Solonick v. Electric Boat Corporation

The claimant was represented by Howard B. Schiller, Esq., Law Offices of Howard B. Schiller, 55 Church Street, P.O. Box 699, Willimantic, CT 06226.

The respondent was represented by Robert Bystrowski, Esq., Morrison Mahoney LLP, One Constitution Plaza, 10th Floor, Hartford, CT 06103.

This Petition for Review from the November 29, 2006 Finding and Dismissal of the Commissioner acting for the Second District was heard August 24, 2007 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Amado J. Vargas and Scott A. Barton.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant started working as an engineer at the Electric Boat shipyard in 1968 and spent his career working on weapon systems such as the Trident and Seawolf submarines. He asserts stress from this employment was the proximate cause of his present coronary condition and constitutes a compensable injury under Chapter 568. The respondent disputes this claim and the trial commissioner concluded the claimant failed to prove his condition rose to the level required to find compensability as delineated in such cases as McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104 (1987). On appeal we conclude this was a factual determination for the trial commissioner to reach and therefore, uphold his decision and dismiss this appeal.

Following a formal hearing that commenced April 4, 2005, involved multiple days of hearings and was continued until August 15, 2006, the trial commissioner found the following facts. Commencing in 1968 the claimant began work as an engineer at Electric Boat, with his work concentrated in the design and development of nuclear containment vessels. Findings, ¶¶ 4-6. He received a number of promotions during his career, brought work home regularly, and was barred, due to security restrictions, from discussing his job outside of work. Findings, ¶¶ 9-14. In 1985 the claimant was promoted to chief of engineering which expanded his responsibilities. Findings, ¶ 16. On October 28, 1986 at 8:00 a.m. the claimant suffered chest pains at the respondent’s parking lot, but believing it was indigestion, he was not examined at the respondent’s Yard Hospital until 11:00 a.m. He was then transferred to Pequot Treatment center where he went into cardiac arrest. He was transported to Lawrence and Memorial Hospital where he was treated by Dr. Brian Ehrlich, a cardiologist. Findings, ¶¶ 18-20.

The claimant’s job duties on the day of the cardiac arrest were unremarkable. Findings, ¶¶ 21-22. Prior to the 1986 incident the claimant had been treated in 1979 by Dr. Gregory Kundrat for hypertension. Dr. Kundrat’s records reflected only one entry of a headache related to work, and no complaints concerning job related stress prior to the 1986 incident. Findings, ¶¶ 23-27. The claimant had not complained to his wife or family about job related stress, either. Findings, ¶ 28. The claimant missed three months of work after the 1986 incident and after one month of part-time work, returned full time to his post. Findings, ¶ 29.

By 1991 the claimant had been promoted again to a position as senior engineer which divested him of day-to-day management of an engineering group. The Seawolf program was also winding down reducing his volume of work, but the claimant still had time deadlines and budget pressure. The next year the claimant worked on a redesign of the Trident submarine which was successfully accomplished. Findings, ¶¶ 30-33. By 1998 the claimant once again experienced chest pain and consulted with Dr. Ehrlich. Dr. Ehrlich’s April 20, 1998 report did not mention work stress, noting other risk factors for coronary artery disease such as obesity, hyperlipidity, family history and longstanding hypertension. On July 6, 1999 Dr. Ehrlich diagnosed the claimant with Functional Class III angina and recommended a cardiac catheterization and recommended the claimant stay away from work until it was performed. On July 10, 1999 the claimant underwent a coronary triple bypass. Findings, ¶¶ 34-39.

Following the bypass surgery the claimant’s superiors were eager to have him return to work and he was called at home to update them on ongoing projects. Dr. Ehrlich cleared the claimant to return to work on September 2, 1999, permitting a full time return, after two weeks of four hour days. At the claimant’s request Dr. Kundrat wrote to the claimant’s supervisor, Peter Landry, on February 1, 2000, suggesting the claimant needed to minimize stress in his life and restrict his work schedule. The respondent accommodated a flexible schedule but the claimant found it difficult to accomplish his work load on a part time basis. Findings, ¶¶ 40-43. On November 3, 2003 the claimant retired on the advice of his treating physician. Finding, ¶ 44.

