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Savage v. Rogers Corporation

CASE NO. 4330 CRB-2-00-12



JANUARY 3, 2002











The claimant was represented by Robert B. Cohen, Esq., Levy & Droney, P.C., 74 Batterson Park Road, P.O. Box 887, Farmington, CT 06034-0887.

The respondents were represented by David Davis, Esq., McGann, Bartlett & Brown, LLC, 281 Hartford Turnpike, Suite 401, Vernon, CT 06066.

This Petition for Review from the December 7, 2000 Finding and Award of the Commissioner acting for the Second District was heard August 24, 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 December 7, 2000 Finding and Award of the Commissioner acting for the Second District. She contends on appeal that the trial commissioner erred by prematurely considering and then dismissing her claim that she suffers from Multiple Chemical Sensitivity Syndrome (MCSS). We find error, and remand this matter back to the trier for further proceedings.

The claimant began working for the respondent Rogers Corporation in 1976. At that point in her life, she had no dermatologic allergies or pulmonary problems, nor did she have a family history of such ailments, including asthma. During her 20-plus year tenure at Rogers, she has worked as a product handler, loading chemicals in drums from its warehouse, as a froth-maker in the fluidyne department, and as a urethane grinder. At no time did the claimant wear a mask, nor was she offered one by her employer. She experienced no breathing problems, however, even though annual tests were performed. The claimant did wear gloves, goggles and an apron while working with chemicals at Rogers. In 1997, she was diagnosed with a sinus infection. She learned in February 1998 that she was allergic to isocyanates after developing a rash, visiting an emergency room, and seeing Dr. Baillargeon, the company’s physician. Her condition, which includes a progressive pulmonary problem, has worsened since that time, and she has not returned to employment at Rogers since March 3, 1998.

The trier cited several medical opinions in his findings. Dr. Storey saw the claimant shortly after she stopped working at Rogers, and after reviewing the claimant’s test results and the results of a work site visit, opined that the claimant would be able to return to work as long as no isocyanates were present at the facility. Claimant’s Exhibits E, F, G. Dr. Kordansky, a dermatologist, stated that the claimant had a severe contact allergy to isocyanates, and that she faced the risk of contracting an exfoliative dermatitis with continued exposure to isocyanates, which ailment can be fatal. Claimant’s Exhibit J. The claimant was initially authorized to stop job searching by Dr. Kordansky pending the outcome of formal proceedings.

Both Dr. Baillargeon and Dr. Conway, the respondents’ examiner, questioned Dr. Kordansky’s conclusions. Dr. Baillargeon, who became the claimant’s regular treater in February 1999, adjusted his initial diagnosis of an isocyanate allergy after seeing the claimant more often, and opined that she suffered from a MCSS that left her unable to work or perform job searches. He had earlier diagnosed her with reactive airways disease syndrome (RADS). Dr. Conway thought the claimant suffered from occupational industrial asthma, and opined that she could work outside of the Rogers facility as long as she was not exposed to industrial-level isocyanates. He disagreed with the diagnoses of MCSS and RADS, and thought that the claimant should be examined sometime around March 2000 for the establishment of maximum medical improvement and a permanency rating of her lungs. He doubted that the claimant’s asthma created a likely possibility of a fatal pulmonary reaction.

In his Finding and Award, the trier cited but one issue for the formal hearing: whether the claimant was entitled to ongoing temporary partial disability benefits under § 31-308(a) without the requirement to do job searches because of her pulmonary condition and the possible health hazard that an allergy-provoked dermatitis would create for her if she were exposed to any type of chemicals. Findings, ¶ 13. According to the trier, the respondents were denying that the claimant had MCSS because no such medical diagnosis is recognized, while the claimant maintained that she suffers from MCSS, which in turn prevents her from looking for work in the general community. After considering the evidence, the trier concluded that the claimant’s primary diagnosis was a mild asthmatic condition, and that based on Dr. Conway’s testimony, she was capable of returning to the work force as long as she avoided industrial isocyanate exposures. Her pulmonary condition was controllable by medication. Most saliently, the trier found that the claimant had not established by a preponderance of credible medical evidence that she has MCSS. The claimant now challenges this finding on appeal.

