State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Levarge v. Electric Boat Corporation

CASE NO. 4884 CRB-8-04-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 30, 2005

PATRICIA LEVARGE, Dependent widow of RICHARD LEVARGE, Deceased

CLAIMANT-APPELLEE

v.

ELECTRIC BOAT CORPORATION

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLEE

and

ACE USA/ST. PAUL TRAVELERS

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

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

The respondent employer Electric Boat Corporation was represented by Peter D. Quay, Esq., Murphy and Beane, One Union Plaza, P.O. Box 590, New London, CT 06320.

The respondents ACE USA/St. Paul Travelers were represented by Lucas D. Strunk, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

This Petition for Review from the Ruling on a Motion To Limit Participation Of ACE, USA by the commissioner acting for the Eighth District was heard May 13, 2005 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Michelle D. Truglia and Donald H. Doyle, Jr.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondent ACE, USA, in its capacity as a former workers’ compensation insurer of Electric Boat Corp., has petitioned for review from the October 29, 2004 Ruling Re: Motion to Limit Participation of ACE USA by the Commissioner acting for the Eighth District. The appellant contends that the trier erred by ruling that ACE USA may not relitigate the compensability of the decedent’s laryngeal cancer in this forum, and by ruling that there was privity among the respondents in earlier proceedings under the Longshore and Harbor Workers’ Compensation Act (“Longshore Act”). We find no error, and affirm the decision of the trial commissioner.

The claimant is the widow and dependent spouse of Richard Levarge, a former employee of the respondent Electric Boat who died on April 7, 1993 of metastatic laryngeal cancer. On February 3, 1995, Judge David W. DiNardi, a federal administrative law judge, issued a written decision awarding the claimant benefits pursuant to the Longshore Act. Appearing at those proceedings were representatives for both Electric Boat as a self-insured entity, and INA/CIGNA as a workers’ compensation insurer for Electric Boat.

During the federal proceedings, the ALJ found that the decedent and Electric Boat had an employee-employer relationship from 1956 through 1992, and that the decedent was exposed to asbestos dust and debris until at least June 24, 1979, when he left production work for the job of trade planner and, later, process analyst. There was also testimony that the decedent would have subsequently been exposed to asbestos dust whenever he visited the machine shop in the course of his duties as a process analyst. The decedent had a polyp excised from his left vocal cord in late September 1991, and was first diagnosed with squamous cell carcinoma on October 2, 1991, for which he underwent radiation therapy. In his hospital admission report dated October 3, 1991, the presiding doctor noted a 30-year history of smoking one and one-half packs of cigarettes daily. The radiation therapy appeared to work initially, but several months later, cell carcinoma reappeared. The decedent stopped working on November 19, 1992. A December 1, 1992 CT Scan revealed the presence of lung cancer. The decedent died of respiratory arrest secondary to metastatic laryngeal cancer on April 7, 1993. Dr. Benedict, the pathologist who performed an autopsy on the decedent, identified the cause of death as “widespread metastatic poorly differentiated squamous cell carcinoma.” Claimant’s Exhibit B.

Two medical reports were discussed in-depth by the ALJ. Dr. Gaensler, who reviewed the records for the respondents, stated that the claimant died of “widely metastatic cancer of the larynx.” Id. He identified three important causal factors: the claimant’s 45 pack-year smoking history, his steady alcohol consumption, and cancer of the larynx. As for the decedent’s asbestos exposure, Dr. Gaensler stated that he did not have asbestosis, and that “the epidemiologic literature failed to suggest that his exposure to asbestos, of whatever degree, in any way contributed to the development of his tumor.” Dr. Gaensler reasoned that laryngeal cancer, which is quite rare, had never been conclusively linked to asbestos exposure, while smoking and alcohol consumption had been strongly linked to laryngeal cancer. Dr. Cherniack, meanwhile, was of the opinion that the decedent’s 23-year work history as an inside machinist for Electric Boat showed potential significant exposure to asbestos, which along with smoking and alcohol use “contributed to the development of his cancer of the larynx.” Id. He added that each of these three risk factors was present in substantial quantity.

