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CASE NO. 4425 CRB-5-01-8
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
MAY 16, 2002
RONALD J. CHAMPAGNE
TRAVELERS PROPERTY & CASUALTY
The claimant was represented by Kevin Creed, Esq., Newman, Creed & Assoc., 99 North St., P.O. Box 575, Bristol, CT 06011.
The respondents were represented by Matthias J. DeAngelo, Esq., Law Offices of Scott B. Clendaniel, 300 Windsor St., P.O. Box 2138, Hartford, CT 06145-2138.
These Petitions for Review from the July 25, 2001 Finding and Award of the Commissioner acting for the Fifth District was heard December 14, 2001 before a Compensation Review Board panel consisting of Commissioners George A. Waldron, Ernie R. Walker and Michael S. Miles.
GEORGE A. WALDRON, COMMISSIONER. Both the claimant and the respondents have petitioned for review from the July 25, 2001 Finding and Award of the Commissioner acting for the Fifth District. The claimant objects to the trier’s denial of a permanency award, while the respondents maintain that the trier erred by crediting the testimony of the claimant’s treating physician over that of an independent medical examiner and a § 31-294f commissioner’s examiner. We find no error on either count, and affirm the decision of the trial commissioner.
The claimant contends that he suffers from the lung disease silicosis, which arose out of and in the course of his job with the respondent O.Z. Gedney. He claims that this condition left him totally disabled from April 27, 1998 through January 27, 1999, and resulted in a 15% permanent partial disability of his lungs. The respondents have denied the compensability of the entire claim.
At trial, the claimant testified that he began working for O.Z. Gedney in 1985 as a set-up man in a sandy and dusty environment. In 1997, he claims that he began experiencing respiratory problems including coughing, gagging and choking. Dr. Caminiti, a respiratory specialist, diagnosed the claimant with silicosis, and took him out of work for nearly two years. He testified that the claimant has a pulmonary obstruction caused by cigarette smoking (a habit that he has since broken), and identified a total lung capacity of 74% according to an April 10, 1998 test that was performed at Bristol Hospital. According to Dr. Caminiti, anything above 80% is considered non-restrictive. On April 27, 1999, the claimant underwent another pulmonary function test, which showed an improved lung capacity of 94%. Dr. Caminiti said that the 94% figure was not itself indicative of any restriction, though he still felt that the claimant’s two previous tests did show a restriction. See Claimant’s Exhibit C, p. 50 (July 7, 2000 Deposition).
Though the trier found that Dr. Caminiti’s opinion regarding causation was persuasive, he was not as convinced by the doctor’s testimony regarding the claimant’s period of total disability, which he had identified as April 10, 1998 through January 27, 1999. The trier observed that this testimony was shown to be somewhat inconsistent upon cross-examination. He also found that Dr. Caminiti’s diagnosis of a 15% permanent partial impairment rating of the lungs was unfounded. Instead, the trier adopted the opinion of Dr. Godar, an independent medical examiner, on these issues. Dr. Godar testified that the claimant’s lung capacity test of April 27, 1999 showed normal volumes, thereby indicating that his disease symptoms had disappeared. He was of the opinion that the 75% lung capacity shown on a September 30, 1998 test was due to obesity and suboptimal effort by the claimant. Dr. Conway, the commissioner’s examiner, did think that the claimant had been exposed to silica dust during his employment, but did not find any impairment due to that exposure.
The trier ultimately concluded that the claimant’s lung disease was compensable, and that he was totally disabled from April 27, 1998 through September 30, 1998. No permanency was awarded. Both parties have appealed the commissioner’s decision.
The claimant argues that the trier erred by not finding total disability beyond September 30, 1998, and that he erred by not adopting Dr. Caminiti’s rating of a 15% permanent partial disability to the claimant’s lungs. In matters such as these, it was up to the trial commissioner to determine which (if any) of the physicians who examined the claimant provided the most reliable testimony or documentary evidence. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999); Warren v. Federal Express Corp., 4163 CRB-2-99-12 (Feb. 27, 2001). In doing so, the trier was entitled to accept all, part or none of any given doctor’s medical opinion. Tartaglino, supra; Donaldson v. Duhaime, 4213 CRB-6-00-3 (April 30, 2001). This board does not have the power to disturb such a finding on appeal, unless the facts found are without any support in the evidence. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Warren, supra.
