Conn. high court rules for widow of man who died from asbestos exposurePosted On: Sep. 19, 2018 2:13 PM CST
The Supreme Court of Connecticut on Tuesday ruled that a shipbuilder cannot litigate a claim filed by the widow of a shipyard worker who died of lung cancer following asbestos exposure because a federal judge already ruled the man’s injury was compensable under the Longshore and Harbor Workers’ Compensation Act.
Donald Filosi, now deceased, began working at Groton, Connecticut-based Electric Boat Corp.’s shipyard in 1961 until he retired in 1998. During his employment he was exposed to asbestos and was also a heavy smoker of cigarettes from the age of 14 until his death “with some pauses,” according to documents in Katherine Filosi, executor (Estate of Donald L. Filosi) v. Electric Boat Corp., filed in state court in Hartford, Connecticut.
After he was diagnosed in 2012 with high grade neuroendocrine lung cancer, he filed a notice of claim for compensation with the Connecticut Workers’ Compensation Commission, alleging that he had sustained a lung injury from “exposure to dust and fumes,” records state.
On Dec. 17, 2012, Mr. Filosi died as a result of his lung cancer. His widow, Katherine Filosi, subsequently filed a notice of dependent’s claim, and the two claims were assigned to the commission’s consolidated asbestos litigation docket, records state.
While the claims under the Connecticut Workers’ Compensation Act were pending, Ms. Filosi also filed claims seeking benefits under the Longshore Act. A U.S. Department of Labor administrative law judge conducted a formal hearing on the Longshore Act claims in 2013, hearing testimony of two physicians, both stating that “smoking contributed to (the decedent’s) lung cancer, but his asbestos exposure was a substantial contributing cause,” records state. Citing other evidence, the administrative law judge concluded that Mr. Filosi’s cancer was work-related.
In the workers compensation appeal set before the state Supreme Court recently, judges were asked to consider whether an employer is collaterally estopped from challenging an employee’s eligibility for benefits under the state act because of the earlier decision by a federal administrative law judge awarding benefits to that employee under the federal act.
Electric Boat appealed the decision of the state’s Compensation Review Board, which reversed the decision of the Workers’ Compensation Commissioner for the 8th District, which dismissed the claims for benefits under the state act filed by Ms. Filosi.
On the appeal, the Electric Boat 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,” records state.
Citing similar case law the state Supreme Court affirmed the board’s ruling, concluding that the “board properly determined that the defendant is collaterally estopped from re-litigating 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.”
Officials with Electric Boat could not immediately be reached for comment.