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CASE NO. 5340 CRB-3-08-4
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
APRIL 22, 2009
GALLAGHER BASSETT SERVICES
DISTASIO TOOL & DIE COMPANY
HARTFORD INSURANCE COMPANY
The claimant was represented by Andrew W. Skolnick, Esq., Hurwitz, Sagarin, Slossberg and Knuff, LLC, 147 North Broad Street, P.O. Box 112, Milford, CT 06460-0112.
Respondents Marlin Firearms and Gallagher Bassett Services were represented by James D. Moran, Esq., Maher & Williams, 268 Post Road, P.O. Box 550, Fairfield, CT 06824-0550.
Respondents Distasio Tool & Die Company and Hartford Insurance Company were represented by James J. Babek, Esq., Law Offices of David Mathis, 55 Farmington Avenue, Suite 500, Hartford, CT 06105.
This Petition for Review from the April 15, 2008 Finding of Dismissal of the Commissioner acting for the Third District was heard on October 24, 2008 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Ernie R. Walker and Charles F. Senich.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the April 15, 2008 Finding of Dismissal of the Commissioner acting for the Third District. We find no error, and affirm the decision of the trial commissioner.
The following factual background is pertinent to our review. The claimant has been employed by Marlin Firearms since 1968 and has performed machine grinding since 1969.1 The claimant asserts that the ventilation system for his workspace is insufficient to remove the airborne dust and particulates created by the grinding activities and as a result he was exposed to fine metal particulates and lubricants. In 2002, the claimant developed severe hoarseness and loss of voice. In 2003, the claimant had a heart attack which temporarily kept him out of work; the claimant alleges that during that time period, his symptoms relative to his voice improved. However, when he returned to work, his hoarseness returned.
On January 8, 2004, the claimant was examined by J. Michael Willett, M.D., an ear, nose and throat specialist, who diagnosed vocal cord paralysis. On October 8, 2004, the claimant again saw Dr. Willett, who diagnosed chronic cough and hoarseness in addition to the left vocal cord paralysis. At that visit, Dr. Willett referred the claimant for an MRI scan of the brain and a CT scan of the neck and lungs to determine if the claimant had any lesions. In his report of October 27, 2004, Dr. Willett stated that the CT scan confirmed paralysis of the claimant’s left vocal cord, and the chest CT had revealed small mediastinal nodes. Dr. Willett referred the claimant to Charles Kim, M.D., for evaluation of the mediastinal nodes, which were tested and found to be negative for malignancy. One node was located just below the claimant’s vocal cord. Although the claimant told Dr. Willett that he believed his symptoms were work-related, in Dr. Willett’s report of July 8, 2005, he stated that the etiology of the claimant’s left vocal cord paralysis was “unknown.” Claimant’s Exhibit C.
The claimant was examined by John A. Elefteriades, M.D., a cardiothoracic surgeon, on August 23, 2005 and September 28, 2005. Dr. Elefteriades referred the claimant for additional biopsy studies of the lymph nodes and stated in his report of September 28, 2005, “I am quite convinced that this gentleman is probably having an internal hypersensitivity type of reaction to the inhaled particles to which he has been exposed over many years.” Claimant’s Exhibit H. In correspondence dated January 5, 2007 to claimant’s counsel, Dr. Elefteriades wrote “to confirm my assessment that the aortico-pulmonary (AP) window lymph nodes played a causative role in Mr. Rakowski’s vocal cord paralysis.” Claimant’s Exhibit N.
Dr. Elefteriades also referred the claimant to Douglas A. Ross, M.D., an ear, nose and throat specialist, in the hope of addressing the vocal cord paralysis and restoring the claimant’s voice. On October 18, 2005, the claimant consulted with Dr. Ross, who diagnosed “left true vocal cord paralysis” and recommended voice therapy along with a “Type I left Isshiki thyroplasty.” Claimant’s Exhibit I. Dr. Ross performed the thyroplasty on February 20, 2006. Claimant’s Exhibit D. Dr. Ross also performed a fiberoptic bronchoscopy/Chamberlain procedure on September 2, 2005. Claimant’s Exhibit G. In his report of December 4, 2007, Dr. Ross stated that the claimant’s mediastinal adenopathy “caused pressure on the left recurrent laryngeal and hence was a substantial factor in causing his vocal cord paralysis.” Claimant’s Exhibit AA.
