Peek v. SKW/Clinton
| Decision Date | 25 June 1993 |
| Docket Number | No. S-4935,S-4935 |
| Citation | 855 P.2d 415 |
| Parties | Joe A. PEEK (Deceased) and Mary Peek, Appellants, v. SKW/CLINTON and Alaska Pacific Assurance Company, Appellees. |
| Court | Alaska Supreme Court |
Chancy Croft, Chancy Croft Law Office, Anchorage, for appellants.
James E. Hutchins, Faulkner, Banfield, Doogan & Holmes, Anchorage, for appellees.
Before MOORE, C.J., and RABINOWITZ, BURKE, MATTHEWS and COMPTON, JJ.
In this case, Mary Peek, the widow of Joe Peek, appeals the superior court's affirmation of the Alaska Workers' Compensation Board's ("Board") denial of death benefits to her from SKW/Clinton, one of Joe Peek's employers. We AFFIRM the Board's order denying and dismissing Peek's claim against SKW/Clinton.
Joe Peek worked as a pipefitter and plumber for almost 45 years in California, New Mexico, Arizona, Nevada, Idaho, and Alaska. Throughout his career he was exposed to asbestos in the work place. His last three employers were all located in Alaska: Fluor Alaska, from 1975 to 1977; SKW/Clinton, from August 1977 to January 1978; and Litwin Corporation, from July 1980 through December 1980. In April 1986, Peek was hospitalized with shortness of breath and chest pain. He was diagnosed as having a tumor consistent with mesothelioma. 1 Peek had surgery in June 1986, was again hospitalized in April 1987, and died on May 4, 1987. The cause of death was listed as respiratory failure due to abdominal ascites resulting from mesothelioma metastasis.
Joe Peek's widow, Mary Peek, claimed Joe's mesothelioma was caused by his exposure to asbestos in the work place and filed a claim for death benefits under the Alaska Workers' Compensation Act against eighteen Alaskan employers for whom Peek had worked. On January 13, 1989, the Board approved a compromise and release agreement between Mary Peek and ten of the former employers and their insurers involving payment of approximately $200,000. One of the settling parties was Litwin Corporation, Peek's last employer in 1980. The Board dismissed four other defendants, but denied SKW/Clinton and Fluor's motions for dismissal.
After a hearing adjudicating Mary Peek's claims against Fluor and SKW/Clinton, the Board issued a decision denying and dismissing Peek's claims against both employers. The Board found that Peek's employment at Litwin in 1980 was the last employment that constituted a substantial factor in bringing about his death. Therefore, in accordance with the "last injurious exposure" rule, the Board relieved SKW/Clinton and Fluor of any liability for payment of death benefits to Mary Peek. On appeal, the superior court affirmed the Board's decision. Peek appeals. 2
Peek makes two arguments on appeal: (1) that the Board incorrectly applied the "last injurious exposure" rule when it relieved SKW/Clinton, the second-to-last employer, of any liability for death benefit payments; and (2) that the Board erred in finding that Peek's employment at Litwin Corporation, his last employer, constituted a substantial factor in causing Peek's death. We address these contentions in turn.
This court adopted the "last injurious exposure" rule in Ketchikan Gateway Borough v. Saling, 604 P.2d 590, 596-97 (Alaska 1979). Under this rule, full liability is placed on the most recent employer whose employment of the claimant bears a causal relation to the claimant's disability. 4 Arthur Larson, The Law of Workmen's Compensation § 95.20 (1990). In United Asphalt Paving v. Smith, 660 P.2d 445 (Alaska 1983), we set out two determinations that must be made under this rule: "(1) whether employment with the subsequent employer 'aggravated, accelerated, or combined with' a pre-existing condition; and, if so, (2) whether the aggravation, acceleration or combination was a 'legal cause' of the disability, i.e., 'a substantial factor in bringing about the harm.' " Id. at 447 (quoting Saling, 604 P.2d at 597, 598).
Peek argues that no decision in this state has ever allowed the rule to be used, as it was by SKW/Clinton, as a defense to a claim for compensation. Peek contends that the rule is meant only to be a "sword for an injured worker, not a shield for an employer."
