CASE NO. 4563 CRB-1-02-8
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
AUGUST 25, 2003
JOSEPH STRONG, JR.
UTC/PRATT & WHITNEY
LIBERTY MUTUAL INSURANCE CO.
The claimant was represented by Mark Merrow, Esq., Law Offices of Mark Merrow, LLC, 760 Saybrook Road, Middletown, CT 06457.
The respondent employer and CIGNA were represented by Lucas Strunk, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Road, Glastonbury, CT 06033.
The respondent employer and Liberty Mutual Insurance Co. waived appearance at oral argument. Notice sent to Marian Yun, Esq., Law Offices of Nancy S. Rosenbaum, 655 Winding Brook Drive, Glastonbury, CT 06033.
This Petition for Review from the August 8, 2002 Finding and Award of the Commissioner acting for the First District was heard February 21, 2003 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Nancy A. Brouillet and Howard H. Belkin.
JOHN A. MASTROPIETRO, CHAIRMAN. The respondent employer and its insurer CIGNA have petitioned for review from the August 8, 2002 Finding and Award of the Commissioner acting for the First District. They contend on appeal that the trier erred by awarding the claimant a 48% permanent partial disability rating of the lungs, and by finding that he suffered from a pre-existing disability rather than a concurrent, unrelated disease (emphysema) whose effects have no connection to the lung damage caused by the claimant’s asbestos exposure. We find no error of law, and affirm the decision of the trial commissioner.
The claimant was employed by the respondent UTC/Pratt & Whitney on January 26, 1998, which is the date of injury listed on his Form 30C. The issues before the trial commissioner were whether he suffered a compensable asbestos-related lung injury, and if so, the degree of permanency attributable to that injury. During the formal proceedings below, the respondents accepted the compensability of the injury, leaving permanent partial disability as the primary issue. As there were conflicting medical opinions, the trier noted in his findings that credibility would be a pivotal factor in making his decision. He found that the claimant had worked for Pratt & Whitney for four months during 1966 and then continuously since 1969, in between which time he was in the Navy. While working for Pratt & Whitney, he was exposed to asbestos products, resulting in the development of a lung injury.
The claimant treated with Dr. Mueller and was examined by Dr. Gerardi, both of whom are Hartford-area lung specialists. Dr. Mueller opined, and the trier found, that the claimant had a 48% permanent impairment of the lungs, some of which pre-existed due to a prior history of smoking. Dr. Gerardi, whose opinion the trier specifically rejected, stated that the claimant had a 25% permanent impairment of the lungs, some of which was due to prior smoking and to alleged asbestos exposure in the Navy. Counsel for two insurance companies, CIGNA and Liberty Mutual, were present at the formal hearings. The trier ordered those respondents to pay 112.32 weeks of benefits to the claimant, and to “work out the accounting pertaining to the same.” Findings, ¶ 20. He further declared that no offset applied, as the claimed pre-existing condition was not an occupational disease within the meaning of § 31-275 C.G.S. and Cashman v. McTernan School, Inc., 130 Conn. 401 (1943). The respondent employer and its insurer CIGNA have appealed that ruling to this board.
The appellants first argue on review that the trier erred by accepting Dr. Mueller’s opinion that the claimant had a 48% permanent partial disability of the lungs, as said opinion was not expressed within a reasonable degree of medical probability and did not constitute competent evidence upon which the trier could legally rely. They argue that the testimony of both doctors and the test results in evidence show that the claimant’s asbestosis was mild and not limiting in terms of work activities, which is patently inconsistent with a 48% permanent partial impairment rating of the lungs. Absent a foundation establishing a serious lung injury, the respondents argue that “the only reasonable conclusion that can be drawn from the record is that the claimant has a 25% or 26% impairment, 15% of which is due to obstructive lung disease due to past cigarette use.” Brief, p. 10.
It is axiomatic in workers’ compensation proceedings that the trial commissioner is entitled to evaluate the medical and testimonial evidence presented at a formal hearing, and decide which, if any, is the most credible. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999); Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (Oct. 23, 2002). It is up to the commissioner to determine whether a claimant has offered sufficient evidence to establish a disability within a reasonable degree of medical probability. Id.; Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002). On review, this board lacks the authority to retry cases by second-guessing the inferences that the trier has drawn regarding evidentiary credibility. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Duddy, supra. All we may do is review the findings of the trier of fact, and decide whether there is any evidence in the record to support them, or whether undisputed material facts have been omitted from the findings. Phaiah, supra; Warren v. Federal Express Corp., 4163 CRB-2-99-12 (Feb. 27, 2001).