Jerrold L. Abraham, M.D., the Director of Environmental and Occupational Pathology at SUNY Upstate Medical University, reviewed biopsy samples of the claimant’s mediastinal lymph node. In his report of July 12, 2006, Dr. Abraham indicated that the biopsy showed an “extensive accumulation of dust” in the claimant’s lymph node comprised of primarily silica along with mica, titanium, aluminum, iron, stainless steel and tremolite. Claimant’s Exhibit B. The claimant also began treating with Kenneth Dangman, Ph.D./M.D., of the Occupational & Environmental Health Center at the UConn Health Group on February 10, 2004. Following an office visit on July 28, 2004, Dr. Dangman diagnosed the claimant with vocal cord dysfunction and clear industrial bronchitis and sinusitis. Claimant’s Exhibit A. In addition, Dr. Dangman indicated he would be interested in visiting the claimant’s job site. In correspondence dated August 7, 2006, Dr. Dangman stated that the claimant’s “history indicates longterm exposures to airborne metal dust, smoke and abrasive particles resulting from his work as a machine operator and precision grinder ” and concluded, “the airborne dust that Mr. Rakowski inhaled as a metalworker constitutes a substantial factor in (and probably the most reasonable explanation for) the presence of the metallic and silicate particles in this lymph node.” Claimant’s Exhibit A.
The claimant was examined by Michael M. Conway, M.D., on March 4, 2004, who diagnosed the claimant with industrial bronchitis and sinusitis but opined that the claimant had neither a disability nor a pulmonary/respiratory impairment. Respondents’ Exhibit 2. On January 19, 2006, the claimant underwent a respondents’ examination with Jerome Siegel, M.D., who also performed an on-site inspection of the respondent employer and testified at trial and by deposition. In addition, Dr. Siegel reviewed videotapes of the claimant’s work site taken during the week of December 11, 2006 to December 15, 2006. Dr. Siegel testified that his review of these videotapes did not support the claimant’s allegations that his workplace activities exposed him to smoke or dust. On the basis of his investigation of the workplace and evaluation of the claimant, Dr. Siegel concluded that the claimant’s mediastinal adenopathy and vocal cord paralysis were not causally related to his employment at Marlin Firearms.
The facility manager for Marlin Firearms, William Desrosiers, also testified at trial that air testing is routinely performed at the plant by industrial hygienists and the Occupational Safety and Health Administration (OSHA). According to Mr. Desrosiers, tests performed in 1994, 1998, 2005 and 2006 revealed that the air quality in the claimant’s workspace was above OSHA’s acceptable standards. Mr. Desrosiers also testified that OSHA did not issue any citations for improper ventilation or evidence of airborne dust/particulates as a result of an unannounced inspection in February, 2006. The evidentiary record further indicated that the machine grinding at Marlin was done with a wet grinding procedure, and that all of the wet grinding machines are enclosed with hooded ventilators.
In his Finding of Dismissal dated April 15, 2008, the trial commissioner concluded that “[t]he preponderance of the evidence does not support the claimant’s position that his vocal cord injury was causally related to his employment” and dismissed the claim. Findings, ¶ P. Following the issuance of the Finding of Dismissal, the claimant filed a Motion to Correct which was denied in its entirety.
On appeal, the claimant contends that the trial commissioner’s determination that the preponderance of the evidence does not support the claimant’s contentions relative to the causal link between his vocal cord injury and his employment constituted error. In support of this contention, the claimant points to Dr. Abraham’s pathology report of July 12, 2006, Dr. Siegel’s testimony “that the materials found in the claimant’s lymph nodes, more likely than not, were inhaled by the claimant at work,” Appellant’s Brief, p. 5, and “the credible opinion of three board certified physicians that the claimant’s vocal cord injury was secondary to the enlarged lymph nodes exerting pressure on the left recurrent laryngeal nerve.” Id. The claimant also references the testimony of Dr. Siegel during cross-examination allegedly to the effect that “there is no other reasonable explanation for the presence of metallic and silicate particles in Edward Rakowski’s lymph nodes and that the enlarged lymph nodes imparting pressure upon the left recurrent laryngeal nerve could cause vocal paralysis.” Id., at 6. Finally, the claimant asserts that Dr. Siegel’s opinion regarding the lack of causation between the claimant’s injury and his workplace exposure “was predicated on [the] degree of cleanliness that he observed during his inspection” of the claimant’s job site, which inspection was apparently scheduled a month ahead of time. Id., at 6-7.
