Buser v. G.R. Cummings Co. et al.

The claimant was represented by Amy Stone, Esq., O’Brien, Shafner, Stuart, Kelly & Morris, P.C., 475 Bridge Street, P.O. Drawer 929, Groton, CT 06340.

The respondents-appellees G.R. Cummings Co. and CNA Insurance Companies were represented by Robert Keville, Esq., Suisman, Shapiro, Wool, Brennan, Gray & Greenberg, P.C., The Courtney Building, Suite 200, Two Union Plaza, P.O. Box 1591, New London, CT 06320.

The respondents-appellants Electric Boat Corporation, ACE USA and St. Paul Travelers were represented by Lucas D. Strunk, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

The respondents-appellants Northeastern Ventilating, Specialty Risk Insurance and Hartford Insurance Group were represented by John Greiner, Esq., Law Offices of David J. Mathis, 55 Farmington Avenue, Suite 500, Hartford, CT 06105.

The respondents-appellants Acmat Corporation and Royal & SunAlliance were represented by Law Offices of Ralph A. Russo, 49 Welles Street, Suite 212, Glastonbury, CT 06033.

The respondents Yankee Sheet Metal Company, Inc. and Hanover Insurance Company were represented by Andrew Dwyer, Esq., Gibson & Behman, P.C., 71 Bradley Road, Suite 11, Madison, CT 06443.

The respondents Palmer Sheet Metal and Zurich American Insurance Company were represented by Michael Burton, Esq. D’Attelo, Sheilds & La Bella, 500 Enterprise Drive, Suite 4B, Rocky Hill, CT 06067.

The respondents Palmer Sheet Metal and Peerless Insurance were represented by Joseph Passaretti, Jr., Esq., Montstream & May, L.L.P., 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.

The respondents Connecticut Duct Systems, Inc. and All American Insurance Company were represented by James Hyland, Esq., Mulvey, Oliver, Gould & Crotta, Attorneys at Law, 83 Trumbull Street, New Haven, CT 06511-3774.

The respondents SSM Industries c/o Pfizer and Liberty Mutual Insurance Group were represented by Marian Yun, Esq., Law Offices of Rosenbaum & Vollono, 655 Winding Brook Drive, Glastonbury, CT 06033.

These Petitions for Review from the June 21, 2005 Finding and Award of the Commissioner acting for the Fifth District was heard January 27, 2006 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Michelle D. Truglia and Ernie R. Walker.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The instant appeal involves the determination of legal liability between various responsible parties for an occupational disease claim. The claimant, Joyce Buser, is the widow of David Buser, a former employee of the Electric Boat Corporation and G.R. Cummings Co. Mr. Buser died on November 7, 2002 of cancer. Prior to his demise he filed a claim under the Longshore and Harbor Workers’ Compensation Act (LHWCA) asserting that his throat cancer was due to exposure to asbestos and welding fumes at the Electric Boat shipyard and while employed by G.R. Cummings, which acted as a subcontractor for Electric Boat. Mr. Buser then brought this action under Chapter 568 seeking a determination he had suffered a compensable injury. Upon his demise his widow, Joyce Buser, succeeded to both federal and state claims and is presently seeking § 31-306 benefits. The trial commissioner acting for the Fifth District held an extensive formal hearing regarding the Chapter 568 claim.1 Prior to the conclusion of that hearing Mrs. Buser received an award on December 16, 2003 under the LHWCA for her husband’s occupational disease. The trial commissioner determined that the LHWCA award created an issue of collateral estoppel under the precedent in Lafayette v. General Dynamics Corp./Electric Boat Division, 255 Conn. 762 (2001).

Based on that record, the trial commissioner determined that a compensable injury under Chapter 568 occurred and issued a Finding and Award on June 21, 2005 finding that G.R. Cummings was primarily responsible as the last employer, with a statutory right of apportionment under § 31-299b C.G.S. against prior employers. We uphold his Finding and Award and dismiss the appeals from this decision.

A variety of parties has appealed from this Finding and Award for a variety of reasons. ACMAT and its carrier, Royal & SunAlliance, have appealed contesting the finding of collateral estoppel from the LHWCA award. Electric Boat and its carriers, ACE USA and St. Paul’s Travelers, appeal on similar grounds. Northeastern Ventilation and its carriers, Specialty Risk Insurance and the Hartford Insurance Company, challenge the finding that G.R. Cummings may have apportionment rights against them for the award.

