CASE NO. 5664 CRB-3-11-7
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JULY 3, 2012
THE CONNECTICUT INSURANCE GUARANTY FUND (CIGA)
CERRO WIRE & CABLE
LIBERTY MUTUAL INSURANCE GROUP
The claimant was represented by Christopher Meisenkothen, Esq., Early, Lucarelli, Sweeney & Meisenkothen, LLC, One Century Tower, 11th Floor, 265 Church Street, PO Box 1866, New Haven, CT 06508-1866.
The respondents Acands, Inc., and CIGA were represented by Melissa A. Murello, Esq., Montstream & May, LLP, 655 Winding Brook Drive, PO Box 1087, Glastonbury, CT 06033.
The respondents Cerro Wire & Cable and Liberty Mutual Insurance Group were represented by Marian H. Yun, Esq., Law Offices of Loccisano, Turret & Rosenbaum, 101 Barnes Road, Third Floor, Wallingford, CT 06492.
The respondents ADC Contracting & Supply Corporation and Travelers Property & Casualty were represented by John P. Clarkson, Esq., Law Offices of Charles G. Walker, 300 Windsor Street, PO Box 2138, Hartford, CT 06145-2138, who did not file a brief but attended oral argument.
The respondents ABB Combustion Engineering and CNA Insurance Companies were represented at the trial level by Elizabeth Zaccardi, Esq., Law Offices of Cynthia A. Jaworski, 175 Capitol Boulevard, Suite 400, Rocky Hill, CT 06067. They did not participate in the proceedings before the board.
This Petition for Review from the June 15, 2011 Ruling on Motions to Dismiss of the Commissioner acting for the Eighth District was heard December 16, 2011 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Scott A. Barton and Stephen B. Delaney.
JOHN A. MASTROPIETRO, CHAIRMAN. The appellant, Liberty Mutual, has appealed from the trial commissioner’s ruling on a Motion to Dismiss the claim against the insurer. The claimant has asserted he suffers from an occupational disease as a result of exposure to asbestos at various workplaces. Various insurers moved to dismiss this claim asserting the claimant was not exposed to asbestos at their insured’s workplace. Liberty Mutual asserts the commissioner erred in determining their insured was the final locus of the claimant’s substantial exposure to asbestos, and states their Motion to Dismiss should have been granted. We conclude that the trial commissioner’s determination of this issue involved the evaluation of evidence presented to the finder of fact, and we may not second-guess this conclusion. The decision of the trial commissioner is affirmed.
The following background is pertinent to our discussions. This claim was commenced with a Form 30C filed on December 31, 2008. The claim identified the claimant as seeking benefits for an occupational disease (mesothelioma) and noted the claimant had worked for a number of employers. Corrected and supplemental claim forms were submitted to bring appropriate prior employers into the case. Carriers for these employers filed Form 43’s disclaiming responsibility for the claim. The trial commissioner held a formal hearing which commenced November 15, 2010, and was continued to December 16, 2010, to consider Motions to Dismiss filed by the various insurance carriers. Counsel for ABB Combustion Engineering and its insurer asserted that the evidence in the record indicated that when the claimant worked for the respondent at the Millstone power station in 1978, there was no exposure to asbestos fibers. The Connecticut Insurance Guaranty Association (“CIGA”) also filed a Motion to Dismiss. CIGA’s involvement was because a defunct insurer insured Rockbestos Federal Credit Union in 1972 and 1973, and it was alleged the claimant had worked for said credit union. CIGA asserted that the evidence was the claimant had worked for Cerro Wire during this time period, and not a firm insured by the carrier whose obligations it had assumed. CIGA also alleged the claimant did not have substantial asbestos exposure during this time period. Counsel for Liberty Mutual also denied the claimant had sustained substantial asbestos exposure during 1972 or 1973, and also denied that their insureds, Cerro Wire, Marmor Group or Rockbestos, had employed the claimant during this time period.1
The trial commissioner issued his decision on June 15, 2011. The commissioner determined based on the totality of the circumstances and evidence put in the record that “the last injurious exposure to asbestos products sustained by the Claimant was in 1973 while he was employed by Cerro Wire & Cable Company, insured by the Liberty Mutual Insurance Company.” The commissioner granted the Motion to Dismiss filed by ABB Combustion Engineering and its insurer, as well as the Motion to Dismiss filed by CIGA. The commissioner ordered Liberty Mutual to administer the claim in accord with § 31-299b C.G.S.
