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CASE NO. 4606 CRB-3-02-12
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
MARCH 4, 2004
The claimant was represented by Frank Kolb, Esq., Kolb & Associates, P.C., 49 High Street, East Haven, CT 06512.
The respondent was represented by Kristen Sotnik Falls, Esq., Leitizia, Ambrose & Falls, P.C., One Church Street, New Haven, CT 06510.
This Petition for Review from the December 2, 2002 Finding and Dismissal of the Commissioner acting for the Third District was heard September 26, 2003 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners James J. Metro and Stephen B. Delaney.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant, Mark Parisi, has appealed from the December 2, 2002 Finding and Dismissal of the Commissioner acting for the Third District. We affirm the decision of the trial commissioner.
The pertinent facts are as follows. The claimant began his employment with Yale University as a supervisor in the photo services department sometime around 1981. May 1, 2002 Transcript, p. 3. In 1985 the claimant transferred to a new position as the supervisor of custodial services. He held this position until his termination in November of 2000. The claimant alleges while he worked in custodial services he was exposed to paint chemicals, cleaning chemicals and stripping chemicals. The claimant served in the military between 1966 and 1968 as a dental assistant where he was exposed to mercury and silver. The claimant was also employed as a produce manager at Stop & Shop from 1968 up until he went to work for the respondent. He alleges he was not exposed to any chemicals at Stop & Shop. Id., pp. 5-6. In the 1970’s the claimant was exposed to lead when he worked with stained glass as a hobby. Additionally, the claimant has a sailboat which he varnishes, waxes, paints, and oils.
The claimant testified in October 2000 he began to develop shortness of breath. He alleged he was treated in the emergency room in October or November of 2000. As a result the claimant was tested and evaluated at Yale New Haven Hospital. On November 9, 2000, the claimant was treated by Dr. John Toksoy who obtained a history of the claimant’s symptoms and possible irritants. The doctor’s notes reveal the claimant told the doctor he walked through a smoke filled bar on November 7, 2000 and developed shortness of breath lasting through November 8, 2000. Respondent’s Exhibit 1, 3. As a result of the examination, on November 9, 2000 Dr. Toksoy restricted the claimant’s work duties and advised him to avoid inhaling chemicals.
On April 18, 2001 the claimant was examined by Dr. Jay Mobo at the Yale University Occupational and Environmental clinic. Dr. Mobo performed a spirometry test which was normal. The claimant underwent a methacholine challenge test which was negative for reactive airway disease. A CT scan and chest x-ray failed to reveal any evidence of active pulmonary disease. On April 18, 2001, Dr. Mobo diagnosed the claimant with multiple chemical sensitivity syndrome (hereinafter “MCS”). Dr. Mobo recommended the claimant modify his environment to minimize his exposures.
The claimant has not worked since November 8, 2000. The claimant is seeking to establish compensability for his MCS and payment for medical treatment, temporary total and temporary partial benefits, and interest and attorney fees. The respondent denies the claimant has sustained MCS due to his employment at Yale University.
On May 20, 2002 Dr. Marc Bayer, an independent medical examiner, examined the claimant. Dr. Bayer is of the opinion the claimant does not suffer from MCS. He believes MCS is a syndrome of symptoms without objective findings on laboratory evaluation and is most likely a somatoform or a psychiatric disorder. Dr. Bayer is of the opinion the claimant suffers from heightened anxiety, panic, depression or a somatoform disorder. Dr. Bayer opined claimant’s exposure to chemicals at Yale University did not contribute to his symptomatology.
The trial commissioner found the claimant had not submitted sufficient evidence to support his claim of a diagnosis of work-related chemical sensitivity or his claim that he is disabled from working. Therefore, the trial commissioner dismissed the claim.
The claimant appealed the trial commissioner’s dismissal. The claimant contends prior to and through the date of the formal hearing the respondent’s defense was that the claimant did not contract MCS during his employment at Yale University. However, there was never a dispute as to whether the claimant had MCS. At the formal hearing the respondent asked for a continuance for the submission of additional evidence. The continuance was granted and the respondent submitted the report and deposition of Dr. Bayer. In response, the claimant filed an objection and motion to preclude Dr. Bayer’s deposition and report dated July 1, 2002. The claimant alleges neither of these motions was heard by the commissioner, yet the commissioner rendered a decision relying on Dr. Bayer’s submissions. The claimant alleges he was unable to respond to this new defense prior to the issuing of the trial commissioner’s finding and dismissal.
