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

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

On January 18, 2018, we discussed the Top Ten Principles of the Last Employer Rule in Occupational Disease cases and the different applications of the Last Employer Rule as applied in occupational disease cases and traumatic injury cases.

Two recent cases illustrate exceptions to the application of the general principles.

Scott E. Horton v. Specialty Finishes, LLC and Signal Mutual Indemnity Association, Limited; Industrial Marine, Incorporated and American Equity Underwriters, Incorporated, BRB Nos. 17-0168 and 17-0168A, November 15, 2017, is a traumatic injury case.  The injured worker was a rigger whose duties included pressure washing and painting.  He suffered a lower back injury on January 21, 2013, while employed at Specialty Finishes.  He was discharged from treatment on September 18, 2013, with the medical conclusion that he was not able to return to his former work.

He went back to work, however, on December 19, 2013, with Industrial Marine, where his duties included painting and needle gunning, which included “heavy” work.

The claimant last worked on March 30, 2014.  He filed a claim for benefits under the Longshore Act against Specialty Finishes.

According to the General Principles and the Aggravation Rule, any work at Industrial Marine that aggravated his back condition would make Industrial Marine the last responsible employer with liability for all resulting disability.  Remember, unlike occupational disease cases where any injurious exposure assigns liability to the last employer, in a traumatic injury case there must be a subsequent injury that aggravates, accelerates, or combines with the initial injury to constitute a new injury.  So, was Industrial Marine liable in this case based on the principle that the claimant’s work for it aggravated his back condition?

The U.S. Department of Labor’s Administrative Law Judge (ALJ) found that there was no medical evidence that the claimant’s back worsened because of his work for Industrial Marine, and he credited the claimant’s testimony that his back pain was the same after his injury at Specialty Finishes and throughout his employment at Industrial Marine.  He claimed to have felt the same after he stopped working at Industrial Marine.  The ALJ also noted that no claim had been filed against Industrial Marine by the claimant (Specialty Finishes had joined them to the case as a potentially liable defendant).

The ALJ found that Specialty Finishes was the last responsible employer, even though it was not the last employer in time. 

So, the last chronologic employer in a traumatic injury case has a defense other than not being the last employer in time.  It can show that no aggravation occurred while the claimant was in its employ.

Somewhat technically, this is not a Natural Progression versus Aggravation case.  The ALJ did not find that the claimant’s back condition worsened while working for Industrial Marine due to the Natural Progression of the injury that occurred while the claimant was employed by Specialty Finishes.  There was neither the Natural Progression nor an Aggravation of a prior injury.  Nothing happened to the claimant’s back while he was employed at Industrial Marine. 

Note:  Since no claim was filed by the claimant against Industrial Marine, the question of the Section 20(a) presumption did not apply against it.

The second case is a curious occupational disease case.  The (unpublished) case of Bollinger Shipyards, Incorporated; American Longshore Mutual Association v. Director, Office of Workers’ Compensation Programs, U.S. Department of Labor; Kenneth R. Worthey; Thoma-Sea Shipbuilders, L.L.C.; Louisiana Workers’ Compensation Corporation (Fifth Circuit, No. 16-60370, May 17, 2017) involved a claimant who had worked for 15 years as a welding supervisor at Bollinger, where he was exposed to welding fumes, sandblasting dust, industrial cleaning solvents, and other fumes and chemicals.

On March 22, 2010, the claimant’s treating physician performed pulmonary function testing, diagnosed chronic obstructive pulmonary disease, and advised the claimant that he could not return to work.

But the claimant did go back to work.  He worked for Thoma-Sea from March 29 to May 28, 2010, once again in the position of welding supervisor, where he was exposed to the same fumes as at Bollinger.

The claimant filed a claim for benefits under the Longshore Act in July 2010, at which time pulmonary function testing showed essentially the same results as in the March 2010 test.

According to the general principles in occupational disease cases, under Cardillo, the responsible employer is the employer during whose employment the claimant was exposed to injurious stimuli prior to the date that the claimant became aware that he was suffering from an occupational disease arising from employment.  All that is required to assign liability is exposure.  An aggravation of an existing impairment is not necessary in occupational disease cases.  According to the well-entrenched general principles, it would appear that Thoma-Sea was the last responsible employer.  The claimant worked there for two months in the same position he had held at Bollinger.

In this case, the claimant complicated the usual straightforward analysis by going back to work for another employer after he became aware that he was suffering from a work related occupational disease (based on the March 22, 2010, diagnosis).

So who is the responsible employer in this case?  The Administrative Law Judge and the Benefits Review Board found that Bollinger was liable, even though it was not the last employer to expose the claimant to injurious stimuli.  The Fifth Circuit has affirmed this result.

In my opinion, the analysis and reasoning in this case raise questions.  In the Fifth Circuit, where this claim arose, the approach in occupational disease cases is typified in the case of Avondale Industries, Inc. v. Director, Office of Workers’ Compensation Programs, U.S. Department of Labor, 977 R.2nd 186 (5th Cir. 1992).  An employer can rebut the presumption of causation by showing that the employee was exposed to the same working conditions at a subsequent covered employer, regardless of the brevity of the exposure, with no de minimus requirement.  Any exposure with the potential to cause disease is considered injurious and assigns liability.

In our present case (Worthey), the “substantial evidence” relied upon by the ALJ for assignment of liability against Bolllinger, and approvingly cited by the Fifth Circuit, had to do mostly with the fact that there was no aggravation of the claimant’s lung condition during his employment with Thoma-Sea.  The ALJ found it significant that the July 2010 testing showed essentially the same results as the March 2010 testing.  The ALJ cited testimony that the claimant’s time with Thoma-Sea did not “aggravate” his pulmonary condition, and he even made a specific finding that the claimant’s employment at Thoma-Sea did not “contribute” to the claimant’s disability.

As we’ve seen, there is no need to show an aggravation or contribution to assign liability in occupational disease cases.  Any injurious exposure is enough to assign liability.

Also, under Cardillo the date of injury in an occupational disease case is the date of the claimant’s awareness.  In this case, the ALJ found that this occurred with the March 22, 2010 testing and diagnosis. But the claimant went back to work doing the same type of job, so arguably he wasn’t “disabled” until he left work at Thoma-Sea in May 2010.

What if the date of “awareness” and the date of “disability” are different?  That issue was avoided in this case, because the ALJ found (and the finding was affirmed) that the date of awareness and the date of disability were the same – March 22, 2010 –disregarding the fact that the claimant returned to work after that date doing the same job where he experienced exposure to injurious stimuli.

There are questions.  The ALJ found that awareness and disability both occurred at the same time – March 22, 2010 – based on a pulmonary function test, yet the ALJ awarded disability benefits to commence on May 10, 2010. 

The ALJ found that there was no “aggravation” – that is, no new claim, against Thoma- Sea even though the claimant testified that his exposure at Thoma Sea was the “worst”, and that he would cough up “black stuff” every night while working at Thoma-Sea.  Yet, the ALJ made no finding that the claimant was not credible.

By focusing on the date of “awareness” and forcing the conclusion to fit the Cardillo principles, the opportunity was missed to determine what the outcome should be when “awareness” and “disability” do not occur at the same time. 

This is an unusual case, but it does illustrate the type of complication that can arise in assigning liability in occupational disease cases.

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