State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Herbert v. State of Connecticut/Department of Correction

CASE NO. 5547 CRB-8-10-4

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

SEPTEMBER 13, 2012

BEVERLY HERBERT

CLAIMANT-APPELLANT

v.

STATE OF CONNECTICUT/DEPARTMENT OF CORRECTION

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLEE

and

GAB ROBINS NORTH AMERICA

ADMINISTRATOR

APPEARANCES:

The claimant appeared on her own behalf at oral argument. At the trial level the claimant was represented by Michael D. Quinn, Esq., Mahon, Quinn & Mahon, P.C., 636 Broad Street, PO Box 2420, Meriden, CT 06450.

The respondent was represented by Philip M. Schulz, Esq., Assistant Attorney General, Office of the Attorney General, 55 Elm Street, PO Box 120, Hartford, CT 06141-0120.

This Petition for Review1 from the March 24, 2010 Finding and Dismissal of the Commissioner acting for the Eighth District was heard April 27, 2012 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Jodi Murray Gregg and Clifton E. Thompson.2

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The appeal herein is based on the claimant’s belief that her respiratory ailments are the result of conditions she contracted at her workplace. The trial commissioner considered the evidence she submitted to support this position as well as evidence submitted by the respondent which challenged the claim. The trial commissioner found the respondent’s evidence more persuasive and dismissed the claim. On appeal, we conclude that this decision was based on the commissioner’s weighing and evaluation of factual evidence. As an appellate panel we may not reweigh the evidence; therefore we affirm the Finding and Dismissal.

The trial commissioner reached the following findings of fact at the conclusion of the formal hearing. The trial commissioner found the claimant was employed by the respondent as a social worker on September 11, 2007, and had been employed by the respondent in that capacity for over twenty years. On that day, the claimant was working at York Correctional Center, Building 13, Room 104. It was raining that day and the claimant believed there was a leak in her office. The claimant went to locate a bucket and when she returned she could not identify a leak; but she did notice discolored ceiling tiles. The claimant testified that within a few minutes she began experiencing symptoms of coughing and sneezing, her head and ears filled up, and she felt dizzy and nervous. The claimant testified she was in the office that day for approximately thirty minutes.

The claimant said she called her supervisor to report her symptoms and called maintenance to replace the tile. She left the office and went to another building to prepare an incident report. She then left for the day and the next day returned to her office and tried to work there. She says she experienced similar symptoms and the symptoms worsened by 11:00 a.m., when she was told she could work in another office. She sought treatment that day from her primary care physician, Dr. Edward McDermott. Dr. McDermott noted that at that visit the claimant “feels anxious about being exposed to mold at work”, Findings, ¶ 5, and referred her to the Occupational Health Clinic to determine if she had been exposed to mold.

The claimant was also examined on September 12, 2007, by Patrick Cullen, P.A., of the Charter Oak Walk-In Medical Center. The claimant advised that she believed she was symptomatic due to her exposure to mold. The physician’s assistant was unable to determine if the symptoms were related to workplace exposure, noting the mild respiratory findings could be attributed to a number of causes. The claimant was treated with Nasonex for nasal congestion and Meclizine for dizziness and was excused from work for two days. The claimant returned to Charter Oak on September 14, 2007, complaining of dizziness, lightheadedness and some nasal congestion. She provided information to the clinic that she had printed from the internet regarding exposure to black mold and respiratory inflammation. The physician’s assistant suggested that if the symptoms persisted the claimant should probably be seen by an allergist. On September 19, 2007, Charter Oak prepared a letter which documented the claimant had been evaluated at their facility for respiratory symptoms that the claimant attributed to her workplace, but that Charter Oak did not have the ability to substantiate this claim. The claimant presented again to Charter Oak on October 2, 2007 and November 19, 2007.

