5340 CRB-3-08-4 (2009). Rakowski v. Marlin Firearms et al.
Court | Connecticut |
Connecticut Workers Compensation
2009.
5340 CRB-3-08-4 (2009).
Rakowski v. Marlin Firearms et al
CASE NO. 5346
CRB-6-08-5COMPENSATION REVIEW BOARD
WORKERS' COMPENSATION COMMISSION APRIL 22, 2009EDWARD RAKOWSKI CLAIMANT-APPELLANT v.
MARLIN FIREARMS EMPLOYER and GALLAGHER BASSETT SERVICES INSURER and DISTASIO
TOOL & DIE COMPANY EMPLOYER and HARTFORD INSURANCE COMPANY INSURER
RESPONDENTS-APPELLEES APPEARANCES: 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. OPINIONJOHN 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.(fn1) 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...
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