Liberty Mutual filed a Motion to Correct. This motion was denied in its entirety on September 8, 2011. Prior to that decision, Liberty Mutual commenced an appeal of the commissioner’s ruling on the Motion to Dismiss. Originally, Liberty Mutual appealed two issues: a) whether the claimant was employed by Cerro Wire; and b) whether the claimant’s last injurious exposure to asbestos occurred while he was employed at Cerro? At oral argument before our tribunal, counsel for the appellant advised they were withdrawing their appeal as to whether the claimant was employed by their insured. As a result, we will confine our consideration to the sole issue left on appeal; the issue as to the claimant’s final date of injurious exposure.
Liberty Mutual presents two arguments challenging the commissioner’s finding that their insured was the final firm responsible for the claimant’s injurious asbestos exposure. First, they argue the claimant’s testimony and expert opinions were not substantial and definitive enough to support a finding of substantial exposure to asbestos in the course of the claimant’s employment. In addition, they argue the claimant’s occupation as a computer operator at the time placed him outside the scope of the occupational disease statute. We do not find either argument persuasive.
We recently had an opportunity to review the standards for finding a party liable in an occupational disease case in Brooks v. Electric Boat Corporation et al, 5485 CRB-1-09-8 (August 9, 2010), aff’d, 133 Conn. App. 377 (2012). In Brooks, the claimant, under similar circumstances to the claimant in this case, had died of cancer after being exposed to asbestos during a career where he had worked at a variety of jobs for various employers at a number of different workplaces. The trial commissioner had the responsibility to determine at which employers the claimant was subjected to exposure to asbestos and also had to determine pursuant to § 31-299b C.G.S., which employer was the most recent substantial exposure to asbestos. We pointed out in Brooks, this is a difficult and inexact task to perform.
The trial commissioner in this matter waded into the arduous task of evaluating the relative contribution of multiple employers over a number of decades to the decedent’s ultimate demise. This constitutes a difficult judgment call. It is unlikely that in matters such as this that a clear-cut point can be readily established where the claimant stopped being exposed to any level of exposure to the harmful agent that contributed to the claimant’s illness. As we pointed out in O’Connor v. Med-Center Home Healthcare, Inc., 4954 CRB-5-05-6 (July 17, 2006) “[t]here are few principles of jurisprudence more fundamental than the principle that a trier of fact must be the one party responsible for finding the truth amidst conflicting claims and evidence.” We have also followed the principle delineated in Daniels v. Alander, 268 Conn. 320 (2004) that “[a]s 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.”
In accordance with the precedent in Brooks, we must evaluate the evidence presented to the trial commissioner to ascertain if the ultimate findings were supported by evidence presented on the record. We note that pursuant to Marandino v. Prometheus Pharmacy, 294 Conn. 564 (2010), “it is proper to consider medical evidence along with all other evidence to determine whether an injury is related to the employment. Murchison v. Skinner Precision Industries, Inc., supra, 162 Conn. 151.” Id., at 595 (Emphasis in original.) The trial commissioner may therefore consider both expert testimony and the testimony of the claimant and other lay witnesses to ascertain during what periods the claimant was subject to injurious exposure.
The parties acknowledge that the claimant was exposed to asbestos in the workplace prior to working for Cerro Wire. The record reflects the claimant had been subject to asbestos exposure while working at the Bridgeport Harbor power station on summer break from college. The trial commissioner concluded based on the claimant’s affidavit (Claimant’s Exhibit A) that the claimant had not been significantly exposed to asbestos while employed at the Millstone Nuclear power station in 1978.2 Therefore, the inquiry herein is limited to the claimant’s exposure at Cerro in the early 1970s.
The appellant bases much of its defense on the opinion of Dr. Daniel Gerardi, who examined the claimant on behalf of Liberty Mutual in February 2010. Dr. Gerardi opined in Claimant’s Exhibit U that “[t]he patient’s exposure to asbestos dust at Cerro Wire seems less significant than his other work in terms of the development of the disease.” Dr. Gerardi on the other hand opined as to the claimant’s prior exposure at Bridgeport Harbor power station “this exposure alone would likely have been significant to cause his disease.” Dr. Gerardi further opined at greater length.
The patient’s work at Cerro Wire may have had some exposure to airborne asbestos dust but his description does not suggest it was a heavy exposure. It is very likely that asbestos was being used on the factory floor at that time but the description of his involvement suggests that this exposure was likely incidental. One obviously could not rule out its significance in the cause of the disease entirely, but it would appear to be too minor and likely late as compared to his earlier exposures to the result and development of malignant mesothemelioma.
