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Robert v. General Dynamics Corp./Electric Boat Division

CASE NO. 4691 CRB-2-03-7

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 14, 2004

CLARENCE B. ROBERT, Deceased

LILLIAN ROBERT, Dependent Spouse

CLAIMANT-APPELLANT

v.

GENERAL DYNAMICS CORP./ELECTRIC BOAT DIVISION

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLEE

and

ACE USA

INSURER

RESPONDENT-APPELLEE

and

LIBERTY MUTUAL

INSURER

RESPONDENT-APPELLEE

APPEARANCES:

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

The respondent employer as a self-insured was represented by Peter Quay, Esq., Murphy & Beane, One Union Plaza, P.O. Box 590, New London, CT 06320.

The respondent employer and ACE USA were represented by Lucas Strunk, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

The respondent employer and Liberty Mutual were represented by Marian Yun, Esq., Law Office of Nancy Rosenbaum, 655 Winding Brook Drive, Glastonbury, CT 06033.

This Petition For Review from the June 30, 2003 Order of the Commissioner acting for the Eighth District was heard November 21, 2003 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Ernie R. Walker and Howard H. Belkin.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant is the dependent spouse of the decedent Clarence Robert. The claimant appeals from the June 30, 2003 Order Re: Sec. 31-299b of the Commissioner acting for the Eighth District. In that order the commissioner concluded that § 31-299b did not bar additional respondents from participating in formal proceedings relating to the issue of the compensability of the decedent’s death.

The claimant filed this appeal and presents the following issues for our consideration: (1) whether the commissioner erred in concluding § 31-299b permits other respondents, in addition to the last employer, to participate in proceedings in which the issue of compensability would be considered; and (2) whether this tribunal should reserve this issue to the Appellate Court pursuant to § 31-324.1

We first consider the appellant’s request that, pursuant to § 31-324, we reserve the legal issue presented to the Appellate Court. We deny the appellant’s request. Whether this tribunal exercises its authority to reserve a question to the Appellate Court pursuant to § 31-324 is a matter of discretion. Sec. 31-324 provides, in pertinent part:

When, in any case arising under the provisions of this chapter, the Compensation Review Board is of the opinion that the decision involves principles of law which are not free from reasonable doubt and which public interest requires shall be determined by the Appellate Court, in order that a definite rule be established applicable to future cases, said Compensation Review Board may, on its own motion and without any agreement or act of the parties or their counsel, reserve such case for the opinion of the Appellate Court.

We decline to reserve this issue pursuant to § 31-324. Sec. 31-324 provides this tribunal with the opportunity to present a specific legal question to the court for its guidance. In support of its contention that the question presented should be reserved the appellant relies on Dixon v. United Illuminating Co., 232 Conn. 758 (1995). In Dixon, the Compensation Review Board was presented with a question as to whether it had jurisdiction over an issue concerning the Chairman’s exercise of his administrative powers. There is no allegation by the appellant in the instant matter that we lack the requisite appellate authority to hear and decide this appeal. We therefore deny the claimant’s request.

We now consider the appeal on its merits. The trial commissioner’s order states:2

The Claimant contends Section 31-299b bars additional respondents/carriers from participating in this proceeding as to the issue of compensability and contest of this claim.
Pursuant to the parties briefs filed on May 8, 2003 regarding the claimant’s contention as set forth above, I find and conclude her contention/arguments to me non-persuasive and as such will/do allow respondents to appear and participate in formal hearings.

The issue presented for review as framed by the appellant asks, “Did the Commissioner err in concluding that under § 31-299b, respondents other than the § 31-299b entity may participate and defend in the proceedings in which the claimant asserts that collateral estoppel precludes the self-insured employer which is the § 31-299b entity from re-litigating the issue of causation?” See Appellant’s Reasons For Appeal filed July 9 2003.

Previously we have noted that the purpose of § 31-299b is to protect claimants suffering a single injury due to exposure to an injurious source occurring over a time span during which several employers or carriers were on the risk for Workers’ Compensation liability. See e.g., Thomen v. Turri Electric, 11 Conn. Workers’ Comp. Rev. Op. 299, 302, 1324 CRD-5-91-10 (Dec. 23, 1993). In Konovaluk v. Graphite Die Mold, Inc., 4437 CRB-3-01-9 (August 8, 2002) we reviewed the legislative history of § 31-299b and noted that its purpose is to provide a claimant access to the Workers’ Compensation remedy without having to pursue liability against each employer who may have been a proximate cause of the claimant’s injury. In short, § 31-299b permits the claimant to pursue liability against the last employer, or its insurer, in whose employ the claimant was exposed to a causal agent. Sec. 31-299b then permits the last employer to apportion its liability with the remaining employers in the chain of causation.

