Summary
In Cortes v. Allegheny Ludlum Steel Corp., 1 Conn. Workers' Comp. Rev. Op. 173 (1982), the claimant developed both asbestosis and lung cancer.
Summary of this case from Capen v. General Dynamics Corp.Opinion
CASE NO. 61-CRD-3-81
AUGUST 18, 1982
The Claimant-Appellee was represented by Robert F. Carter, Esq.
The Respondent-Appellant, Allegheny Ludlum Steel Corporation was represented by Stephen P. Sachner, Esq.
The Respondent-Appellant, Liberty Mutual Insurance Company was represented by Kevin J. Maher, Esq.
This Petition for Review from the March 18, 1981 Decision of the Commissioner for the Third District was argued March 19, 1982 before a Compensation Review Division Panel consisting of Commissioners John Arcudi, Robin Waller and Darius Spain.
FINDING AND AWARD
The Finding and Award of the Commissioner, as corrected, is affirmed and adopted as the Finding and Award of this Division but rather than simply incorporate it by reference, we here restate it:
1. Claimant has been employed by respondent corporation for about 26 years, from 1953 through 1979.
2. In July, 1979, claimant was diagnosed as suffering from bronchogenic lung cancer and pleural asbestosis, which condition he alleges are both causally connected to his employment environment.
3. Claimant alleges that he was exposed to the inhalation of asbestos fibers while at work which proximately caused both conditions resulting in an occupational disease.
4. Respondents deny that claimant's illnesses are of an occupational disease nature within the meaning of the Workers' Compensation Act. Respondents further claim that Notice of Claim was not given within one year from the first manifestation of the symptom of the occupational disease in accordance with Section 31-294.
5. Lengthy testimony was presented describing conditions and placement of machinery in the work place. Upon request of attorneys, inspection of the premises and machinery involved in the factory was made by this Hearing Officer in the presence of all attorneys. In addition, three full days of testimony were presented. Both claimant and respondents competently presented extensive factual, medical and legal argument.
6. In its response to claimant's interrogatories, submitted as an exhibit, respondent company concedes that rollers across which the steel was drawn when leaving the furnaces are covered with asbestos and need to be replaced usually every two or three months.
7. Claimant worked in the annealing department of respondent company from 1958 through July, 1979, when he stopped working. It is admitted that claimant worked as a helper in an area between the number 25 furnace and number 12 furnace.
8. Dr. Henry Sostman, radiologist at Yale-New Haven Hospital testified that his medical conclusion was that there was "virtually no doubt possible that claimant is suffering from exposure to asbestos." His presentation of claimant's chest radiographs, a Computerized Tomogram, known commonly as a CT Scan, and a Galium Scan were of significance in forming the basis for this opinion. A 1977 chest radiograph of claimant done by an unidentified person had been made available to Dr. Sostman and he testified that had he seen the x-ray in 1977, he would have been able to make the same diagnosis he makes currently.
9. Dr. Charles Roh, pulmonary specialist, Hartford, testified that the medical history he reviewed revealed that in 1979 claimant went to a physician for a pain in his elbow and on that occasion "a routine chest x-ray" was taken which showed the mass after which that physician referred claimant to Yale-New Haven Hospital. Dr. Roh testified that there were no physical symptoms in that period of 1979.
10. It is thus the finding here that adequate notice was given under Section 31-294. No testimony indicated that any physician or other person had ever indicated to claimant, prior to 1979, that he had any of the diseases alleged herein. It is clear that expert medical diagnosis might have been available to claimant in 1977, but that it was not. The reason that it was not is not properly before this hearing but certainly claimant cannot be penalized for what was not diagnosed.
11. Dr. Sostman disclosed that his studies showed that claimant's chest x-rays had wide areas of density which are pleural placques on the pleural lining of the lungs and, in his medical opinion, this condition is causally related to asbestos exposure. The Galium Scan's findings show no metastases from the lung tumor to the pleural placques, and because of this, Dr. Sostman said that claimant suffers from two separate conditions. Claimant has, he states, both bronchogenic lung cancer and pleural asbestosis.