A number of witnesses testified at the hearing for this claim. The claimant’s supervisor, Peter Landry, testified that severe time constraints and stress were part of the work environment for Electric Boat engineers. He did believe that there were more pressured jobs at the shipyard, however and that the level of stress experienced by the claimant would wax and wane. Findings, ¶¶ 45-50. Dr. Kundrat testified that the claimant’s coronary arteriosclerosis was mutlifactorial based on family history, specifically his father who had hypertension and died of a massive stroke, hypertension, stress, sedentary lifestyle, overweight, and mild hypertriglyceridemia. Evidence was presented that the claimant had been denied admission into the military in the 1970’s due to hypertension, that he had mildly elevated cholesterol before 1986, and he had been diagnosed with diabetes in 1991. Dr. Kundrat also testified that but for the claimant’s job stress he would not have had his 1986 heart attack and his job stress was a substantial factor behind that event and in the progress of his atherosclerotic artery disease and to his hypertension. Findings, ¶¶ 51-58. The claimant’s other treating physician, Dr. Ehrlich testified that the claimant’s family history, obesity, longstanding hypertension, and job related stress were all substantial factors in causing the 1986 heart attack and cardiac condition. Findings, ¶ 59. Both Dr. Ehrlich and Dr. Kundrat are of the opinion that the claimant cannot work. Findings, ¶ 60.

The respondent had their expert witness, Dr. Abd U. Alkeylani, a cardiologist, conduct a review of medical records. Dr. Alkeylani testified that the substantial factors behind the claimant’s 1986 heart attack were subacute, undiagnosed diabetes, hypertension, hyperlipidemia, obesity, and family history. He testified that very unusual stress can cause plaque to rupture and precipitate a heart attack, but as he did not find this present in the period prior to the 1986 heart attack, he concluded the claimant’s stress at work was not a substantial factor in his heart attack or progression of his coronary artery disease. Findings, ¶¶ 61-64.

Based on the aforementioned subordinate facts the trial commissioner concluded the claimant and his supervisor were credible witnesses and the claimant was an exemplary, dedicated employee of Electric Boat. While he found the claimant’s job subjected him to stress, he also found that he did not complain about stress on the job, he was subjected to the usual stress associated with the claimant’s occupation as an engineer at Electric Boat, and the events immediately prior to October 28, 1986 were not unusually stressful for the claimant. The trial commissioner found Dr. Alkeylani offered the more credible opinion regarding the claimant’s medical issues. As the trial commissioner determined the claimant’s ordinary, everyday work stress was not a substantial factor in his October 28, 1986 heart attack and was not a substantial factor in aggravating his underlying cardiac condition, he concluded the claimant’s heart attack and coronary condition did not arise out of his employment with the respondent-employer. Findings, ¶¶ A-M. Therefore, he dismissed the claim.

The claimant filed a Motion to Correct which was granted in part and denied in part. He has appealed the dismissal of his claim. He claims that the trial commissioner incorrectly determined the claimant’s stress was not unusual or extraordinary; incorrectly determined that the claimant’s work was not a substantial factor in the claimant’s heart condition; and applied an improper legal standard in evaluating the evidence presented. We believe the trial commissioner reached a reasonable conclusion in this case, and uphold his decision.

We note as an initial focus “the burden claimants have in establishing an occupational nexus to coronary disease. The Centers for Disease Control has pointed out that heart disease is the number one cause of death in the United States accounting for 29% of deaths in America. http://www.cdc.gov/dhdsp/announcements/american_heart_month.htm. (Last visited 11/7/07).” Chappell v. Pfizer, Inc., 5139 CRB-2-06-10 (November 19, 2007). We also must extend extensive deference to the fact finding prerogative of the trial commissioner, as we explained in McMahon v. Emsar, Inc., 5049 CRB-4-06-1 (January 16, 2007).

