CASE NO. 5139 CRB-2-06-10
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
NOVEMBER 19, 2007
The claimant was represented by Richard L. Gross, Esq., and Richard P. Gudis, Esq., O’Brien, Shafner, Stuart, Kelly & Morris, 475 Bridge Street, P.O. Drawer 929, Groton, CT 06340.
The respondents were represented by David C. Davis, Esq., McGann, Bartlett & Brown, 111 Founders Plaza, Suite 1201, East Hartford, CT 06108.
This Petition for Review filed from the September 28, 2006 Finding and Award of the Commissioner acting for the Second District was heard April 27, 2007 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Amado J. Vargas and Scott A. Barton.
This appeal concerns a claimant, Ronald Chappell, who has asthma and was a long time employee at the Pfizer pharmaceutical plant in Groton. He has sought compensation under Chapter 568 asserting his asthma is an occupational disease attributable to his employment at Pfizer, where he was exposed to various biohazards involved in the manufacturing process. The commissioner acting for the Second District has found this claim meritorious. On appeal, we conclude this matter involves the weighing and evaluation of evidence. We defer to the trial commissioner’s judgment in this instance and uphold his Finding and Award.
The trial commissioner found the following facts after a formal hearing which commenced June 1, 2006 with the record closed July 14, 2006. The claimant was employed by Pfizer in various capacities from 1966 to 1992, when he retired. For the first 15 years of his employment he worked as a chemical operator in the fermentation department, where he was exposed to a proprietary substance identified as “815,” sugar, flour, acrostic formaldehyde, soybean meal, blood meal, and ground-up chicken parts.
These materials would be dumped in tanks and underwent a fermentation process to make Penicillin, Terramycin, and Streptomycin. The claimant testified that one of his job duties was to clean the tanks, and the cleaning process involved the use of heat and steam to vent the material into the atmosphere. He testified that he did not wear and was not given any protective clothing.
The claimant first exhibited breathing problems in 1978 which were initially attributed to pipe smoking. In 1981 the claimant suffered his first pneumothorax; the cause of which the claimant testified was hereditary as a result of his height, which is also known as “Tall man’s disease.” In 1982, 1983, 1984, 1988, and 1989 the claimant was examined as part of a routine health-monitoring program by the respondent-employer which did not reveal any pulmonary conditions. In 1985 the claimant had a recurrent right-side pneumothorax resulting in surgery and in 1986 the claimant had a chest x-ray which was read as indicative of underlying emphysema. An x-ray taken on October 24, 1988 was read as COPD pleural and parenchymal scarring right base.
On August 29, 1990 the claimant was evaluated by Dr. Urbanetti, a pulmonary doctor, who suspected irritable airways disease with superimposed “dry” bronchitis and unknown effects of prior history of asbestos exposure, and was put on a trial of inhaled bronchodilators. In 1989 the claimant participated in a Lawrence and Memorial Yale University Cancer prevention study which indicated a history of emphysema and paroxysmal tachycardia as well as potential evidence of asbestosis. In 1995 the claimant was admitted to Yale New Haven Hospital with pulmonary problems. Their records reference a diagnosis of COPD and testing revealed possible tuberculosis with an impression of right upper lobe collapse, bilateral fibronodular lesions and asymmetric pleural thickening.
In 1997 the claimant was seen by Dr. Urbanetti with the impression of obstructive airways disease with persistent bronchitis. He diagnosed the claimant in 1998 with obstructive airways disease with environmental exacerbation. The claimant was treated by Dr. Urbanetti for obstructive airways disease until 2001. On January 31, 2002, the claimant was examined by Dr. Robert Keltner wherein the claimant was diagnosed with acute bronchitis with mild exacerbation of underlying chronic obstructive airways disease with significant asthmatic component. January 31, 2002 was the claimant’s first diagnosis of asthma.
The claimant filed a Form 30C on June 28, 2002 asserting he had suffered a compensable injury. The respondents filed a timely Form 43 contesting liability. The respondents had the claimant examined by Dr. Michael Conway, who concluded that the claimant’s primary underlying respiratory illness is asthma which started with his exposure to the fermentation tanks at Pfizer. Dr. Conway also testified that the claimant was exposed to an organic substance in the fermentation process which led to an inflammatory response. Dr. Conway noted that Dr. Urbanetti thought the claimant had irritable airways disease on August 30, 1990, which Dr. Conway considered synonymous with asthma, but a layperson would not automatically know the distinction and the claimant’s respiratory ailments has proven a tough disease to diagnose.
