Opinion
CASE NO. 1226 CRD-4-91-5
JANUARY 13, 1993
The claimant was represented by Robert F. Carter, Esq., Carter, Rubenstein and Civitello.
The respondents Michigan Mutual Insurance, Home Insurance, Zurich American Insurance and Liberty Mutual Insurance were represented at the trial level by Kevin J. Maher, Esq., and Colette Mauborgne, Esq., Maher and Williams. On appeal the respondents Liberty Mutual, Zurich Insurance Co., and Home Insurance Co. were represented by Kevin J. Maher, Esq., Maher and Williams.
The respondents CNA Insurance Co. was represented by Kevin M. Blake, Esq., Law Offices of Justin Donnelly.
The respondents Aetna Life and Casualty, Travelers Insurance Co., and INA/Aetna were represented by Jason Dodge, Esq. and Ann Kelly-Zovas, Pomeranz, Drayton and Stabnick, at the trial level and while not appearing at oral argument did file a brief.
The respondents Kemper Insurance were represented at the trial level by Tracey Cleary, Esq. No appearance was made on behalf of the respondents on appeal.
The respondents Wausau Insurance were represented at the trial level by William C. Brown, Esq., and David C. Davis, Esq., McGann, Bartlett and Brown. No appearance was made on behalf of the respondents on appeal.
The respondents Hartford Insurance was represented at the trial level by Shaun Slocum, Esq., Shay and Slocum. No appearance was made on behalf of the respondents on appeal.
The respondents American Mutual Insurance Co., was represented at the trial level by Andrew J. Hern, Esq., Montstream and May. No appearance was made on behalf of the respondents on appeal.
The Second Injury Fund was represented at the trial level by Michael J. Belzer, Esq., Assistant Attorney General. No appearance was made on behalf of the Second Injury Fund on appeal.
This Petition for Review from the April 26, 1991 Finding and Award of the Commissioner for the Fourth District was heard March 27, 1992 before a Compensation Review Division panel consisting of the then Commission Chairman, John Arcudi and Commissioners Michael S. Sherman and A. Thomas White, Jr.
OPINION
Respondents contest the Fourth District ruling awarding benefits for workplace asbestos exposure after 1974. Claimant had been diagnosed as having pulmonary asbestos is due to employment related asbestos exposure from 1947 through 1974. He settled his claim for benefits due to this exposure by a Stipulation approved March 31, 1977. In 1975, he had a fifty percent (50%) respiratory impairment to the lungs.
After 1974 he continued to be exposed to asbestos at work from 1975 through 1984. Due to that continued exposure his lung condition worsened and his respiratory system impairment became seventy-five percent (75%) disability of the lungs. That impairment caused claimant to be totally disabled as of July 1, 1986. In 1986, he was also found to be suffering from colon cancer.
Paragraph #7 of the commissioner's Finding and Award stated:
The claimant's continued work with asbestos following 1974, because of the medical uncertainty of the disease potential to the claimant from the claimant's prospective, and because of the claimant's lack of employment skills except for those of an insulation worker, is FOUND not to constitute willful misconduct.
Not all the insurer and employer respondents appealed or persisted in the appeal from the Fourth District decision. Those who did argued (1) it was error to find respondents Cummings Insulation and CNA Insurance were the last employer and its insurer responsible for asbestos exposure under Sec. 31-299b; (2) claimant's continued work with asbestos after 1975 and his smoking habits constituted serious and willful misconduct causing him not to be eligible for benefits under the Act and (3) claimant's claim for increased disability benefits was barred by the Stipulation approved March 31, 1977.
In their argument on the first point Cummings Insulation and CNA Insurance rely on an affirmative answer given by claimant during cross examination to the question, "[S]o, you're saying some of the jobs after 1984 may have involved exposure to asbestos?" They contend that this answer admits possible asbestos workplace exposure after he left Cummings Insulation in 1984. See Respondents Cummings Insulation and CNA's Memorandum of Law In Support of Its Motion to Dismiss dated December 23, 1991 at 1-2.
Claimant's testimony at the November 1, 1990 Formal Hearing contains the following colloquy between CNA counsel and the claimant:
Cross Examination by Mr. Blake
Q. Mr. Muldoon, after 1984, after you left Cummings Insulation, what other jobs did you have?
A. I couldn't recall.
Q. What was that?
A. I couldn't recall after 1984.
Q. Do you know what they involved?
A. Well, naturally in the time about '84, it would be a lot of fiberglass work. If asbestos was involved, it would be on repairing the old work or something like that. That's the only thing I —
Q. So, you're saying some of the jobs after 1984 may have involved exposure to asbestos?
A. Yes.
November 1, 1990 TR at 29-30
Under Sec. 31-299b, the last employer bears the initial liability to pay benefits due. The claimant's answer on cross examination certainly did not establish that there definitely was exposure after 1984. At best it suggested a probability that there might have been. That may have given rise to some speculative possibility, but it was still the trier's task to determine on all the evidence before him which was the last employer subjecting claimant to asbestos exposure. We cannot disturb his factual determination, Fair v. People's Savings Bank, 207 Conn. 535 (1988), Bailey v. Mitchell, 113 Conn. 721 (1931).
Sec. 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.