In her brief, the claimant asserts that she was deprived of due process by virtue of the trial commissioner’s finding regarding MCSS. She contends that there was no notice given that MCSS was an issue at the formal hearing, and that when both parties tried to expand the scope of the hearing beyond the claimant’s need to do job searches for § 31-308(a) benefits, the trier stated that he would not change the issues mid-stream. See February 3, 2000 Transcript, p. 2. The respondents, meanwhile, contend that the appeal should be dismissed because the issue was properly raised, because MCSS is a scientifically unsound diagnosis, and furthermore, because medical evidence that the claimant failed to timely disclose shows that she does not have MCSS. See Respondents’ August 1, 2001 Motion to Dismiss.1

The hearing notices in our file demonstrate that there were two issues listed on the July 14, 1999 formal hearing notice and all subsequent notices (through the July 26, 2000 hearing, at which briefs were filed and the closing of the record was extended for two months): § 31-308(a) temporary partial disability benefits and § 31-307 total incapacity benefits. Prior informal hearing notices had listed only § 31-308(a) as the issue for discussion. At the February 3, 2000 formal hearing, the respondents’ counsel objected to the claimant’s contention that both types of temporary disability benefit were at issue. In response, the trial commissioner noted that the action had originally begun with a § 31-308(a) claim only, and he stated that the issue would not be changed to incorporate total disability benefits. Transcript, p. 2. The trier then noted that claimant’s counsel had represented at the previous formal hearing in July 1999 that no issue of total disability was pending.

At that point, the claimant’s counsel proceeded to explain that, after the trial commissioner ordered that the claimant be allowed to terminate job searches in conjunction with her § 31-308(a) claim pending the receipt of further evidence from doctors, a deposition was taken of Dr. Baillargeon on December 9, 1999. In that deposition, Dr. Baillargeon discussed his belief that the claimant might have MCSS. The claimant wished to introduce that deposition into evidence, while the respondents objected to all parts of that deposition that discussed MCSS or rendered advice based on that hypothesis on the ground that it was a scientifically unsupportable diagnosis under the Connecticut Code of Evidence. The claimant contended that a separate hearing would be necessary to determine whether that evidentiary standard applied, which hearing the respondents had not requested. The respondents disagreed that such a special procedure was necessary. Transcript, p. 6. The trier stated that he would mark the deposition for identification, and give each party two weeks to file a brief on the issue. When the respondent asked the claimant’s attorney if he would agree to highlight the testimony in Dr. Baillargeon’s deposition that concerned MCSS, counsel replied with this argument:

Commissioner, I will not on behalf of the claimant be boxed into a situation—Multiple chemical sensitivity was testified to both by Dr. Baillargeon, and will be by Dr. Conway, as being inherently involved with the allergic reaction to isocyanates and what it caused from that point forward. . . . We have had hearings on that very subject without objection from [respondents’ counsel]. The claimant has testified and the commissioners have heard that whenever she goes to various areas with different contaminants or various products that it has had an effect upon her. That has been the testimony in this case. That is inherently tied in with previous testimony. And now to separate that and to say, well, we’re talking about a different item, a different malady, would be to take out of the case what has already come in without objection.
… I don’t know what [the respondent] means by multiple chemical sensitivity in its pure sense. The testimony of the doctor is talking about sensitivity to various contaminants, various products and various areas. If that is multiple chemical sensitivity, then he can strike the entire doctor’s testimony.

Transcript, pp. 7-8.

Later at the hearing, when Dr. Conway took the witness stand, the respondents prefaced his questioning by stating that they would offer Dr. Conway’s testimony on both direct and cross-examination only if the trier should rule that Dr. Baillargeon’s deposition remarks regarding MCSS were admissible as evidence. Transcript, p. 36. The claimant objected, and requested that anything Dr. Conway said be part of the record in the case. The trier stated, “Gentlemen, we’re going to finish today. That’s it. Finish today. Dr. Conway’s here. I want to hear what he has to say.” Id. He then instructed the respondents’ counsel to begin his direct examination of the witness. Dr. Conway would eventually testify that, in his opinion, MCSS diagnoses did not have a sound scientific basis because the illness is held to exist only where there are subjective, unverifiable symptoms and no objective abnormalities of disease in any organ system. “So, it’s only a diagnosis that can be proffered if no disease can be found. . . . There [are] no objective tests that can be done on an individual suspected of having this syndrome.” Id., 50.

Two months after the conclusion of the hearing, each party filed a memorandum of law with the trial commissioner. The claimant addressed Dr. Baillargeon’s deposition and the wisdom of holding a special hearing to determine its admissibility pursuant to the legal criteria enunciated in State v. Porter, 241 Conn. 57 (1997), which adopted a standard of evaluating expert testimony that had been announced by the federal Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The claimant’s position was that any discussion of MCSS offered by Dr. Baillargeon was nothing more than subjective belief and speculation, as the doctor was uncertain of the prognosis, and was recommending that the claimant see another physician regarding MCSS for the purpose of making a proper diagnosis. Thus, it would be inappropriate to construe his discussion of MCSS as an expert opinion that should be evaluated at a Daubert hearing.

