source: Caselaw Access Project

author: SULLIVAN, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. ROBERT W. SPILLANE
    (SC 16215)
    Borden, Norcott, Palmer, Sullivan and VertefeuiUe, Js.

      Argued October 26, 2000
    officially released April 24, 2001

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Rachel Baird, former assistant state’s attorney, for the appellant (state).

      Joel M. Ellis, with whom was Donald E. Weisman, for the appellee (defendant).

       The listing of justices reflects their seniority status on this court as of the date of oral argument. For supplemental opinion on the defendant’s motion for reconsideration and reconsideration en banc, see State v. Spillane, 257 Conn. 750, 778 A.2d 101 (2001).

   Opinion

SULLIVAN, J.

The defendant, Robert W. Spillane, was convicted, following a jury trial, of the crime of larceny in the third degree in violation of General Statutes § 53a-124 (a). The defendant appealed to the Appellate Court, claiming “that the trial court improperly (1) denied his motion for acquittal at the end of the state’s case-in-chief, (2) denied his motion for acquittal at the conclusion of all of the evidence, (3) omitted from its final jury instructions the definition of ‘to deprive’ or ‘to appropriate’ as set out in General Statutes § 53a-118 and thus failed to instruct the jury about all of the necessary elements of larceny, (4) denied his motion to strike the testimony of the complaining witness, Webster Lewis, (5) refused to instruct the jury concerning the destruction of certain police tapes and (6) refused to give a missing witness instruction for the state’s failure to call the wife of the complaining witness to testify. He also claimjed] for the first time on appeal that the prosecutor’s ‘improper’ argument deprived him of his due process right to a fair trial under the United States and Connecticut constitutions.” State v. Spillane, 54 Conn. App. 201, 203, 737 A.2d 479 (1999). The Appellate Court determined that the trial court improperly omitted the definition of the term “appropriate” set forth in § 53a-118 (a) (4) (B) from its instruction to the jury on the elements of larceny. Id., 218-19. The Appellate Court also found that it was reasonably possible that the jury was misled by the trial court’s instruction and, therefore, ordered a new trial. Id., 220,229. We granted the state’s petition for certification to appeal, limited to the following issues: (1) “Did the Appellate Court properly conclude that the trial court’s instructions regarding ‘appropriate’ were constitutionally inadequate?” and (2) “If the answer to the first question is ‘yes’ was the error harmful?” State v. Spillane, 251 Conn. 914, 740 A.2d 866 (1999). Although we agree that the trial court should have defined for the jmy the term “appropriate,” we find the improper instruction to have been harmless, and we therefore reverse the judgment of the Appellate Court.

The jury reasonably could have found the following facts. The defendant operated Walnut Street Services, Inc., a towing company in Hartford. Walnut Street Services, Inc., was authorized by various area businesses, including Mechanics’ Savings Bank on Farmington Avenue in Hartford, to tow unauthorized vehicles from their lots during nonbusiness hours.

Around midnight, on April 27, 1996, Webster Lewis parked his car on the street in front of Mechanics’ Savings Bank and entered the apartment of his girlfriend, Andrea Gudealm. When Lewis exited the building, he discovered his car was missing. Gudealm called the police from a nearby pay telephone, and the police gave her the telephone numbers of several tow companies. Upon calling the tow companies, Gudealm located Lewis’ car at Walnut Street Services, Inc. The following afternoon, Lewis proceeded to Walnut Street Services, Inc., and paid the defendant’s wife, Cheryl Spillane, $148 to retrieve his vehicle. Lewis found his glove compartment open, papers scattered around the car and tools missing from the back of the car. Lewis then called the police, and larceny charges were brought against the defendant.

The defendant was tried on two counts of larceny in the third degree in violation of § 53a-124 for the wrongful taking of Lewis’ car and his tools respectively, as well as on one count of risk of injury to a child in violation of General Statutes (Rev. to 1995) § 53-21, as amended by No. 95-142, § 1, of the 1995 Public Acts and one count of reckless endangerment in the second degree in violation of General Statutes § 53a-64 for an incident that occurred on October 1, 1996. At the close of the state’s case, the trial court granted the defendant’s motion for judgment of acquittal of the charge of larceny in the third degree with respect to the tools, and the trial continued on the remaining charges of larceny in the third degree stemming from the taking of Lewis’ vehicle on April 27, 1996, as well as risk of injury to a child and reckless endangerment in the second degree, both stemming from the October 1, 1996 incident.

Much of the trial testimony addressed where Lewis’ car had been parked when it was towed. If it had been parked in the Mechanics’ Savings Bank parking lot, Walnut Street Services, Inc., rightfully towed the vehicle. If, however, it had been parked on the street, as the state claimed, then Walnut Street Services, Inc., wrongfully towed the vehicle. In accordance with Lewis’ testimony, the jury found the tow to have been wrongful and, on March 20, 1997, found the defendant guilty of larceny in the third degree. The defendant was found not guilty of the charges of reckless endangerment in the second degree and risk of injury to a child. The defendant was sentenced on May 2, 1997, to a two year suspended sentence and three years probation. He was also ordered to pay Lewis restitution in the amount of $200, participate in an anger management program, and donate $1000 to the Hartford police department outreach program. Additional facts will be set forth as necessary.

I

JURY INSTRUCTIONS

The state argues that the trial court’s instruction to the jury regarding “the intent to . . . appropriate” element of larceny was proper. Section 53a-119 sets forth two different types of intent that may be established to prove larceny: “when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. ...” (Emphasis added.) Either intent to deprive or intent to appropriate must be found to convict a defendant of larceny. The state proceeded on a theory that the defendant here intended to appropriate Lewis’ vehicle.

The first count of the state’s information charged the defendant with larceny in the third degree in that the defendant, “with intent to appropriate a motor vehicle to himself, wrongfully took, obtained and withheld that motor vehicle from the owner.” (Emphasis added.) Furthermore, during the trial the state emphasized to the court that it was proceeding under the statutory provision where the defendant acts “with intent to appropriate a motor vehicle to himself. ” The state then recited the definition of “appropriate” set forth in § 53a-118 (a) (4) (B): “ ‘to dispose of the property for the benefit of oneself or a third person.’ ”

Reflecting the specificity of the state’s charge, the trial court instructed the jury in relevant part: “Our statute defines larceny as follows: A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself ... he wrongfully takes, obtains or withholds the property from an owner. Each of the following elements must be proved by the state beyond a reasonable doubt. First, that the defendant wrongfully took, obtained or withheld property from an owner. And second, that at the time the defendant obtained the property, he intended to appropriate that property to himself or a third person. . . . The state must prove to you beyond a reasonable doubt that first, [the defendant] wrongfully took, obtained or withheld property from the owner and at the time he did that, he intended to appropriate the same to himself or a third person.” (Emphasis added.) In so instructing, the trial court declined to offer the jury the instructions suggested by the defendant. See State v. Leroy, 232 Conn. 1, 7, 653 A.2d 161 (1995) (“improper jury instruction as to an essential element of the crime charged may result in the violation of the defendant’s due process right to a fair trial, and thus require the reversal of a conviction based upon that instruction”). The trial court properly rejected the instruction suggested by the defendant because much of the defendant’s suggested instruction addressed the “deprive” prong of the intent element, rather than the “appropriate” prong on which the state was proceeding. See State v. Faust, 237 Conn. 454, 473, 678 A.2d 910 (1996).

