Joslyn v. U.S. Silica Co. et al.

The claimant was not represented at oral argument. Notice sent to Gerard Rucci, Esq., Embry & Neusner, 118 Poquonnock Road, P. O. Box 1409, Groton, CT 06340.

The respondent employer and Liberty Mutual were represented by Debra Dee, Esq., Law Offices of Nancy S. Rosenbaum, 655 Winding Brook Drive, P. O. Box 695, Glastonbury, CT 06033.

The respondent employer and Travelers were represented by Joseph J. Passaretti, Jr., Esq., Law Offices of Christine Harrigan, 1952 Whitney Ave., Hamden, CT 06517.

The State of Connecticut was represented by Matthew Beizer, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.

These Petitions for Review from the February 22, 1996 Findings of Facts and Award of Compensation of the Commissioner acting for the Fourth District were heard November 22, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Robin L. Wilson.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent insurers have both petitioned for review from the February 22, 1996 Findings of Facts and Award of Compensation of the Commissioner acting for the Eighth District. Their appeals concern the apportionment of liability for the claimant’s injury and questions surrounding the proper identity of the insurers on the risk at the time of injury.

The trial commissioner found that the claimant was totally disabled because of a lung condition from May 1, 1992 to and beyond the date of the formal hearing, and that he had suffered at least a 60% permanent partial disability of the lungs. This injury resulted from exposure to silica during his employment with Ottawa Silica at Ledyard in 1966 and 1967. The claimant had also alleged exposure to pesticides, fiberglass, and other harmful materials during 13½ years of employment with the state, but the trier dismissed that claim for failure to prove a causal connection. He ordered the respondent “Ottawa Silica/U.S. Silica” to pay total disability benefits and all medical expenses related to the lung condition.

The issues on this appeal concern the current identity of Ottawa Silica and the insurer that should be on the risk for this claim. The claimant made his claim in 1992 against U.S. Silica. The commissioner found that U.S. Silica was insured for its workers’ compensation liability with Liberty Mutual at the time of the claimant’s exposure to silica. U.S. Silica and its successor entity then became insured with Travelers at a later date, which company was on the risk at the time of the 1992 injury. At the time he became disabled, the claimant was working for the state as a custodian at the Ella Grasso Technical School. One of Travelers’ arguments is that, if not Liberty Mutual, the state should be initially liable for benefits under § 31-299b C.G.S. In turn, Liberty Mutual argues that Travelers should assume initial liability under § 31-299b.

Section 31-299b states that if an employee suffers a compensable injury, “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 shall . . . determine whether prior employers, or their insurers, are liable for a portion of such compensation and the extent of their liability. If prior employers are found to be so liable, the commissioner shall order such employers or their insurers to reimburse the initially liable employer or insurer . . . .” By its terms, this statute allows a commissioner to assign proportional liability among prior employers and insurers for an occupational disease or repetitive trauma injury that occurs over a time continuum. Lowe v. General Dynamics Corp./Electric Boat Division, 14 Conn. Workers’ Comp. Rev. Op. 118, 120, 1746 CRB-2-93-5 (June 5, 1995); Hunnihan v. Mattatuck Mfg. Co., 16 Conn. Workers’ Comp. Rev. Op. 72 2297 CRB-5-95-2 (October 30, 1996).

First, we do not believe that this statute was intended to apply to the most recent employer when it is clear that no injurious exposure occurred during that employment. Even though the liability of the most recent employer under § 31-299b is a policy of administrative convenience rather than a presumption of true joint liability, see Hunnihan, supra, the commissioner is still entitled to take into account known facts in applying that statute. If the commissioner is able to conclusively determine after a formal hearing that the injurious exposure was restricted to a claimant’s earlier employment with a different organization such as Ottawa Silica, it would be illogical to make an award against the most recent employer.

In that same vein, we then consider the liability of Travelers, who was clearly not on the risk at the time of the injurious exposure at Ottawa Silica. We do not accept Travelers’ argument that the commissioner clearly erred in finding U.S. Silica to be a successor corporation to Ottawa Silica. The fact that a different subsidiary of Ottawa Silica bought the assets of the Connecticut Silicon Division in 1982 does not mean that all liability for workers’ compensation claims was extinguished at that point. On the evidence before him, the commissioner could reasonably have found that the current U.S. Silica Company was the current version of the entity once known as the Connecticut Silicon Division of the Ottawa Silica Company. Thus, he could have ordered U.S. Silica to accept initial responsibility for the claimant’s injury under § 31-299b.

However, just as the potential liability of the State of Connecticut has been eliminated through the evidentiary process, so has the ultimate liability of Travelers. There is no dispute that Liberty Mutual was the workers’ compensation insurer at the time of all injurious exposure in this case, and that they are the only properly liable entity. Thus, Travelers should no longer be involved in the administration of this claim. We sympathize with Liberty Mutual’s argument that Travelers’ failure to accept initial responsibility for this claim and defend it accordingly has prejudiced Liberty Mutual’s interests in this case. Under § 31-299b, it is in the interest of all parties concerned for the initially liable insurer to administer and defend the claim until proper apportionment of liability can be made. However, assuming actual prejudice can be demonstrated, the statute does not provide for the consideration of such factors in apportioning liability. Legally, this claim is the sole responsibility of Liberty Mutual, and must be handled accordingly.

The trial commissioner’s decision is affirmed, and the respondent Liberty Mutual is ordered to accept liability for the payment of benefits.1

Commissioners George A. Waldron and Robin L. Wilson concur.

1 We note that the file contains a stipulation concerning the amount of the claimant’s benefits that was approved on August 13, 1996 by a commissioner. BACK TO TEXT