State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Deschenes v. Transco, Inc. et al.

CASE NO. 4943 CRB-8-05-5

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 22, 2006

GEORGE DESCHENES

CLAIMANT-APPELLEE

v.

TRANSCO, INC.

EMPLOYER

and

ZURICH NORTH AMERICA

INSURER

RESPONDENTS-APPELLEES

and

REED & GREENWOOD INSULATION CO.

EMPLOYER

and

TRAVELERS PROPERTY & CASUALTY

INSURER

RESPONDENTS-APPELLANTS

and

HARTFORD INSURANCE GROUP

INSURER

RESPONDENTS-APPELLANTS

and

CUMMINGS INSULATION

EMPLOYER

and

D&N INSULATION

EMPLOYER

and

LIBERTY MUTUAL INSURANCE GROUP

INSURER

RESPONDENTS-APPELLEES

and

VEDCO INSULATION

EMPLOYER

and

HANOVER INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

and

PEERLESS INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

and

AC&S

EMPLOYER

and

CNA INSURANCE COS.

INSURER

RESPONDENTS-APPELLEES

and

GALLICCHIO BROTHERS

EMPLOYER

and

ST. PAUL TRAVELERS

INSURER

RESPONDENTS-APPELLEES

and

AYLA CORPORATION

EMPLOYER

and

TRAVELERS PROPERTY & CASUALTY

INSURER

RESPONDENTS-APPELLEES

and

SECOND INJURY FUND

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Chris Meisenkothen, Esq., Early, Ludwick & Sweeney, 265 Church St., 11th Floor, P.O. Box 1866, New Haven, CT 06508-1866.

The respondents Transco and Zurich North America were not represented at oral argument. Notice sent to James Moran, Esq., Maher & Williams, P.O. Box 550, Fairfield, CT 06824.

The respondents Reed & Greenwood and Hartford Insurance Group were represented by John Greiner, Esq., Law Offices of David J. Mathis, 55 Farmington Ave., Suite 500, Hartford, CT 06105.

The respondents Reed & Greenwood, AC&S, and Travelers Property & Casualty were represented by Lucas Strunk, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033.

The respondents Cummings Insulation, AC&S, and CNA Insurance Companies were not represented at oral argument. Notice sent to Elizabeth Zaccardi, Esq., Law Offices of Cynthia A. Jaworski, 55 Capital Blvd., Suite 210, Rocky Hill, CT 06067.

The respondents Vedco Insulation and Hanover Insurance Co. were not represented at oral argument. Notice sent to Elycia D. Solimene, Esq., Gibson & Behman, P.C., 71 Bradley Road, Suite 11, Madison, CT 06443.

The respondents Cummings Insulation, D&N Insulation, and Liberty Mutual Insurance Group were not represented at oral argument. Notice sent to Marian Yun, Esq., Law Offices of Rosenbaum & Vollono, 655 Winding Brook Drive, Glastonbury, CT 06033.

The respondents Vedco Insulation and Peerless Insurance Co. were not represented at oral argument. Notice sent to Robert M. Brennan, Esq., Law Offices of Brennan & Turret, 265 Church St., Suite 802, New Haven, CT 06510-7014.

The respondents Gallicchio Brothers and St. Paul Travelers were not represented at oral argument. Notice sent to Timothy Zych, Esq., Sizemore Law Offices, 6 Devine Street, North Haven, CT 06473-2142.

The respondents AC&S and Travelers Property & Casualty were not represented at oral argument. Notice sent to Theodore Pappas, Esq., Law Offices of Scott B. Clendaniel, 300 Windsor St., P.O. Box 2138, Hartford, CT 06145-2138.

The respondents Ayla Corp. and Travelers Property & Casualty were represented by Joseph Passaretti, Esq., Montstream & May, L.L.P., Salmon Brook Corporate Park, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.

The Second Injury Fund was represented by Sarah Posner, Esq., Office of the Attorney General, 55 Elm St., P.O. Box 120, Hartford, CT 06141-0120.

These Petitions for Review from the April 27, 2005 Finding and Award of the Commissioner acting for the Second District were heard October 14, 2005 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Michelle D. Truglia and Nancy E. Salerno.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. Two sets of respondents—the employer Reed & Greenwood and its insurer Hartford Insurance Group, and the employer Reed & Greenwood and AC&S and their insurer Travelers Property & Casualty—have petitioned for review from the April 27, 2005 Finding and Award of the Commissioner acting for the Second District. They contend on appeal that the trier erred by failing to differentiate between the claimant’s smoking-induced emphysema and his asbestos-related lung disease for the purpose of assigning permanent partial disability. We find no error upon review, and affirm the trial commissioner’s decision.