SKW/Clinton cites State, Department of Highways v. Burgess Construction Co., 575 P.2d 792 (Alaska 1978), for the proposition that the "last injurious exposure" rule can be used as a defense. In that case, the employee, Benson, filed workers' compensation claims against Burgess Construction, where he had worked several years, and the State, his last employer. Id. at 793-94. Burgess argued that it was not liable as it was not the last place of employment where Benson was exposed to the poison causing his disease. The Board nevertheless held Burgess liable for Benson's disability and Burgess appealed to the superior court. Id. at 794. The State moved to dismiss the appeal as it pertained to the State on the grounds that the appeal was taken too late. Id. The State's motion was granted, and no appeal was taken from the order dismissing the State. Id. Subsequently the superior court found that the Board erred in not imposing liability on the State as the last employer and remanded the case to the Board to determine the liability of the State as the last employer. The State appealed. Id.
This court agreed with the State that the superior court had erred in remanding the case to the Board to determine whether the State was liable after the State had been dismissed from the case; further, we agreed that the dismissal was technically proper. Nonetheless, we reversed the superior court's order dismissing the State. We took this step in order to avoid "a serious injustice" to the employee due to the procedural error of the first employer. Id. at 796. We noted that if we affirmed the dismissal of the State, the result on remand to the Board might be that Id.
SKW/Clinton interprets Burgess as recognizing that the last injurious exposure rule can be used as a defense. Peek argues that Burgess was decided before we adopted the "last injurious exposure" rule in Saling and therefore cannot be considered an interpretation of Saling.
While Burgess obviously cannot be considered an interpretation of Saling, it is an interpretation of the "last injurious exposure" rule. By recognizing that on remand the State might be found to be the "last employer on whose job Benson was injuriously exposed," we implicitly acknowledged that Burgess could raise the rule as a defense, thereby avoiding liability. Our concern was that the last employer to expose the employee was no longer before the Board, and that use of the rule as a defense by another employer would defeat the employee's claim completely. 4 For this reason, we relaxed our procedural rules and reversed the superior court's dismissal of the last employer.
Burgess thus suggests that an employee may use the last injurious exposure rule as a defense. Two other cases cast further light on the appropriate defensive use of the last injurious exposure rule.
First, the Ninth Circuit allowed use of the last injurious exposure rule as a defense under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901-50, in Kelaita v. Office of Workers' Compensation Programs, 799 F.2d 1308 (9th Cir.1986). In Kelaita, the employee filed claims against his last two employers: Triple A Machine Shop and General Engineering. An administrative law judge denied both claims, but Kelaita appealed only his claim against Triple A. Id. at 1309. On remand from an order vacating the judge's ruling, the judge found that General was liable under the last responsible employer rule and denied Kelaita's benefits as General was no longer a party. Id. at 1310. Kelaita appealed, arguing that "where there is no jurisdiction over a potentially liable subsequent employer, the [last injurious exposure] rule should not defeat a worker's claim." Id. at 1311. The Ninth Circuit rejected this argument and allowed defensive use of the last injurious rule because:
[t]he lack of jurisdiction over General is the fault of neither General nor Triple A. General attempted to participate in the appeal, but Kelaita made it clear he was appealing only as to the decision regarding Triple A. Kelaita cannot now attempt to hold Triple A liable and deprive it of the last responsible employer defense when Kelaita himself decided to pursue his claim only against Triple A.
Second, in Carrier v. Shelby Mutual Insurance Company, 370 Mass. 674, 351 N.E.2d 505 (1976), aff'g Carrier's Case, 3 Mass.App. 502, 334 N.E.2d 633 (1975), the Supreme Judicial Court of Massachusetts addressed a fact pattern quite similar to the present case. The employee suffered successive injuries while working for two employers. Both injuries contributed to his present disability--the more recent only to the extent of ten percent of the total disability. The employee settled with the more recent employer. His claim against the earlier employer was held to be barred under the Massachusetts last injurious exposure rule. Id. 351 N.E.2d at 507.
Kelaita and Carrier both indicate that when the last employer was at one time properly before the adjudicating authority, but is later removed from the case by a voluntary act of the worker, the worker cannot avoid application of the last injurious exposure rule. We agree that this approach is reasonable. In this case, Peek made the decision to settle with Litwin, Joe Peek's last employer. With the Board's approval, the settlement became "enforceable the same...
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...aggravation is a question of fact, see, e.g., Hull v. Aetna Ins. Co., 247 Neb. 713, 529 N.W.2d 783, 789 (1995); Peek v. SKW/Clinton, 855 P.2d 415, 418 (Alaska 1993), it is subject to the clearly erroneous standard of review. The application of the last injurious exposure rule to that factua......