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CRB Case Annotations re: Section 31-299b

Apportionment; liability of last employer.


Full texts of opinions, statutes and court decisions should be consulted and all citations and references fully researched by the reader.

The Annotations to Compensation Review Board Opinions are presented “as is” and the Commission makes no warranties as to the suitability of this information for any given purpose.
Please note also that Annotations change periodically due to several factors including, but not limited to, Appellate and Supreme Court decisions issued in workers’ compensation cases.

Palacios v. Dual-Lite, 6078 CRB-8-16-3 (February 23, 2017).

Claimant sustained thumb injury at her employer in 2003, went to work for subsequent employer, and then sought thumb surgery. Carriers for present and previous employers contested legal liability for the surgery. Trial commissioner concluded initial injury created need for surgery. On appeal, CRB affirmed, as expert opinion on the record supported this result. See also, Palacios, § 31-294d; § 31-301 Factual findings.

Filosi v. Electric Boat Corporation, 5998 CRB-2-15-3 (January 19, 2017), transferred to S.C. #19990/19991 (2017).

Claimant challenged trial commissioner’s refusal to apply doctrine of collateral estoppel in claim for which Longshore benefits were awarded. CRB reversed, holding that although Administrative Law Judge did not specifically articulate causation standard utilized, judge’s reliance upon medical evidence stating that claimant’s workplace exposure to asbestos was a substantial contributing factor in development of his lung cancer comported with analysis set forth in Lafayette v. General Dynamics Corp., 255 Conn. 762 (2001), wherein Supreme Court held that collateral estoppel applied. CRB also found, consistent with its prior holdings in Levarge v. Electric Boat Corp., 4884 CRB-8-04-11 (November 30, 2005) and Robert v. Electric Boat Corporation, 4976 CRB 2-05-7 (July 26, 2006), that self insured employer and respondent insurers were sufficiently in privity such that application of collateral estoppel would not be inequitable. Respondents filed Motion for Reconsideration and Request for Reargument contending that CRB Opinion is inconsistent with Supreme Court’s analysis in Birnie v. Electric Boat Corp., 288 Conn. 392 (2008). Board denied motion on basis that no additional proceedings would alter fact that medical evidence relied upon by the administrative law judge in Birnie, which indicated that claimant’s exposure to asbestos was a contributing factor to his occupational disease, differed from medical evidence relied upon in matter at bar, which stated that claimant’s exposure to asbestos constituted a significant contributing factor to his occupational disease. Board also denied respondents’ request to reconsider its conclusions regarding whether privity existed between self-insured employer and respondent insurers.

Shults v. D.J. Hall Roofing, LLC, 6071 CRB-5-16-1 (January 13, 2017).

Trial commissioner determined claimant sustained repetitive trauma injury subsequent to an accidental injury and ordered an insurance carrier to pay additional permanency benefits and administer file. Carrier appealed to CRB, asserting that in absence of an identified date of injury liability could not be assessed. CRB determined date of last exposure was essential element of a repetitive trauma injury and remanded matter to ascertain this date for jurisdictional purposes. CRB also noted that identifying dates of insurance coverage was essential in § 31-299b C.G.S. cases, citing Graham v. Olson Wood Associates, 323 Conn. 720 (2016). See also, Shults, § 31-275(1); § 31-275(16); § 31-301 Factual findings; § 31-308(b).

Graham v. Olson Wood Associates, Inc., 5911 CRB-4-14-2 (January 29, 2015), appeal pending, AC 37680.

Connecticut Insurance Guaranty Fund (CIGA), dismissed from an apportionment claim pursuant to a “Finding and Decision” following a formal hearing, challenges subsequent decision by different trial commissioner to grant claimant’s Motion to Reinstate Party citing CIGA back into the claim. CRB affirmed, holding that because provisions of § 31-299b C.G.S. specifically contemplate that apportionment of liability does not occur until after conclusion of litigation on merits of underlying claim, trier correctly viewed CIGA’s dismissal as interlocutory rather than binding. CRB also affirmed trier’s rejection of CIGA’s assertion that its dismissal occurred after a “full evidentiary hearing” given that merits of underlying claim had yet to be adjudicated.

Levarge v. Electric Boat Corp., 5747 CRB-1-12-4 (January 13, 2014).

This is now the third opportunity that an issue pertaining to this claim has been presented to the CRB. This particular appeal flows from the CRB’s remand to the trial commissioner seeking a determination as to the causation standard applied in the LHWCA award. (See Levarge v. Electric Boat Corp., 5358 CRB-2-08-6 (June 16, 2009) and Levarge v. Electric Boat Corp., 4884 CRB-8-04-11 (November 30, 2005), dismissed for lack of final judgment, 282 Conn. 386 (2007), motion for reconsideration denied, S.C. 17659 (June 20, 2007)).

Here the trial commissioner applied the proximate causation analysis set out in Sapko v. State, 305 Conn. 360 (2012). The trier determined that the respondents Travelers and ACE were not collaterally estopped from defending the claim on the issue of causation as the LHWCA legal causation standard was less stringent than that required for chapter 568 claims. However, the respondent self insured failed to appeal the trier’s October 2004 ruling that it was collaterally estopped from defending the claim on the issue of causation and therefore could not benefit from the appellate efforts of the other respondents. See also, Levarge, § 31-301 Appeal procedure.

Antonowicz v. Barden Corporation, 5765 CRB 7-12-7 (June 19, 2013).

