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Daley v. Schindler Elevator Corp. et al.

CASE NO. 4973 CRB-8-05-7

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 13, 2007

BERNARD C. DALEY, Deceased

SANDRA DALEY, Dependent widow

CLAIMANT-APPELLEE

v.

SCHINDLER ELEVATOR CORP.

EMPLOYER

and

CRAWFORD & CO.

INSURER

RESPONDENTS-APPELLEES

and

WESTINGHOUSE ELEVATOR

EMPLOYER

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was not represented at oral argument. Notice sent to Amy Stone, Esq., O’Brien, Shafner, Stuart, Kelly & Morris, P.C., 475 Bridge Street, P.O. Drawer 929, Groton, CT 06340.

The respondent Schindler Elevator Corp. and its insurer Crawford & Co. were represented by Terrance M. Brennan, Esq., McGann, Bartlett & Brown, LLC, 111 Founders Plaza, Suite 1201, East Hartford, CT 06108.

The respondent Westinghouse Elevator was represented by Mark Oberlatz, Esq., Murphy & Beane, One Union Plaza, P.O. Box 590, New London, CT 06320.

This Petition for Review1 from the June 30, 2005 Finding and Award of the Commissioner acting for the Eighth District was heard May 19, 2006 before a Compensation Review Board panel consisting of Commissioners Donald H. Doyle, Jr., Nancy E. Salerno and Amado J. Vargas.

OPINION

DONALD H. DOYLE, JR., COMMISSIONER. The respondent Westinghouse Elevator (Westinghouse) has petitioned for review from the June 30, 2005 Finding and Award of the Commissioner acting for the Eighth District. It argues on appeal that the trier erred by requiring Westinghouse, rather than the claimant’s most recent employer, to administer the instant asbestos exposure claim pursuant to § 31-299b C.G.S.2 We find no error, and affirm the trial commissioner’s decision.

The claimant was employed as an elevator mechanic from 1961 to 2000. His main duties involved new construction and the installation of elevators, though he also did a lot of renovation work. Claimant’s Exhibit A, Deposition, pp. 6-7. He worked for the respondent Westinghouse through 1990. Following that company’s acquisition by the respondent Schindler Elevator Corp., (Schindler), the claimant worked for Schindler until his retirement. The trial commissioner found that he was exposed to a lot of asbestos dust through the late 1970’s as a result of this work. He began having lung problems in 2003, and was diagnosed with mesothelioma.

The trier relied on the opinion of Dr. Wasserstein, the claimant’s treating physician, who opined that this condition was work-related and that it caused the claimant’s death on March 14, 2004. The trier also found that the record lacked persuasive evidence that significant asbestos exposure, if any, occurred after the late 1980’s. This finding led the trier to dismiss the claim against Schindler, and to order Westinghouse to assume liability under § 31-299b C.G.S. It was directed to pay the claimant’s estate permanency benefits for a 75% impairment of the lungs, and certain medical and mileage expenses. It was also directed to pay the claimant’s surviving spouse, Sandra Daley, funeral expenses and weekly death benefits of $850.77, along with cost-of-living adjustments.

Westinghouse has filed a petition for review from that decision. It asserts on appeal that, under § 31-299b, it is presumed that the most recent employer whom the claimant has named in his Form 30C is responsible for administering the claim. In order to avoid initial liability, that employer would have to prove there was no injurious exposure during its employment relationship with the claimant. Such a burden was allegedly not met here, as the claimant’s testimony was not specific enough to rule out asbestos exposure from 1991-2000. Schindler, meanwhile, argues that the claimant remained obliged to prove that injurious exposure occurred during that time period, but failed to do so, which required dismissal of that portion of the claim. Schindler disputes Westinghouse’s assertion that it had an affirmative duty to submit evidence contradicting the claimant’s allegation of asbestos exposure.

