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

CASE NO. 4947 CRB-2-05-5

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 15, 2006

JEAN BIRNIE, Dependent widow of JAMES BIRNIE, Deceased

CLAIMANT-APPELLEE

v.

ELECTRIC BOAT CORPORATION

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLANT

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 was represented by Mark Oberlatz, Esq., Murphy and Beane, One Union Plaza, P.O. Box 590, New London, CT 06320.

This Petition for Review from the May 6, 2005 Finding and Award of the Commissioner acting for the Second District was heard January 27, 2006 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Michelle D. Truglia and Ernie R. Walker.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondent appeals from the May 6, 2005 Finding and Award of the Commissioner acting for the Second District.1 In that Finding and Award the commissioner ordered the appellant to pay dependent spouse benefits to the claimant. In reaching his conclusions the commissioner applied the judicial doctrine of collateral estoppel. The trial commissioner relied on the June 9, 2003 opinion of the Administrative Law Judge[hereafter ALJ] in which the ALJ awarded benefits pursuant to the federal Longshore Harbor Workers’ Compensation Act. 33 U.S.C. § 901, et seq.

The pertinent facts in this matter are as follows. The claimant is the dependent spouse of the decedent. The decedent was employed by the respondent Electric Boat from 1980 until June 9, 2001. On June 9, 2001 the decedent suffered a fatal myocardial infarction. Thereafter the claimant brought a claim for compensation pursuant to the Longshore Harbor Workers’ Compensation Act. Hearings were held and a decision reached by the ALJ. See Claimant’s Exhibit I.2

In the course of proceedings before the ALJ the claimant offered, inter alia, the medical records and the deposition testimony of Dr. John Bigos, a specialist in pulmonary medicine. Testifying before the ALJ on behalf of the respondent was Dr. Thomas Godar, also a pulmonary specialist. Additionally, evidence was presented as to the decedent’s exposure to asbestos, dust fumes and smoke during the course of his employment. It appears the trial commissioner carefully reviewed the ALJ’s decision and concluded the ALJ’s determination that the decedent’s death was causally related to his employment was a final determination and the respondent was collaterally estopped from litigating the issue anew.

The respondent appellant presents the following issue on appeal: Whether the trial commissioner erred in applying the doctrine of collateral estoppel, thereby denying the respondent an opportunity to litigate, where the legal standard for proving proximate causation under Chapter 568 is different from that required under the Longshore Harbor Workers’ Compensation Act. More succinctly stated, the appellant argues that under the Longshore Harbor Workers’ Compensation Act a claimant need only prove that the employment was a “contributing” factor in the injury for which compensation is claimed, whereas, cases decided under the Connecticut Workers’ Compensation Act require that the employment must be a “substantial” factor in the chain of causation.

The respondent notes the trial commissioner found that a different, higher, burden of proof exists under our Act, but, nonetheless, the commissioner proceeded to apply the principles of collateral estoppel and concluded the decedent’s employment was a substantial factor in his death. See Findings, ¶¶ 27, F, and I. The respondent argues that the commissioner’s finding that the Longshore Harbor Workers’ Compensation Act has a lower threshold for causation is correct and thus, the trial commissioner should have permitted the respondent an opportunity to defend the issue of the decedent’s death and whether his employment was a “substantial factor” in the chain of causation. We disagree and affirm the trier’s decision.

In ¶¶ H-I of the May 6, 2005 Finding and Award the trial commissioner noted the ALJ’s crediting of Dr. Bigos’ opinion and the trier specifically found:

The Administrative Law Judge, specifically, credited the opinion of Dr. Bigos that the claimant’s asbestos exposure resulted in his restrictive lung impairment, and the claimant’s exposure to industrial irritants and smoking contributed to his obstructive lung disease, and this lung disease was a significant factor causing the claimant’s myocardial infarction and death which satisfied the standard applicable to the Connecticut State Workers’ Compensation proceeding. (emphasis ours)
While the standard the Administrative Law Judge utilized was a more relaxed standard, the evidence which supports the June 9, 2003 decision and which was found to be the more persuasive evidence, also satisfied the standard applied in the Connecticut State Workers’ Compensation proceedings, and accordingly, the issue of causation or compensability was fully and fairly litigated in the federal action pursuant to the Longshore and Harbor Workers’ Compensation Act.

Our resolution of this issue is controlled by our Supreme Court’s opinion in Lafayette v. General Dynamics/Electric Boat, 255 Conn. 762 (2001) as well as this tribunal’s opinion in Levarge v. Electric Boat Corporation, 4884 CRB-8-04-11 (November 30, 2005), AC 27212 (filed December 19, 2005). In Lafayette, the Supreme Court was asked to consider whether the doctrine of collateral estoppel may bar the adjudication of the issue of causation under the Workers’ Compensation Act when that issue was previously decided in a judgment rendered pursuant to the federal Longshore and Harbor Workers’ Compensation Act. Based on the factual and procedural history in Lafayette, the court ruled the doctrine of collateral estoppel applied. However, the court did not review an issue raised at oral argument by the appellant, i.e., whether the doctrine of collateral estoppel should not apply because the administrative judge in the federal Longshore Harbor Workers’ Compensation Act action applied a more relaxed standard of causation than is applicable under the Workers’ Compensation Act. The court declined to consider this issue on the basis that it was raised for the first time at oral argument and not properly briefed.

