5340 CRB-3-08-4 (2009). Rakowski v. Marlin Firearms et al.

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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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