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Lafayette v. General Dynamics Corporation/Electric Boat Division

CASE NO. 3943 CRB-08-98-12

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 18, 2000

KATHRYN LAFAYETTE, Dependent Widow of ARCHIE LAFAYETTE

CLAIMANT-APPELLANT

v.

GENERAL DYNAMICS CORPORATION/ELECTRIC BOAT DIVISION

EMPLOYER

and

CIGNA

INSURER

RESPONDENTS-APPELLEES

and

NATIONAL EMPLOYERS

INSURER

RESPONDENT-APPELLEE

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Amy Stone, Esq., O’Brien, Shafner, Stuart, Kelly & Morris, P.C., 475 Bridge Street, P. O. Drawer 929, Groton, CT 06340.

The respondent employer and CIGNA were represented by James Pomeranz, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

The respondent employer and National Employers were represented by John Greiner, Esq., Murphy & Beane, P. O. Box 590, 2 Union Plaza, New London, CT 06320.

The Second Injury Fund was not represented at oral argument. Notice sent to Taka Iwashita, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the December 4, 1998 Finding and Dismissal of the Commissioner acting for the Second District was heard August 6, 1999 before a Compensation Review Board panel consisting of the then Commission Chairman, Jesse M. Frankl and Commissioners Angelo L. dos Santos and Stephen B. Delaney.

OPINION

JESSE M. FRANKL, COMMISSIONER. The claimant has petitioned for review from the December 4, 1998 Finding and Dismissal of the Commissioner acting for the Second District. She contends on appeal that the legal doctrine of collateral estoppel bars the respondents from contesting the connection between the decedent’s death and his employment at Electric Boat, as an Administrative Law Judge (ALJ) has already issued a decision on that issue pursuant to proceedings under the federal Longshore and Harbor Workers’ Compensation Act (LHWCA). We affirm the trial commissioner’s decision.

The following facts were set forth in the trier’s Finding and Dismissal. The decedent was employed by the respondent General Dynamics/Electric Boat on November 12, 1992, and died on March 9, 1993. His dependent widow filed a claim for survivor’s benefits under the LHWCA, contending that her late husband’s death was caused by asbestos exposure. She is currently receiving such benefits. The claimant asserts that Electric Boat is now estopped from denying the compensability of that injury under the Connecticut Workers’ Compensation Act by virtue of the LHWCA decision. The respondents disagree, maintaining that the doctrine of collateral estoppel does not apply in this case because the LHWCA and Chapter 568 implement different standards of proof in making determinations of causation.

The trial commissioner found that the claimant was awarded LHWCA benefits after the respondents rebutted the initial presumption of compensability that is employed by the federal statute. However, he saw “no indication in the Federal award whether the asbestos exposure was a substantial factor in causing the [decedent] to have asbestos related cancer and his subsequent death.” Findings, ¶ 10. Observing that the workers’ compensation laws of this state differ significantly from the LHWCA laws in regard to the compensability of asbestos-related claims, the trier dismissed the claimant’s attempt to invoke the principles of collateral estoppel, thus leaving the merits of this case open for future litigation. The claimant has appealed that ruling to this board.

The doctrines of collateral estoppel (also known as issue preclusion) and res judicata (claim preclusion) have developed as a means of protecting the finality of legal judgments and preventing wasteful relitigation. Dowling v. Finley Associates, Inc., 248 Conn. 364, 373 (1999); Crochiere v. Board of Education, 227 Conn. 333 (1993). While res judicata prevents a litigant from reasserting a claim that has been denied on the merits, collateral estoppel eliminates the retrial of individual issues that have been settled in a prior suit. Dowling, supra; Virgo v. Lyons, 209 Conn. 497 (1988). These closely related precepts reflect the fundamental principle that an action should end once it has been fully and fairly litigated and a final judgment has been rendered. State v. Ellis, 197 Conn. 436, 465 (1985). Of course, a party must not be deprived of meaningful legal process by an overzealous application of these tenets. They must be implemented carefully.