In reviewing the evidence, we believe it was a reasonable conclusion for the trial commissioner to reach after hearing credible testimony from the claimant and his supervisor that unlike the circumstances in other cases where the claimant prevailed on a cardiac stress claim, there was nothing at work that added unusual stress to the claimant on or before October 28, 1986.1 In his Motion to Correct, the claimant sought to add specific facts as to the overall stress level imposed on the claimant due to the status of the Seawolf submarine program in this time period. We do not believe these facts are inconsistent with the findings on the record, or the trial commissioner’s conclusions. At the point the claimant suffered his myocardial infarction on October 28, 1986 it was early in the business day and the claimant was in a parking lot. The trial commissioner could correctly find the absence of a “triggering event” based on the facts in the record.

The claimant argues that the trial commissioner erred by applying an incorrect legal standard to cardiac stress claims. He argues that the presence of a triggering event is not a legal prerequisite to compensability in such claims and in Findings, ¶ J, the trial commissioner erred by making “a sudden unusual and unexpected employment factor” a condition precedent to award for a cardiac stress event. The claimant believes the genesis of this error was due to subsequent tribunals misreading the holding in McDonough, supra. We are not persuaded that this constitutes error, and in any event, are satisfied the trial commissioner had a sound alternative basis for his conclusions.

We do note that McDonough is susceptible to differing interpretations. In citing a long list of older Connecticut cases on point, the Supreme Court in McDonough speaks to the issue of proving causation. Such cases as Stier v. Derby, 119 Conn. 44 (1934); Jones v. Hamden, 129 Conn. 532 (1942) and Donato v. Pantry Pride (Food Fair), 37 Conn. Sup. 836 (1981) involved situations where an unusual level of stress was placed on the employee immediately prior to the injury. In McDonough, supra, the Supreme Court upheld the claimant’s award based on “the long-standing rule that the claimant must prove that a sudden, unusual and unexpected employment factor was a substantial factor in causing the claimant’s condition.” Id., 118.

The Supreme Court rejected the use of a balancing test as enunciated in Professor Larson’s treatise, perhaps as the respondents were arguing the application of such a test would cause the claimant’s award to be vacated. They held “[w]e decline to declare a new standard by judicial fiat.” Id., 118. While the Supreme Court reiterated its support for “traditional concepts of proximate cause” in determining compensability, id., 118, they also argued “[t]he Connecticut rule accords with the majority rule” which did not require “unusual exertion” prior to the injury. Id., 115-156 n.4.

We are thus unpersuaded that the Supreme Court in McDonough intended to change the substantative requirements for establishing a compensable cardiac claim. We followed the “plain language” of the McDonough decision in Thompson v. State/Department of Special Revenue, 15 Conn. Workers’ Comp. Rev. Op. 178, 2206 CRB-6-94-11 (March 22, 1996), aff’d, 44 Conn. App. 44 (1997)(per curiam). Indeed, our decision in Thompson did not hinge on the claimant’s activities prior to his injuries; rather it focused on the requirement stated in McDonough “the claimant must prove that it is reasonably medically probable that the employment was a substantial factor in causing the injury.” Id. In reviewing the trial commissioner’s Finding and Dismissal in the present case we conclude the trial commissioner reached an adverse decision on this issue in rendering Findings, ¶ M.

In Findings, ¶ M the trial commissioner concluded

A trial commissioner is entitled to substantial deference in his evaluation of medical evidence. “When the board reviews a commissioner’s determination of causation, it may not substitute its own findings for those of the commissioner . . . . A commissioner’s conclusion regarding causation is conclusive, provided it is supported by competent evidence and is otherwise consistent with the law. Dengler, supra, 451.” Williams v. Bantam Supply Co., Inc., 5132 CRB-5-06-9 (August 30, 2007).