12. Dr. Solon Robert Cole, pathologist at Hartford Hospital, reviewed a biopsy slide of claimant and was of the opinion that claimant suffers from large cell carcinoma, not related to asbestos. However, he never examined the claimant and did admit that the risk of lung cancer is increased by exposure to asbestos and that it could be caused by asbestos. Further, Dr. Cole had not known of the Galium or CT tests which had been done on claimant. He admitted that the results of those tests might, make his opinion less likely.
13. Dr. James Robbins of the Yale University School of Medicine testified that he took claimant's initial medical history at Yale-New Haven Hospital which history indicated that claimant stated that he brushed and cleaned asbestos rollers which sent fibers into the air.
14. Testimony indicated that the furnaces have a one-half inch asbestos lining and that asbestos when heated to above 1500 degrees F. changes to forsterite. The steel which is processed exits at a temperature range of 1900-2000 degrees F. Dr. Robbins testified that forsterite is a dehydration rechrystalization of chrystalite asbestos and that chyrsotile is asbestos. There was no substantial evidence to confirm that the temperature at which the steel exited remained constant at 1900-2000 degrees F. when it met the rollers and whether that temperature was constant for the rollers at all times they were worked on.
15. Dr. Mark Cullen of the Yale University School of Medicine testified that a certain OSHA report in August, 1979, was a part of claimant's medical record and this information indicated that in the three separate air samplings around the number 12 furnace where claimant worked asbestos was found in large percentage from an area around the roll itself. He stated that asbestos is a carcinogen and that after exposure to asbestos, there is usually a latent period before lung impairment evidences itself. Dr. Cullen further testified that cigarette smoking enhances the risk of developing lung cancer, but if no asbestos had been introduced into the work place, the percentage of lung cancers just from smoking would be less. Dr. Cullen testified that claimant's lung tumor was also related to his condition of pleural asbestosis, in that both conditions were caused by claimant's exposure to asbestos; and this testimony is adopted as a finding of fact.
16. Dr. Cullen further testified that the largest number of persons exposed to asbestos will show evidence of the disease between the twentieth and thirtieth years after exposure
17. Dr. James Robbins supported the testimony of Dr. Sostman and Dr. Mark Cullen that claimant has both pleural asbestosis and bronchogenic carcinoma and that they have a causal relationship to asbestos in the work place. He also stated that pleural asbestosis gives highly increased risk of bronchogenic cancer even without a cigarette smoking factor.
18. Testimony that claimant had served in the Spanish Merchant Marine where he did some scraping of pipes before 1950, and his employment in Spain in a garage near where brake linings were repaired has been weighed but is not deemed conclusive enough to affect the decision herein. Claimant's cigarette smoking has also been weighed but is not the controlling factor because of the occupational hazard in the work place of asbestos that is found herein.
19. Respondent company's interrogatories indicate that two or three cases of lung cancer of persons employed in the annealing department have been reported since 1955 although a witness for the respondent company testified that he had not received any requests for compensation because of lung cancer other than claimant's.
20. Other medical testimony submitted by respondents has been considered. There is some conflicting medical-opinion and all the evidence of all the physicians has been reviewed careful
IT IS FOUND that the weight of the medical and other evidence substantiates the claim that claimant's lung cancer has been caused by his occupational exposure to asbestos while in the employ of the respondent Allegheny Ludlum Steel Corporation and is therefore compensable.
WHEREUPON IT IS ORDERED AND ADJUDGED THAT:
(a) Adequate Notice was given by claimant under Section 31-294.
(b) Claimant be paid compensation for temporary total disability from July, 1979, plus attendant cost-of-living increases by respondents until such disability has ceased or diminished.
(c) Respondents shall pay all claimant's necessary and proper medical and hospital expenses.
(d) Doctors Sostman, Cullen and Robbins are each awarded $200.00 for their respective testimony.
(e) Each respondent is responsible for its proper payments in the aforesaid order according to its proportional share in responsibility in its coverage. The parties may request further hearing to determine any questions that may arise.
OPINION
This Appeal concerns occupational disease as defined in Section 31-275 (8) and (11) of the Connecticut Workers' Compensation Law. Claimant-Appellee was an employee of the Employer-Appellant from 1953 through 1979. From 1958 to 1979 he worked as a helper in the annealing department in an area between the number 12 and number 25 furnaces. The rollers across which steel was drawn when leaving the furnaces was covered with asbestos, and these rollers needed to be replaced every two or three months. The furnaces had a one-half inch asbestos lining.
