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In a case involving occupational exposure to asbestos, the board relies on the lower rating under the sixth edition of the AMA guides made by the employer's medical expert in awarding permanency to the lungs.

January 1, 2011
Noland Sampson v. Raytheon Construction, Inc., Catalytic Inc., and Washington Group International; (IAB Hearing Numbers 1343704, 1343692 and 1343682; Decided August 5, 2010)

This case involved three petitions filed on behalf of the claimant alleging a 54 percent permanent impairment to both lungs resulting from occupational exposure to asbestos that he suffered while working as a union laborer at a refinery. The claimant worked at the refinery from 1982 through 2007, performing the same functions as a union laborer for several different employers, including the three named employers. The evidence showed that the claimant worked with Employer 1 for various periods from 1960 until 1982, then he worked with Employer 2 between 1984 and his retirement in 1997. Thereafter, the claimant returned for occasional part time work in 2000 and 2001 with Employer 3. The claimant's testimony, which was not disputed, showed that he worked around insulators on a daily basis and that this work involved the cutting of pipe with dust particles being released into the air the claimant would breathe. The evidence further showed that in June 1986, the claimant was first provided with a respirator and respirator training. Even at that point, after the workers would remove their masks, they would continue to get dust and asbestos particles on themselves, in their hair and on their clothes. The claimant's medical expert testified that, in his opinion, the claimant suffered from asbestos-related injury to both lungs that was directly related to the work he did at the refinery. This doctor testified that the generally accepted latency period (i.e., the time between exposure and onset of clinical detectable disease) for an asbestos-related injury is 10 to 20 years. Using the Fifth Edition of the AMA Guides, he testified that he arrived at a 54 percent permanent impairment to each of the claimant's lungs. The employer's expert testified with regard to causation, and he indicated that he could not rule out that the claimant had asbestos-related disease based on findings of interstitial fibrosis and the history of asbestos exposure. He used the Sixth Edition of the AMA Guides and testified that, in his opinion, the claimant had a permanency to each lung of 24 percent. The Board applied the last injurious exposure rule and concluded that the evidence showed that by the claimant's last full year of employment in 1996 and 1997, he suffered injurious exposure to asbestos resulting in his current disease while working for Employer 2. The Board was not persuaded by the employer's argument that the claimant had no exposure after using the respirators and mask in 1986 since the claimant had testified that he still came in contact with and worked around asbestos, and this included inhaling asbestos when the mask was removed. Based on its analysis that the 10 years before the clinical detection of the claimant's asbestos-related pulmonary disease, which was made in 2008, was the most appropriate time frame for establishing the injurious exposure, the Board found that Employer 2 was the liable employer. On the permanency issue, the Board accepted the testimony of the employer's medical expert as more compelling than that of the claimant's medical expert but modified his opinion somewhat by finding that the claimant had a 30percent impairment to each lung. The employer's medical expert had indicated that the claimant fell within an impairment range from 24 percent to 40 percent, and the Board reasoned that putting the claimant at the low end of that range was not accurate.

Case Law Alert - 1st Qtr 2011

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Paul V. Tatlow
Shareholder
(302) 552-4035
pvtatlow@mdwcg.com

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