After reviewing the evidence, the ALJ found that the decedent’s cancer arose out of and in the course of his employment. In making his decision, the ALJ applied the legal standards for establishing causation that existed under the Longshore Act. These include the proposition that “all factual doubts must be resolved in favor of the claimant;” Wheatley v. Adler, 407 F.2d 307 (D.C. Cir. 1968); and involved the application of a presumption in favor of the claimant. Claimant’s Exhibit B. Specifically, once the claimant was able to show that (1) the decedent had sustained physical harm or pain, and (2) an accident occurred in the course of employment or conditions existed at work which could have caused that harm or pain, a prima facie case was deemed to have been established. At that point, a presumption in favor of compensability was created pursuant to 33 U.S.C. § 920(a), and the burden shifted to the party opposing entitlement to present “substantial evidence proving the absence of or severing the connection between such harm and employment or working conditions.” Id., citing Parsons Corp. of California v. Director, OWCP, 619 F.2d 38 (9th Cir. 1980), et. al.1 The ALJ went on to rule that Dr. Gaensler’s opinion did not amount to “specific and comprehensive” medical evidence to sever that connection, insofar as the doctor had admitted that the decedent had exhibited pleural plaques that were caused by exposure to asbestos dust and fibers at the workplace. Claimant’s Exhibit B, p. 14.

The ALJ noted in his decision that, under the Longshore Act, a work-related injury need not be the sole or primary cause of a disability for compensation purposes. “Rather, if an employment-related injury contributes to, combines with or aggravates a pre-existing disease or underlying condition, the entire resultant disability is compensable.” Claimant’s Exhibit B, citing Strachan Shipping v. Nash, 782 F.2d 513 (5th Cir. 1986). The ALJ found that the claimant’s laryngeal cancer constituted a work-related injury, based on the opinion of Dr. Cherniack, “a well-recognized expert in the field of occupational medicine” whose opinion the ALJ found to be both well-reasoned and well-documented. In contrast, the ALJ found that Dr. Gaensler selectively used medical literature to justify his opinion by minimizing the claimant’s exposure to asbestos and by deprecating positive studies connecting asbestos exposure and laryngeal cancer. The ALJ went on to conclude that Electric Boat in its capacity as a self-insurer was responsible for the payment of benefits under the “last employer” rule of Travelers Insurance Co. v. Cardillo, 225 F.2d 137 (2nd. Cir. 1955). Under that rule, the employer at the time of the last employment during which the claimant was exposed to injurious stimuli (prior to the claimant being aware that he suffers from an occupational disease) must accept liability for the full amount of an award. Electric Boat thus began paying benefits to the claimant, as they have been ever since.

Meanwhile, the claimant also filed a Form 30C with this Commission on July 12, 1993, which Electric Boat contested in its capacity as a self-insured. Years went by during which the claimant did not pursue that action. Then, on March 4, 2003, the claimant filed a hearing request on the subject of widow’s benefits under the Workers’ Compensation Act. Representatives from Electric Boat and the insurers Liberty Mutual, ACE USA and Travelers filed appearances. Electric Boat then requested that this commission make a finding regarding the date of the decedent’s last exposure to asbestos, while also maintaining that the insurers Travelers and/or ACE were necessary parties to this action pursuant to § 31-299b C.G.S. In Proposed Findings of Fact dated December 19, 2003, Electric Boat stated that ACE USA was its workers’ compensation insurer from 1955 through March 31, 1975 and again from July 1, 1978 to August 31, 1980, while Travelers insured Electric Boat from April 1, 1975 through June 30, 1978. From September 1, 1980 through November 19, 1992, Electric Boat was self-insured.

The trial commissioner issued a decision on January 26, 2004, finding that the decedent’s last exposure to asbestos fibers occurred on January 8, 1983 while he was working as a process analyst. On that date, Electric Boat was self-insured. The claimant then filed a motion to limit the participation of the respondent insurer ACE USA in this case, pursuant to this Board’s decision in Robert v. General Dynamics Corp./Electric Boat Division, 4691 CRB-2-03-7 (June 14, 2004).

In Robert, we held that in a § 31-299b action, respondents other than the initially liable § 31-299b entity were not entitled to participate and defend in proceedings in which a claimant was asserting collateral estoppel to prevent the re-litigation of causation. There, an ALJ had issued a decision under the Longshore Act finding the self-insured Electric Boat liable for a decedent’s injury. This board noted that in Lafayette v. General Dynamics Corp./Electric Boat Div., 255 Conn. 762 (2001), our Supreme Court had held that “determinations under the federal Longshore . . . 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.” Robert, supra. Because the doctrine of collateral estoppel may be applied only to the same parties who have actually litigated an issue in a prior action, or to parties who are in privity with them, we concluded that the additional respondents were entitled to a hearing regarding the applicability of collateral estoppel and the existence of privity between them and the self-insured respondent Electric Boat. However, said respondents were not entitled to compel the claimant to again prove that the decedent’s death was proximately caused by a compensable injury. “[H]aving 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. . . . The only difference between this case and other cases arising pursuant to § 31-299b is the Supreme Court’s decision in Lafayette, supra, holding that liability against an employer [which has been] litigated pursuant to the [LHWCA] collaterally estops the respondent in that proceeding from relitigating the issue in this forum.” Id.

