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Wednesday, July 18, 2012

CLAIMANT DENIED POSTHUMOUS BENEFITS BY ALJ AVERY

CHARLES R. WIMBERLY v ELECTRIC BOAT CORPORATION
Read Full Decision Here


Claimant was seventy-two years old at the time of the hearing.  He was a high school graduate.  He had worked as a millwright and with employer as a welder, first in 1957 and then a second time from 1965 until he retired in 1993.  Claimant was diabetic and diagnosed with a pulmonary lung disease in 2007 which he contributes to his exposure at work to asbestos, welding fumes, dust from grinders and sandblasters.  Masks 
were not required, and these exposures came from asbestos gloves and installation, grinders and blasting machines and welding rods.Although not diagnosed with a lung disease until 2007, Claimant, who was a 
cigarette smoker until 2009, testified he first noticed a lung impairment in 2000, but even prior to that while working he found it hard to walk hills.  At the hearing, Claimant used a wheelchair and oxygen and at home testified he used a breathing machine.

The criteria used to diagnose asbestosis, according to Dr. Pulde, is exposure history with a latency, CT scan and PFT, and in this instance the aggregate of these do not support such a diagnosis.  Also, other conditions that are non specific can cause clinical findings such as neuromuscular disease caused by diabetes, confinement to a wheelchair which prevents full chest expansion, the consequence of obesity, congestive heart failure, tobacco smoking, emphysema and sleep apnea.  Even gender and race can affect risks of some of these conditions. In sum, despite Claimant’s occupational exposure to asbestos Dr. Pulde opined there is no clinical and objective evidence of an asbestos related condition in this instance.



Conclusion

At page 8 of Employer’s post-trial deposition Employer’s Counsel sets out eleven weaknesses in Dr. DeGraff’s opinion, and I agree.  Dr. DeGraff never saw the chest CT’s nor did he see a full set of PFT’s.  Neither did he read Claimant’s deposition or trial testimonies.  Likewise, Dr. DeGraff was not aware of Claimant’s other conditions such as diabetes, neuromuscular disease, obesity, confinement to a wheelchair, sleep apnea and congestive heart failure.  To the contrary, Dr. Pulde did consider all this information, and in doing so concluded there was insufficient clinical and objective evidence to support a definitive diagnosis of asbestosis. Consequently, as earlier said, at most I am left with true doubt, and for that reason Claimant’s claim for benefits was DENIED.


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