Opinion
CASE NO. 5372 CRB-2-08-8
SEPTEMBER 30, 2009
These Petitions for Review from the August 13, 2008 Finding of the Commissioner acting for the Eighth District were heard June 19, 2009 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Peter C. Mlynarczyk and Randy L. Cohen.
The claimant was represented by Carolyn P. Kelly, Esq., Suisman, Shapiro, Wool, Brennan, Gray Greenberg, P.C., 2 Union Plaza, Suite 200, P.O. Box 1591, New London, CT 06320.
The respondent-employer Electric Boat Corporation was represented by Peter D. Quay, Esq., Law Office of Peter D. Quay, LLC, P.O. Box 70, Taftville, CT 06380.
The respondent-insurer Liberty Mutual Insurance Company was represented by Marian H. Yun, Esq., Law Offices of Turret Rosenbaum, 101 Barnes Road, 3rd Floor, Wallingford, CT 06492.
The respondent-insurer Travelers Property Casualty and ACE USA were represented by Lucas D. Strunk, Esq., Pomeranz, Drayton Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.
OPINION
The respondents, Travelers Property Casualty and ACE USA, and Liberty Mutual Insurance along with the respondent employer-self insured, Electric Boat, appeal from the August 13, 2008 Finding Regarding Average Weekly Wage Compensation Rate and Apportionment of Liability of the Commissioner acting for the Eighth District. This matter has been before this tribunal previously and was the source of our opinions in Robert v. General Dynamics Corp./Electric Boat Div., 4691 CRB-2-03-7 (June 14, 2004) [hereafter Robert I] and Robert v. Electric Boat Corporation, 4976 CRB-2-05-7 (July 26, 2006)[hereafter Robert II].
We note that extensions of time were granted during the pendency of this appeal.
The pertinent facts and procedural history is as follows. The claimant is the dependent spouse of the decedent. The decedent died December 23, 1997 from metastatic colon cancer. The decedent's work history reflected that he had worked for the respondent Electric Boat for one year between 1943 and 1944 and from April 28, 1952 until April 30, 1987. See Respondent Electric Boat's Brief, p. 4 and Respondent's Exhibit 1. Following his employment with Electric Boat, the decedent brought a claim under the federal Longshore Harbor Workers' Compensation Act on the basis of his exposure to asbestos while employed with Electric Boat. Hearings were held before the federal Administrative Law Judge on or about May 26, 1993. Ultimately, the matter was resolved by way of a stipulated agreement.
Following the death of the decedent, the claimant sought benefits pursuant to the Longshore Harbor Workers' Compensation Act. In proceedings before the Longshore Harbor Workers' Compensation Act, the claimant contended that the decedent's death was causally related to asbestos exposure while in the employ of Electric Boat. That claim was the subject of hearings before federal Administrative Law Judge, David W. DiNardi and resulted in his February 13, 2001 written decision awarding benefits to the claimant. The only party among the appellants here who appeared and defended against the claim in the federal forum was the respondent self insured Electric Boat.
As Justice Zarella commented in Levarge v. General Dynamics Corp., 282 Conn. 386, 388-89 (2007) "the Longshore Act holds the last employer that exposed the employee to injury responsible for compensation," ergo none of the other appellants in this matter appeared in the Longshore Harbor Workers' Compensation Act proceedings.
The claimant then sought benefits pursuant to § 31-306 under Chapter 568. At issue before the trial commissioner was whether the respondents who did not appear in the federal Longshore Harbor Workers' Compensation Act proceedings should be precluded from asserting a defense on the issue of causation. The trial commissioner held that the respondents were permitted to defend on the issue of causation. The claimant filed an appeal with this tribunal and we found in her favor. See Robert I, see also Robert I, n. 2.
In Robert I we concluded that pursuant to the Supreme Court's holding in Lafayette v. General Dynamics Corp., 255 Conn. 762 (2001), the respondents who did not participate in the federal Longshore Harbor Workers' Compensation Act proceedings were confined to defending on the basis the principle of collateral estoppel should not be applied, e.g., lack of privity. The trial commissioner then issued his July 11, 2005 Ruling re: Collateral Estoppel. The trial commissioner concluded that the respondents had failed to demonstrate any basis for not applying collateral estoppel and pursuant to Lafayette, supra, as the issue of causation was litigated in another forum; the respondents were bound by the conclusion of the federal Longshore Harbor Workers' Compensation Act Administrative Law Judge.
