State of Connecticut Workers' Compensation Commission, Stephen M. Morelli, Chairman
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Cabral v. Metropolitan District Commission

CASE NO. 3770 CRB-01-98-02



MAY 13, 1999











The claimant was represented by Jerome Griner, Esq., 47 North Main Street, West Hartford, CT 06107.

The respondents were represented by Jason Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033-4412.

This Petition for Review from the January 30, 1998 Finding and Award of the Commissioner acting for the Eighth District was heard November 6, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Donald H. Doyle, Jr., and John A. Mastropietro.


JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the January 30, 1998 Finding and Award of the Commissioner acting for the Eighth District. They argue on appeal that the trier erred by finding that the claimant suffered a compensable 50% permanent partial disability of the lungs, and challenge in particular the trier’s acceptance of a certain expert’s opinion. We affirm the trial commissioner’s decision.

The claimant began his employment with the respondent Metropolitan District Commission (Metropolitan) in 1987. He was hired to work in Metropolitan’s trash-to-energy disposal plant, in proximity to the refuse that was being hauled in for processing. This garbage emitted various toxins and harmful compounds, to which the claimant was exposed from the time of his hire to January 13, 1994. On that date, the claimant began to feel dizzy and sick as the result of acute toxic exposure. After reporting the incident, he sought medical treatment, and was eventually referred to Dr. DeGraff, a pulmonologist at Hartford Hospital.

Dr. DeGraff had treated the claimant for tuberculosis exposure in 1976, for a pulmonary condition in 1982, and again for a pulmonary condition in 1986 following an alleged work-related injury that occurred while the claimant was employed by Suisman Blumenthal, Inc. At that time, Dr. DeGraff had performed a diffusion capacity test on the claimant, and the results of the test were normal, displaying no sign of interstitial lung disease. Following the 1994 incident, Dr. DeGraff performed several diffusion capacity tests. This time, the results were below normal, and the doctor made a diagnosis of interstitial lung disease. He testified, and the trier found, that toxic emanations from garbage are a known scientific cause of interstitial lung disease, resulting here in a 50% permanent partial disability to the claimant’s lungs. The respondents have appealed that finding, and the award of workers’ compensation benefits that correspondingly followed.

When a party requests this board to review a trial commissioner’s decision, we apply a standard of considerable deference to the trier’s factual findings. The fact-finding authority of the trial commissioner entitles him to determine the weight of the evidence presented and the credibility of all testimony offered by lay witnesses and medical professionals, even if such evidence is apparently uncontradicted. Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998); Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (Jan. 24, 1997). The only instances in which we may find fault with the trier’s findings are when they are wholly unsupported by the evidence, or when they fail to include undisputed material facts. Pallotto, supra. This board does not retry the facts of a case, and will not disturb the legal conclusions that the trier has drawn from those findings unless they are the product of an incorrect application of the law to the facts, or of an inference illegally or unreasonably drawn from them. Id.; Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).

The respondents argue on appeal that, despite this standard of deference, the trial commissioner’s reliance on Dr. DeGraff’s opinion is reversible error, because his diagnostic technique is medically unproven and, thus, legally unacceptable. The chief medical expert for the respondents was Dr. Godar, a respected pulmonologist. The respondents heavily base their position on his testimony, offering it as proof that Dr. DeGraff’s “rebreathing diffusion capacity test” is not generally accepted by the regional medical community or the American Medical Association, and that any diagnosis derived from that test should be discounted. They insist that the trial commissioner’s decision to credit Dr. DeGraff’s testimony signals “a full scale evidentiary revolution akin to the change that State v. Porter [241 Conn. 57 (1997)] wrought for the admissibility of scientific evidence.” Respondents’ Brief, p. 15. They warn that this board’s ratification of the trier’s decision will signal the advent of “arbitrary case-by-case decision making” in the workers’ compensation forum, reducing the doctrine of stare decisis to a “quaint reminder of more predictable times” by allowing the use of an uncertified diagnostic test to “subvert[] the dominant paradigm.” Respondents’ Brief, p. 15-16.