We begin by observing on review that the appellant did not file a Motion to Correct the findings with the trial commissioner in this case pursuant to Admin. Reg. § 31-301-4. Thus, we must accept the subordinate factual findings as accurate on appeal. Soto-Velez v. Michael’s Chrysler Plymouth, 4628 CRB-2-03-2 (February 3, 2004); Admin. Reg. § 31-301-4. The focus of our review is thereby limited to whether the trier’s legal conclusions are consistent with those facts. Corcoran v. Amgraph Packaging, Inc., 4819 CRB-2-04-6 (July 26, 2006); Admin. Reg. § 31-301-6. The appellant cites certain portions of the claimant’s testimony in its brief. Our review shows the claimant testified that he worked closely with asbestos in the 1960’s and 1970’s during new construction, when pipes, steel beams and ceilings were fireproofed (and soundproofed) by spraying them with a mixture of water and asbestos. See Deposition, p. 10. Afterward, a lot of dust would be generated during cleanup. Id., pp. 11-12. The sprayed asbestos would also spatter onto the elevator company’s equipment, which its employees had to clean. Id., p. 13. They also had to clean up asbestos they found in elevator shafts during renovations. The claimant recalled many jobs during the 1960’s where exposure to asbestos dust was extensive, including a New Haven job site where the asbestos “seemed like it was a foot deep on the floors.” Id., p. 19. After the early 1970’s, the claimant recalled no jobs at which he was exposed to asbestos spraying. Id., p. 20.

In the late 1970’s, Westinghouse began issuing safety masks with filters, which its employees donned whenever they suspected asbestos might be present. Id., p. 14. The claimant later worked at many job sites where asbestos had been removed. He strongly suspected that asbestos remained at some of them, such as the elevator shafts at Chapel Square Mall, where the dust reminded him of the asbestos dust he had encountered years earlier. Id., p. 20-21. Dr. Wasserstein described the claimant’s occupational history as having contained heavy asbestos exposure, and noted that he began wearing a protective mask in the late 1970’s. Claimant’s Exhibit R. The appellant stresses that Schindler did not present evidence to show the claimant’s work environment was asbestos-free after 1990. Separate Forms 30C name Schindler and Westinghouse as liable employers.

Section 31-299b provides that, if an employee suffers an injury or disease for which compensation is found to be payable under chapter 568, “the employer who last employed the claimant prior to the filing of the claim, or the employer’s insurer, shall be initially liable for the payment of such compensation.” The commissioner is then charged to determine “on the basis of the record of the hearing . . . whether prior employers, or their insurers, are liable for a portion of such compensation and the extent of their liability.” The initially liable employer may go on to seek reimbursement from the prior employers and insurers according to their degrees of proportional liability. The purpose of the statute is to allow employees who have been injured at work to begin receiving payments as soon as they are deemed eligible by a commissioner, without having to wait until multiple employers or insurers have decided how to apportion the financial responsibility. See 24 H.R. Proc., Pt. 12, 1981 Sess., p. 3754 (remarks of Rep. Gelsi).

This board has held § 31-299b was not intended to apply, and does not apply, to the most recent employer “when it is clear that no injurious exposure occurred during that employment.” Joslyn v. U.S. Silica Co., 16 Conn. Workers’ Comp. Rev. Op. 247, 3281 CRB-8-96-2 (June 24, 1997); see also, Konovaluk v. Graphite Die Mold, Inc., 4437 CRB-3-01-9 (August 8, 2002), n.1. In Joslyn, we said that even though the policy under § 31-299b is one of administrative convenience, the commissioner remains entitled “to take into account known facts in applying that statute,” and cannot make an award against an employer who has been “conclusively determine[d] after a formal hearing” not to be accountable for any harmful exposure. Id. Joslyn has not been overruled or superseded by a legislative act. Its result is also supported by the history of Public Act 81-155, which reveals legislative concern that liability might be imposed arbitrarily on the most recent employer “without relation to responsibility for or ability to control the injuries.” 24 S. Proc., Pt. 5, 1981 Sess., p. 1417 (remarks of Sen. Matthews). In response, Senator Skelley explained that an employer would not be responsible under § 31-299b if no exposure to the harmful agent occurred during the claimant’s tenure with that employer. Id., p. 1418. In the case of mesothelioma, for example, “We’d go back and trace where, in fact, I was exposed to asbestos, at what period and at what time. Therefore, my present employer would not be included in the comp commissioner’s decision.” Id.

