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Bonito v. ESPN

CASE NO. 4914 CRB-6-05-2

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 3, 2006

PAUL BONITO

CLAIMANT-APPELLANT

v.

ESPN

EMPLOYER

and

LIBERTY MUTUAL INSURANCE

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Paul D’Addario, Esq., Dodd, Lessack, Dalton & Dodd, L.L.C., Westgate Office Center, 700 West Johnson Avenue, Suite 305, Cheshire, CT 06510.

The respondents were represented by Timothy Ward, Esq., McGann, Bartlett & Brown, 111 Founders Plaza, Suite 1201, East Hartford, CT 06108.

This Petition for Review from the January 26, 2005 Finding and Dismissal of the Commissioner acting for the Sixth District was heard August 26, 2005 before a Compensation Review Board panel consisting of Commissioners Michelle D. Truglia, Leonard S. Paoletta and Nancy E. Salerno.

OPINION

MICHELLE D. TRUGLIA, COMMISSIONER. The claimant appeals from the January 26, 2005 Finding and Dismissal of the Commissioner acting for the Sixth District.1 In that Finding and Dismissal the trial commissioner dismissed the claimant’s claim for; (1) an injury occurring July 13, 1998 to his right hand as a result of exposure to methanol, (2) an injury in the form of carbon monoxide poisoning, due to exposure to diesel fumes on November 11, 1998, and claims for total disability and/or psychiatric injuries stemming from the injuries claimed to relate to the July 13, 1998 and November 11, 1998. The claimant filed this appeal.

The pertinent facts giving rise to these claims are as follows. We begin with a review of the facts alleged in support of the claim for benefits arising from an injury occurring July 13, 1998. The claimant was employed by the respondent employer as a video technician. His duties included using methanol to clean video tapes. For a period between 1990 and 1998, the respondent did not provide the claimant with gloves and thus the claimant’s skin was directly exposed to the methanol. The claimant complained of a variety of skin irritations on his right hand including drying, cracking, tingling, numbness, etc. See Findings, ¶ 3. The claimant consulted with Dr. Mark Bayer, a toxicologist. The claimant saw Dr. Bayer on three occasions between September and November 1998. See Claimant’s Exhibit K. In his report dated January 18, 1999, Dr. Bayer noted the absence of any skin irritation, redness or swelling and the claimant’s hand strength and sensation were normal, and further opined that the claimant’s methanol exposure did not contribute to the pain reported by the claimant in his hand.

On November 11, 1998, the claimant was working in Studio C on his employer’s premises. This particular studio was located in a building which also functioned as a tractor trailer garage. The building had large overhead doors and contained an office area within a portion of one of the bays.

On November 11, 1998, the respondent was demolishing a part of the building near the studio in which the claimant was working. The area under demolition was not ventilated. The claimant worked in the studio between 4:00 p.m. and 5:00 p.m. He noticed a strong smell of diesel fumes and requested that he be permitted to leave the studio door open. No diesel machinery was operated during the period that the door was open. After 5:00 p.m. claimant’s co-worker arrived. Claimant’s co-worker noticed the fumes and over a period of time complained of headaches and dizziness. The co-worker also noticed that when she left the building she felt better.

At around 9:00 p.m. that same evening, the claimant’s co-worker returned to the area where they were working. The co-worker’s symptoms re-appeared and she collapsed. An ambulance was summoned and the co-worker was given oxygen and transported to Bristol Hospital where she was treated. The co-worker’s carbon monoxide blood levels were found to be within the normal range.

The respondent’s employees then opened all the doors to the building and ventilated the building. When the Bristol Fire Department arrived at around 9:30 p.m., they were unable to detect any carbon monoxide. The claimant refused treatment that evening. See Findings, ¶ 18 and Claimant’s Exhibit F. It was not until December 19, 1998 that the claimant sought treatment for carbon monoxide exposure, which he claimed, occurred on November 11, 1998. See Claimant’s Exhibit K.

In December 1998, the claimant first consulted Dr. Robert S. Thorsen, a neurologist. Dr. Thorsen could find no neurological basis for the claimant’s various complaints. Dr. Thorsen referred the claimant to the Yale Occupational Health Clinic. On April 8, 1999, the claimant was examined by Dr. Ben Hur Mobo, Jr. and Dr. Oyebode A. Taiwo of the Yale University Occupational and Environmental Medicine Program. The doctors examined the claimant for possible exposure to carbon monoxide and diesel fumes.

