Opinion
CASE NO. 5180 CRB-1-07-1CLAIM NO. 100134588, 100150386
JANUARY 22, 2008
This Petition for Review from the December 22, 2006 Finding and Dismissal of the Commissioner Acting for the First District was heard October 19, 2007 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Amado J. Vargas and Scott A. Barton.
The claimant was represented by James F. Aspell, Esq., Law Office of James F. Aspell, 776 Farmington Avenue, West Hartford, CT 06119.
The respondents Nutmeg Big Brothers/Big Sisters and Hartford ITT Insurance Group were represented by Laurence McLoughlin, Esq., Law Offices of David J. Mathis, 500 Farmington Avenue, Suite 500, Hartford, CT 06105.
The respondents Kidsafe of Connecticut and Princeton Insurance Company were represented by Jennifer Hock, Esq., McGann, Bartlett Brown, 111 Founders Plaza, Suite 1201, East Hartford, CT 06108.
OPINION
It is a maxim of workers' compensation law that a claimant has the burden of not only proving he or she has suffered an injury, but that the injury is linked to the claimant's employment. In the present case the claimant asserts that she suffers Multiple Chemical Sensitivity and that her illness is a result of the environmental conditions she experienced while working for the respondents Nutmeg Big Brothers/Big Sisters and Kidsafe of Connecticut. The trial commissioner was not persuaded by her evidence and dismissed her claim. She has appealed asserting the trial commissioner ruled against the weight of the evidence. As the trial commissioner is solely responsible for making this determination, we affirm his ruling and dismiss this appeal.
The following facts were found by the trial commissioner after a formal hearing on Ms. Goncalves's claim. She had been employed from September 1999 to January 2001 by the respondent Nutmeg Big Brothers/Big Sisters in a variety of social work positions, working primarily at their office in Constitution Plaza; but spending about 20% of her time visiting client's homes. She had pre-existing hay fever and utilized nasal sprays and was diagnosed with rhinitis or sinuses of the nasal tissues. The claimant testified that some of her co-workers were smokers, although they did not smoke in her presence, and other co-workers wore perfume which she could smell from her cubicle. The claimant was terminated by Nutmeg Big Brothers/Big Sisters on January 12, 2001 for poor work performance. Findings, ¶¶ 1-5.
The claimant did not work from January 2001 to June 20, 2003, when she commenced her employment with the respondent Kidsafe of Connecticut. During this period between jobs she experienced respiratory problems, breathing difficulties, sinus infections, fatigue, hand and foot pain, as well as stomach problems which she claims are related to exposures at work to smoke and perfume. The claimant's work for Kidsafe was spent approximately 50% in their office and 50% visiting client's homes. On September 18, 2003 the claimant left Kidsafe's employ, because she was unable to do her job as she was always sick. Findings, ¶¶ 6-10. The claimant states she began to experience allergies with sensitivity to perfume and smoking as early as 1995. She contracts sinus infections and is affected by heat in the summer and cold weather in the winter which caused her to be out of work and unable to be productive. Findings, ¶ 11.
The claimant has treated since April 2000 with Dr. Barry Elson a Massachusetts physician who is non-board certified and whose practice focused on chronic illness, allergies environmental medicine and clinical nutrition. After reviewing the claimant's medical history (which included 16 years of fatigue; nausea from exposure to scented candles; sinusitis 1 or 2 times per year and allergies to scents), Dr. Elson's medical opinion was that the claimant's exposure to smoke and perfume in her job at Nutmeg Big Brothers/Big Sisters was a substantial contributing factor in the claimant's multiple chemical sensitivities (MCS) or asthma resulting in disability. Dr. Elson also indicated there were other conditions such as anemia, hypoglycemia and depression which contributed to the claimant's symptoms. Findings, ¶¶ 12-15.
