Mckenney's, Inc. v. Sinyard

• Decision Date: 28 May 2019
• Docket Number: A19A0204
• Citation: 828 S.E.2d 639,350 Ga.App. 260
• Parties: MCKENNEY’S, INC. et al. v. SINYARD.
• Court: Georgia Court of Appeals

350 Ga.App. 260

828 S.E.2d 639

MCKENNEY’S, INC. et al.

v.SINYARD.

A19A0204

Court of Appeals of Georgia.

May 28, 2019

Robert Cape Buck, Peachtree Corners, Carrie Lynn Christie, Jennifer Houser Chapin, Atlanta, for Appellant.

Robert Harris Burke, Juliana Y. Sleeper, for Appellee.

Miller, Presiding Judge.

In this discretionary appeal, McKenney’s, Inc. ("McKenney’s"), and its insurer, Travelers Indemnity Company of America ("Travelers"), appeal the superior court’s order reversing the decision of the Appellate Division of the State Board of Workers’ Compensation ("the Board") denying the claim for benefits filed by Kevin Sinyard, McKenney’s former employee. Because the Board’s decision is supported by some competent evidence, and because it does not affirmatively appear that the Board’s decision was based upon an erroneous legal theory, we must reverse the superior court’s order.

After a workers’ compensation decision becomes final at the administrative level, the parties have a right of direct appeal to the superior court, pursuant to OCGA § 34-9-105 (b). As a reviewing court, the superior court applies an any-evidence standard of review to the Board’s findings of fact, construing the evidence in the light most favorable to the party prevailing before the Board, and lacks authority to substitute itself as a factfinding body in lieu of the Board. Erroneous applications of law to undisputed facts, as well as decisions based on erroneous theories of law, however, are subject to the de novo standard of review in the superior court. Where it affirmatively appears that the Board’s decision is based upon an erroneous legal theory, and that for this reason the Board has not considered all of the evidence in the light of correct and applicable legal principles, the case should be remanded to the Board for further findings.

An appeal to this Court from a decision of a superior court reviewing a decision of the Board is not a matter of right but rather is discretionary. OCGA § 5-6-35 (a) (1). Appeals to this Court are governed by the same standards of review as appeals to the superior court under OCGA § 34-9-105.

(Citations and punctuation omitted.) Stokes v. Coweta County Bd. of Educ. , 313 Ga. App. 505, 506-507, 722 S.E.2d 118 (2012). See also OCGA § 34-9-105 (c) (the superior court shall set aside the Board’s decision where the Board acted without or in excess of its powers, its decision was procured by fraud, the facts found by the Board do not support the decision, there is not sufficient competent evidence in the record to warrant the decision, or the decision is contrary to law).

Viewed appropriately, the evidence shows that starting in 1978 Sinyard worked as a union pipefitter, working first as a welder and then as a foreman or supervisor. From 1986 to 1989, Sinyard worked for McKenney’s at Piedmont Hospital in Fulton County. Sinyard worked for Cleveland Electric Company ("Cleveland") from 1994 to 1996, including on a project at the General Motors ("GM") assembly plant in DeKalb County in 1995. As a result of occupational exposure to asbestos, Sinyard was diagnosed with mesothelioma

on June 5, 2014.

In July 2014, Sinyard and his wife filed through counsel an unverified complaint in an Illinois state court seeking damages based on Sinyard’s mesothelioma

. Significantly, in that case Sinyard named more than 80 defendants, comprising several companies and owners of premises where he worked after McKenney’s, but he did not name McKenney’s as a defendant. In his complaint Sinyard alleged that as a result of the defendants’ conduct, he was "exposed to and inhaled, ingested or otherwise absorbed great amounts of asbestos fibers causing [him] to develop the aforementioned asbestos disease[.]" Sinyard voluntarily dismissed the Illinois lawsuit without prejudice and then filed the underlying workers’ compensation claim against McKenney’s and Cleveland in January 2015.

McKenney’s opposed the claim, arguing that under OCGA § 34-9-284 it was not Sinyard’s employer when he was last injuriously exposed to asbestos. OCGA § 34-9-284 provides:

Where compensation is payable for an occupational disease, the employer in whose employment the employee was last injuriously exposed to the hazards of such disease and the insurance carrier, if any, by whom the employer was insured when such employee was last so exposed under such employer shall alone be liable therefor, without right of contribution from any prior employer or insurance carrier. ...

Sinyard eventually conceded that the evidence did not show Cleveland was his employer of last injurious exposure and focused his claim on McKenney’s.