In addition to declining to deliver the defendant’s entire requested jury instruction, the trial court refrained from stating to the jury the statutory definition of “appropriate.” General Statutes § 53a-118 (a) (4) defines “appropriate” as follows: “(A) to exercise control over it, or to aid a third person to exercise control over it, permanently or for so extended a period or under such circumstances as to acquire the major portion of its economic value or benefit, or (B) to dispose of the property for the benefit of oneself or a third person.” The state was relying on the latter definition, as it emphasized at trial. The defendant contends, however, that if the state meant to proceed only under the “dispose of’ prong of the definition of “appropriate,” the trial court should have read at least that specific section of the statutory definition to the jury. The state argues that, because the jury was not provided with the definition contained in § 53a-118 (a) (4), it may be presumed that the jury relied on a commonsense or dictionary understanding of the term. Such a definition, the state contends, would be the same for all intents and purposes as the statutory definition.

Although a trial court is not necessarily obligated to instruct the jury as to a statutory definition; see, e.g., State v. Sinclair, 197 Conn. 574, 581, 500 A.2d 539 (1985) (failure to provide statutory definition of “intent”); in the interest of clarity, it is generally preferable that the jury be so instructed. Compare State v. Cerilli, 222 Conn. 556, 567, 610 A.2d 1130 (1992) (“[w]e agree with the defendant that a specific instruction on identification was warranted because his theory of defense was misidentification and because there were sufficient instances of lack of clarity and sufficient inconsistencies in the identification testimony”). It is well established that, when determining the meaning of a word, “it is appropriate to look to the common understanding of the term as expressed in a dictionary.” State v. Indrisano, 228 Conn. 795, 809, 640 A.2d 986 (1994). This precept, however, pertains primarily to the situation where no statutory definition is available. Id. If the statutory and dictionary definitions are sufficiently similar-, the need for the jury to be read the statutory definition is less compelling. See State v. Mason, 186 Conn. 574, 586-87, 442 A.2d 1335 (1982); see also State v. Kurvin, 186 Conn. 555, 562, 442 A.2d 1327 (1982) (“when a word contained in an essential element carries its ordinary meaning, failure to give the statutory definition will not constitute error”); see also State v. Sinclair, supra, 581 (“the trial court’s failure specifically to define intent, at least in the absence of a request or exception by the defendant, was not reversible error because it is not reasonably possible that the jury was misled as to its meaning”); State v. Maresca, 173 Conn. 450, 460-61, 377 A.2d 1330 (1977) (“[n]or ... did the court err in refusing to charge the jury on the statutory definition of the word ‘intentionally,’ which has not been shown to have been used in anything other than its ordinary meaning”).

To determine whether the ordinary meaning of “appropriate” comports with the definition of that term in § 53a-118 (a) (4), we compare the dictionary definition with “to dispose of for the benefit of oneself or a third person.” Webster’s Third New International Dictionary offers the following definitions of “appropriate”: “3a: to make peculiarly the possession of someone . . . b: to claim or use as if by an exclusive or preeminent right ... 5: to set apart for or assign to a particular purpose or use in exclusion of all others ... 6: to take without permission . . . .” Although this definition suggests a taking that denies access to others, it does not mention the word “dispose” specifically, nor does it include any mention of the benefit gained for oneself or a third person. Furthermore, the dictionary definition is in a sense too broad because it contains definitions not anticipated by the statute. For example, under “appropriate,” the dictionary also lists “to annex,” as well as “to assign or attribute” and “to make suitable.” Webster’s Third New International Dictionary. Although, as the state contends, the dictionary definition of “appropriate” is consistent with the statutory definition, we find it not to be as specific; therefore, it is not accurate to say that the word “appropriate,” as presented in § 53a-118 (a) (4) is used in its ordinary sense. Accordingly, we conclude that it was improper in the present case for the trial court to refrain from providing the jury with the statutory definition of “appropriate.”

The trial court’s improper omission of the statutory definition of “appropriate” from its instructions to the jury is an issue of constitutional magnitude. Therefore, the burden is on the state to prove harmlessness beyond a reasonable doubt. See, e.g., United States v. Hasting, 461 U.S. 499, 507-509, 103 S. Ct. 1974, 76 L. Ed. 2d 96 (1983); State v. Grant, 6 Conn. App. 24, 27-28, 502 A.2d 945 (1986); see also State v. Cerilli, supra, 222 Conn. 584 n.16 (“[w]e have equated this constitutionally required formulation of the harmless error standard . . . with our formulation that an instructional constitutional error is harmless if there is no reasonable possibility that the jury was misled” [citation omitted]). “An alleged defect in a jury charge which raises a constitutional question is reversible error if it is reasonably possible that, considering the charge as a whole, the jury was misled.” State v. Smith, 194 Conn. 213, 219, 479 A.2d 814 (1984); see also Neder v. United, States, 527 U.S. 1, 15, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999) (“the test for determining whether a constitutional error is harmless ... is whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained” [internal quotation marks omitted]). In performing harmless error analysis, we keep in mind that “[i]n determining whether it was indeed reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge.” (Citations omitted; internal quotation marks omitted.) State v. Prioleau, 235 Conn. 274, 284, 664 A.2d 743 (1995).

In determining whether the jury instruction resulted in harm, it is helpful to look to the complexity of the issues involved. See State v. Lemoine, 233 Conn. 502, 514-15, 659 A.2d 1194 (1995) (“[i]n assessing whether a jury reasonably could have been misled by the court’s instructions ... it is always proper to consider whether the issues in the case are complicated”); see also, e.g., State v. Cerilli, supra, 222 Conn. 567 (“We conclude, however, that any . . . instructional lacuna did not constitute reversible error. This is not a case where the conviction turned on the ‘uncertain, unclear or inconsistent’ eyewitness identification of the defendant .... There were sufficient certainties and consistencies in the testimony . . . sufficient evidence corroborating that testimony and strong evidence of consciousness of guilt so that there was no reasonable probability that the jury was misled.” [Citation omitted.]); contra State v. Velasco, 253 Conn. 210, 236, 751 A.2d 800 (2000) (“We are satisfied that, under the facts of this case, the evidence that the defendant utilized a firearm . . . was neither overwhelming nor uncontested. Nor was a finding that the defendant utilized a firearm in the commission of an underlying felony implicit in the guilty verdict returned. We therefore cannot say with confidence that the impropriety did not contribute to the verdict obtained.”).

In the present case, the fundamental issue for the jury to decide was whether the defendant towed Lewis’ car wrongfully from the street or lawfully from the parking lot; the wrongfulness of the tow was disputed, not whether the defendant disposed of the vehicle for a $148 benefit. The defendant did not contest the evidence that he towed the vehicle; indeed, the defendant’s own witnesses corroborated that fact. Similarly, the defendant did not contest the fact that Walnut Street Services, Inc., collected a $148 fee for the return of the vehicle. “In a case . . . where a defendant did not, and apparently could not, bring forth facts contesting the omitted element, answering the question whether the jury verdict would have been the same absent the error does not fundamentally undermine the purposes of the jury trial guarantee.” Neder v. United States, supra, 527 U.S. 19; see also State v. Scarpiello, 40 Conn. App. 189, 212, 670 A.2d 856, cert. denied, 236 Conn. 921, 674 A.2d 1327 (1996). Accordingly, we find the improper jury instruction to be harmless beyond a reasonable doubt. See Neder v. United States, supra, 17 (“where a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless”).

II

THE DEFENDANT’S ALTERNATIVE GROUNDS FOR AFFIRMANCE

A

The Waiver Rule

Because the defendant’s motion for judgment of acquittal at the close of the state’s case was denied as to the larceny charge on which he was ultimately found guilty, he asks us to evaluate the constitutionality of the waiver rule in this case, even though he has not presented us with a complete record for review. The defendant raises this claim as an alternative ground for affirmance of the Appellate Court’s reversal of his conviction, and he asks that we go further than the Appellate Court and direct a judgment of acquittal on the larceny count.

