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CASE NO. 4323 CRB-8-00-12
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
NOVEMBER 2, 2001
UTC/PRATT & WHITNEY
ESIS, INC./ACE USA
The claimant was represented by Nicholas W. Francis, Esq., Law Offices of Nicholas T. Kocian, L.L.C., 182 Collins Street, Hartford, CT 06105.
The respondents were represented by Michael J. McAuliffe, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.
This Petition for Review from the November 28, 2000 Finding and Dismissal of the Commissioner acting for the Eighth District was heard June 22, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners George A. Waldron and Ernie R. Walker.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the November 28, 2000 Finding and Dismissal of the Commissioner acting for the Eighth District. He contends on appeal that the trier erred by concluding that he did not sustain a physical injury as a result of exposure to a noxious chemical odor. We affirm the trial commissioner’s decision.
The trier found that the claimant, a 26-year employee of the respondent Pratt & Whitney, was working in its Middletown plant as a specialty repairman on August 17 and August 18, 1995. At approximately 8:00 a.m. on each of those dates, he claims that he was exposed to a noxious odor reminiscent of rotten eggs that caused him physical symptoms that eventually resulted in such ailments as fibromyalgia, post-traumatic stress disorder (PTSD), memory loss and muscle fatigue. He and a fellow worker, David Pasquale1, were working in the “repair crib” both times they sensed the odor. The first time it happened, the claimant was exposed to the smell for between thirty seconds and one minute. He testified that this exposure left him disoriented, headachy and confused. He walked to the plant medical department for treatment, where his vital signs were assessed as normal. He then sat outdoors for a while in order to get some fresh air, after which he returned to work and finished his shift. The next morning, the recurrence of the odor again caused the claimant and Pasquale to leave the repair crib area. The two workers contacted personnel and a supervisor, and the claimant returned to the medical department, where his vital signs were again deemed normal. He again sat outdoors in order to breathe fresh air, after which he returned to his regular work at the repair crib, despite feeling very poorly. A co-worker, Lester Yarnell, testified that on the morning of the 18th, he had also perceived a rotten egg or sulfur-type odor strong enough to make his eyes tear and to prompt him to visit the medical office, though he suffered no further physical symptoms afterward.
The claimant also mentioned a third incident on August 24, 1995, in which he smelled no odor, but discovered that his lips had become salty. This incident is not referenced in any of the medical reports. A fourth exposure on either February 6, 1996 or February 6, 1997 was also cited where the claimant was exposed to spray paint fumes. After the first two incidents, the respondent’s health/safety and maintenance personnel tested the air quality in the claimant’s work area for toxicity with the participation of outside testing agencies, as did union and OSHA personnel. The tests uncovered nothing of a toxic nature, including hydrogen sulfide. The respondent’s maintenance engineer recalled being summoned to the claimant’s building to check for odors on a few occasions, but smelled nothing, save one instance when he managed to detect a quick whiff of a trace “rotten egg” scent that produced no negative symptoms. April 3, 2000 Transcript, pp. 128-30.
The claimant testified that he was angry, scared and frustrated with the medical care that his employer had provided, as it had become apparent to him that Pratt & Whitney was indifferent to him. The trier noted that, while testifying about his employer, the claimant gritted his teeth and spat out his words while grabbing the witness stand with both hands and clenching and unclenching his fists. She found that the claimant was “obviously very angry and bitter;” Findings, ¶ 112; and that he laughed bizarrely and inappropriately during his direct examination, was evasive during cross-examination, and was confrontational toward the respondents’ counsel. Since August 1995, the claimant has seen numerous physicians for a variety of symptoms, including “spaciness; lack of memory; extreme fatigue; depression; difficulties in comprehension and retention; that his eyebrows are very sensitive; that his eyebrow ridge was rolling; problems with his arms and legs; muscle fatigue; fibromyalgia; and that the right side of his face would slip down to his chin as if it was melting.” Findings, ¶ 47.
