State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Stevens v. Raymark Industries, Inc. et al.

CASE NO. 5215 CRB-4-07-4

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 26, 2008

PAMELA STEVENS, Dependent widow of JAMES O. STEVENS, Deceased

CLAIMANT-APPELLEE

v.

RAYMARK INDUSTRIES, INC.,

EMPLOYER

and

ZURICH NORTH AMERICA, et al

INSURER

RESPONDENTS-APPELLANTS

and

SECOND INJURY FUND

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 respondents Raymark Industries, Inc., and Zurich North America were represented by Brian L. Smith, Esq., D’Attelo, Shields, La Bella & Smith, 500 Enterprise Drive, Suite 4B, Rocky Hill, CT 06067.

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

The respondents Mohegan Auto Parts and Connecticut Insurance Guaranty Association were represented by Michael Finn, Esq., and Matthew Necci, Esq., Montstream & May, LLP, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.

This Petition for Review from the March 14, 2007 Finding and Award of the Commissioner acting for the Fourth District was heard October 19, 2007 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Amado J. Vargas and Scott A. Barton.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. This appeal concerns a claim for § 31-306 C.G.S. benefits sought by the widow of a former employee of Raymark Industries. The decedent, James Stevens, had been awarded benefits in 1989 for a compensable injury he suffered while in Raymark’s employ. Mr. Stevens died in 2000 and his widow pursued the present action. The trial commissioner awarded her benefits finding that the claimant’s employment (where he had been exposed to asbestos) was a substantial factor in the illness that led to the claimant’s death. The commissioner found the respondent’s insurance carrier, Zurich North America (“Zurich”), responsible for this award, and determined neither a subsequent employer nor the Second Injury Fund (the “Fund”) should be held responsible for the § 31-306 C.G.S. claim. The commissioner denied the Fund’s motion for reimbursement from Zurich for the amount paid earlier to the decedent for his earlier claim. Both Zurich and the Fund have appealed.1 We uphold the trial commissioner’s Finding and Award on the merits of the claimant’s case. We remand this matter for additional hearings on the issue of whether the Fund is barred from seeking reimbursement from Zurich for funds paid the decedent.

Following a formal hearing held on February 10, 2006 and April 12, 2006, which closed upon the submission of briefs on November 30, 2006, the trial commissioner found the following facts in his Finding and Award of March 14, 2007. The commissioner took notice of the circumstances of the decedent’s original claim and the respondent’s subsequent bankruptcy. Findings, ¶¶ 1-11. The trial commissioner found that the decedent died on April 15, 2000 and the death certificate listed ventricular arrhythmia, myocardial infarction and coronary artery disease as the immediate causes of death. It also listed, “Other Significant Conditions: Conditions Contributing to Death But Not Related to Cause:” as asbestos and nicotine use. Findings, ¶¶ 12-13. Prior to his death the decedent was examined by his treating physician on March 26, 1999,2 and his physician diagnosed “obstructive airways disease with interstitial fibrotic change and mild clinical deterioration,” An April 12, 1999 CT scan of the claimant noted “end stage chronic interstitial fibrosis.” Findings, ¶¶ 14-15.

The claimant’s spouse Pamela Stevens was married to the decedent at the time of his death. She filed her Form 30C on May 10, 2000 seeking funeral expenses and dependency benefits. She remarried on June 18, 2004. Findings, ¶¶ 16-18.

The trial commissioner noted that after claimant left his employment at Raymark in 1979 the he worked at Mohegan Auto Parts. He also noted that no Form 30C had ever been filed against Mohegan.

Based on those subordinate facts the trial commissioner took administrative notice of the March 14, 1989 Finding and Award for the decedent; wherein he was awarded permanent partial disability benefits due to his asbestos exposure at Raymark. The commissioner noted that Raymark was the only participant in that hearing and the commissioner found the decedent’s last exposure to asbestos was when he worked for Raymark in 1979. He further found that the Fund had paid a total of $60,494.15 to the decedent as a result of Raymark’s bankruptcy and failure to pay the 1989 award. While the trial commissioner found that Raymark had insurance coverage through Zurich for the decedent’s claim, he denied the Fund’s motion for reimbursement for the funds advanced due to the precedent in Stickney v. Sunlight Construction, 248 Conn. 754 (1999).