The trial commissioner took administrative notice of an August 13, 2003 Finding and Award, in which it was found that the claimant had worked as an insulator for the majority of his adult life, and was exposed to significant amounts of asbestos working for various employers. The claimant developed lung problems as a result of the asbestos exposure at work, and also has a significant heart and hypertension condition. The trier found that a separate and additional lung injury was caused by the claimant’s long history of cigarette smoking.

Subsequently, three formal hearings were held on additional issues. The trial commissioner found that the claimant had sustained a 25% permanent partial disability to each lung. The claimant’s asbestos exposure was significant, and substantially contributed to his injury and the resulting permanency. The claimant testified that he was exposed to significant amounts of asbestos between 1966 and 1985. The trier found that his last exposure to asbestos occurred while the claimant was working for the respondent Transco, which made Transco and its insurer Zurich American Insurance Co. responsible for administering this occupational disease claim under § 31-299b C.G.S. Based on evidence that included the claimant’s Social Security records, the trier came up with an apportionment scheme that was subsequently revised following the filing of a Motion to Correct by several parties, including the employers D&N Insulation, Vedco Insulation, AC&S, and Cummings Insulation. The final apportionment numbers were: Gallicchio Brothers, 6.25%, Reed & Greenwood, 63.88%, Cummings Insulation, 15.83%, Vedco Insulation, 3.9%, AC&S, 1.22%, Eastern Refractories, .56%, D&N Insulation, .14%, and Transco, 8.83%.

Another Motion to Correct was denied by the trial commissioner following the issuance of the Finding and Award. It had been filed by the respondents AC&S, Reed & Greenwood and Travelers, and among its requests was that the amount of the permanency attributable to the asbestos-induced injury be reduced to 5.625% in light of the claimant’s smoking history. They, along with the respondents Reed & Greenwood and the Hartford Insurance Group, have petitioned for review from the trial commissioner’s decision.

The appellants challenge the trier’s assessment of the medical evidence, claiming that the effects of the two lung injuries are divisible, and that the claimant’s emphysema was not a pre-existing condition within the meaning of § 31-349 C.G.S. or applicable case law such as Gartrell v. Dept. of Correction, 259 Conn. 29 (2002), Cashman v. McTernan School, Inc., 130 Conn. 401 (1943), Strong v. UTC/Pratt & Whitney, 4563 CRB-1-02-8 (August 25, 2003), and Prisco v. North & Judd, 10 Conn. Workers’ Comp. Rev. Op. 154, 1190 CRD-8-91-3 (June 30, 1992). The appellants describe the claimant’s emphysema as an independent, concurrent, and still-progressive condition that is based on cigarette smoke exposure that continued beyond the claimant’s period of asbestos exposure. In assigning permanent partial disability, therefore, they maintain that the trier should have distinguished between the two disease processes and limited the respondents’ liability to a 5% or a 6.25% permanent partial impairment, rather than the full 25%.

In ¶ 14 of his Findings, the trial commissioner states that “Drs. Redlich, Cullen, Godar and Conway all agree the claimant has a 25% permanent partial disability to each lung but have different opinions as to the causation of this permanency; i.e. asbestos exposure v. history of smoking.”1 In reviewing the factual findings, it is our duty to look at the medical evidence and determine whether one or more of these opinions offers competent support for the trial commissioner’s ultimate finding that the claimant’s workplace asbestos exposure substantially contributed to his 25% permanency. See Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151 (1972); Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 451-52 (2001); Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002). If such support is present in the record, it is the duty of this board to uphold that factual finding on review, rather than substituting our own inferences for those of the fact-finder. Warren v. Federal Express Corp., 4163 CRB-2-99-12 (February 27, 2001); Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998).

At the request of the respondents Transco and Zurich American Insurance, Dr. Godar saw the claimant on May 3, 1996, performed a pulmonary examination, took a medical history, and reviewed numerous medical records, including a CT scan. Dr. Godar identified bilateral pleural thickening and localized pleural plaques in the claimant’s lungs, which suggested asbestos exposure. Respondent’s Exhibit 3, pp. 19-20 (December 6, 2001 Deposition of Dr. Godar). Partially calcified plaques visible on the CT scan suggested localized fibrosis, but asbestosis was not present. The doctor testified that by themselves, “plaques have no effect on lung function unless there is substantial pleural thickening that actually entraps the lung, much like a corset.” Id., p. 21.

The claimant’s pulmonary function tests showed good lung volumes and air flows. Gas mixing within the lungs was abnormal, which is normally an incident of emphysema rather than asbestosis. Id., p. 30. Dr. Godar diagnosed chronic obstructive pulmonary disease (COPD) with high-normal lung volumes, which suggested that there was not much fibrosis (formation of fibrous tissue). As of May 3, 1996, Dr. Godar thought the claimant had a 25% impairment of lung function using the AMA guidelines, largely due to the impairment in diffusion capacity. He ascribed 5% of the lung impairment to “likely early asbestosis,” but stressed that what he saw was too minimal to be reflected in lung volumes. Id., pp. 34, 36. He did, however, acknowledge that it was more likely than not that a small fibrotic process permanently disabled up to 5% of the claimant’s lung function. Id., p. 38. As of the 2001 deposition, Dr. Godar believed that a follow-up examination would be necessary to know whether the claimant had developed asbestosis. Id., p. 68. The claimant had shown a lot of stability in his lung condition over a period of time, in terms of not developing further pulmonary fibrosis. Id., p. 46.