We will deal expeditiously with the appeals by ACMAT, Electric Boat and their insurance carriers. Their appeals are basically an effort to revisit the Lafayette case and obtain a contrary result. In Mitchell v. J.B. Retail Inventory Specialists, 3458 CRB-2-96-10 (March 31, 1998) we held, “Stare decisis, although not an end in itself, serves the important function of preserving stability and certainty in the law. Accordingly, ‘a court should not overrule its earlier decisions unless the most cogent reasons and inescapable logic require it. Maltbie, Conn. App. Proc., p. 226.’ Herald Publishing Co. v. Bill, 142 Conn. 53, 62 (1955).” The crux of the appellants’ argument appears to be that evidence regarding the claimant’s tobacco use was not brought before the hearing that decided the Longshore claim. We are not persuaded, however, that the respondents did not receive a full and fair hearing in the federal venue.2

In Hicking v. State/Dept. of Correction, 4935 CRB-2-05-4 (April 10, 2006), we quoted Schreiber v. Town & Country Auto Service, 4239 CRB-3-00-5 (June 15, 2001) and held, “‘a claimant is not entitled to multiple opportunities to raise and resolve the same issue’ Schreiber, supra, and respondents are also precluded from obtaining multiple hearings on the same issue.” The respondents were availed of an opportunity to submit whatever evidence they deemed relevant on the claimant’s health history in the federal proceeding. Barring an affirmative and persuasive argument that the respondents were prevented from submitting relevant evidence in the federal forum and that it would have had a material impact on the outcome of the proceeding. See Pantanella v. Enfield Ford, 3377 CRB-1-96-7 (January 28, 1998), aff’d, 65 Conn. App. 46 (2001), cert. denied, 258 Conn. 930 (2001). “A party is required to act with due diligence in order to take advantage of its own due process rights.” We believe the precedent in Lafayette requires us to apply the doctrine of collateral estoppel to a federal LHWCA decision in regards to the issue of causation.)3

Even assuming arguendo, the CRB should examine the terms of the LHWCA decision in this case there is little to differentiate the standards applied in that decision and the standards applied by this commission for a Chapter 568 claim. Similar to the situation in Birnie v. Electric Boat Corp., 4947 CRB-2-05-5 (May 15, 2006), in the present case the respondents rebutted the presumption of compensability under the LHWCA and “the § 20(a) presumption was not applicable.” The Administrative Law Judge who decided Mr. Buser’s federal claim determined that a treating physician, Dr. Grey, concluded “that Claimant’s asbestos exposure and welding fumes in combination in his work as a welder contributed with reasonable medical probability to the development of his nasopharyngeal carcinoma.” Dr. Grey further opined “I am convinced that asbestos does cause laryngeal cancer.” December 16, 2003, Decision and Order Awarding Benefits. Exhibit B, p. 17. The ALJ concluded that a “preponderance of the evidence” supported the claimant’s position that he “suffered from a work-related occupational disease, nasopharyngeal carcinoma, which was caused, aggravated, or accelerated by his exposure to asbestos and welding fumes over the course of his covered employment, and that this disease caused his death.” Id., p. 18.4 It is difficult to discern the equivocation in the federal decision which is alleged by the respondents.

Our decision in Levarge v. Electric Boat Corporation, 4884 CRB 8-04-11 (November 30, 2005) stands for the proposition that one cannot relitigate issues before the Workers’ Compensation Commission that were previously litigated in a federal LHWCA proceeding.5 It is also relevant as to the appeal of Northeast Ventilation as in Levarge the CRB dealt with the issue of apportionment of a LHWCA claim and the issue of privity.

In Levarge, this board determined that a former insurer of the respondent-employer was bound by the result that its insured obtained representing its own interests as a self insured at the LHWCA hearing. Similar to this case, the insurer in Levarge sought to relitigate the issue of causation asserting insufficient evidence existed to satisfy the claimant’s burden of proving his illness was due to workplace exposure. We rejected this argument as “Electric Boat essentially stood in the shoes of any insurers potentially liable for a part of the claim during its participation in proceedings under the Longshore Act. We thus do not believe that it would be inequitable to apply the doctrine of collateral estoppel, as the interest of any § 31-299b insurers were sufficiently represented in the Longshore Act proceedings.” Our precedent in Levarge must be accorded the same deference under the principle of stare decisis as Lafayette, supra. These precedents are substantially dispositive of the issues at hand.

Northeast Ventilation appeals from its denial of a Motion to Correct that the respondent G. R. Cummings lacks § 31-299b rights of apportionment for the compensable injury. We do not find error in this denial. The trial commissioner found a compensable injury occurred and we will not revisit the issue of causation, Levarge, supra.6 Northeast correctly cites Barron v. City Printing Company, 55 Conn. App. 85 (1999) as the controlling law regarding statutory apportionment of an award for occupational disease. We do not find Barron as precedent for reversing the trial commissioner’s decision. In our decision in Robert v. General Dynamics Corp./Electric Boat Division, 4691 CRB 2-03-7 (June 14, 2004) we discussed the rationale of Barron, “. . . having carried the burden of proof as to the liability of the last employer, § 31-299b shields the claimant from having to endure the time and expense of proving liability against other respondents in the chain of causation. See Barron v. City Printing Company, 55 Conn. App. 85 (1999).” Robert, Id. Barron essentially creates a new dynamic where the last employer must prove other employers are responsible for an equitable share of the claimant’s award, “[t]o avoid liability for the entire amount of the claim, Chubb, as City Printing’s insurer, had the burden of proving that Barron sustained his injuries while working for another employer or while covered by another insurer. See General Statutes § 31-299b.” Barron, supra, p. 89-90.7