Section 31-275, C.G.S. (8) "Personal injury," or "injury," as the same is used in this chapter, shall be construed to include, in addition to accidental injury which may be definitely located as to the time when and the place where the accident occurred, an injury to an employee which is causally connected with his employment and is the direct result of repetitive trauma or repetitive acts incident to such employment, and occupational disease as herein defined. (11) "Occupational disease" includes any disease peculiar to the occupation in which the employee was engaged and due to causes in excess of the ordinary hazards of employment as such and includes any disease due to or attributable to exposure to or contact with any radioactive material by an employee his employment in the course of his employment. The subdivision numbers were added by 1980 legislation, but the actual wording of these subparagraphs was the same as it had been in 1979.
Claimant in 1979 went to a physician for a pain in the elbow. A routine chest x-ray then revealed a lung condition which caused a referral to Yale-New Haven Hospital. Dr. Henry Sostman, a radiologist at that hospital described the diagnostic test, x-rays, Computerized Tomogram and Galium scan performed on this patient in 1979 and 1980. They revealed the presence of pleural placques due to asbestos exposure, asbestosis, and bronchogenic carcinoma. The same doctor analyzed 1977 x-rays taken by a Wallingford radiologist. These 1977 x-rays showed the pleural placques indicating the asbestosis condition was already present then.
Dr. Mark Cullen, an assistant professor at the Yale School of Medicine, a director of the Yale Occupational Medicine Program and co-director of the Yale Comprehensive Cancer Center next testified for the claimant. He agreed that the 1977 x-ray showed pleural asbestosis due to asbestos exposure was already present. Dr. Cullen took an extensive history from the claimant. The history revealed that the patient smoked. As part of the investigation, Dr. Cullen noted the findings of industrial hygienists from the U.S. Occupational Safety and Health Administration. These findings based on three separate samplings from the area of the number 12 furnace confirmed the presence of chrysotile asbestos in significant percentages. The pleural asbestosis and the left upper lobe bronchogenic carcinoma of a poorly differentiated squamous cell type diagnosed at Yale-New Haven Hospital were separate but related diseases according to Dr. Cullen. They were related in that they were both caused by asbestos exposure. The pleural asbestosis present in 1977, even though not then disabling or diagnosed, was a marker indicating extensive asbestos exposure which made the claimant a likely candidate for lung cancer. Since the claimant was also a cigarette smoker, there was a synergistic effect between the asbestos exposure and the cigarette smoking which greatly increased the risk for claimant's developing lung cancer. In fact Dr. Cullen testified the lung cancer diagnosed in 1979 was due to the asbestos exposure arising out of and during the course of the employment with the respondent.
Dr. James Robbins of the Yale School of Medicine also testified for claimant. He agreed with Doctors Sostman and Cullen that claimant was suffering from pleural asbestosis and left upper lobe bronchogenic carcinoma caused by asbestos exposure in the workplace. None of these three doctors attributed any causal effects concerning the cancer to claimant's work before 1953 in an auto repair garage in Spain and in the Spanish Merchant Marine.
Dr. Solon Robert Cole, a Hartford pathologist testifying for respondents stated that claimant's lung cancer was not caused by asbestos exposure, but he was unaware of the CAT scan and the Galium scan tests performed. He did agree that exposure to asbestos increases risk of developing lung cancer. Another witness for the respondent, a Hartford pulmonary specialist, Dr. Charles Rob generally agreed with Dr. Cole.
The Commissioner credited the evidence and the conclusions of the Yale-New Haven physicians and awarded benefits. The respondents appeal from that award raises three issues: (1) No written notice of claim was received within one year as required by Section 31-294, C.G.S.; (2) Lung cancer is not an occupational disease with the meaning of Section 31-275, C.G.S.; and (3) there was insufficient evidence to prove workplace causality from asbestos exposure.
