Claimant worked as a wastewater treatment plant operator for Employer. He filed a claim alleging respiratory and skin exposure. When he filed his claim, Employer was covered by Carrier One. But before Claimant stopped working for Employer, Carrier Two came on the risk.
Carrier One propounded interrogatories to Claimant. In response, Claimant stated that his exposure to the injurious elements “has been uninterrupted, since I started working at the Base.” Upon receipt, Carrier One filed a Motion for Summary Judgment on the grounds that Claimant’s continued (alleged) exposure after Carrier Two came on the risk absolved it from liability as the responsible carrier. The administrative law judge agreed, but the Benefits Review Board did not. In its interlocutory order, the Board stated (with internal citations omitted):
We hold that the administrative law judge erred in granting summary decision to [Carrier One] as he applied an incorrect standard in assessing whether a genuine issue of material fact existed. Contrary to the administrative law judge’s finding, it was not claimant’s burden to establish the existence of a genuine issue of material fact concerning injurious exposure after [Carrier One’s] coverage ended. The responsible employer/carrier rule is one of liability allocation, not compensability. Thus, in order to be absolved of liability, it is the burden of the named employer/carrier to establish that claimant’s condition is not related to his exposures or that claimant was exposed to injurious stimuli by a subsequent covered employer or carrier. [Carrier One] alleged, based on claimant’s interrogatory answers, that claimant was exposed to injurious stimuli in employment subsequent to its period of coverage. However, [Employer’s] subsequent carrier . . . and claimant’s subsequent employer . . . apparently have not been made parties to this case. These are the parties who must respond to [Carrier One’s] motion for summary decision on the issue of subsequent injurious exposure. To hold otherwise would result in piecemeal litigation; the administrative law judge’s ruling has the deleterious effect of making claimant proceed individually against his employer and each of its carriers.
Pimental v. Tekstar, Inc., BRB No. 12-0625 (Jul. 29, 2013) (unpublished).
(Note: I originally published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)