The claimant continued to see a number of physicians in the fall of 2007 concerning her condition. She was examined by Dr. McDermott a number of times where the claimant related anxiety complaints as to her exposure to mold; along with symptoms of dizziness, congestion, headaches and allergies. Dr. McDermott referred her to an allergist at the Occupational Health Clinic at Lawrence and Memorial Hospital, (“Lawrence and Memorial”) another allergist, Dr. Daniel Waggonner, and to the Lahey Clinic in Boston to see an allergist and a pulmonologist. On September 20, 2007, the claimant treated with Dr. Geraldine Ruffa at Lawrence and Memorial complaining of having off and on fatigue for years. Dr. Ruffa could not relate the fatigue to the claimant’s history and did not find a medical reason to keep the claimant out of work; as spirometry was within normal limits. The next day the claimant was tested at Lawrence and Memorial for allergies against twenty eight allergens, including molds which showed a negative reaction.

The claimant saw Dr. Waggonner on October 10, 2007, who diagnosed “recurrent acute versus chronic non-allergic rhinitis.” Findings, ¶ 13. On December 12, 2007, Dr. Ruffa reviewed Dr. Waggonner’s report and concluded “there is no supportive evidence for the upper respiratory symptoms being caused by mold exposure.” Findings, ¶ 14. The claimant consulted with a pulmonologist, Dr. Luminita Tudor, on October 15, 2007, who noted the claimant had non-allergic rhinitis. Dr. Tudor told the claimant on October 29, 2007, it was “hard to establish” what happened at work that led to her feeling ill, suggesting it might have been poor ventilation or a viral infection. Findings, ¶ 16. He told the claimant she could return to work.

On September 25, 2007, the State of Connecticut Department of Labor Division of Occupational Safety and Health (“Conn. OSHA”) conducted a site inspection of the claimant’s office, Building 13, Room 104, at York Correctional. This inspection occurred less than two weeks after the claimant’s alleged mold exposure. The inspection was conducted by Conn. OSHA occupational hygienist James Pierce. Mr. Pierce tested the fungal growth and activity in Room 104 using two different testing methods. He also tested the outdoor activity for comparison. These tests indicated outdoor fungal activity was considerably higher than indoor fungal activity. Mr. Pierce testified the mold inside Room 104 was within acceptable limits. He did not observe any mold in Room 104 nor did he detect a musty or moldy odor which would suggest the presence of mold. Mr. Pierce did note the humidity level was high in Room 104, but also testified it would take approximately 48 hours for a wet ceiling tile to grow mold, while the claimant asserted she was symptomatic within minutes of observing a wet ceiling tile. Subsequent to the Conn. OSHA inspection the respondent performed remedial action at the claimant’s workplace and by November 16, 2007, they had placed a dehumidifier in the office, removed plants that had excess water sitting in catch pans, removed and cleaned vents, completed HEPA rating vacuuming, wiped down walls and windows, and wiped and disinfected all items in the office.

The claimant was examined by Dr. Tudor on two occasions in November 2007. On November 17, 2007, the physician concluded there was “unclear etiology” for the claimant’s symptoms. Findings, ¶ 23. On the 27th the claimant presented to Dr. Tudor complaining of “heart fluttering and jaw pain.” Findings, ¶ 24. Dr. Tudor suggested she undergo a methacholine challenge test to determine if she suffered from asthma.

On October 17, 2007, the claimant was first evaluated by the UConn Occupational Health Center. She treated with Dr. Eileen Storey, Dr. Manoj Saxena and Dr. John D. Meyer, who diagnosed the claimant with reactive airways disease. On June 12, 2008, Drs. Storey and Saxena stated that based upon the claimant’s history and chronology of illness “the reactive airways disease is either caused by or significantly exacerbated by her exposures at York Prison.” Findings, ¶ 26. The commissioner also found the pulmonary testing done by UConn showed the claimant within normal limits. On July 22, 2008, an industrial hygienist from UConn, Anne Bracker, visited the claimant’s workplace and did not observe any visible microbial growth or issues concerning possible chemical contamination points at that visit.