We begin our analysis by reciting the well-settled standard of deference an appellate body such as this board is obliged to recognize when reviewing a trier’s findings and conclusions.
the role of this board on appeal is not to substitute its own findings for those of the trier of fact. Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 451 (2001). The trial commissioner’s role as factfinder encompasses the authority to determine the credibility of the evidence, including the testimony of witnesses and the documents introduced into the record as exhibits. Burse v. American International Airways, Inc., 262 Conn. 31, 37 (2002); Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999). If there is evidence in the record to support the factual findings of the trial commissioner, the findings will be upheld on appeal. Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002); Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002). This board may disturb only those findings that are found without evidence, and may also intervene where material facts that are admitted and undisputed have been omitted from the findings. Burse, supra; Duddy, supra. We will also overturn a trier’s legal conclusions when they result from an incorrect application of the law to the subordinate facts, or where they are the product of an inference illegally or unreasonably drawn from the facts. Burse, supra; Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998).
Heilweil v. Montville-Board of Education, 5161 CRB-8-06-11 (October 24, 2007), quoting McMahon v. Emsar, Inc., 5049 CRB-4-06-1 (January 16, 2007).
The claimant has asserted that he was subjected to airborne dust and particulates during his long-term career as a machine grinder. However, the evidentiary record before us simply does not support the claimant’s allegations in this regard. For instance, a number of environmental studies performed at the employer’s facility failed to reveal the presence of airborne dust or contaminants in excess of OSHA-recommended levels. Industrial hygiene studies performed on March 28, 1994, April 2, 1998, and February 2, 2005 all demonstrated that the substances being tested were within acceptable levels. Respondents’ Exhibits 3, 4, 5. On April 18, 2006, in response to an employee complaint (Respondents’ Exhibit 7), an industrial hygiene study was performed side by side with an OSHA investigation and similarly established that all monitored exposures were within acceptable levels.2 Respondents’ Exhibit 6. Additional OSHA records provided on August 22, 2006 in response to a Freedom of Information request by Marlin Firearms reveal that while several infractions were documented, none of them were related to air quality at the facility.3 Respondents’ Exhibit 8.
Moreover, the evidentiary record also contains extensive expert witness testimony by Dr. Siegel refuting the claimant’s allegations. Dr. Siegel conducted a site visit of the employer’s facility on May 9, 2007, and in his correspondence to respondents’ counsel following this visit, Dr. Siegel reported that he was immediately given ear and eye protection upon arrival at the plant and also noted that the facility housed numerous safety precaution and first aid stations along with a “Right to Know” center where employees could obtain material safety data sheets. Respondents’ Exhibit 10, p. 2. Dr. Siegel also remarked that he was not given any respirator protection and there were no signs posted requiring such protection. Id., at 3. Dr. Siegel indicated that during the inspection, which lasted about an hour, “there was no evidence of significant odors, dusts, aerosols, mists, respiratory irritants within the large warehouse complex.” Id. In addition, he saw “a vending machine area and eating area contiguous with the work floor with contiguous air and ventilation” which “also suggested that there was no significant respiratory exhaust or exposures as this would have been clearly cited by OSHA.” Id. Relative to the contiguous air flow throughout the factory, Dr. Siegel wrote, “[t]here is no indication that other coworkers have had similar complaints or problems as Mr. Rakowski or a clustering of cases related to upper respiratory, hoarseness, hypersensitivity reactions, reactive lymph nodes, or cardiopulmonary problems.” Id., at 4.
Dr. Siegel also inspected the claimant’s work area, noting that the claimant “is involved in wet grinding operations as opposed to dry grinding operations or significant chemical, dust, or respiratory exposures.” Id. He observed that the claimant “was not wearing any respiratory protection, and there was no indication that he had any difficulty breathing while working . There was no indication that he required a full or partial respirator mask or even a dust mask.” Id., at 3. Dr. Siegel remarked that “[m]ultiple areas throughout the production floor had self contained areas with hoods and exhaust fans and hoses to limit any release of materials on the production floor. When these areas were inspected, there was no evidence of significant odors, dusts, aerosols, mists, or respiratory irritants leaking from these areas.” Id. Finally, Dr. Siegel commented,
[i]t is also interesting that despite Mr. Rakowski’s concern for ongoing respiratory problems, workplace exposures, and his concern about possible heavy metal, silica, aluminum, brass, titantium, iron dust, and other unknown dust exposures that he does not wear a respirator or dust mask while at work even if one is not required by his employer. I saw that Mr. Rakowski wears safety glasses and an apron while at work when I visited the job site . There is also no recommendation by any of his treating physicians that he wear a respirator at work or have any ongoing respiratory evaluation in conjunction with work exposures.”4
Id., at 5.