“Under the waiver rule, when a motion for acquittal at the close of the state’s case is denied, a defendant may not secure appellate review of the trial court’s ruling without [forgoing] the right to put on evidence in his or her own behalf. The defendant’s sole remedy is to remain silent and, if convicted, to seek reversal of the conviction because of insufficiency of the state’s evidence. If the defendant elects to introduce evidence, the appellate review encompasses the evidence in toto. The defendant then runs the risk that the testimony of defense witnesses will fill an evidentiary gap in the state’s case. The waiver rule, therefore, forces the defendant to choose between waiving the right to a defense and waiving the right to put the state to its proof.” State v. Rutan, 194 Conn. 438, 440-41, 479 A.2d 1209 (1984). In Rutan, we indicated that, “in an appropriate case, we may well conclude that the denial of a defendant’s motion for acquittal at the close of the state’s case may be assignable as error on appeal from a conviction, whether or not the defendant has introduced evidence in his or her own behalf.” Id., 444. Such an analysis would be inappropriate in the present case, however, because we have not been presented with the complete record of the trial. See, e.g., State v. Ong, 30 Conn. App. 45, 51, 618 A.2d 583, cert. denied, 225 Conn. 909, 621 A.2d 290 (1993) (“[t]he defendant’s brief makes it clear that he deliberately chose not to file a transcript of the trial”). Although the defendant argues that the excluded testimony was relevant only to the charges on which he was acquitted, we will not base our conclusions on the defendant’s unsubstantiated representations; the waiver rule requires that we examine the trial in its entirety.

B

Sufficiency of the Evidence

The defendant argues that the evidence against him was insufficient to support his larceny conviction. As indicated previously, the defendant has not presented us with a complete record. Accordingly, we will not address this claim.

C

Intent to Deprive Permanently

The defendant also argues that the judgment of the Appellate Court providing the defendant with a new trial should be affirmed because the trial court did not instruct the jury that, at the time of the taking, the defendant must have intended the taking to be permanent. Such a requirement, however, is not mandated by § 53a-118 (a) (4) (B).

We have previously established that the state’s case proceeded under the “intent to appropriate,” rather than the “intent to deprive” prong of § 53a-119. Section 53a-118 (a) (4) defines “appropriate” as follows: “(A) to exercise control over [the property], or to aid a third person to exercise control over it, permanently or for so extended a period or under such circumstances as to acquire the major portion of its economic value or benefit, or (B) to dispose of the property for the benefit of oneself or a third person.” (Emphasis added.) As indicated previously, the state was proceeding under the definition provided in subparagraph (B). The state did not claim that the defendant intended to keep the vehicle, but rather that the vehicle was improperly towed so that the defendant’s company could collect the $148 benefit.

Unlike subparagraph (A), subparagraph (B) contains no permanency element. Accordingly, the trial court acted properly in not instructing the jury on that term.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to consider the defendant’s remaining grounds for appeal, i.e., whether the trial court improperly refused to give a missing witness instruction for the state’s failure to call the wife of the complaining witness to testify and whether the prosecutor’s allegedly improper argument deprived the defendant of his due process right to a fair trial under the United States and Connecticut constitutions.

In this opinion the other justices concurred.

       General Statutes § 53a-124 (a) provides in relevant part: “A person is guilty of larceny in the third degree when he commits larceny, as defined in section 53a-119, and: (1) The property consists of a motor vehicle, the value of which is five thousand dollars or less . . . .”
      General Statutes § 53a-119 provides in relevant part: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. . .

       General Statutes § 53a-118 (a) provides in relevant part: “(4) To ‘appropriate’ property of another to oneself or a third person means . . . (B) to dispose of the property for the benefit of oneself or a third person. . . .”

       The Appellate Court rejected the defendant’s claim that the trial court improperly had denied his motions for acquittal; State v. Spillane, supra, 54 Conn. App. 210; and his interrelated claims concerning the trial court’s refusal to instruct the jury about the destruction of the police tapes and its denial of his motion to strike the testimony of the complaining witness, both of which it considered in the event that they were to arise in the new trial it had ordered. Id., 220-21, 228.

       General Statutes (Rev. to 1995) § 53-21, as amended by No. 95-142, § 1, of the 1995 Public Acts, provides in relevant part: “Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, [or] the health of such child is likely to be injured . . . shall be guilty of a class C felony.”

       General Statutes § 53a-64 (a) provides: “A person is guilty of reckless endangerment in the second degree when he recklessly engages in conduct which creates a risk of physical injury to another person.”

       A private tow company may tow a vehicle parked on a public street only if it has been ticketed by the police. The police had not issued a ticket in this case.

       The defendant, citing D. Borden & L. Orland, 5 Connecticut Practice Series: Criminal Jury Instructions (2d Ed. 1997) §§ 13.1 and 7.1, pp. 606-607, requested the following jury instructions regarding intent to appropriate:
      “Insofar as it applies here, larceny in the third degree means that a larceny, which is a theft or stealing of property, has been committed and that the property stolen consisted of a motor vehicle.
      “Larceny means theft or stealing. The statute provides that a person commits larceny when, with intent to deprive another of property or to appropriate that property to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner.
      “The state must prove that property was taken with the specific intention of depriving the owner (or some other person) of it, or of appropriating it to himself or to some third person. To intend to deprive another of property means, insofar as it applies here, intending to withhold it or cause it to be withheld from him permanently or for so long a time or under such circumstances that the major portion of its economic value or benefit is lost to him, or intending to dispose of the property in such a manner or under such circumstances as to make it unlikely that an owner will recover the property. To intend to appropriate property to oneself or a third person means intending to exercise control over it permanently or for so long a time or under such circumstances as to acquire the major portion of its economic value or benefit, or intending to dispose of the property, for the benefit of oneself or a third person. In other words, the property must have been taken for the purpose of keeping or using it permanently or virtually so, or of disposing of it in such a way as to result in a permanent or virtually permanent loss of the property to the owner. . . .
      “It is essential, therefore, that the state prove beyond a reasonable doubt that the person who took the property had this unlawful purpose or intention in his mind at the time the property was taken. In addition to this mental element of the crime, the state must also prove that the property was wrongfully taken from the owner. . . .
      “To summarize, then, in order for you to convict the defendant under this count, you must be satisfied beyond a reasonable doubt that the following firings have been proven: (1) that the defendant had the intention to deprive another of property or to appropriate it to himself or to someone else; (2) that acting with that intent he wrongfully took, obtained or withheld that property from its owner; and (3) that the property consisted of a motor vehicle.
      “In this case, the defendant claims that he was engaged in a legal tow of an illegally parked motor vehicle from private property. The defendant claims that Walnut Street Services, Inc. was authorized to tow motor vehicles from the parking lot in front of [Mechanics’ Savings Bank] on Farmington Avenue; that the tow in fact took place from that parking lot; and that the defendant did not have the requisite intent to deprive another of his property.
      “If you find that the state has not proven all these elements—intent to deprive or appropriate; wrongful taking, obtaining or withholding; and that the property consisted of a motor vehicle, your verdict would be not guilty on this count. If, however, you do find that the state has proven all these elements, your verdict would be guilty on this count.”

