CASE NO. 5167 CRB-8-06-12
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JANUARY 17, 2008
MARJORIE VORONUK, Dependent widow of JOSEPH VORONUK, Deceased
ELECTRIC BOAT CORPORATION
LIBERTY MUTUAL INSURANCE COMPANY
The claimant was represented by Amy Stone, Esq., and Richard L. Gross, Esq., O’Brien, Shafner, Stuart, Kelly & Morris, 475 Bridge Street, P.O. Drawer 929, Groton, CT 06340.
The respondent-employer was represented by Peter D. Quay, Esq., Law Offices of Peter D. Quay, P.O. Box 70, Taftville, CT 06380.
The respondent-insurer Travelers and ACE USA were represented by Michael McAuliffe, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.
The respondent-insurer Liberty Mutual Insurance Company was represented by Marian Yun, Esq., Law Offices of Rosenbaum and Vollono, 655 Winding Brook Drive, Glastonbury, CT 06033.
This Petition for Review from the November 28, 2006 Finding and Dismissal of the Commissioner acting for the Second District was heard October 19, 2007 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Amado J. Vargas and Scott A. Barton.
JOHN A. MASTROPIETRO, CHAIRMAN. The trial commissioner dismissed this claim for § 31-306 C.G.S. benefits deeming the medical evidence linking the decedent’s death to work-related asbestosis failed to meet the requisite standard to grant such an award. The claimant has appealed based on her belief that she need only have proven her husband’s work-related asbestosis was a contributing factor in his death; and did not need to prove it was a substantial factor or a significant contributing factor. We believe the trial commissioner’s decision herein correctly applied the legal precedent governing the sufficiency of medical evidence. Our review of the medical evidence also leads us to conclude the finder of fact reached a reasonable determination based on the totality of the evidence; and this was not a case which hinged on whether a witness used certain “magic words” in their testimony. Therefore, we uphold the trial commissioner and dismiss this appeal.
The trial commissioner reached the following findings of fact in his Finding and Dismissal dated November 28, 2006. The decedent had testified via deposition in 1989, prior to his demise. He had testified that he had first worked for the respondent Electric Boat in 1942 as a shipfitter, and had worked there at that time for six months to a year being exposed to asbestos. He was later, following a period of military service, exposed to asbestos working at the Thermos Company Findings, ¶¶ 1-4. In 1951 Mr. Voronuk resumed working at Electric Boat as a carpenter and continued working there until retiring in 1986. He testified he was exposed to asbestos as part of his work. Findings, ¶¶ 5-6. He was examined by Dr. Paul Gerity for complaints of chest pain in 1982. Dr. Gerity’s notes indicate the decedent feared his 30 years of exposure to asbestos made him susceptible to asbestosis. He continued to treat with Dr. Gerity and Dr. William Crawford for complaints of chest pain, headache, elbow and hand injuries. In 1985 he underwent an asbestosis workup at the respondent’s request which was performed by Boston University Medical Center. Following this examination, the claimant became aware he had asbestosis and that medical records of January 5, 1986 first make mention of the decedent’s asbestosis. The decedent filed a Form 30C on March 17, 1986, claiming lung disease as a result of “exposure to lung irritants.” He retired that year from Electric Boat. Findings, ¶¶ 7-10.
Following his retirement, the decedent continued to treat his worsening lung condition. In September of 1993 the decedent was hospitalized and diagnosed with congestive heart failure, cardiomyopathy, asbestosis and COPD. He was hospitalized again in July of 1994 and November 1994 and was diagnosed with congestive heart failure, pleural effusions, cardiomegaly, COPD, asbestosis and hypoxia. The decedent died on October 13, 1995. The stated cause of death was cardiac arrest due to cardiomegaly which was caused by congestive heart failure. Findings, ¶¶ 11-14.
