CASE NO. 537 CRD-5-86Workers’ Compensation Commission
AUGUST 2, 1988
The claimant was represented by Clifford W. Cuniff, Esq. and Robert Izzo, Esq., Elliott, Forgione, Stanek Izzo.
The respondents were represented by Thomas G. Parisot, Esq., Secor, Cassidy McPartland, P.C. and Louise Brown, Esq., City of Waterbury, Corporation Counsel’s Office.
This Petition for Review from the December 4, 1986 Finding and Dismissal of the Commissioner at Large acting for the Fifth District was heard March 25, 1988 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Frank Verrilli and A. Thomas White, Jr.
OPINION
JOHN ARCUDI, Chairman.
Claimant’s decedent, Charles Bergin, was employed by the Waterbury Board of Education first as a teacher and then as a principal from 1954 until retirement in 1983. His death December 9, 1983 was due to malignant mesothelioma. Essentially conceding that the fatal malignancy was due to asbestos exposure, the respondent city denied that the exposure arose out of the employment. The Commissioner below found for the respondent and dismissed the claim.
Two federal agencies crested by the U.S. Congress in response to public concern over environmental and workplace hazards, the Environmental Protection Agency (EPA) and the Occupational Health and Safety Administration (OSHA) figure in the instant matter. The EPA issued a rule concerning carcinogenic dangers of friable asbestos in public and private schools, 40 C.F.R. Part 763, and Connecticut OSHA performed tests for the presence of asbestos in Waterbury school buildings.
The decedent worked in the Bucks Hill School from 1954 to 1968, Woodrow Wilson School, 1968-1969, Kingsbury School, 1969-1972, Sprague School, 1972-1975, Croft Alternative School, 1975-1981, and West Side Middle School in the last period of employment. Connecticut OSHA inspections in late 1983 and early 1984 demonstrated an asbestos content in the thermal insulation existing at Bucks Hill, Woodrow Wilson, Kingsbury and Sprague Schools. They also showed asbestos fibers present in the air samples procured from those four schools but in amounts not exceeding the OSHA standard in three schools. The January, 1984 Buck Hill tests indicated greater asbestos presence than the permissible standard. Other inspections done at the city’s request in July, 1984 by a private firm, Environmental Technology, Inc. of West Hartford, also confirmed the existence of asbestos-bearing thermal insulation in these four schools. Although the record does not indicate the date of construction of these schools and the date of installation of their heating systems, all parties seem to have agreed that those heating systems and their thermal insulation existed in the schools when Bergin worked there.
During his tenure as principal of Croft Alternative School in 1979 faculty members complained to him about the presence of asbestos from deteriorating thermal insulation. Bergin therefore caused OSHA to inspect the structure. Their January, 1980 tests revealed crumbly asbestos. The Croft Alternative School was located in the basement at 20 South Elm Street, Waterbury. Throughout the basement areas there were many heating pipes encased with thermal insulation. Also the classrooms were in close proximity to the boilers. There was uncontradicted evidence that at least since 1975 there has been crumbly insulation and white dusty, chalky powder in the air at that site.
Claimant offered testimony from two medical specialist Dr. Thomas P. Anderson, Waterbury Hospital pathologist, and Dr. Richard A. Lutes, an internist, Chairman of the Hema Oncology section of that institution. Both these physicians related decedent’s death to mesothelioma caused by asbestos exposure in Bergin’s school employment. Alan J. Siniscalchi an environmental epidemiologist and toxicologist, Acting Chief, Toxic Hazards Section, Connecticut Department of Health Services, and Franklin W. Eichacker, industrial hygenist with the State of Connecticut, also testified for the claimant. Their testimony established the asbestos presence in the Waterbury schools.
Two main grounds for the city’s opposing the claim were (1) decedent’s mesothelioma was not an occupational disease in that it was not a “disease peculiar to the occupation . . . due to causes in excess of the ordinary hazards of employment” and (2) the disease was not caused by decedent’s exposure to asbestos in the Waterbury schools. The first ground is a legal argument deriving from the statutory definition of occupational disease and the second an evidentiary one.