Claimant had sustained elbow injury while employed by Barden, and subsequently worked for other firms. Claimant had elbow surgery performed. Export witness retained by Barden opined that later repetitive trauma at work was 20% responsible for present disability and Barden filed Form 43 disclaiming responsibility under theory in Hatt v. Burlington Coat Factory, 263 Conn. 279 (2003). Trial commissioner denied relief, finding matter a case of “reverse apportionment” inconsistent with Stevens v. Raymark Industries, Inc., 5215 CRB-4-07-4 (March 26, 2008). CRB affirmed decision. Claimant did not participate in hearing, creating jurisdictional and evidentiary impediments. Claimant took no steps to place subsequent employers on notice he might have sustained a compensable injury while working with them. Barden failed to obtain testimony from claimant corroborating expert medical opinion. Hearing notices did not cite statute permitting relief against subsequent employers. CRB distinguished case on facts from Kelly v. Dunkin’ Donuts, 4621 CRB-4-03-2 (April 5, 2004). See also, Antonowicz, § 31-294c; § 31-349.

Iorlano v. Electric Boat Co., 5754 CRB-2-12-6 (April 29, 2013).

See also, Iorlano, § 31-278.

Dinneen v. Acands, Inc., 5664 CRB-3-11-7 (July 3, 2012).

Claimant with mesothelioma filed claim asserting he had a compensable injury as a result of working at prior employers where asbestos was present. Insurer for Cerro Wire challenged trial commissioner’s conclusion that workplace was last location of substantial exposure to asbestos for the claimant. CRB upheld decision. Totality of evidence on record indicated that although claimant had been more intensively exposed to asbestos at a prior employer, his exposure working as a computer operator in a manufacturing plant sufficient to constitute “substantial exposure.” See also, Dineen, § 31-275(15).

Gill v. Bescome Barton, Inc., 5659 CRB-8-11-06 (June 1, 2012).

Claimant had sustained two unrelated compensable knee injuries. Treating physician wanted to perform bilateral knee replacement surgery on both knees at once. Insurers on risk for initial injury to left knee and subsequent injury to right knee agreed to split expense of surgery, but did not agree on splitting temporary total disability payments post-surgery. Trial commissioner decided to split this expense 50-50. Carrier responsible for initial knee injury appealed arguing Hatt v. Burlington Coat Factory, 263 Conn. 279 (2003) and Malz v. State/University of Connecticut Health Center, 4701 CRB-6-03-7 (August 20, 2004) barred apportionment and entire expense of disability compensation rested with carrier on risk for subsequent right knee injury. That carrier cited Mund v. Farmers’ Cooperative, Inc., 139 Conn. 338 (1952) as authority supportive of decision. On appeal CRB found situation sui generis and distinguished all precedent as factually inconsistent with this scenario where claimant would be disabled due to two independent, unrelated injuries. Commissioner’s decision was affirmed as it implements intent of parties to split expense for surgery, including costs of recovery. If and when one knee recovers more quickly and claimant’s disability can be linked solely to one injury, CRB suggested a new hearing would be necessary to cause responsible party to absorb § 31-307b expense. See also, Gill, § 31-307b.

Ferraro v. Ridgefield European Motors, 5646 CRB-7-11-4 (April 17, 2012).

CRB affirmed the commissioner’s award of interest pursuant to § 31-299b. Respondent argued that as it agreed to its proportionate share of liability and the trial commissioner did not have to engage in fact finding to determine the respondent’s share, an award of interest was inappropriate. CRB was not persuaded and noted that although a compromise or agreement of the respondent’s proportionate share was reached, the trial commissioner was free to reject the agreement and make inquiry on his own. Additionally, the agreement as to the respondent’s proportionate share occurred after 3 formal hearing sessions.

Lantieri v. Anaconda American Brass Co., 5579 CRB-5-10-07 (June 28, 2011).

Insurer sought reapportionment of that portion of award attributable to an insolvent insurer against self-insured employer. Insurer cited Konovaluk v. Graphite Die Mold, Inc., 4437 CRB-3-01-9 (August 8, 2002) as authority for its position it may reapportion liability against Anaconda as a self-insured entity. Trial commissioner agreed with employer than Esposito v. Simkins Industries, 5065 CRB-3-06-3 (March 1, 2007), aff’d, 286 Conn. 319 (2008) differentiates between self-insured employers and insurers for reapportionment. CRB upheld decision. Konovaluk not applicable to self-insurers as it calls for risk of insurer insolvency to fall on insurance industry. Esposito precedent governs situation.

Brooks v. Electric Boat Corporation, et al, 5485 CRB-1-09-08 (August 9, 2010), aff’d, 133 Conn. App. 377 (2012).

Widow of claimant decedent successfully established that her husband’s exposure to asbestos was substantial cause in his death and therefore trial commissioner awarded benefits under § 31-306 C.G.S. Trial commissioner determined that final level of substantial exposure to asbestos occurred when claimant was working in 1988 for W. J. Barney and that later exposure was de minimis for purposes of § 31-299b apportionment. CIGA as successor to W. J. Barney’s insurance carrier appealed on numerous grounds. As to occupational disease issues CRB found trial commissioner’s conclusion rooted in evidence and congruent with holding in Stevens v. Raymark Industries, Inc., 5215 CRB-4-07-4 (March 26, 2008). Appellate Court affirmed CRB decision. See also, Brooks, § 31-275(15), § 31-301 Factual findings, § 31-306.

Robert v. Electric Boat Corp., 5372 CRB 2-08-8 (September 30, 2009).

This matter is a continuation of Robert v. Electric Boat Corporation, 4976 CRB-2-05-7 (July 26, 2006), and Robert v. Electric Boat Corp., 4691 CRB-2-03-7 (June 14, 2004). Again the issue concerns whether the respondent should be collaterally estopped from defending on the issue of causation as a determination as to proximate cause was made under the Longshore Harbor Workers’ Compensation Act. Following the Supreme Court’s holding in Birnie v. Electric Boat Corp., 288 Conn. 392 (2008) CRB held remand necessary for purpose of determining the causation standard applied by federal ALJ.

Neville v. Baran Institute of Technology, 5383 CRB-8-08-10 (September 24, 2009).

