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implantation of a pacemaker. Claimant sought effect on March 1, 2016, due to Liberty Mutual’s
benefits, arguing that the pacemaker operation failure to serve the cancellation on The Grotto
was compensable. The commissioner denied the by certified mail. Liberty Mutual was thus re-
claim, finding that claimant’s compensable hy- sponsible for paying all benefits resulting from
pertension was distinct from the ailment that re- claimant’s injury. The review board disagreed,
quired him to obtain a pacemaker. The review finding that the policy was effectively cancelled
board affirmed, finding that the medical evidence on November 3, 2015. Liberty Mutual complied
supported a finding that claimant’s hypertension with its statutory duties by notifying NCCI of
and heart block were distinct and unrelated ail- the cancellation. Although Liberty Mutual later
ments. Claimant failed to establish that his hy- mistakenly sent letters to The Grotto indicating
pertension was a substantial contributing factor that The Grotto’s coverage was still in effect,
in his coronary disease. Although the evidence those communications did not have the effect of
would support a finding that the hypertension rescinding the prior cancellation. The cancella-
was a 10 percent contributing factor, the com- tion was effective as of November 3, 2015, with
missioner could reasonably conclude that 10 per- the result that Liberty Mutual was not liable for
cent is not “substantial.” coverage of claimant’s March 2016 injury.

Workers’ Compensation Insurer U.S. COURT OF APPEALS
Cancelled Coverage Prior to
Claimant’s Injury
ENVIRONMENTAL LAW
CASE: Bellerive v. The Grotto, Inc.
COURT: Compensation Review Board
DOC. NO.: 6335 CRB-5-19-6 Court Grants Review and Vacates
Exemption To TSCA and EPA Reporting
COURT OPINION BY: Mlynarczyk
DATE: June 10, 2020 • PAGES: 15
Rule
The Compensation Review Board reversed the
trial commissioner’s finding, concluding that CASE: Natural Res. Def. Council, Inc. v. United States Envtl.
Liberty Mutual Insurance Company was no Prot. Agency
longer the workers’ compensation insurer for COURT: U.S. Court of Appeals for Second Circuit
claimant’s employer as of the date of claim- DOC. NO.: 18-2121
ant’s injury. Claimant suffered a compensable COURT OPINION BY: Lynch
injury on March 1, 2016. Liberty Mutual Insur- DATE: June 05, 2020 • PAGES: 48
ance Company had issued a policy to claimant’s In 2016 Congress amended the Toxic Substances
employer, The Grotto, Inc., in September 2015. Control Act to require the Environmental Pro-
The policy had a scheduled expiration date of tection Agency to publish an inventory of mer-
August 20, 2016. Liberty Mutual undertook to cury supply and use. The EPA then issued a re-
cancel this policy on October 14, 2015 by notify- porting rule, which required manufacturers who
ing the National Council on Compensation In- import mercury or mercury products to report
surance of its intent to cancel the policy. NCCI information on their products. Three exemptions
acknowledged that the policy was cancelled, were made: (1) importers of products containing
although it found that the cancellation did not mercury-added components, (2) manufacturers
take effect until November 3, 2015. The Grotto of products with mercury-added components,
continued to pay premiums, however, believ- and (3) high-volume manufacturers. The Natural
ing that the policy remained in effect. Liberty Resources Defense Council and the state of Ver-
Mutual issued a new endorsement for the policy mont challenged all 3 exemptions arguing they
on February 18, 2016. On February 24, 2016, were unlawful interpretation of the TSCA. The
Liberty Mutual sent two letters to The Grotto. court agreed with the plaintiffs with respect to
The first stated failure to submit an audit report the first exemption, finding it lacked a reasoned
“may result in cancellation of your existing pol- explanation. The court however did not agree on
icy.” The second stated that the policy had been exemptions 2 and 3, finding they were lawful in
cancelled on November 3, 2015. When claimant light of Congress’ direction to not require unnec-
was injured in March, Liberty Mutual denied essary or duplicative reporting. The court denied
coverage. On this record, the trial commissioner review of exemptions 2 and 3, but granted review
found that Liberty Mutual’s policy remained in and vacated the first exemption.

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