The respondents presented testimony from Dr. Michael Conway, a board-certified pulmonologist and internist who had conducted an examination of the claimant on their behalf on July 12, 2005. Dr. Conway testified the claimant did not suffer from occupational asthma. He testified that while the claimant's allergies, caused inflammation in her upper respiratory track, the allergies were not work related. Dr. Conway testified that he believed that MCS was really a description of a patient's symptoms in the absence of an identifiable disease and was not a "true" illness; and since the claimant had allergic perineal rhinitis, she did not have MCS. Dr. Conway's opinion was the claimant did not have any conditions which were causally related to her employment at Nutmeg Big Brothers/Big Sisters or Kidsafe of Connecticut. Findings, ¶¶ 16-20.
Based on the aforementioned subordinate facts on December 22, 2006 the trial commissioner concluded the claimant failed to prove her alleged condition of MCS arose out of or during the course of her employment with both Nutmeg Big Brothers/Big Sisters and Kidsafe of Connecticut. The claimant testified that prior to 1999 she had difficulty with allergies, rhinitis, sinusitis and other allergy type symptoms which impeded her work performance. The trial commissioner found Dr. Conway's testimony more credible than Dr. Elson's. As Dr. Conway testified the claimant was not disabled from gainful employment from a respiratory perspective the claimant's claim for temporary total benefits was dismissed.
The claimant filed a Motion to Correct the Finding and Dismissal. Among the corrections sought was to add references to the testimony of other physicians who had treated the claimant (Dr. Mary Norris; Dr. Michael Grey and Dr. Eileen Comia) or had opined to her diagnosis of MCS (Dr. Barry Weisman, Dr. Robert Bedard and Dr. Jay Selcow); and to replace the finding of dismissal with an award of temporary total disability benefits. The trial commissioner denied the Motion to Correct and this appeal ensued.
The gravaman of the claimant's argument on appeal is "the claimant put forth a tremendous amount of evidence establishing her compensable claim for Multiple Chemical Sensitivity." To the claimant's view, had the trial commissioner properly considered all of the evidence she presented he would have ruled in her favor. This argument essentially seeks to retry the factual findings of this case on appeal, which is beyond our scope of authority as an appellate panel. Fair v. People's Savings Bank, 207 Conn. 535, 539-542 (1988).
The role of the trial commissioner is to weigh the competing evidence and determine which evidence is the most credible and persuasive. We have rejected arguments on appeal that suggest the party who submits the most evidence should be deemed to have submitted the weightier evidence. See Arnott v. Taft Restaurant Ventures, LLC, 4932 CRB-7-05-3 (March 1, 2006) "[I]n this sense "weight" means the qualitative value of the evidence presented. The trial commissioner decided the claimant presented the superior qualitative evidence. `As the finder of fact, the trier has the sole authority to decide what evidence is reliable and what is not. . . .' Byrd v. Bechtel/Fusco, 4765 CRB-2-03-12 (December 17, 2004)." Id. See alsoHuertas v. Coca Cola Bottling Company, 5052 CRB-1-06-2 (January 22, 2007).
We can infer that by denying the claimant's motion to correct that the trial commissioner concluded that additional evidence offered on the claimant's behalf was not reliable. Because the commissioner is the sole arbiter of the weight of the evidence, we must defer to his judgment as to whether the testimony of the other physicians was probative to the issues before him. Keenan v. Union Camp Corp., 49 Conn. App. 280, 286 (1998).
The Keenan case also stands for the proposition that a trial commissioner need not itemize all the evidence he or she deems credible in their findings. Id., 285. By implication, one can presume the trial commissioner is also not required to itemize all the evidence he or she has decided not to rely on.
The claimant also attacks the trial commissioner's reliance on Dr. Conway's testimony. Dr. Conway testified as to his opinion about MCS and testified that "there are some people that don't believe that's a disease entity, and I'm in that camp." Respondent's Exhibit 7, p. 12. The claimant therefore asserts that this board has already determined that MCS is a legitimate ailment and that Dr. Conway's testimony must be discounted as a matter of law. We disagree for two reasons. We are not persuaded that the precedent advanced by the claimant stands for the proposition they advance. Secondly, Dr. Conway's testimony went well beyond expressing an opinion as to MCS. He specifically testified to the absence of any condition causally related to the claimant's employment with the respondent.