In order to constitute competent medical evidence under our law, the opinion of an expert must be based on a reasonable probability rather than mere speculation or conjecture. Struckman v. Burns, 205 Conn. 542, 554-55 (1987); O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 817 (1999). “As long as it is clear that the expert’s opinion was based on more than mere conjecture, the entire substance of the expert’s testimony should be examined. . . . An expert’s testimony as to the reasonable probability of the occurrence of an event does not depend on semantics or the use of any particular term or phrase . . . .” Id., 817-18, citing Aurora v. Miami Plumbing & Heating, Inc., 6 Conn. App. 45, 46 (1986). If on review this board is able to ascertain a reasonable diagnostic method behind the challenged medical opinion, we must honor the trier’s discretion to credit that opinion above a conflicting diagnosis. Landry v. Light Metals Coloring Co., 4514 CRB-6-02-4 (April 3, 2003); Napolitano v. Bridgeport, 4388 CRB-4-01-5 (Sept. 6, 2002).
Dr. Mueller’s July 18, 2001 report states, “Based upon my reexamination of Mr. Strong and in particular in light of the findings on the 6/8/2001 thoracic CAT scan and the pulmonary function studies done at Saint Francis Hospital 2/14/2001, . . . Mr. Strong’s total pulmonary impairment is a reduction from normal function of 48%. Of that 48% reduction, 32% is due to pulmonary fibrosis and pleural disease caused by asbestosis; 16% of the reduction is due to central lobular emphysema caused by cigarette smoking.” Claimant’s Exhibit B. According to the pulmonary function studies referred to by Dr. Mueller; see Claimant’s Exhibit C; the claimant showed a diffusing capacity of 52% of the predicted normative value, a forced vital capacity of 84%, a forced expiratory volume of 66%, and an FEV1/FVC ratio of 79%. The Fourth and Fifth Editions of the American Medical Association’s Guides to the Evaluation of Permanent Impairment1 both prescribe a Class 3 (26-50%) moderate impairment rating for any individual who has either a forced vital capacity between 51% and 59% of predicted, a forced expiratory volume between 41% and 59%, or a diffusing capacity between 41% and 59%. The claimant’s diffusing capacity was at 52%, while his forced expiratory volume was at 66% (slightly below the lower limit of normal, and approaching the upper threshold of the Class 3 range).
The respondents would have us substitute the opinion of Dr. Gerardi for that of Dr. Mueller based on the assertion that the claimant’s disease is not substantial enough to justify a 48% rating, and that the claimant’s symptoms and test results all support a lesser impairment in the range of 25%. Though a trial commissioner may use his factfinding discretion to rely on a medical opinion that does not strictly follow the AMA impairment guidelines due to the presence of factors that, in the doctor’s opinion, mitigate or conflict with the rating that the guidelines would suggest; Napolitano, supra; the AMA guidelines frequently provide objective guidance in this forum. Schilling v. New Departure-Hyatt Div., 3290 CRB-6-96-3 (Aug. 4, 1997). The 26-50% impairment range set forth in the guidelines for an individual with a diffusing capacity of 52% allows room for an evaluation of 48% permanent partial impairment. It is not the prerogative of this board to override a trier’s reliance on such an evaluation, nor could we declare its methodology unreasonable, as the AMA guidelines provide no restriction that would prevent a doctor in a case such as this from setting an impairment percentage near the high end of that 26-50% range. O’Reilly, supra; Ricigliano v. Rex Forge, 3476 CRB-6-96-11 (April 8, 1998), aff’d, 53 Conn. App. 158 (1999), cert. dismissed, 252 Conn. 404 (2000).
The respondents also contend that the evidence shows that the claimant’s smoking-related emphysema did not constitute a pre-existing disability, but rather a separately and concurrently evolving disease process with a distinct etiology and lung damage pattern from that of the asbestosis. Consequently, they seek to be relieved of liability for the portion of the claimant’s permanent partial disability that is due to emphysema. To begin, we note that the claimant did not establish his lung condition as an occupational disease within the definition of § 31-275(15) C.G.S., as no evidence was offered to establish that his asbestosis was peculiar to his occupation. See Findings, ¶ 21. Rather, the claimant offered direct proof of exposure to asbestos, both in the form of testimony and medical reports. The evidence directly establishes that the claimant’s exposure to asbestos fibers resulted in his inhaling asbestos particles that eventually caused him to develop symptoms of asbestosis, with a resulting lung disability. Though asbestos-related illnesses have been proven to be occupational diseases in other cases; see, e.g., Sellew v. Northeast Utilities, 12 Conn. Workers’ Comp. Rev. Op. 135, 1422 CRB-8-92-5 (April 7, 1994), appeal dismissed, A.C. 13541, 13542 (June 14, 1995); this particular action was brought as one for repetitive trauma.
