Docket: Nos. 77-3475, 77-6112, 78-958, 78-959 and 78-957, CA 14961
Court: Court of Appeals of Oregon; June 15, 1981; Oregon; State Appellate Court
A workers’ compensation case has been initiated by the widow of a deceased worker who suffered from asbestos-related cancer, seeking to overturn the Workers’ Compensation Board's decision deeming the claim noncompensable. An earlier ruling had barred the claim based on the statute of limitations, but the Supreme Court reversed that decision, leading to a remand to assess the compensability of the worker's condition due to employment-related exposures.
James E. Fossum, the deceased, was an electrical worker who had multiple employers in the ship-building industry from the 1940s to the 1970s. He was diagnosed with mesothelioma, an incurable lung cancer linked to asbestos exposure, shortly after leaving his last job. Fossum filed a workers' compensation claim against his last employer, Willamette Western, which was denied. Following his death just a day after the filing, his widow submitted claims against several companies, all of which were denied except for the claim against Kaiser Company, identified by a referee as the responsible employer due to Fossum’s exposure during his shipyard employment.
A hearing determined that Fossum's mesothelioma resulted from his early 1940s work in the shipyards, and Kaiser Company was deemed the responsible employer, with SAIF as the insurance carrier. However, upon SAIF's appeal, the Board concluded that the widow failed to establish causation, reversing the referee's order. Medical expert testimony indicated that mesothelioma typically develops 15 to 40 years post-exposure, with recent employment unlikely to have contributed to Fossum's condition.
Dr. Edwards testified that Mr. Fossum likely acquired asbestos fibers in the early 1940s while working at shipyards, which subsequently led to his mesothelioma, definitively attributing the disease to asbestos exposure. He noted that high-risk occupations involve airborne asbestos particles and referenced studies indicating that insulation workers and shipyard employees are particularly susceptible, even if they were not directly working with asbestos. Dr. Hine supported this view, stating that Mr. Fossum's death from mesothelioma was likely due to occupational exposure, emphasizing that tumors can develop 20 to 40 years post-exposure. However, he assessed that Mr. Fossum's exposure while at Willamette Western was insufficient in intensity and duration to cause the disease. The referee's summary reflected both doctors’ opinions, concluding that Mr. Fossum’s cancer resulted from workplace asbestos exposure. The remaining issue is determining which of three potential employers is liable for compensation based on the "last injurious exposure" rule from Mathis v. SAIF, which holds the last employer responsible if their work conditions could cause the disease over an indefinite period. Claimant argues that Willamette Western, as the last employer, should be liable; however, the court clarified that for this rule to apply, there must have been a contributing exposure at the last job, which was not the case here, as established in prior rulings.
The application of the last injurious exposure rule absolves Willamette Western and Grasle of liability for the deceased's mesothelioma, as medical evidence indicates that recent employment within the past 15 to 20 years could not have caused the cancer, which typically develops 20 to 40 years post-exposure. Although the deceased was exposed to asbestos at Willamette Western, this exposure did not contribute to his illness. The medical evidence points to his employment in the shipyards during the 1940s, particularly with Kaiser Company, T.R.D., as the cause of his mesothelioma. Consequently, under the last injurious exposure rule, Kaiser Company is liable for compensation.
The claimant argues that the State Industrial Accident Commission (SIAC), the predecessor of SAIF, was Kaiser’s insurer, but SAIF denies this coverage. Kaiser Company no longer exists, and SAIF has destroyed records from SIAC. The relevant statute at the time of the deceased's employment mandated that all employers in hazardous occupations provide workers' compensation benefits. Kaiser Company, being engaged in a hazardous occupation, is presumed to have complied with this law unless evidence suggests otherwise. SAIF claims the claimant must prove Kaiser's election not to be covered by the Workers’ Compensation Act; however, the court disagrees, asserting that the claimant has sufficiently demonstrated Kaiser’s compliance with the statutory requirements. The burden then shifted to SAIF, which failed to provide evidence to the contrary.
The conclusion reached is that Kaiser was covered under the Act, making SAIF, as SIAC's successor, responsible for compensation. The Board's order is reversed, and the referee's order is reinstated. Although SAIF mentioned potential inquiries that could have been pursued by the claimant, none would have conclusively established Kaiser's status, as only the destroyed records could have clarified the matter.
