280_C024

SHIPYARD CARPENTER'S LAST EMPLOYER LIABLE FOR HIS ASBESTOS EXPOSURE AND DEATH BENEFIT

Workers Compensation	Administrative Law Judge (ALJ)
Mesothelioma	Last Employer Rule

James R. McAllister worked as a shipyard carpenter in the Portland, Oregon area in 1956, first for Willamette Iron & Steel Co. (WISCO) and then for Albina Engine & Machine (Albina). He moved to Seattle, Washington in 1957 and worked in a similar capacity for the predecessor company to Lockheed Shipbuilding (Lockheed) until he ceased his maritime employment in 1960. He died of mesothelioma in 2002. His widow filed a claim for death benefits under the United States Longshore and Harbor Workers Act against, Lockheed, Albina, and WISCO.

All parties stipulated that McAllister's injuries occurred while he was at maritime sites, that his death was due to mesothelioma caused by exposure to asbestos, and that the examining pathologist would testify that any level of exposure to asbestos can cause mesothelioma. The main issue to be addressed was which employer should be liable for payment of benefits. The first two hearings before Administrative Law Judges (ALJs) at the Benefits Review Board (BRB) found Lockheed liable, while the next two remands on appeal found Albina liable.

The BRB cited previous case law that held that, when a claim is made against multiple employers, the law requires the ALJ to weigh the evidence for all potentially liable employers to determine the one that 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."

WISCO admitted that McAllister was exposed to asbestos while employed there but the ALJ noted that the asbestos exposure at Lockheed was weaker. This was the reason that the first two ALJs determined that Lockheed had "met its burden of showing th absence of exposure." Since McAllister worked for Albina after WISCO, it was determined that Albina was liable.

On appeal, Albina argued that the ALJs misapplied the "last employer rule," and that they did not analyze the evidence separately and sequentially, with the most recent employer analyzed first, and with liability assigned to the first-analyzed employer found to be responsible.

The Ninth Circuit Court of Appeals held as follows in occupational disease cases involving multiple employers:

• The presumption must be invoked against each employer before that employer must be found liable for payment of benefits.
• Each employer may rebut the presumption with substantial evidence that it was not the last responsible employer.
• 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.
• The analysis with respect to each employer must be applied sequentially, beginning with the last (most recent) employer first, and does not have to be conducted for earlier employers once a responsible employer is found.

Using this analysis, the court found that Lockheed was the last responsible employer and is liable for the payment of benefits. This is because it was McAllister's last employer and could not rebut the evidence that he was exposed to asbestos at the time he worked for the company. Albina's petition was granted and the ALJ's decisions at the BRB reversed.

United States Court of Appeals, Ninth Circuit. Albina Engine & Machine; Fireman's Fund Insurance Co., Petitioners, v. Director, Office of Workers Compensation Programs; Benefits BRB Review Board; Karen McAllister, Widow of James R. McAllister; Lockheed Shipbuilding and Wausau Insurance Company; Wilamette Iron & Steel Co.; Saif Corporation, Respondents. No 09-70592. Argued and Submitted Oct. 7, 2010. Filed Dec. 10, 2010. ---F.3d---2010 WL 5029538 (C.A.9)