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Filosi v. Electric Boat Corp.

Supreme Court of Connecticut

September 18, 2018

KATHERINE FILOSI, EXECUTOR (ESTATE OF DONALD L. FILOSI, JR.), ETAL.
v.
ELECTRIC BOAT CORPORATION ET AL.

          Argued May 4, 2018

         Procedural History

         Appeal from the decision of the Workers' Compensation Commissioner for the Eighth District dismissing the plaintiffs' claims for workers' compensation benefits, brought to the Compensation Review Board, which reversed the commissioner's decision, and the defendants filed separate appeals. Affirmed.

          Lucas D. Strunk, with whom was Peter D. Quay, for the appellants (defendants).

          Amity L. Arscott, for the appellees (plaintiffs).

          Robinson, C. J., and Palmer, McDonald, Mullins and Kahn, Js. [*]

          OPINION

          ROBINSON, C. J.

         In this workers' compensation appeal, we consider whether an employer is collaterally estopped from challenging an employee's eligibility for benefits under the Connecticut Workers' Compensation Act (state act), General Statutes § 31-275 et seq., because of an earlier decision by a United States Department of Labor administrative law judge (administrative law judge) awarding benefits to that employee under the federal Longshore and Harbor Workers' Compensation Act (Longshore Act), 33 U.S.C. § 901 et seq. (2012). The defendant Electric Boat Corporation[1] appeals[2] from the decision of the Compensation Review Board (board), which reversed the decision of the Workers' Compensation Commissioner for the Eighth District (commissioner) dismissing the claims for benefits under the state act filed by the plaintiff, Katherine Filosi, as executor of the estate of the decedent, Donald L. Filosi, Jr., and as the dependent widow of the decedent.[3] On appeal, the defendant claims that the board improperly determined that the administrative law judge's decision to award benefits under the Longshore Act collaterally estopped it from challenging compensability because the federal forum employs a lower standard of causation than the substantial factor standard required by the state act and, therefore, that it should be allowed to litigate its claims under the higher state standard. Guided largely by our decision in Birnie v. Electric Boat Corp., 288 Conn. 392, 953 A.2d 28 (2008), we conclude that the board properly determined that the defendant is collaterally estopped from relitigating the issue of causation under the state act because the record of the Longshore Act proceedings indicates that the administrative law judge employed the substantial factor standard that governs in the state forum. Accordingly, we affirm the decision of the board.

         The record reveals the following undisputed facts and procedural history. The decedent began working at the defendant's Groton shipyard in 1961 and, with some brief exceptions, continued his work there until he retired in 1998. During his employment with the defendant, the decedent was exposed to asbestos. The decedent was also a heavy smoker of cigarettes from the age of fourteen until his death, with some pauses. After he was diagnosed in2012 with high grade neuroendocrine lung cancer, the decedent filed a notice of claim for compensation with the Workers' Compensation Commission (commission), alleging that he had sustained a lung injury from ‘‘exposure to dust and fumes.'' On December 17, 2012, the decedent died as a result of his lung cancer. The plaintiff, as his widow, subsequently filed a notice of dependent's claim, and the two claims were assigned to the commission's consolidated asbestos litigation docket.

         In addition to the claims seeking benefits under the state act, the plaintiff also filed claims seeking benefits under the Longshore Act. While the claims under the state act were pending, the administrative law judge conducted a formal hearing on the Longshore Act claims on August 5, 2013. At the hearing, the plaintiff presented the opinions and testimony of two physicians, Laura Welch and Arthur DeGraff. Welch, who is board certified in internal medicine and occupational medicine, testified that ‘‘smoking contributed to [the decedent's] lung cancer, but his asbestos exposure was a substantial contributing cause.'' DeGraff, who is board certified in internal medicine and pulmonary disease, testified that the decedent's ‘‘death from lung cancer is a direct result of his past smoking history combined with past asbestos exposure.'' On the basis of the documentary evidence presented by the plaintiff, along with a concession by the defendant's medical expert, Milo Pulde, an internist, the administrative law judge found that the plaintiff had established a prima facie case under the Longshore Act's burden shifting framework by showing that the decedent had suffered harm, and that workplace conditions could have caused, aggravated, or accelerated that harm, [4] which then triggered the Longshore Act's § 20 (a) presumption of coverage.[5]See 33 U.S.C. § 920 (a) (2012).[6]