Sinyard produced evidence that he was injuriously exposed to asbestos while working for McKenney’s at Piedmont Hospital, including: his own testimony and the testimony of a co-worker that his work involved disturbing and removing asbestos without proper protection from exposure and inhalation; records from the hospital showing the presence of asbestos in areas he worked; and the expert testimony of Dr. Jerrold L. Abraham, who opined that the asbestos exposure Sinyard experienced during this time caused his mesothelioma

. Sinyard also testified that after his work for McKenney’s he never worked with asbestos-containing materials or disturbed asbestos, and representatives of some employers for which he subsequently worked testified that no asbestos was present or known to be present at his jobsites. Regarding the Illinois lawsuit, Sinyard testified that he did not participate in the preparation of the suit, that the complaint was not provided to him for his review, and that his counsel in the case essentially used his employment records and named all of his former employers as defendants.

The Administrative Law Judge ("ALJ") denied Sinyard’s workers’ compensation claim, ruling that despite "abundant" evidence of his injurious exposure to asbestos with McKenney’s, he failed to carry his burden of proving by a preponderance of competent and credible evidence that McKenney’s or Cleveland was his employer when he was last injuriously exposed to asbestos. The ALJ found that Sinyard’s allegations of injurious exposure to asbestos after his time with McKenney’s, as raised in the Illinois lawsuit, were admissions in judicio and therefore conclusive and binding against him. Alternatively, the ALJ found that these allegations could be used against Sinyard as admissions against interest, and to the extent the allegations merely raised a question of fact, the preponderance of evidence showed Sinyard’s last injurious exposure to asbestos occurred after his time with McKenney’s. The ALJ deemed not credible Sinyard’s assertion that he suffered no exposure to asbestos after McKenney’s, finding that because asbestos is "invisible to the naked eye," Sinyard could have been injuriously exposed to it without his knowledge while working for subsequent employers.

The ALJ also found that there was "evidence to support a finding that [Sinyard] was injuriously exposed to asbestos while working for Cleveland at the GM assembly plant in 1995." The ALJ explained that in 1996, shortly after Sinyard worked there, asbestos was found in the plant’s air handlers and an abatement was performed, and a reasonable inference could be drawn that Sinyard suffered an injurious exposure while breathing air that passed through the air handlers. The ALJ also determined that Sinyard’s initial fee contract with his workers’ compensation counsel was consistent with a claim against Cleveland, and not McKenney’s, because in the contract Sinyard retained counsel to represent him with respect to an injury sustained while working in DeKalb or Gwinnett County during a time period ending in 1996.

Regarding Sinyard’s arguments under Scapa Dryer Fabrics, Inc. v. Knight , 299 Ga. 286, 788 S.E.2d 421 (2016) (" Scapa "), that a de minimis exposure to asbestos is insufficient to establish legal causation and that a party must show through expert testimony that an exposure was sufficiently meaningful to establish causation, the ALJ distinguished Scapa on the basis that it involved a tort claim involving multiple defendants where the factfinder must apportion liability, while in a workers’ compensation claim OCGA § 34-9-284 imposes sole liability for an occupational disease against the employer of last injurious exposure. The ALJ stated that "meaningful exposure," as defined in Scapa , is not required in a workers’ compensation claim, and, as Sinyard’s own expert witness testified, an "injurious exposure" is any exposure exceeding the baseline presence of asbestos in the atmosphere. Finally, the ALJ found that Sinyard attempted to incorrectly shift the burden to McKenney’s to establish an injurious exposure to asbestos while working for a subsequent employer, but it is the claimant’s burden to prove which employer was his employer of last injurious exposure.

The Board affirmed the ALJ’s denial of Sinyard’s claim and agreed with the ALJ’s ultimate finding that Sinyard did not carry his burden to prove McKenney’s or Cleveland was his employer of last injurious exposure to asbestos. However, the Board reversed in part the ALJ’s findings of fact and conclusions of law. The Board noted that the ALJ correctly placed the burden of proof on Sinyard, as McKenney’s had no affirmative defense and bore no burden of proof against any subsequent employer. However, the Board determined that the ALJ erred in deeming the allegations in the Illinois lawsuit binding and conclusive admissions in judicio, as admissions in judicio are only binding in the lawsuit in which they are made, and the allegations here were only evidentiary admissions or admissions against interest that Sinyard could explain or contradict. The Board stated that the allegations were evidence to be considered and weighed appropriately. Like the ALJ, the Board found that there was insufficient evidence that Sinyard’s injurious exposure at McKenney’s was his last injurious...