The claimant points to the balance of Dr. Girardi’s report as supportive of the trial commissioner’s findings. This detailed the claimant’s routine at Cerro Wire as spending “some time on the floor” two of every three days. While on the factory floor, the claimant “evaluated and observed the process of various machines including braiders which were a series of machines which took spools of compound that were braided and placed on electrical wire, machines also that made a seamless conduit which would burn and seal the product over the wire.” The claimant’s own deposition testimony also outlined the manufacturing process which he observed on a regular basis while employed at Cerro. See Claimant’s Exhibit C, pp. 46-48. The claimant also noted that he walked through the factory floor on his way to his office, which was connected to the manufacturing space by way of a wide, unsealed stairwell. Id. The claimant testified that he believed that if asbestos was being used in Cerro’s manufacturing process, it was in the air he was exposed to. Claimant’s Exhibit E, p. 19. His reason for believing that was because of “the way the machines worked, especially the braiders.” Id., p. 33. The claimant testified the Cerro plant had a “considerable number of these machines” and “with the friction and the way they worked and way they were spinning, I just have to believe they were spewing out particles.” Id. The claimant further testified to spending as much as 45 minutes at a time observing these machines, id., p. 34, and testified he would be as close as five feet from the machines while they were operated. Id., p. 35. The claimant also submitted as evidence a deposition from another Cerro employee, Alphonse Lucibello, who testified as to the use of asbestos in the manufacturing process at this plant. Claimant’s Exhibit G.
As an appellate panel, we may reverse a trial commissioner’s findings if they are unreasonable, unsupported by the evidence, or inconsistent with the law. Christensen v. H & L Plastics Co., Inc., 5171 CRB-3-06-12 (November 19, 2007). In the present matter, we find there is substantial evidence supporting the trial commissioner’s conclusion that the claimant sustained substantial exposure to asbestos while employed at Cerro Wire. The claimant’s testimony sets forth a situation under which the claimant spent a substantial portion of his working week in close proximity to heavy machinery braiding asbestos fiber. We have pointed out that the factual determination as to what constitutes “substantial exposure” is a matter for the trial commissioner to decide, Stevens v. Raymark Industries, Inc., et al, 5215 CRB-4-07-4 (March 26, 2008), appeal dismissed, A.C. 29795 (June 26, 2008), based on weighing the evidence presented O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 818 (1999). Based on the “totality of the evidence” test delineated in Marandino, supra, we do not find the commissioner’s conclusion “vitiates logic” In re Shaquanna M., 61 Conn. App. 592, 603 (2001).
We reach this conclusion in part because a close reading of Dr. Girardi’s report indicates the focus of his opinion was based on pinpointing the cause of the claimant’s mesolthelioma, not ascertaining the dates of injurious exposure to asbestos. The trial commissioner could reasonably have concluded from the totality of the evidence that the original cause of the claimant’s illness was his work at the Bridgeport Harbor power station, but the nature of the claimant’s work at Cerro Wire, while it involved less intensive contact with asbestos, still constituted a “substantial exposure” to the substance. See Weir v. Transportation North Haven, 5226 CRB-1-07-5 (April 16, 2008) and Voronuk v. Electric Boat Corporation, 5167 CRB-8-06-12 (January 17, 2008), aff’d, 118 Conn. App. 248 (2009), where a commissioner may determine whether exposure or causation is “substantial” from the totality of the evidence. The trial commissioner reached a similar determination in Brooks, supra, to ascertain at what point the claimant ceased being substantially exposed to asbestos. The Appellate Court affirmed this decision and concluded the trial commissioner properly found the appropriate party the “responsible employer under § 31-299b” based on the evidence presented. Id., at 377-386.
The appellant further argues that the claimant is barred from pursuing an occupational disease claim. Their argument is that as the claimant was employed as a computer operator at Cerro Wire, that his subsequent mesothelioma is not a disease “peculiar to his occupation and due to hazards in excess of employment.” The appellant cites Malchik v. Division of Criminal Justice, 266 Conn. 728 (2003), as authority for this position. We note the respondents in Chappell v. Pfizer, Inc., 5139 CRB-2-06-10 (November 19, 2007), aff’d, 115 Conn. App. 702 (2009) also cited Malchik for this proposition, and we rejected that argument. We reach a similar conclusion in this case.
