Barron v. City Printing, Inc. et al.

The claimant was not represented at oral argument. Notice sent to Edward Cantor, Esq., Cantor, Floman, Russell & Gross, 378 Boston Post Road, P. O. Drawer 966, Orange, CT 06477.

The respondent-appellants City Printing and Chubb & Son Inc. were represented by William C. Brown, Esq., McGann, Bartlett, & Brown, 281 Hartford Tpke., Vernon, CT 06066.

The respondents City Printing/City National Printing and ITT Hartford were represented by Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.

The respondents Compu-Color and CIGNA were represented by Diane Duhamel, Esq., formerly of Trowbridge & Basine, 45 Glastonbury Boulevard, Glastonbury, CT 06033 presently of Duhamel & Schoolcraft, 131 New London Turnpike, Glastonbury, CT 06033.

The respondents City Printing and Helmsman Management Services were represented by Brian Prindle, Esq., 72 Bissell Street, Manchester, CT 06040.

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

This Petition for Review from the December 3, 1996 Finding of Denials of the Commissioner acting for the Third District was heard September 5, 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 City Printing, Inc., and Chubb & Son, Inc., have petitioned for review from the December 3, 1996 Finding of Denials of the Commissioner acting for the Third District. They argue on appeal that the trial commissioner erred by not apportioning liability for the claimant’s benefits among several other employers and insurers. We affirm the trial commissioner’s decision.

The claimant in this case is Renate Barron. She is the presumptive widow of George Barron, who died on September 9, 1984, from adenocarcinoma of the lung. The claimant maintained that the decedent’s lung cancer was an occupational disease caused by chemical exposure at his employment. She filed a § 31-306 workers’ compensation claim on April 12, 1985 with numerous alleged employers of her late husband. According to the notice of claim, the decedent was last exposed to carcinogens while working for City Printing in the late 1970’s and early 1980’s.

None of the currently named respondents filed a Form 43 contesting the allegations in the notice of claim within the twenty-day period prescribed by § 31-297(b) [now § 31-294c(b)]. The claimant filed a Motion to Preclude City Printing Company and Chubb & Son, Inc. [hereinafter “Chubb”], from contesting liability, which was granted in a decision dated May 10, 1988. No appeal was taken from that decision. Subsequently, Chubb sought to apportion liability for the claimant’s benefits pursuant to § 31-299(b). Chubb contended that this claim should be considered compensable, and that the decedent’s exposure to toxins while working for previous employers should result in proportionate liability being shared.

The trial commissioner noted the various jobs that the claimant worked at from 1952-1983. He also noted Dr. Vidone’s opinion that the decedent had been exposed to chemicals and substances such as arsenic, cadmium and chromates. However, Dr. Vidone never examined the decedent; he only reviewed his medical file. There was no evidence presented as to what substances and chemicals the claimant was actually exposed to at the workplace, or the nature of the exposure.

Instead, the commissioner credited the opinion of Dr. Bayer, who believed the decedent’s lung cancer was caused by cigarette smoking. The trier also noted that the decedent’s family physician, Dr. Landau, did not indicate that his cancer was related to his work in the printing business. Further, two other doctors who examined the claimant in 1983 failed to draw a link between the claimant’s cancer and his employment. The commissioner concluded that the medical evidence did not support the theory that the claimant’s adenocarcinoma was caused by chemical exposure from his work in the printing industry. Thus, it could not qualify for apportionment under § 31-299b or § 31-349. Chubb has appealed that decision to this board.

The appellants’ first argument is that the trial commissioner erred by failing to find that the decedent was exposed to noxious fumes while employed in the printing industry. That, of course, is a factual issue. The trial commissioner’s authority to make factual findings in a workers’ compensation case charges him with the duty of weighing the evidence presented by all parties. Kincaid-Ross v. State of Connecticut/State Library, 3350 CRB-1-96-5 (decided Dec. 4, 1997); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995). This includes the right to evaluate the credibility of any and all medical opinions, uncontradicted or not. Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (decided Jan. 24, 1997). This board will not retry the facts upon review, and can change the trier’s findings only if they contain facts found without evidence, or if they omit undisputed material facts. Wheat v. Red Star Express Lines, 156 Conn. 245, 248 (1968); Webb, supra, 71.

The appellants state that there was unchallenged testimony that the claimant was exposed to certain hazardous conditions at his various workplaces, and that Dr. Bayer’s opinion failed to address key issues, making it uncreditable. Normally, it is the claimant’s burden to prove the compensability of an injury. Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151 (1972). Here, because of the granting of the Motion to Preclude against Chubb, the appellants inherited that burden from the claimant. Thus, Chubb had the responsibility to present evidence that would persuade the trial commissioner that the claimant’s lung cancer was caused, at least in part, by workplace chemical exposure.