       On March 14, 1997, the state’s attorney, in response to the defendant’s motion for judgment of acquittal at the close of the state’s case, stated: “There are alternates . . . put forth for the state to prove larceny. And in this case, the state chose . . . intent to appropriate a motor vehicle to himself.
      “To appropriate, it is defined under section 53a-118 provision four, ‘To appropriate property of another to oneself or to a third person means’ . . . (B), ‘to dispose of the property for the benefit of oneself or a third person.’ ”
      The instructions requested by the defendant; see footnote 7 of this opinion; were overbroad, not only because they included the “deprive” section of the statute, as described previously, but also because they unnecessarily addressed the definition of “appropriate” under § 53a-118 (a) (4) (A), thus attaching apermanency element to the definition of “appropriate” that § 53a-118 (a) (4) (B) does not require. See State v. Wieler, 35 Conn. App. 566, 580, 645 A.2d 1032 (1994) (“As we stated previously, the defendant’s intent permanently to deprive the associations of their property is not an essential element of the offense of larceny by embezzlement. Thus, there is no reasonable possibility that the trial court’s refusal to instruct on it misled the jury.”), aff'd, 233 Conn. 552, 660 A.2d 740 (1995) (per curiam); contra State v. Kurvin, 186 Conn. 555, 568, 442 A.2d 1327 (1982) (discussing permanency element with regard to “deprive” prong of larceny statute).

       In his transcript request, the defendant specifically excluded the testimony of ten witnesses.

       The defendant also contends that, under Practice Book § 63-8, it was the state’s responsibility to provide any additional necessary transcripts. The state contends that it was the defendant’s responsibility to provide an adequate record for review, citing Practice Book § 61-10. Because it is the defendant who is making the waiver rule argument, it is the defendant’s responsibility to provide an adequate record against which his argument may be evaluated. The defendant has not provided such a record here; therefore, we will not examine the constitutionality of the waiver rule in this case, nor will we limit our analysis of the sufficiency of the evidence to the evidence presented in the state’s case-in-chief.


author: BORDEN, J.

text:
    KATHRYN LAFAYETTE v. GENERAL DYNAMICS CORPORATION/ELECTRIC BOAT DIVISION ET AL.
    (SC 16420)
    Borden, Norcott, Katz, Sullivan and Vertefeuille, Js.

      Argued January 11
    officially released April 24, 2001

      Amy M. Stone, for the appellant (plaintiff).

      Lucas D. Strank, with whom were Peter D. Quay and, on the brief, James L. Pomeranz and Kristen L. Frazier, for the appellees (defendants).

       The listing of justices reflects their seniority status on this court as of the date of oral argument.

   Opinion

BORDEN, J.

The sole issue in this appeal is whether the doctrine of collateral estoppel operates to bar the adjudication of the issue of causation in this action under the Workers’ Compensation Act (act); General Statutes § 31-275 et seq.; which was preceded by a judgment under the federal Longshore and Harbor Workers’ Compensation Act (Longshore Act); 33 U.S.C. § 901 et seq. The plaintiff, Kathryn Lafayette, appeals from a decision of the workers’ compensation review board (review board) affirming the decision of the workers’ compensation commissioner (commissioner). The commissioner had concluded that the doctrine of collateral estoppel did not bar the named defendant, the Electric Boat Division of General Dynamics Corporation (Electric Boat),* from adjudicating the issue of causation. We conclude that the doctrine of collateral estoppel applies in the present case. Accordingly, we reverse the decision of the review board.

This appeal comes to us after related federal litigation between the same parties involving some of the same issues. See Lafayette v. General Dynamics Corp., United States Department of Labor, Office of Workers’ Compensation Programs, Nos. 1-30719/64586 (February 5, 1996). In light of the record in this case and the facts found in the federal proceeding, the following facts are undisputed for purposes of this appeal.

In January, 1965, Archie F. Lafayette, the plaintiffs decedent, began working as a test man for Electric Boat at its maritime facility in the town of Groton, where Electric Boat builds, repairs and overhauls submarines. In November, 1967, the decedent became a technical aide for Electric Boat, but was laid off in October, 1970. He returned to the Electric Boat shipyard in April, 1973, resuming his duties as a technical aide—the capacity in which he essentially remained until his death.

In December, 1981, as part of its screening of certain employees exposed to various stimuli at the shipyard, Electric Boat took a chest x-ray of the decedent, which was read as abnormal as showing pleural scarring or plaques. Pulmonary function tests also taken at that time showed reduced vital capacity. Subsequent chest x-rays also were read as abnormal as showing pleural scarring. In 1983, the decedent complained of shortness of breath. In 1984, bilateral pleural plaques were reported. By 1987, the decedent’s pulmonary capacity had decreased. In November, 1992, the decedent was admitted to the William W. Backus Hospital in Norwich for a chest biopsy, at which time Gail R. Weingast, a physician, reported the existence of a “[p]leural based mass with bilateral pleural thickening and small left pleural effusion.” She suspected that the mass might be “mesothelioma in a patient with previous asbestos exposure.” In a November, 1992 consultation report, Dennis E. Slater, a physician, stated that: (1) the decedent had worked at the Electric Boat shipyard for almost twenty-seven years; (2) during the 1960s, the decedent worked in test groups stripping ships of piping and had unprotected heavy exposure to asbestos; (3) chest x-rays in the early 1980s showed asbestosis; (4) the decedent also worked in the nuclear reactor compartments of submarines with definite exposure to radiation; and (5) the decedent had a long history of cigarette smoking, a habit that he had stopped twelve years previously. The decedent’s condition rapidly declined, and he died in March, 1993. The decedent’s death certificate identified, as the immediate cause of death, cardiopulmonary arrest resulting from lung cancer. Additional facts will be stated as necessary.

In May, 1994, the plaintiff, the decedent’s dependent widow, filed two federal claims against Electric Boat seeking death benefits under the Longshore Act. The plaintiff alleged that the harm to the decedent, namely, his bilateral pleural plaques, his asbestos-related disease and his lung cancer, resulted from his exposure to and inhalation of asbestos at the Electric Boat shipyard. After a hearing, a United States Department of Labor administrative law judge (administrative judge) awarded death benefits to the plaintiff.

Thereafter, the plaintiff applied, pursuant to the survivors’ benefits provision of the act; General Statutes § 31-306; for survivors’ benefits as the surviving dependent spouse. After a hearing to determine whether the doctrine of collateral estoppel applied, by virtue of the federal action, so as to preclude Electric Boat from contesting the causal connection between the decedent’s death and his employment at Electric Boat, the commissioner concluded that the doctrine did not apply and, therefore, dismissed the plaintiffs assertion of collateral estoppel. The commissioner reasoned that the pertinent federal and state workers’ compensation laws differ significantly and have different standards of proof with respect to the compensability of asbestos-related claims. Pursuant to General Statutes §§ 31-280b (b) and 31-301 (b), the plaintiff filed a petition for review with the review board, which affirmed the decision of the commissioner. This appeal followed.

