biasetti v. Stamford, 250 Conn. 65 (1999) (emotional impairment which itself is alleged to be occupational disease is no longer encompassed by Act). However, such discussions are necessary to the resolution of this case only if one presupposes the establishment of a causal connection between the claimant’s initial symptoms and his disability, as well as the establishment of a workplace exposure to hazardous toxic gas. In fact, neither of these subordinate circumstances was present, given the trier’s acceptance of Dr. Bayer’s medical opinion.

Dr. Bayer was willing to accept that the claimant sensed some sort of odor as alleged, but he did not believe that it was a harmful odor such as hydrogen sulfide that was capable of producing the resulting symptoms. Instead, the doctor opined that the claimant suffers from a significant anxiety disorder whose symptoms he incorrectly attributes to the physical stimulus of the “rotten egg” smell. We recently explained that a claimant’s perception of stress from abnormal responses to ordinary workplace incidents is generally not a valid basis for the recovery of workers’ compensation benefits in most jurisdictions, including Connecticut. Smith v. Connecticut Light & Power Co., 4135 CRB-5-99-10 (March 29, 2001). “The cause of such stress is more the inherent mental predisposition of the claimant than it is the workplace itself. We find no law or legislative intent that mandates the creation of a ‘safety net’ for such emotionally fragile individuals via the mechanism of workers’ compensation . . . .” Id. Given that the claimant carried the burden of proof in this case, the trier’s reliance on Dr. Bayer’s opinion provides ample justification for his dismissal of the instant claim. The doctor provided several cogent reasons why he believed that the claimant’s condition was not caused by exposure to toxic gases at Pratt & Whitney, and the trier would not have been bound to accept the testimony of the claimant’s experts even if he found Dr. Bayer’s testimony unpersuasive. Pallotto, supra. This board has no authority to disturb the outcome of this case on appeal.

The trial commissioner’s decision is accordingly affirmed.

Commissioners George A. Waldron and Ernie R. Walker concur.

1 Saunders also filed a workers’ compensation claim that is currently on appeal before us, and his alleged injuries are discussed therein. See, Saunders v. UTC/Pratt & Whitney, 4323 CRB-8-00-12 (November 2, 2001) BACK TO TEXT

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