Respondents-Appellants' first issue claims no jurisdiction in the Commission to hear the matter. It relies on Walsh vs. Waldron Sons, 112 Conn. 579 (1931), Rehtarchik vs. Hoyt-Messinger Corporation, 118 Conn. 315 (1934) and that entire line of cases decided before the 1967 amendments. Those cases held that workers' compensation was a statutory right not a common law right and that therefore the jurisdiction to hear and adjudicate such matters needed to be based on a strict adherence to statutory provisions. Therefore, failure to file written notice within a year of the compensable event was fatal to a claim unless it came within one of the exceptions, Gesmundo vs. Bush, 133 Conn. 607 (1947). In the instant matter this argument fails for two reasons: (A) there was written notice of claim within one year from the first manifestation of a symptom of the occupational disease and (B) the respondents failed to raise that defense within twenty days of the notice of claim filed under Section 31-297(b), C.G.S.
The Respondents allege that the first manifestation of a symptom of the disease here occurred in 1977 when the Wallingford radiologist's x-ray showed evidence of pleural asbestosis and the written notice of claim was filed September 5, 1979 more than one year later. A valid first answer to that claim is that the actual disabling disease was the upper left lobe lung cancer a separate disease from the pleural asbestosis albeit caused by the same asbestos exposure, and that the first manifestation of symptom of the lung cancer was not until 1979, well within a year before September 5, 1979. The language of Claimant's September 5, 1979 notice indicated the first symptom was manifest July 23, 1979 and the disease was, "Lung cancer and other pulmonary restrictive and obstructive disease caused by exposure to toxic materials."
But even if we consider the pleural asbestosis and the lung cancer as part of one disease process caused by the asbestos exposure, it is not true that the first manifestation of symptom was in 1977. Bremner vs. Eidlitz Sons, Inc., 118 Conn. 666 (1934) remains the leading case on what is the first manifestation of a symptom of an occupational disease. Its facts are strikingly similar to the present case. Bremner was a stonecutter who contracted work related silicosis. The first indication of the disease was January 3, 1931, when he had a cold and was coughing. The doctor diagnosed it as a pneumoconiosis probably associated with a tuberculous process. He experienced similar problems March 19, 1932 and April 29, 1932 when his illness forced him to stop work completely. Bremner filed a claim for compensation March 15, 1933. The Commissioner ruled that the first manifestation of a silicosis symptom in Bremner was January, 1931. The Supreme Court reversed and held that manifestation of symptom means known manifestation of symptom. Knowledge of a physician not communicated to claimant is not a known manifestation of symptom. The statute is to start running only when a claimant or his representative knew or should have known that the worker was experiencing a symptom related to an occupational disease. Cortes in 1977 was in exactly the same position as Bremner in 1931. No doctor diagnose asbestosis in 1977 and consequently nobody told the claimant. He continued to work until 1979, and it was only then the disease first became diagnosed. Consequently, the 31-294 jurisdictional objection, even measured against the pre-1967 law, cannot prevail.
Moreover, other considerations are here present. Claimant filed his notice of claim, Form 30 C, September 5 and Respondents Appellants filed a disclaimer, Form 43, September 14, 1979. That disclaimer stated, "No accident or occupational disease within meaning of 31-275. No medical causation; no causal relationship between injury and employment. Under investigation." The jurisdictional defense did not appear on the September, 1979 disclaimer. In fact it was not raised until the actual trial, August 5, 1980 during the examination of Dr. Sostman, (T-55) by the attorney for the Respondent Insurer. Menzies vs. Fisher, 165 Conn. 338 (1973) ruled that a disclaimer cast in the form of a general denial, "(W)e deny a compensable accident or injury did not satisfy the 31-297(b) requirement for specific defenses. Therefore, that disclaimer was insufficient to bar the conclusive presumption of compensability. That proposition of law, applied here, would estop the Respondents from utilizing any defenses other than those raised in their September 14, 1979 disclaimer. Appellants counter that argument with the contention that it was not necessary for them to raise the 31-294 jurisdictional defect in their written disclaimer as the forum's lack of jurisdiction may be raised at any stage of the proceeding The fallacy in that contention is that the General Assembly created the Workers' Compensation jurisdiction in 1913. In 1967 that same General Assembly expanded that jurisdiction, Public Acts 1967, No. 842, Sec. 7. Although no formal pleadings as such are required in Workers' Compensation proceedings, 31-297(b) barred an employer from raising any defenses which had not been specially pleaded within twenty days of written notice of claim. Thus Justice Shapiro speaking for the majority stated.
