Court: Last Employer Responsible for Asbestos Exposure

December 15, 2010

A shipyard carpenter’s last employer is liable for his asbestos exposure when it is unable to rebut with substantial evidence the presumption that the most recent employer is responsible for occupational diseases, the Ninth Circuit Court of California has ruled.

According to court documents in Albina Engine & Machine v. Office of Workers’ Compensation Programs, James McAllister died of mesothelioma as a result of exposure to asbestos during his work as a carpenter for three shipyard employers — Willamette Iron & Steel Co., Albina Engine & Machine, and Lockheed Shipbuilding. His wife, Karen McAllister, sought restitution for her husband’s death. And an administrative law judge decided that Lockheed was liable, based on the presumption applicable to occupational disease clams under section 20(a) of the Longshore and Harbor Workers’ Compensation Act.

The Benefits Review Board reversed the decision, and on second remand, ALJ Steven Berlin found Albina liable for the payment of benefits. The Board said when a claim is made against multiple employers, the law stipulates that the ALJ must weigh the evidence for all potentially responsible employers to determine which is liable. “Each employer bears the same burden of providing that the claimant was not exposed to injurious stimuli at that employer in sufficient quantities to cause his disease, or that the claimant was exposed to injurious stimuli while working for a subsequent covered employer. If no employer manages to persuade the ALJ that its evidence is ‘entitled to greater weight,’ then the ALJ should assign liability to the claimant’s last employer,” it noted.

Willamette Iron & Steel Co. admitted that McAllister was exposed to asbestos while he was employed with the company, but noted the asbestos exposure at Lockheed was weaker. Thus, the first and second ALJs determined that Lockheed had “met its burden of showing the absence of exposure.” And because McAllister had worked for Albina after he had worked for WISCO, the first two ALJs determined that Albina was liable.

However, Albina argued that the ALJs had misapplied the “last employer rule,” and said evidence against each employer should have been analyzed separately and sequentially, with the most recent employer analyzed first, and with liability assigned to the first-analyzed employer to be found responsible.

The Ninth Circuit Court held that in occupational diseases involving multiple employers,

  1. “the presumption must be invoked against each employer before that employer must be found liable for payment of benefits;
  2. each employer may rebut the presumption with substantial evidence that it is not the last responsible employer;
  3. once an employer has rebutted the presumption, it may be found liable only if a preponderance of the evidence supports a finding that the employer is responsible; and
  4. the analysis with respect to each employer shall be applied sequentially, beginning with the last (most recent) employer first, and need not be conducted for earlier employers once a responsible employer is found.”

Using this analysis, the court found Lockheed was the last responsible employer and is liable for the payment of benefits because it was McAllister’s last employer and court not rebut the evidence that he had been exposed to asbestos while working for the company.

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