Dr. Siegel also testified at trial regarding conditions at the employer’s facility, essentially reiterating many of the same comments stated in his correspondence of May 9, 2007. In addition, Dr. Siegel discussed his impressions of the video surveillance of the claimant recorded between December 11 and December 15, 2006, stating,
what I noticed was that in terms of [the claimant’s] work that he was working, doing wet grinding operations and that he would do various types of – work in his area and then leave his area of grinding. Then various co-workers that would come over and looked like they would be talking about various types of things. There was no type of wearing of any kind of personal protective equipment like a dust mask or respirator or so at the time. Then they would sort of stop conversing and he would go back to his work area.
June 14, 2007 Transcript, pp. 13-14.
Dr. Siegel again indicated his surprise at the claimant’s lack of respiratory protection.
I would have thought, even given that there was still some question from his doctors, you know, feeling that there was an unsafe environment, that he himself would have been wearing some type of respirator protection. Even if the safety person didn’t recommend it or even if his doctor didn’t specifically recommend it, but just to limit any further exposures for his type of work. And I didn’t see any of that.
Id., at 22-23.
When presented with a number of photos taken by the claimant purportedly showing an accumulation of dust and debris on various surfaces inside the facility, Dr. Siegel denied seeing similar conditions during his inspection, testifying that when he viewed the claimant’s work area, “I did notice dirt in the area. I mean I did notice that there were certain areas of dust. But it was swept up.” Id., at 33. Dr. Siegel conceded that his inspections are generally scheduled in advance and the possibility always exists that the site will have been “cleaned up,” but he testified that, “So I try to factor those kinds of things in. That’s what I sort of point it out, you know, what is it that everybody else is wearing and using at the time that I’m going to look at the site.”5 Id., at 35. Dr. Siegel also explained that the lubricant used in the wet grinding process “weighs things down” and “allows materials to settle” but that “in this particular situation it’s contained within a hood area so that the collection is contained as opposed to being dispersed throughout the air.” Id., at 36. While Dr. Siegel admitted that the use of the lubricant does not completely eliminate the expulsion of particulates into the air, he testified that “there’s actually exhaust ventilation that is in the area of like a hooded are that I witnessed. To me, that’s the purpose of having that type of exhaust ventilation, is to collect that type of material.” Id. He also speculated that if the machines had somehow malfunctioned, other workers would have been affected in addition to the claimant. Id. Finally, Dr. Siegel remarked that given the employment information and medical history provided to him by the claimant, “when I went out to visit on May 9th, I was really surprised at what I found. I didn’t find any evidence of what was described to me a year and a half before.” Id., at 15.
The foregoing analysis clearly indicates that the results of the environmental studies performed at the employer’s facility provided ample support for the inferences of the trial commissioner relative to the causal link between the air quality in the claimant’s workplace and his vocal cord injury. The claimant’s contentions with regard to his longterm exposure to unsafe levels of airborne contaminants are simply not borne out by the results of the environmental studies submitted into the record before us.
We turn now to an analysis of the medical evidence presented. We recognize, as previously mentioned herein, that several of the claimant’s treating physicians did offer opinions linking the claimant’s symptoms to his workplace exposure to dust. Nevertheless, a close examination of the entire medical file indicates that these opinions regarding causation may be less probative than they appear in that they appear to be largely based on the claimant’s assertions regarding his conditions of employment.
For instance, in his opinion letter dated August 7, 2006, Dr. Dangman stated that the claimant’s “history indicates long-term exposures to airborne metal dust, smoke and abrasive particles resulting from his work as a machine operator and precision grinder at the Marlin Firearms Company. This work entailed dust exposures from 1968 to 2003.” Claimant’s Exhibit A. We also note that in the report dated September 21, 2004, Dr. Dangman wrote that when the claimant “is doing ‘heavy grinding’ which means removing large portions of metal from the parts that he is processing, it generates a large amount of dust.” Id. Further, in his report of February 10, 2004, Dr. Dangman indicated that in light of the claimant’s “report of suboptimal metalworking fluid maintenance of a semisynthetic or aqueous fluid, it would not be surprising to find that he has developed some hypersensitivity pneumonitis.” Id. An analysis of Dr. Dangman’s entire chart suggests that his conceptions regarding the claimant’s workplace environment were based entirely on information given to him by the claimant, as Dr. Dangman never performed a site visit of the employer’s facility himself or read any of the environmental study reports.6 Interestingly, we also note that in his report of December 6, 2005, Dr. Dangman indicated that “[a]n extensive review of the literature would suggest that his pathology and his disease process may be unique and never reported in the medical literature.” Id.