The decedent had been married since 1947 to the claimant, Marjorie Voronuk, who filed a Form 30C seeking survivor’s benefits on December 6, 1995. On June 5, 1996 Dr. Mark Cullen of Yale University offered an opinion following a review of the decedent’s medical records “that underlying restrictive lung disease was a contributory factor in the development of cardio-respiratory failure which ultimately caused his demise in 1995. Since his interstitial lung disease was due to asbestosis, I could consider his work exposure contributing to his death.” The claimant, Mrs. Voronuk, asserted she had filed a timely claim and met her burden of proof that the decedent’s death was caused in part by his exposure to asbestos at the respondent’s premises. The respondent challenged the timeliness and the sufficiency of the claim. Findings, ¶¶ 15-20.
Based on those subordinate facts, the trial commissioner concluded that the decedent’s original claim was timely. He concluded that, while the decedent’s death was caused in part by exposure to asbestos, the claim for survivor benefits must be denied as that no physician or medical report opined that this exposure and resulting asbestosis was a substantial and/or significant contributing factor to his death. The claimant has appealed from this dismissal.
In her appeal, the claimant asserts that “[t]his is not a case in which the claimant is appealing the Commissioner’s findings of fact.” Claimant’s Brief, p. 6. She correctly points out the holding of Struckman v. Burns, 205 Conn. 542 (1987) establishes that certain specific words are not required to appear in the text of an opinion for such an opinion to be relied on by this commission. She later cites early precedent applying the Workers’ Compensation Act, Smirnoff v. McNerney, 112 Conn. 421 (1930) for the proposition “[t]he word ‘contribute’ carries in itself the significance of a causal connection between the negligence and the injury.” Claimant’s Brief, p. 12. Since the claimant believes the Smirnoff precedent makes the term “contribute” the functional equivalent of “substantial,” she believes as a matter of law the trial commissioner erred by not awarding her survivor benefits since the trial commissioner did find some causal connection between the claimant’s death and asbestos exposure. We are not persuaded by this argument.
We have reviewed the manner appellate courts have applied the Smirnoff case in the 78 years since it was decided. We find that they actually have used this case to apply the “substantial factor” test which the trial commissioner utilized in the case presently before this Board. In a later case involving a negligence claim, Kinderavich v. Palmer, 127 Conn. 85 (1940), the Supreme Court cited Smirnoff for the proposition. “The ultimate test is, was the plaintiff’s act or omission a substantial factor in producing injury,” Id., 96.
The Supreme Court later in McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104 (1987) cited a case predating Smirnoff for the proposition a contribution to an injury could be legally insubstantial “In the case of Norton v. Barton’s Bias Narrow Fabric Co., 106 Conn. 360, 364, 365, 138 A. 139 , we said: ‘It is not sufficient that the conditions of the employment contributed to some undefined degree to bring on the disability from which the employee suffers. In the production of results many circumstances often play a part of so minor a character that the law cannot recognize them as causes. . . .’” Id., 117-118. Following the McDonough decision the Appellate Court applied the “substantial factor test” in Dixon v. United Illuminating Co., 57 Conn. App. 51 (2000). They pointed out that while the claimant did not have to prove work related issues were the sole factor in the injury at issue; she did need to prove they were “substantial contributing factors.” Id., n.7.
The claimant would suggest that pursuant to O’Reilly v. General Dynamics Corp., 52 Conn. App. 813 (1999) the claimant was not obligated to produce expert testimony that used the specific term “substantial.” In O’Reilly the court held that in the absence of such a “magic word” standard, an expert’s testimony “is determined by looking at the entire substance of testimony.” Id., 817-818. We shall examine Dr. Cullen’s report (Claimant’s Exhibit DD) and determine whether the trial commissioner reasonably could have concluded, after considering its entirety, that it did not in a de facto manner opine asbestosis was a “substantial” factor in Mr. Voronuk’s demise.