In Chappell, the claimant contracted asthma while working at the Pfizer pharmaceutical plant. We noted in Chappell the factual dissimilarity with the Malchik case, where a detective had suffered cardiac issues.
“...we take administrative notice of the burden claimants have in establishing an occupational nexus to coronary disease.” Id. .....we believe precedent in cases where claimants have asserted they suffered an occupational disease due to exposure to specific agents provides better guidance. In Hansen v. Gordon, 221 Conn. 29 (1992) the claimant was a dental hygienist who contracted hepatitis type B. In that case the Supreme Court pointed out “[w]e have never held that a disease must be of the type that can be contracted solely in the work place, either in a general sense or from the claimant’s particular type of employment.” Id., 35. Instead the standard was an occupational disease “need not be unique to the occupation or the work place; it need merely be ‘so distinctively associated with the employee’s occupation that there is a direct causal connection between the employment and the disease contracted.’”
We further found the case of Estate of Doe v. Dept. of Correction, 268 Conn. 753 (2004), relevant to the inquiry in Chappell, as in both cases the claimant was exposed to a harmful agent during the course of their employment. Noting the similarities, we found the claimant had sustained an occupational disease in Chappell.
The appellant’s focus on the claimant’s specific duties at Cerro Wire is at odds with the evidence on the record. Had the claimant been employed as a computer operator at a physical location distant from the manufacturing facility the respondent would be advancing a meritorious defense. The evidence on the record is that the claimant worked inside a manufacturing plant which produced asbestos products and the claimant spent a substantial amount of time in close proximity to the actual equipment handling asbestos. The appellant’s statutory interpretation would limit occupational disease claims from manufacturing industry employees exclusively to the machine operators themselves. As the Supreme Court held in Ricigliano v. Ideal Forging Corp., 280 Conn. 723 (2006) “[t]he legislature clearly has manifested an intent to compensate employees for disability arising from occupational diseases.” Id., 743. We find no legislative intent in § 31-275(15) C.G.S., or the relevant case law to limit such recovery to specific job titles within an industrial facility, especially as this statute “is remedial and to be construed broadly in favor of those whom the scheme is intended to benefit.” Id., 743.
We find the claimant’s exposure to asbestos at Cerro Wire more congruent with the compensable injuries in Chappell, supra, Hanson, supra, and Doe, supra, then the injuries where recovery was denied in Malchik, supra, and Madeo v. I. Dibner & Brother Inc., 121 Conn. 664 (1936), which the appellant relies upon.3 We believe that entitlement to benefits for occupational disease injuries should be dependent upon evidence of sustaining the injury, not solely based upon a claimant’s job title.
We believe the trial commissioner made a reasonable determination that Cerro Wire was a locus of substantial exposure of the agent that produced the claimant’s injuries. We further find the trial commissioner’s decision that Cerro Wire’s insurer, Liberty Mutual was the appropriate § 31-299b C.G.S. carrier a reasonable decision based on the evidence. We reject Liberty Mutual’s arguments as to the claimant’s eligibility for an occupational disease award.4 Therefore, we affirm the commissioner’s Ruling on Motions to Dismiss.
Commissioners Scott A. Barton and Stephen B. Delaney concur in this opinion.
1 The record indicates that these various entities were corporate owners of a single manufacturing facility in New Haven and the firm had changed hands and corporate names during this time period in question. BACK TO TEXT
2 This affidavit outlines the manner in which the claimant worked at Millstone, where he wore a full body protective suit and was not aware of the presence of asbestos where he worked. BACK TO TEXT
3 The respondent dwelled upon Madeo v. I. Dibner & Brother Inc., 121 Conn. 664 (1936) at length at oral argument. We can easily distinguish this case as the claimant in Madeo was ill due to a communicable disease, tuberculosis, and not due to exposure to an airborne agent from an industrial process. Indeed, Madeo cited Rousu v. Collins Co., 114 Conn. 24 (1931) as standing for the proposition that an airborne illness contacted from wet grinding was an occupational disease. BACK TO TEXT
4 The appellant filed a Motion to Correct. We upheld the denial of this Motion. This motion sought to interpose the appellant’s conclusions as to the law and the facts presented. To the extent “undisputed” facts were not added to the record, they would not have compelled a different result. See Brooks v. Electric Boat Corp., 133 Conn. App. 377, 384-385 (2012), citing, D’Amico v. Dept. of Correction, 73 Conn. App. 718, 728 (2002), cert. denied, 262 Conn. 933 (2003). BACK TO TEXT