Collateral estoppel applies in cases where an issue of fact or law has actually been litigated and determined by a valid and final judgment, such decision was essential to the judgment, and the earlier proceeding involved the same parties or those in privity1 with them upon a different claim. Crochiere, supra, 343; Dowling, supra, 373-74, quoting Weiss v. Statewide Grievance Committee, 227 Conn. 802, 818 (1993). An issue is “actually litigated” if it is properly raised in the pleadings or otherwise submitted for resolution, and in fact determined by the presiding judicial authority.2Dowling, 374. If an issue has been determined, but is not integral to the ultimate judgment, the parties may relitigate the matter in a subsequent action. Nonessential findings are generally characterized as dicta for this purpose. Id.; Crochiere, supra, 343; see Carol Management Corp. v. Board of Tax Review, 228 Conn. 23, 33-35 (1993) (collateral estoppel inapplicable; only essential issue in first ruling was whether tax assessor had disregarded statutory factors in gauging fair market value of property, while later decision required the judge to go further by determining property’s “highest and best use”).

During the LHWCA proceedings that were conducted on the claimant’s behalf, the ALJ was confronted with the issue of whether the decedent’s death was causally related to asbestos exposure at Electric Boat. In his February 5, 1996 Decision and Order, Administrative Law Judge Clement J. Kichuk discussed in great detail the medical evidence that pertained to causation, including the testimony and reports of Drs. Deren, Cherniack, and Gee. Claimant’s Exhibit E. He specifically accepted the history given by the decedent to Dr. Deren, which established the claimant’s asbestos exposure, and the opinion of Dr. Cherniack, which stated that it was more likely than not that such exposure contributed to the development of the decedent’s lung cancer. Id., 10-11. These findings directly led to the judge’s conclusion that the decedent’s death was work-related.

The ALJ’s consideration of such evidence is not the only relevant factor for us to consider, though, in determining whether the parties have “actually litigated” the question of whether the decedent’s lung cancer arose out of and in the course of his employment within the meaning of §§ 31-284(a) and 31-275(1). We must also consider the law that the judge applied in reaching his decision. Many of the governing principles set forth by the ALJ in his opinion are familiar in our forum, e.g., the judge’s freedom to accept or reject any physician’s opinion, and the compensability of a work-related aggravation of a pre-existing condition. Some of the rules prescribed by the LHWCA, on the other hand, are quite foreign to the Connecticut Workers’ Compensation Act.

For our purposes, the most important of these rules is 33 U.S.C. § 920, which states, “In any proceeding for the enforcement of a claim for compensation under this chapter it shall be presumed, in the absence of substantial evidence to the contrary, (a) that the claim comes within the provisions of this chapter. . . .” Despite the humanitarian spirit of our own Workers’ Compensation Act, and our frequent reminders that it should be broadly construed to accomplish its remedial purpose; see, e.g., Davis v. State, 3822 CRB-2-98-5 (Aug. 17, 1999); the Connecticut statute contains no analogue to the LHWCA’s presumption of compensability. The significance of this presumption in LHWCA proceedings is apparent from the ALJ’s discussion of the controlling law in his Decision and Order.

Administrative Judge Kichuk wrote, “At the outset it must be recognized that all factual doubts must be resolved in favor of the claimant.” Exhibit E, supra, 6. “The Act provides a presumption that a claim comes within the provisions of the Act. . . . This . . . ‘applies as much to the nexus between an employee’s malady and his employment activities as it does to any other aspect of a claim.’” Id., citing Swinton v. J. Frank Kelly, Inc., 554 F.2d 1075, 1082 (D.C. Cir. 1976), cert. denied, 429 U.S. 820 (1976). “To establish a prima facie claim for compensation, a claimant need not affirmatively establish a connection between work and harm. Rather, a claimant has the burden of establishing only that (1) the claimant sustained physical harm or pain and (2) an accident occurred in the course of employment, or conditions existed at work, which could have caused the harm or pain.” Id., 7. The ALJ explained that an employer may rebut this presumption by offering substantial evidence to negate or sever the connection between such harm and the claimant’s employment or working conditions. If rebutted, the presumption no longer controls. However, the trier of fact is still required to resolve all doubts in the claimant’s favor while weighing the evidence relevant to the causation issue. Id.; see also, Champion v. S&M Traylor Bros., 690 F.2d 285, 287 (D.C. Cir. 1982) (all doubts, “including factual ones like work-relatedness,” must be resolved in favor of claimant pursuant to LHWCA § 920).