Pratt & Whitney’s medical department referred the claimant to a neurologist, Dr. Fellows, who wrote on August 31, 1995 that the claimant’s symptoms would resolve themselves. She made no diagnosis of physical injury. A few days earlier, the staff at Windham Hospital’s emergency room had questioned whether the claimant had a toxic reaction to industrial gas exposure, as they were also unable to make a clear diagnosis. Dr. Fellows saw the claimant again in December and January, and advised him that he was overscrutinizing his physiology by worrying about such matters as the frequency with which his eyebrows twitched and lowered. His complaint of muscle tension headaches was unusual in her opinion, and probably not related to whatever substance was present at his job. She recommended that he pursue psychotherapy. In a February 1996 report, Dr. Fellows stated that she was concerned about a diagnosis of Myasthenia Gravis, which she suspected was not work-related. The claimant opined that this physician was operating at her employer’s direction, and that she was disinterested in his personal welfare.
The claimant began seeking treatment from his family physician, Dr. Kilgannon, on September 15, 1995. He believed that anger and anxiety were playing a major role in the claimant’s myriad symptoms, a notion with which the claimant agreed. The claimant saw Dr. Kilgannon several times over the following months, including a week after his alleged exposure to paint fumes, which he apparently did not mention to the doctor. The claimant developed persistent bronchitis soon afterward, and suffered a ruptured biceps in March 1996, which he theorized was connected to his workplace toxic exposure. A few months later, he became convinced that he suffered from ocular myasthenia, and Dr. Kilgannon diagnosed him with “probable” fibromyalgia, “either triggered by the trauma of this ‘exposure’ at work or by the psychological trauma caused by what he has gone through to prove this case.” Findings, ¶ 68, quoting Claimant’s Exhibit F. With regard to the claimant’s eyebrow complaints, Dr. Kilgannon observed nothing irregular at all. He ultimately stated that there was no objective evidence of disease concerning toxic exposure, and felt that the claimant’s dissatisfaction with his work made his likelihood of a peaceful recovery very small.
At Yale in January 1997, the claimant began treating with Dr. Rabinowitz. He examined the claimant four times, and concluded that the claimant suffered from PTSD, with symptoms of depression, fatigue and chemical sensitivity. He did not formally diagnose the claimant with either chemical sensitivity or chronic fatigue syndrome. He initially offered a 15% permanency rating to the claimant’s whole person, which was not related to a physical finding, but to a mental or behavioral disorder. In response to a letter from claimant’s counsel, he then reassigned that impairment rating to the claimant’s brain. However, he admitted that the claimant had no neurological or organic problems relative to his brain. His report concluded that the claimant suffered from PTSD which had not resolved despite psychiatric treatment, and said that the claimant “may well have been exposed to hydrogen sulfide, sulfur compound” based on the smell he reported, although there was no objective evidence that such a substance was present. Claimant’s Exhibit R, pp. 29, 39-40.
Dr. Bayer, a toxicologist, evaluated the claimant at the respondents’ request on April 29, 1998. He found no abnormalities in his physical examination of the claimant other than high blood pressure. He testified that an odor such as that sensed by the claimant can be deceiving, and that it is not an accurate measure of exposure. He saw no evidence that the claimant had been exposed to hydrogen sulfide, as his symptoms were very vague and were not specific to any organ systems. He opined that the claimant suffers from PTSD unrelated to any physical ailment. Dr. Rabinowitz concurred with Dr. Bayer’s opinion that the claimant suffers from depression and anxiety, and that he has a somatization disorder (i.e., the attribution of symptoms to organic or physical ailments that are in fact due to a psychiatric disorder).
Based on all of the evidence, the trier concluded that the claimant suffers from PTSD, but sustained no physical injury as a result of exposure to harmful odors at Pratt & Whitney. His mental impairment was found to be non-compensable pursuant to § 31-275(16)(B)(ii). In a memorandum of law that accompanied the trier’s findings, she added that the claimant “suffered no exposure to life threatening chemicals that occurred in the course of his employment. He was never able to identify what he had been exposed to. Smelling an odor is not equivalent to an injury.” The claimant has appealed the dismissal of his claim to this board.