Claimant suffered compensable injuries at prior employer and then was injured while employed at respondent. Injury to claimant’s cervical spine aggravated. Trial commissioner applied Hatt v. Burlington Coat Factory, 263 Conn. 279 (2003) to determine that last employer should be fully responsible for claimant’s cervical spine condition going forward. CRB reversed on issue. There was no expert testimony that aggravation was more than temporary; statute (§ 31-349 (a) C.G.S.) requires aggravation to be material and permanent in order to apply Hatt. See, Neville, § 31-301. Factual findings, § 31-349.

Levarge v. Electric Boat Corp., 5358 CRB-2-08-6 (June 16, 2009).

This matter is a continuation of Levarge v. Electric Boat Corp., 4884 CRB-8-04-11 (November 30, 2005), dismissed for lack of final judgment, 282 Conn. 386 (2007), motion for reconsideration denied, S.C. 17659 (June 20, 2007). The issue here flows from the post remand action of the trial commissioner. In a Supplemental Finding and Award the trial commissioner apportioned liability and again held that other insurers on the risk during the dececent’s period of asbestos exposure were collaterally estopped from defending the issue of causation. The CRB determined, that based on the Supreme Court’s holding in Birnie v. Electric Boat Corporation, 288 Conn. 392 (2008) further proceedings were necessary to determine the legal standard applied by the Longshore Harbor Workers’ Compensation Act’s administrative law judge in his decision and whether it was consistent with the standard for proof for proving causation under our Act.

Franklin v. Superior Casting, 5269 CRB-7-07-9 (June 15, 2009).

Claimant awarded benefits for occupational disease. Respondent employer had two carriers on risk during time of exposure; one of which was defunct and Connecticut Insurance Guaranty Association (CIGA) responsible for their obligations. Trial Commissioner determined CIGA responsible for claim with right of apportionment against other carrier. CIGA appealed arguing this was not a “covered claim” and that Hunnihan v. Mattatuck Manufacturing, 243 Conn. 438 (1997) barred CIGA from paying claim. CRB upheld trial commissioner. Trial commissioner properly relied on Connecticut Ins. Guaranty Assn. v. State, 278 Conn. 77 (2006) to find this was a “covered claim.” Hunnihan only bars payment to solvent insurers; not claims from injured workers. Plain meaning of statute only exempts Second Injury Fund from acting as lead party for apportionment; does not exempt CIGA. Rationale in Christensen v. H & L Plastics Co., Inc., 5171 CRB-3-06-12 (November 19, 2007) applies to case. See also Franklin, § 31-355e.

Chmielewski v. Reno Machine Company, Inc., 5273 CRB-6-07-9 (May 4, 2009).

Claimant injured twice. Trial commissioner determined that medical evidence supported finding that initial injury was cause for claimant’s surgery. Carrier on first injury appealed, asserting decision was contrary to Hatt v. Burlington Coat Factory, 263 Conn. 279 (2003). CRB upheld decision, facts consistent with Lamontagne v. F & F Concrete Corporation, 5198 CRB-4-07-2 (February 25, 2008). See also, Chmielewski, § 31-301. Factual findings C.G.S.

Tufts v. Cary/New England Building, 5297 CRB-7-07-11 (November 5, 2008).

CRB held Public Act 05-199 § 1 which amended § 31-299b applied to the instant matter and thus, the Second Injury Fund was shielded from contributing for the apportioned share of liability assigned to an insolvent employer. CRB held that Public Act 05-199 was effective July 1, 2006 and thus, by its own terms and § 1-2z, was applicable. Further, the CRB opined principles of stare decisis and the ratio decidendi of the Supreme Court in Badolato v. City of New Britain, 250 Conn. 753 (1999) compelled a reversal of the trial commissioner’s determination.

Stevens v. Raymark Industries, 5215 CRB-4-07-4 (March 26, 2008), appeal dismissed, A.C. 29795 (June 26, 2008).

Dependent widow awarded benefits after husband’s death as trial commissioner concluded prior compensable injury substantial factor in his death. Respondent sought to have award apportioned against subsequent employers. CRB upheld denial of this relief. Trial commissioner conclusion that decedent was not substantially exposed to asbestos at subsequent job a reasonable determination based on evidence in record; without such exposure Konovaluk v. Graphics Die Mold, Inc., 4437 CRB-3-01-9 (August 8, 2002) precludes relief. Statute also lacks mechanism for a prior employer to assert rights against subsequent employer. See also, Stevens, § 31-301. Appeal procedure, § 31-306, § 31-355(b).

Christensen v. H & L Plastics Co., Inc., 5171 CRB-3-06-12 (November 19, 2007).

Claimant had suffered two separate compensable injuries while two different carriers insured respondent. Original carrier, Wausau Insurance, reached agreement with Reliance to split obligations for claim with Wausau administering claim. Reliance became insolvent prior to Wausau stipulating to settlement of claim. Wausau attempted to force Connecticut Insurance Guaranty Association (CIGA) to honor terms of agreement it had with Reliance to contribute to settlement. Trial commissioner ordered CIGA to honor Reliance’s agreement, deeming it “last carrier on the risk”. Wausau appealed and CRB reversed trial commissioner. CIGA cannot honor claims for reimbursement from solvent insurers as per precedent in Hunnihan v. Mattatuck Manufacturing, 243 Conn. 438 (1997). Concept of legislative acquiescence stated in Hummel v. Marten Transport, Ltd., 282 Conn. 477, 496-502 (2007) indicates General Assembly has ratified this policy.

Daley v. Schindler Elevator Corp., 4973 CRB-8-05-7 (March 13, 2007).

Claimant worked as elevator mechanic for 39 years. Employer Westinghouse Co. was purchased by employer Schindler in/about 1990. Claimant diagnosed with mesothelioma in 2003. Trier found extensive exposure to asbestos occurred through late 1970’s (when claimant began wearing protective mask), but no persuasive evidence of significant exposure after late 1980’s. CRB affirmed trier’s holding that Westinghouse rather than Schindler was required to assume initial liability under § 31-299b. Filing of Form 30C against Schindler did not shift burden away from claimant to prove injurious exposure occurred during period of employment. Schindler had no affirmative duty to submit evidence contradicting claimant’s allegation of asbestos exposure, unlike the duty created by statutes that utilize rebuttable presumptions. See also, Daley, § 31-301. Appeal procedure.