Based on the aforementioned factual findings, the trial commissioner concluded that the claimant had established that he had contracted asthma as a result of his exposure to organic chemicals during his employment at Pfizer. While the first diagnosis of obstructive airways disease was in 1998, the claimant could not have identified this as asthma until 2002; therefore his occupational disease claim was brought in a timely fashion. The trial commissioner further found the claimant’s asthma is peculiar to his occupation as a chemical operator in the fermentation department at the respondent-employer and is due to exposure to an organic substance in the fermentation process which is a cause in excess of the ordinary hazards of employment and constitutes an occupational disease.
The respondents filed a Motion to Correct seeking factual corrections focusing on two themes: a) that the claimant should have been aware he had a diagnosis of asthma well prior to 2002; and b) that the evidence in the record was inadequate to establish the claimant suffered an occupational disease and was only sufficient to establish he had suffered a repetitive trauma. Both such themes were consistent with finding the claimant’s Form 30C was untimely to provide the Commission with jurisdiction over the injury. The trial commissioner denied the corrections and this appeal ensued.
As a threshold matter, we must ascertain if the claim for benefits in this matter confers jurisdiction on the Commission. The relevant statute is § 31-294c(a) C.G.S. It states:
a) No proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident or within three years from the first manifestation of a symptom of the occupational disease, as the case may be, which caused the personal injury, provided, if death has resulted within two years from the date of the accident or first manifestation of a symptom of the occupational disease, a dependent or dependents, or the legal representative of the deceased employee, may make claim for compensation within the two-year period or within one year from the date of death, whichever is later. Notice of a claim for compensation may be given to the employer or any commissioner and shall state, in simple language, the date and place of the accident and the nature of the injury resulting from the accident, or the date of the first manifestation of a symptom of the occupational disease and the nature of the disease, as the case may be, and the name and address of the employee and of the person in whose interest compensation is claimed. An employee of the state shall send a copy of the notice to the Commissioner of Administrative Services. As used in this section, “manifestation of a symptom” means manifestation to an employee claiming compensation, or to some other person standing in such relation to him that the knowledge of the person would be imputed to him, in a manner that is or should be recognized by him as symptomatic of the occupational disease for which compensation is claimed.
In their brief, it appears the respondents have abandoned their argument that the claimant should have known he had asthma well prior to 2002 thus making an occupational disease claim time barred by statute. We believe the Supreme Court’s opinion in Ricigliano v. Ideal Forging Corp., 280 Conn. 723 (2006) is dispositive of this issue, since it restates the concept of scienter as delineated in Bremner v. Eidlitz & Son, Inc., 118 Conn. 666 (1934), noting that since “‘[m]ost symptoms of disease are not peculiar to one disease alone and their recognition is matter largely within the field of expert medical knowledge,’ many diseases are not linked exclusively to one cause and it may take advances in medical knowledge to establish the workplace connection.” Ricigliano, supra, 739-740.
The argument now advanced by the respondents is that the nature of the claimant’s injury is that of a repetitive trauma, not that of an occupational disease. We note some strategic concerns with this approach. First, we note that there is not a separate statutory timeline for “repetitive trauma.” The case of Discuillo v. Stone & Webster, 242 Conn. 570 (1997) noted that § 31-294c C.G.S. provided limitations periods only for accidental injuries and occupational diseases, id., 574-75, and the Supreme Court determined that the plaintiff's claim had to fall within one of the two categories under § 31-294c C.G.S. In Discuillo the claimant’s ailment was a heart attack which the Court found was easily determined to be an accidental injury.
The factual scenario in the present case is substantially different as the claimant suffered long term exposure to airborne irritants and a gradual progression of various lung ailments. The Supreme Court in Discuillo concluded that when a claimant suffers an accidental injury, such an injury commences the clock to run to file a claim under the statute and the claimant could not save a late claim by asserting he was unaware of a causal connection between his injury and his employment until after the statute had run. Our precedent has been that for a repetitive trauma claim we have calculated the statute of limitations to commence from the date of last exposure, thus limiting the period to file to one year from the last exposure. See Discuillo, supra, and Crochiere v. Board of Education, 227 Conn. 333 (1993). In the Discuillo case the claimant stopped working after his heart attack, making that the date of last exposure. Therefore, the facts supported the same timeline to file either under a repetitive trauma approach or treating the injury as a single event, particularly as the Court held “in this regard, we first note that the plaintiff’s heart attack does not closely resemble an occupational disease.” Id., 578 (Emphasis in original).
