Mulroy v. Becton Dickinson Co.

• Decision Date: 26 May 1998
• Docket Number: No. 16407,16407
• Citation: 712 A.2d 436,48 Conn.App. 774
• Court: Connecticut Court of Appeals
• Parties: Agnes MULROY v. BECTON DICKINSON COMPANY et al.

Page 436

712 A.2d 436

48 Conn.App. 774

Agnes MULROY v.BECTON DICKINSON COMPANY et al.

No. 16407.

Appellate Court of Connecticut.

Argued Dec. 1, 1997.

Decided May 26, 1998.

Dean M. Cordiano, with whom were Peter R. Knight and, on the brief, Matthew J. Becker, Hartford, for appellants(defendants).

Richard L. Gross, Orange, for appellee(plaintiff).

Before FOTI, LANDAU and FRANCIS X. HENNESSY, JJ.

LANDAU, Judge.

The defendants, Becton Dickinson Company and Travelers Insurance Company, appeal from the decision of the workers' compensation review board affirming the finding and award of compensation by the workers' compensation commissioner to the plaintiff, Agnes Mulroy.

On appeal, the defendants claim that the commissioner improperly (1) awarded compensation to Mulroy because the record lacked sufficient evidence to support the finding that her injuries were caused by exposure to chemicals in the workplace, (2) relied on the opinion of Michael Grey, a physician, because his testimony did not meet the proper standard for scientific testimony as enunciated by our Supreme Court in State v. Porter, 241 Conn. 57, 698 A.2d 739(1997), (3) refused to allow cross-examination as to the resignation of Wesley Jordan from Becton Dickinson and (4) denied their motion to correct several factual findings and the award.We affirm the decision of the board.

The commissioner found the following facts.Mulroy was employed at Becton Dickinson's plant in Canaan from October, 1979, until December, 1990, when she was diagnosed with distal symmetric sensimotor polyneuropathy.Becton Dickinson manufactures plastic syringes and labware.Mulroy worked in several departments throughout her eleven years at the plant, including the molding department and the marking, assembly and packaging (MAP) department.

Prior to working in the molding department, Mulroy was in excellent health and led an active athletic life.Soon after her transfer to that department, she began to exhibit symptoms of weight and hair loss, fatigue, pain in her hands and arms, dizziness, loss of coordination and nasal infection.While employed in the molding department, Mulroy was exposed to a volatile liquid chemical solvent, known as 1-1-1 trichloroethane (TCA), a hydrocarbon solvent known to be neurotoxic and to cause peripheral neuropathy.

In 1986, when Mulroy transferred to the MAP department, she used a multichemical liquid solvent known as 304 solvent, which contains chemicals also known to cause peripheral neuropathy.The MAP department was located adjacent to the sterilization department.Mulroy was also exposed to ethylene oxide (ETO), a volatile neurotoxic gas, which was used in the sterilization process and emitted into the air.

The defendants do not dispute the fact that Mulroy is stricken with distal symmetric sensimotor polyneuropathy.The defendants, however, do dispute the commissioner's conclusion that the injury resulted from exposure to neurotoxic chemicals in the workplace.The defendants claim that Mulroy never used TCA, was never exposed to ETO and her injury was solely the result of Charcot-Marie Tooth II Disease (CMT II).The defendants stress that Grey was the only physician to diagnose Mulroy's condition as work-related.The defendants appeal from the board's decision sustaining the commissioner's findings.

We first note our standard of review.The commissioner has the power and the duty to determine the facts.Fair v. People's Savings Bank, 207 Conn. 535, 539, 542 A.2d 1118(1988)."The review [board's] hearing of an appeal from the commissioner is not a de novo hearing of the facts....[I]t is [obligated] to hear the appeal on the record and not 'retry the facts.' "Id., at 538-39, 542 A.2d 1118.The board must determine whether there was "any evidence" in the record to support the commissioner's findings.Adzima v. UAC/Norden Division, 177 Conn. 107, 118, 411 A.2d 924(1979).The role of this court"is to determine whether the review [board's] decision results 'from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.' "Aurora v Miami Plumbing & Heating, Inc., 6 Conn.App. 45, 47, 502 A.2d 952(1986).

I

The defendants first claim that the commissioner improperly awarded compensation to Mulroy because the record lacked sufficient evidence to support the finding that her injuries were caused by exposure to chemicals in the workplace.We disagree.

Grey is a specialist in occupational and environmental medicine at the University of Connecticut Medical Center in Farmington.He is certified by the American Board of Occupational Medicine, and he has been published in the field.Grey began treating Mulroy in 1991 and testified that her injuries were the direct result of her exposure to the chemicals in the workplace.