Esposito v. Simkins Industries, Inc., 5065 CRB 3-06-3 (March 1, 2007), aff’d, 286 Conn. 319 (2008).

Trial commissioner permitted self-insured employer to apportion share of award which would have been paid by a defunct insurance carrier to Connecticut Insurance Guaranty Association. CIGA appealed and CRB upheld trial commissioner. Recent case of CIGA v. State, 278 Conn. 77 (2006) reiterates principle in Doucette v. Pomes, 247 Conn. 442 (1999) that a self-insured employer may apportion the obligations of a failed carrier against CIGA.

Robert v. Electric Boat Corporation, 4976 CRB-2-05-7 (July 26, 2006).

Collateral estoppel doctrine applied to finding of compensability in LHWCA case despite difference in standards of proof between Longshore Act and Workers’ Compensation Act. Evidence was sufficient to establish asbestos exposure as substantial contributing factor in development of colorectal cancer. No right to relitigate compensability in this forum. Also, under collateral estoppel doctrine, insurers were in privity with self-insured employer who was initially liable under § 31-299b, and said employer was thus entitled to seek apportionment against previous insurers on risk. Prior decision at Robert, 4691 CRB-2-03-7 (June 14, 2004), infra.

Buser v. G.R. Cummings Co., 4963 CRB-5-05-6 (June 8, 2006).

Widow pursued claim for § 31-306 benefits after husband, who had filed an occupational disease claim, died. Husband had already prevailed on federal LHWCA claim. Trial commissioner found for claimant pursuant to precedent in Lafayette v. General Dynamics Corp./Electric Boat Div., 255 Conn. 762 (2001) and determined last employer had § 31-299b apportionment rights against prior employers. CRB upheld Finding and Award. Stare decisis compels reliance on Lafayette precedent. No evidence causation issues not properly adjudicated in federal forum. Precedent in Levarge v. Electric Boat Corp., 4884 CRB 8-04-11 (November 30, 2005) bars relitigation of causation issues and is dispositive of privity issues. Last employer may pursue apportionment from prior employers under precedent in Barron v. City Printing Company, 55 Conn. App. 85 (1999). Other employers may assert defenses in apportionment proceeding. See also, Buser, § 31-301. Factual findings.

Levarge v. Electric Boat Corp., 4884 CRB-8-04-11 (November 30, 2005).

Insurer was not entitled to relitigate compensability of decedent’s laryngeal cancer following determination by administrative law judge that it was compensable under federal LHWCA. ALJ’s decision was not affected by federal presumption of compensability following establishment of prima facie case or differences in minimum standards of proof under federal and state laws, as ALJ relied upon a medical report that was strong enough to establish that workplace asbestos exposure played a significant role in decedent’s development of cancer. Collateral estoppel doctrine applied. Also, privity existed between insurer and self-insured employer, as insurers and Electric Boat shared a common legal right and similar risk of liability. Electric Boat’s interest in federal proceedings was sufficiently identical to insurer’s interest within meaning of collateral estoppel doctrine.

Gacy v. Westchester Motor Lines, 4867 CRB-3-04-9 (October 12, 2005).

Insurer/employer accepted specific back injury claim of February 18, 1998, but denied specific incident of October 2, 1998 and repetitive trauma claim of January 28, 2000, as per settlement. Insurer then sought apportionment from Liberty Mutual, the insurer on risk in late 1980’s, based on Dr. Sella’s report stating that cumulative effect of truck driving from 1987 forward caused deterioration of claimant’s back. Trier held apportionment unavailable for repetitive trauma exposure during 1987-1989. CRB affirmed. Settlement agreement did not constitute acceptance of disputed claim. Liberty Mutual was not notified of stipulation approval hearing. Claimant testified that repetitive trauma injury being claimed was only for trauma that occurred between 1999-2000. Trier was entitled to find that repetitive trauma period began in 1999, and was not required to rely on reports of Dr. Sella in her decision.

Rodriguez-Colon v. Easter Seals Goodwill Industries, 4804 CRB-3-04-4 (June 22, 2005).

Trier confirmed on record that formal hearing was only to address compensability, not entire period of causation under § 31-299b. CRB affirmed finding that claimant’s repetitive trauma exposure occurred from 1989 through present, as evidence supported finding that trauma occurred over time. Board stressed that finding did not resolve proportionate amounts of exposure for prior insurers, including appellant. See also, Rodriguez-Colon, § 31-294c, § 31-298, § 31-301. Factual findings.

Anderson v. W.A. Crosscup, Inc., 4795 CRB-3-04-3 (March 23, 2005).

CRB discussed whether Second Injury Fund is responsible to reimburse § 31-299b carrier for periods in which there were uninsured employers in the context of a determination regarding § 31-355 issue. See also, Anderson, § 31-355(b).

Sadosky v. U.S. Properties, Inc., 4751 CRB-2-03-11 (November 2, 2004).

CRB affirmed trier’s determination claimant suffered a continuous exposure to repetitive trauma, not merely an aggravation of symptoms, and assessed liability against the last insurer under § 31-299b. See also, Sadosky, § 31-298.

Malz v. State/University of Connecticut Health Center, 4701 CRB-6-03-7 (August 20, 2004).

See, Malz, § 31-349 (§ 31-299b does not encompass separate identifiable injuries to same body part); See also, Malz, § 31-296. Voluntary agreements (approval of), § 31-307a.

Robert v. General Dynamics, 4691 CRB-2-03-7 (June 14, 2004).

CRB affirmed and modified trial commissioner’s ruling permitting respondents additional to the § 31-299b entity to participate in proceedings, limited to showing why they should not be collaterally estopped from litigating causation by a prior LHWCA decision.

Jacobson v. General Dynamics/Electric Boat Div., 4642 CRB-2-03-3 (March 12, 2004).

