Brooks v. Elec. Boat Corp.

• Decision Date: 07 February 2012
• Docket Number: No. 32632.,32632.
• Citation: 133 Conn.App. 377,35 A.3d 404
• Court: Connecticut Court of Appeals
• Parties: Richard BROOKS, et al. v. ELECTRIC BOAT CORPORATION, et al.

133 Conn.App. 377

35 A.3d 404

Richard BROOKS, et al.

v.ELECTRIC BOAT CORPORATION, et al.

No. 32632.

Appellate Court of Connecticut.

Argued Nov. 7, 2011.Decided Feb. 7, 2012.

Joseph J. Passaretti, Jr., Glastonbury, with whom, on the brief, was Sean B. Reidy, for the appellant (defendant Connecticut Insurance Guaranty Association).

Melissa Olson Riley, for the appellees (plaintiffs).

Lucas D. Strunk, Glastonbury, for the appellees (named defendant, et al.).Gregory J. Vetter, with whom, on the brief, was Thomas M. McKeon, Shelton, for the appellees (defendants Ebasco Services, Inc., et al.).Robert J. Enright, East Hartford, for the appellees (defendant Benzoline Energy Company, et al.).Frank Ancona, for the appellees (defendant C.N. Flagg & Company, Inc., et al.).

GRUENDEL, LAVINE and ESPINOSA, Js.

GRUENDEL, J.

The defendant Connecticut Insurance Guaranty Association ¹ appeals from the decision of the workers' compensation review board (board) affirming the determination by the workers' compensation commissioner for the first district (commissioner), that W.J. Barney Corporation ² (Barney) was the party responsible under General Statutes § 31–299b for the death of the plaintiff Richard Brooks (decedent).³ On appeal, the defendant claims that the board erred in affirming the commissioner's decision because (1) the commissioner's determinations that the decedent was exposed to asbestos while employed by Barney in 1988, and that such exposure was the decedent's last injurious exposure, were not supported by the evidence, (2) the decision “contains numerous conclusions and omissions that are unsupported, or unreasonably drawn from the subordinate facts” and (3) the commissioner erroneously concluded that the decedent's exposure to asbestos after 1988 was “speculative and de minimis at best.” ⁴ We affirm the board's decision.

The following facts were found by the commissioner. The plaintiff Nena Brooks is the dependent widow of the decedent.⁵ The decedent worked for various employers from approximately 1969 through 1995. The decedent was employed by Electric Boat Corporation as a welder in 1969 and was exposed to significant amounts of asbestos. From 1969 to 1975, he worked for Barney and was exposed to significant amounts of asbestos. Following his employment with Barney, the decedent was employed by Bechtel Corporation in 1973 and 1974, Ebasco Services, Inc., in 1974 and 1975, C.N. Flagg & Company, Inc., in 1979 and Crouse in 1980, 1981 and 1982. At each of these jobs, the decedent was exposed to asbestos. In 1988, the decedent was employed again by Barney, where he again was exposed to asbestos.

On July 19, 2002, the decedent was diagnosed with lung cancer. On April 2, 2004, he was examined by Arthur C. DeGraff, Jr., a physician, who confirmed the diagnosis of lung cancer and opined that the exposure to asbestos over the decedent's entire employment history was a substantial and significant contributing factor in causing the cancer. DeGraff further opined that the decedent's asbestos exposure through the early 1980s and mid–1980s resulted in the development of his cancer. The decedent died of lung cancer on April 28, 2004. Susan M. Daum, a physician, performed a records review of the decedent on October 20, 2004, and opined that his occupational exposure to asbestos was a substantial and significant contributing factor in the development of his lung cancer and resulting death.

Thereafter, the plaintiff sought survivor's benefits under General Statutes § 31–306. Formal hearings were held before the commissioner on November 6, 2007, April 14 and July 10, 2009. The commissioner credited the testimony of the decedent regarding his exposure to asbestos ⁶ and credited the opinions and testimony of Daum and DeGraff as to the issues of causation and the resulting death of the decedent. The commissioner concluded that the decedent developed occupational lung cancer as a result of asbestos exposure. The commissioner concluded further that Barney was the responsible party pursuant to § 31–299b because the decedent's exposure during employment subsequent to 1988 was minimal and was not a substantial contributing factor to the decedent's lung cancer.