Obviously, this board does not actively promote the impetuous abandonment of reliable diagnostic procedures that are routinely used in our workers’ compensation system. In fact, the Chairman of this Commission, in his capacity as the agency’s chief administrator under § 31-280 C.G.S., has adopted medical protocols recommending certain diagnostic and treatment modalities for some types of musculoligamentous injuries. These protocols serve as guidelines, however, not as absolute requirements, because not every case can be effectively diagnosed and treated exactly the same way. A degree of flexibility must also be available. Otherwise, the remedial purpose of the Workers’ Compensation Act would be thwarted by a procrustean legal system unable to accommodate the frequent cases in which customized medical care proves necessary. Not coincidentally, by relaxing the strictures of common-law and statutory rules of evidence and procedure, § 31-298 affords the trial commissioner a fair amount of discretion to choose among alternative diagnostic methods in fulfilling his fact-finding duties.1 This board is not authorized to impinge upon that discretion on review. Issues regarding the medical methodology that underlies a given diagnosis are generally factual in nature, and a trial commissioner is in a better position than is this board to obtain and evaluate information regarding the accuracy and reliability of a particular diagnostic theory. See Furrey v. Wells Fargo Alarm System, 11 Conn. Workers’ Comp. Rev. Op. 192, 195-96, 1307 CRD-3-91-9 (Sept. 22, 1993) (trier has authority to decide admissibility of controversial medical journal article, and weight to be given that evidence).

The respondents referred in their brief to our Supreme Court’s “revolutionary” opinion in State v. Porter, 241 Conn. 57 (1997), a pronouncement that reset the common-law standard in Connecticut for the admissibility of scientific evidence. The Court, in discarding the test enunciated in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), concluded that “an admissibility test for scientific evidence premised solely on its ‘general acceptance’ is conceptually flawed and therefore must be rejected.” Porter, 75. The Court’s solution was to replace the Frye test with a philosophy culled from the United States Supreme Court’s opinion in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993): a “conceptual approach to the admissibility of scientific evidence, and not a functional test therefor.” Porter, 77. Our Court viewed the indefinite nature of the Daubert multifactor “validity” approach as a necessity rather than a flaw, for “[n]o purely mechanical test based on a finite number of set considerations can, in and of itself, truly guide judges with regard to the admissibility of all of the varied and eclectic types of scientific evidence.” Id., 79. Rather than using generic precepts to emphasize specific, often irrelevant features of a given scientific method while simultaneously obscuring the underlying principles, the Court favored the use of a superficially vague but less corruptible approach to the threshold admissibility of scientific evidence. Id., 80-81.

Essentially, as long as the methodology underlying scientific evidence is valid, it may be admitted as an exhibit, even if other analytical procedures exist that would lead to a contrary conclusion. An unconventional result may be controversial, but if derived from a valid scientific method, the novelty of the conclusion would implicate only the weight of the testimony, not its admissibility. Id., 82-83. Where a scientific practice has not gained “general acceptance” in the relevant professional community, a proponent of the scientific opinion may demonstrate its reliability by some other means. Id., 85. For example, courts using the Daubert approach have taken into account the objective verifiability of criteria rather than the subjectivity of an expert’s interpretation in evaluating the reliability of the expert’s testimony. They have also looked at the potential rate of error of the diagnostic technique, the degree to which it has been granted peer review, the purpose behind the development of the technique, and the ability of the expert to explain the data and methodology underlying his testimony in a manner that the fact-finder can comprehend. Porter, supra, 86. This list is neither fundamental nor exhaustive; the specific context of each case determines the factors that ought to be studied. The bottom line is this: if a party objects to the proffered evidence, its proponent must demonstrate that it tends to support a relevant fact, and is not prejudicial or merely cumulative. Id., 87. Again, issues regarding the credibility of the testimony generally go to the weight of evidence rather than to its admissibility.

We need not remind the respondents that our Supreme Court is the highest judicial authority in the state of Connecticut, and it is the duty of this board to heed its decisions when the Court’s reasoning applies to a disputed matter. The Porter decision is relevant to this Commission’s outlook regarding the admissibility of expert testimony insofar as it shifts the state court system a bit closer to the inclusive evidentiary standard set forth for workers’ compensation commissioners in § 31-298. If anything, Porter corroborates the deferential approach taken by this board in cases such as Ricigliano v. Rex Forge, 3476 CRB-6-96-11 (April 8, 1998), and Blassingame, supra. It does not command us to screen out less established diagnostic methods because they have not been adopted by the American Medical Association and standardized among the medical profession.

As Porter, supra, 87, suggests, proffered evidence is normally excluded after an objection is raised. The respondents did not technically object to the introduction of Dr. DeGraff’s opinion. Instead, they offered testimony from Dr. Godar to refute the substance of that opinion.

