Matter of Conway v. Cbi Services, Inc. (2003)

Our plain-English summary of Matter of Conway v. Cbi Services, Inc. (New York Supreme Court, Appellate Division, November 13, 2003).

Marilyn Conway claimed workers' compensation death benefits after her husband died in November 1999. He had worked from 1966 to 1989 for various employers installing and removing asbestos-containing insulation, and in 1997 was diagnosed with lung cancer. He had earlier won a disability finding and a partial third-party settlement. A Workers' Compensation Law Judge found the death was caused by asbestos exposure, found no asbestosis, and held his last employer, CBI Services, and its carrier, National Union, liable. The Board affirmed. CBI and National Union appealed, arguing they lacked notice, the finding lacked evidence and conflicted with earlier findings, and the third-party settlement required their consent. The Appellate Division affirmed. Notice to CBI was imputed to its carrier, and the Board could require carriers to keep correct addresses on file. Because no dust disease was shown, liability fell on the last employer in the kind of work that caused the disease, which the evidence supported. The settlement concerned only the separate disability claim.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: New York Supreme Court, Appellate Division, 3rd Dept.
• Decided: November 13, 2003
• Citation: 1 A.D.3d 739
• Stage: Appeal from workers' compensation or benefits
• State: New York

Outcome. The Appellate Division affirmed the Workers' Compensation Board's decision holding CBI Services and its carrier National Union liable on the widow's death benefits claim, rejecting their due process, evidence and settlement-consent arguments.

What the court held. Where the medical evidence does not show a dust disease, liability falls under Workers' Compensation Law § 44 on the last employer in the kind of employment that caused the disease, and notice to the employer is imputed to its carrier. A settlement of the disability claim's third-party action does not bar the separate death claim.

Issues decided: Causation, Wrongful Death and Survival, Employer and Contractor Liability, and Workers' Compensation, Settlements and Releases.

The people and their exposure

• decedent (husband of Marilyn Conway): lung cancer; died

The defendants

• CBI Services, Inc. (employer)
• National Union Fire Insurance Company (insurer)
• Crawford & Company
• Insulation Distributors, Inc. (employer)

Later decisions citing this one

One later decision in our library cites this one:

• IN the Matter of Cammarata v. Caldwell & Cook, Inc. (New York Supreme Court, Appellate Division, 3rd Dept., 2005). The Appellate Division affirmed the Workers' Compensation Board's decision that Jack Cammarata's death from mesothelioma was work-related and that Merchants Mutual Insurance Company, Azor Drywall's carrier, was liable, so the claimant won and Azor and Merchants lost.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

1 A.D.3d 739 (2003)

768 N.Y.S.2d 30

In the Matter of the Claim of MARILYN CONWAY, Respondent,

v.

CBI SERVICES, INC., etal., Appellants, and INTERNATIONAL [*740] INSURANCE COMPANY et al.,

Respondents.

WORKERS' COMPENSATION BOARD, Respondent.

November 13, 2003.

Appellate Division of the Supreme Court of the State of New York, Third Department.

[*743] Crew III, J.P., Spain, Carpinello and Kane, JJ., concur.

Rose, J.

Decedent retired after working from 1966 to 1989 for various employers installing and removing insulation containing asbestos. In 1997, he was diagnosed with lung cancer and he filed a claim for workers' compensation benefits, alleging that his lung cancer was due to injurious exposure to asbestos in 1975 while he was employed by Insulation Distributors, Inc. (hereinafter IDI). By decision filed March 23, 1999, a Workers' Compensation Law Judge (hereinafter WCLJ) found occupational disease, notice and causal relationship for decedent's lung cancer, set February 21, 1997 as his date of disablement, and directed that, pending further proceedings, benefits be paid by the workers' compensation carrier for IDI (see Workers' Compensation Law § 25 [1] [f]).

The Workers' Compensation Board reviewed decedent's claim and affirmed the WCLJ's findings. Noting, however, that a different carrier might be liable if decedent did not suffer from a dust disease (compare Workers' Compensation Law § 44-a [assigning liability to employer at time of worker's last exposure to injurious dust], with Workers' Compensation Law § 44 [assigning liability to last employer where worker's employment was in the nature of that which caused the disease]), the Board [*741] returned the case to the trial calendar for further development of the record on the issue of dust disease and to identify the carrier or carriers on risk.