If we were to construe the trial commissioner’s failure to rule on the admissibility of Dr. Bayer’s deposition and report as a denial of the claimant’s objection and motion to preclude we would likely affirm the trial commissioner. A trial commissioner has broad discretion to grant or deny a continuance to obtain additional evidence and this decision is nearly unreviewable. Saleh v. Poquonock Giant Grinder Shop, 4005 CRB-1-99-3 (March 13, 2000); Flemmings v. Waveny Care Center, Inc., 3963 CRB-7-99-1 (March 2, 2000). Additionally, the trial commissioner is vested with the authority to decide which depositions will be allowed into evidence. Kudlacz v. Lindberg Heat Treating Co., 3407 CRB-8-96-8 (June 26, 2001), aff’d, 70 Conn. App. 559 (2002), cert. denied, 261 Conn. 927 (2002); Tanzi v. New Britain, 3420 CRB-6-96-9 (April 28, 1998). However, in this case there was ample evidence beyond Dr. Bayer’s report and deposition to support the dismissal.
There is no merit to the claimant’s allegation that the respondent initially raised the defense the claimant did not have MCS after submitting the report and deposition of Dr. Bayer. At the formal hearing, the respondent’s attorney stated early on, “It’s our position that if Mr. Parisi suffers from multiple chemical sensitivity syndrome, that his work activities at the University were not a substantial factor in causing that condition.” (Emphasis added). May 1, 2002 Transcript, p. 2. This statement indicates the respondent was leaving the claimant to his proof as to whether he had MCS.
“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.” Saunders v. UTC/Pratt & Whitney, 4323 CRB-8-00-12 (November 2, 2001) citing 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). The claimant in this case needs to prove exposure to a harmful substance likely occurred at his workplace which caused a physical injury under the Workers’ Compensation Act, and that the injury caused symptoms which rendered him disabled. Saunders, supra, citing 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.” Saunders, supra.
The trier is the finder of fact. He has the discretion to credit all, part or none of the medical evidence, and remains free to disregard evidence or testimony that does not appear to be contradicted directly. Maitland v. Home and Buildings Control, 4623 CRB-3-03-2 (January 13, 2004); Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002). We will not overturn the findings and conclusions of a trial commissioner unless they are without evidentiary support, contrary to law or based on unreasonable or impermissible factual inferences. Kish v. Nursing and Home Care, 248 Conn. 379 (1999); Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). We find there was sufficient basis in this case to justify dismissal.
The claimant failed to meet his burden of proof that the injury arose out of and in the course of employment based on the evidence presented. The trial commissioner found there was no evidence submitted regarding any specific chemicals the claimant may have been exposed to at Yale University. Finding, ¶ G. The claimant’s last position at Yale University, which he held for approximately 16 years, primarily involved the inspection of other employees cleaning work, as opposed to directly doing the cleaning himself. May 1, 2002, Transcript, p. 3, 37. Dr. Van Rhijn, one of the claimant’s treating physicians, noted in a December 7, 2000 report the claimant had many environmental exposures to chemicals earlier in life that were non-job related. Respondent’s Exhibit 2. The claimant testified that it was not just chemicals that caused him to be symptomatic. Dust, air fumes, cooking fumes, perfume, windy and cold weather, and air pollution also caused him shortness of breath. May 1, 2002 Transcript, pp. 15, 20, 22. Therefore, there is no clear link between exposure to workplace chemicals and the claimant’s alleged disability.
Although Dr. Mobo diagnosed the claimant with MCS related to his work-related exposure to chemicals, in a report dated October 2, 2001 the doctor stated, “In general, the syndrome [MCS] often begins after a well-defined environmental event, such as a reaction to a more clearly toxic dose of an organic solvent, pesticide, or respiratory irritant.” Respondent’s Exhibit 4. He stated, “Common stimulants are perfumes, petroleum derivatives, and smoke.” Id. The claimant did not present evidence of a well-defined environmental event that he believed triggered his MCS.
Dr. Mobo describes MCS as a “diagnosis of exclusion.” Respondent’s Exhibit 4. He also states, “Mr. Parisi described [a] fairly well delineated time frame for his reaction.” Id. If there are no tests which specifically diagnose MCS, the diagnosis must be based in part on the claimant’s history of symptoms. The issue of a claimant’s credibility is raised when his testimony differs from the history which a doctor obtained from him, and it is the trier’s sole prerogative to resolve that inconsistency. Duddy, supra.
Additionally, the issue of whether MCS exists was raised outside of Dr. Bayer’s deposition and report. Dr. Mobo indicated the pathophysiology of MCS is ill defined. Findings, ¶ 30. A review of the record outside of Dr. Bayer’s report and deposition reveals there was ample evidence to support the trial commissioner’s dismissal of the claim.
Therefore, we affirm the December 2, 2002 Finding and Dismissal of the Commissioner acting for the Third District.
Commissioners James J. Metro and Stephen B. Delaney concur.
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