Additionally, the claimant argued that such a hearing would not preclude the introduction of this testimony into the workers’ compensation forum, as formal requirements for the admissibility of expert testimony are generally not applied here under cases such as Mulroy v. Becton Dickinson Co., 48 Conn. App. 774 (1998), and Cabral v. Metropolitan District Employees, 3770 CRB-1-98-2 (May 13, 1999). Rather, the trier is to proceed in accordance with the rules of equity, and issues regarding the credibility of a scientific method would affect the weight of that evidence. The respondents, meanwhile, continued to argue that Dr. Baillargeon’s testimony should be rejected because his opinions were based on a scientifically unaccepted diagnosis. They also noted his admission that he tries not to treat MCSS patients, but rather refers them to the non-mainstream American Academy of Environmental Medicine because there is no effective treatment for the condition. Claimant’s Exhibit K, p. 36-38.

At this stage of the proceedings, the record was still open, and remained open through September 2000. The parties filed trial briefs in June, with their positions regarding Dr. Baillargeon’s testimony and MCSS relatively unchanged from those in their prior memoranda of law; we also observe that the claimant took the position that the trier could award temporary total disability benefits due to the gravity of her illness. Following the commissioner’s award on December 7, 2000, the claimant filed an appeal challenging the trier’s inclusion of a finding concerning MCSS. “Had the diagnosis of multiple chemical sensitivity syndrome been an issue, Claimant certainly would have obtained and presented additional evidence in the form of a multidisciplinary evaluation by a physician certified by the American Academy of Environmental Medicine, as had been strongly recommended by Dr. Baillargeon. As this may be a pivotal issue in the overall disability of the Claimant, whether it be temporary or permanent, partial or total, it is not within the Commissioner’s authority to make this determination without affording the Claimant due process.” Brief, p. 11.

There are several important principles at play in this matter, each of which vies to be the dominant theme. We have been advised by the claimant of the constitutional guarantee of due process to all litigants, and the respondents have stressed the threshold of reliability that a medical opinion must satisfy in order to constitute admissible evidence in a legal proceeding, both generally and in the workers’ compensation forum. One topic that neither party has spent much time discussing, however, is also important: the duty of each party to present all of the evidence that is relevant to the issues that it wishes to have determined by a commissioner. Workers’ compensation proceedings are designed to facilitate a speedy, efficient and inexpensive disposition of claims, even recognizing that some cases can be quite complicated. See Menzies v. Fisher, 165 Conn. 338, 346 (1973); Kuba v. Michael’s Landscaping & Lawn Service, 4266 CRB-4-00-7 (Aug. 29, 2001). The avoidance of litigation, delay and expense has been a concern of our courts from the beginning. Powers v. Hotel Bond Co., 89 Conn. 143, 146 (1915). Where a party seeks to have a particular issue, such as a disability period, adjudicated by a commissioner, that party is not entitled to present its case in a piecemeal fashion, so that it might have a second or even third opportunity to prove its claim should the initial attempt fail. Casertano v. Shelton, 3329 CRB-4-96-4 (Sept. 16, 1997). This concern must be balanced with the fundamental right of a party to be notified that an element of a case is at issue, and the right of a party to object to evidence that is not legally probative of a disputed fact.

In the case before us, the claimant sought to have the issue of her entitlement to disability benefits determined by the trial commissioner. The basis of her claim was the claimant’s sensitivity to various chemicals, primarily focusing on isocyanates but possibly encompassing other chemicals too. Though initial notices referred only to a claim for temporary partial disability benefits, they soon reflected a temporary total disability claim as well. The trier resisted the claimant’s effort to interject the temporary total disability issue into the mix at the formal hearing, preferring to leave the claim centered on the claimant’s responsibility to perform job searches as part of her § 31-308(a) claim. This was made clear at the February 3, 2000 proceeding.

The trial commissioner plainly had the authority to use his discretion in limiting the issues if he believed that this approach was best calculated to ascertain the parties’ substantial rights and provide relief under Chapter 568. Section 31-298 C.G.S. In most situations, however, one would expect that a claim of this nature—where the claimant was contending that she did not need to perform job searches due to severe chemical sensitivity—would implicate medical evidence that would also have the potential to establish total disability. Thus, temporary partial disability and temporary total disability claims for a given time period would be determined concurrently. The claimant herself seemed to intuit this at the last formal hearing, where her attorney not only attempted to raise the possibility of a finding of total disability, but (as quoted above) also addressed the natural continuity between a MCSS diagnosis and a diagnosis of hypersensitivity to one, two, or more enumerated chemicals or chemical compounds.