Although the underlying reasons are not expressly articulated, the Commissioner’s denial of benefit seems to have relied on both grounds. Thus, finding #13 declares that the presence of asbestos is “pervasive . . . in our society” and relates that in the 1960’s approximately five million tons were mined per year; further, “Asbestos is used in two to three thousand different applications”. Presumably the unstated legal conclusion meant to be drawn is since asbestos is everywhere, its presence in Waterbury schools does not render diseases resulting therefrom “peculiar to the occupation . . . due to causes in excess of the ordinary hazards of the employment”. Similarly, finding #10 states that “Mesothelioma is not a disease peculiar to claimant’s occupation”. In fact, the city’s legal defense inferentially adopted by findings #10 and #13 is based on an incorrect reading of the occupational disease definition, Sec. 31-275(11), C.G.S.[1] .
We had occasion in Cortes v. Allegheny Ludlum Steel Corp., 1 Conn. Workers’ Comp. Rev. Op. 173, 61 CRD-3-81 (1982) to analyze the special hazard[2] argument embodied in this contention. In particular, Cortes cited Glodenis v. American Brass Company, 118 Conn. 29, 40 (1934) and LeLenko v. Wilson H. Lee Co., 128 Conn. 499 (1942) as well as Santini v. Levin, 110 Conn. 248, 253 (1929). Those cases dating back sixty years held that the “peculiar to the occupation” and “in excess of the ordinary hazards of employment” language in our definition of occupational diseases simply referred to the concepts of proximate causation involved. It did not mean that the deleterious substances or dangerous conditions involved had to exist only or exclusively or uniquely in the claimant’s workplace. They had to be “peculiar to” only in the sense that they constituted causes arising out of that workplace and not from elsewhere and they had to be “in excess of the ordinary hazards of employment” only in the sense that, “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”, LeLenko v. Wilson H. Lee Co., supra, at 504-505.
We do recognize finding #13 also implicitly addresses the employer’s factual argument. By stating that asbestos has a pervasive presence in our society with thousands of applications, the evidential inference conveyed may be to make less likely claimant’s contention that decedent’s mesothelioma derived from a workplace substance rather than from the asbestos present elsewhere in the environment. If that is all that was meant by finding #13, then it becomes simply a proper expression of one of the logical steps in reaching the factual conclusion of failure to sustain burden of proof. However, the juxtaposition of findings #10 and #13 necessarily indicates the Commissioner adopted the city’s incorrect and narrow reading of the occupational disease definition.
Because this incorrect standard was adopted, we must remand for a rehearing; the evidence presented will therefore need to be viewed in a different light. Consequently, the evidentiary issues raised on this appeal may not all be relevant in the retrial. Nonetheless, some discussion of those issues may be useful. The finding in #8 and its last unnumbered paragraph refer to the generally accepted latency period for mesothelioma as being twenty to forty years. The syllogism thus presented seems:
Major Premise: Mesothelioma derives from asbestos exposure twenty-forty years before diagnosis.
Minor Premise: Decedent’s asbestos exposure in the Waterbury school system was less than twenty years before diagnosis.
Conclusion: Therefore, it is impossible that decedent’s mesothelioma was caused by exposure in the Waterbury schools.
The problem with that reasoning is that none of the expert witnesses testified that it was impossible to have a latency period of less than twenty years. The respondents’ own witness, Dr. Robert N. Sawyer, stated that there were cases where initial known exposure occurred less than five years before diagnosis (Transcript, March 6, 1986, p. 75).
This is not to diminish the burden of proof that claimant must overcome in future proceedings. Claimant must show by a fair preponderance of the evidence, not beyond a reasonable doubt, that decedent’s mesothelioma was caused by exposure in the Waterbury schools. Respondent may still present the average latency period argument to rebut those claims. Respondent may even produce some evidence of decedent’s specific exposure to asbestos elsewhere although no such evidence was previously presented.
With respect to exhibits which have been and may be submitted into evidence, EPA and OSHA are federal agencies duly established by the U.S. Congress. Their rules and regulations therefore have the force of law and are subject to judicial or administrative notice, 44 U.S.C. Sec. 1507.
The matter is remanded to the Fifth District for rehearing and other further proceedings consistent herewith.
Commissioners Frank Verrilli and A. Thomas White, Jr. concur.