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Lowe v. General Dynamics Corp./Electric Boat Division

CASE NO. 1746 CRB-2-93-5

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 5, 1995

MARION LOWE, DEPENDENT WIDOW OF ASBURY LOWE (DECEASED)

CLAIMANT-APPELLANT

v.

GENERAL DYNAMICS CORP./ELECTRIC BOAT DIVISION

EMPLOYER

and

NATIONAL EMPLOYERS CO.

SELF-INSURED ADMINISTRATOR

and

CIGNA PROPERTY & CASUALTY CO.

INSURER

and

AETNA CASUALTY & SURETY CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Steven C. Embry, Esq., Embry & Neusner, 118 Poquonnock Road, P.O. Box 1409, Groton, CT 06340.

Cigna Insurance Co. was represented by Margaret Corrigan, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.

Aetna Insurance Co. and National Employers Co. were not represented at oral argument.

This Petition for Review from the May 20, 1993 Finding and Award of the Commissioner for the Second District was heard May 20, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Nancy A. Brouillet.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the May 20, 1993 Finding and Award of the Commissioner for the Second District. She argues on appeal that the commissioner improperly reduced her § 31-306 C.G.S. dependent widow’s benefits by applying the apportionment provision of § 31-299b to the decedent’s former out-of-state employer, and that the commissioner improperly calculated the credit due the respondents for benefits previously awarded to the decedent under the federal Longshore and Harbor Workers’ Compensation Act (LHWCA). We reverse the trial commissioner’s decision.

The decedent , Asbury Lowe, was employed as a welder and an inspector by the respondent General Dynamics from 1958 through 1990. Lowe spent sixteen years respectively at both positions. Prior to that, he had worked as a welder for several out-of-state employers, including a job for a total of six years at the Brooklyn Navy Yard between 1950 and 1957. At every location, Lowe was exposed to welding fumes; he was also exposed to asbestos at the Brooklyn Navy Yard and at General Dynamics until 1975. On December 7, 1989, the decedent was diagnosed with lung disease and asbestosis of the left lung, the lower lobe of which had to be removed. As a result, he was totally disabled until March 25, 1990, and was paid compensation benefits accordingly under the provisions of LHWCA.

The claimant’s lung problems resurfaced the following January. He was diagnosed with metatastic disease of the liver and received chemotherapy treatment from February through October, during which period he was totally disabled. This treatment ultimately proved unsuccessful, as Lowe died on December 18, 1991 from cardiopulmonary arrest due to metatastic cancer of the lung. The claimant’s widow subsequently made a claim for dependent surviving spouse benefits.

The commissioner found that the medical evidence had established that the decedent’s exposure to asbestos while in the employ of the respondent was a substantial cause of the decedent’s lung cancer, his resulting total disability, and his death. He also found that the decedent’s asbestos exposure at the Brooklyn Navy Yard played a substantial role in the development of the malignancy. As six (6) of the twenty-three (23) years of asbestos exposure had occurred in Brooklyn, the commissioner reduced the compensation benefits due to the claimant and the decedent’s estate from the respondents, specifically Cigna Insurance Co., by 27 percent. He also found that the respondents were entitled to a credit for any benefits paid to the decedent because of the injury under LHWCA.

We begin by addressing the claimant’s arguments surrounding the application of § 31-299b.1 By its terms, that statute allows a commissioner to apportion liability for a compensable injury among prior employers and to order them or their insurers to reimburse the initially liable immediate employer according to the proportion of their liability. The claimant argues that it was improper for the commissioner to proceed under the statute in this case because under Connecticut law the decedent’s injury was a single, indivisible injury for which the respondents were entirely liable, and because Brooklyn Navy Yard was not an employer within the meaning of our Workers’ Compensation Act. Furthermore, the claimant argues that the commissioner misconstrued § 31-299b as authorizing apportionment of liability among multiple employers instead of requiring full payment by the last employer subject to the possibility of reimbursement from earlier employers.

In regard to the status of Brooklyn Navy Yard as a prior employer under § 31-299b, we note that § 31-275 states: “As used in this chapter, unless the context otherwise provides: . . . (10) ‘Employer’ means any person, corporation, firm, partnership, voluntary association, joint stock association, the state and any public corporation within the state using the services of one or more employees for pay . . . .” In Chodkowski v. UTC/Pratt & Whitney, 8 Conn. Workers’ Comp. Rev. Op. 4, 736 CRD-3-88-5 (Dec. 18, 1989), this Board refused to consider service in the United States Army Reserve as concurrent employment under § 31-310. Although no award was being attempted against the Army, we held that § 31-275 could not be interpreted as including the federal government as an employer, for the Workers’ Compensation Commission had not been empowered to exercise jurisdiction over the federal government as a Connecticut employer. Id., 6.

In the instant case, there has been no finding that the Brooklyn Navy Yard is in fact a part of the United States government. Even assuming that it is, however, we do not believe that Chodkowski controls this case. Although the two situations bear some similarity, the key difference is that in Chodkowski, the commissioner took into account federal government wages in determining a claimant’s compensation rate. Because the federal government cannot be considered an employer under Connecticut workers’ compensation law, it was improper for an award to account for remuneration provided by the United States Army.

Here, the commissioner did not implicate the jurisdiction of the Workers’ Compensation Commission by considering the Brooklyn Navy Yard as a statutory employer for any purpose, e.g., for a determination of its liability or the entry of an order against it under § 31-299b. The commissioner merely determined that, as a matter of causation, the exposure to asbestos incurred by the decedent at the Navy Yard substantially affected the development of the decedent’s disease, and accordingly determined that the decedent’s employment with the respondents only caused 73 percent of his occupational disease. Whether such a reduction of the claimant’s award was proper, we will discuss below. With respect to §31-275, however, we hold that the commissioner did not treat the Navy Yard as an employer within the meaning of the Workers’ Compensation Act. Thus, Chodkowski is inapposite.