Similarly, Dr. Elefteriades also appeared to rely solely on information gleaned from the claimant regarding the conditions at the claimant’s workplace. In a report dated September 28, 2005, the doctor wrote that the claimant “is the gentleman who for 40 years has done precision grinding of metals and other materials.” Claimant’s Exhibit H. In addition, in his correspondence of August 23, 2005, Dr. Elefteriades wrote that the claimant “works as a grinder and has had occupational exposures.” Claimant’s Exhibit C. In fact, in his correspondence of September 28, 2005, Dr. Elefteriades wrote that the claimant “has an otherwise unexplained vocal cord paralysis. He had some mediastinal adenopathy. He already had had 1 mediastinal biopsy that was unrevealing.” Claimant’s Exhibit H. The trial commissioner evidently inferred that the evidentiary record did not support Dr. Elefteriades’ opinion in January 2007 ascribing the claimant’s vocal cord paralysis to the claimant’s aortico-pulmonary (AP) window lymph nodes. As such, Dr. Ross’ opinion as to causation likewise lacked credibility as it appeared to rely heavily on Dr. Elefteriades’ findings. In fact, the record contains only one report from Dr. Ross, which report states that the claimant has “[l]eft true vocal cord paralysis” without referencing an etiology. Claimant’s Exhibit I.
In further support of his position, the claimant points to the pathology report dated July 12, 2006 issued by Dr. Abraham, who analyzed a section of the claimant’s mediastinal lymph node and indicated that he had found a variety of particles consisting primarily of silica along with lesser amounts of mica, titanium, aluminum, iron, stainless steel and tremolite. Claimant’s Exhibit B. However, additional review of the pathology report indicates that Dr. Abraham also wrote, “I would appreciate receiving some further information now on his exposure history to know how these findings correlate with his known or suspected exposures.” Id. The evidentiary record is devoid of any follow-up report by Dr. Abraham linking the existence of the particles in the claimant’s lymph node to the claimant’s workplace exposure. As such, we infer a basis for the trial commissioner’s failure to rely on Dr. Abraham’s biopsy report as probative in this regard.
The evidentiary record also contains several reports from other physicians, none of whom linked the claimant’s vocal cord paralysis to workplace exposure. For instance, J. Michael Willett, M.D., who appeared to treat the claimant between January 2004 and January 2006, wrote in a report dated July 8, 2005 that the claimant had “left vocal cord paralysis; etiology unknown.” On March 4, 2004, the claimant was also examined by Michael M. Conway, M.D., who diagnosed [i]ndustrial bronchitis and sinusitis but concluded, “I do not believe he has a compensable respiratory impairment due to occupational disease, but certainly the industrial bronchitis has produced his symptoms that should be expected to improve if dust exposure is minimized.” Respondents’ Exhibit 2.
As mentioned previously herein, Dr. Siegel also performed a respondents’ examination on the claimant on January 19, 2006. At his deposition of July 6, 2006, Dr. Siegel testified that “[a]fter taking and reviewing Mr. Rakowski’s clinical history and his occupational history, including employment history I was unable to conclude that there was a work-related incident or etiology behind his voice hoarseness or left vocal cord paralysis.” Deposition, p. 26. Rather, he “concluded that the cause was more likely to be related to some type of outside, [sic] either cold, virus, bacterial infection, pollution, smoking or some type of other inhaled product .” Id., at 29. In fact, Dr. Siegel remarked, “from reviewing the ear, nose and throat physician notes, I believe that they feel that the vocal cord paralysis is actually separate from the lymph node type of problem that had occurred.” Id., at 29-30. He noted that Dr. Ross was “actually treating Mr. Rakowski for something called spastic dysphonia and wanted to do this type of Isshiki procedure, which, basically, would take care of that spasm of the vocal cord .” Id., at 44. Dr. Siegel found this significant in that,
[t]he fact that his solution to this problem was this Type I left Isshiki thyroplasty, concluded to me that he felt that this was not a pressure phenomenon from the lymph nodes themselves or else he would have recommended removing the lymph nodes as opposed to do doing a primary procedure on the larynx itself, which is the thyroplasty procedure.