After obtaining a partial settlement of a third-party action consented to by the carrier for IDI, decedent died in November 1999. Claimant, decedent's widow, then filed this claim for death benefits. On December 11, 2001, in separate but identical decisions on the disability and death claims, the WCLJ took no further action on the disability claim due to the third-party settlement, established accident, notice and causal relationship for death due to lung cancer from exposure to asbestos, and, in the death claim, concluded that the medical evidence did not support a finding that decedent suffered from asbestosis, a dust disease. The WCLJ also found that decedent's last exposure to asbestos was during his employment with CBI Services, Inc. from December 1987 to November 1989 and held CBI's carrier at that time, National Union Fire Insurance Company, liable on the death claim.

CBI, National Union and its administrator, Crawford & Company, requested that the death claim be reopened because National Union and Crawford & Company allegedly had not received notice and an opportunity to be heard. In an April 2002 amended decision, the Board denied the request and found CBI to be liable on the death claim because the medical evidence did not support a finding of asbestosis and CBI was the employer who last employed decedent "in the employment to the nature of which the disease was due" (Workers' Compensation Law § 44). It also accepted Crawford & Company's argument that liability should attach to CBI's carrier on the date of decedent's disablement, which carrier had not yet been identified. This appeal by CBI and National Union ensued.

Initially, we find no merit in the contention that CBI and National Union were deprived of due process by the alleged failure to place National Union and Crawford & Company on notice before the WCLJ assessed liability on claimant's death claim in 2001. Workers' Compensation Law § 54 (2) provides that "notice to or knowledge of the occurrence of the injury on the part of the employer shall be deemed notice or knowledge ... on the part of the insurance carrier" (see Matter of Klouse v City of Albany, 194 AD2d 941, 942 [1993]). The record reflects that CBI was identified as a potentially liable employer at a hearing in September 1998 and notices of subsequent proceedings were sent to CBI. Beginning in 1998, notices were also sent to

National Union, albeit in care of another of its third-party administrators. While National Union may not have received [*742] the notices because its address or its administrator of record was incorrect, the Board reasonably requires employers and carriers to ensure that correct addresses are on file (see e.g. Matter of Rite Aid Corp., 2003 WL 1958491 [WCB Nos. 6930 8433, 6980 0396, Apr. 16, 2003]; Matter of Marbro Realty Corp., 2002 WL 31497207 [WCB No. 0983 3375, Nov. 5, 2002]). Thus, we find no error in the imputation of notice to National Union (see Workers' Compensation Law § 54 [2]) and there is no requirement that additional notice be given to its third-party administrator (see Matter of Mount Sinai Hosp., 2003 WL 21545656 [WCB No. 0941 1066, July 7, 2003, ]; Matter of Tully Constr. Co., 2001 WL 1010769, [*1] [WCB No. 2000 6157, Aug. 9, 2001] ["Notice to one is notice to all."]; compare Matter of TCI of Brookhaven, 1999 WL 33267196 [WCB No. 2971 7756, Dec. 8, 1999] [WCLJ decision rescinded where third-party administrator requested, but was not given, notice of subsequent proceedings]).

We also reject the argument that the Board's finding of liability on the part of CBI and National Union is unsupported by substantial evidence or inconsistent with its earlier findings as to decedent's disability claim. Significantly, in the disability case, the issue of which employer and carrier were liable was never finally resolved. Thus, on the death claim, when the medical evidence failed to support a finding that decedent suffered from a dust disease, the Board properly ascertained the liable employer and carrier pursuant to Workers' Compensation Law § 44 rather than section 44-a (see Matter of Matice v Groveton Papers Co. 85 AD2d 841, 842-843 [1981], lv denied 57 NY2d 601 [1982]). Moreover, while we agree that there is no evidence that decedent had an injurious exposure when he last worked with asbestos insulation in 1989, such a contention has no relevance to the determination of liability pursuant to Workers' Compensation Law § 44. Decedent's testimony before his death indicated that he had worked with asbestos while employed by CBI in that year. Thus, the Board's finding that CBI was the last employer who did the kind of work that caused decedent's lung cancer has a rational basis and is supported by substantial evidence.

Lastly, inasmuch as decedent's settlement of his third-party personal injury claim related only to his disability claim, which is separate and distinct from claimant's application for death benefits (see Martin v Agway Petroleum Corp., 161 AD2d 1129, 1130 [1990]), there is no merit whatsoever to the contention that CBI and National Union should be discharged from liability because they did not consent to the settlement.

Ordered that the decision is affirmed, without costs.

Sources

• The opinion on Google Scholar
• The opinion on CourtListener
• New York asbestos laws
• New York asbestos exposure sites