The trial commissioner concluded that the Robert decision was applicable to the instant case, and granted the claimant’s motion to limit the participation of ACE USA. He reasoned that, based upon the Lafayette decision, the respondents were estopped from relitigating the issue of compensability in this forum. He went on to find that privity, or an “identification of interests,” existed between ACE USA and the respondents in the Longshore Act proceedings. Findings, ¶ G. The respondent insurer has filed a petition for review from that decision.

Here on appeal, ACE USA contends that it should be allowed to litigate the issue of causation because there is insufficient medical evidence to satisfy the claimant’s burden of proving that asbestos exposure in the workplace was a substantial factor in causing the decedent’s fatal laryngeal cancer and squamous cell carcinoma. See McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 117-18 (1987)(employment must be proximate cause of injury, and causation must be proven by a reasonable medical probability). ACE USA states that the effect of the federal § 920(a) presumption is to render the ALJ’s decision insufficient to meet Connecticut’s standard of proof, and further, that the ALJ sought only to determine whether the claimant’s asbestos exposure contributed to his disease, as opposed to it being a “substantial contributing factor.” The insurer goes on to argue that there is no identification of interest between itself and Electric Boat, which precludes a valid finding that privity existed between the parties, and renders erroneous the trial commissioner’s conclusion to the contrary.

In Lafayette, supra, our Supreme Court considered a case whose facts are comparable to this one. During the Longshore Act proceedings, the decedent’s treating physician testified that workplace asbestos exposure was a contributing factor in his development of lung cancer. Dr. Cherniack stated there that the decedent had asbestotic pleural disease that likely combined with a long history of tobacco smoke exposure to cause his disease. Id., p. 776. Meanwhile, Electric Boat offered the medical opinion of Dr. Gee, who opined that the claimant’s smoking history had caused his lung cancer, and that it was not likely related to the claimant’s asbestos exposure. The ALJ characterized the case as a “classic battle of the medical experts,” rejected the notion that the evidence was in equipoise, and went on to find that the opinion of Dr. Cherniack more persuasive than that of Dr. Gee. Subsequently, an action was brought under Chapter 568 for additional benefits.

Initially, both the trial commissioner and this board held that, due to differences between state and federal workers’ compensation laws and their varying standards of proof, the doctrine of collateral estoppel did not apply to preclude Electric Boat from contesting compensability under the Workers’ Compensation Act. On review, the Supreme Court held that collateral estoppel indeed barred Electric Boat from litigating causation in this forum. “[T]he administrative judge expressly found that the evidence was not in equipoise, and analyzed the competing medical opinions offered by [Drs.] Deren, Cherniack and Gee. Furthermore, he expressly stated that he accepted the opinions of Deren and Cherniack . . . and that he did not accept the opinion of Gee.” Id., 779 (emphasis in original). With regard to the standard of causation, Electric Boat offered the same argument it offers here—that the ALJ “applied a standard whereby the employment-related injury had to be a contributing factor as opposed to a substantial contributing factor.” Id., 781. However, the Court declined to review that issue because it had not been raised in a timely manner, nor had it been properly briefed.

The Lafayette Court’s evaluation of the ALJ’s decision as being sufficient to support the application of the collateral estoppel doctrine suggests that a similar result should occur here. Admittedly, Electric Boat’s attempt to meet its initial burden of producing rebuttal evidence was rejected by the ALJ because said evidence was not “specific and comprehensive.” The ALJ observed that Dr. Gaensler had conceded the claimant had bilateral pleural plaques, which resulted from the decedent’s exposure to asbestos dust and fibers. Thus, the ALJ continued to rely in part on the § 920(a) presumption in reaching the threshold conclusion that the claimant’s pleural plaques constituted a work-related injury.

However, it is important to observe that the ALJ separately considered the question of whether the decedent’s laryngeal cancer was also a work-related injury, and only deemed it so based on the opinion of Dr. Cherniack. This reliance on a medical report to establish causation mirrors the ALJ’s decision-making process in Lafayette. Dr. Cherniack stated in his August 26, 1994 deposition that each of the decedent’s risk factors (smoking, alcohol consumption, asbestos exposure) for cancer of the larynx was present in “substantial quantity.” Claimant’s Exhibit E, p. 19. When asked about the probable relationship between his laryngeal cancer and his asbestos exposure given the results and limitations of the studies that had been performed in the past, Dr. Cherniack talked about the techniques he uses for drawing conclusions from “studies of low power,” and then confirmed that all three of the aforementioned risk factors were “causative elements” in the decedent’s laryngeal cancer with reasonable medical certainty. Claimant’s Exhibit E, pp. 42-44. Dr. Cherniack also stated that, at the time of the decedent’s laryngectomy, pleural soft tissue densities were observed in CT scan results, which suggested the presence of pleural plaques. Id., pp. 47-48.

