JOHN GRAHAM et al. v. OLSON WOODS ASSOCIATES, INC., et al., SC 19626
Compensation Review Board
Workers' Compensation; Whether Insurer Properly Cited Back in to Workers’ Compensation Case Where it Claims that Prior Order Dismissing it From Case was Binding. The claimant filed a workers' compensation claim alleging that he was injured by exposure to asbestos while working for several employers. After the claimant died, his widow filed a claim for survivor's benefits, and that claim was joined with the decedent's claim. The Connecticut Insurance Guaranty Association (CIGA), a respondent to the claims, moved that it be dismissed from the case. There was no objection to the motion, and it did not appear that CIGA would be deemed the insurer that would be initially liable for the payment of compensation under General Statutes § 31-299b. That statute provides that if an employee has a compensable occupational injury, his last employer, or the employer's insurer, "shall be initially liable for the payment of such compensation" and that the workers' compensation commissioner "shall determine whether prior employers, or their insurers, are liable for a portion of such compensation and the extent of their liability." The commissioner granted CIGA's motion, but later questioned whether CIGA should be brought back into the case because the insurer that appeared to be initially liable had also moved to be dismissed from the case. That insurer and the claimants then moved to cite CIGA back in, and the commissioner granted their motions. The commissioner rejected CIGA's argument that its prior order dismissing CIGA was a binding judgment that was rendered after a full evidentiary hearing adjudicating its rights which, in the absence of a timely appeal, could only be undone by way of a motion to open pursuant to General Statutes § 31-315. The commissioner stated that CIGA essentially was dismissed by agreement and that, because of the large number of respondents in asbestos cases, such agreements to release parties must be viewed as interlocutory until determinations have been made as to the date of the last occupational exposure and as to the identity of the party against whom the award will be made pursuant to § 31-299b. The Compensation Review Board affirmed the commissioner’s ruling, concluding that a close reading of § 31-299b indicated that the apportionment of liability is intended to occur after the underlying claims are litigated. The board agreed that CIGA's dismissal was interlocutory, and it stated that although that ruling came after a formal hearing, the transcripts revealed that no findings had been made as to the merits of the underlying claims or as to CIGA's defenses. It noted that, while it could be argued that the formal hearing was not the proper procedural vehicle for issuing an interlocutory ruling dismissing CIGA from the case, a party cannot be allowed to escape liability prematurely due to a procedural irregularity. CIGA appeals, arguing that it was improperly cited back in as a party because the prior ruling dismissing it from the case became a binding final judgment when the claimants failed to timely appeal it. It also argues that the board improperly treated the motions to cite it back in as motions to open under § 31-315 and improperly found that the standards for opening a judgment had been met.