The only real evidence of the nature and amount of the decedent’s chemical exposure at the workplace was the testimony of the decedent himself on August 10, 1994, about one month before he died. Respondents’ Exhibit 8. George Barron was not cross-examined; he gave only direct testimony in response to questions by his attorney. Chubb did not build upon this evidence at the formal hearing by submitting documents or further testimony to expand on the details of the decedent’s chemical exposure. Thus, the trial commissioner was well within his prerogative as fact-finder to disregard the decedent’s testimony insofar as it established the nature and duration of his chemical exposure. See Ubaldo v. Cold Metal Products, 3223 CRB-6-95-11 (decided April 25, 1997).

We also cannot hold that the trier erred in crediting Dr. Bayer’s opinion over Dr. Vidone’s. As we stated above, it is completely within the trier’s discretion to select the medical report he finds most credible. Jusiewicz, supra. Dr. Bayer specifically stated that the “profound degree of prolonged smoking in Mr. Barron was directly related to the fact that he developed lung cancer. This would have occurred to him whether or not he was exposed to any chemicals in his workplace. In addition, there is no quantification of the type of exposure, the magnitude of the exposure, or the duration of exposure to any of the chemicals cited by Dr. Vidone in Mr. Barron’s workplace.” Respondents’ Exhibit 9. Despite the appellants’ arguments, it was perfectly reasonable for the trier to accept this opinion and rule that Chubb had not met its burden of proof in this case. As such, there was no basis for apportionment of the claim under § 31-299b or § 31-349, as no causal connection was found between the decedent’s employment and his lung cancer.

The other issue raised by the appellants is peculiar to only one of the appellees, ITT Hartford (now known as The Hartford). Chubb contends that the 1988 preclusion order was not specific to one insurer, as it mentioned only the employer City Printing. As the last insurance carrier on the risk, Chubb assumed responsibility for making payments under § 31-299b. However, the decedent was employed at City Printing for 36 months. During the first 12 months of his employment term, City Printing insured its workers’ compensation liability with ITT Hartford rather than Chubb. As a result, Chubb requests that an order be entered making ITT Hartford liable for a portion of the benefits.

It is true that the preclusion order did not mention an insurer in the findings. In fact, the July 28, 1987 Motion to Preclude states only that “the employer, City Printing Co., failed to file a timely notice of its intention to contest [this] claim for compensation . . . .” No particular insurer is listed there, either. However, the 1985 notice of claim listed “City National Printing” as the claimant’s employer from 1975-77, and “City Printing Company” as the employer from 1977-83. Throughout the case, the insurer for “City Printing Company” has been listed as Chubb & Son, Inc., while the insurer for “City National Printing” has been listed as ITT Hartford or The Hartford Group. Counsel for ITT Hartford sent a letter to the trial commissioner (and other counsel) on September 25, 1987, stating that he did not believe he had to attend the October 28, 1987 hearing because the Motion to Preclude was against City Printing Company and Chubb Insurance Company. A June 17, 1985 letter from the claimant’s attorney to the commissioner also explains that the decedent worked for “City National Printing” from 1975-77, which company the claimant believed was now defunct, but was insured at the time by The Hartford Group.

These documents demonstrate that, at the time the Motion to Preclude was pending, the parties did not consider the claimant’s period of employment at City Printing to encompass a time period in which ITT Hartford was the company’s workers’ compensation insurer. As a result, we cannot say that the claimant’s filing of a Motion to Preclude against “City Printing Co.” presumptively notified ITT Hartford that preclusion was sought against it. Notably, there was no mention of a second insurer being on the risk for City Printing in the October 23, 1987 Memorandum in Opposition to Motion to Preclude that City Printing and Chubb filed in defense of their position. Under these circumstances, the trial commissioner acted reasonably in declining to apportion to ITT Hartford any of the liability for benefits that Chubb is currently paying because of the injury it is precluded from contesting. There is a strong argument that ITT Hartford was never notified of its alleged involvement as an insurer for City Printing Co. in the first place. See Castro v. Viera, 207 Conn. 420 (1988). Also, the appellants did not attempt to correct or appeal from the decision on the Motion to Preclude. Any attempt to share the effects of the preclusion with ITT Hartford should have been made then. See Peters v. State of Connecticut/Southern Connecticut State University, 13 Conn. Workers’ Comp. Rev. Op. 131, 134, 1616 CRB-5-92-12 (Feb. 1, 1995).