Before reaching the merits of the plaintiffs appeal, we briefly address the standard of review applicable to workers’ compensation appeals. “The principles that govern our standard of review in workers’ compensation appeals are well established. 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. . . . Besade v. Interstate Security Services, 212 Conn. 441, 449, 562 A.2d 1086 (1989). Neither the review board nor this court has the power to retry facts. See Six v. Thomas O’Connor & Co., 235 Conn. 790, 798-99, 669 A.2d 1214 (1996). . . . Doe v. Stamford, 241 Conn. 692, 696-97, 699 A.2d 52 (1997). It is well established that [although not dispositive, we accord great weight to the construction given to the workers’ compensation statutes by the commissioner and review board. . . . A state agency is not entitled, however, to special deference when its determination of a question of law has not previously been subject to judicial scrutiny. . . . Duni v. United Technologies Corp., 239 Conn. 19, 24-25, 682 A.2d 99 (1996); Davis v. Norwich, 232 Conn. 311, 317, 654 A.2d 1221 (1995). Where ... [a workers’ compensation] appeal involves an issue of statutory construction that has not yet been subjected to judicial scrutiny, this court has plenary power to review the administrative decision. Doe v. Stamford, supra, 697; see Davis v. Norwich, supra, 317. . . . Dowling v. Slotnik, 244 Conn. 781, 798, 712 A.2d 396, cert. denied [sub nom. Slotnik v. Considine], 525 U.S. 1017, 119 S. Ct. 542, 142 L. Ed. 2d 451 (1998).” (Internal quotation marks omitted.) Fimiani v. Star Gallo Distributors, Inc., 248 Conn. 635, 641-42, 729 A.2d 212 (1999).

The plaintiff contends that the review board improperly concluded that the doctrine of collateral estoppel did not apply so as to preclude Electric Boat from relitigating the causal relationship between the decedent’s death and his employment at Electric Boat. Specifically, the plaintiff contends that the doctrine applies because the issue of causation was fully litigated, actually decided and necessarily determined in the federal action, and that the plaintiffs burden of proof under the Longshore Act was the same as her burden of proof under our workers’ compensation laws. Electric Boat argues that collateral estoppel should not apply because the administrative judge applied the so-called § 20 (a) presumption under the Longshore Act. See 33 U.S.C. § 20 (a). Electric Boat refers to that presumption as a “statutory benefit of the doubt” principle that does not exist under our workers’ compensation laws. Stated another way, Electric Boat argues that the statutory presumption under the Longshore Act required the administrative judge to resolve any doubts in favor of the plaintiff, whereas our workers’ compensation laws allow the commissioner to resolve any doubts in favor of either party. The substance of this claim can be distilled into two distinct subparts: (1) the application of the § 20 (a) presumption resulted in a lighter burden of proof on the plaintiff in the federal action than would obtain in the state proceeding; and (2) because of the § 20 (a) presumption, it is not possible to discern whether the issue of causation was actually litigated and necessarily determined. We agree with the plaintiff.

The fundamental principles underlying the doctrine of collateral estoppel are well established. “The common-law doctrine of collateral estoppel, or issue preclusion, embodies a judicial policy in favor of judicial economy, the stability of former judgments and finality. State v. Ellis, 197 Conn. 436, 466, 497 A.2d 974 (1985), on appeal after remand sub nom. State v. Paradise, 213 Conn. 388, 567 A.2d 1221 (1990).” (Internal quotation marks omitted.) Walsh v. Stonington Water Pollution Control Authority, 250 Conn. 443, 460, 736 A.2d 811 (1999). “Collateral estoppel, or issue preclusion, is that aspect of res judicata which prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties upon a different claim. ... In re Juvenile Appeal (83-DE), 190 Conn. 310, 316, 460 A.2d 1277 (1983). For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment. . . . Virgo v. Lyons, 209 Conn. 497, 501, 551 A.2d 1243 (1988); see also Ashe v. Swenson, 397 U.S. 436, 445, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970); State v. Hope, 215 Conn. 570, 584, 577 A.2d 1000 (1990), cert. denied, 498 U.S. 1089, 111 S. Ct. 968, 112 L. Ed. 2d 1054 (1991).

“An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined. ... 1 Restatement (Second), Judgments § 27, comment (d) (1982). An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered. F. James & G. Hazard, Civil Procedure (3d Ed. 1985) § 11.19. If an issue has been determined, but the judgment is not dependent upon the determination of the issue, the parties may relitigate the issue in a subsequent action. Findings on nonessential issues usually have the characteristics of dicta. 1 Restatement (Second), [supra, comment (h)].” (Emphasis in original; internal quotation marks omitted.) Jackson v. R. G. Whipple, Inc., 225 Conn. 705, 714-15, 627 A.2d 374 (1993).

“As a general proposition, the governing principle is that administrative adjudications have a preclusive effect when the parties have had an adequate opportunity to litigate. United States v. Utah Construction & Mining Co., 384 U.S. 394, 422, 86 S. Ct. 1545, 16 L. Ed. 2d 642 (1965). Convalescent Center of Bloomfield, Inc. v. Department of Income Maintenance, 208 Conn. 187, 195, 544 A.2d 604 (1988); Corey v. Avco-Lycoming Division, 163 Conn. 309, 318, 307 A.2d 155 (1972), cert. denied, 409 U.S. 1116, 93 S. Ct. 903, 34 L. Ed. 2d 699 (1973). [A] valid and final adjudicative determination by an administrative tribunal has the same effects under the rules of res judicata, subject to the same exceptions and qualifications, as a judgment of a court. 2 Restatement (Second), Judgments § 83 (1).” (Internal quotation marks omitted.) Carothersv. Capozziello, 215 Conn. 82, 94, 574 A.2d 1268 (1990).

Mindful of these principles, we turn to the federal litigation underlying the plaintiffs assertion of collateral estoppel. As a threshold matter, however, a brief review of the relevant statutory framework of the Long-shore Act is necessary to an understanding of that litigation. The Longshore Act “provides a comprehensive scheme governing the [workers’ compensation] rights of an injured longshoreman.” Pallas Shipping Agency, Ltd. v. Duris, 461 U.S. 529, 532, 103 S. Ct. 1991, 76 L. Ed. 2d 120 (1983). Section 9 of the Longshore Act governs the distribution of death benefits, and provides that a “widow or widower” is entitled to such benefits “[i]f the [employee’s] injury causes death . . . .” 33 U.S.C. § 909 (b); see also 33 U.S.C. § 902 (11) (defining “ ‘[d]eath,’ ” as “basis for a right to compensation,” as “death resulting from an injury”); 33 U.S.C. § 902 (2) (defining “ ‘injury’ ” as “accidental injury or death arising out of and in the course of employment”); 33 U.S.C. § 902 (16) (defining “ ‘widow or widower’ ” as “the decedent’s wife or husband living with or dependent for support upon him or her at the time of his or her death; or living apart for justifiable cause or by reason of his or her desertion at such time”). “Taken together, these statutes indicate that a surviving spouse qualifies for death benefits [under the Longshore Act] only if: (i) the survivor’s deceased worker-spouse dies from, a work-related injury, (ii) the survivor is married to the worker-spouse at the time of the worker-spouse’s death; and (iii) the survivor is either living with the worker-spouse, dependent upon the worker-spouse, or living apart from the worker-spouse because of desertion or other justifiable cause at the time of the worker-spouse’s death.” (Emphasis added.) Ingalls Shipbuilding, Inc. v. Director, Office of Workers’ Compensation Programs, 519 U.S. 248, 257, 117 S. Ct. 796, 136 L. Ed. 2d 736 (1997).