The rationale advanced by the Supreme Court was basically even under the most favorable reading of the claimant’s argument in Discuillo, the causation of his heart attack could not be deemed an occupational disease since the alleged causes were common to such a wide variety of occupations “[t]hus, it cannot be said that the plaintiff’s heart attack resulted from an occupational disease because his job and experiences as a painter were no more likely to cause his heart attack ‘than would other kinds of employment carried on under the same conditions.’” Id., 579.
The respondents place great weight on the precedent in Discuillo and another case involving coronary disease Malchik v. Division of Criminal Justice, 266 Conn. 728 (2003) as barring a claim for occupational disease in this instance. We are not willing to place such great weight on these cases in resolving the factual scenario herein. In Malchik the trial commissioner found the claimant “introduced no credible evidence that would support his claim that his cardiac condition was a disease peculiar to his occupation and due to hazards in excess of employment.” Id., 733. In the present case the trial commissioner applied the same legal standard as the trial commissioner in Malchik but found as a factual matter the claimant did prove his case. More importantly, we take administrative notice of the burden claimants have in establishing an occupational nexus to coronary disease. The Centers for Disease Control has pointed out that heart disease is the number one cause of death in the United States accounting for 29% of deaths in America. http://www.cdc.gov/dhdsp/announcements/american_heart_month.htm (last visited 11/7/07).1
Consequently, we take appropriate notice that while Mr. Discuillo and Mr. Malchik could not prove their coronary disease met the statutory requirements to be considered an “occupational disease;” that fact may not have conclusive effect as to whether a pharmaceutical worker can causally link asthma to his exposure to inhalants. The trial commissioner found sufficient evidence that the claimant suffered an occupational disease as defined in § 31-275(15) C.G.S. This requires a finding that the claimant suffered from “any disease peculiar to the occupation in which the employee was engaged and due to causes in excess of the ordinary hazards of employment as such.”
Unlike the aforementioned coronary cases, we believe precedent in cases where claimants have asserted they suffered an occupational disease due to exposure to specific agents provides better guidance. In Hansen v. Gordon, 221 Conn. 29 (1992) the claimant was a dental hygienist who contracted hepatitis type B. In that case the Supreme Court pointed out “[w]e have never held that a disease must be of the type that can be contracted solely in the work place, either in a general sense or from the claimant’s particular type of employment.” Id., 35. Instead the standard was an occupational disease “need not be unique to the occupation or the work place; it need merely be ‘so distinctively associated with the employee’s occupation that there is a direct causal connection between the employment and the disease contracted.’” Id. The Supreme Court upheld the determination of the trial commissioner and this board that a dental hygienist had a particular risk of contracting hepatitis due to exposure to blood and other bodily fluids, thus making hepatitis an occupational disease. Id., 37.
The Supreme Court also decided that exposure to the HIV virus was peculiar to and distinctively associated with one’s employment as an emergency response correction officer in Estate of Doe v. Dept. of Correction, 268 Conn. 753 (2004). The respondents in Doe argued that the claimant should be limited to the statutory time limitations for repetitive trauma injuries, but the Supreme Court rejected this argument citing Hansen supra, “[s]imilar to the duties of the dental hygienist in Hansen, the duties of employment for members of the emergency response unit requires participation in employment activities that increase their risk of exposure to a blood borne disease.” Id., 762.2
The respondents concede on appeal that Mr. Chappell got sick because he worked at Pfizer. “The respondents do not dispute that Mr. Chappell’s employment in the Fermentation Department caused an inflammatory pulmonary injury diagnosed as asthma.” Respondents’ Brief, p. 13. They argue that the evidence in the record would only support a finding of repetitive trauma, thus making this claim time barred.3 The trial commissioner determined that the claimant’s testimony and that of the respondent’s examiner, Dr. Conway, established that the asthma was peculiar to the claimant’s employment and in excess of the ordinary hazards of employment. Findings, ¶ I.
We must determine if the evidence supports this finding. We note that the claimant’s testimony clearly describes a work environment substantially different from that of the usual production worker as related to exposure to airborne organic irritants. Much as the emergency response correction officer in Doe, supra, would have a greater risk of exposure to bodily fluids than the average state employee, we believe the uncontradicted testimony of the claimant establishes he was exposed to a variety of airborne agents (“815,” sugar, flour, acrostic formaldehyde, soybean meal, blood meal, and ground-up chicken parts) during their fermentation process in a fashion far in excess of the normal Pfizer employee.
While the trial commissioner certainly was entitled to find the claimant’s account of his working conditions credible, Berube v. Tim’s Painting, 5068 CRB-3-06-3 (March 13, 2007), we believe that this case must apply the holding in Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151 (1972) which requires expert testimony to be offered on medical issues beyond the scope of common knowledge. The trial commissioner credited Dr. Conway with testimony consistent with the claimant’s position. We must determine if this conclusion was supported by the evidence.