See, Jacobson § 31- 275(1)(D), § 31-300, § 31-301. Factual findings, § 31-301-4.

Doran v. State/DMR, 4519 CRB-6-02-4 (April 16, 2003).

CRB held Hatt v. Burlington Coat Factory, 263 Conn. 279 (2003) not applicable as commissioner found subsequent employment and concomitant injuries did not substantially contribute to claimant’s disability.

Ortiz v. United Illuminating Co., 4432 CRB-4-01-8 (August 8, 2002).

Based on CRB’s opinion in Hatt v. Burlington Coat Factory, 4326 CRB-2-00-12 (December 19, 2001), aff’d, 263 Conn. 279 (2003), CRB held apportionment not available under this factual scenario. See also, Ortiz, § 31-349.

Konovaluk v. Graphite Die Mold, Inc., 4437 CRB-3-01-9 (August 8, 2002).

Reversing trier’s decision, CRB held that § 31-299b allows last insurer on risk to seek apportionment and reimbursement for share of claim attributable to coverage period of now-insolvent insurer, based upon respective proportions of liability of all solvent insurers who are on risk for a portion of claim. Hunnihan v. Mattatuck Mfg. Co., 243 Conn. 438 (1997), disallowed recovery from Connecticut Insurance Guaranty Association for share of claim attributable to insolvent insurer, but Court specifically left open question of reapportionment of that share among remaining solvent insurers. CRB noted § 31-299b was amenable to two readings, and then examined its legislative history, origin and purpose, and related case law, including Hunnihan and its interpretation of CIGA, in reaching its decision.

Hatt v. Burlington Coat Factory, 4326 CRB-2-00-12 (December 19, 2001), aff’d, 263 Conn. 279 (2003).

Statute does not provide for apportionment of liability between insurer liable for specific accidental injury and insurer liable for subsequent repetitive trauma injury to same body part. See also, Hatt, § 31-301. Appeal procedure; § 31-349.

Kelly v. Dunkin’ Donuts, 4278 CRB-4-00-8 (November 1, 2001).

Apportionment under § 31-299b inapplicable to case involving two separate accidental injuries that contribute to overall disability. See, Kelly, § 31-301. Factual findings, § 31-349. Subsequent decision at Kelly, 4621 CRB-4-03-2 (April 5, 2004), § 31-299b, § 31-301. Factual findings, § 31-349.

Harbec v. Stone & Webster Engineering Corp., 4308 CRB-8-00-10 (August 29, 2001).

Claimant widow had settled decedent’s asbestos-related occupational disease claim, and her own survivor’s claim, via settlement with a number of decedent’s former employers and their insurers, including his last employer. Trier held that claimant could pursue an occupational disease claim against remaining employers, whose insurer had become insolvent, even though she could not seek relief against the Connecticut Insurance Guaranty Association. CRB held that, in an occupational disease case under § 31-299b, last employer is made initially liable for benefits, with apportionment to be ordered later. CIGA statute forbids recovery from CIGA where claimant has not exhausted rights under any valid insurance policy. As claimant had settled case rather than exhausting liability of solvent insurers on risk, including last employer’s insurers, she could not seek relief from CIGA. CRB also reversed trier’s decision allowing claimant to seek relief directly from employers. Though language of CIGA statute forbidding claims “against the insured of such insolvent insurer” was not added to statute until several months after date of first manifestation of disease, CRB held that the amendment was merely a clarification of existing definition of “covered claim.” Prior decision at Harbec, 4308 CRB-8-00-10 (August 29, 2001), § 31-296. Voluntary agreements (approval of).

Kisson v. Shawmut National Bank, 4188 CRB-5-00-2 (March 16, 2001).

Apportionment of liability possibly required based on aggravation of elbow condition by subsequent workplace exposure. See also, Kisson, § 31-301. Factual findings; § 31-301-9.

Depina v. CHR, 4040 CRB-3-99-4 (May 9, 2000).

Respondent disputed trial commissioner’s conclusion that claimant’s carpal tunnel and cubital tunnel syndromes were caused by injurious exposure at work from 1992 through August of 1998 (the date of the last formal hearing). CRB affirmed, as this was a factual matter for the trier and was fully supported by the record. Although the last medical documentation was dated January 14, 1998, the claimant testified that his injurious exposure to repetitive trauma continued to the date of the formal hearing.

Pantanella v. Enfield Ford, 3937 CRB-1-98-11 (January 7, 2000), aff’d, 65 Conn. App. 46 (2001), cert. denied, 258 Conn. 930 (2001)(along with Case No. 3377).

In a footnote, CRB discussed inapplicability of § 31-299b to a case in which the claimant sustained several discrete back injuries. The issue at bar was whether the appellant CIGA could rely upon Hunnihan v. Mattatuck Mfg. Co., 243 Conn. 438 (1997), to establish that this was a reimbursement claim by an insurer, i.e., statutorily prohibited. See also, Pantanella, § 31-300, § 31-301. Factual findings, § 31-298, § 31-315. Subsequent decision at Pantanella, 4220 CRB-1-00-4 (December 19, 2000), § 31-298, § 31-300. Prior decision at Pantanella, 3377 CRB-1-96-7 (January 28, 1998), infra, § 31-298, § 31-301. Factual findings, § 31-355(e).

Simmons v. UTC/Sikorsky Aircraft Div., 3904 CRB-4-98-9 (September 17, 1999).

Two voluntary agreements were signed, each detailing a separate date of injury with a different insurer, with both pertaining to the same lung impairment, and dividing responsibility for an overall 15% permanent partial disability. Subsequently, one insurer became insolvent, and CIGA challenged the assertion that it was required to accept responsibility for 37.5% of the claimant’s benefits under § 31-355(e) and the Connecticut Insurance Guaranty Act. The trier ruled that, pursuant to the voluntary agreements, CIGA’s liability ran directly to the claimant, and Hunnihan v. Mattatuck Mfg., 243 Conn. 438 (1997), did not absolve CIGA of responsibility. CRB affirmed. There was no medical evidence of any kind in the record, and no support for CIGA’s argument that the claimant’s injuries should be treated like a § 31-299b case with a single period of repetitive trauma exposure. See also, Simmons, § 31-355(e).

