State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Dechio v. Raymark Industries, Inc. a/k/a Raybestos Manhattan, et al

CASE NO. 5155 CRB-4-06-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 28, 2007

LOVIE DECHIO, Dependent widow of PETER DECHIO, Deceased

CLAIMANT-APPELLEE

v.

RAYMARK INDUSTRIES, INC. a/k/a RAYBESTOS MANHATTAN, et al

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLEE

and

ZURICH NORTH AMERICA

CIGA

HARTFORD INSURANCE GROUP

GENERAL REINSURANCE CORPORATION

INSURERS

RESPONDENTS-APPELLEES

and

SECOND INJURY FUND

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by Christopher Meisenkothen, Esq., Early, Ludwick & Sweeney, 265 Church Street, 11th Floor, P.O. Box 1866, New Haven, CT 06508-1866.

The respondent Zurich North America was represented by James D. Moran, Esq., Maher & Williams, 1300 Post Road, P.O. Box 550, Fairfield, CT 06430-0550.

The respondent CIGA was represented by Joseph J. Passaretti, Jr., Esq., Montstream & May, LLP, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.

The respondent Hartford Insurance Group was represented by Lucas D. Strunk, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

The respondent Second Injury Fund was represented by Philip Schulz, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.

The respondent General Reinsurance Corporation was represented by Allan Taylor, Esq., and Eric Sussman, Esq., Day, Berry & Howard, LLP, CityPlace I, 185 Asylum Street, Hartford, CT 06103-3499.

This Petition for Review from the September 29, 2006 Finding and Award of the Commissioner acting for the Fourth District was heard May 18, 2007 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Scott A. Barton and George Waldron.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The Second Injury Fund appeals from the October 25, 2006 Order of the Commissioner acting for the Fourth District.1 In that Order the trial commissioner directed the Fund to pay all the benefits that the commissioner ordered the respondent self insured, Raymark to pay in a September 29, 2006 Finding and Award.

The procedural history of this matter begins with the June 24, 1988 Finding and Award of the Commissioner acting for the Fourth District. In that Finding and Award the commissioner determined that the decedent sustained a compensable injury due to asbestos related lung disease and as a result of that injury the decedent died on December 12, 1981. The commissioner also concluded in that June 24, 1988 Finding and Award that the decedent’s dependent spouse was entitled to benefits pursuant to § 31-306 C.G.S. However, further hearings were ordered for the purpose of determining the compensation rate. Those hearings did not proceed because Raymark went into bankruptcy. Raymark briefly emerged from bankruptcy and hearings were held on August 27, 1997 and September 24, 1997. In March 1998 Raymark went back into bankruptcy. The claimant then sought relief from the automatic stay provisions of federal bankruptcy law in order to pursue payment from the Second Injury Fund. In June 2000 the bankruptcy court granted a relief from the automatic stay.

In 2002 the Second Injury Fund was cited into the proceedings. Those proceedings formed the basis for the trial commissioner’s September 30, 2005 Finding and Award.2 In that Finding and Award the trial commissioner concluded; (1) the respondent Raymark at the time of the decedent’s death was self insured for the class of workers to which the decedent belonged, i.e., Raymark was self insured as to manufacturing and blue collar workers, (2) at the time of decedent’s death the respondent Raymark’s excess insurance carrier was the respondent General Reinsurance over which the commission lacked jurisdiction to decide questions requiring the interpretation of contract(s), and (3) the trial commissioner accepted and ratified the findings and conclusions of the June 24, 1988 Finding and Award.

In January 2006 the federal bankruptcy court permitted the claimant to proceed against Raymark as long as the claimant did not seek to collect any orders issued against Raymark. On September 29, 2006 the trial commissioner issued an order directing Raymark to pay all the benefits due the claimant pursuant to the September 30, 2005 Finding and Award.

As the September 29, 2006 order went unpaid, on October 25, 2006 the trial commissioner issued an order against the Fund for payment pursuant to § 31-355(b). On November 14, 2006, the Second Injury Fund filed this appeal. Following the filing of this appeal the claimant and the respondents Zurich-American Insurance Co., Hartford Insurance, and General Reinsurance filed motions to dismiss the Fund’s appeal on the basis that it was not filed timely.

Before reaching the merits of the Fund’s appeal we must rule on the appellee’s Motions to Dismiss. We grant the appellee’s motions to dismiss. The legal analysis which brings us to this conclusion was articulated in this tribunal’s opinion in Stec v. Raymark, 5156 CRB-4-06-11 (November 21, 2007). There, we relied on our Supreme Court’s holding in Matey v. Dember, 256 Conn. 456 (2001) as well as this tribunal’s opinion in DeLucia v. Modena, 12 Conn. Workers’ Comp. Rev. Op. 212, 1471 CRB-3-92-7 (March 15, 1994) and granted the Motion to Dismiss.

In Stec, as in the instant matter, the Fund’s appeal sought to challenge the findings and conclusions of the September 30, 2005 Finding and Award. Also as in Stec, the Fund had the opportunity to fully participate in the proceedings which resulted in that Finding and Award. As the court in Matey counseled, where the Second Injury Fund has fully participated in proceedings resulting in the commissioner’s Finding and Award a subsequent order of payment directed against the Fund did not provide the Fund with “yet another opportunity to relitigate it claims.” Id., 494. See also Stec, supra.

Litigation about whether subject matter jurisdiction exists should take into account whether the litigation is a collateral or direct attack on the judgment, whether the parties consented to the jurisdiction originally, the age of the original judgment, whether the parties had an opportunity originally to contest jurisdiction, the prevention of a miscarriage of justice, whether the subject matter is so far beyond the jurisdiction of the court as to constitute an abuse of authority, and the desirability of the finality of judgments. (Internal quotation marks omitted.)

Urban Redevelopment v. Katsetos, 86 Conn. App. 236, 242 (2004) quoting Daly v. Daly, 19 Conn. App. 65-66, 561 A.2d 951 (1989). See also Gerte v. Logistec of CT., Inc., 4820 CRB-3-04-6 (June 24, 2005), appeal dismissed for lack of final judgment, 283 Conn. 60 (2007).

There is little doubt that the original action which led to the June 24, 1988 Finding and Award was fully and fairly litigated between the respondent Raymark and the claimant. The Fund enters these proceedings as the guarantor of payment for a judgment that is decades old. We think the criteria suggested above when applied to the instant matter favor leaving the June 24, 1988 Finding and Award undisturbed. Therefore, the issue raised by the appellant as to whether the June 24, 1988 Finding and Award was invalid on grounds of subject matter jurisdiction and thus, could not be ratified by the trial commissioner in his September 29, 2006 Finding and Award, is without merit.

We therefore affirm the trial commissioner’s ratification of the June 24, 1988 Finding and Award as noted in his September 29, 2006 Finding and Award and grant the appellee’s Motions to Dismiss as to all other issues.

Commissioners Scott A. Barton and George Waldron concur.

1 We note extensions of time were granted during the pendency of this appeal. BACK TO TEXT

2 It appears that there was a scrivener’s error at one point which referenced the September 30, 2005 Finding and Award as the “October 3, 2005” Finding and Award. Although that error was corrected pursuant to the Second Injury Fund’s Motion to Correct and the trial commissioner’s granting of that request, some of the papers filed in this appeal continue to reference the September 30, 2005 Finding and Award as the “October 3, 2005” Finding and Award. We only make this comment for the purpose of clarification. BACK TO TEXT

Workers’ Compensation Commission

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