Several postdecision motions were filed. In particular, the defendant filed a motion for articulation requesting the commissioner to clarify six issues. The commissioner granted one of the six requests and articulated that, while he found the decedent to be a credible and persuasive witness, he found the decedent's testimony regarding his exposure to asbestos at any employer subsequent to Barney to be “speculative and de minimis at best.” The defendant appealed that decision to the board.

On appeal to the board, the defendant argued that the commissioner's conclusion that the decedent was last exposed to significant amounts of asbestos while employed by Barney in 1988 was not supported by evidence in the record. The board affirmed the commissioner's finding and award, determining that the evidence in the record satisfactorily established that, as of 1988, the decedent was still exposed to a substantial level of workplace asbestos and that Barney is therefore the responsible party. This appeal followed. Additional facts will be set forth as necessary.

“The principles that govern our standard of review in workers' compensation appeals are well established.... The board sits as an appellate tribunal reviewing the decision of the commissioner.... [T]he review ... of an appeal from the commissioner is not a de novo hearing of the facts.... [T]he power and duty of determining the facts rests on the commissioner.... [T]he commissioner is the sole arbiter of the weight of the evidence and the credibility of witnesses.... Where the subordinate facts allow for diverse inferences, the commissioner's selection of the inference to be drawn must stand unless it is based on an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them....

“This court's review of decisions of the board is similarly limited.... The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.... [W]e must interpret [the commissioner's finding] with the goal of sustaining that conclusion in light of all of the other supporting evidence.... Once the commissioner makes a factual finding, [we are] bound by that finding if there is evidence in the record to support it.” (Citations omitted; internal quotation marks omitted.) Williams v. State, 124 Conn.App. 759, 763–64, 7 A.3d 385 (2010).

I

The defendant claims that the board acted improperly in affirming the commissioner's finding because the commissioner's conclusion that the decedent was exposed to asbestos while employed by Barney, and that such exposure was the last injurious exposure, resulted from inferences unreasonably drawn from the subordinate facts. We disagree.

The commissioner credited the testimony of the decedent as to his work history and exposure to asbestos. Indeed, the decedent's testimony was the only evidence presented regarding his work history and asbestos exposure. The decedent testified that when he returned to Barney in 1988, he worked in areas where there was asbestos, and the asbestos was disturbed by other workers. The decedent removed gaskets and piping with asbestos lagging and worked around asbestos, testifying specifically to working around old steam lines with pulverized asbestos on them. Regarding his exposure to asbestos following his 1988 employment with Barney, the decedent testified that it was minimal, and that the bulk of his exposure occurred before that. The commissioner credited the physicians' opinions with respect to causation, and the physicians concurred that occupational exposure to asbestos caused the decedent's lung cancer and death.

In arguing that the evidence does not support the finding that the decedent was last injuriously exposed to asbestos in 1988, the defendant points to the testimony and opinions of the two physicians. DeGraff opined that the decedent's lung cancer resulted from exposure to asbestos dust and included all employment with such exposure up through “the early 1980s” or “mid–1980s.” Daum opined that all exposure to asbestos was “cumulative and injurious,” including exposure past 1988. The defendant contends that in light of this conflicting testimony, the commissioner reasonably could not have concluded that Barney was the responsible party.

“[I]t is the commissioner's duty to evaluate the weight of the medical evidence and the credibility of the witnesses ... and the commissioner's conclusions cannot be reversed simply because the plaintiff's own evaluations of the findings causes him to reach a contrary conclusion. Unless the factual findings on which the commissioner bases his conclusion are clearly erroneous, or there is no evidence in the record to support the conclusion, the conclusion must stand.” (Citation omitted.) D'Amico v. Dept. of Correction, 73 Conn.App. 718, 725, 812 A.2d 17 (2002), cert. denied, 262 Conn. 933, 815 A.2d 132 (2003). As the board also noted, “it is proper to consider medical evidence along with all other evidence to determine whether an injury is related to the employment.” (Emphasis in original.) Marandino v. Prometheus Pharmacy, 294 Conn. 564, 595, 986 A.2d 1023 (2010). Our review of the commissioner's decision persuades us that his factual findings were not clearly erroneous and that the evidence presented supported the commissioner's decision. Accordingly, we conclude that the board did not improperly affirm the decision of the commissioner that Barney is the responsible employer...