James Donaldson, a physician specializing in neurological problems in pregnant women, testified as an independent medical examiner.Donaldson opined that the plaintiff's injuries were solely the result of having CMT II.Although Grey thought it unlikely that the plaintiff had CMT II, he did not dispute the possibility that she might have that condition.Grey concluded, however, that if the plaintiff had CMT II, the conditions in the workplace exacerbated the dormant and asymptomatic state of the disease.

Where it is difficult to determine whether circumstances in the workplace caused an injury, it is necessary to rely on expert medical testimony.Murchison v. Skinner Precision Industries, 162 Conn. 142, 152, 291 A.2d 743(1972).The defendants' argument that the commissioner should have accepted the testimony of Donaldson rather than that of Grey is a factual determination properly within the province of the commissioner.Adzima v. UAC/Norden Division, supra, 177 Conn. at 118, 411 A.2d 924.This determination cannot be overruled by the board unless it could not find "any evidence" to support the conclusion.Id.The findings of the commissioner were clearly supported by the testimony of Grey.Therefore, the board properly upheld the factual determinations of the commissioner.

II

The defendants next argue that our Supreme Court's decision in State v. Porter, supra, 241 Conn. 57, 698 A.2d 739, compels reversal of the board's decision.¹The defendants argue that Porter requires the use of the Daubert standard to examine the methodology underlying expert scientific testimony to determine its validity in workers' compensation cases.²We disagree.

In Porter, our Supreme Court adopted the standard announced in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469(1993), which sets forth specific requirements for the admissibility of scientific testimony.The Daubert standard is a rule of admissibility, now applicable to scientific testimony sought to be introduced in our state courts.The Daubert standard replaced the Frye test, which previously provided the standard for the admissibility of scientific testimony.SeeFrye v. United States, 293 F. 1013(D.C.Cir.1923).

In the workers' compensation arena, formal pleadings are not required; the commissioner is to proceed "in accordance with the rules of equity" and is not "bound by the ordinary common law or statutory rules of evidence or procedure."General Statutes § 31-298.This court has remained "mindful of the remedial purposes of the Workers' Compensation Act and that it should be broadly construed to accomplish its humanitarian purpose....Hansen v. Gordon, [221 Conn. 29, 32, 602 A.2d 560(1992) ], quotingAdzima v. UAC/Norden Division, supra, 177 Conn. at 117, 411 A.2d 924;see alsoAsh v. New Milford, 207 Conn. 665, 672, 541 A.2d 1233(1988)."(Internal quotation marks omitted.)Epps v. Beiersdorf, Inc., 41 Conn.App. 430, 433, 675 A.2d 1377(1996)." 'The purpose of the work[ers'] compensation law has always been to provide compensation for an injury arising out of and in the course of the employment regardless of fault, and the statutes are to be broadly construed to effectuate that purpose....The underlying objective is to provide for the work[er] and those dependent on h[er].'... Klapproth v. Turner, 156 Conn. 276, 279, 240 A.2d 886(1968)."Tufaro v. Pepperidge Farm, Inc., 24 Conn.App. 234, 238, 587 A.2d 1044(1991)."The purpose of the Work[ers'] Compensation Act is to provide a prompt, efficient, simple and inexpensive procedure for obtaining benefits related to employment.82 Am.Jur., Workmen's Compensation§ 441."Middletown v. Local 1073, 1 Conn.App. 58, 65, 467 A.2d 1258(1983).Our Supreme Court has also acknowledged "the principle that one purpose of work[ers'] compensation is to avoid litigation, delay and expense.SeePowers v. Hotel Bond Co., 89 Conn. 143, 146, 147, 93 A. 245[1915]."Gagnon v. United Aircraft Corp., 159 Conn. 302, 306, 268 A.2d 660(1970).

As a result, it would be contrary to the spirit of § 31-298 to establish formal requirements for the admissibility of scientific testimony in workers' compensation cases, especially in light of the fact that the rules of evidence do not apply.SeeArmstrong v. Wichita, 21 Kan.App.2d 750, 907 P.2d 923(1995)(neither Frye nor Daubert standards applicable to workers' compensation cases because technical rules of evidence specifically not applicable).We also note that our Supreme Court has stated that our appellate courts give " 'great deference to the construction given to [workers' compensation law] by the commissioner and the review [board] because they are both charged with its enforcement.'Crochiere v. Board of Education, 227 Conn. 333,...