Here, the trier had ample support for both of the challenged findings. Dr. Caminiti explained that he had recommended that the claimant remove himself from work until all of his evaluations and tests were completed. Deposition, supra, p. 37. He also agreed that Dr. Godar’s assessment of September 30, 1998 was ultimately proven correct, as in retrospect, the claimant would have been fit to resume employment as of September 30, 1998. Id., pp. 38-41. We do not think it unreasonable for the trier to have found that the claimant’s period of total disability ended as of September 30, 1998, rather than relying on the January 27, 1999 date that Dr. Conway issued his medical opinion. The evidence would support either finding.
With regard to a permanency rating, the trier was not required to accept Dr. Caminiti’s somewhat hedged opinion that the claimant had sustained a 15% permanent partial disability of his lungs due to compensable silicosis. After confirming his 15% diagnosis, Dr. Caminiti explained that “it is feasible that if [the claimant] had some further improvement, especially if he stopped smoking, he may have some further improvement in his lung function.” Deposition, p. 31. In a circumstance where neither of the other doctors who examined the claimant thought that he had sustained any permanent lung damage due to silica dust exposure, and his last lung capacity test showed a normal result, the trier was understandably reluctant to rely on Dr. Caminiti’s stated belief regarding permanent damage to the lungs. We thus find no error. Of course, the claimant would not be precluded from returning to this Commission at a later time should the condition of his lungs worsen.
The respondents, meanwhile, approach this appeal from the opposite pole by contending that there is insufficient medical evidence to support the finding that the claimant had silicosis, as his lung function had improved, while silicosis is incurable. They assert that any lung impairment was indisputably due to the claimant’s pre-existing condition: chronic obstructive pulmonary disease (COPD), which resulted from years of cigarette smoking. The respondents also fault the trier for stating that he relied on Dr. Caminiti’s opinion regarding causation over that of Dr. Conway because, as the treating physician, Dr. Caminiti was in a better position to assess and track the claimant’s respiratory condition. In their view, a commissioner’s examiner is always at a disadvantage compared to the treater in terms of patient familiarity, and if such reasoning is acceptable, it calls into question the basic utility of § 31-294f examinations.
In past cases, we have recognized that the parties generally expect that an examination performed at the direction of a trial commissioner pursuant to § 31-294f will provide the trier with strong guidance. Zito v. Stop & Shop, 3929 CRB-3-98-11 (Feb. 17, 2000); Iannotti v. Amphenol/ Spectra-Strip, 13 Conn. Workers’ Comp. Rev. Op. 319, 321, 1829 CRB-3-93-9 (April 25, 1995). “As the assessor of the weight to be accorded all medical evidence, however, the trial commissioner is not absolutely bound to credit any given report.” Nieves v. SCM Company, 3317 CRB-6-96-4 (July 9, 1997) (citations omitted). We explained in Nieves, supra, that “(a)lthough we have stressed that a commissioner should articulate the reasons behind a decision to disregard a § 31-294f examiner’s opinion, the ultimate decision is always with the commissioner.” Id. It is also worth noting that, subsequent to our decision in Iannotti, supra, the Appellate Court held that a trier’s decision was not erroneous as a matter of law simply because he failed to articulate his reasons for disregarding the opinion of a § 31-294f examiner. Gillis v. White Oak Corp., 49 Conn. App. 630, 636-38 (1998); see also, Tartaglino, supra, 195-96.