A second deposition was taken on May 16, 2002. After reviewing x-rays of the claimant’s chest that were taken on January 15, 2002, Dr. Godar stated that he could see evidence of emphysema and COPD, but the pleural plaques did not appear to be impacting the functioning of the lung. There was not enough pleural thickening in his opinion to produce lung entrapment, and the claimant’s residual air volume upon inhaling was not consistent with restrictive disease. He stated that there was nothing in the x-rays that suggested to him that the claimant had developed asbestos-related fibrosis or asbestosis (a form of pneumoconiosis). Deposition, p. 11. The spirometry tests showed no real change from the tests done in 1996, and it was Dr. Godar’s opinion that the lack of change was indicative of no asbestos-related impairment, either due to the plaques themselves or otherwise. Id., p. 15, 17. The exposure to asbestos was clear from the plaques, but it had not developed into further pathology.

Meanwhile, Dr. Cullen’s July 2, 2002 medical opinion makes a primary asbestos-related diagnosis of pleural disease. Claimant’s Exhibit I. Dr. Cullen wrote that, with regard to the claimant’s impairments, “his overall impairment based on function and symptoms is approximately 25% of both lungs, of which about ¼ can be attributed to asbestos, the remainder to former smoking with obstructive change.” Id. He pronounced the claimant at high risk for the development of lung cancer or mesothelioma based on his exposure history, and suggested that the claimant might benefit from low-radiation spiral CT scan for early detection, though the benefit of that procedure “is unproved in any population including asbestos workers.” Id. Dr. Cullen also mentioned in his report that he had reviewed the claimant’s entire record, including Dr. Godar’s independent medical examination, his depositions, and a “very recent” chest x-ray. Id.

At a September 30, 2002 deposition, Dr. Cullen reiterated his opinion that three-quarters of the claimant’s impairment was related to emphysema and one-quarter to changes associated with asbestos exposure. Claimant’s Exhibit H, pp. 12, 14. He also talked about the synergistic effect of joint tobacco and asbestos exposure, which causes extensions of pleural-based scars into lung fields and extensive scarring in the lungs. Id., pp. 12-13. It was possible in Dr. Cullen’s opinion to have an asbestos-related impairment without a diagnosis of asbestosis, as there are a continuum of asbestos effects, “many of which don’t have easy diagnostic categories and many of which are relatively below the rate of our screen in terms of ease of detection.” Id., p. 19. Specifically, some airway lesions, septal scars and pleural plaques constitute pathologic disease that are not detectable on x-rays or lung function tests. Dr. Cullen also opined that most people with work histories similar to the claimant probably have some impairment attributable to asbestos exposure. Id., 21. Though both emphysema and septal scarring can cause a low diffusing capacity, it was likely that the claimant’s diffusion capacity decrease was due to both. Id., p. 31.

Dr. Cullen’s opinion provides adequate support for the trial commissioner’s finding that the claimant’s asbestos exposure substantially contributed to his 25% permanent partial disability of the lungs. The trier was entitled to accept his reasoning over that of Dr. Godar insofar as their opinions were in conflict. “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.” Strong v. UTC/Pratt & Whitney, 4563 CRB-1-02-8 (August 25, 2003). Moreover, Dr. Cullen talked about the interplay between asbestos and smoke exposure that contributes to the claimant’s overall permanency, based on his experience studying “this population of jointly exposed men.” Claimant’s Exhibit H, p. 13. The ongoing effects of the claimant’s asbestos exposure were not described by Dr. Cullen as being self-limiting. Thus, it was reasonable to conclude that the effects of the asbestos exposure have continued over time to produce an impairment, whether the progression has happened of its own volition, or in conjunction with the claimant’s smoking-induced emphysema.

Contrary to the respondents’ suggestion, the claimant’s smoking-related emphysema need not be treated separately for the purpose of assigning liability for the lung permanency, even if some doctors calculated the percentage of the impairment that was caused by asbestos exposure. It has long been a fundamental principle of workers’ compensation law that an employer takes the employee as it finds him, and that any statutory variation from that principle must be construed to work a minimum encroachment on that rule. Gartrell v. Dept. of Correction, 259 Conn. 29, 40 (2002); Cashman v. McTernan School, Inc., 130 Conn. 401, 407 (1943); Bongialotte v. Lines Co., 97 Conn. 548, 551-52 (1922). “We eschew a narrow and technical reading of our workers’ compensation statutes in favor of one that promotes compensability” in light of the humanitarian and remedial purposes of the Workers’ Compensation Act. Gartrell, supra, 40, 41-42.