Once a prima facie case has been established for such death benefits, § 20 (a) of the Longshore Act provides a presumption that the claim is covered by the Longshore Act. See 33 U.S.C. § 920 (a); Fleischmann v. Director, Office of Workers’ Compensation Programs, 137 F.3d 131, 137 (2d Cir. 1998). In order for a claimant to establish a prima facie case to invoke the presumption, the claimant must show that he has suffered an injury and that conditions existed in the workplace that could have caused the injury. Bath Iron Works v. Brown, 194 F.3d 194 (1st Cir. 1999). If the so-called § 20 (a) presumption of coverage is invoked, the burden of going forward with the evidence shifts to the employer. In order to rebut the § 20 (a) presumption, the employer must introduce substantial evidence that the injury did not arise out of or in the course of employment. See 33 U.S.C. § 920 (a); U.S. Industries/Federal Sheet Metal, Inc. v. Director, Office of Workers’ Compensation Programs, 455 U.S. 608, 611, 102 S. Ct. 1312, 71 L. Ed. 2d 495 (1982); Fleischmann v. Director, Office of Workers’ Compensation Programs, supra, 134. If the employer offers substantial evidence that the injury was not work-related, the presumption falls out of the case entirely; Del Vecchio v. Bowers, 296 U.S. 280, 286, 56 S. Ct. 190, 80 L. Ed. 229 (1935); and the administrative judge must weigh all of the evidence in the record. The administrative judge may then rule in favor of the claimant only if he or she concludes that the claimant has met his or her burden of proving by a preponderance of the evidence that the injury was work-related. See Director, Office of Workers’ Compensation Programs v. Greenwich Collieries, 512 U.S. 267, 277-78, 114 S. Ct. 2251, 129 L. Ed. 2d 221 (1994).

As stated previously, the plaintiff in the present case first filed a federal claim under § 9 of the Longshore Act in order to recover death benefits from Electric Boat, claiming that the decedent’s death was caused by asbestos exposure at the Electric Boat shipyard. In support of her claim, at the hearing in the federal action, the plaintiff offered the deposition testimony of Michael Deren, the decedent’s treating physician. Deren testified that the decedent’s exposure to asbestos at Electric Boat was a contributing factor to the development of the decedent’s cancer. The plaintiff also offered the April, 1995 report of Martin G. Chemiack, an associate professor of medicine, a board certified physician in internal and occupational medicine, and a well known pulmonary specialist. Chemiack had reviewed the decedent’s medical records, and opined that: (1) the decedent “had benign asbestotic pleural disease”; (2) epidemiologic studies of pipefitters, shipyard workers, insulators, textile workers and asbestos cement workers demonstrated that “lung cancer rates are elevated in the cohort with 10-19 years of asbestos exposure”; and (3) the decedent’s smoking history made him “an elevated smoking related lung cancer risk.” Chemiack repeatedly pointed out the synergistic effect of cigarette smoking and asbestos exposure in producing lung cancer, and concluded that it was “more likely than not that both tobacco smoke and exposures to asbestos at the Electric Boat Shipyard each contributed to the development of [the decedent’s] lung cancer.”

In defending against this claim, Electric Boat offered the January, 1995 report and the February, 1995 deposition testimony of Bernard L. Gee, a professor of medicine in the pulmonary and critical care section of the department of internal medicine at Yale University School of Medicine. After reviewing the decedent’s medical records and pertinent epidemiologic studies, Gee opined that: (1) the decedent had died of lung cancer, which was caused by his smoking history; and (2) it was not medically probable that the decedent’s asbestos exposure caused the lung cancer. Electric Boat also offered the April, 1995 testimony of Joseph Turco, a supervisor of the decedent at Electric Boat, in an effort to show that the decedent had not been exposed to asbestos at the shipyard for the length of time reported by Chemiack.

With respect to the evidence presented, the administrative judge expressly stated that “this case presents the classic battle of the medical experts, [Deren] and [Chemiack] for [the plaintiff] and [Gee] for the [defendants], Initially, I note that the evidence is not in equipoise, as posited by [Electric Boat], and I reject the thesis that the claim should be denied as the ‘true doubt’ rale has been rejected by the [United States] Supreme Court . . . .” (Emphasis added.) The administrative judge expressly stated that he placed great weight on the history reports given to Deren, particularly where the reports were given for purposes of treatment and were given well before the filing of any claim for benefits. The administrative judge also stated that he rejected, as vague and speculative, the testimony of Turco, which was offered by Electric Boat to show that the decedent had not been exposed to asbestos at the shipyard. The administrative judge further stated that he “accepted] the well-reasoned and well-documented opinion of [Chemiack] and [could not] accept the opinion of [Gee] as the doctor does not consider the well-known medical concept of the synergistic effect of cigarette smoking and asbestos exposure in producing a greater risk for contracting lung cancer.” Accordingly, the administrative judge concluded that the decedent’s lung cancer constituted a work-related injury that resulted from the synergistic effect of the decedent’s exposure to asbestos at the Electric Boat shipyard and his longtime smoking history.

A thorough review of the administrative judge’s decision makes it clear that he fully considered and determined, adversely to Electric Boat, the issue of whether the decedent’s condition was caused by his employment at Electric Boat. Moreover, a thorough review of the briefs filed in the federal action, as well as the transcripts of the proceedings, reveals that the issue of whether the decedent’s injury was causally related to his employment at Electric Boat was fully and fairly litigated. This is the same issue that Electric Boat attempts to litigate in the state workers’ compensation proceeding. Collateral estoppel bars Electric Boat from doing so.

Before we address the specific arguments advanced by Electric Boat, some background of the so-called “true doubt” rule is helpful to our resolution of the present case. For more than fifty years, in adjudicating benefits claims under the Longshore Act, the United States Department of Labor had applied what it called the true doubt rule. Director, Office of Workers’ Compensation Programs v. Greenwich Collieries, supra, 512 U.S. 269; see also id., 281 (Souter, J., dissenting). The true doubt rule “essentially shifts the burden of persuasion to the party opposing the benefits claim— when the evidence is evenly balanced, the benefits claimant wins.” Id., 269. The United States Supreme Court abolished, however, the true doubt rule in Director, Office of Workers’ Compensation Programs v. Greenwich Collieries, supra, 281, concluding that the rule was contrary to § 7 (c) of the federal Administrative Procedure Act; 5 U.S.C. § 556 (d); which requires that “when the evidence is evenly balanced, the benefits claimant must lose.” Director, Office of Workers’ Compensation Programs v. Greenwich Collieries, supra, 281.

Electric Boat argues that collateral estoppel should not apply because of the application by the administrative judge of the § 20 (a) presumption, which, according to Electric Boat, provided the plaintiff with a statutory benefit of the doubt that does not exist under our workers’ compensation laws. The subparts to this claim are that: (1) the application by the administrative judge of the § 20 (a) presumption resulted in a lighter burden of proof on the plaintiff in the federal action than would obtain in the state proceeding; and (2) because of that application, it is not possible to discern whether the issue of causation was actually litigated and necessarily determined. We are not persuaded. We conclude that, although the statements in the administrative judge’s decision to which Electric Boat refers were references to the abolished true doubt rule, and although those phrases were misstatements of the law, they were merely repeated as rote, boilerplate language by the administrative judge, and did not affect his analysis and ultimate conclusion to award death benefits to the plaintiff.

Although the administrative judge used the disputed language improperly, and cited cases decided prior to Greenwich Collieries as authority for the language; see, e.g., Durrah v. Washington Metropolitan Area Transit Authority, 760 F.2d 322 (D.C. Cir. 1985); he did not actually apply the true doubt rule. Instead, as stated previously, the administrative judge expressly found that the evidence was not in equipoise, and analyzed and weighed the competing medical opinions offered by Deren, Chemiack and Gee. Furthermore, he expressly stated that he accepted the opinions of Deren and Cher-niack, which weighed in favor of a finding of causation, and that he did not accept the opinion of Gee, because Gee did not consider the synergistic effect of cigarette smoking and asbestos exposure. It is therefore clear that the administrative judge did not apply the true doubt rule, which has been abolished.