The claimant also argues that reduction of the respondents’ liability was improper because the decedent suffered a single injury and his employment at General Dynamics was a substantial factor in causing that injury. This argument is premised on the commissioner’s allegedly misguided reliance on Brown v. Bon Dental Lab, 6 Conn. Workers’ Comp. Rev. Op. 132, 594 CRD-7-87 (March 28, 1989), in reducing the claimant’s award by 27 percent. In Brown, the trial commissioner apportioned liability for the claimant’s compensable occupational disease among eleven employers according to the period of his exposure. This included 67.2 percent of the injury found attributable to employment with five out-of-state employers, for which no compensation was awarded due to our lack of jurisdiction over out-of-state employers. The claimant argued that his injury was a single compensable injury under § 31-275 and that under § 31-299b the last employer is initially liable for all the compensation due him. This Board held that § 31-299b was not applicable to the claimant’s injury, as the statute had not become effective until after the date of injury. We further ruled that the statute could not be retroactively applied as a mere procedural mechanism in that case because the Workers’ Compensation Commission did not have jurisdiction over the out-of-state employers involved, and the Connecticut employers were not the sole cause of the compensable injury.

As a general rule, “`[t]he provision in Sec. 31-275 of the General Statutes that calls for apportionment of compensation in the case of “aggravation of a pre-existing disease” refers only to occupational diseases.’” Prisco v. North & Judd, 10 Conn. Workers’ Comp. Rev. Op. 154, 156, 1190 CRD-8-91-3 (June 30, 1992), quoting Cashman v. McTernan School, Inc., 130 Conn. 401, 409 (1943). Conversely, “where no pre-existing impairment due to occupational disease is present, the employer as in the law of torts takes the victim as it finds him and pays for the entire resultant disability.” Prisco v. North & Judd, supra, 10 Conn. Workers’ Comp. Rev. Op. 157; see also Glenn v. Stop & Shop, Inc., 168 Conn. 413, 419 (1975).

Unlike the situation in Brown, there is no dispute that § 31-299b was effective at the time of the claimant’s injury in the instant case. Section 31-299b apportionment embodies the common-law concept of joint tortfeasor liability, and is appropriate “in occupational disease and repetitive trauma cases where there is a single injury occurring over a time continuum involving several employers or carriers.” Thomen v. Turri Electric, 11 Conn. Workers’ Comp. Rev. Op. 299, 302, 1324 CRD-5-91-10 (Dec. 23, 1993). Under the original joint tortfeasor doctrine implemented in cases such as Plecity v. McLachlan Hat Co., 116 Conn. 216 (1933), the claimant had the right to recover the full amount of benefits due from any of the employers who contributed to the injury. Subsequent practice apportioning liability in such cases was codified in § 31-299b, “whereby the last employer was obligated to pay the full benefit, but it then had recourse to a hearing in order to apportion liability among all responsible parties.” Thomen v. Turri Electric, supra, 302.

In this case, although the commissioner found that the claimant’s occupational disease was caused by his employment with both General Dynamics and the Brooklyn Navy Yard, he ordered only the respondent’s insurer to pay benefits to the claimant for its apportioned percentage of the injury. We do not think that § 31-299b contemplates such a result. The statute states that “[t]he commissioner shall . . . determine whether prior employers, or their insurers, are liable for a portion of such compensation and the extent of their liability. . . . [T]he commissioner shall order such employers or their insurers to reimburse the initially liable employer or insurer according to the proportion of their liability.” We have already found, however, that Brooklyn Navy Yard was not (and possibly could not have been) treated as an “employer” within the meaning of § 31-299b, as neither an order nor a finding of liability was issued against it or any other prior employer.

Recognizing the jurisdictional questions surrounding the involvement of Brooklyn Navy Yard in this case, the fact remains that no employer or insurer other than the respondent was found liable within the meaning of § 31-299b. Consequently, the commissioner was without authority to reduce the percentage of the award payable by the respondents. Apportionment of responsibility for an injury under § 31-299b is not possible unless there is at least one other legally cognizable party to whom some of the liability may be apportioned. Any other result would pervert the modified concept of joint tortfeasor liability codified in § 31-299b. See Plecity v. McLachlan Hat Co., supra, 116 Conn. 226-27.

The claimant also argues on appeal that, in light of his apportionment of the award, the commissioner improperly calculated the credit due the respondents for benefits received by the decedent under LHWCA. Our resolution of the prior issue makes this argument moot and obviates the need to discuss it.

The trial commissioner is reversed.

Commissioners Angelo L. dos Santos and Nancy A. Brouillet concur.

1 “Section 31-299b. Initial liability of last employer. Reimbursement. If an employee suffers an injury or disease for which compensation is found by the commissioner to be payable according to the provisions of this chapter, the employer who last employed the claimant prior to the filing of the claim, or the employer’s insurer, shall be initially liable for the payment of such compensation. The commissioner shall, within a reasonable period of time after issuing an award, on the basis of the record of the hearing, determine whether prior employers, or their insurers, are liable for a portion of such compensation and the extent of their liability. If prior employers are found to be so liable, the commissioner shall order such employers or their insurers to reimburse the initially liable employer or insurer according to the proportion of their liability. . . .” BACK TO TEXT

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