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Conway v. CBI Services11/13/2003
This opinion is uncorrected and subject to revision before publication in the Official Reports.
(*1)
MEMORANDUM AND ORDER
Calendar Date: September 11, 2003
(*2)
Appeal from a decision of the Workers' Compensation Board, filed April 1, 2002, as amended by decision filed April 15, 2002, which ruled that CBI Services, Inc. was the employer in whose employ decedent was last exposed to asbestos.
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 ).
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 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-(*3)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 o
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