CASE NO. 5358 CRB-2-08-6
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JUNE 16, 2009
PATRICIA LEVARGE, Dependent widow of RICHARD LEVARGE, Deceased
ELECTRIC BOAT CORPORATION
ACE USA/ST. PAUL TRAVELERS
The claimant was represented by Carolyn P. Kelly, Esq., Suisman, Shapiro, Wool, Brennan & Gray, 2 Union Plaza, Suite 200, P.O. Box 1591, New London, CT 06320.
The respondent employer Electric Boat Corporation was represented by Peter D. Quay, Esq., Murphy and Beane, One Union Plaza, P.O. Box 590, New London, CT 06320.
The respondents ACE USA/St. Paul Travelers were represented by Lucas D. Strunk, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.
This Petition for Review from the June 12, 2008 Supplemental Finding and Award of the Commissioner acting for the Eighth District was heard December 12, 2008 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Charles F. Senich and Amado J. Vargas.
JOHN A. MASTROPIETRO, CHAIRMAN. The respondents, ACE USA and Travelers in their capacity as Workers’ Compensation insurance carriers for the respondent employer, Electric Boat Corp. and the respondent-employer in its capacity as a self-insured, have appealed from the June 12, 2008 Supplemental Finding and Award of the Commissioner acting for the Eighth District. In that Supplemental Finding and Award, following a remand order by this tribunal, the trial commissioner concluded that liability be apportioned amongst the respondents as follows; ACE USA – 79.9%; Travelers – 11.3% and the self-insured Electric Boat 8.8%. Further, the trial commissioner held that the respondents were precluded from litigating the issue of causation under the principle of collateral estoppel and the Supreme court’s opinion in Lafayette v. General Dynamics Corp., 255 Conn. 762 (2001).
At this juncture a review of the proceedings in this claim is warranted. The instant matter was previously considered by this tribunal in Levarge v. General Dynamics/Electric Boat Div., 4884 CRB-8-04-11 (November 30, 2005) [hereafter Levarge I]. Following our opinion in Levarge I, the respondents ACE USA and Travelers took an appeal. That appeal was ultimately considered by our Supreme Court in Levarge v. General Dynamics Corp., 282 Conn. 386 (2007).
The factual circumstances giving rise to this claim were summarized in Levarge, id., and are as follows. The claimant is the dependent spouse of the decedent. The decedent was employed by the respondent employer from 1956 through 1992. During the course of his employment the decedent was exposed to asbestos. In 1991, the decedent had a cancerous polyp removed from a vocal cord and was diagnosed with squamous cell carcinoma. In addition to the decedent’s exposure to asbestos, the decedent had smoked an average of a pack and a half of cigarettes per day for a period of 30 years and had a family of history of laryngeal cancer. Id. Ultimately, the decedent’s cancer spread to his lungs and “on April 7, 1993, he died of respiratory arrest secondary to metastatic laryngeal cancer.” Id., at 388.
Following the decedent’s death the claimant pursued a claim for benefits under the federal Longshore Harbor Workers’ Compensation Act contending that the decedent’s exposure to asbestos during the course of his employment resulted in his death. In a February 3, 1995 decision of a federal administrative law judge, the claimant was awarded federal Longshore Harbor Workers’ Compensation benefits and the respondent self-insured was ordered to pay same. As Justice Zarella noted in Levarge, the administrative law judge’s decision did not apportion liability among the insurers and the self-insured as, “the Longshore Act holds the last employer that exposed the employee to injury responsible for compensation.” Id., at 388-89.
Following the claimant’s claim for benefits pursuant to the Longshore Harbor Workers’ Compensation Act, the claimant brought a claim for benefits under the Connecticut Workers’ Compensation Act. In her prosecution of that claim, the claimant argued that the respondents were collaterally estopped from defending the issue of compensability as the issue had already been determined by the federal administrative law judge in his February 3, 1995 decision. The claimant’s argument seeking to limit the participation of the respondents was grounded in large measure on our Supreme Court’s opinion in Lafayette, supra, and this tribunal’s application of Lafayette in Robert v. General Dynamics Corp./Electric Boat Div., 4691 CRB-2-03-7 (June 14, 2004). The trial commissioner in his October 29, 2004 Ruling Re: Motion to Limit Participation of ACE USA concluded that the respondents were collaterally estopped from asserting defenses on the issue of causation. The respondents, Travelers and ACE USA appealed the trier’s decision and as we noted above, this issue was the subject of our opinion in Levarge I. In Levarge I, supra, we affirmed the trial commissioner and held that the respondents ACE USA and Travelers were precluded from asserting a defense to causation. The respondents appealed our opinion to the Appellate Court. Ultimately, the matter was considered by our Supreme Court. The court, however, never reached the issue of the legal appropriateness of applying the collateral estoppel doctrine against the respondents ACE USA and Travelers thereby precluding their defense as to causation. The court determined it was without jurisdiction to consider the argument as our opinion in Levarge I was not a final judgment. The court concluded that as the trial commissioner had not entered an order of apportionment the causation issue was not justiciable as such a determination was not merely a ministerial act. The court then remanded the matter for the trial commissioner’s determination on the issue of the apportionment.