Woods v. New Haven Manufacturing, 3820 CRB-4-98-5 (June 28, 1999).

CRB reversed trier’s assessment of 65% of liability to an employer pursuant to § 31-299b. Trier apparently relied upon a physician’s opinion that “one-half or more” of the claimant’s condition was the result of her work for that employer. While CRB recognized that trial commissioner is the sole finder of fact, by allowing the commissioner to choose any percentage above fifty percent, he would be permitted to make a finding of fact that is subjective and not specifically supported by a medical opinion.

Babcock v. General Dynamics Corporation/Electric Boat Division, 3456 CRB-8-96-11 (May 20, 1998).

CRB affirmed trial commissioner’s apportionment pursuant to § 31-299b where claimant sustained exposure to asbestos at two different employers. Apportionment was a question of fact.

Barron v. City Printing, Inc., 3497 CRB-3-96-12 (April 29, 1998), aff’d, 55 Conn. App. 85 (1999).

See, Barron, § 31-294c. See also, Barron, § 31-301. Factual findings.

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)(along with Case No. 3937).

Case involved four distinct injuries, and liability was not apportioned under § 31-299b. See also, Pantanella, § 31-298, § 31-301. Factual findings, § 31-355(e). Subsequent decisions in Pantanella, 4220 CRB-1-00-4 (December 19, 2000), § 31-298, § 31-300; Pantanella, 3937 CRB-1-98-11 (January 7, 2000), supra and § 31-298, § 31-300, § 31-301. Factual findings, § 31-315.

Campbell v. UTC/Norden Systems, 3295 CRB-4-96-3 (November 20, 1997).

See, Campbell, § 31-301. Factual findings. See also, Campbell, § 31-307.

Joslyn v. U.S. Silica Co., 16 Conn. Workers’ Comp. Rev. Op. 247, 3281 CRB-8-96-2 (June 24, 1997).

Statute allows trier to assign proportional liability among prior employers for injuries occurring over a time continuum. However, it does not apply to the most recent employer when it is clear that no injurious exposure occurred during that employment, even though the imposition of liability on the last employer under § 31-299b is a policy of administrative convenience rather than a presumption of true joint liability. Issue of corporate successor’s identity also raised. Trier could have reasonably found that current “U.S. Silica Company” was the current version of the entity once known as the “Connecticut Silicon Division” of the Ottawa Silica Company, and ordered U.S. Silica to accept initial responsibility for the injury under § 31-299b. However, the evidentiary process also eliminated the ultimate liability of Travelers Insurance, and CRB ruled it should no longer be involved in the administration of this claim. Liberty Mutual’s argument that Travelers’ conduct has prejudiced its interests has no legal relevance to the apportionment of liability under § 31-299b.

Desantis v. Middlebury, 3182 CRB-5-95-10 (February 27, 1997).

See, Desantis, § 31-301.

Lefevre v. Marty Gilman, Inc., 3175 CRB-8-95-9 (February 19, 1997).

CRB affirmed the trial commissioner’s conclusion that the claimant’s heavy lifting duties at the respondent employer constituted an intervening cause with respect to the prior employer where he had sustained a prior injury to his back. Thus, the respondent employer was liable for the additional five percent permanent partial disability, as the remaining ten percent permanency had been paid or was payable by the prior employer. The trial commissioner properly apportioned the resulting permanent partial disability based upon § 31-349 rather than § 31-299b.

Koczur v. O.Z. Gedney, 3051 CRB-8-95-3 (December 20, 1996).

CRB affirmed the trial commissioner’s decision which apportioned the resulting liability equally between two insurers where the claimant sustained two injuries that were equal, concurrent, and contributing causes of her disability and need for medical treatment, including a herniated disc. Although the general rule in workers’ compensation law is that employer is liable to fully compensate claimant for full extent of disability regardless of preexisting condition, hardships caused by that rule have led to enactment of apportionment statutes such as § 31-349 and § 31-299b (held inapplicable here). CRB held that trial commissioner’s apportionment was proper pursuant to the common-law theory in Mund v. Farmers’ Cooperative, Inc., 139 Conn. 338 (1952). See also, Jolicoeur, infra, this section.

Hunnihan v. Mattatuck Mfg. Co., 16 Conn. Workers’ Comp. Rev. Op. 72, 2297 CRB-5-95-2 (October 30, 1996), rev’d, 243 Conn 438 (1997).

Claimant’s repetitive trauma extended over 17 years, during which time four separate insurers were on risk. Pursuant to § 31-299b, last insurer paid benefits and then sought reimbursement from other insurers. One insurer had become insolvent, so last insurer sought payment from Connecticut Insurance Guaranty Association under § 38a-836. The commissioner ordered CIGA to pay insolvent insurer’s share of benefits to last insurer; he also ruled that Workers’ Compensation Commission had no jurisdiction to consider CIGA’s constitutional defenses to liability. The CRB affirmed the trial commissioner, and held that the Workers’ Compensation Commission has jurisdiction to apply CIGA statute; core issue is a workers’ compensation question, and CIGA Act interpretation is incidental to its resolution. Legislative concern that most recent employer not unfairly be subjected to ultimate liability because of § 31-299b and the language of that statute show that liability is placed on last employer for administrative convenience, but true joint liability is not created. Commissioner is required to order reimbursement if he finds prior employers/insurers liable for any part of disability. Insurer can be a claimant under language of CIGA Act, and purposes of that act and Chapter 568 would not be furthered by preventing such a claim. Reversed by Supreme Court, which held that CIGA was established for the benefit of consumers, and claims for reimbursement of insurers are excluded from coverage. NOTE: The Court agreed that a trial commissioner does have subject matter jurisdiction to adjudicate a claim for reimbursement under the CIGA statute. See also, Hunnihan, § 31-355(e).