The claimant’s primary care physician referred her to the Lahey Clinic in Massachusetts where she was examined by Dr. John A. Saryan, an allergist and Dr. Jeffrey T. Klenz, a pulmonologist. Dr. Saryan’s December 12, 2007 report referenced the prior testing of the claimant’s workplace and the reports of Dr. Waggoner, which included negative skin tests. This report indicated there was “no particular problem at the present time with mold as the cause of the problem.” Findings, ¶ 29. Dr. Klenz found the claimant had reactive airway disease. Dr. Saryan indicated the claimant appeared to be developing symptoms related to sick building syndrome and recommended home therapy for anxiety, cleaning of her work area, and possible relocation to other work location. The treaters at Lahey Clinic found the claimant was disabled as of November 26, 2007.

The trial commissioner noted the claimant also sought treatment from other professionals. On June 30, 2008, Dr. Brett J. Gerstenhaber, M.D., a pulmonologist, examined the claimant, but was unable to determine if the claimant’s symptoms were work related. The claimant also sought treatment from Dr. Anna Sousa, an osteopath, for her joint pain. She also treated with Dr. Ann Procyx, a naturopathic physician who prescribed nutritional supplements for detoxification. She also treated with Dr. Julian Timoner, a chiropractor, for detoxification and dietary recommendations. At that time the clamant disclosed that she had been diagnosed with Lyme Disease and was being treated by her chiropractor with natural antibiotics. Dr. Timoner disabled the claimant from work in a letter to her attorney which suggested mold exposure in the claimant’s workplace “could exacerbate abnormal immune responses in her body resulting in her condition of total disability.” Findings, ¶ 35. Another physician, Dr. John Santilli, evaluated the claimant in November 2008, and concluded that the claimant “suffers from symptoms associated with allergic rhinitis, sinusitis and cognitive problems secondary to indoor mold exposure at the Department of Correction, Niantic.” Findings, ¶ 33. The claimant sought Dr. Santilli’s opinion at the suggestion of a co-worker. In January 2009, the claimant also began treatment with an acupuncturist.

On June 2, 18 and 19 of 2008 the claimant underwent a neuropsychological evaluation with Dr. Jennifer Selden, Ph.D. Dr. Selden noted the claimant reported she suffered injuries from a motor vehicle accident in January of 2005 to her left-sided knee, shoulder, neck, and hip. The claimant reported that she suffered a concussion, but did not lose consciousness. Since that time the claimant has participated in physical therapy, chiropractic care, massage, osteopathic and orthopedic consults “for her pain, without perceived benefit.” Findings, ¶ 37. After reviewing the claimant’s twenty year history of outpatient psychotherapy for stress and anxiety related to family issues, Dr. Selden diagnosed the claimant with Cognitive Disorder, Major Depressive Disorder and Generalized Anxiety Disorder and opined these ailments would “likely deem her unable to complete her previous work demands as a social worker in a correctional facility.” Findings, ¶ 38.

The trial commissioner noted the claimant had never experienced the respiratory ailments attributed to the mold exposure until September 11, 2007, which was the first day the claimant was back at work after a vacation. The commissioner noted the claimant left the office that day after about 30 minutes, returned the next day, and did not finish her workday at this office. The claimant returned on only one subsequent day to this office, November 26, 2007, went to the emergency room and never returned to her employment. The commissioner also noted the claimant wore a face mask although no treater had directed her to wear such a mask.

The respondent had the claimant evaluated by Dr. Michael Teiger, a board certified pulmonologist, on February 12, 2009. Dr. Teiger diagnosed the claimant with upper respiratory sinusitis. Dr. Teiger noted that there is “no scientific, environmental, physical examination or laboratory testing to corroborate” the conclusion that Ms. Herbert may have been exposed to toxic material at her workplace. Findings, ¶ 42. Further, he explained that his opinion in his report that the claimant suffered from sinusitis as a result of a workplace exposure was based “only on the patient’s history.” Id. Dr. Teiger further noted “Ms. Herbert’s symptoms are certainly accentuated and dramatic now, and even in my office she isolated herself in the waiting room and used a face mask to protect her from perceived insult. I believe her concerns of health damage are embellished and extreme and unusual considering the objective data, and probably psychiatrically based or perceived rather than real.” Findings, ¶ 43.

