September 30, 2019 BY Robert Hardeman
Last Injurious Exposure in Workers' Compensation Asbestos Claims in Georgia
In Georgia, when an occupational disease claim is compensable under the Act, O.C.G.A §34-9-284 places sole liability on the employer and its’ insurance carrier, if any, where the employee was last injuriously exposed to the hazards of the disease. The Act excludes any right of contribution from any prior employer or insurance carrier.
In a very recent Georgia case involving an occupational disease resulting from exposure to asbestos, McKenney’s, Inc. v. Sinyard, A19A0204, (decided May 28, 2019), the Court of Appeals showed great deference to the State Board of Workers’ Compensation’s role as the finder of fact in determining when a claimant was last injuriously exposed to asbestos. The Court’s decision also provides guidance on evidentiary considerations for future asbestos cases.
Described as a “hotly contested and fiercely litigated matter” in the decision of the Administrative Law Judge (ALJ), eight witnesses testified at the hearing, which lasted more than seven hours. Thousands of pages of documentary evidence were submitted into evidence.
Sinyard had mainly worked as a union pipefitter from 1978 until his diagnosis of mesothelioma in 2014, including working for McKenney’s from 1986 to 1989. After being diagnosed with mesothelioma on June 5, 2014, Sinyard and his wife, through counsel, filed a complaint in an Illinois state court seeking damages for Sinyard’s mesothelioma. The complaint was not signed by Sinyard. Significantly, while McKenney’s was not named as a defendant, the complaint did name more than 80 defendants, including several companies and property owners where Sinyard had worked after McKenney’s.
The complaint alleged that Sinyard was exposed to, inhaled, ingested, or otherwise absorbed “great amounts” of asbestos fibers, which caused him to develop mesothelioma. Sinyard voluntarily dismissed the Illinois lawsuit, subject to refiling, and then filed a workers’ compensation claim in Georgia against McKenney’s and another employer in January, 2015.
At the workers’ compensation hearing Sinyard focused on his employment with McKenney’s and presented extensive oral and documentary evidence showing his exposure to asbestos while working at McKenney’s. Sinyard also presented an expert witness who testified that the asbestos exposure Sinyard experienced while working for McKenney’s caused his mesothelioma. Finally, Sinyard also testified that he never worked with asbestos containing materials or disturbed asbestos after McKenney’s .
Attempting to explain the allegations about “great amounts” of exposure from other sources in the Illinois lawsuit, Sinyard testified that he did not participate in preparing the complaint and he never reviewed it. Rather, Sinyard testified, his attorney in the lawsuit had simply used his employment records and named all of his former employers as defendants.
Despite admittedly finding abundant evidence of Sinyard’s injurious exposure while working with McKenney’s, the ALJ denied the claim finding Sinyard had failed to meet his burden of proof to show he was last injuriously exposed to asbestos while working at McKenney’s. The ALJ found the allegations in the Illinois lawsuit to be binding admissions, or alternatively, admissions against interest. The ALJ also noted there was some evidence of potential exposure to asbestos subsequent to Sinyard’s employment with McKenney’s, which, even if minimal, might have been injurious according to the decision.
On appeal, the Appellate Division of the Board affirmed the denial of the claim. The Appellate Division held that while the allegations in the Illinois lawsuit were not binding admissions, they were evidentiary admissions or admissions against interest that Sinyard could explain or contradict and then the Board, as the finder of fact, would weigh the allegations and determine what weight to give them.
Sinyard appealed to the superior court, which reversed the Appellate Division and entered an award in favor of Sinyard. The superior court held that evidence that McKenney’s had presented at the hearing indicating Sinyard had later exposures to asbestos was insufficient to show causation since McKenney’s did not offer any expert opinion testimony to rebut Sinyard’s expert’s testimony on causation. The superior court held that mere evidence of subsequent exposure to asbestos, without competent expert testimony showing the subsequent exposure was significantly meaningful to serve as a cause of the disease, was insufficient.
McKenney’s filed an application for discretionary review with the Court of Appeals, which was granted. In reversing the superior court, the Court of Appeals found that the superior court applied an incorrect standard of review. The Court of Appeals explained the dispositive determination on appeal before the superior court and Court of Appeals was whether the Board’s finding as to when the last injurious exposure occurred was supported by some evidence since the Board is the finder of fact in workers’ compensation claims.
In finding there was some competent evidence to support the Board’s findings, the Court of Appeals referred to Sinyard’s allegations in the Illinois complaint of “great amounts” of exposure to asbestos while working for employers subsequent to McKenney’s and that these exposures were injurious and caused his mesothelioma.
The Court of Appeals acknowledged the apparent imbalance in evidence in the case between one piece of evidence regarding Sinyard’s injurious exposure subsequent to his employment with McKenney’s versus the substantial evidence showing Sinyard’s injurious exposure with McKenney’s. Nevertheless, while the Court observed that another fact finder may well have reached a different result, there was at least some evidence to support the Board’s conclusions and therefore, it was bound to affirm the Board’s decision.
The Court of Appeals concluded with some guidance to future litigants in asbestos cases. The Court noted that while proof of causation in toxic tort cases generally requires reliable expert testimony, it had never held this was a categorical requirement in workers’ compensation cases. Nevertheless, the Court indicated it was advisable for a party seeking to show an injurious exposure to asbestos to provide an expert opinion as rules governing causation in toxic tort cases, particularly asbestos cases, can apply to workers’ compensation cases involving asbestos.
Sinyard has applied for a writ of certiorari in this case with the Supreme Court of Georgia, which is now pending. However, regardless of the outcome of any appeal, employers defending future asbestos cases would be prudent to obtain expert opinion evidence, whether combating allegations of injurious exposure during a claimant’s employment or seeking to show a subsequent injurious exposure after a claimant’s employment has ended.
The Journal is a publication for the clients of Drew Eckl & Farnham, LLP. It is written in a general format and is not intended to be legal advice to any specific circumstance. Legal Opinions may vary when based upon subtle factual differences. All rights reserved.
H. Michael Bagley