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WCB App Div Remands Occupational Disease Case

The Maine WC Board Appellate Division has just issued a decision in an occupational disease (“OD”) case, holding that (1) interlocutory appeals are occasionally appropriate, and (2) a finding of “injurious exposure” alone is not enough to prove causation of a disease. It demonstrates that parties should ensure that the WCB puts in writing all preliminary orders, to avoid later confusion and dispute. More specifically, before agreeing to bifurcate “last injurious exposure” in an OD case, parties should carefully delineate the product or substance at issue, to avoid waiving the right to litigate whether the exposure was medically “injurious.”

In Faye Boyle v. Lappin Bros., Mike Boyle was a union pipefitter who worked on projects for different employers where he was potentially exposed to asbestos. Years later, he was diagnosed with mesothelioma and passed away, and Ms. Boyle file petitions against his various employers. In order streamline the process, the parties agreed to bifurcate the proceedings to first determine which employer "last injuriously exposed" Mr. Boyle to asbestos so the other parties could be dismissed out of the case. Judge Greene found that Mr. Boyle was exposed last to asbestos at his pipefitting job for Lappin, when he working on construction of a hospital in Dover-Foxcroft.

In his decision, however, Judge Greene also held that, “in the absence of a written agreement defining the issues to be decided,” the employers had agreed that Boyle was exposed to asbestos which caused his disease and death. Lappin appealed, arguing that it had not agreed to that. The Appellate Division panel first determined (with one dissent) that, although interlocutory appeals are not generally allowed, this case is one of the rare exceptions. The panel then determined that, given the absence of a written document outlining the scope of the initial hearing, Judge Greene should not have assumed that the parties agreed that Boyle suffered an asbestos-related disease. The panel vacated that part of the decision, and remanded the case for further proceedings.

If you have any questions about this or any other case, please let us know.

Thomas Getchell
Daniel Gilligan
Michael Richards
Attorneys at Law