The imprint of § 920(a) is clearly visible in the reasoning of the ALJ. Because the respondents did not introduce substantial evidence to disprove that the decedent was exposed to asbestos at the shipyard, the judge applied the statutory presumption and ruled that the claimant had established a prima facie case that her late husband had contracted pleural plaques at the workplace. Exhibit E, 8. In contrast, the respondents did introduce “specific and comprehensive medical evidence” that a reasonable mind could have accepted as adequate to demonstrate that the decedent’s lung cancer was caused by his 30-year smoking habit rather than by asbestos exposure. See Sprague v. Director, OWCP, 688 F.2d 862, 865 (1st Cir. 1982) (defining “substantial evidence”). The § 920(a) presumption of compensability was thereby rebutted successfully. The judge proceeded to evaluate the credibility of all of the evidence, describing the case as a “classic battle of the medical experts.” Exhibit E, 11. Yet, in accordance with his interpretation of the relevant caselaw,3 he continued to resolve all doubts in the claimant’s favor, and prefaced his findings and conclusions by confirming that, during his deliberations, the claimant had been allotted such an advantage. Id. It would be unrealistic to assume that this “benefit of the doubt” had no influence on the process by which the judge reached his decision, including the factual findings that he made regarding the credibility of the medical evidence and testimony.

The claimant asserts that “minor differences” between the burdens of proof under the LHWCA and our own Workers’ Compensation Act do not bar the application of collateral estoppel in a case such as this. Brief, 14. She cites French v. Rishell, 254 P.2d 26 (Cal. 1953), and Bath Iron Works Corp. v. Director, OWCP, 125 F.3d 18 (1st Cir. 1997), as examples to support her position. We do not find French persuasive. Although the court there held that “the difference in burden of proof does not justify any exception to the general rule of res judicata;” French, supra, 28; the justices failed to discuss the negative aspects of allowing a presumption-aided factual finding to have preclusive effect in a later proceeding. In evaluating the soundness of the California court’s reasoning, we cannot be sure that these important points were thoroughly considered.

In Bath, meanwhile, the First Circuit held that a judgment by the Maine workers’ compensation agency (in which it held that a claimant’s disability was not permanently worsened by a 1987 injury) was entitled to deference in a subsequent LHWCA proceeding. The claimant attempted to argue that the difference in legal standards between the Maine Act and the LHWCA made the invocation of collateral estoppel inappropriate. In considering this contention, the circuit court indeed recognized that “a difference in the legal standards pertaining to two proceedings may defeat the use of collateral estoppel,” such as “differences in burden of proof (for example, where the victor in the first case has a greater burden in the second).” Id., 21, 22. The Bath claimant failed in his argument because, in the court’s view, the insurer had borne the more difficult burden of proving its limited liability by a “preponderance of evidence” in the first proceeding, while in the LHWCA case, it needed only to provide “substantial evidence” that the 1987 accident did not cause the claimant permanent harm.

The opposite is true in the instant case. The ALJ who tried the LHWCA action openly stated that the claimant’s burden of proof was eased by the presumptions applicable under the federal statute. The claimant would not be given the same “benefit of the doubt” in proving the compensability of the decedent’s death under the Connecticut Workers’ Compensation Act. It is therefore uncertain that the issue of compensability can be said to have been “actually litigated” under the relatively relaxed standards of the LHWCA, as the claimant was not necessarily required to affirmatively establish every element of her case in order to prevail.

Our Supreme Court recently addressed what is, in our view, a fairly analogous situation. In Dowling, supra, the Court held that a general verdict by a jury is not entitled to collateral estoppel effect where there is no way to ascertain the precise basis of its determination. Id., 377. In order to invoke estoppel, the defendant in the subsequent action was required to show that the judgment against the plaintiffs in the previous action could not have been rendered without deciding the issues upon which the later action was predicated. Because of the general jury verdict, it was impossible to tell whether the jury had found against the plaintiffs as to liability, a statute of limitations defense, or both. Id., 379. The Court thus deemed it inappropriate to preclude the litigation of liability issues in the later case.