The trial commissioner found the opinion of Dr. Alkeylani more credible than the opinion of the treating physicians. Dr. Alkeylani testified at his deposition that “my opinion is the stress at his work is not related in any way to his heart attack in 1986” Respondent’s Exhibit 3, p. 27. He made an unequivocal statement that the claimant’s work was not a substantial factor in the progression of the claimant’s coronary artery disease. Id. We do not share the claimant’s opinion that this testimony comports with the testimony found inadequate in DiNuzzo v. Dan Perkins Chevrolet Geo, 99 Conn. App. 336 (2007)2 particularly as it is consistent with testimony from the claimant’s treating physicians identifying a variety of nonemployment risk factors for the claimant’s coronary disease. “If on review this board is able to ascertain a reasonable diagnostic method behind the challenged medical opinion, we must honor the trier’s discretion to credit that opinion above a conflicting diagnosis.” Strong v. UTC/Pratt & Whitney, 4563 CRB-1-02-8 (August 25, 2003). “We must defer to the factual findings of the trial commissioner in such ‘dueling expert’ cases.” (Internal citations omitted) Dellacamera v. Waterbury, 4966 CRB 5-05-6 (June 29, 2006) n.1, Huertas v. Coca Cola Bottling Company, 5052 CRB-1-06-2 (January 22, 2007).

The claimant finally points to two cases which he believes support his claim Hummel v. Marten Transport, Ltd, 4667 CRB-5-03-5 (May 3, 2004), appeal dismissed for lack of final judgment, 90 Conn. App. 9 (2005), cert. granted, 275 Conn. 913 (2005), aff’d, 282 Conn. 477 (2007) and Benlock v. New Haven Terminal/Cilco Terminal, 3034 CRB-4-95-4 (April 25, 1997), aff’d, 48 Conn. App. 250 (1998)(per curiam). In both those cases, the claimants convinced the trial commissioner that work related stress was the substantial factor in causing a heart attack.3 Since the trial commissioner in the present case did not reach a factual finding in the claimant’s favor, we can easily distinguish these cases and they do not compel a different result herein.

In his Finding and Dismissal, the trial commissioner acknowledged the claimant’s long and honorable service to Electric Boat. We can fully acknowledge the pervasive concern engineers at Electric Boat have to prevent any defects, as it is a matter of common knowledge as to the possible catastrophic effect of a system failure on a submarine. These factors are not conclusive as to whether the claimant proved his case before the trial commissioner. We conclude this case involved the weighing of medical evidence and the trial commissioner’s ultimate findings must be upheld.4

Therefore, we affirm the Finding and Dismissal and dismiss this appeal. Commissioners Amado J. Vargas and Scott A. Barton concur in this opinion.

1 See Chesler v. Derby, 4823 CRB-4-04-6 (July 15, 2005), aff’d, 96 Conn. App. 207 (2006), cert. denied, 280 Conn. 909 (2006)(school superintendent collapsed after contentious board meeting). BACK TO TEXT

2 The Appellate Court reversed the award in DiNuzzo since the expert testimony relied on to sustain the claimant’s burden of proof on causation “was grounded in speculation or conjecture.” Id., 343. We find that Dr. Alkeylani offered an unequivocal opinion after a thorough review of the claimant’s medical records. BACK TO TEXT

3 We note the cases herein do not involve a sudden confrontation or crises akin to the test stated in Thompson, supra, requiring “a sudden unusual and unexpected employment factor” to award benefits for a cardiac event. Nonetheless, we find these cases entirely consistent with the proximate cause analysis in McDonough, supra, and Finding, ¶ M in the present decision. BACK TO TEXT

4 We uphold the trial commissioner’s denial of the respondents’ Motion to Correct. Since the other matters raised in the Motion to Correct which the trial commissioner denied either sought to interpose the respondents’ conclusions as to the law and the fact presented or had they been granted, would not have compelled a different result. Liano v. Bridgeport, 4934 CRB-4-05-4 (April 13, 2006), and D’Amico v. Dept. of Correction, 73 Conn. App. 718, 728 (2002). BACK TO TEXT