         The defendant then presented evidence to rebut the § 20 (a) presumption of coverage under the Longshore Act. The administrative law judge found that the defendant successfully rebutted the § 20 (a) presumption by submitting substantial evidence through the opinions and testimony of its medical experts, Pulde and Darryl Carter, a board certified anatomic pathologist, that the workplace did not cause the decedent's injury. Pulde directly contradicted the testimony of the plaintiff's experts, stating: ‘‘[T]here is no evidence that [the decedent's] . . . occupational employment as a rigger . . . or . . . occupational asbestos exposure caused or contributed to his tobacco-related lung cancer . . . .''

         Once the defendant introduced evidence to rebut the presumption of coverage under the Longshore Act, the administrative law judge weighed all of the evidence in the record and concluded that the plaintiff had carried her burden of proving by a preponderance of the evidence that the decedent's lung cancer was work-related. In weighing the evidence, the administrative law judge found Welch ‘‘to be the most qualified expert'' and found DeGraff also to be ‘‘reliable''; he did not credit the defendant's expert witnesses. On March 20, 2014, the administrative law judge issued a decision and order finding the decedent's ‘‘disability and death, a direct result of his lung cancer, causally linked to his asbestos exposure while employed at [the defendant], '' and he awarded the plaintiff benefits under the Longshore Act.

         Thereafter, the plaintiff submitted the order of the administrative law judge awarding benefits under the Longshore Act to the commissioner in the pending state workers' compensation proceeding, and contended that the administrative law judge's order collaterally estopped the defendant from litigating the state act claims before the commissioner. On February 13, 2015, the commissioner determined that the defendant was not collaterally estopped from challenging causation because the administrative law judge had neither defined the ‘‘requisite causal connection'' required to be proved under federal law nor determined that ‘‘the [plaintiff] had proved [the decedent's] employment and exposure [to asbestos] to be a significant factor, or substantial contributing factor, in the development of his cancer.'' Turning to the merits of the claim, the commissioner further concluded that the plaintiff had not proved that the decedent's exposure to asbestos during his employment was a factor in causing his lung cancer or death but, rather, found that his ‘‘long-term tobacco abuse was a significant factor in causing his lung cancer'' and that the decedent's ‘‘smoking history was more than sufficient to fully explain his development of lung cancer.'' Accordingly, the commissioner dismissed the plaintiff's claims for benefits under the state act.

         The plaintiff appealed from the commissioner's dismissal of the state act claims to the board. The board concluded that the decision of the administrative law judge awarding the plaintiff benefits under the Longshore Act ‘‘comports with the standard for analysis as set forth in [the] Supreme Court's holding in Lafayette [v.General Dynamics Corp., 255 Conn. 762, 770 A.2d 1 (2001)], '' and ‘‘reflects that the administrative law judge properly adopted the substantial contributing factor standard in reaching his decision . . . .'' The board cited this court's conclusion in Lafayette that the administrative law judge in that case had required the claimant therein to prove ‘‘the same burden that would obtain in the state workers' compensation proceeding''; Lafayette v. General Dynamics Corp., supra, 781; and deemed Lafayette controlling of the present case because the administrative law judge ‘‘essentially followed the same process that a trial commissioner would have to adhere to in order to make a finding of a compensable injury under the [state act].'' (Internal quotation marks omitted.) The board stated that, ‘‘given that the [administrative law judge] relied on an opinion sufficient to meet the standard of proving causation applicable under [the state act], we need not determine whether the difference in the minimum standards of proof between [the state act] and the federal Longshore Act would preclude the application of the collateral estoppel doctrine.'' (Internal quotation marks omitted.) The board then distinguished the present case from Birnie v. Electric Boat Corp., supra, 288 Conn. 392, observing that, although the administrative law judge in the present case never ‘‘articulate[d] the precise level of contribution necessary to satisfy the causation standard, '' in Birnie, ‘‘the [administrative law judge] relied upon medical evidence which found the ...


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