The cases cited by the claimant are easily distinguishable. InSavage v. Rogers Corporation, 4330 CRB-2-00-12 (January 3, 2002), a claim was dismissed where the claimant asserted she suffered from Multiple Chemical Sensitivity Syndrome. The claimant asserted a due process violation, as when the medical issues concerning this ailment were raised at the formal hearing, she was unable to expand the scope of the hearing. We remanded this matter to the trial commissioner "so 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". The record in the present case presents no due process issues. In Parisi v. Yale University, 4606 CRB-3-02-12 (March 4, 2004), we upheld the dismissal of a claim asserting a work-related injury from MCS. On appeal, the Appellate Court affirmed the decision of this board and the trial commissioner. Parisi v. Yale University, 89 Conn. App. 716 (2005), pointing out that "[m]ultiple chemical sensitivity is a chemical diagnosis the pathophysiology of which is ill-defined. . . ." The Appellate Court further concluded, "[t]he evidence did establish a sensitivity to many kinds of air pollutants, but it did not establish that the plaintiff's condition was causally related to his employment." Id., 724.
The claimant also cites Ben-Eli v. Lowe's Home Improvement Center, 5006 CRB-3-05-10 (November 16, 2006) though we are puzzled as how this advances her case, as Ben-Eli relied on Strong v. UTC/Pratt Whitney, 4563 CRB 1-02-8 (August 25, 2003), which held "[i]f 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." Id. Dr. Conway's opinions as to appropriateness of an MCS diagnosis for the claimant were adverse to her claim; but we cannot deem them unreasonable, particularly as the claimant's own trial brief at the formal hearing dated October 3, 2006, included as an attachment an article from American Family Physician acknowledging the ongoing dispute as to the nature of MCS.
The article in question, "Multiple Chemical Sensitivity Syndrome," authored by Michael Magil, M.D. and Anthony Suruda M.D. M.P.H., dated September 1, 1998 noted in part "[MCS] has been rejected as an established organic disease by the American Academy of Allergy and Immunology, the American Medical Association, the California Medical Association the American College of Physicians, and the International Society of Regulatory Toxicology." This board makes no determination herein as to the merits of an MCS diagnosis, but herein notes the claimant herself proffered evidence indicating reasonable medical authorities shared the opinions of Dr. Conway on this issue.
Even were this board to question Dr. Conway's opinion as to the overall nature of MCS, we would have to determine he offered competent medical testimony on the issue of whether the claimant's ailments were causally related to her employment at Nutmeg Big Brothers/Big Sisters and/or Kidsafe. He opined they were not. Respondent's Exhibit 7 pp. 14, 18. "We must defer to the factual findings of the trial commissioner in such `dueling expert' cases." Dellacamera v. Waterbury, 4966 CRB-5-05-6 (June 29, 2006).
It is the claimant's burden to establish that her ailments were caused by her employment. Lentini v. Connecticut College, 4933 CRB-2-05-4 (May 15, 2006), citing Dengler v. Special Attention Health Svcs., Inc., 62 Conn. App. 440 (2001). The trial commissioner made specific factual findings that the claimant's various respiratory ailments predated her employment with either respondent. Findings, ¶ B. We must extend the same deference to the trial commissioner herein we extended to the trial commissioner in Lentini, supra. http://wcc.state.ct.us/crb/2006/4966crb.htm — 2#2 "The trial commissioner simply determined the claimant failed to meet her burden of proof. As the trial commissioner is uniquely able to determine the credibility of both factual and expert witnesses, we are bound to uphold his findings." Id.
Respondents' Exhibit 4 (a statement from the claimant to the Social Security Administration) includes a statement from the claimant that she started having problems with allergies in the summer of 1994, and her sensitivity to perfume started giving her headaches and nausea in 1998. These statements were consistent with her hearing testimony. July 27, 2005 Transcript, pp. 55-67.
The trial commissioner determined that the claimant failed to prove her claim. As we find his decision is supported by both expert testimony and the claimant's statements, we must defer to his judgment.
The Finding and Dismissal is affirmed and the appeal is dismissed.
Commissioners Amado J. Vargas and Scott A. Barton concur in this opinion.