Here, we face a similar uncertainty. One cannot tell to what degree the ALJ’s decision was predicated on the LHWCA’s statutory presumptions, and to what degree he simply relied upon his evaluation of the medical evidence. Judging from the trier’s comments, it does appear probable that the presumption played at least a significant part in his decision. Certainly, it would be conjectural to say that the judge weighed all of the evidence equally, and was persuaded by a preponderance of the evidence that the claimant had established a causal connection between the decedent’s death and his employment. We do not believe that such speculation would be appropriate in an action that is designed to prevent one party from offering evidence on its own behalf. Therefore, we decline to overrule the trial commissioner’s decision that collateral estoppel could not be applied in the present case. Suffice it to say that, where there is doubt as to the wisdom of issue preclusion, a full hearing on the merits remains a reliable means of guaranteeing everyone due process.

The trial commissioner’s decision is hereby affirmed.

Commissioners Angelo L. dos Santos and Stephen B. Delaney concur.

1 Though “privity” is not in dispute here, we note that the term signifies “a relationship between one who is a party of record and another who is a nonparty, but is sufficiently close to mandate the application of res judicata or collateral estoppel.” Mazziotti v. Allstate Ins. Co., 240 Conn. 799, 813 n.1. Though the precise requirements of privity vary depending on circumstances, there must be “such an identification in interest of one person with another as to represent the same legal rights so as to justify preclusion.” Id., 814. BACK TO TEXT

2 The principle that an administrative adjudication may give rise to res judicata or collateral estoppel is well settled. Convalescent Center of Bloomfield, Inc. v. Department of Income Maintenance, 208 Conn. 187, 198 (1988). This includes proceedings involving the LHWCA and a state workers’ compensation statute. See Ingalls Shipbuilding Division, Litton Systems, Inc. v. Parson, 495 So.2d 461 (Miss. 1986) (LHWCA decision pre-empted retrial of issue in state forum); Bath Iron Works Corp. v. Director, OWCP, 125 F.3d 18 (1st Cir. 1997) (decision by Maine workers’ compensation commissioner should have been afforded collateral estoppel effect in LHWCA case). BACK TO TEXT

3 In support of the proposition that all doubts must be resolved in the claimant’s favor during the evidentiary evaluation phase of the trial, the ALJ cited certain cases that, on review, do not appear to directly support that notion, such as Sprague v. Director, OWCP, 688 F.2d 862 (1st Cir. 1982), and MacDonald v. Marine Transport Corp., 18 BRBS 259 (1996). However, at least one other case— Champion v. S&M Traylor Brothers, 690 F.2d 285 (D.C. Cir. 1982)—did offer clear support for that proposition, and we have cited that decision in the main text. We also wish to note that in 1994, the United States Supreme Court invalidated the “true doubt” rule, which had been applied in LHWCA cases to shift the burden of persuasion to the party opposing the benefits claim, causing the claimant to prevail in cases where the evidence was evenly balanced. Director, OWCP v. Greenwich Collieries, 512 U.S. 267 (1994). The six-judge majority deemed this principle to be inconsistent with § 7c of the Administrative Procedure Act, which places the burden of proof upon the proponent of a rule or order unless specifically provided by statute. The presumptions in § 920 were noted, as were additional claimant-friendly presumptions that had been adopted by regulation (including a portion of the Black Lung Benefits Act that gives claimants the benefit of “all reasonable doubt as to the existence of total or partial disability or death due to pneumoconiosis.” See 20 C.F.R. § 718.3(c)). Id., 271, 280. The Court distinguished the “true doubt” rule as going a step too far, however, in light of the language and intent of the APA. It does not appear that this decision is viewed as having invalidated the LHWCA policy decreeing that doubts must be resolved in the claimant’s favor, and we will not read it that way either. There is a discernible distinction between the practice of resolving factual discrepancies in the claimant’s favor and the reallocation of the ultimate burden of proof on a claim for benefits, and we shall presume that this difference explains the continuation of the former practice. BACK TO TEXT

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