In fact, the claimant continued to assert that the trier could make a finding of total disability throughout the entire trial briefing process, based on similar findings that had been made in comparable cases. June 27, 2000 Brief, p. 10. Yet, one of the potential grounds for a finding of total or partial disability—a finding of MCSS—was deemed to be unavailable in the claimant’s briefs because there was insufficient expert testimony on the matter. While the respondents maintained that such a diagnosis was outside the spectrum of scientific verifiability altogether, and thus should not even be entertained by the trier, the claimant hoped that an examination for multiple chemical sensitivities could be conducted at some point in the future. Based on procedures that have been conducted in trial courts, the claimant also maintained that one could not exclude evidence on the ground of scientific inadmissibility without a Daubert hearing.

We do not know why the claimant could not have been tested by a qualified expert for multiple chemical sensitivities during the months that passed between Dr. Baillargeon’s initial mention of the MCSS possibility and the closing of the record. Such tests could have been offered into evidence, along with testimony regarding the scientific basis for MCSS from someone whose practice included the treatment of such a condition. This would have enabled the trier to make an informed decision about the viability of MCSS as a diagnosis. But no request was made to pursue that route, nor did the trier order that such a medical examination take place. Instead, the parties seem to have instinctively gravitated toward a complex procedural path that would have entailed multiple hearings, multiple briefings, orders for medical examinations, formal evidentiary rulings, appeals, and a lengthy trial process before a final determination could be made regarding the claimant’s disability status for the disputed period.

With regard to the scientific reliability of diagnostic procedures, we have discussed in depth the discretion that a commissioner has to choose among alternative diagnostic methods in fulfilling his factfinding duties, and the factual character of such decisions. Cabral, supra. In Mulroy, supra, our Appellate Court held that the Daubert standard, as implemented by our Supreme Court in Porter, supra, need not be used in workers’ compensation cases because formal rules of evidentiary admissibility do not apply here. Of course, even if the Porter approach is not binding, in practice a trial commissioner will need to apply some standard for evaluating the reliability of various diagnostic methods before he can select between alternate opinions.

In Cabral, we took the opportunity to review Porter and Daubert, and observed that the Court’s 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.” Less established diagnostic methods need not be screened out simply because they have not been standardized among the medical profession. If a party objects to the introduction of a doctor’s opinion, the trier simply decides whether to accept his testimony based upon the ability of the opinion’s proponent to demonstrate its reliability using objectively verifiable criteria, the potential for error in the diagnostic technique, the methodology behind the technique, etc. This means that, as a practical matter, the evidence would best be obtained before the scientific validity of the technique were reviewed. A trial commissioner would be hard-pressed to rule on the admissibility of an expert opinion without being able to see the opinion itself, and by having to rely only on second-hand information from other courts’ rulings and on doctors who do not regularly treat patients under a particular diagnostic theory.

As no special hearing was required to determine the admissibility of Dr. Baillargeon’s opinion concerning MCSS, we hold that the proper course of action would have been for the commissioner to review that opinion along with any other evidence the claimant wished to offer regarding MCSS. Unfortunately, everyone concerned seems to have assumed that a different procedure would be necessary before a more qualified doctor’s opinion regarding MCSS could be obtained. Given the unusual set of circumstances below, we cannot say that the claimant should bear the brunt of the responsibility for not having obtained such an opinion prior to the trial commissioner’s decision. Therefore, we shall remand this matter to the trier so that he might reconsider whether it would be in the best interest of all parties concerned to allow the claimant an opportunity to see a qualified expert on MCSS, as per Dr. Baillargeon’s recommendation. If the trier finds that such an examination would be useful, the expert’s report could be admitted into evidence along with any other relevant evidence either party wishes to introduce. At that point, the trier would then reassess all of the evidence, determining in the process whether he finds the scientific methodology underlying multiple chemical sensitivity syndrome to be convincing. The trier should then be able to resolve both the issues of temporary partial disability and temporary total disability for the time period in question, and we will be assured that the claimant has received the necessary level of due process. Casertano, supra.

The trial commissioner’s decision is accordingly reversed and remanded for further proceedings.

Commissioners George A. Waldron and Ernie R. Walker concur.

1 The report cited by the respondents is not before this board as evidence, and we lack the authority to evaluate such an opinion in terms of its credibility. See Mosman v. Sikorsky Aircraft Corp., 4180 CRB-4-00-1 (March 1, 2001). Therefore, we cannot dismiss the instant appeal on the ground that the claimant’s appeal has been rendered moot by the establishment of a contrary fact. BACK TO TEXT


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