The second issue concerning claimant's alleged wilful misconduct in persisting to work where there was asbestos exposure involves a determination under Sec. 31-284(a) Gonier v. Chase Companies, Inc., 97 Conn. 46 (1921) construed misconduct under the Act as:
Sec. 31-284(a) provides in pertinent part:
Basic rights and liabilities. Civil action to enjoin noncomplying employer from entering employment contracts. (a) An employer shall not be liable to any action for damages on account of personal injury sustained by an employee arising out of an in the course of his employment or on account of death resulting from personal injury sustained, but an employer shall secure compensation for his employees as follows, except that compensation shall not be paid when the personal injury has been caused by the wilful and serious misconduct of the injured employee or by his intoxication.
any improper or wrong conduct. And when such misconduct is not trivial but grave in character, it becomes the serious misconduct of the statute, that is improper conduct of grave and aggravated character. Whether misconduct is serious is to be determined from its nature and its consequences. Misconduct which exposed the deceased to serious injury would be serious misconduct. Not only must the misconduct be of this grave character, but under the statute it must also be wilful. By wilful misconduct is meant either intentional misconduct, that is, such as is done purposely with knowledge, or misconduct of such a character as to evince a reckless disregard of consequences to himself by him who is guilty of it.
We have had occasion to consider these terms of our statute several times. With one exception they were cases of mere negligence, and we held, with all authority, that wilful and serious misconduct means something more than ordinary negligence. Ordinary negligence could never be even serious misconduct, much less wilful misconduct, and although gross negligence might present an instance of serious misconduct, it could never present a case of wilful misconduct, as our definition of wilful misconduct, clearly indicates, and the authorities so hold. No misconduct which is thoughtless, needless, inadvertent or of the moment, and none which arises from an error of judgment, can be "wilful and serious misconduct." (citations omitted) (emphasis ours).
Id at 55-56.
Again, the finding of serious and wilful misconduct under Sec. 31-284(a) is a factual determination, and the burden of proof rests on the respondents. Liptak v. State, 176 Conn. 320 (1978). See also, Crochiere v. Enfield Board of Education, 1069 CRD-1-90-7 (decided August 27, 1992) appeal docketed No. AC 11712 (Sept. 14, 1992); Richard v. Catholic Mutual Relief Society of America, 9 Conn. Workers' Comp. Rev. Op. 272, 1067 CRD-1-90-7 (1991); Corcoran v. Corcoran Moving and Storage, Inc., 9 Conn. Workers' Comp. Rev. Op. 237 (1991) 1030 CRd-5-90-6 (1991). Here, the respondents presented no evidence to support their Sec. 31-284(a) affirmative defense. As we noted earlier, it is not for us as a review tribunal to substitute our view of the facts for that of the trier.
Respondents' final point has to do with the effect of the prior Stipulation approved March 31, 1977. Such an issue was involved in our recent decision, Rondini v. Tectonic Industries, 1231 CRD-6-91-5 (decided December 4, 1992). Rondini concluded under Sec. 31-315 that a Stipulation barred a Sec. 31-290a benefits claim where there was no evidence that claimant's incapacity had increased or decreased. Rondini also noted the alleged discriminatory behavior giving rise to Sec. 31-290a occurred before the date of the Stipulation. The parties therefore knew or should have known about it when they entered into the stipulation. It was not a new occurrence or new evidence happening after the date of the stipulation. Here, the Stipulation was approved March 31, 1977 and provided
Sec. 31-315 provides:
Sec. 31-315. Modification of award or voluntary agreement. Any award of, or voluntary agreement concerning, compensation made under the provisions of this chapter shall be subject to modification, upon the request of either party . . . whenever it appears to the compensation commissioner, . . . that the incapacity of an injured employee has increased, decreased or ceased . . . or that changed conditions of fact have arisen which necessitate a change of such agreement or award in order properly to carry out the spirit of this chapter. The commissioner shall also have the same power to open and modify an award as any court of the state has to open and modify a judgment of such court.
Sec. 31-290a(a) provides in pertinent part: No employer who is subject to the provisions of this chapter shall discharge, or cause to be discharged, or in any manner discriminate against any employee because the employee has filed a claim for workers' compensation benefits or otherwise exercised the rights afforded to him pursuant to the provisions of this chapter.
It is further stipulated and agreed that . . . the claimant and his wife . . . understand and . . . know it is a full and final settlement and that it is intended to deal with any and all conditions, known or unknown, which exist as of the date thereof, or any changes of conditions which may arise in the future on account of said alleged occupational disease occurring between 1947 and 1974.
Thus the March 31, 1977 document in the present case only refers to a settlement of all claims arising for "occupational disease occurring between 1947 and 1974." The Cummings Insulation liability found by the commissioner in his April 26, 1991 Finding and Award was for compensable events after 1974. Those post 1974 occurrences constituted new evidence of a new injury and also concerned parties other than those participating in the 1977 settlement.
We therefore affirm the Fourth District and dismiss respondents' appeal. Pursuant to Sec. 31-301c(b) we grant interest at the rate permitted by statute on any amount remaining unpaid during the pendency of this appeal.
Commissioners Michael S. Sherman and A. Thomas White, Jr., concur.