Dr. Cullen’s report (Claimant’s Exhibit DD) stated “underlying restrictive lung disease was a contributory factor in the development of cardiorespiratory failure which ultimately caused his demise in 1995. Since his interstitial lung disease was due to asbestosis, I would consider his work exposure contributory to his death.” Dr. Cullen also stated in this report the presence of other contributory factors. The report lacks any evaluation as to the relative weight of the factors, and it would be conjecture to infer Dr. Cullen had an opinion as to the relative significance of any specific risk factor from the text of the report.1 “‘As with any discretionary action of the trial court, appellate review requires every reasonable presumption in favor of the action, and the ultimate issue for us is whether the trial court could have reasonably concluded as it did.’ Daniels v. Alander, 268 Conn. 320, 330 (2004).” Rizzo v. Stanley Works Hand Tools Division, 5106 CRB-6-06-6 (November 21, 2007). We do not believe the trial commissioner acted unreasonably by not inferring that Dr. Cullen found work was a substantial factor in the death of Mr. Voronuk; similar to a medical report determining the date of MMI in Rizzo, supra; such a conclusion was not readily stated in the text of the document. “[I]t is the trial commissioner’s function to assess the weight and credibility of medical reports and testimony. . . .” O’Reilly, supra, 818.
We also note that the record before the trial commissioner clearly presented undisputed evidence of non-work related factors behind the decedent’s fatal illness; including diabetes and a long history of cigarette use. Claimant’s Exhibit A & Exhibit CC. Based on the record as a whole, we cannot find the trial commissioner’s conclusions “clearly erroneous.”
Finally, at oral argument before this Board the claimant argued that our decisions in Birnie v. Electric Boat Corporation, 4947 CRB-2-05-5 (May 15, 2006) and Levarge v. Electric Boat Corporation, 4884 CRB-8-04-11 (November 30, 2005), appeal dismissed for lack of final judgment, 282 Conn. 386 (2007) are inconsistent with the trial commissioner’s decision in this case. As both Birnie and Levarge involved extending collateral estoppel to decisions on causation reached in a contested hearing awarding Longshore Act (33 U.S.C. § 901 et seq.) benefits to the claimant, we find them factually distinguishable and inapplicable to this case. There was no prior determination of causation in this case made in a Longshore Act proceeding; hence, there can be no collateral estoppel.2
As a result, we conclude the trial commissioner’s determination was a reasonable exercise of his discretion. The burden of proof in a Workers’ Compensation claim for benefits rests with the claimant. Dengler v. Special Attention Health Svcs., Inc., 62 Conn. App. 440 (2001); Lentini v. Connecticut College, 4933 CRB-2-05-4 (May 15, 2006). The evidence presented by the claimant simply, as a matter of law, did not compel the trial commissioner to issue an award for § 31-306 C.G.S. benefits. We affirm the Finding and Dismissal and dismiss this appeal.
Commissioners Amado J. Vargas and Scott A. Barton concur in this opinion.
1 Claimant’s brief points out a variety of synonyms for “substantial,” i.e. “worthwhile” or “significant.” McDonough, supra and “important.” Sager v. GAB Business Systems, 430 CRD-3-85 (March 23, 1988). None of these terms appear in Dr. Cullen’s report to describe the impact asbestosis had on the decedent’s fatal injury. At oral argument counsel for the claimant stated Dr. Cullen offered similar testimony which was found sufficient in the Muldoon v. Homestead Insulation, Co., 231 Conn. 469 (1994) case. Actually, the issue at bar in Muldoon was whether additional asbestos exposure was a substantial factor in the claimant’s deteriorating condition. Dr. Cullen testified “I would have to attribute at least some of this progression to the continued work with reasonable medical certainty.” Id., 478. We believe the factual circumstances in Muldoon are substantially different and a reasonable fact-finder could have found Dr. Cullen’s testimony in Muldoon more definitive than in this case. BACK TO TEXT
2 The record in Levarge indicated that a physician ascribed a “substantial quantity” of causation of that illness to asbestos; while in Bernie a physician described work-related lung illness as “a significant factor” behind a fatal coronary event. Such opinions as to weight of the work related illness are not present in the case at bar. BACK TO TEXT