The trial commissioner did award survivor’s benefits to the dependent widow as he found and concluded that the claimant’s spouse sustained her burden of proof that the claimant’s asbestos related pulmonary disease was a significant factor in the cause of his death. He determined that Mohegan had no responsibility for this claim; and thus determined Zurich was solely responsible for the awarded survivor’s benefits.

Both Zurich and the Fund appealed from this award. Zurich appealed on the basis that the trial commissioner improperly determined the claimant’s spouse had met her burden of proof that the decedent’s death was caused by his exposure to asbestos. Zurich also challenged the finding that they were a responsible insurer, claiming that it was the “law of the case” that Raymark was self-insured. They also challenge the commissioner’s findings that Mohegan was not responsible for the award, claiming the evidence demonstrated the claimant was exposed to asbestos subsequent to 1979. The Fund appealed the denial of their motion for reimbursement, arguing that Stickney, supra, was inapplicable to this case.

We note that neither appellant has filed a Motion to Correct in this matter. As a result, pursuant to Corcoran v. Amgraph Packaging, Inc., 4819 CRB-2-04-6, 4948 CRB-2-05-5 (July 26, 2006) and Crochiere v. Board of Education, 227 Conn. 333, 347 (1993), we must accept the validity of the facts found by the trial commissioner, and that this board is limited to reviewing how the commissioner applied the law. See Admin. Reg. § 31-301-4.

Even had Zurich filed a Motion to Correct, we believe the trial commissioner had a sound basis for his award of survivor benefits in the instant matter. We do not share the appellant’s opinion that the basis of the commissioner’s decision (a death certificate and reports from the treating physician) is akin to the evidence that the Appellate Court deemed inadequate in DiNuzzo v. Dan Perkins Chevrolet Geo, 99 Conn. App. 336 (2007). In DiNuzzo, supra, the key witness’s testimony was deemed “grounded in speculation or conjecture” when it was apparent that witness failed to consider such relevant issues such as the decedent’s prescribed medication. As a result, the Appellate Court determined “it was not possible to determine with any reasonable degree of probability the cause of the decedent’s death given the factual gaps in the record.” Id., 344-346.

We find the evidence presented was definitive in nature. The death certificate clearly stated that asbestosis was a “significant condition” “contributing to death.” We pointed out in Voronuk v. Electric Boat Corporation, 5167 CRB-8-06-12 (January 17, 2008) that “significant” is a synonym for “substantial,” citing McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104 (1987). We also note that the death certificate is an official state document. In Samaoya v. William Gallagher, 4951 CRB-7-05-6 (April 26, 2006), aff’d, 102 Conn. App. 670 (2007), we pointed out a trial commissioner may place greater credence on official records than testimony from witnesses challenging such documents. The test in Dixon v. United Illuminating Co., 57 Conn. App. 51 (2000) is not whether a work related condition is the sole cause of injury, it is the claimant’s burden to prove it is among the “substantial contributing factors.” Id., n7. The trial commissioner had probative evidence that he chose to rely on that clearly stated asbestosis significantly contributed to the decedent’s death.

We also note that the trial commissioner specifically acknowledged a radiology report which stated the claimant suffered from “end stage chronic interstitial fibrosis.” Claimant’s Exhibit A, pp. 5-6. The report from Lawrence and Memorial Hospital’s Emergency Department pronouncing the claimant dead noted specifically “[t]here is no known history of cardiac disease. . . .” Claimant’s Exhibit A, p. 21. “As with any discretionary action of the trial court, appellate review requires every reasonable presumption in favor of the action, and the ultimate issue for us is whether the trial court could have reasonably concluded as it did.” Daniels v. Alander, 268 Conn. 320, 330 (2004). We note that the respondents acknowledge that the underlying illness of asbestosis was a compensable injury. The claimant presented evidence from which the trial commissioner reasonably could have determined asbestosis was a substantial contributing factor in the decedent’s death and “it is the trial commissioner’s function to assess the weight and credibility of medical reports and testimony. . . .” O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 818 (1999).

