Sue the Last Responsible Employer

In many instances, a psychological injury will occur over time as a result of working with multiple employers in a war zone.  Which employer ends up liable will usually be the Last Employer even though there was minimal psychological trauma during that employment. Let’s look at how the courts have typically analyzed this issue.

Psychological claims that occur as a result of cumulative exposure to harsh and dangerous working conditions such as the hazards of working in a war zone are designated as an occupational disease.  Specifically, courts have defined an “occupational disease” as a disease caused by hazardous conditions of employment, which are peculiar to the employee’s employment as opposed to other employment generally.  Hazardous activity need not be exclusive to the particular employment, but it must be sufficiently distinct from hazardous conditions associated with other types of employment.  Gencarelle v. Gen. Dynamics Corp., 892 F.2d 173, 23 BRBS 1 (CRT) (2d Cir. 1989), aff’d 22 BRBS 170 (1989).

The last employer rule specifically applies in occupational disease cases.  Travelers Ins. Co. v. Cardillo, 225 F.2d 137, 145 (2d Cir. 1955), cert. denied, 350 U.S. 913 (1955).  The title “last employer rule” is sometimes given to each of the different tests for determining liability among several employers in a LHWCA matter.  See Foundation Constructors, Inc., 950 F.2d 621, 624 (9th Cir. 1991).  “Whether it is characterized as two different rules, or different applications of the same rule,” courts use two tests, one for traumatic injury and one for occupational disease, when evaluating employer liability under the Act.  Id.  The Rule limits liability to “the employer during the last employment in which the claimant was exposed to injurious stimuli, prior to the date upon which the Claimant became aware of the fact he was suffering from an occupational disease arising out of his employment.”  Travelers Ins. Co. v. Cardillo, 225 F.2d 137, 145 (2d Cir. 1955), cert. denied, 350 U.S. 913 (1955); see also Fulks v. Avondale Shipyards, Inc., 637 F.2d 1008, 1012 (5th Cir 1981); Newport News Shipbuilding & Dry Dock Co. v. Stilley, 243 F.3d 179, 181-82 (4th Cir. 2001).  Put another way, the last employer to employ a claimant while she is exposed to the injurious stimuli prior to the claimant’s discovery of her disease is liable.

In cases involving multiple traumatic injuries, the responsible employer/carrier issue turns on determining which injury resulted in claimant’s disability. Section 20(a) aids claimant in establishing entitlement and does not aid either employer in proving that the other is liable. Establishing the responsible employer therefore involves weighing the relevant evidence and determining whether the disability is the result of the natural progression of the initial injury or an aggravation due to the subsequent injury. Each potential employer bears the burden of persuading the fact-finder that its evidence is entitled to greater weight. In the unlikely event that neither employer is able to persuade the administrative law judge that its evidence is entitled to greater weight, the purposes of the Act are best served by assigning liability to the last employer. Buchanan v. Int’l Transp. Services, 31 BRBS 81 (1997), and 33 BRBS 32 (1999), aff’d mem. sub nom. Int’l Transp. Services v. Kaiser Permanente Hospital, Inc., 7 F. App’x 547 (9th Cir. 2001); see Marinette Marine Corp. v. Director, OWCP, 431 F.3d 1032, 39 BRBS 82 (CRT) (7th Cir. 2005) (administrative law judge properly addressed the liability issue based on the record as a whole without reference to Section 20(a)).

In summary, when a Claimant has worked for multiple employers and the psychological injury is caused by hazardous conditions of employment (living and working in a war zone and being exposed to the hazards of war) it is likely a judge will assign liability on the employer during the last employment where the claimant was exposed to injurious stimuli.  Similarly, when a claimant has worked for multiple employers and the psychological injury is caused by multiple traumatic injuries, if the Claimant’s injuries were aggravated due to the subsequent injury with the last employer, it is likely a judge will assign liability on the last employer. Finally, in the case of a psychological injury where neither employer is able to persuade a judge its evidence is entitled to greater weight, it is likely the judge will assign liability to the last employer. Let our attorneys do the fighting for you! We here at Attorneys Jo Ann Hoffman & Associates would love to help you with your claim. Feel free to reach out for a free consultation! 954-772-2644.