Mulroy v. Becton Dickinson

The claimant was represented by Richard L. Gross, Esq., Cantor, Floman, Russell, & Gross, P.C., 378 Boston Post Road, P. O. Drawer 966, Orange, CT 06477.

The respondents were represented by Robert S. Cullen, Esq., 1952 Whitney Ave., Hamden, CT 06517.

This Petition For Review from the February 6, 1995 Finding and Award of Compensation of the Commissioner acting for the Eighth District was heard January 12, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Robin L. Wilson.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents Becton Dickinson and Travelers Insurance Company have petitioned for review from the February 6, 1995 Finding and Award of Compensation of the Commissioner acting for the Eighth District. They are appealing from the commissioner’s decision that the claimant’s disability was caused or exacerbated by conditions at the respondent employer’s workplace. After careful review, we have concluded that the commissioner’s decision must be affirmed.

The claimant was employed by the respondent Becton Dickinson for over eleven years before becoming disabled on December 26, 1990. She alleges that she contracted an occupational disease in the form of a severe nerve disorder that was caused by her exposure to certain chemicals at the workplace over the course of her employment. The respondents disputed the nature and origin of her condition. The commissioner found that the claimant suffered from distal symmetric sensimotor polyneuropathy, that the claimant was exposed to several neurotoxic chemicals at the respondent’s workplace from 1979 to 1990, and that this exposure was a significant factor in causing her condition either directly or by exacerbating an underlying but asymptomatic genetic neuropathy known as Charcot-Marie-Tooth Disease Type II. Thus, she concluded that the claimant’s neuropathy was a compensable occupational disease that arose out of and in the course of her employment with the respondent. The respondents have appealed that decision.

The respondents argue in an exhaustive and meticulously prepared brief that the commissioner’s findings should be reversed because sufficient evidence does not exist to establish that the claimant’s work-related activities played a significant factor in causing the deterioration of her health. It is an axiom of workers’ compensation practice in Connecticut that the trial commissioner, and not this board, is the finder of fact during a formal hearing. Fair v. People’s Bank, 207 Conn. 535, 540 (1988). Once the commissioner finds specific facts, the Compensation Review Board is bound by those factual findings if there is evidence in the record to support them. We do not second-guess the commissioner’s evaluations of evidentiary and testimonial credibility by retrying the facts or hearing further evidence. Adzima v. UAC/Norden Division, 177 Conn. 107, 118 (1979); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995).

In a complex case such as this, where the nature of a claimant’s disease and its etiology are difficult to identify, expert medical opinion is necessary to establish a causal relationship between employment and disability. Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151-52 (1972). Dr. Grey, an occupational medicine specialist, diagnosed the claimant with distal symmetric sensimotor polyneuropathy as the result of either direct exposure to neurotoxic chemicals in the workplace or by exacerbating a dormant condition known as Charcot-Marie-Tooth Disease Type II (CMT II). Dr. Grey opined that this condition was permanent and progressive, and that the claimant would be unable to perform regular employment in the future. The respondents argue that reliance on Dr. Grey’s opinion was improper because there was no evidence that the claimant was actually exposed to neurotoxic chemicals, and because Dr. Grey did not convincingly link the claimant’s neuropathy with chemical exposure.

Regarding the issue of chemical exposure: the commissioner found that the claimant was exposed to low and/or occasionally high levels of ethylene oxide, methylisobutyl ketone, and 1-1-1 trichloroethane at the respondent’s workplace between 1979 and 1990. The respondents moved to correct that finding, stating that there was no evidence in the record to support it. However, the presence of those chemicals was attested to by the claimant; the company safety director, Francis Lovett; the former corporate safety director, Dr. Wes Jordan; an industrial hygienist who monitored the air in the plant, Henry Shotwell; and Glenn Barbi, Dr. Jordan’s successor as safety director. Although the respondents offered safety reports into evidence to refute that testimony, we cannot say that the commissioner erred as a matter of law in denying the respondents’ requested corrections. This board has neither the authority nor the expertise to reevaluate this kind of evidence on appeal and conclude that the various levels of chemical exposure were legally too low to be harmful; rather, it is the trial commissioner who is responsible for deciding between competing versions of the facts. Webb, supra.

As for the medical evidence itself, the commissioner found that Dr. Grey, the claimant’s treater, linked her neuropathy to neurotoxic chemical exposure, while Dr. Donaldson, an independent medical examiner, linked her neuropathy to CMT II. Although other doctors testified, the commissioner did not cite their opinions as to causation (if any). Dr. Grey stated that the fact that the claimant worked around neurotoxic chemicals long enough to have developed a related clinical disease, and the fact that she had developed a disease that has been linked to those chemicals, both played a part in his diagnosis. (Oct. 13, 1993 Transcript, p. 73). He testified that there was no evidence of other causes for her neuropathy, and that based on a well-documented history of exposure, he ascribed the claimant’s condition to workplace chemical exposure. (Id., 60-61). Based on the absence of CMT II in the claimant’s family history, Dr. Grey considered it unlikely that she had that disease, or that CMT II alone could have caused her condition. (Id., 84).

Although the respondents attempt to undermine the authority for Dr. Grey’s opinion on appeal, his credibility as a medical expert and the credibility of his diagnosis were solely for the trial commissioner to judge. She decided to believe Dr. Grey’s diagnosis over that of Dr. Donaldson, and her factual finding is supported by evidence in the record. Thus, we cannot disturb her decision on appeal.

The respondents also claim that the commissioner erred in not allowing the cross-examination of Dr. Jordan as to possible bias based on his resignation from Becton Dickinson. Under § 31-298 C.G.S., the commissioner has broad discretion to determine the relevancy and remoteness of evidence. Merchant v. J.S. Nasin Company, 9 Conn. Workers’ Comp. Rev. Op. 122, 952 CRD-2-89-11 (May 1, 1991). The commissioner did not abuse her discretion by limiting the scope of respondents inquiry as to the circumstances surrounding Dr. Jordan’s departure from Becton Dickinson, especially considering the amount of extra time and testimony that would be required to explore such a peripheral issue. Furthermore, Dr. Jordan’s testimony was not fundamental to the decision, as several other witnesses corroborated his testimony regarding the presence of chemicals in the workplace. Thus, even if error had existed, it would be harmless.

Respondent finally contends that the commissioner erred in ordering the respondent to pay the University of Connecticut Medical Center its fees for Dr. Grey’s testifying at the formal hearing. This argument is apparently based on the testimony of two witnesses that UConn Medical Center would not charge the claimant such fees if she did not prevail in her case. Whether or not those parties had some kind of private arrangement regarding the payment of testimonial fees, the trial commissioner had the authority under § 31-298 to order the respondents to pay the fees for UConn Medical Center employees’ testimony. Fappiano v. Nutmeg Concrete, Inc., 6 Conn. Workers’ Comp. Rev. Op. 29, 32, 652 CRD-3-87 (Sept. 27, 1988).