Works v. John Olender Corp., 15 Conn. Workers’ Comp. Rev. Op. 386, 2260 CRB-2-95-1 (August 6, 1996).

Trial commissioner found that claimant’s disability was caused equally by work-related disc herniation, scar tissue from earlier surgery, and underlying spondylosis. As “immediate proximate cause” of total disability was work at Olender Corp., commissioner ruled it was liable for benefits. Held: sufficient evidence existed to establish a repetitive trauma injury. As for apportionment among previous employers, § 31-299b need not apply; commissioner found that work at Olender was sole proximate cause of back disability. Lighter duties were performed at previous employers. Commissioner was also entitled to infer that common-law apportionment was inappropriate based on causation. See, Jolicoeur, infra this section.

Estey v. Hartford Distributors, 15 Conn. Workers’ Comp. Rev. Op. 76, 2162 CRB-5-94-9 (December 6, 1995).

The trial commissioner found that the claimant had sustained compensable injuries to his back on March 13, 1986 and July 10, 1987, and apportioned the claimant’s resulting fifteen percent permanent partial disability between the two carriers that insured the employer at the time of the accidents. The commissioner found that the claimant suffered from a degenerative disc disease which preexisted the first injury, that the preexisting disease constituted one-half of the cause of his permanent partial disability, and that the two injuries were equally responsible for causing the remaining fifty percent of the permanent partial disability. CRB held that apportionment of liability between the two employers was appropriate under Mund v. Farmers’ Cooperative, Inc., 139 Conn. 338 (1952). CRB further ruled that the insurer of the first injury was responsible for the permanent partial disability caused by that injury including the preexisting condition (seventy-five percent), and that the second insurer was responsible for the percentage attributable to the second injury only (twenty-five percent). See, Jolicoeur v. L.H. Duncklee Refrigeration, 14 Conn. Workers’ Comp. Rev. Op. 24, 1842 CRB-2-93-9 ( May 3, 1995).

Sidella v. Kelly Services, 15 Conn. Workers’ Comp. Rev. Op. 72, 2151 CRB-5-94-9 (December 6, 1995).

Kelly Services argued on appeal that the commissioner improperly failed to apportion liability pursuant to § 31-299b. CRB affirmed the trial commissioner’s decision, as the trial commissioner’s determination that the claimant sustained two separate compensable injuries was adequately supported by the record. See, Milardo v. EIS/Div. Parker Hannifin, 15 Conn. Workers’ Comp. Rev. Op. 27, 2034 CRB-8-94-4 (November 15, 1995), infra.

Milardo v. EIS/Div. Parker Hannifin, 15 Conn. Workers’ Comp. Rev. Op. 27, 2034 CRB-8-94-4 (November 15, 1995).

Trial commissioner apportioned liability between two employers where claimant sustained injuries to his back while employed with each employer. Section 31-299b apportionment 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. Although CRB found error in the commissioner’s ruling that § 31-299b was applicable to this case, CRB held that apportionment of liability between the two employers was appropriate under Mund v. Farmers’ Cooperative, Inc., 139 Conn. 338 (1952) and the common-law tort theory of causation espoused by that court. See, Jolicoeur v. L.H v. Duncklee Refrigeration, 14 Conn. Workers’ Comp. Rev. Op. 24, 1842 CRB-2-93-9 (May 3, 1995).

Lawrence v. Dichello Distributors, 15 Conn. Workers’ Comp. Rev. Op. 16, 2038 CRB-4-94-5 (November 7, 1995).

Claimant suffered repetitive trauma injury with exposure from 1963 to 1988. Two insurers were on the risk during those years. Trial commissioner ordered claim transferred to Second Injury Fund, because claimant had pre-existing permanent impairment when second insurer accepted the risk. Held, repetitive trauma injury is a single injury under the law. Section 31-349 only applies where there is more than one injury. Second insurer should look to § 31-299b for apportionment of liability for repetitive trauma injury between both insurers. Remanded for a decision on the propriety of apportionment under § 31-299b.

Lundquist v. Parkway Pavilion, 15 Conn. Workers’ Comp. Rev. Op. 7, 2044 CRB-1-94-5 (November 1, 1995), appeal dismissed for lack of final judgment, A.C. 15412, 15415 (February 22, 1996).

See, Lundquist, § 31-349.

Lowe v. General Dynamics Corporation/Electric Boat Division, 14 Conn. Workers’ Comp. Rev. Op. 118, 1746 CRB-2-93-5 (June 5, 1995).

Where commissioner determined employment at Navy Yard partially caused claimant’s asbestosis, but did not attempt to exercise jurisdiction over Navy Yard as an employer under § 31-275(10), it was improper for commissioner to apply § 31-299b in apportioning award payable by General Dynamics’ insurer. Section 31-299b embodies common-law concept of joint liability, and applies where single injury occurs over time involving several employers or carriers. If there are no prior employers or insurers within the meaning of the statute, liability cannot be apportioned.

Jolicoeur v. L. H. Duncklee Refrigeration, Inc., 14 Conn. Workers’ Comp. Rev. Op. 24, 1842 CRB-2-93-9 (May 3, 1995).

Section 31-299b did not apply where the claimant suffered two compensable back injuries that were found to be equally contributing causes of the need for surgery. The statute refers to a single “injury or disease” as opposed to a disability, and was meant to impose joint liability where a single injury is sustained over time. See also, Jolicoeur, § 31-349.

Vigneri v. Utility Industrial Company, 12 Conn. Workers’ Comp. Rev. Op. 402, 1433 CRB-2-92-6 (September 9, 1994).

Apportionment of liability equally between employers supported by medical evidence as trier found disability due to two separate and distinct events. See also, Vigneri, § 31-301. Appeal procedure and § 31-315.

