Voronuk vs. Electric Boat: Contributing Factor must be "Substantial"

Posted by James Aspell | Jan 05, 2010 | 0 Comments

The Connecticut Appellate Court released it's decison on December 1, 2009 in the case of MARJORIE VORONUK v. ELECTRIC BOAT CORPORATION ET AL. Voronuk concerns a claim for survivor's benefits under section 31-306 of the Connecticut Worker's Compensation Act. According to the decision, Joseph Voronuk, the plaintiff's late husband, who died in 1995, testified by deposition on November 14, 1989, that he first worked for the defendant in 1942 as a shipfitter for approximately six months to one year and that during that period he was exposed to asbestos while on the job. He and the plaintiff were married in 1947 and remained married and living together until his death. He resumed employment with the defendant in 1951 as a carpenter. He testified that in the course of his employment as a carpenter for the defendant he was exposed to asbestos. He testified that in 1982, due to complaints of chest pain, he was examined by Paul Gerity, a physician. Gerity's notes of the examination reveal that the decedent was fearful that his prolonged exposure to asbestos on the job made him susceptible to asbestosis. The decedent's medical records show that from October, 1982, through April, 1986, he was treated by Gerity and William G. Crawford, another physician, for, among other things, complaints of chest pain. The decedent also testified that in 1985, at the defendant's request, he had a medical screening for asbestosis performed by personnel at Boston University Medical Center. It was as a result of this medical screening that he first learned of his diagnosis of asbestosis. On March 17, 1986, he filed with the commissioner a form 30-C, claiming that his lung disease was a result of workplace exposure to lung irritants. The decedent retired from the defendant's employ in 1986. The decedent thereafter continued to monitor and to treat his lung condition, although it worsened. In September, 1993, he was hospitalized and diagnosed with congestive heart failure, cardiomyopathy, asbestosis and chronic obstructive pulmonary disease. He was again hospitalized in July and November, 1994, due to complications resulting from congestive heart failure, pleural effusions, cardiomegaly, chronic obstructive pulmonary disease, hypoxia and asbestosis. He died on October 13, 1995. His death certificate listed the immediate cause of death as cardiorespiratory arrest due to cardiomyopathy and congestive heart failure. It also listed diabetes mellitus as another condition contributing to death but not related to cause. In 1996, Mark R. Cullen, a physician, reviewed the decedent's medical records and prepared a report that the plaintiff submitted to the commissioner. Cullen's report initially set out the basis for the opinions contained therein and concluded: ‘‘Putting all the above information into context, it would bemy opinion that underlying restrictive lung disease was a contributory factor in the development of cardiorespiratory failure which ultimately caused [the decedent's] demise in 1995. Since his interstitial lung disease was due to asbestosis, I would consider his work exposure contributory to his death.'' This report, along with the death certificate, was the only evidence the plaintiff submitted concerning the cause of the decedent's death. The Trial Commissioner, after hearing all of the evidence, concluded that because no expert medical opinion was profferred by the widow that Mr. Voronuk's past exposure to asbestos in his work at E.B. was a "substantial contributing factor, " she had not met her burden of proof with regards to establishing compensibility. The Compensation Review Board affirmed the trial commissioner, and now the Appellate Court has concluded likewise. The Court goes out of its' way to state that it does not consider the expression "substantial contributing factor" to be a magic phrase, per se, however that conclusion is hard to escape. The take away message is that when in doubt, the wise claimant's attorney should ask doctor for clarification of any ambiguous opinions. Schedule an hour of the doctor's time and explain to him or her what it is that is needed. Have an honest discussion about the medical legal implications of the doctor's opinions. With Voronuk on the books, we have been forewarned.

About the Author

James Aspell

Principal since August 1, 2006 James F. Aspell is the principal and managing attorney of the firm which he started in 2006 following 20 years of litigation practice in a mid -size firm in Hartford, Connecticut. Jim focuses his practice in the areas of worker's compensation and personal injury l...

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