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

CASE NO. 4976 CRB-2-05-7

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JULY 26, 2006

LILLIAN ROBERT, Dependent Widow of CLARENCE B. ROBERT, Deceased

CLAIMANT-APPELLEE

v.

ELECTRIC BOAT CORPORATION

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLANT

and

TRAVELERS PROPERTY & CASUALTY

INSURER

RESPONDENTS-APPELLANTS

and

ACE, USA

INSURER

RESPONDENTS-APPELLANTS

and

LIBERTY MUTUAL INSURANCE GROUP

INSURER

RESPONDENTS-APPELLEES

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 Peter Quay, Esq., Murphy and Beane, One Union Plaza, P.O. Box 590, New London, CT 06320-0590.

The respondent employer and the insurers Travelers Property & Casualty and ACE, USA were represented by Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

The respondent employer and Liberty Mutual Insurance Group were not represented at oral argument. Notice sent to Marian Yun, Esq., Law Offices of Rosenbaum & Vollono, 655 Winding Brook Drive, Glastonbury, CT 06033.

These Petitions for Review from the July 11, 2005 Ruling re: Collateral Estoppel by the Commissioner acting for the Eighth District were heard February 24, 2006 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Nancy E. Salerno and Ernie R. Walker.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondent Electric Boat Corporation, in its capacity as a self-insured employer, and its insurers Travelers Property & Casualty and ACE, USA1 have petitioned for review from the July 11, 2005 Ruling re: Collateral Estoppel of the Commissioner acting for the Eighth District. The insurers challenge the trier’s finding that they were in privity with the self-insured employer with regard to prior proceedings under the Longshore and Harbor Workers’ Compensation Act (LHWCA), while both the insurers and the self-insured employer object to the trier’s conclusion that the collateral estoppel doctrine applies to this case despite differences in the standards of proof within the federal and state compensation statutes. We find no error, and affirm the trial commissioner’s decision.

This case comes before us following several relevant administrative decisions. On February 13, 2001, a federal Administrative Law Judge awarded death benefits under the LHWCA to the claimant, Lillian E. Robert, the widow of the decedent Clarence B. Robert. In the process of reaching his decision, the ALJ reviewed medical evidence offered by both the claimant and the decedent’s employer. The ALJ first concluded that the statutory presumption of causation in 33 U.S.C. § 920(a) had been successfully rebutted by the employer via the introduction of specific and comprehensive medical evidence that the decedent’s asbestos exposure did not cause his colorectal cancer. Thus, the presumption dropped out of the case entirely, leaving the ALJ to weigh all of the evidence in the record and compare its credibility. See Lafayette v. General Dynamics Corp., 255 Conn. 762, 780 (2001)(employer’s rebuttal of § 920(a) presumption shifts burden of proof to claimant on issue of compensability, which is the same burden that the claimant bears in state workers’ compensation proceedings).

The ALJ then found that the claimant’s medical evidence was the more persuasive, and held that 30-plus years of asbestos exposure at the decedent’s workplace contributed to his development of colorectal cancer, thereby establishing a compensable injury. The ALJ specifically accepted the “well-reasoned and well-documented” opinion of Dr. Kern, who stated that the decedent’s many years of asbestos exposure “contributed, in significant part, to his colorectal cancer, the disease that caused his death.” Decision and Order, p. 14, citing June 28, 2000 Deposition of Dr. Kern, pp. 39-48. The trier also noted that the decedent and his employer had previously settled his claim by stipulating that his colorectal cancer and lung disease were compensable, and that said stipulations were still binding on the parties. Claimant’s Exhibit G.

After succeeding on her federal claim, the claimant then sought benefits from the self-insured employer pursuant to our state Workers’ Compensation Act, intending to invoke the collateral estoppel doctrine to bar the employer from contesting causation. The employer then attempted to bring into the action workers’ compensation insurers who had been on the risk during the long period of the decedent’s exposure. The claimant objected, seeking to limit the initial proceedings to herself and the self-insured employer. “If the Commissioner rules that collateral estoppel applies, then an award should be entered against the § 31-299b entity (the self-insured employer), who may then seek apportionment against the earlier carriers.” Claimant’s May 8, 2003 Brief, p. 5. Upon considering the parties’ arguments, the trial commissioner disagreed with the claimant’s position, and ruled that the prior insurers who stood to share liability under § 31-299b C.G.S. should be allowed to appear and participate in formal hearings concerning the issue of compensability. See June 30, 2003 Order Re: Sec. 31-299(b).