"The object which the legislature sought to accomplish is plain. Section 31-297(b) was amended to ensure (1) that employers would bear the burden of investigating a claim promptly and (2) that employees would be timely apprised of the specific reasons for the denial of their claim. These effects would, in turn, diminish delays in the proceedings, discourage arbitrary refusal of bona fide claims and narrow the legal issues which were to be contested. To narrow the scope of the controversy would lighten the burden on the claimant in terms of legal expenses, a result which the legislature plainly desired to accomplish by its 1967 amendments. See 12 H.R. Proc., Pt. 9, 1967 Sess., pp. 4037-38; cf. General Statutes 31-298, as amended by Public Acts 1967, No. 242. A general denial that a claimant has a compensable injury reveals no specific defense or reason why the claim is contested. Such a conclusionary statement would leave open numerous possible defenses, such as a defense of lack of employer-employee status, a defense that the death was due to suicide or to homicide of a claim that death was caused by an intervening injury . . . ."
Menzies vs. Fisher, Supra, 343-344.
If no such defenses were specifically pleaded in the disclaimer, then there is a conclusive presumption of liability as occurred in Menzies. The respondents' obligation to plead the 31-294 "no written notice of claim within a year defense" is not that different from a rule in the courts that the statute of limitations defense must be specially pleaded. As the language quoted above declares, the absence of an employer-employee relationship must also be specially pleaded. If anything, the lack of such a relationship is more a jurisdictional defect than the failure to file a written notice of claim within a year.
In defending their second issue that the Claimant's lung cancer is not an occupational disease within the meaning of 31-275, Respondents-Appellants mistakenly assume that the start of occupational disease coverage in Connecticut was 1927. Actually, the date was 1919. The legislature acted in response to the restrictive definition of personal injury adopted by the Supreme Court in Miller vs. American Steel and Wire Company, 90 Conn. 349 (1916) and Linnane vs. Aetna Brewing Company, 91 Conn. 158 (1916). The 1919 General Assembly essentially adopted the reasoning of Justice Wheeler's dissent in the Miller case. Between 1919 and 1927, the court under Chief Justice Wheeler's influence interpreted the occupational disease definition broadly. The 1927 legislative amendments restricted it. In the fifty-five years since, although the basic definition remained the same, Grady vs. St. Mary's Hospital, 179 Conn. 662, 668 n. 8, (1980), many restrictions have been eliminated and softened by statutory changes and court decisions. Early on, Chief Justice Maltbie wrote in Glodenis vs. American Brass Company, 118 Conn. 29 (1934):
". . . . The Workmen's Compensation Law as it then stood, and as it now stands, permitted a recovery of compensation for incapacity resulting from an occupational disease and defined such a disease as one "peculiar to the occupation in which the employee was engaged and due to causes in excess of the ordinary hazards of employment as such." General Statutes, 5223. This definition does not require that a disease, to be within the definition, should be one which arises solely out of the particular kind of employment in which the employee is engaged, nor that it should be due to causes in excess of the ordinary hazards of that particular kind of employment. Otherwise the definition would exclude most diseases; lead poisoning, for example, is not an ordinary incident of employment in general but arises particularly out of those processes in which lead is used and occurs in a number of kinds of employment, but for that reason it is not to be held to be outside the definition. The phrase "peculiar to the occupation" is not here used in the sense that the disease must be one which originates exclusively from the particular kind of employment in which the employee is engaged, but rather in the sense that the conditions of that employment must result in a hazard which distinguishes it in character from the general run of occupations; see Oxford Dictionary; Funk Wagnalls Dictionary; and the phrase "employment as such" means employment in general . . ."
Glodenis vs. American Brass Company, supra, 40.