Here, the trial commissioner was of the opinion that Dr. Caminiti’s assessment of the causal connection between the claimant’s lung condition and his silicon exposure at the workplace was more persuasive than that of Dr. Conway. We are not troubled by his explanation that Dr. Caminiti was in a better position as a treating physician to assess the situation than was Dr. Conway. It was perfectly reasonable for the trier to consider what each doctor had to say, and to then find Dr. Caminiti’s explanation of the situation more credible because of his long-term involvement with the claimant’s case. Contrary to the respondents’ suggestion, this does not imply that the opinion of every § 31-294f examiner is meaningless due to the fact that such an examiner will never be as familiar with his or her patient as will the patient’s regular treater. Rather, a treating physician’s familiarity with a patient’s case is a given constant in the workers’ compensation arena, and it is one of the many factors that a commissioner takes into account in deciding whether a treater’s opinion is more persuasive than that of an independent medical examiner. Should that happen to be the factor that tips the scales in a particular case, so be it.
Turning back to the doctors’ diagnoses themselves, the content of Dr. Caminiti’s deposition does offer a sufficient rationale for describing the claimant’s silicon exposure as having caused a recognizable injury to his lungs, even if the trier felt that the evidence was insufficient to warrant a permanency award or a disability award after September 30, 1998. There is no question that the claimant was exposed to silica dust at work, although there was disagreement among the doctors as to whether the claimant’s period of exposure was significant enough to be a likely cause of silicosis. Dr. Conway was of the opinion that the claimant’s lungs did not evince a diffuse interstitial process or the diffuse nodularity typical of silicosis, and that his silica dust exposure could not have caused any impairment beyond a “modest degree of abnormality” on his chest x-ray that would be unrelated to his symptoms of smoking-induced COPD. Respondent’s Exhibit 3. Dr. Godar thought that the pathology risk given the claimant’s silica exposure was minimal, though he agreed with Dr. Caminiti insofar as the claimant’s upper lung fields might show early simple silicosis that would not be relevant to any functional abnormality. Respondent’s Exhibit 2, pp. 14, 25 (Nov. 17, 1999 Deposition). He advocated a precautionary, “common-sense” approach of staying away from environments heavy with silica dust as a “rational overreaction” given that the claimant might have increased lung marking related to silica. Id., pp. 31-32.
Meanwhile, Dr. Caminiti was confident that the claimant had early simple silicosis, which was the diagnosis that the trial commissioner relied upon in his findings. See Claimant’s Exhibit D (July 13, 1999 report). He explained that he had removed the claimant from work based on his opinion that the claimant had silicosis, and that he wasn’t sure that the claimant had a work capacity again until further evaluations had been completed. Deposition, supra, pp. 38-40. He also opined that the claimant’s smoking habit and his resultant COPD could not have been the cause of his restrictive lung volumes (as opposed to lung obstruction), but silica exposure could have caused those symptoms. Id., pp. 29-30. According to Dr. Caminiti, a determination of obstructive lung disease is made by comparing the “FEV1” reading to the “FEC” reading, and obtaining a ratio. Id., p. 15. However, if the raw FEV1 and FEC numbers are both low, it would suggest restriction as opposed to obstruction. “The total lung capacity is the most important test which will determine whether someone’s restricted or not, and that is not obtained with simple spirometry such as Dr. Conway did. That requires a full lung volume determination.” Id. In discussing said determination, figures from the 1999 lung capacity test were used at the deposition. Id., pp. 16-19.
The trial commissioner was entitled to credit Dr. Caminiti’s explanation of lung restriction and its causal relationship to silicon exposure over the opinions of the other doctors. The trier did not have to conclude that, because silicosis is thought to be incurable, and the 1999 pulmonary function test showed a 94% lung capacity, these facts thereby “proved” that the claimant had no disease that constituted a compensable injury under the law. There were other indicators in the claimant’s lungs that, according to Dr. Caminiti, constituted symptoms of early simple silicosis. Therefore, we dismiss the appeal of the respondents as well as that of the claimants.
The trial commissioner’s decision is hereby affirmed. Insofar as any benefits due the claimant from the trier’s award may have remained unpaid pending the respondents’ portion of this appeal, we are required to award interest pursuant to § 31-301c(b) C.G.S.
Commissioners Ernie R. Walker and Michael S. Miles concur.
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