Top Ten Principles of the Last Employer Rule in Occupational Disease - Part I

The Last (Maritime) Employer Rule and the Aggravation Rule are the two methods of assigning liability in Longshore Act cases. Since they are well-established in Longshore Act jurisprudence, it may be useful to summarize the prevailing principles of these doctrines.

Here, in no particular order, are the top ten general principles governing the doctrine of the Last Employer Rule in occupational disease cases under the Longshore and Harbor Workers’ Compensation Act (“the Act”).

The Last Responsible Employer is defined as the last employer covered (by the Act) prior to the injured worker’s awareness of his injury.

1. The rule of Last Responsible Employer was established in the case of Travelers Insurance Company v. Cardillo, 225 F.2d 137 (2^nd Cir.) cert. denied 350 U.S. 913 (1955).  Note: Cardillo was a hearing loss case, so the Last Responsible Employer doctrine applies in hearing loss cases as well as in occupational disease cases.
2. In an occupational disease case, the injured worker’s exposure to injurious stimuli need not actually contribute to or aggravate his disability for liability to be assigned.  An actual causal relationship between exposure at a specific employer and the disease is not necessary in occupational disease cases.
3. There is no de minimus rule.  Any exposure which has the potential to cause disease will result in the assignment of liability.
4. In most cases, it is irrelevant that the injured worker’s disease existed while he was working for a previous employer.
5. Evidence of the long latency period for the development of an occupational disease is not a sufficient defense for the last employer.
6. The Last Employer Rule is a rule of liability assessment, not jurisdiction.  Exposure to injurious stimuli in areas outside the Act’s coverage which occur subsequent to the covered exposure does not alter the liability of the Last Responsible Maritime Employer.
7. The employer has the burden of proving it is not the Last Responsible Employer by establishing that: 1) exposure to stimuli during its period of employment could not cause the employee’s occupational disease, or 2) the employee performed work covered under the Act for a subsequent employer where he was exposed to injurious stimuli.
8. The evidence is analyzed for each employer separately and sequentially, starting with the most recent first.
9. Where the evidence does not clearly indicate which of the covered employers who exposed the injured worker to injury was his last employer, the liability will be assigned against the employer who is claimed against.
10. Causation is necessary to establish the injured worker’s entitlement to benefits and the issue of causation deals with whether his harm is related to any workplace exposure at any employer.  Once causation is established (i.e., that the injury is related to an occupational exposure) the Last Employer Rule allocates liability.  The Section 20(a) presumption applies.

The Last Responsible Employer Rule in occupational disease cases has a counterpart in traumatic injury cases, known as the Aggravation Rule, but there are differences.

For example, under the Aggravation Rule there must be an aggravation, acceleration, or contribution to an existing impairment, constituting a new injury.  Exposure alone, as in occupational disease cases, is not enough for liability to be assessed against the last employer. 

The determination of the responsible employer in cumulative traumatic injury cases turns on the distinction between whether a claimant’s disability is the result of the “natural progression” of a work-related injury or an “aggravation” of that injury.  Natural progression means that the disability would have occurred and been the same without the occurrence of a subsequent injury or aggravation.  If the disability results from the natural progression of an initial injury, then the employer at the time of that initial injury is the Responsible Employer for the entire disability.  But if the conditions of employment with a subsequent employer aggravated, accelerated, or combined with the earlier injury, then the employer at the time of the later injury is liable for the entire resulting disability.     

Also, the burden of proof to avoid liability among potentially liable employers is simultaneous, rather than sequential last-to-first as in occupational disease cases.

Also, in cumulative traumatic injury cases, the U.S. Department of Labor’s Benefits Review Board has created an extra statutory credit for the last employer in scheduled award cases.  The Last Employer will get a dollar-for-dollar credit in the later case for previous scheduled awards involving the same schedule.  There is no similar credit for the last employer in occupational disease cases.  

The Last Responsible Employer rule and its assignment of liability are well-established, but it is not automatic.  Next month, we will discuss two recent cases where the last employer chronologically was found not to be liable for benefits.  One is a traumatic injury case, and the other is a curious occupational disease case.