Dr. Teiger also noted the claimant had a number of medical conditions. These included a long-standing history of anxiety and depression preceding the exposure claim; a history of sciatica; chronic back; neck and knee pain; a history of concussion; hypertension; a history of intermittent atypical chest pain; headaches and previous fungal infection of the back of both hands.

Based on these subordinate facts the trial commissioner concluded the testimony of James Pierce was credible and persuasive and that Mr. Pierce testified that that no mold was detected in the claimant’s workplace, that the testing for microbial matter in the claimant’s work area was normal and within a preferred condition and further that it would take approximately 48 hours for a wet ceiling tile to start to grow mold. The trial commissioner concluded the claimant’s testimony was not credible as she was exposed to the wet ceiling tile in her work area for half an hour on September 11, 2007 and for a brief period on September 12, 2007; and although she had not been working at this location for over two years, she still complains of symptoms. The commissioner found the medical opinions opining on workplace causation for the claimant’s ailments were not corroborated by any scientific, environmental, physical examination or laboratory testing. In fact, all of the medical providers who reached the conclusion that the claimant suffered a workplace exposure relied on the claimant’s self reported history. The commissioner found the claimant had not carried her burden of proof that she suffered a injury due to workplace mold or toxin exposure, therefore he dismissed her claim.

The history of the appeal herein involved a variety of post-judgment motions. The respondent filed a Motion to Correct to address some administrative issues. This motion was granted. Counsel for the claimant filed a timely Petition for Review and subsequently moved to withdraw his appearance. That motion was granted. The claimant has pursued this appeal as an unrepresented party. The claimant filed for a number of extensions to present Reasons of Appeal and the respondent subsequently moved to dismiss the claim. On November 22, 2011, the claimant filed her Reasons of Appeal and a Motion to Correct. The claimant’s Motion to Correct was denied by the trial commissioner. On March 29, 2012, the claimant filed a 31 page brief in support of her appeal, which included a 14 page attachment of evidentiary documentation which she said had not been considered by the trial commissioner.

Prior to considering the merits of the claimant’s appeal we believe we must address the respondents pending Motion to Dismiss as well as their argument before our tribunal that the evidence affixed to the claimant’s brief should not be considered on appeal. The respondent argued that the claimant’s Reasons for Appeal were not filed in a timely fashion and therefore the appeal should be dismissed pursuant to § 85-1 of the Practice Book as the appellant failed to diligently prosecute her appeal. We are not persuaded by this argument. The claimant sought and received numerous extensions of time to submit this documentation. Moreover, we find that by the time of the hearing before this tribunal the respondent was sufficiently apprised of the claimant’s arguments to prepare a proper defense, and were not prejudiced by the manner the claimant prosecuted the appeal. We find precedent from Damon v. VNS of CT/Masonicare, 5413 CRB-4-08-12 (December 15, 2009) governs this issue and compels us to deny the Motion to Dismiss. The respondent asserts procedural deficiencies which we are loathe to penalize a pro se appellant over, Vitoria v. Professional Employment & Temps, 5217 CRB-2-07-4 (April 4, 2008), and we find the respondent was not prejudiced by these matters, Roussel v. Village Gate of Farmington, 4918 CRB-6-05-2 (February 28, 2006).

The respondent raised a meritorious issue as to the evidentiary submissions affixed to the claimant’s brief. The claimant was obligated to file a Motion to Admit Additional Evidence pursuant to Admin. Reg. § 31-301-9 in order to present facts outside the record. She did not do so. Even had this been properly presented we do not believe this documentation would have been considered at this juncture. As the Appellate Court pointed out in Mankus v. Mankus, 107 Conn. App. 585 (2008), when a litigant seeks, pursuant to Admin. Reg. § 31-301-9, to present previously unconsidered evidence directly to this panel the moving party must establish good cause.

Thus, in order to request the board to review additional evidence, the movant must include in the motion 1) the nature of the evidence, (2) the basis of the claim that the evidence is material and (3) the reason why it was not presented to the commissioner.

Id., at 596.