By relying on this medical opinion in support of his finding that the decedent’s laryngeal cancer stemmed from his workplace exposure to asbestos, the ALJ followed the same process that a trial commissioner would have to adhere to in order to make a finding of a compensable injury under the Workers’ Compensation Act. Dr. Cherniack’s opinion is stated with enough clarity and certainty to withstand our scrutiny on review. “The causal relationship between an injury and its later physical effects may be established by the direct opinion of a physician,” and must be based “upon reasonable probabilities rather than mere speculation or conjecture if [it is] to be admissible in establishing causation.” Struckman v. Burns, 205 Conn. 542, 554-55 (1987). “Whether an expert’s testimony is expressed in terms of a reasonable probability that an event has occurred does not depend upon the semantics of the expert or his use of any particular term or phrase, but rather, is determined by looking at the entire substance of the expert’s testimony.” Id., 555. Dr. Cherniack’s opinion meets that standard insofar as it suggests that the decedent’s asbestos exposure played a significant role in his development of cancer. Because the ALJ relied on an opinion sufficient to meet the standard of proving causation applicable under chapter 568, we need not determine whether the difference in the minimum standards of proof between our Act and the federal Longshore Act would preclude the application of the collateral estoppel doctrine. See Lafayette, supra.

We also disagree with the appellant’s contention that privity cannot be found between itself and the self-insured employer due to an absence of “identification of interest” in the earlier proceedings under the LHWCA. Collateral estoppel precludes a party from relitigating issues and facts that have been actually and of necessity been litigated and determined in a prior suit, provided that the earlier proceeding involved the same parties or those in privity with them on a different claim. Lafayette, supra, 772-73; Crochiere v. Board of Education, 227 Conn. 333, 343 (1993). The detailed discussion of privity in Mazziotti v. Allstate Ins. Co., 240 Conn. 799 (1997), leads us to conclude that privity exists here. According to the Mazziotti Court, “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. Id., 814, citing Joe’s Pizza, Inc., v. Aetna Life & Casualty Co., 236 Conn. 863, 868 (1996).

We observe that the insurers ACE USA and Travelers share the same legal right here as did Electric Boat in its capacity as a self-insured defendant in the Longshore Act proceedings. Both were defending identical claims of compensation by the claimant, both faced a similar risk of being forced to accept financial liability for benefits payable on account of the decedent’s injury should it be proven compensable, and both had the right to introduce medical evidence to dispute that compensability. Indeed, the risk to Electric Boat was greater under the LHWCA than it would have been under chapter 568, insofar as there was no apportionment scheme made available by the Longshore Act based upon a division of insurance liability for successive periods of asbestos exposure. Thus, as the last “insurer” on the risk during a period of asbestos exposure, Electric Boat had more than ample incentive to defend the Longshore Act claim that laryngeal cancer resulted from the decedent’s asbestos exposure.

Also, the substance of the cause of action in both the Longshore and Connecticut proceedings is a claim for disability benefits based upon a compensable injury, which is a statutorily-created cause of action that substitutes for an action in tort against the employer. See Mazziotti, supra, 817. Although the issue currently before this Commission is apportionment among various responsible insurers pursuant to § 31-299b C.G.S., Electric Boat essentially stood in the shoes of any insurers potentially liable for a part of the claim during its participation in proceedings under the Longshore Act. We thus do not believe that it would be inequitable to apply the doctrine of collateral estoppel, as the interests of any § 31-299b insurers were sufficiently represented in the Longshore Act proceedings. Id., 818.2 Accordingly, we follow our recent decision in Robert, supra, and affirm the trial commissioner’s decision.

Commissioners Michelle D. Truglia and Donald H. Doyle, Jr., concur.

1 We note that, at the time of the ALJ’s decision, the United States Supreme Court had recently abolished the “true doubt” rule that shifted the burden of persuasion to the party opposing the benefits claim in Director, Office of Workers’ Compensation Programs v. Greenwich Colleries, 512 U.S. 267, 281 (1994). In a 6-3 decision, the majority reasoned that said rule contravened § 7(c) of the federal Administrative Procedure Act, which requires that a benefits claimant lose when the evidence is evenly balanced. See Lafayette v. General Dynamics Corp., 255 Conn. 762, 778 (2001). BACK TO TEXT

2 The appellant also raised a claim in its brief that the trier erred by failing to grant its Motion for Articulation, reasoning that without said articulation there were insufficient facts in the record to establish an “identification of interest” between the insurers in this forum and the respondent self-insured employer in the Longshore Act proceedings. Given the nature of our review, it is evident that this board did not experience such difficulties. We therefore disagree with the appellant’s claim of error. BACK TO TEXT

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