When a claimant files a claim for workers’ compensation benefits, he must prove that he has sustained a compensable injury, and that the injury has caused him to require medical treatment and to suffer a recognizable disability. Warren v. Federal Express Corp., 4163 CRB-2-99-12 (Feb. 27, 2001); Gibbons v. UTC/Pratt & Whitney, 4000 CRB-8-99-3 (April 12, 2000), aff’d, 63 Conn. App. 482 (2001). This burden of proof has several distinct implications here, as the claimant was obligated to demonstrate that harmful toxic exposure likely occurred at his workplace, that said exposure constituted a physical injury under the Workers’ Compensation Act, and that said injury caused symptoms which rendered him totally disabled and which caused him to sustain a permanent impairment of the function of his brain. Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 447 (2001). Failure to prove any of these necessary elements would require the trier of fact to dismiss the claimant’s action.
The role of the trial commissioner is to evaluate the evidence and testimony offered by the parties, and to decide which, if any, version of the facts she finds the most credible. Warren, supra. The trier of fact possesses the sole authority to perform this task, and this board may not second-guess her decisions regarding credibility on review. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999); Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). We may disturb the findings of the trier only if they contain facts found without any supporting evidence, or if they omit material facts that are truly undisputed. Warren, supra. The legal conclusions of the trial commissioner must also be upheld unless they “result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Id., quoting Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).
In performing our review, we observe that the trial commissioner decided all three of the fact-based legal questions mentioned above in a manner adverse to the claimant’s case. She did not believe that the claimant’s alleged symptoms constituted a physical injury under § 31-275(16), she found that the claimant’s psychological condition was unrelated to whatever events did occur at the workplace, and she found insufficient proof that the claimant had actually been exposed to a toxic gas of some kind at his workplace. Nonetheless, the claimant asserts in his appellate brief that the evidence conclusively establishes that he sustained a workplace chemical exposure which was itself a physical injury, and which injury caused him to suffer PTSD and a significant amount of brain damage. He argues that the evidence supports no other conclusion.
The claimant’s contentions miss the gist of the trier’s factual findings and memorandum of law, where she makes it clear that she did not find sufficient proof that a harmful workplace exposure occurred in the first place. Any argument surrounding the definition of “personal injury” under § 31-275(16) and the “mental or emotional impairment” exception of § 31-275(16)(B)(ii), along with the impact of Doe v. Stamford, 241 Conn. 692 (1997), is therefore unnecessary. See also Biasetti v. Stamford, 250 Conn. 65 (1999) (emotional impairment which itself is alleged to be occupational disease is no longer encompassed by Act, and physical symptoms caused by such an impairment are not a “physical injury”). We have recently noted that a claimant’s perception of stress from abnormal responses to ordinary workplace incidents is generally not a valid basis for the recovery of workers’ compensation benefits in most jurisdictions, including Connecticut. Smith v. Connecticut Light & Power Co., 4135 CRB-5-99-10 (March 29, 2001). “The cause of such stress is more the inherent mental predisposition of the claimant than it is the workplace itself. We find no law or legislative intent that mandates the creation of a ‘safety net’ for such emotionally fragile individuals via the mechanism of workers’ compensation . . . .” Id.
Given that the claimant carried the burden of proof in this case, the trier’s decision would seem to be borne out by the dearth of medical evidence strongly linking the claimant’s condition to an actual toxic chemical exposure at Pratt & Whitney or an identifiable physical injury. Consistent with that evidence, she found that he proved neither a harmful workplace chemical exposure or a physical injury. Her dismissal of the instant claim thus appears to be amply justified, and this board would have no authority to disturb that ruling on appeal. Pallotto, supra.
The trial commissioner’s decision is hereby affirmed.
Commissioners George A. Waldron and Ernie R. Walker concur.
1 Pasquale also filed a workers’ compensation claim that is currently on appeal before us, and his alleged injuries are discussed therein. See, Pasquale v. UTC/Pratt & Whitney, 4325 CRB-8-00-12 (November 2, 2001). BACK TO TEXT
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