We are not persuaded this documentation could not have been presented to the trier of fact. Moreover, much of this documentation deals with the claimant having been approved for social security disability benefits. This decision is not binding upon the Workers’ Compensation Commission. See Hernandez v. American Truck Rental, 5083 CRB-7-06-4 (April 19, 2007) and Bidoae v. Hartford Golf Club, 4693 CRB-6-03-7 (June 23, 2004), aff’d, 91 Conn. App 470, 480-481 (2005), cert denied, 276 Conn. 921 (2005). “The standards of the Social Security Administration in adjudicating total disability are not the same standards used by our workers’ compensation commission and, thus, a commissioner may decline to admit them into evidence.” Bidoae, supra, 480-481. Having resolved these preliminary issues we turn to the merits of the claimant’s appeal.

The claimant raises three issues in her brief. She argues that the trial commissioner did not properly credit her evidence and that she presented a sufficient quantum of probative evidence to prove she sustained a compensable injury. She argues that she has been denied “due process” under the 14th Amendment and has been denied the right to obtain damages from her employer for her injuries. Finally, she argues that as she is in a protected class that the respondent is “blaming the victim” in their defense of the claim.3 Upon consideration, we find none of these arguments persuades us that the trial commissioner reached a legally erroneous finding in this case.

On appeal, we generally extend deference to the decisions made by the trial commissioner. “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). The Compensation Review Board cannot retry the facts of the case and may only overturn the findings of the trial commissioner if they are without evidentiary support, contrary to the law, or based on unreasonable or impermissible factual inferences. Kish v. Nursing and Home Care, Inc., 248 Conn. 379 (1999) and Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). In addition, the burden of proof in a workers’ compensation claim for benefits rests with the claimant. Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440 (2001).

The trial commissioner in the present case found the evidence presented by the respondent challenging the presence of mold in the workplace more persuasive than the evidence the claimant presented linking her aliments to workplace exposure to mold. The commissioner cited evidence which he found probative and credible to support his conclusions. In particular, the trial commissioner cited the testimony of James Pierce as persuasive and credible. Mr. Pierce testified that the presence of mold in the claimant’s workplace was within normal limits and that it would have taken about 48 hours for wet ceiling tiles to grow mold. Conclusion, ¶ B. Considering the claimant testified to becoming ill shortly after observing a ceiling leak, Findings, ¶ 3, the trial commissioner could reasonably conclude the claimant had not proven that workplace mold was the cause of her ailments. It is the trial commissioner’s job to weigh the probative value of expert testimony. ‘“As the finder of fact, the trier has the sole authority to decide what evidence is reliable and what is not . . . .’ Byrd v. Bechtel/Fusco, 4765 CRB-2-03-12 (December 17, 2004).” Arnott v. Taft Restaurant Ventures, LLC, 4932 CRB-7-05-3 (March 1, 2006).

The claimant argues that the numerous witnesses supporting her claims should have been relied upon, but as we pointed out in Arnott, supra, it is the qualitative value of evidence that decides a contested case before a trial commissioner, not the sheer number of reports or witnesses. In her brief the claimant argues that Dr. Krenz of the Lahey Clinic should have been found reliable. The respondent’s argue in their brief Dr. Krenz’s report was not dispositive of the issue of causation, stating workplace exposure was a “possibility” as to the cause of airway irritation. Respondent’s Brief, p. 11.4 In any event, the trial commissioner found that all the claimant’s medical witnesses depended primarily on her narrative, Conclusion, ¶ D. The trial commissioner did not find the claimant a credible witness, Conclusion, ¶ C. We cannot revisit a trial commissioner’s determination as to witness credibility. Burton v. Mottolese, 267 Conn. 1, 40 (2003). When a trial commissioner does not find the claimant credible, the commissioner is entitled to conclude any medical evidence which relied on the claimant’s statements was also unreliable. See Baker v. Hug Excavating, Inc., 5443 CRB-7-09-3 (March 5, 2010); Do v. Danaher Tool Group, 5029 CRB-6-05-12 (November 28, 2006); and Abbotts v. Pace Motor Lines, Inc., 4974 CRB-4-05-7 (July 28, 2006), aff’d, 106 Conn. App. 436 (2008), cert. denied, 287 Conn. 910 (2008).