The claimant appealed that ruling to this board, whereupon insurers of Electric Boat joined the self-insured respondent in arguing that the trier’s decision should be affirmed. Following oral argument, this board issued a decision (1) declining the claimant’s request to reserve this case to the Appellate Court under § 31-324, and (2) holding that the respondent insurers were entitled to a hearing on the issue of whether collateral estoppel should be invoked against them based upon the ALJ’s holding. Robert v. General Dynamics Corp./Electric Boat Division, 4691 CRB-2-03-7 (June 14, 2004). Relying on Lafayette, supra, we explained that LHWCA determinations that a workplace injury has arisen out of and in the course of employment cannot be relitigated in this forum under the doctrine of collateral estoppel. We did not address the issue of the different burdens of proof that exist under the two compensation statutes.

Our discussion then turned to the doctrine itself, explaining that “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 on a different claim . . . [and] may be applied to the same parties or those in privity with the parties in a different claim.” Robert, supra (internal quotations and citations omitted). We then stated that the insurers were entitled to a hearing at which they could contest the applicability of collateral estoppel to the ALJ’s decision. They would also have the opportunity to challenge the existence of privity between them and the self-insured employer in the LHWCA action, and to debate whether their interests in the LHWCA action were sufficiently represented. We added that our holding “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. . . . [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.” Id. The trier’s order was thus affirmed with that modification.

At the subsequent proceedings, the trial commissioner made the following relevant findings of fact. The self-insured Electric Boat was the § 31-299b carrier in the instant claim, while the respondents Liberty Mutual and ACE, USA were prior workers’ compensation insurers on the risk. (The factual findings did not mention Travelers, aside from the case caption; see n.1, supra.) At the LHWCA hearing, the decedent had sought benefits for occupational diseases due to workplace asbestos exposure, which claim was resolved by way of stipulated award. The decedent died of colon cancer on December 23, 1997. A second hearing was held under the LHWCA in 2000, where the claimant, the decedent’s widow, sought benefits. At issue was the causal relationship between the decedent’s asbestos exposure and death. The ALJ issued a decision awarding benefits, in which he reviewed, considered and weighed the decedent’s deposition regarding asbestos exposure, and the medical records and conflicting expert opinions regarding the causal relationship between said exposure and the decedent’s colorectal cancer.

The claimant argued that the doctrine of collateral estoppel was applicable, making the LHWCA decision binding on the respondent insurers because they are in privity with the respondent Electric Boat on the issue of causation. The respondents asserted that there is no such privity because they were not a party to the earlier proceedings, because the chapter 568 issue differs from the issue previously litigated before the ALJ, and because the standard of proof for causation under the LHWCA is much less stringent than the standard under chapter 568. The trial commissioner concluded that such privity existed. He also stated, “while the standard of proof on the issue of causation/compensability is not as stringent as the burden of proof under the State Act, Judge DiNardi weighed all the evidence before him in that contested proceeding and followed that analysis as set forth in the Lafayette decision in determining that the decedent’s injury arose out of and in the course of his employment.” Findings, ¶ 8. The trier thus applied the collateral estoppel doctrine, precluding the respondents from relitigating the issue of causation. He then ordered the insurers to determine their respective contribution percentages under § 31-299b and to reimburse the employer accordingly. The instant appeals were filed from that decision.

At this stage of the proceedings, the self-insured employer has been found liable for the claimant’s workers’ compensation benefits based upon the applicability of the collateral estoppel doctrine, despite differences between the LHWCA and chapter 568 burdens of proof. In Levarge v. Electric Boat Corp., 4884 CRB-8-04-11 (November 30, 2005), and Birnie v. Electric Boat Corp., 4947 CRB-2-05-5 (May 15, 2006), this board declined to hold that these differences in the causal standard precluded the application of collateral estoppel. In both of those cases, the medical opinions upon which the ALJ relied in determining compensability were stated with a reasonable degree of probability, and they each cited asbestos exposure as playing a significant role in the development of the respective workers’ ultimately fatal health conditions. We also explained in Birnie that the terms “substantial factor,” “significant factor” and “important factor” all connote that the factor in question plays a substantial role in the causal chain.

In this case, the ALJ relied primarily on the opinion of Dr. Kern, who explained his interpretation of numerous studies that addressed the connection between asbestos exposure and colorectal cancer. Dr. Kern expressed his belief that the methodology of the “cohort” studies that demonstrated a causal connection was stronger than the methodology of “case control” studies that had concluded there was no evidence of a relationship. Claimant’s Exhibit M, pp. 20-22. He then expressed his own opinion that the most reliable known barometer of a causal relationship between colorectal cancer and asbestos exposure was based on a correlative relationship that exists between an increased risk of lung cancer and an increased risk of colorectal cancer. Id., 19-20, 22. Thus, if there has been sufficient asbestos exposure of a type intense enough to increase the risk of lung cancer, one can infer an increased risk of colorectal cancer as well. Id., 22.

