Rondeau v. General Dynamics Corp./Electric Boat Division

The claimant was represented by Mark W. Oberlatz, Esq., O’Brien, Shafner, Stuart, Kelly & Morris, P. C., 475 Bridge St., P. O. Drawer 929, Groton, CT 06340.

The respondent self-insured was represented by John Greiner, Esq., Murphy & Beane, 2 Union Plaza, P. O. Box 590, New London, CT 06320.

The respondent insurers were represented by Steven G. Ekern, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033.

This Petition for Review from the June 9, 1994 Finding and Dismissal of the Commissioner acting for the Second District was heard April 7, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta S. D’Oyen and Amado J. Vargas.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the June 9, 1994 Finding and Dismissal of the Commissioner for the Second District. He argues on appeal that the commissioner erred in concluding that the claimant’s exposure to asbestos was not a significant factor in causing his respiratory impairment. We affirm the trial commissioner’s decision.

The commissioner found that the claimant was currently employed by Electric Boat at the time of the formal hearing, and that he had been regularly exposed to asbestos and asbestos dust from 1958 through the late 1970s. The claimant had also been a heavy smoker from approximately 1952 until he quit in early 1990. His wife, a heavy smoker as well, continued to smoke in the claimant’s presence.

In late 1990, the claimant sought medical treatment with Dr. Powell, who diagnosed him with emphysema. At the respondents’ request, Dr. Godar also examined the claimant, and opined that he suffered from chronic obstructive pulmonary disease (COPD) with mixed bronchitis and emphysema. He specifically ruled out pulmonary asbestosis as a causative factor, noting that the claimant’s x-ray was characteristic of smokers rather than asbestosis patients. Dr. Godar stated that the primary cause of the claimant’s COPD was his 55 pack-years of smoking, with the effects of pneumonia suffered by the claimant in 1980 also playing a part in his respiratory ailment. Although some asbestos exposure was apparent from pleural plaques and thickening, it was in an early stage of manifestation and of no significance in the claimant’s respiratory impairment. The trial commissioner noted that Dr. Powell also did not attribute the claimant’s permanent partial disability of the lungs to asbestos exposure based upon reasonable medical probability. He concluded that the claimant’s request for § 31-308(d) C.G.S. benefits should be dismissed. The claimant has appealed from that decision and from the denial of his Motion to Correct.

The claimant argues that the commissioner erred by failing to find that the claimant had early mild asbestosis which, although a minor factor, was significant in his overall respiratory ailment. He cites allegedly uncontradicted testimony by Dr. Godar in support of this contention. According to the claimant, the existence of the asbestosis mandated a finding that the claimant was entitled to specific indemnity benefits under the reasoning in Prisco v. North & Judd, 10 Conn. Workers’ Comp. Rev. Op. 154, 1190 CRD-8-91-3 (June 30, 1992). We disagree.

It is true that Dr. Godar did testify that the claimant probably had early asbestosis. (Transcript of Godar Deposition, June 18, 1993, p. 10). He also said, however, that the asbestosis was “too early to actually affect lung function in any way that you could measure.” Id., p. 11. Further, he stated that he thought the claimant’s impairment “was thirty-five to forty percent for both lungs and the whole person, of which I thought a twenty-five percent impairment was due to his COPD and that the remaining fifteen percent or thereabouts was due to a combination of his elevated left hemidiaphragm restricting volumes, some obesity, and probably some early asbestosis.” Id., p. 17. He went on to say that the top impairment one could ascribe to the asbestosis was five percent, although even that amount was speculative. Id., 20.

From this testimony, it was reasonable for the commissioner to conclude that the claimant’s asbestos exposure did not significantly contribute to his permanent partial disability, and that compensation should be denied. He correctly acknowledged that the claimant could make a claim in the future should subsequent medical evidence demonstrate that the asbestosis had risen to the level of a substantial disability. However, it was the commissioner’s duty to evaluate this claim based on the medical evidence currently before him, and to determine the credibility of the expert testimony. Webb v. Pfizer, Inc., 1859 CRB-5-93-9 (decided May 12, 1995). We cannot say that he drew an unreasonable inference from Dr. Godar’s testimony in declining to attribute the claimant’s current disability to asbestosis. Id.; see also Adzima v. UAC/Norden Division, 177 Conn. 107, 117-18 (1979). Therefore, we will not disturb his factual findings.

Even if the claimant did suffer from the early stages of asbestosis, Prisco, supra, does not require that the employer be responsible for his disability. A claimant must still prove causation by a reasonable medical probability, see McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 118 (1987), and this board recognizes that some circumstances often play so minor a part in a disability that the law cannot recognize them as causes. Id.; Neibler v. Waldbaum’s Foodmart, 1851 CRB-3-93-9 (decided May 11, 1995). The commissioner had room in this case to conclude that the early asbestosis symptoms did not rise to the standard of a legal cause of the claimant’s disability based on the medical evidence before him. We thus affirm his decision on review.