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Workers' Compensation

Dust in the Wind…… and a Denial of Benefits in This Delaware Mesothelioma Case

Well Gary Baker has gone and done it...... and it is so like my savvy and skilled friend to go where no man has gone before.  Took the "last injurious exposure rule" and flipped it on its head.   When he told me about today's case, James Moore v. Expert Management (fka/AstraZeneca), IAB# 1385535 (4/4/13), my heart skipped a beat. And this case kind of brings to mind that Scripture from Matthew 20:16........ you know the one..... "The last shall be first......and the first shall be last."  That's kind of the way this one turned out, in a manner of speaking.......

So let's take a look at the latest decision in the area of mesothelioma.

Claimant was seeking benefits in connection with a claim of mesothelioma, exposure for which he attributed to employment at Expert Management.  The parties stipulated to the diagnosis of mesothelioma arising out of asbestos exposure.  Expert Management was the last, but not the only, employer at which claimant would have been exposure to asbestos.  They are the only employer against which claimant's DACD Petition was filed.

I will leave it to y'all to examine this case and come to your own conclusion as to what it stands for, and whether it has any precedential value.  Claimant had a significant (and apparently more direct) exposure to asbestos while employed by Haveg, prior to his tenure with Expert Management, which at one time was known as Atlas Chemical.  One might surmise, following the "last injurious exposure rule", that filing against Expert Management (Atlas Chemical) was the way to go. Both employers, by the way, would have fallen within the mesothelioma latency period.

I think if nothing else, this case stands for the proposition that it is not a given that the "last exposure" is the same as "the last injurious exposure." The Board distinguished between incidental or bystander exposure, which is how it would characterize the exposure at Expert (Atlas), and direct exposure to friable asbestos, which is the quality of exposure it believed occurred at the Haveg plant.

Dr. Orn Eliasson and Dr. Samuel Hammar testified on behalf of the claimant; Dr. John Cohn testified as the defense medical expert.  The Board denied benefits finding that the last injurious exposure occurred at the earlier employer.  Props again to Gary Baker, who, no pun intended.....left his opponent in the dust.

Irreverently yours,
Cassandra Roberts

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