We also reject the appellant’s argument that the trial commissioner erred by deciding not to find Mohegan Auto Parts a responsible party. From a jurisdictional point of view, we note that a Form 30C was never filed against Mohegan. The lack of a claim for benefits can deprive the Commission of subject matter jurisdiction. See Chambers v. General Dynamics Corp./Electric Boat Corporation, 4952 CRB-8-05-6 (June 7, 2006), aff’d, 283 Conn. 840 (2007). We also reject the argument that pursuant to statute, a hearing on apportionment was required. The statute in question is § 31-299b C.G.S. which states in part, “[i]f an employee suffers an injury or disease for which compensation is found by the commissioner to be payable according to the provisions of this chapter, 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 situation herein is that the last employer who employed the claimant prior to the filing of his original claim was Raymark. The statute also is limited in application to “determine whether prior employers, or their insurers, are liable for a portion of such compensation and the extent of their liability.” There is no provision in this statute where a respondent can reach prospectively to seek apportionment from subsequent employers; rather than prior employers. We must presume the General Assembly intended this difference to exist. See § 1-2z C.G.S. and Verrinder v. Matthew’s Tru Colors Painting & Restoration, 4936 CRB-4-05-4 (December 6, 2006), appeal dismissed, A.C. 28367 (July 25, 2007), “[t]he absence of a term from the language of a statute can be telling. . . .”

This discussion as to the mechanics of the apportionment statute is a somewhat academic exercise as applied to the present case. The trial commissioner was presented with conflicting evidence as to whether the decedent was exposed to asbestos while employed at Mohegan. April 12, 2006 Transcript, pp. 11-21. The claimant presented evidence that the decedent was not exposed to any appreciable extent. We may infer the trial commissioner credited this evidence and we cannot second guess a trial commissioner’s determination of the evidence presented before him. See O’Reilly, supra. Only a party who was on the risk at a time of “substantial exposure” can assert rights under § 31-299b C.G.S. Konovaluk v. Graphite Die Mold, Inc., 4437 CRB-3-01-9 (August 8, 2002). The trial commissioner determined on a factual basis that Mohegan could not be a responsible party in this case.3

Zurich also argues that the bankruptcy stay against Raymark limits the recovery of the claimant to the Second Injury Fund. We believe that there is no statutory basis under chapter 568 for a solvent insurer to utilize the insolvency of its insured to shield itself from claims, and hence, we find this argument unmeritorious.

We also reject the argument presented that a conclusive “law of the case” exists that Raymark was self-insured for this risk, thus absolving Zurich of liability. Such a determination presumes that this question was previously litigated by a prior tribunal. Our examination of the record indicates that all parties proceeded under the assumption that Raymark’s employees were all covered by self-insurance. Zurich has conceded further investigation proved it did insure certain Raymark employees. The Fund did not become involved with this claim until after the bankruptcy of Raymark, and were not parties to the 1989 Finding and Award. Claimant’s Exhibit E. Therefore, there was no prior finding of fact on this issue and hence, no law of the case. See Waterbury v. Waterbury, 85 Conn. App. 480 (2004), “[w]here a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case. Id., 489.

This doctrine is inapplicable in the absence of an identifiable interlocutory ruling. In addition, Zurich appeared and fully litigated the issue of survivor’s benefits. Therefore we find no error in the trial commissioner determining based on the evidence presented that Zurich was the responsible party for the § 31-306 C.G.S. claim.4

We do find error on the trial commissioner’s part on the issue of whether the Fund can seek reimbursement from Zurich for the 1989 award to the decedent. The trial commissioner ruled such a reimbursement was barred by the precedent in Stickney v. Sunlight Construction, Inc., 248 Conn. 754 (1999). We do not believe this precedent to be applicable to claims by the Second Injury Fund; hence, we remand this issue for further proceedings.

Our reasoning for not applying the precedent in Stickney is simple: that case had nothing to do with the Second Injury Fund. Stickney was a dispute between two private sector insurance carriers and the Supreme Court held “none of the statutory provisions raised by Aetna provides the commissioner with jurisdiction to determine this coverage question. Such a question sounds in contract law, . . . .” Id., 768. There is a statutory provision which governs this dispute, however. Section 31-355(c) C.G.S provides that “[t]he employer and the insurer, if any, shall be liable to the state for any payments made out of the fund in accordance with this section or which the Treasurer has by award become obligated to make from the fund, together with cost of attorneys’ fees as fixed by the court.” This statute provides a clear statutory right for the Fund to seek reimbursement for funds it previously advanced against a claimant’s award. We conclude the precedent in Matey v. Estate of Dember, 256 Conn. 456, 487 (2001) which construes § 31-355 (c) C.G.S. governs this situation “we further note that § 31-355(c) provides that an employer and its insurer are liable to reimburse the fund for any payments made to an employee” Id.5

As a result, we believe the trial commissioner improperly applied the law when he determined Stickney barred an order of reimbursement to the Fund for their payment of the 1989 award. We vacate the dismissal of this claim and remand the issue for additional hearings.