We read Barron for the proposition that the party found as the last employer (G.R. Cummings in this instance) has a statutory right to seek apportionment against prior employers, but must prove the claimant indeed sustained injury while in the employ of a prior employer. Parties who did not participate in the LHWCA proceeding may assert factual defenses in future proceedings regarding their lack of contribution to the claimant’s compensable injury. Therefore, arguments over causation are now moot and arguments as to apportionment are presently unripe. See Rodriguez-Colon v. Easter Seals Goodwill Industries, 4804 CRB-3-04-4 (June 22, 2005). “In fact, the trier’s award does not mention apportionment of liability for this claim, as it would have been premature to do so. Any assignment of liability based on percentages of responsibility for the claimant’s repetitive trauma must await an additional evidentiary hearing.”

When a hearing concerning statutory apportionment is held, Northeast Ventilation will be able to argue that notwithstanding the finding the claimant had a compensable injury, that the award should only be levied against other employers. At that hearing, Northeast can argue it was not responsible for the compensable illness. We defer to the trial commissioner to ascertain the facts regarding whether a prior employer is obligated to pay a share of the award and the appropriate percentage of such share, based on factual evidence presented to the commissioner regarding exposure to potential carcinogens in the workplace.

We uphold the trial commissioner’s Finding and Award and dismiss all appeals. Further proceedings will be required on the issue of § 31-299b apportionment.

Commissioners Michelle D. Truglia and Ernie R. Walker concur in this opinion.

1 The hearing was continued over the period July 31, 2002; December 3, 2002; May 21, 2003; September 29, 2003; November 19, 2003 and December 13, 2004. BACK TO TEXT

2 Counsel for ACMAT and Royal & SunAlliance argue there was insufficient “privity” between their interests and that of the parties who participated in the LHWCA hearing to subject them to collateral estoppel, citing Robert v. General Dynamics Corp./Electric Boat Division, 4691 CRB-2-03-7 (June 14, 2004). However, they do not offer any factual difference between their interests and that of the other respondents that would lead one to believe that Electric Boat or G.R. Cummings would not have fully litigated the applicable causation issues at the LHWCA hearing, and no credible argument has been advanced that evidence on tobacco use could not have been offered in the federal forum. Therefore, we defer to our holding in Levarge v. Electric Boat Corporation, 4884 CRB-8-04-11 (November 30, 2005) which is dispositive of the privity issue. The respondents will have an opportunity to defend their interests in a future hearing regarding the amount, if any, they are obligated to pay via § 31-299b apportionment. BACK TO TEXT

3 In their brief and at oral argument counsel for respondents ACE USA, Inc. and St. Paul Travelers placed great weight on an argument that the Supreme Court’s holding in a land use case, Cumberland Farms, Inc. v. Groton, 262 Conn. 45 (2002) limits the application of collateral estoppel in cases involving the LHWCA. Since the actual decision cited Lafayette, supra, as binding authority, “[a]s a general matter, administrative decisions are entitled to preclusive effect. E.g. Lafayette v. General Dynamics Corp., (internal citations omitted).” Cumberland Farms, supra, p. 61, we find this argument unpersuasive, especially as the Supreme Court also held in Cumberland Farms that “We are persuaded, however, that this case necessitates an exception to the general rule . . . .” Id., p. 62 BACK TO TEXT

4 The Supreme Court has held the “preponderance of the evidence” standard is “[t]he same burden that would obtain in the state workers’ compensation proceeding.” Lafayette, supra, p. 781. The testimony of Dr. Grey also is consistent with the standards enunciated in Struckman v. Burns, 205 Conn. 542 (1987). BACK TO TEXT

5 Levarge is presently on appeal to the Supreme Court, S.C. Docket No. 17659. BACK TO TEXT

6 Levarge is also dispositive of the collateral estoppel issues raised by Northeast Ventilation. BACK TO TEXT

7 In the apportionment hearings in Barron, the prior employers were able to hold a hearing on the issue of causation since the original insurer had been precluded from contesting compensability due to the failing to state a timely defense. Id., p. 87. Therefore, unlike this case, where a contested LHWCA hearing led to conclusive findings of fact, there was not collateral estoppel on the issue of causation present since no finding of fact had occurred. For that reason, Barron is unsupportive of Northeast’s argument that it is not subject to § 31-299b liability. BACK TO TEXT