Id., at 45.
Dr. Siegel also testified that the claimant had “a significant smoking history, which I found to be quite relevant.”7 Id., at 20. A biopsy performed at Yale New Haven hospital on September 22, 2005 indicated that the claimant’s lymph nodes were “reactive”, Claimant’s Exhibit E, which finding Dr. Siegel described as,
a very nonspecific type of reaction which is in the pathology report. There was also noted to be anthracotic pigment, which is a black pigment, that can be basically, from anything that you inhale, such as smoking, to any type of inhaled type of dust that you can get in the air .
Respondents’ Exhibit 1, p. 18.
He went on to state that “the reason I felt that that was important was given the findings on the pathology report of the anthracotic pigment, anthracotic pigment is wellknown to be associated with smoking, whether it’s active smoking or secondhand smoke, and is a nonspecific blackening of lung tissue or in this case a lymph node.” Id., at 20-21. He likened trying to determine the cause of the anthracotic pigment to trying to determine the original cause for scarring, remarking that “[i]t’s very difficult when you see scar tissue, which is fibrous tissue, to actually know what actually caused that type of scarring . It’s actually impossible to know, but we know that that scarring is a nonspecific way that the body develops to protect itself and to allow the body to heal.” Id., at 19.
Dr. Siegel conceded that Dr. Elefteriades “had felt that this was occupationalrelated exposure” but testified that “[t]he problem was that he couldn’t really determine exactly what was actually causing that type of change. He felt, however, that there was some type of hypersensitivity type of reaction to inhaled particles which had occurred over many years and he did not indicate anything about the smoking history.” Id., at 21. Dr. Siegel also noted that the claimant saw at least two ear, nose and throat physicians as well as a pulmonologist, and that “[n]one of them seem to be putting forth any type of reports or information, according to Mr. Rakowski, in support of an occupational cause.” Id., at 21-22. In his report of May 9, 2007, Dr. Siegel indicated that “[a]lthough Dr. Dangman and Dr. Abraham had raised the possibility that airborne dust inhalation (as a metal worker) was a substantial factor for the presence of metallic and silicate particles in the lymph node (July 12, 2006 and August 7, 2006 reports), this appears to be purely speculative and does not appear to be biologically plausible or scientifically credible .” Respondents’ Exhibit 10, p. 5. When specifically queried at trial regarding the findings in Dr. Abraham’s pathology report, Dr. Siegel stated,
[i]t could be something outside of the workplace maybe, or if he had a second job in another area, he may have been exposed to some type of metallic dust that might have been inhaled. But I saw no evidence at all based on the operations of what he does, that there would have been any type of exposure to create an inhalation exposure to lead to this type of lymph node that Doctor Abraham found.
June 14, 2007 Transcript, p. 16.
Dr. Siegel also reviewed the various industrial hygiene and OSHA studies, and testified that the studies seem to suggest that the employer was responsive to employee complaints. “It sort of supported to me that attempts were made to sort of look at the workplace to ensure patient safety.” Respondents’ Exhibit 1, p. 34. Dr. Siegel testified that his review of the environmental studies did not alter his opinion as to causation.
As noted before, I had noted that the types of changes that were seen in the lymph nodes were very nonspecific and could occur in all types of respiratory processes, including viruses, bacterial infections, pollution, smoking or any type of exposures to other inhaled products. There was no indication in the industrial hygiene report that any of the mists, such as the oil mists, the total particulates that were sampled were above levels or that specifically would have caused the types of reactive changes that I noted in the prior pathology reports.
Id., at 35-36.
Dr. Siegel did testify that if there were evidence of the particles which the claimant alleged to have inhaled in the lymph nodes, then it would be more likely than not that the particles had been in the air the claimant breathed at the workplace. Id., at 49-50. However, Dr. Siegel went on to state that even if such particles were found in the claimant’s lymph nodes, it would not change his opinion relative to the vocal cord paralysis, “because the way the drainage of these lymph nodes have [sic] occurred, it would be diffuse throughout many of the lymph nodes, it wouldn’t just be affecting one lymph node or another lymph node .” Id., at 50-51. Similarly, when queried at trial as to whether he had an opinion relative to the etiology of the vocal cord paralysis, Dr. Siegel stated,
I can’t make that leap from the lymph node to vocal cord paralysis. There’s no known association that I’m aware of that would affect that type of response. One of the – has to cause some type of pressure on a nerve. And again, in the area that this lymph node was taken, there was no visible pressure on the nerve.