At his deposition of May 1, 2006 Dr. Conway testified as follows regarding his diagnosis of the claimant:
Q: Doctor, after reviewing all of the information that was sent to you and the testing you performed here in the office and your discussion with Mr. Chappell, did you reach an opinion with respect to a diagnosis?
A: Yes. I felt he had asthma. I felt that the asthma---asthmatic component was secondary to the work in the fermentation tanks at Pfizer. I felt he also had COPD. I couldn’t exclude an element of cigarette-induced disease, but as I emphasized in my letter, without the exposure to the fermentation tank, I felt that the asthma would not have occurred…
(Emphasis added) Respondents’ Exhibit 1, p. 14.
Dr. Conway further testified that the symptoms of asthma “started soon after he began working at the fermentation areas at Pfizer and later progressed.” Respondents’ Exhibit 1, p. 17. He specifically identified “all of the exposures to the fermentation tanks” as the point in time when the claimant became symptomatic. Id. In his October 31, 2005 report Dr. Conway stated “while one cannot ignore the nonoccupational contribution of cigarette smoking, but for the exposure to the fermentation tanks, I think he would not have been sick to this degree.” (Emphasis added).
As a result, we believe the trial commissioner was presented with credible expert testimony that the claimant’s specific job duties at the Pfizer fermentation tanks were a direct cause of his current ailments. This meets the standard of proving the injury occurred in the course of employment. Doe, supra, 768. By specifically identifying an uncommon source of exposure as the source of the claimant’s ailments, we believe Dr. Conway’s testimony meets the standard of proving “a direct causal connection between the duties of the employment and the disease contracted.” Hansen, supra, 35.
While the respondents may believe the circumstances of this case did not create a “peculiar” risk for the claimant, we believe the trial commissioner could reasonably reach the opposite conclusion, that such a situation was “a hazard which distinguishes it in character from the general run of occupations.” Glodenis v. American Brass Co., 118 Conn. 29, 40 (1934). We find the trial commissioner reached a decision consistent with the law and the evidence presented; hence we affirm the Finding and Award and dismiss the appeal.4
Commissioners Amado J. Vargas and Scott A. Barton concur in this opinion.
1 A similar issue arose in Hummel v. Marten Transport, LTD, 4667 CRB-5-03-5 (May 3, 2004), appeal dismissed for lack of final judgment, 90 Conn. App. 9 (2005), cert. granted, 275 Conn. 913 (2005), aff’d, 282 Conn. 447 (2007) where the respondents argued the facts of that case (truck driver died of stress induced heart attack) did not rise to the level of occupational disease.” Unlike Malchik and Discuillo the claimant offered expert testimony linking job duties to the causation of the injury. Nonetheless, we reasoned that since that claim was brought within one year of both the last exposure and the heart attack, the claim was timely under any of the three theories of recovery. We also note that in the terms of the heart and hypertension statute the Appellate Court requires evidence that such ailments are an occupational disease for the longer statute of limitations to be granted Zaleta v. Fairfield, 38 Conn. App. 1 (1995). BACK TO TEXT
2 The respondents have criticized the rationale of the trial commissioner in the present case as involving “specious reasoning,” Respondents’ Brief, p. 11, as he found the peculiar nature of the claimant’s employment was probative in finding that the claimant suffered an “occupational disease.” However, the same reasoning was applied in Doe by the Supreme Court as the majority found the specific duties of an emergency response officer created a peculiar risk to exposure to bodily fluids; as opposed to correction officers in general. Id., 761-762. In his concurrence, Chief Justice Sullivan suggested all correction officers were subject to similar risks. Id., 769-774. We can take administrative notice that responding to altercations and injuries is not the only means in which HIV can be contracted. Both the majority and the concurrence in Doe focused however on the peculiar nature of a correction officer’s duties in finding HIV can be deemed an occupational disease for this occupation. BACK TO TEXT
3 The facts of this case indicate that the claimant had not received any medical diagnosis linking his respiratory condition to his employment at Pfizer within one year of his leaving their employment. Therefore, he would not have had cause to have filed a repetitive trauma claim within the statutory deadline and his timeline to file an occupational disease claim did not ripen until he obtained scienter. Ricigliano, supra. BACK TO TEXT
4 The respondents raised the denial of their Motion to Correct as error in their Reasons for Appeal. They did not raise these issues either in their brief or in oral argument; hence we deem them abandoned on appeal. Cummings v. Twin Tool Mfg., Co., 40 Conn. App. 36, 45 (1996). BACK TO TEXT