Halverson v. Larrivy Plumbing & Heating Co.
| Decision Date | 23 July 1982 |
| Docket Number | No. 81-745.,81-745. |
| Citation | 322 NW 2d 203 |
| Parties | Wallace C. HALVERSON, Respondent, v. LARRIVY PLUMBING & HEATING CO., et al., Relators, and A. G. O'Brien Plumbing & Heating Co., et al., Respondents, and Travelers Insurance Co., intervenor, Respondent. |
| Court | Minnesota Supreme Court |
Hansen, Dordell, Bradt & Odlaug, St. Paul, for relators.
Michael I. Cohen, Duluth, for Halverson.
Hanft, Fride, O'Brien & Harries and Gaylord Swelbar, Duluth, for A. G. O'Brien Plumbing & Heating Co., et al.
Thomas R. Thibodeau, Duluth, for Travelers Ins. Co.
Considered and decided by the court en banc without oral argument.
Wallace Halverson was exposed to asbestos fibers over a period of years while employed by a series of employers. He was ultimately diagnosed as suffering from asbestosis and as a result of the disease was forced to quit working. The Workers' Compensation Court of Appeals overturned the compensation judge's finding that the last employer was liable for all compensation and found that the second-to-the-last employer should pay the benefits. We affirm.
Wallace Halverson was employed for 30 years as a plumber. In 1948 he went to work as a plumber's helper for respondent A. G. O'Brien where he worked with asbestos insulation. From that year until 1960 he worked at various times for O'Brien, Young & Krause Plumbing and Heating, and Sher Plumbing and Heating. He worked around dust and insulation during those years. In 1960 and 1961 Halverson did general plumbing for two other employers. From 1962 to 1970 he was employed solely by Sher Plumbing doing general plumbing and heating. There he was subject to daily asbestos exposure.
From 1970 through 1975 Halverson was employed solely by relator Larrivy Plumbing and Heating Company. In October of 1976 he began working for both Larrivy and respondent A. G. O'Brien. From February, 1977 until he stopped working completely in May or June of 1979 he was employed only by O'Brien. During the time that Halverson was employed by Larrivy and O'Brien he worked on individual projects for each employer and was exposed to asbestos at each job site.
The employee first noticed that he had trouble breathing during a swimming outing in 1975. Thereafter he experienced occasional breathing problems. In August of 1977 Halverson went to the doctor and complained that he had suffered from shortness of breath during the past two years. In September he went to see a pulmonary specialist, Dr. Clark. Dr. Clark diagnosed Halverson as having asbestosis, a condition caused by scarring of the lungs by asbestos. The employee did not work from September of 1977 to January of 1978. He went back to work for O'Brien Plumbing half days until he finally quit work completely in May or June of 1979.
A hearing was held on January 22, 1980 before a compensation judge. The judge found Halverson to have suffered a 40% permanent partial disability of the lungs as a result of asbestosis. A. G. O'Brien, as the place of last exposure, was ordered to pay benefits to Halverson. The Workers' Compensation Court of Appeals, in a unanimous decision, vacated in part the finding and determination of the compensation judge and substantiated its finding that Halverson's employment with Larrivy Plumbing substantially contributed to his disability and its determination that Larrivy was liable for all compensation.
The issue on appeal is whether the record supports the court of appeals' finding that Larrivy, the second-to-the-last employer, was liable for the full amount of the compensation because the exposure to asbestos while employed by O'Brien, the last employer, was not a substantial contributing factor.
We have held that, in occupational disease cases, the employer and the insurer on the risk at the time the employee becomes disabled is responsible for Workers' Compensation Benefits. Robin v. Royal Improvement Co., 289 N.W.2d 76 (Minn. 1979). Apportionment of liability may be allowed only in those rare cases in which medical testimony permits a precise allocation of liability among different employers. Michels v. American Hoist & Derrick, 269 N.W.2d 57, 59 (Minn.1978). However, one exception to the "last employer" rule must be recognized: for an employer and insurer to be liable for benefits, there must be some causal connection between the employee's occupational disease and...
To continue reading
Request your trial