Even if we were to assume that the language in the administrative judge’s decision concerning resolving any doubts in favor of the plaintiff; see footnote 9 of this opinion; referred to a statutory benefit of the doubt principle, as Electric Boat suggests, as opposed to the true doubt rule, we are unpersuaded by Electric Boat’s arguments. First, Electric Boat points to neither any statutory language nor any case law, nor are we aware of any, to support its proposition that the § 20 (a) presumption requires a judge to find in favor of the claimant when a doubt exists with respect to the evidence. Second, these arguments ignore the procedural context in which the § 20 (a) presumption played a role. As discussed previously, under the Longshore Act, the § 20 (a) presumption is invoked when a claimant has made a prima facie case that an injury was suffered and that the injury could have been caused by a condition that existed in the workplace. Upon such a showing, the employer is then afforded the opportunity to rebut the presumption by presenting substantial evidence that the injury was not work-related. In the context of this statutory framework, as expressly acknowledged by the administrative judge, Electric Boat successfully rebutted the § 20 (a) presumption, causing it to drop out of the case entirely. The administrative judge thereafter weighed all of the evidence in the record. Thus, the § 20 (a) presumption did not play a role in his final analysis of the evidence. Third, as discussed previously, the administrative judge had no doubts with respect to the evidence presented.

Specifically, therefore, with respect to Electric Boat’s first argument, we conclude that, in the federal action, the administrative judge imposed on the plaintiff the burden to prove, by a preponderance of the evidence, that the decedent’s injury arose out of and occurred in the course of his employment at Electric Boat, and that the administrative judge in fact required that this burden be satisfied without the aid of any presumption. This is the same burden that would obtain in the state workers’ compensation proceeding. With respect to Electric Boat’s second argument, it is unnecessary to repeat our discussion here concerning whether the issue of causation was actually litigated and necessarily determined in the federal action.

At oral argument before this court, Electric Boat argued for the first time that collateral estoppel should not apply because the administrative judge applied a more relaxed standard of causation than is applicable under the act. Specifically, Electric Boat argued that the administrative judge applied a standard whereby the employment-related injury had to be a contributing factor as opposed to a substantial contributing factor standard, which, according to Electric Boat, would apply in the state proceeding. Because this issue was neither timely raised nor properly briefed, we decline to review it. See Shew v. Freedom of Information Commission, 245 Conn. 149, 166 n.20, 714 A.2d 664 (1998); Peerless Ins. Co. v. Gonzalez, 241 Conn. 476, 486 n.7, 697 A.2d 680 (1997).

The decision of the review board is reversed and the case is remanded to the review board with direction to reverse the decision of the commissioner dismissing the claim of collateral estoppel, and to remand the case to the commissioner for further proceedings according to law.

In this opinion the other justices concurred.

       The plaintiff appealed from the decision of the workers’ compensation review board to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 65-2 and General Statutes § 51-199 (c).
      Although the parties in their briefs do not address the issue of whether there has yet been a final judgment from which to appeal, we briefly address that issue here. We recently stated in Cantoni v. Xerox Corp., 251 Conn. 153, 160-61, 740 A.2d 796 (1999), that “[i]n workers’ compensation cases, [t]he test that determines whether ... a decision [of the review board] is a final judgment turns on the scope of the proceedings on remand: if such further proceedings are merely ministerial, the decision is an appealable final judgment, but if further proceedings will require the exercise of independent judgment or discretion and the taking of additional evidence, the appeal is premature and must be dismissed.” (Internal quotation marks omitted.) Because further proceedings in the present case would require the taking of additional evidence and the exercise of independent judgment, the plaintiffs appeal ordinarily would be dismissed for lack of a final judgment. In Convalescent Center of Bloomfield, Inc. v. Dept. of Income Maintenance, 208 Conn. 187, 194, 544 A.2d 604 (1988), however, we held that the denial of a claim for collateral estoppel was “ripe for immediate appellate review.” We stated that “the defense of collateral estoppel is a civil law analogue to the criminal law’s defense of double jeopardy, because both invoke the right not to have to go to trial on the merits.” Id., 195. Although the plaintiff in the present case is attempting to invoke collateral estoppel offensively, and not defensively, as did the plaintiffs in Convalescent Center of Bloomfield, Inc., we similarly conclude today that the denial of a claim for collateral estoppel is ripe for immediate appellate review.

       The other defendants involved in the prior proceedings were Cigna Property and Casualty Company, National Employers Company and the second injury fund. The defendants involved in this appeal are Electric Boat, ACE USA and Travelers Property and Casualty, all of which filed a joint brief in this court.

       Specifically, the administrative judge ordered Electric Boat, as a self-insurer, to pay the plaintiff death benefits for 104 weeks pursuant to § 9 of the Longshore Act, and ordered that, after the cessation of payments made by Electric Boat, the special fund established pursuant to § 44 of the Long-shore Act pay continuing benefits pursuant to § 8 (f) of the Longshore Act See 33 U.S.C. §§ 909, 944, 908.