As an example, we cite the provision in § 31-275(1)(D), which is discussed by both parties in their briefs. This subsection states that “[f]or 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,” and has been construed to apply only to cases in which a compensable injury follows a pre-existing occupational disease. Gartrell, supra; Cashman, supra. Based upon the reasoning of Cashman and the language of § 31-349 C.G.S.2, “Where no pre-existing impairment due to occupational disease is present, the employer as in the law of torts takes the victim as it finds him and pays for the entire resultant disability.” Prisco v. North & Judd, 10 Conn. Workers’ Comp. Rev. Op. 154, 157, 1190 CRD-8-91-3 (June 30, 1992). Thus, where a compensable injury occurs and results in disability, the law first and foremost ensures that the claimant is compensated for the entire disability before carving out exceptions to recovery based on theories of apportionment or otherwise. See Hatt v. Burlington Coat Factory, 263 Conn. 279, 317-18 (Borden, J., concurring)(doubting existence of viable common-law apportionment theories in workers’ compensation law, which is completely governed by statute).

The respondents’ argument that the claimant’s smoking-related emphysema is not a pre-existing disease, but rather a concurrently developing condition, may aid them in their effort to avoid the precedential effect of Gartrell and Cashman insofar as those cases interpret § 31-275(1)(D). However, that argument does not undo the foundational tenet that the employer is responsible for the effects of a compensable injury, even if that injury’s toll on a particular claimant is unexpectedly severe because of the way it collaborates with other health problems. Here, the employers and insurers that were on the risk during the claimant’s period of asbestos exposure are responsible for the effects of that occupational exposure on the claimant, with apportionment rights amongst themselves under § 31-299b. There is no legal remedy that allows those employers to avoid liability for whatever portion of the claimant’s lung impairment might be traceable to non-work-related emphysema, insofar as it was one of two conditions that combined to cause a single impairment.

The facts of this case are similar to those of Strong, supra, and we believe that the reasoning of Strong is applicable in this situation. In Strong, the claimant was found to have a 32% lung reduction due to work-related asbestosis, and a 16% reduction due to pre-existing emphysema caused by cigarette smoking. This board held that no apportionment of permanency was available to reduce the respondents’ liability for the 48% permanent partial impairment. We also rejected the respondents’ argument that the claimant’s emphysema was not truly a pre-existing condition, but a concurrent disease process, thereby requiring the respondents to be relieved of liability for the portion of the lung impairment due to emphysema. “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.” Id.

To that end, we note that in the instant case, Dr. Cullen’s medical opinion placed responsibility for the claimant’s lung impairment on his asbestos exposure and on his “former smoking,” rather than on any smoking that occurred after the disease symptoms had begun to develop. Whether a future worsening of the claimant’s permanency solely attributable to cigarette smoking would be compensable is a separate question that we need not answer here. The claimant’s asbestos exposure and the presence of pleural plaques in his lungs may, of course, continue to play a role in the evolution of further permanency, which would complicate the matter both medically and legally. We note, though, that the reasoning followed in this case has been developed via case law over the last several years, and our legislature has not seen fit to change it.

The trial commissioner’s decision is accordingly affirmed.

Commissioners Michelle D. Truglia and Nancy E. Salerno concur.

1 We note that the March 10, 2004 report from Dr. Conway’s § 31-294f commissioner-ordered examination was not entered into evidence as an exhibit. As is the case with any medical report, such an examination must be entered as an exhibit or administratively noticed before this board may consider it on appeal as part of the record. See Ruilova v. Accurate Electronics, Inc., 3211 CRB-4-95-11 (January 16, 1997); Mahoney v. Bill Mann Tree Service, 3025 CRB-4-95-3 (October 4, 1996). Therefore, we will not refer to the contents of that report in our decision. BACK TO TEXT

2 Section 31-349(a) states in relevant part that “The fact that an employee has suffered a previous disability, shall not preclude him from compensation for a second injury, nor preclude compensation for death resulting from the second injury. If an employee having a previous disability incurs a second disability from the second injury resulting in a permanent disability caused by both the previous disability and the second injury which is materially and substantially greater than the disability that would have resulted from the second injury alone, he shall receive compensation for (1) the entire amount of disability, including total disability, less any compensation payable or paid with respect to the previous disability, and (2) necessary medical care, as provided in this chapter, notwithstanding the fact that part of the disability was due to a previous disability. . . .” Liability for injuries occurring on or after July 1, 1995 may no longer be transferred to the Second Injury Fund pursuant to § 31-349(d), which requires that such claims remain the responsibility of the employer or its insurer. BACK TO TEXT

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