Babcock v. Pfizer Company et al.

The claimant was represented by Gerard Rucci, Esq., Embry & Neusner, 118 Poquonnock Road, P.O. Box 1409, Groton, CT 06340, who did not appear at oral argument.

Pfizer Company and Wausau were represented by David Davis, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Suite 401, Vernon, CT 06066.

General Dynamics Corp. and Cigna Insurance Co. were represented by Stephen Ekern, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.

The Second Injury Fund was represented by Michael Giammatteo, Esq., Assistant Attorney General, 55 Elm St., P.O. Box 120, Hartford, CT 06141-0120, who did not appear at oral argument.

This Petition for Review from the October 30, 1996 Finding and Award of the Commissioner for the Eighth District was heard August 15, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents Pfizer Company and Wausau (hereinafter “respondents”) have petitioned for review from the October 30, 1996 Finding and Award of the Commissioner acting for the Eighth District. In addition, the claimant has filed a cross-appeal. The trial commissioner found that the decedent sustained carcinoma of the lung and pleura due to asbestos exposure at both Electric Boat and Pfizer, and apportioned liability between the two employers pursuant to § 31-299b. The respondents argue on appeal that the asbestos exposure at Pfizer was not significant, and that the commissioner’s apportionment of 44.63% of the liability to Pfizer is not supported by the record.

The trial commissioner found the following relevant facts. The decedent was employed by General Dynamics Corporation/Electric Boat (hereinafter “Electric Boat”) from July 14, 1958 to April 1, 1960 and from July 5, 1961 to April 23, 1965, where he was exposed to asbestos on a regular basis. The decedent was employed by Pfizer Corporation from 1965 to 1980, where he was exposed to asbestos from 1965 to 1974 (108 months). The decedent died on March 7, 1993. His death certificate lists acute respiratory failure due to carcinoma of the lung and pleura. The decedent was survived by a wife and two children. The dependent wife (“claimant”) claims benefits as a surviving spouse pursuant to § 31-306.

The trial commissioner found that the decedent’s exposure to asbestos, both at Electric Boat and at Pfizer, contributed to his death. Accordingly, the trial commissioner apportioned liability pursuant to § 31-299b. The trial commissioner found that the decedent’s exposure to asbestos at Pfizer was not incidental. Specifically, at Pfizer the decedent worked in a building with a multitude of enclosed tanks covered with asbestos, and he was present when repairs to asbestos coverings were made. (Finding No. 18). The decedent was exposed to asbestos at Electric Boat for 67 months and at Pfizer for 108 months. The trial commissioner concluded that the claimant’s exposure to asbestos at Electric Boat was more significant than the exposure at Pfizer. Therefore, in apportioning liability, the trial commissioner doubled the 67 months of exposure at Electric Boat, and concluded that Electric Boat was liable for 55.37% and Pfizer 44.63%.

In support of their appeal, the respondents contend that the claimant’s exposure to asbestos at Pfizer was not significant. In addition, they argue that the apportionment of 44.63% liability to Pfizer is not supported by the record. Section 31-299b apportionment embodies the common-law concept of joint tortfeasor liability, and is appropriate “in occupational disease and repetitive trauma cases where there is a single injury occurring over a time continuum involving several employers or carriers.” Thomen v. Turri Electric, 11 Conn. Workers’ Comp. Rev. Op. 299, 302, 1324 CRD-5-91-10 (Dec. 23, 1993). Section 31-299b1 allows a commissioner to apportion liability for a compensable injury among employers and to order them or their insurers to reimburse the initially liable immediate employer according to the proportion of their liability. The statute states that “[t]he commissioner shall . . . determine whether prior employers, or their insurers, are liable for a portion of such compensation and the extent of their liability. . . . [T]he commissioner shall order such employers or their insurers to reimburse the initially liable employer or insurer according to the proportion of their liability.”

The trial commissioner, as the trier of fact, is entitled “to determine the weight of the evidence presented and the credibility of the testimony offered by lay and expert witnesses.” Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995) (citing Tovish v. Gerber Electronics, 32 Conn. App. 595, 599 (1993), appeal dismissed, 229 Conn. 587 (1994)). We will not disturb such determinations unless they are found without evidence, based on impermissible or unreasonable factual inferences or contrary to law. Fair v. People’s Savings Bank, 207 Conn. 535 (1988).

In the instant case, the trial commissioner’s conclusion that the asbestos exposure at Pfizer contributed to the decedent’s carcinoma is fully supported by the record, including the claimant’s deposition testimony and the medical records. The trial commissioner found that the decedent’s exposure to asbestos at Pfizer was not incidental, as the decedent worked in a building with a multitude of enclosed tanks covered with asbestos, and he was present when repairs to asbestos coverings were made. (Finding No. 18). Moreover, Dr. Godar testified that the exposure at Pfizer “was a significant but minor contributor to the decedent’s fatal cancer.” (Finding No. 16; see also 8/14/95 Depo. at p. 8, 16, 26; Claimant’s Exh. 5). Accordingly, we may not disturb the trial commissioner’s conclusion.

Finally, we will address the claimant’s cross-appeal, in which the claimant argues that sufficient evidence was presented during the formal hearing in order to establish the claimant’s weekly benefit rate. The trial commissioner specifically ruled that further evidence regarding the decedent’s filing status was required in order to determine the claimant’s weekly benefit rate. (Finding No. 22). This Board may not make findings of fact, and thus we may not determine the claimant’s benefit rate. Rather, the claimant may request a hearing in order to present the necessary evidence regarding the weekly benefit rate.

The trial commissioner is affirmed.

Commissioners James J. Metro and John A. Mastropietro concur.

1 “Section 31-299b. Initial liability of last employer. Reimbursement. If 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 commissioner shall, within a reasonable period of time after issuing an award, on the basis of the record of the hearing, 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 according to the proportion of their liability. . . .” BACK TO TEXT