The appellant contends that, in light of Joslyn, the most effective way to resolve an occupational disease claim is to require the last named employer to accept initial liability unless it proves that it clearly did not expose the claimant to injurious stimuli.3 However, § 31-299b does not create such a duty. By its terms, it applies when compensation is found to be payable “according to the provisions of [chapter 568].” Chapter 568 places the burden of proof on the claimant to prove workplace exposure to the causal agents of an illness. See Hansen v. Gordon, 221 Conn. 29 (1992). Thus, under § 31-299b, the claimant must prove that an incident of harmful exposure occurred while working for the putative “last employer” before its statutory duty to administer the claim is triggered. We contrast this with statutes which place a burden of producing evidence on the employer via a rebuttable presumption of compensability, such as § 5-145a and § 29-4a C.G.S.; see Salmeri v. Dept. of Public Safety, 70 Conn. App. 321 (2002) (discussing rebuttable presumption); or situations in which a respondent must introduce evidence to establish an affirmative defense that it has raised on its own behalf. See, e.g., St. Germaine v. Buckingham Restaurant & Pizza, Inc., 4343 CRB-8-01-1 (January 10, 2002)(respondents bear burden of proving willful and serious misconduct or intoxication under § 31-284); Mason v. Dale Construction, Inc., 4354 CRB-3-01-1 (November 7, 2001)(respondent sought to introduce evidence of intoxication).

By asserting a claim against Schindler, the claimant placed it on notice (as required by § 31-294c C.G.S.) that it faced potential liability under § 31-299b as the “initially liable” employer. A similar notice was filed against Westinghouse. Evidentiary proceedings were then held to determine, among other issues, the time frame during which the most recent injurious exposure occurred, as this question had to be resolved in order to identify the “initially liable” employer under § 31-299b. The claimant remained obligated to demonstrate to the trier’s satisfaction that he was exposed to asbestos during the course of his employment with one of those employers, and that such exposure was a substantial factor in the development of his mesothelioma. The claimant was able to do so against Westinghouse for the pre-1990 exposure, but not against Schindler for the post-1990 exposure. Thus, Schindler was not obligated to administer the instant claim, and the trial commissioner properly dismissed the claim against Schindler.

The trial commissioner’s decision is hereby affirmed. Insofar as any benefits due remained unpaid pending appeal, interest is awarded pursuant to § 31-301c(b) C.G.S.

Commissioners Nancy E. Salerno and Amado J. Vargas concur.

1 We note that a postponement as well as an extension of time was granted during the pendency of this appeal. BACK TO TEXT

2 The subsequent employer in this case is Schindler Elevator Corp., which purchased the appellant Westinghouse Elevator Co. in 1990. BACK TO TEXT

3 Though we need not answer this question here, we note that it primarily addresses a policy determination to which arguments can be offered either way. By making it necessary for the last employer to disprove harmful exposure, the initial determination of § 31-299b liability could be simplified insofar as more claims would remain with the most recent employer named in the notice of claim. However, if no harmful exposure to the causal agent of the disease actually occurred during that period of employment, that employer might limit the resources expended to defend the merits of the claim, in anticipation of eventual relief from liability once the apportionment process has taken place. Query whether this could ultimately produce increased liability for prior insurers on the risk. BACK TO TEXT

Workers’ Compensation Commission

Page last revised: March 29, 2007

Page URL: http://wcc.state.ct.us/crb/2007/4973crb.htm

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