We are not unmindful, however, of Zurich’s argument that since the determination of liability for the decedent’s injuries occurred nearly two decades ago that there are issues of equity in seeking reimbursement at this late date. In Kalinowski v. Meriden, 5028 CRB-8-05-11 (January 24, 2007), we discussed the jurisprudential foundation of this concept.

“The principle that the passage of time can preclude relief has deep roots in our law.” City of Sherill v. Oneida Indian Nation of N.Y., 544 U.S. 197, 217 (2005). The U.S. Supreme Court recently provided guidance as to when a claim should be barred by laches in Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 379 (2004). Justice Kennedy held in the majority opinion, ‘[l]aches might bar a petition for a writ of mandamus if the petitioner ‘slept upon his rights . . . and especially if the delay has been prejudicial to the [other party], or to the rights of other persons’ Chapman v. County of Douglas, 107 U.S. 348, 355 (1883).” Id.

Since a determination as to whether a party has been prejudiced due to an opposing party’s lapse of time is inherently a fact driven exercise Tinaco Plaza, LLC v. Freebob’s, Inc., 74 Conn. App. 760, 776 (2003); we defer to the factual findings of the trial commissioner after a new evidentiary hearing to determine whether the Fund’s claim for reimbursement can overcome the equitable defenses advanced by Zurich.

Therefore we affirm the trial commissioner’s Finding and Award except as it applies to the issue of reimbursement by Zurich of the amounts advanced under the 1989 award back to the Fund. We remand that issue for further hearings.

Commissioners Amado J. Vargas and Scott A. Barton concur in this opinion.

1 The respondent Raymark Industries defended the decedent’s original claim as a self-insured employer. When Raymark declared bankruptcy in 1992 an order entered against the Fund and the Fund assumed the statutory obligation to pay the claimant’s award. The Fund now advances the argument in this case and a number of similar cases, see Stec v. Raymark Industries, Inc., 5156 CRB-4-06-11 (November 21, 2007) and Dechio v. Raymark Industries, Inc., 5155 CRB-4-06-11 (November 28, 2007) that Raymark had insurance coverage for its white collar workforce at the time of the original claims. BACK TO TEXT

2 The Claimant’s Exhibit A includes a medical report from Dr. Urbanetti dated March 26, 1999 and a Radiology Report dated April 12, 1999. We conclude these dates in the Finding and Award (placing these dates in 2000) are harmless scrivener’s errors, especially as the respondents did not file a Motion to Correct these inaccuracies. Hernandez v. American Truck Rental, 5083 CRB-7-06-4 (April 19, 2007) and D’Amico v. Dept. of Correction, 73 Conn. App. 718, 729 (2002)(scrivener’s errors normally should be overlooked on review), cert. denied, 262 Conn. 933 (2003). BACK TO TEXT

3 We note that Zurich’s brief cites no expert report linking the decedent’s work at Mohegan to his asbestosis. Appellant’s Brief, pp. 23-24. As a result, the precedent in DiNuzzo, supra, weighs against the appellants. BACK TO TEXT

4 There is no need for an additional hearing on compensability of the original claim or the present claim. Zurich fully participated in the hearing on the present claim and we have upheld the trial commissioner’s decision. As to the original 1989 award to the decedent; since the issues of compensability were fully litigated we do find collateral estoppel exists and the determination of compensability may be found binding on the respondents’ carrier. See Levarge v. Electric Boat Corporation, 4884 CRB-8-04-11 (November 30, 2005); and Crochiere, supra. As we discuss in greater detail, the carrier may seek to assert equitable defenses against reimbursement claims from the Second Injury Fund for the 1989 award. BACK TO TEXT

5 We also distinguish Stickney from the present case on jurisdictional grounds. We believe these circumstance are more akin to Hunnihan v. Mattatuck Mfg., Co., 243 Conn. 438 (1997). The Supreme Court found in Hunnihan that this Commission had jurisdiction over reimbursement claims made against the Connecticut Insurance Guaranty Association by virtue of § 31-355(e) C.G.S., Id., 442-447. We therefore believe we possess the same jurisdiction to consider claims made by the Fund pursuant to § 31-355(c) C.G.S.; unlike Stickney where jurisdiction for disputes between private insurers was limited to the civil courts. BACK TO TEXT

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