Holmes v. G.A. Masonry Corp., 12 Conn. Workers’ Comp. Rev. Op. 369, 1588 CRB-5-92-12 (August 11, 1994).

CRB vacated trier’s finding of equal apportionment among insurers where physician clearly changed his opinion as to apportionment during cross examination. See also, Holmes, § 31-294c and § 31-301. Factual findings. Subsequent decisions at Holmes, 3338 CRB-8-96-5 (December 16, 1997), § 31-294c, Holmes, 4027 CRB-5-99-4 (November 7, 2000), § 31-349, Holmes, 4375 CRB-6-01-4 (March 4, 2002), 76 Conn. App. 563 (2003).

Prioleau v. Larosa Construction, 12 Conn. Workers’ Comp. Rev. Op. 140, 1432 CRB-8-92-6 (April 7, 1994).

See, Prioleau, § 31-308(b), § 31-307 and § 31-349.

DeLucia v. Modena, 12 Conn. Workers’ Comp. Rev. Op. 212, 1471 CRB-3-92-7 (March 15, 1994).

Finding that right shoulder injury sustained by hairdresser was the result of repetitive trauma and years of employment in that profession with various employers supported by medical evidence. See also, DeLucia, § 31-275(16)[formerly 31-275(8)] and § 31-301. Appeal procedure.

Capen v. Genera Dynamics Corporation/Electric Boat Division, 11 Conn. Workers’ Comp. Rev. Op. 326, 1394 CRB-2-92-3 (December 30, 1993), aff’d, 38 Conn. App. 73 (1995).

Record lacks sufficient evidence to support trier’s finding that decedent was exposed to asbestos while employed out of state. CRB remanded with direction to award dependency benefits at full compensation rate as opposed to trier’s reduction in benefits. See also, Capen, § 31-294c, § 31-306.

Cloutier v. C.N. Flagg, 11 Conn. Workers’ Comp. Rev. Op. 304, 1352 CRD-2-91-11 (December 23, 1993).

Asbestos exposure found to be a substantial contributing factor to claimant’s lung cancer. CRB vacated trier’s award against one respondent insurer as they found claimant was not exposed to asbestos in the workplace during period said insurer was on risk. However, CRB affirmed trier’s award against another respondent insurer as evidence supports finding that claimant was exposed to asbestos in the workplace during period said insurer was on risk. See also, Cloutier, § 31-275(15).

Thomen v. Turri Electric, 11 Conn. Workers’ Comp. Rev. Op. 299, 1324 CRD-5-91-10 (December 23, 1993).

Insurer mistakenly relied on § 31-299b where § 31-349 properly applied. Trier found wrist injury in 1989 a new injury. Therefore, any benefits, including permanent partial disability, payable to claimant and attributable to the 1989 injury were reduced by the amount previously paid for the 1981 compensable wrist injury where a separate insurer was at risk.

Gargano v. General Dynamics Corporation/Electric Boat Division, 11 Conn. Workers’ Comp. Rev. Op. 287, 1285 CRD-2-91-8 (December 7, 1993).

CRB remanded matter as trier must determine if claim against insurer should be dismissed where there is no evidence presented showing decedent was exposed to asbestos during period where said insurer covered employer for workers’ compensation purposes. See also, Gargano, § 31-275(15).

Petta v. Waterbury Hospital, 11 Conn. Workers’ Comp. Rev. Op. 161, 1310 CRD-5-91-9 (August 23, 1993).

Before apportionment can be determined, there must be a factual finding to support such a determination. See also, Petta, § 31-298, § 31-300, § 31-301 and § 31-308a.

Galpin v. Joyce Moving & Storage, Inc., 11 Conn. Workers’ Comp. Rev. Op. 31, 1241 CRD-5-91-6 (February 26, 1993).

Remanded where claimant contends he performed work as a lent employee during twenty-six week period prior to his injury and sought to offer proof of additional wages earned. See also, Galpin, § 31-310.

Codding v. Colchester Egg Farms, Inc., 11 Conn. Workers’ Comp. Rev. Op. 4, 1232 CRD-2-91-5 (February 4, 1993).

Remanded as trier’s conclusion inconsistent with factual findings. Trier found causation, i.e., claimant’s occupational sensitivity to chicken products occurred during all times of exposure, i.e., 11 years of self employment plus 17 years employment with Colchester Egg Farms. Trier then found causation for claimant’s injury was only ascribed to the 17 year period claimant worked for Colchester Egg Farms. Apportionment of liability for only 17 year period must be reexamined by trier. See also, Codding, § 31-307, § 31-349.

Muldoon v. Homestead Insulation, 10 Conn. Workers’ Comp. Rev. Op. 255, 1226 CRD-4-91-5 (January 13, 1993), rev’d, 33 Conn. App. 695 (1994), rev’d, 231 Conn. 469 (1994), aff’d on remand, 37 Conn. App. 695 (1995)(per curiam).

Factual finding that respondent employer Cummings Insulation was the last employer subjecting claimant to asbestos exposure will not be disturbed on appeal. See also, Muldoon, § 31-275(1), § 31-275(15), § 31-296, § 31-315 and § 31-284(a). Subsequent decisions.

Perrotti v. Portland Chemical, 8 Conn. Workers’ Comp. Rev. Op. 105, 836 CRD-8-89-3 (June 6, 1990).

Matter remanded where trial commissioner’s order was inconsistent with facts found. Specifically, remanded for clarification and determination of facts which would support ultimate apportionment of liability between carriers under § 31-299b.

Brown v. Bon Dental Lab, 6 Conn. Workers’ Comp. Rev. Op. 132, 594 CRD-7-87 (March 28, 1989).

While primarily procedural, retrospective application not permitted because commission lacked jurisdiction over out-of-state employers.

Borg v. Waterford Country School, 2 Conn. Workers’ Comp. Rev. Op. 70, 156 CRD-2-82 (July 3, 1984).

Apportionment of liability appropriate where disability results from concurrent causes.


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