Dr. Godar stated that the pulmonary function test that he performed differed from the diffusion capacity tests administered by Dr. DeGraff, and was the AMA-approved and standardized “automated, single-breath” evaluation technique. May 29, 1997 Transcript, p. 24. He testified that this type of diffusion capacity test was performed throughout hospitals all over the country, and that the “re-breathing” method used by Dr. DeGraff was only a research technique that is neither relied upon by the AMA nor standardized among hospitals. Id. In his opinion, the claimant had at most a marginal impairment in diffusion, and whatever levels of impairment he had sustained were more likely due to asthma than to chemical vapors present at Metropolitan’s plant. Id., 78, 89. He did not believe that the tests performed by Dr. DeGraff proved that the claimant had a reduction in diffusion capacity due to interstitial lung cancer. August 5, 1997 Transcript, p. 9.

However, the trial commissioner specifically stated that he did not accept this opinion. Findings, ¶ 26. As the finder of fact, he was perfectly entitled to disregard Dr. Godar’s testimony, regardless of the latter’s status as a widely respected pulmonologist. See Respondents’ Brief, p. 13. As such, there is no “objection” to the relevance of Dr. DeGraff’s testimony that needed to be explicitly resolved by the trier.

The essential question to this appeal, however, encompasses many of the same considerations that are pertinent to the admissibility issue: does Dr. DeGraff’s testimony, on its own, establish within a reasonable degree of medical probability that the claimant suffered a 50% permanent partial disability to his lungs due to toxic exposure at Metropolitan? See Struckman v. Burns, 205 Conn. 542, 554-55 (1987) (expert opinion must be expressed in terms of a reasonable probability to establish causation). Dr. DeGraff explained that he tested the claimant’s diffusing capacity, i.e., the ability of his lungs to transfer carbon monoxide from the lung air space into the blood that circulates in the lungs, in order to determine the amount of working lung tissue. December 18, 1996 Transcript, p. 15. A 1986 test had shown the claimant to have a diffusing capacity of 29 (107% of the predicted value), but tests performed in January, February, and December 1994 revealed absolute scores of 14.3, 15.2 and 14.2 (54%, 60%, and 53% of the predicted value, respectively). Based on these results, Dr. DeGraff diagnosed the claimant with interstitial lung disease, which was a medically probable consequence of single-instance and/or repetitive exposure to toxic inhaled dust or gas from composting garbage and other refuse at Metropolitan. Id., 21. He also commented that the spirometry test performed by Dr. Godar measures air flow rather than gas exchange function, and opined that the “expiratory curve” generated by Dr. Godar’s test was not itself related to interstitial lung disease, but was hampered by an inspiration-inhibitive cough caused by said disease. Id., 20-22, 30, 50. Dr. DeGraff quantified the claimant’s loss of lung function at 50% based on a comparison of the present diffusing capacity of 56% with the prior diffusing capacity of 107% of the predicted norm. Id., 35-36.

We must presume that this diagnosis, though allegedly based upon methodology not commonly used in area hospitals, seemed scientifically tenable to the trial commissioner. In fact, the disagreement between Dr. DeGraff and Dr. Godar appears to this board to be no different than many other “battles of expert witnesses.” We must acknowledge that neither our own particular opinions, nor the law of Fair v. People’s Savings Bank, 207 Conn. 535 (1988), and its progeny place this board in a position to override the trier’s judgment. See O’Reilly v. General Dynamics Corp., 52 Conn. App. 813 (1999). The trier’s decision to credit Dr. DeGraff’s testimony was a reasonable exercise of his fact-finding discretion, and we must uphold his decision on appeal.

The trial commissioner’s decision is hereby affirmed. Insofar as any benefits due have not yet been paid the claimant, interest is awarded pursuant to § 31-301c(b).

Commissioners Donald H. Doyle, Jr., and John A. Mastropietro concur.

1 Section 31-298 provides, in relevant part, that “[b]oth parties may appear at any hearing, either in person or by attorney or other accredited representative, and no formal pleadings shall be required, beyond any informal notices that the commission approves. In all cases and hearings under the provisions of this chapter, the commissioner shall proceed, so far as possible, in accordance with the rules of equity. He shall not be bound by the ordinary common law or statutory rules of evidence or procedure, but shall make inquiry, through oral testimony, deposition testimony or written and printed records, in a manner that is best calculated to ascertain the substantial rights of the parties and carry out the provisions and intent of this chapter.” BACK TO TEXT

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