We remain mindful of this distinction because § 31-275(1)(D) states: “For aggravation of a preexisting disease, compensation shall be allowed only for that proportion of the disability or death due to the aggravation of the preexisting disease as may be reasonably attributed to the injury upon which the claim is based.” This language has been interpreted by our Supreme Court to require apportionment only where a pre-existing condition has been established as an occupational disease under § 31-275(15). Cashman v. McTernan School, Inc., 130 Conn. 401 (1943). There is, of course, no suggestion by the respondents that the claimant’s emphysema constituted a pre-existing occupational disease. Instead, they contend that his emphysema did not pre-exist his asbestosis at all, nor was it “aggravated” by the asbestosis within the meaning of either Cashman supra, Hatt v. Burlington Coat Factory, 263 Conn. 279 (2003)(§ 31-349(d) requires that last employer be solely liable for compensation payable on account of second injury), or Prisco v. North & Judd, 10 Conn. Workers’ Comp. Rev. Op. 154, 1190 CRD-8-91-3 (June 30, 1992)(workplace aggravation of underlying lung disease that was due to long-term smoking history required employer to accept liability for entire resultant disability).
We understand the philosophy behind the respondents’ legal argument. Because the record contains medical evidence to support the existence of two concomitant disease processes rather than two consecutive disease processes, they urge this board to rule that the portion of the lung damage that is due to the non-work-related disease process is not their responsibility under the law. We do not believe that our precedents allow for such a distinction to be drawn, particularly under the facts of this case. This board has entertained cases in which a “pre-existing” condition was asymptomatic prior to the occurrence of a compensable injury, yet the portion of disability attributable to the “pre-existing” condition was nonetheless made the responsibility of the respondent. See, e.g., Criscio v. State/Southern Conn. State Univ., 4271 CRB-3-00-7 (June 1, 2001)(altered gait resulting from compensable injuries aggravated previously asymptomatic avascular necrosis). Even if the claimant’s emphysema began manifesting itself concurrently with his asbestosis rather than beforehand, both conditions now contribute to his overall lung impairment. The law does not provide a means of severing the portion of that impairment traceable to his emphysema. The legislature has not drawn such a distinction by statute, and we will not spontaneously begin reading the law to allow such an apportionment of responsibility. This is particularly true in light of our Supreme Court’s recent discussion in Hatt, supra, where the Court stated that common-law apportionment concepts did not apply to cases involving separate and distinct compensable injuries. Hatt, supra, 306.
Moreover, as the claimant observes in his appellate brief, there is evidence to show that his asbestosis has only been manifest since approximately 1996. Respondent’s Exhibit 1, p. 27 (Deposition of Dr. Gerardi). As the doctor explained, “we need a latency period of . . . 30 years or so. These are approximates. If he was in the service in the mid-to-late 60’s and he had exposure to asbestos at that time, this would put him into the late 1990’s.” Id. Though the trier did not accept the respondents’ argument that the claimant had significant asbestos exposure with the U.S. Navy, there is no dispute that he only began working for Pratt & Whitney in 1965-66. See Feb. 21, 2001 Transcript, p. 5; Findings, ¶ 5. The claimant also testified that asbestos exposures were still occurring at Pratt & Whitney at the time of trial. Id., pp. 12, 24. With regard to tobacco-related emphysema, however, the claimant testified that he stopped smoking cigarettes approximately in 1991. February 21, 2001 Transcript, p. 23. Given that the trier specifically found the claimant’s testimony to be credible; Findings, ¶ 17; there is sufficient reason to presume that the claimant’s emphysema, which was caused by cigarette smoking, was an incipient or latent condition prior to the advent of asbestosis symptoms. Therefore, the facts support a finding that the claimant indeed had a pre-existing condition in the form of emphysema.
The trial commissioner’s decision is accordingly affirmed. Insofar as any benefits may remain unpaid pending appeal, interest is awarded pursuant to § 31-301c C.G.S.
Commissioner Howard H. Belkin concurs.2
1 The AMA guidelines were not entered into evidence as an exhibit, nor did Dr. Mueller specifically refer to the AMA standards in his medical report or his earlier testimony (Claimant’s Exhibit A). However, both parties’ briefs evince a mutual concession that Dr. Mueller referred to the categories and standards present in the AMA guides in prescribing the claimant’s impairment rating. As said guidelines are widely acknowledged as the most common standard of prescribing permanent impairment in workers’ compensation matters; see, e.g., Safford v. Brockway, 262 Conn. 526, 533 (2003); we will refer to those standards in our opinion. BACK TO TEXT
2 As noted in the heading of this opinion, this matter was originally heard on February 21, 2003, by a three-commissioner panel of the Compensation Review Board that included Nancy A. Brouillet, whose term of service has since expired. Former Commissioner Brouillet did not participate in the drafting or review of this written opinion, and has had no involvement in the issuance of this decision. BACK TO TEXT