It is not entirely clear whether the trial commissioner’s order permits each additional respondent to fully litigate the issue of causation or whether the additional respondents are limited to litigating why the principles of collateral estoppel are not applicable on the issue of causation. Complicating matters in this case is a decision rendered by an administrative law judge under the federal Longshore Harbor Workers’ Compensation Act in which the self- insured respondent, Electric Boat, was found liable for the decedent’s injury. In Lafayette v. General Dynamics Corp./Elec. Boat Div., 255 Conn. 762 (2001) our Supreme Court held determinations under the federal Longshore Harbor Workers’ Compensation Act as to whether a work place injury arose out of and in the course of employment precluded the litigation of that issue in another forum on the basis of collateral estoppel.

Collateral estoppel is “that aspect of res judicata which prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties upon a different claim.” Rinaldi v. Town of Enfield, 82 Conn. App. 505, 516 (2004). Collateral estoppel may be applied to the same parties or those in privity with the parties in a different claim. See Rocco v. Garrison, 268 Conn. 541(2004). In Mazziotti v. Allstate Insurance Company, 240 Conn. 799, 814 (1997) our Supreme Court noted:

Privity is not established by the mere fact that persons may be interested in the same question or in proving or disproving the same set of facts. Rather, it is, in essence, a shorthand statement for the principle that collateral estoppel should be applied only when there exists such an identification in interest of one person with another as to represent the same legal rights so as to justify preclusion.

The Mazziotti court also noted:

“[W]e recognize the ‘crowning consideration’ in collateral estoppel cases and the basic requirement of privity - that the interest of the party to be precluded must have been sufficiently represented in the prior action so that the application of collateral estoppel is not inequitable. Aetna Casualty & Surety Co. v. Jones, supra, 220 Conn. 306. A trial in which one party contests a claim against another should be held to estop a third person only when it is realistic to say that the third person was fully protected in the first trial. State v. Fritz, supra, 204 Conn. 173.”

Mazziotti, supra, 818-19 (1997).

All of the above supports a conclusion that the additional respondents are entitled to a hearing in which they may argue that the application of collateral estoppel to the Administrative Law Judge’s determination would be inequitable. It may well be that the additional respondents may demonstrate a lack of privity with the respondent self insured in the federal Longshore Harbor Workers’ Compensation Act proceedings and/or that the interests of the additional respondents in this claim were not sufficiently represented in that action. Failing to provide the additional respondents with an opportunity to present their argument as to why they should not be collaterally estopped from defending their interests in this claim does not comport with traditional due process notions.

However, having concluded that the additional respondents are entitled to a hearing as to why the principles of collateral estoppel should not be applied to them does not provide the additional respondents with an opportunity to compel the claimant to prove the additional respondent’s liability in the proximate cause of the decedent’s death. As the claimant argues in her brief, having carried the burden of proof as to the liability of the last employer, § 31-299b shields the claimant from having to endure the time and expense of proving liability against other respondents in the chain of causation. See Barron v. City Printing Company, 55 Conn. App. 85 (1999). The only difference between this case and other cases arising pursuant to § 31-299b is the Supreme Court’s opinion in Lafayette, supra, holding that liability against an employer for an injury arising out of and in the course of employment litigated pursuant to the federal Longshore Harbor Workers’ Compensation Act collaterally estops the respondent in that proceeding from relitigating the issue in this forum. Whether any additional respondents will be liable for reimbursement to the last employer is dependent upon whether the criteria for applying collateral estoppel to the additional respondents is satisfied.

We therefore affirm the trier’s order insofar as it permits respondents in addition to the self-insured employer (31-299b entity) to appear in formal hearings and modify the order so as to limit the respondent’s participation to demonstrating why the principles of collateral estoppel are not applicable to them as to the issue of causation.

Commissioners Ernie R. Walker and Howard H. Belkin concur.

1 Appellant’s request was presented as part of Claimant’s Motion For Reconsideration Of Order Of Remand And Motion To Reserve Case Pursuant To § 31-324 filed July 23, 2003. span class="back">BACK TO TEXT

2 The trial commissioner’s order was not the result of a formal hearing. Thus, in theory we lack a record to review. However, based on the parties’ briefs there are no apparent factual discrepancies that would impair our ability to consider the issue raised. Additionally we note when the appeal was initially filed the Compensation Review Board ordered the matter remanded to the Commissioner on the basis that no record existed. See July 21, 2003 Order. On July 23, 2004 the appellant filed a Motion For Reconsideration Of Order Of Remand And Motion To Reserve Case Pursuant to § 31-324. We granted that motion in part and on July 24, 2003 ordered the appeal reinstated. Today we consider that part of the appellant’s motion seeking to reserve this matter pursuant to § 31-324. span class="back">BACK TO TEXT

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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