June 14, 2007 Transcript, p. 40.
Dr. Siegel also noted that the claimant,
was evaluated by a few different ear, nose and throat physicians. It appeared as though this was either a nerve problem because it was only affecting one area in his vocal cords. What would have actually caused this nerve related problem, is purely speculative. I don’t know what would have caused that. But I can say that it wasn’t anything that I saw from Marlin Firearms. I can’t come up with any kind of biologically plausible way that a nerve would be affected from any exposures that I saw for review.
Id., at 17.
In fact, Dr. Siegel was rather critical of the other physicians involved in the matter.
what I thought was amazing about this entire case is that we have all of these doctors making opinions about some type of causal relationship or some type of problem and I didn’t see any communication with the employer, no work site inspection, no conversation with industrial hygienist, no other conversations with OSHA, yet all of these opinions are being floated around within the medical records without what I consider to be credible information.
In light of the foregoing analysis of the medical testimony in this matter, we conclude the evidentiary record in this regard provides ample support for the trial commissioner’s conclusions regarding the lack of causation between the claimant’s employment and his vocal cord injury. While there is no question the record does contain medical reports attesting to the existence of such a causal link, we affirm the trial commissioner’s finding that “[a]ll the information the claimant’s physician had regarding the alleged exposures came from the claimant.” Findings, ¶ J. Given that the medical opinions expressed in the causation reports were largely “derivative of the claimant’s narrative,” Do v. Danaher Tools, 5029 CRB-6-05-12 (November 28, 2006), the decision to reject such medical opinions was solely the prerogative of the trial commissioner and not subject to challenge by this board. “The trier may accept or reject, in whole or in part, the testimony of an expert.” (Internal citations omitted.) Tartaglino v. Department of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999).
The claimant also filed a Motion to Correct which was denied in its entirety. Our review of the proposed corrections suggests that the claimant was primarily engaged in an effort “to have the commissioner conform his findings to the [claimant’s] view of the facts,” D’Amico v. Dept. of Correction, 73 Conn. App. 718, 728 (2002), cert. denied, 262 Conn. 933 (2003). We therefore find no error in the trial commissioner’s refusal to grant those corrections, as “[t]he [claimant] cannot expect the commissioner to substitute the [claimant’s] conclusions for his own.” Id.
Having found no error, the April 15, 2008 Finding of Dismissal of the Commissioner acting for the Third District is hereby affirmed.
Commissioners Ernie R. Walker and Charles F. Senich concur in this opinion.
1 The claimant also began working approximately eight hours a week for respondent Distasio Tool and Die in 1986 doing grinding and milling; however, the claimant testified that he was exposed to very little dust at this job site. BACK TO TEXT
2 Mr. Desrosiers testified that the claimant also wore a collection device during this workplace investigation and no substances were found on him. April 3, 2007 Transcript, p. 46. BACK TO TEXT
3 The employer was cited for violations of such items as “tagout,” energy control and inspection procedures, the lack of a safety clamp on one of the machines, and inaccurate paperwork for hearing loss cases and other workplace injuries and illnesses. Respondents’ Exhibit 8. BACK TO TEXT
4 During his testimony at the formal hearing of April 3, 2007, the claimant confirmed that he has never worn a mask or ventilator. Transcript, p. 8. BACK TO TEXT
5 In his testimony at the formal hearing of December 10, 2007, William Desrosiers stated that to the best of his knowledge, the claimant’s work area was not cleaned in anticipation of Dr. Siegel’s inspection, and that each machine operator is responsible for cleaning his or her own work area. Mr. Desrosiers also testified that some areas of the facility are cleaned on a regular basis, usually during a plant shutdown. Transcript, p. 4. BACK TO TEXT
6 Dr. Dangman’s reports indicate that the possibility of a site visit was discussed with the claimant on numerous occasions but the claimant never provided the authorization because he was fearful of losing his job. Claimant’s Exhibit A, reports of August 18, 2004; July 28, 2004; April 13, 2004; February 10, 2004. BACK TO TEXT
7 The claimant testified that he smoked half a pack a day for approximately 15 years and quit in 1994. April 3, 2007 Transcript, p. 17. BACK TO TEXT
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