       General Statutes § 31-306 provides: “Death resulting from accident or occupational disease. Dependents. Compensation, (a) Compensation shall be paid to dependents on account of death resulting from an accident arising out of and in the course of employment or from an occupational disease as follows:
      “(1) Four thousand dollars shall be paid for burial expenses in any case where the employee died on or after October 1,1988. If there is no one wholly or partially dependent upon the deceased employee, the burial expenses of four thousand dollars shall be paid to the person who assumes the responsibility of paying the funeral expenses.
      “(2) To those wholly dependent upon the deceased employee at the date of his injury, a weekly compensation equal to seventy-five per cent of the average weekly earnings of the deceased calculated pursuant to section 31-310, after such earnings have been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act made from such employee’s total wages received during the period of calculation of the employee’s average weekly wage pursuant to said section 31-310, as of the date of the iqjury but not more than the maximum weekly compensation rate set forth in section 31-309 for the year in which the injury occurred or less than twenty dollars weekly. (A) The weekly compensation rate of each dependent entitled to receive compensation under this section as a result of death arising from a compensable injury occurring on or after October 1, 1977, shall be a<}justed annually as provided in this subdivision as of the following October first, and each subsequent October first, to provide the dependent with a cost-of-living adjustment in his weekly compensation rate as determined as of the date of the injury under section 31-309. If the maximum weekly compensation rate, as determined under the provisions of said section 31-309, to be effective as of any October first following the date of the injury, is greater than the maximum weekly compensation rate prevailing at the date of the injury, the weekly compensation rate which the injured employee was entitled to receive at the date of the injury or October 1, 1990, whichever is later, shall be increased by the percentage of the increase in the maximum weekly compensation rate required by the provisions of said section 31-309 from the date of the injury or October 1, 1990, whichever is later, to such October first. The cost-of-living increases provided under this subdivision shall be paid by the employer without any order or award from the commissioner. The adjustments shall apply to each payment made in the next succeeding twelve-month period commencing with the October first next succeeding the date of the iryury. With respect to any dependent receiving benefits on October 1, 1997, with respect to any injury occurring on or after July 1, 1993, and before October 1, 1997, such benefit shall be recalculated to October 1, 1997, as if such benefits had been subject to recalculation annually under this subparagraph. The difference between the amount of any benefits which would have been paid to such dependent if such benefits had been subject to such recalculation and the actual amount of benefits paid during the period between such injury and such recalculation shall be paid to the dependent not later than December 1, 1997, in a lump-sum payment. The employer or his insurer shall be reimbursed by the Second Injury Fund, as provided in section 31-354, for adjustments, including lump-sum payments, payable under this subparagraph for deaths from compensable injuries occurring on or after July 1, 1993, and before October 1,1997, upon presentation of any vouchers and information that the Treasurer shall require. (B) The weekly compensation rate of each dependent entitled to receive compensation under this section as a result of death arising from a compensable injury occurring on or before September 30, 1977, shall be adjusted as of October 1, 1977, and October 1, 1980, and thereafter, as provided in this subdivision to provide the dependent with partial cost-of-living adjustments in his weekly compensation rate. As of October 1, 1977, the weekly compensation rate paid prior to October 1, 1977, to the dependent shall be increased by twenty-five per cent. The partial cost-of-living adjustment provided under this subdivision shall be paid by the employer without any order or award from the commissioner. In addition, on each October first, the weekly compensation rate of each dependent as of October 1, 1990, shall be increased by the percentage of the increase in the maximum compensation rate over the maximum compensation rate of October 1, 1990, as determined under the provisions of section 31-309 existing on October 1, 1977. The cost of the adjustments shall be paid by the employer or his insurance carrier who shall be reimbursed therefor from the Second Injury Fund as provided in section 31-354 upon presentation of any vouchers and information that the Treasurer shall require.
      “(3) If the surviving spouse is the sole presumptive dependent, compensation shall be paid until death or remarriage.
      “(4) If there is a presumptive dependent spouse surviving and also one or more presumptive dependent children, all of which children are either children of the surviving spouse or are living with the surviving spouse, the entire compensation shall be paid to the surviving spouse in the same manner and for the same period as if the surviving spouse were the sole dependent. If, however, any of the presumptive dependent children are neither children of the surviving spouse nor living with the surviving spouse, the compensation shall be divided into as many parts as there are presumptive dependents. The shares of any children having a presumptive dependent parent shall be added to the share of the parent and shall be paid to the parent. The share of any dependent child not having a surviving dependent parent shall be paid to the father or mother of the child with whom the child may be living, or to the legal guardian of the child, or to any other person, for the benefit of the child, as the commissioner may direct.
      “(5) If the compensation being paid to the surviving presumptive dependent spouse terminates for any reason, or if there is no surviving presumptive dependent spouse at the time of the death of the employee, but there is at either time one or more presumptive dependent children, the compensation shall be paid to the children as a class, each child sharing equally with the others. Each child shall receive compensation until the child reaches the age of eighteen or dies before reaching age eighteen, provided the child shall continue to receive compensation up to the attainment of the age of twenty-two if unmarried and a full-time student, except any child who has attained the age of twenty-two while a full-time student but has not completed the requirements for, or received, a degree from a postsecondary educational institution shall be deemed not to have attained age twenty-two until the first day of the first month following the end of the quarter or semester in which he is enrolled at the time, or if he is not enrolled in a quarter or semester system, until the first day of the first month following the completion of the course in which he is enrolled or until the first day of the third month beginning after such time, whichever occurs first. When a child’s participation ceases, his share shall be divided among the remaining eligible dependent children, provided if any child, when he reaches the age of eighteen years, is physically or mentally incapacitated from earning, his right to compensation shall not terminate but shall continue for the full period of incapacity.
      “(6) In all cases where there are no presumptive dependents, but where there are one or more persons wholly dependent in fact, the compensation in case of death shall be divided according to the relative degree of their dependence. Compensation payable under this subdivision shall be paid for not more than three hundred and twelve weeks from the date of the death of the employee. The compensation, if paid to those wholly dependent in fact, shall be paid at the full compensation rate. The compensation, if paid to those partially dependent in fact upon the deceased employee as of the date of the injury, shall not, in total, be more than the full compensation rate nor less than twenty dollars weekly, nor, if the average weekly sum contributed by the deceased at the date of the injury to those partially dependent in fact is more than twenty dollars weekly, not more than the sum so contributed.
      “(7) When the sole presumptive dependents are, at the time of the injury, nonresident aliens and the deceased has in this state some person or persons who are dependent in fact, the commissioner may in his discretion equitably apportion the sums payable as compensation to the dependents.
      “(b) The dependents of any deceased employee who was injured on or after January 1, 1974, and who died not later than November 1, 1991, shall be paid compensation on account of the death retroactively to the date of the employee’s death. The cost of the payment or adjustment shall be paid by the employer or his insurance carrier who shall be reimbursed therefor from the Second Injury Fund as provided in section 31-354 upon presentation of any vouchers and information that the Treasurer shall require.
      “(c) The dependents of any deceased employee who was injured in an accident arising out of and in the course of employment before January 1, 1952, and who died, as a result of those injuries, after October 1, 1991, shall be paid compensation, under the provisions of this section, effective as of the date of death of any such employee. Notwithstanding the provisions of subsection (a) of this section, the weekly compensation rate for such dependents shall equal the amount of compensation the injured employee was receiving prior to death pursuant to section 31-307. Such weekly compensation rate shall hereafter be adjusted in accordance with the provisions of subsection (a) of this section. The cost of such payment or adjustment shall be paid by the employer or the insurance carrier of such employer who shall ,be reimbursed therefor from the Second Injury Fund provided for in section 31-354.”

       General Statutes § 31-280b (b) provides: “The board shall review appeals of decisions made by compensation commissioners pursuant to this chapter. The chief shall annually select two compensation commissioners to sit with him to hear such appeals for a term of one year, except that no commissioner may sit in review of an award or decision rendered by him. The chief may select a third compensation commissioner to sit on the board if one of the board members is disqualified or temporarily incapacitated from hearing the matter under review.”

       General Statutes § 31-301 (b) provides: “The appeal shall be heard by the Compensation Review Board as provided in section 31-280b. The Compensation Review Board shall hear the appeal on the record of the hearing before the commissioner, provided, if it is shown to the satisfaction of the board that additional evidence or testimony is material and that there were good reasons for failure to present it in the proceedings before the commissioner, the Compensation Review Board may hear additional evidence or testimony.”

       In this connection, we presume that Electric Boat relies on the following exception to the application of the collateral estoppel doctrine, which precludes its application when “[t]he party against whom preclusion is sought had a significantly heavier burden of persuasion with respect to the issue in the initial action than in the subsequent action; the burden has shifted to his adversary; or the adversary has a significantly heavier burden than he had in the first action . . . (Emphasis added.) I Restatement (Second), Judgments § 28 (4) (1982).

       Title 33 of the United States Code, § 920, provides in relevant part,: “In any proceeding for the enforcement of a claim for compensation under [the Longshore Act] it shall be presumed, in the absence of substantial evidence to the contrary—
      “(a) That the claim comes within the provisions of [the Longshore Act]. . .

       Specifically, Electric Boat refers to the following language in the administrative judge’s decision: “[T]he presumption on that issue falls out of the case, does not control the result and I shall now weigh and evaluate all of the evidence, resolving all doubts, as I must, in [the plaintiff’s] favor.” (Emphasis added.)

       In this connection, we note that Electric Boat expressly conceded, at oral argument before this court, that the administrative judge did not apply the true doubt rule.

       “It is an axiom of [workers’] compensation law that awards are determined by a two-part test. The [claimant] has the burden of proving that the injury claimed arose out of the employment and occurred in the course of the employment. There must be a conjunction of [these] two requirements ... to permit compensation. . . . The former requirement relates to the origin and cause of the accident, while the latter requirement relates to the time, place and [circumstance] of the accident. . . . Mazzone v. Connecticut Transit Co., 240 Conn. 788, 792-93, 694 A.2d 1230 (1997). . . . Kish v. Nursing & Home Care, Inc., [248 Conn. 379, 382-83, 727 A.2d 1253 (1999)].” (Emphasis in original; internal quotation marks omitted.) Kolomiets v. Syncor International Corp., 252 Conn. 261, 266, 746 A.2d 743 (2000).