These doctors opined that the effects of exposure to hydrocarbons are transient and generally resolve within hours after exposure ceases. They further opined that the claimant’s complaints were not consistent with carbon monoxide poisoning or exposure to diesel fumes. See Findings, ¶¶ 22 and 23. The claimant consulted with other physicians. They also opined that the claimant’s complaints were not related to an exposure of carbon monoxide and that the claimant’s complaints were not proportionate to such an exposure. See Findings, ¶ 24.

The claimant claimed to be totally disabled due to the pain he suffered in his hand as well as the depression and anger he felt stemming from the above described incidents. The claimant consulted with Dr. Robert Behrends, a board certified psychiatrist. Dr. Behrends opined the claimant was suffering from a psychological stress reaction due to these work events. See Findings, ¶ 25.

The claimant was also examined by Dr. Walter Borden, also a board certified psychiatrist. Dr. Borden opined the claimant had a light or sedentary work capacity and that while the claimant has psychiatric problems, they were unrelated to his work.

The trial commissioner concluded the claimant did not sustain any injury due to his methanol exposure. The trial commissioner also concluded that the claimant did not sustain a personal injury as a result of the November 11, 1998 incident. Further, the trial commissioner concluded the claimant had a work capacity and that his depression and anxiety were not work related.

Following the trial commissioner’s ruling in this matter the claimant filed this appeal. The issues presented for review are whether the trial commissioner erred in concluding: (1) the claimant did not suffer a personal injury on July 13, 1998 due to his exposure to methanol, (2) the claimant did not suffer a personal injury as a result of exposure to diesel fumes and/or carbon monoxide, (3) the claimant had a work capacity and was not totally disabled. All of the conclusions reached by the trial commissioner are predicated on the weight and credibility he assigns to the evidence presented. We do not engage in de novo review and will not disturb the trier’s conclusions unless they are without support in the evidence, contrary to law or based on unreasonable or impermissible factual inferences. See e.g., Gomez v. Laidlaw Education Services, 4859 CRB-2-04-9 (December 15, 2005); Barron v. City Printing, Inc., 3497 CRB-3-96-12 (April 29, 1998), aff’d, 55 Conn. App. 85 (1999). There is ample evidentiary support for the trier’s factual findings and conclusions.

However, we do wish to address one specific argument of the appellant relating to the claimed injury from methanol exposure. The appellant argues that the opinion of Dr. Bayer should be disregarded as it was not stated within a degree of reasonable medical certainty. Dr. Bayer’s opinion was included as part of Claimant’s Exhibit K. See June 23, 2004 Transcript, p. 10. See also, April 21, 2004 Transcript, p. 50. Thus, on appeal the claimant seeks to challenge the weight and credibility assigned to evidence that he proffered. In his capacity as fact finder the trial commissioner may chose to credit all, part, or none of the testimony given by a witness, Gagliardi v. Eagle Group, Inc., 4496 CRB-2-02-2 (February 27, 2003), aff’d, 82 Conn. App. 905 (2004) (per curiam).

The failure of an expert medical opinion to include the phrase “within a reasonable degree of medical certainty” does not render the opinion legally incompetent per se. “Whether an expert’s testimony is expressed in terms of a reasonable probability that an event has occurred does not depend upon the semantics of the expert or his use of any particular term or phrase, but rather, is determined by looking at the entire substance of the expert’s testimony.” Struckman v. Burns, 205 Conn. 542, 555 (1987). We do not believe the trier’s crediting of Dr. Bayer’s reports and opinions constituted legal error. A review of the record as a whole provides ample support for the trier’s conclusion. Additionally, all of the other issues for which the appellant seeks review are dependent on the factual findings of the commissioner. Applying the standard of review noted above, we find no error. There was evidence in the record from which the trier could reasonably conclude that the claimant’s exposure to diesel fumes and/or carbon monoxide did not result in a personal injury.2

We therefore, affirm the January 26, 2005 Finding and Dismissal of the Commissioner acting for the Sixth District.

Commissioners Leonard S. Paoletta and Nancy E. Salerno concur.

1 We note extensions of time were granted during the course of this appeal. BACK TO TEXT

2 The appellant additionally claims that the trier did not make any determination as to whether he suffered a personal injury due to the exposure to diesel fumes. We direct appellant’s attention to paragraph B of the commissioner’s Finding and Dismissal. Reading the commissioner’s Finding and Dismissal on the whole clearly indicates that it is the trial commissioner’s opinion the claimant did not suffer a personal injury due to events occurring at work on November 11, 1998. BACK TO TEXT

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