Chief Justice Maltbie again eight years later:
"We cannot import into the conception of occupational disease under our law the element that the disease must be a usual or generally recognized incident of the employment. Compensation under our law is not to be denied because the injury would not have occurred except for the peculiar susceptibility of the individual worker. (Citation omitted) Occupational diseases result ordinarily in incapacity in a relatively small proportion of the number of employees subjected to the risk; indeed if this were not so, economic considerations would require an abandonment of the employment or a change in its conditions to obviate the risk. There is nothing in the terms of our statutory definition that to fall within it a disease must be one which is a usual or generally recognized incident of the employment, and the considerations we have suggested preclude our finding that such a legislative intent is to be implied. A careful consideration of the question now before us negatives any inference to the contrary which might be drawn from our decisions in the Glodenis and Madeo cases. When we referred in them to disease as being a "natural" incident of the employment, we used that word in the sense that we have used it in defining proximate causation; (Citation omitted) it imports not a forward look to determine what risks should have been foreseen, but a tracing back from the results to the circumstances out of which the disease sprang. (Citation omitted) If, so traced, a disease is the natural result of conditions which are inherent in the employment and which attach to that employment a risk of incurring it in excess of that attending employment in general, an award of compensation is not precluded because the risk is one which has not become generally recognized or because only employees unusually susceptible will suffer from the disease."
LeLenko vs. Wilson H. Lee Co., 128 Conn. 499, 504-505 (1942)
The Glodenis case involved lead poisoning from lead used in the brass manufacturing process. LeLenko involved contact dermatitis contracted by a linotype operator from the antimony contained in the melted lead alloy from which the type was made.
Given this statutory history and these precedents, it was within the Commissioner's province to decide that the presence of the asbestos in Cortes' workplace constituted a "cause in excess of the ordinary hazards of employment," and that the resultant cancer was a disease peculiar to his occupation. The disease was thus a natural incident of the employment. The present state of the medical art concerning cancer research contributes to that conclusion. So does the national policy embodied by the Congressional enactment of the Occupational Safety and Health Act a decade ago. Many previously unrecognize workplace hazards have thus recently come into our ken.
Finally, we come to Appellants' third claim, i.e. that there was insufficient evidence to prove workplace causality from asbestos exposure. In advancing this reason of appeal, Respondents rely on the same language we have cited above concerning proximate causation, LeLenko vs. Wilson H. Lee Co., supra, 505. Interestingly, Chief Justice Maltbie's language in that case is based on Chief Justice Wheeler's in Santini vs. Levin, 110 Conn. 248, 253 (1929). Santini was decided under the pre-1927 law, but Chief Justice Maltbie felt that its broad holding concerning the proximate causation of occupational disease had not been vitiated by the 1927 amendments. Hence, the LeLenko ratio decidendi was the same as in Santini despite the legislative changes which had intervened. LeLenko then supports the Commissioner's finding here on proximate causation.
Similarly in another part of their brief, Respondents cite Grady vs. St. Mary's Hospital, supra, for the proposition that the Claimant did not have an occupational disease. Actually, Grady is better cited for the proposition that the appellate tribunal, the Superior Court in that instance, could not substitute its findings for the Commissioner's. The Commissioner in Grady found Claimant had not sustained his burden of proof and that there was no compensable personal injury. The Superior Court overruled and found compensability. The Supreme Court reversed and reinstated the Commissioner's finding of no compensability. Thus, Grady would also support the Commissioner's conclusion here in that her findings should not be disturbed by us unless they were found without evidence.
And there was sufficient evidence on which to base her findings. There was evidence that there was asbestos in the workplace. There was evidence from the three Yale doctors that Claimant's pleural asbestosis and lung cancer condition were both caused by exposure to that asbestos. The Commissioner was free to adopt the medical causation theories of the Claimant's experts rather than those of the Hartford physicians offered by Respondents. We can understand if not condone the advocate's zeal causing the respondents to characterize Claimant's experts as "in their medical infancy" though one of those medical infants is an assistant professor at a leading medical school in the United States. However, such argumentum ad hominem does not destroy the value placed on that testimony by the Commissioner.
Essentially, this final reason of appeal comes down to the proposition that the Respondents have the better experts, and as Grady, supra, holds, the Commissioner is the trier of the facts and the ultimate judge of the credibility and the reliability of witnesses and the weight to be given to their testimony.
That being so, we affirm the decision of the Commissioner.