Subsequently the trial commissioner issued his June 12, 2008 Supplemental Finding and Award apportioning liability among the three respondents. Additionally, the trial commissioner referenced the July 6, 2004 Motion to Limit Participation of the respondent, ACE USA and held that pursuant to the Supreme Court’s opinion in Lafayette, supra, the respondents were precluded from defending the issue of causation. Further, the trial commissioner concluded that there was an identification of interests among ACE USA and Travelers and the self-insured respondent as required in Robert, supra, and thus the doctrine of collateral estoppel dictated that the trial commissioner adopt the conclusion of the federal administrative law judge under the Longshore Harbor Workers’ Compensation Act.
The respondents ACE USA and Travelers appeal from the June 12, 2008 Supplemental Finding and Award and argue that the proximate causation standard relied on by the administrative law judge in his award of federal Longshore Harbor Workers’ Compensation benefits was a more relaxed standard than that required in proving a claim arose of out of and in the course of employment under Connecticut’s Workers’ Compensation Act. Since the time of the trial commissioner’s decision in this matter, the Supreme Court issued its ruling in Birnie v. Electric Boat Corp., 288 Conn. 392 (2008). Again, Birnie, as in Levarge, supra, sought the court’s consideration of whether a federal administrative law judge’s conclusion that an employee’s injury arose out of and in the course of employment in a claim brought under the Longshore Harbor Workers’ Compensation Act precluded a respondent from contesting compensability under Connecticut’s Act.
In its opinion in Birnie, the court reviewed its standard for applying the doctrine of collateral estoppel. The court noted, “[The issue] must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment. . . .” Id., at 405. The Birnie court then reviewed the legal standards of proximate causation in a workers’ compensation claim brought under our Act and noted that the employment need not be a major factor in causing the injury for which compensation is claimed. The court traced the historical roots of the proximate causation concepts and noted that under our Workers’ Compensation Act, the employment must be a substantial factor, i.e., that the employment must contribute to the development of the injury in more than a de minimis way.
The court held that before it could review whether the principle of collateral estoppel was appropriately applied, it would need to know what causation standard was utilized by the administrative law judge. Unfortunately, the Birnie court was unable to discern whether the standard applied by the federal administrative law judge was a de minimis standard or substantial factor. As it was not clear what legal standard was applied, the Birnie court held that it was improper to preclude the respondents from defending on the issue of causation.
It seems that the court’s opinion in Birnie counsels that in order to review the legal appropriateness of the trial commissioner’s adoption of the administrative law judge’s conclusion as to compensability on collateral estoppel requires a review and de novo assessment of the standard of causation utilized in the Longshore Harbor Workers’ Compensation Act litigation. A review of the federal administrative law judge’s opinion must be undertaken to ascertain whether the contributing factor standard applied was consistent with the legal standard required under Connecticut’s Workers’ Compensation law. We therefore remand the matter for the purpose of determining the proximate cause standard applied by the federal administrative law judge.
There remains for our consideration, however, the effect of our holding on the respondent self-insured. The claimant appellee contends that as the respondent self-insured did not take an appeal from the trial commissioner’s October 29, 2004 Ruling limiting the respondents’ participation, the trial commissioner’s ruling is a final determination and his application of the collateral estoppel doctrine is not subject to review. As the claimant points out the respondent self-insured’s failure to appeal does not allow it to benefit from the appellate efforts of ACE USA/Travelers.
The case which most closely approximates the legal posture of the respondent self-insured is that which existed in Barron v. City Printing Co., 55 Conn. App. 85 (1999). In Barron, the claimant was the dependent spouse of the decedent who died as a result of lung cancer alleged to have been proximately caused by work place exposure to toxic chemicals. The respondent, City Printing was the last employer of the decedent and was insured by Chubb at the time of the decedent’s last employment. The trial commissioner found that pursuant to § 31-297(b) ( now codified at § 31-294c) the respondents, City Printing and its insurer Chubb had not filed a timely disclaimer and were therefore precluded from asserting a defense as to the compensability of the claim. The respondent Chubb paid the claimant pursuant to § 31-299b and then sought to apportion liability with ITT Hartford contending it was a carrier on the risk during another period during when the decedent was alleged to have been chemically exposed. As part of the trial commissioner’s consideration of the respondent Chubb’s claim for apportionment, the trial commissioner found that the decedent’s lung cancer was not caused by his exposure to chemicals at work, but rather by his two-pack a day cigarette smoking history. The court noted:
. . . Barron’s injuries were not caused by his employment but by his smoking habit. What essentially would have been a noncompensable workers’ compensation claim became a compensable claim due to City Printing’s failure to file a notice contesting liability in a timely manner. That error occurred while City Printing was insured by Chubb, not by ITT Hartford. Because no actual workplace injury occurred at any time, it would have been improper to hold City Printing’s prior insurers responsible for a failure that occurred during Chubb’s coverage period. (emphasis ours)
Id., at 90. In short, the respondent Chubb and its insured’s failure to file a timely disclaimer of liability left them without the legal ability to defend on the issue of causation. The respondent’s failure to preserve its right to defend a claim’s compensability in Barron is analogous to the procedural posture in which the respondent self-insured’s failure to file an appeal places itself, i.e., it is without recourse to challenge the legal validity of the trier’s conclusion and application of collateral estoppel.
We therefore remand the instant matter for further proceedings consistent with this opinion.
Commissioners Charles F. Senich and Amado J. Vargas concur.