Dr. Kern then stated that this decedent’s demise was caused by metastatic colorectal cancer, and that there were asbestos-related changes in his lungs that produced at minimum pleural disease, with an additional possibility that he had asbestosis (though the absence of a high-resolution CT scan left its existence or absence unverifiable). Although the pleural plaques alone did not indicate enough asbestos exposure to show that the decedent had been at risk for lung cancer, his occupational history demonstrated such a quantity of asbestos exposure. Id., pp. 24-26. Dr. Kern concluded that, within reasonable medical certainty, the decedent’s asbestos exposure substantially increased his risk of developing colorectal cancer. Id., 26. This increased risk was about 50 percent, which Dr. Kern described as important, as it has a dramatic public health impact when multiplied by the number of people at risk. Id., 27. This was the medical report upon which the ALJ relied.

Following our decisions in Levarge and Birnie, we hold that this evidence was sufficient to establish that the decedent’s asbestos exposure was a substantial contributing factor in his development of colorectal cancer. The ALJ accepted this evidence and gave it greater weight than that offered by the employer, concluding that it contributed to the development of the disease. The ALJ’s acknowledgment of an agreement between the decedent and the employer that stipulated his lung disease and colorectal cancer were work-related injuries is a factor we have considered here on review, but it does not appear to have impacted the ALJ’s separate and independent assessment of the medical evidence as the primary basis for his findings. Thus, this issue has been litigated in the LHWCA proceedings, and the self-insured employer that was therein held liable is also required to accept liability under the Connecticut Workers’ Compensation Act.

The Act, however, provides a statutory avenue for relief to the self-insured employer who was on the risk at the time of the claimant’s last exposure to asbestos. As we stated in our previous Robert opinion, the self-insured employer may attempt to use § 31-299b to obtain contribution against those parties for proportional shares of their liability. Under § 31-299b, each insurer becomes liable for its respective percentage of responsibility for the period of the decedent’s exposure. However, as we also stated in our earlier opinion, § 31-299b protects the claimant from having to pursue her case against each of the insurers separately. Now that she has established an entitlement to benefits, she need not prove liability against any additional parties.

As a means of pursuing contribution against insurers who were also on the risk during the period of the decedent’s exposure, Electric Boat sought to assert that it was in privity with the insurers for purposes of the LHWCA action. Privity is a difficult concept to define precisely, but it exists to ensure that the interests of the party against whom collateral estoppel or res judicata is being asserted have been adequately represented because of privity with a party who was present at an earlier proceeding. Mazziotti v. Allstate Insurance Company, 240 Conn. 799, 813 (1997). The key consideration is the sharing of the same legal right by the parties allegedly in privity. To determine whether privity exists, a court must examine the functional relationships of the parties, along with the opportunity and motivation that existed to litigate the issue in the earlier proceeding. Id., 814-16.

The privity analysis undertaken by this board in Levarge is directly on point here. We stated that the insurers in that case (ACE USA and Travelers) shared the same legal right as the self-insured Electric Boat during the LHWCA 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.” Levarge, supra. We also noted in Levarge that the substance of the cause of action in both the LHWCA and chapter 568 proceedings is a statutorily-created substitute for a tort action that allows an individual to claim disability benefits following an injury arising out of and in the course of employment. “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.” Id.

The appellant insurers argue that the rights of insurers in this forum substantially differ from the right to defend a claim in the federal forum, due to the different standards of proof and the opportunity a respondent has to present evidence to counteract the claimant’s opinion in the state forum. We have already addressed these arguments in the context of deciding that the collateral estoppel doctrine precluded the respondent Electric Boat from relitigating the issue of causation in this forum. Electric Boat had plenty of incentive to offer evidence in opposition to the claims before the ALJ, and in fact offered a great deal of medical evidence in an ultimately unsuccessful attempt to persuade the factfinder that there was insufficient proof of a causal connection between asbestos exposure and colorectal cancer. The insurers involved in this case are here because they contracted with Electric Boat to insure that same risk for certain periods of time. The interests of the insurers who were on the risk when the employer was not self-insured are functionally identical to the employer’s risk as a self-insured, and were adequately represented in the LHWCA proceedings. Therefore, we conclude that privity exists among the respondent insurers Travelers and ACE, USA, and the respondent self-insured Electric Boat.

The trial commissioner’s decision is accordingly affirmed.

Commissioners Nancy E. Salerno and Ernie R. Walker concur.

1 There is ambiguity in the record as to which insurers participated in prior proceedings. However, at the March 27, 2003 formal hearing, counsel for the respondent insurers declared that he was present on behalf of Electric Boat as insured by both Travelers Property & Casualty and ACE, USA. The latter was not on notice, but agreed to waive a defect in notice so as to participate in the proceedings. Transcript, p. 1. The petition for review that said counsel filed from the trial commissioner’s decision also refers to both ACE, USA and Travelers as the appellants. We therefore adopt that description of the respondent insurers for purposes of this decision. BACK TO TEXT

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