Latency, Latency, Thou art Everything: DE Asbestos Award and Guess What? Permanency Award Based on AMA 6th

By Cassandra Roberts, Young Conaway Stargatt & Taylor 

Today's case du jour is an occupational disease claim involving a union worker based at the Delaware City Refinery from 1982 to 2007.  The diagnosis of bilateral interstitial fibrosis consistent with asbestos-related lung disease was not in dispute.  Up for debate was the employer on the risk for the "last injurious exposure" as between Raytheon Construction, Catalytic, Inc. and Washington Group International, as well as the degree of permanent impairment.  Dr. Orn Eliasson rated the claimant with a 54% bilateral pulmonary impairment based on the AMA Guide, 5th Edition while Dr. Albert Rizzo rated a 24% permanency based on the AMA, 6th Edition.

At the time of the Hearing which convened in July, 2010, the claimant was 74 years of age and not working. The employers advanced an argument that safety procedures adopted in 1986 should have insulated the claimant from an injurious exposure to asbestos beyond that date and accordingly, the claimant's average weekly wage in 1986 should have been used to determine his disability benefit rate for purposes of any award.

The claimant last worked for Catalytic in 1982.  He worked for Raytheon from 1984 until his retirement in 1997.  Following his retirement from Raytheon, the claimant continued to work at the Delaware City Refinery on a part-time basis, for Raytheon in 1997 and 1998, and for Washington Group in 2000 and 2001.  Claimant performed very briefly for some additional entities between 2004 and 2007.

The claimant's respiratory symptoms developed in 2008; he was eventually referred to Dr. Orn Eliasson and diagnosed with asbestos-related lung disease in November, 2008.  Dr. Eliasson testified that the latency period for the development of asbestosis is 10 to 20 years after exposure.  In his opinion, the claimant's injurious exposure occurred between 1982 and 1997.  Dr. Eliasson endorsed a 54% bilateral lung impairment rating based on the AMA Guide, 5th Edition.  Dr. Albert Rizzo testified on behalf of the employers and commented that the harmful exposures experienced by the claimant were "most likely cumulative, making it difficult, if not impossible, to pinpoint when the harm occurred."  Dr. Rizzo would allow for a 24% permanency to each lung with reference to the 6th Edition of the AMA Guide.

The Industrial Accident Board cited the prevailing doctrine of "the last injurious exposure rule" and embraced the testimony of Dr. Eliasson with regard to the medically-accepted latency period of 10 to 20 years for the development of asbestos-related disease.  Citing Lake Forest School District v. DeLong, 1988 WL 77665 (Del. Super.), the Board observed that where an injurious exposure is cumulative in nature in the course of successive employment, the last employer on the risk  is liable for the entire award.  In the instant case, the Board deemed the claimant's last full year of employment in the 1996-1997 time frame to represent his last injurious exposure, discounting any exposure to asbestos in the 1997-2007 period during his varying stints of part-time employment out of the Delaware City Refinery as being outside the latency period.

Thus, the responsible employer was Raytheon.

In terms of the award of permanent impairment, the Board departed from its customary love fest with the AMA Guide, 5th Edition and adopted the opinion of Dr. Rizzo, in part, as to the permanency rating.  The Board extrapolated from the 6th Edition and noted that Dr. Rizzo's rating fell within a range of Class 3 which spans 24% to 40%.  Commenting that Dr. Rizzo's 24% rating was "low", the Board awarded 30% to each lung and stated that it preferred Dr. Rizzo's "methodology" in assessing the impairment, which was indeed derived from the 6th Edition of the Guide.

Noland Sampson v. Raytheon Construction et al., IAB # 1343704, 1343692, 1343682 (August 5, 2010).

A masterful job on the part of Rich Wilson for the claimant and John Morgan for all three employers (does he get to triple bill and where do the rest of us get a piece of that action?).  Props all around to downstate Hearing Officer Angela Fowler drafting this decision for the Board in record time.  I love the occupational disease cases-- there is always a little gem of law or medicine that you can take away from them. And often some pretty good lawyering.

And the AMA Guide, 6th Edition, back with a cameo appearance on the winning team...:>)

 Visit Delaware Detour & Frolic, a law blog by Cassandra Roberts

This post is provided by LexisNexis Workers' Compensation Law Community.