Gargano v. General Dynamics Corp./Electric Boat Division

CASE NO. 1285 CRD-2-91-8

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

DECEMBER 7, 1993

MYRTLE GARGANO

DEPENDENT WIDOW OF GEORGE GARGANO (Deceased)

CLAIMANT-APPELLEE

v.

GENERAL DYNAMICS CORP./ELECTRIC BOAT DIVISION

EMPLOYER

SELF-INSURED

and

TRAVELERS INSURANCE COMPANY

INSURER

RESPONDENTS-APPELLANTS

and

LIBERTY MUTUAL INSURANCE COMPANY

INSURER

RESPONDENTS-APPELLEES

and

CIGNA INSURANCE COMPANY

INSURER

RESPONDENTS-APPELLEES

AETNA INSURANCE CASUALTY AND SURETY

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Matthew Shafner, Esq., Carolyn Kelly, Esq., and Mark Oberlatz, Esq., all of O'Brien, Shafner, Bartinik, Stuart and Kelly, P.C., P.O. Drawer 929, Groton, CT 06340.

Employer as self insured was represented at the trial level by Peter Quay, Esq., P.O. Box 590, New London, CT 06320. The respondents Cigna and Aetna were represented by Jason Dodge, Esq., and Lucas D. Strunk, Esq., both of Pomeranz, Drayton and Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033-4412. The respondents Liberty Mutual were represented at the trial level by Howard Field, Esq., 20 Western Boulevard, Glastonbury, CT 06033 and the respondent Travelers Insurance Company was represented by David Davis, Esq., Ralph Russo, Esq. and Christine C. Murphy, Esq. all of McGann, Bartlett and Brown, 281 Hartford Turnpike, Suine 401, Vernon, CT 06066. No one appeared for the respondents; self insured, Cigna/Aetna, or Liberty Mutual, at oral argument.

This Petition for Review from the August 6, 1991 Finding and Award and April 8, 1992 Corrected Finding and Award of the Commissioner for the Second District was heard October 30, 1992 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners Angelo L. dos Santos and Donald H. Doyle.

OPINION

JESSE FRANKL, CHAIRMAN. The respondent Travelers Insurance petitioned for review from the August 6, 1991 Finding and Award of the Commissioner for the Second District. In that Finding and Award and the commissioner’s Corrected Finding and Award of April 8, 1992, the commissioner concluded that the decedent’s work exposure to asbestos was a substantial factor in the development of his gastrointestinal cancer. That cancer was diagnosed March 28, 1984 and resulted in the decedent’s death on April 27, 1984.

As part of his factual finding the commissioner found that the claimant was employed by the respondent employer from May 6, 1941 to September 23, 1943 and from August 6, 1950 until the date of his injury which was found to be March 28, 1984. The trier also found that during the decedent’s employment period the respondent employer’s liability for workers’ compensation insurance was carried by various insurance carriers and through this act’s self-insurance program. The respondent Travelers took the instant appeal and ultimately seeks review of the following issue; whether the commissioner erred in assessing any liability for the instant claim against the respondent Travelers Insurance.

The respondent Travelers contends, inter alia, that the final paragraphs of the commissioner’s Finding and Award which orders the “respondents” to pay certain benefits should not include the respondent Travelers. The respondent Travelers argues that there was no evidence presented before the commissioner which showed that the decedent was exposed to asbestos in the course of his employment between May 6, 1941 and September 13, 1943, the period Travelers covered the employers liability for workers’ compensation and thus, the claim against respondent Travelers should be dismissed. If the facts are as suggested by the respondent Travelers, we might agree with their contention. Thus, the instant matter must be remanded to the trier for a determination of the period for which the respondent-Travelers was an insurer on the risk for the respondent-employers workers’ compensation coverage.

We, therefore remand for further proceedings consistent with this opinion.

Commissioners Angelo L. dos Santos and Donald H. Doyle, Jr. concur.