The respondents appealed the July 11, 2005 Ruling re: Collateral Estoppel. The respondents argued that they should not be precluded from asserting a defense as to causation because the standard of proof under the federal Longshore Harbor Workers' Compensation Act differs from the standard of proof in Chapter 568 claims. In our opinion in Robert II we applied this Board's holding in Levarge v. Electric Boat Corp., 4884 CRB-8-04-11 (November 30, 2005), and Birnie v. Electric Boat Corp., 4947 CRB-2-05-5 (May 15, 2006). Both our holdings in Levarge, supra, andBirnie, supra, turned on our application of the Supreme Court's holding in Lafayette, supra. Both Levarge and Birnie were appealed to our Supreme Court. Levarge was dismissed by the court for lack of final judgment. See Levarge v. Electric Boat Corp., 282 Conn. 386 (2007), motion for reconsideration denied, S.C. 17659 (June 20, 2007). In the Supreme Court's opinion in Birnie v. Electric Boat Corp., 288 Conn. 392 (2008) our affirming of the trial commissioner's application of collateral estoppel was reversed.
Following the Supreme Court's dismissal of Levarge for lack of final judgment the matter was again before the trial commissioner who then determined the apportionment of liability among the respondents. An appeal was again taken to this board. In our most recent consideration ofLevarge v. Electric Boat Corp., 5358 CRB-2-08-6 (June 16, 2009) [hereafter Levarge II], we reviewed the holding and analysis of the court in Birnie, supra. We noted that the Birnie court acknowledged that a threshold issue to be resolved was what standard of causation was applied by the administrative law judge in his consideration of the claimant's entitlement to Longshore Harbor Workers' Compensation Act benefits. The court,
reviewed the legal standards of proximate causation in a workers' compensation claim brought under our Act and noted that the employment need not be a major factor in causing the injury for which compensation is claimed. The court traced the historical roots of the proximate causation concepts and noted that under our Workers' Compensation Act, the employment must be a substantial factor, i.e., that the employment must contribute to the development of the injury in more than a de minimis way.
Levarge II.
However, the Birnie court concluded that as it was unable to discern what standard of causation was applied in the federal proceeding, i.e., did the work place causative agent contribute in more than a de minimis way to the injury for which compensation is claimed. As it was unable to make that determination, the court concluded that it was inappropriate to preclude the respondent from asserting a defense under collateral estoppel grounds.
In Levarge II, we held that a de novo review was necessary to determine whether the conclusion as to proximate cause drawn by the Administrative Law Judge in the federal Longshore Harbor Workers' Compensation Act proceedings was based on a standard consistent with the Connecticut Workers' Compensation Act. We therefore remanded Levarge II for a review and determination of the proximate cause standard applied by the federal Administrative Law Judge. It would seem that the same result is appropriate in the matter now before us.
However, the instant matter does differ from Levarge II in at least one respect. In our previous consideration of the instant matter, Robert II, we noted the trial commissioner's reference to the Administrative Law Judge's opinion in his findings wherein the trial commissioner stated:
[W]hile the standard of proof on the issue of causation/compensability is not as stringent as the burden of proof under the State Act, Judge DiNardi weighed all the evidence before him in that contested proceeding and followed that analysis as set forth in the Lafayette decision in determining that the decedent's injury arose out of and in the course of his employment.
Robert II quoting Finding, ¶ 8 of July 11, 2005 Ruling: Collateral Estoppel. It is the claimant's contention that the trial commissioner's findings as exemplified above obviates the need for a de novo assessment of the causation standard as we held in Levarge II. We might be persuaded by the claimant's argument had the trial commissioner made the above referenced finding after the Supreme Court's opinion in Birnie, supra. However, as the Finding, ¶ 8 of the July 11, 2005 Ruling: Collateral Estoppel was made prior to the Supreme Court's opinion in Birnie, supra, we cannot be assured that the Administrative Law Judge's opinion is based on a quantum of proof consistent with Chapter 568.
Consistent with our holding in Levarge II and for the reasons given above, we remand the instant matter for the purpose of determining the proximate cause standard applied by the federal Administrative Law Judge in the Longshore Harbor Workers' Compensation Act claim.
Finally, we note that during the pendency of this appeal counsel for the claimant moved that Marie R. Robert, Personal Representative of the Estate of Lillian E. Robert be substituted for the Dependent Spouse, Lillian E. Robert. In support of the Motion to Substitute Party Claimant, filed June 25, 2009, counsel attached the death certificate of the claimant. We therefore grant the Motion to Substitute Party Claimant.
Commissioners Peter C. Mlynarczyk and Randy L. Cohen concur.