This is generally dispositive of the other arguments raised by the claimant. At oral argument before our tribunal she challenged the trial commissioner’s evaluation of Dr. Teiger’s report, as well as challenged the trial commissioner’s decision not to rely on the reports prepared at the emergency room after she presented there in September 2007. She also argued Dr. Santilli’s report finding she had a mold allergy should have been persuasive. She also argued the trial commissioner mischaracterized the report of Ann Bracker in the Finding and Dismissal. The trial commissioner was presented with other expert testimony that could reasonably cause him to find the claimant’s ailments were not work related. The trial commissioner was also responsible for weighing the evidence which was presented in favor of the claimant. When expert witnesses present conflicting testimony we must defer to the trial commissioner’s conclusion. Dellacamera v. Waterbury, 4966 CRB-5-05-6 (June 29, 2006).

We turn to the claimant’s arguments that she was denied “due process” in these proceedings. We note that there is no averment that claims she was unable to present her case in a proper fashion or was presented with adverse evidence that she was unable to effectively challenge. Therefore, this is not a “due process” case akin to Balkus v. Terry Steam Turbine, Co., 167 Conn. 170 (1974). Rather, it appears the claimant is arguing the standards employed by the commission are constitutionally inadequate. An administrative tribunal such as ours may not address issues of constitutionality Rayhall v. Akim Corp., Inc., 263 Conn. 328 (2003). We do note, however, that the exclusivity of a worker’s remedy through this commission for workplace injuries has been previously adjudicated and upheld by the Connecticut Supreme Court. Mello v. Big Y Foods, Inc., 265 Conn. 21 (2003). The respondent also questions the claimant’s reliance on legal precedence governing the Longshore and Harbor Workers Act (LHWCA) (33 USC § 901 et. seq.). Respondent’s Brief, p. 15. This commission is not reliant on the legal standards promulgated under that act, nor did the claimant at any time represent that she was seeking benefits under that statute.5

Finally, we address the claimant’s argument that the respondent improperly “blamed the victim” as a result of the claimant’s status in a protected class. Whether the respondent acted in bad faith or with a biased intent would be a quintessential factual question for the trial commissioner to address. The claimant’s Motion to Correct did not raise any such averments.6 As a result, we cannot address such an issue at this juncture as it was not preserved for appeal.

At its core, the claimant is seeking to retry the facts of this case. The trial commissioner chose to find the evidence presented by the claimant insufficiently credible and persuasive to warrant an award. As the commissioner relied on probative evidence he did find probative and credible, we must affirm the Finding and Dismissal.

Commissioner Jodi Murray Gregg concurs in this opinion.

1 We note that postponements and extensions of time were granted during the pendency of this appeal. BACK TO TEXT

2 Commissioner Clifton E. Thompson heard this appeal but passed away prior to the issuance of this opinion. BACK TO TEXT

3 The claimant is an African-American woman. BACK TO TEXT

4 The trial commissioner could reasonably conclude this opinion had not been rendered to the standards delineated in Struckman v. Burns, 205 Conn. 542 (1987) to prove causation of a claimant’s injury. Dr. Klenz’s December 27, 2007 report does not contain any reference to the claimant’s workplace. BACK TO TEXT

5 The record does not indicate the claimant, who worked for many years at the Department of Correction, had any occupational nexus to the maritime trades. BACK TO TEXT

6 As the commissioner denied the claimant’s Motion to Correct, we may infer he found the claimant’s evidence was not persuasive or probative, Brockenberry v. Thomas Deegan d/b/a Tom’s Scrap Metal, Inc., 5429 CRB-5-09-2 (January 22, 2010), aff’d, 126 Conn. App. 902 (2011) (Per Curiam). The trial commissioner is not obligated to accept those corrections sought to interpose the claimant’s conclusions as to the law and the facts presented, Liano v. Bridgeport, 4934 CRB-4-05-4 (April 13, 2006) and D’Amico v. Dept. of Correction, 73 Conn. App. 718, 728 (2002), cert. denied, 262 Conn. 933 (2003). BACK TO TEXT

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