This issue, which the Lafayette court declined to consider, is the very issue raised by the respondent here. The respondent contends the difference between “substantial” factor and “contributing” factor is such the doctrine should not be applied.

The fundamental principles underlying the doctrine of collateral estoppel are well established. The common-law doctrine of collateral estoppel, or issue preclusion, embodies a judicial policy in favor of judicial economy, the stability of former judgments and finality. . . . Collateral estoppel means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. . . . Issue preclusion arises when an issue is actually litigated and determined by a valid and final judgment, and that determination is essential to the judgment . . . . Thus, the issue must have been fully and fairly litigated in the first action . . . . Collateral estoppel express[es] no more than the fundamental principle that once a matter has been fully and fairly litigated, and finally decided, it comes to rest.
An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for a determination, and in fact determined . . . . An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered . . . . If an issue has been determined, but the judgment is not dependent upon the determination of the issue, the parties may relitigate the issue in a subsequent action. (Citations omitted; emphasis in original; internal quotation marks omitted.) Bishop v. Zoning Board of Appeals, 92 Conn. App. 600, 605-606 (2005), cert. denied, 277 Conn. 906 (2006).

Heussner v. Day, Berry and Howard, 94 Conn. App. 569, 573 (2006).

All of the underlying prerequisites for applying the collateral estoppel doctrine appear to be present. The only question is if the Longshore Harbor Workers’ Compensation Act’s less stringent standard for proving causation should permit the respondent an opportunity to relitigate.

In the instant matter, the issue of causation was a matter to be decided by the trial commissioner. The trial commissioner recognized under the Longshore Harbor Workers’ Compensation Act once a claimant has made a prima facie case a legal presumption of compensability occurs. This legal presumption is referred to as the § 20(a) presumption. The respondent is then given an opportunity to present substantial evidence that the injury did not arise out of and in the course of employment. Once the employer presents substantial evidence that the injury did not arise out of and in the course of employment, the presumption of compensability drops out.

In the instant matter, as in Lafayette, the ALJ who heard the underlying federal Longshore claim, concluded that the employer met its burden in producing substantial evidence that the injury did not arise out of and in the course of employment and thus, the § 20(a) presumption was not applicable. The ALJ then had to determine if the decedent’s employment was a contributing factor in the cause of his death. In his determination that the decedent’s death was proximately caused by his employment the ALJ relied, in part, on the expert opinion of Dr. Bigos. As we noted above, Dr. Bigos’ opinion was “claimant’s exposure to industrial irritants and smoking contributed to his obstructive lung disease, and this lung disease was a significant factor causing the claimant’s myocardial infarction and death.” The trial commissioner found that Dr. Bigos’ opinion met the legal standard requiring that the decedent’s employment be a “substantial factor” in his death. We agree.

In Sager v. GAB Business Service, 5 Conn. Workers’ Comp. Rev. Op. 12, 430 CRD-3-85 (March 23, 1988) this tribunal was asked to determine whether a medical expert’s opinion stating that a claimant’s employment was an “important” factor in the causation chain leading to the claimant’s heart attack was the legal equivalent of stating that the employment was a “substantial” factor. The Sager panel stated:

Black’s Law Dictionary defines substantial as “of real worth and importance; of considerable value; valuable. Belonging to substance; actually existing; real; not seeming or imaginary; not illusive; solid; true; veritable. . . .,” Black’s Law Dictionary 1280 (5th ed. 1979) (emphasis added). We conclude “important” to be the legal equivalent of “substantial” in a proximate cause analysis.

We note that the word “significant” is defined, in part, as “momentous, important.” Merriam-Webster’s II New College Dictionary (1995) p. 1067. See also, Montoya v. Montoya, 91 Conn. App. 407,440-41 (2005). Therefore, we conclude that Dr. Bigos’ opinion provides support for the conclusion that the decedent’s employment was a “substantial” factor in the causal chain resulting in his death. Duval v. O-Z Gedney, 4440 CRB-5-01-9 (August 12, 2002).

We therefore affirm the May 6, 2005 Finding and Award of the Commissioner acting for the Second District.

Commissioners Michelle D. Truglia and Ernie R. Walker concur.

1 We note that oral argument was postponed during the pendency of these proceedings. BACK TO TEXT

2 James L. Birnie (deceased) v. Electric Boat Corp., Case No. 2002-LHC-1011, OWCP No. 1-153604 (June 10, 2003) aff’d, Jean D. Birnie (widow) v. Electric Boat Corp., BRB 03-0668 (June 22, 2004). BACK TO TEXT

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Page last revised: May 19, 2006

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