ESTATE OF J. MICHAEL BOYLE, SR., and FAYE BOYLE (Appellee)
v.
LAPPIN BROTHERS, INC., (Appellant)
ACE INSURANCE COMPANY, (Insurer)
COMMERCIAL WELDING CO., (Appellee)
ARROW POINT CAPITAL, (Insurer)
EICHLAY CORPORATION, (Appellee)
MARYLAND CASUALTY (ZURICH NORTH AMERICA), (Insurer)
WILLETTE WELDING, INC., (Appellee)
ONE BEACON INSURANCE GROUP, (Insurer)
W.W. OSBORNE, INC., (Appellee)
FIREMAN’S FUND INSURANCE COMPANY, (Insurer)
and
THE AMERICAN INSURANCE COMPANY (Insurer)
Decision No.17-8
Case No. App. Div. 15-0045
Maine Workers Compensation Decisions
State of Maine Workers Compensation Board
February 28, 2017
Argument held: June 9, 2016
Attorney for Appellant: Thomas E. Getchell, Esq.
TROUBH HEISLER
Attorneys for Estate/Appellee: James J. MacAdam, Esq.
Nathan A. Jury, Esq. Donald M. Murphy, Esq. MacADAM JURY
Attorneys for Employers/Appellees: Anne-Marie L. Storey, Esq.
John K. Hamer, Esq. RUDMAN WINCHELL, Richard D. Bayer, Esq.,
ROBINSON, KRIGER & McCALLUM, Peter M. Weatherbee, Esq.
WEATHERBEE LAW OFFICE, P.A., Frederick F. Costlow, Esq.
RICHARDSON, WHITMAN, LARGE & BADGER
PANEL
MEMBERS: Majority: Administrative Law Judges Goodnough and
Pelletier
Pelletier, Administrative Law Judge
[¶1]
Lappin Brothers, Inc., appeals from a decision of a
Workers' Compensation Board administrative law judge
(Greene, ALJ) granting in part the Estate of J.
Michael Boyle, Sr., and Faye Boyle's (collectively,
"the Estate") respective Petitions for Award of
Compensation and for Award of Compensation-Fatal, brought
pursuant to the Occupational Disease Law, 39-A M.R.S.A.
§§ 601-615 (2001 & Supp. 2016), and 39-A
M.R.S.A. § 215 (Supp. 2016). The ALJ determined in the
first stage of the bifurcated proceedings that Mr. Boyle was
last injuriously exposed to asbestos while working for Lappin
Brothers. At issue is whether: (1) the decision in this case
is and appealable final decision, or whether the appeal
should be dismissed as interlocutory; (2) a determination
regarding where the last injurious exposure occurred
establishes medical causation; (3) the Estate carried its
burden of proof that Mr. Boyle's exposure to asbestos at
Lappin Brothers was injurious; and (4) there is competent
evidence in the record to support the finding of injurious
exposure. We affirm the ALJ's decision insofar as it
addresses the issue of last injurious exposure, but vacate
and remand for additional proceedings on the issue of whether
the employee contracted and died from an asbestos-related
disease.
I.
BACKGROUND
[¶2]
J. Michael Boyle worked as a union pipefitter from 1970 to
1977. He and Faye Boyle married in 1970 and settled in Old
Town. During his time as a union member, Mr. Boyle worked on
projects for different employers where he was potentially
injuriously exposed to asbestos. He was diagnosed with
mesothelioma in 2009, and he passed away in 2010.
[¶3]
As personal representative of Mr. Boyle's Estate, Ms.
Boyle filed a Petition for Award, and on her own behalf, she
filed a Petition for Award-Fatal. Both petitions related to
Mr. Boyle's incapacity and death from an asbestos-related
disease. See 39-A M.R.S.A. § 614. The petitions
listed numerous employers as potentially liable. Pursuant to
the parties' agreement, the ALJ bifurcated the
proceedings to first determine which employer Mr. Boyle was
working for when he was "last injuriously exposed to
asbestos," pursuant to section 614(4). Section 614(4)
provides, in relevant part:
Last employer liable; notice.
Notwithstanding section 606, the only employer and insurance
carrier liable is the last employer in whose employment the
employee was last injuriously exposed to asbestos, and the
insurance carrier, if any, on the risk when the employee was
last so exposed under that employer.
[¶4]
The ALJ found the following facts on a more likely than not
basis: Mr. Boyle's last pipefitting job was in 1977 for
Lappin Brothers, working on the construction of a hospital in
Dover-Foxcroft. Mr. Boyle injured his back on that job on
November 7, 1977, and never returned to pipefitting work.
Duriron acid-resistant waste piping with asbestos
rope-sealing in bell and spigot joints was used on the
Dover-Foxcroft hospital site in 1977. Mr. Boyle was last
injuriously exposed to asbestos while working on that job.
That exposure contributed to his contracting mesothelioma, an
asbestos-related disease.
[¶5]
Lappin Brothers filed a motion for additional findings of
fact and conclusions of law. The ALJ ruled that the findings
and conclusions in the original decree were adequate for
appellate review except on the issue of the scope of the
first stage of the bifurcated proceeding. Lappin Brothers
asserted that the parties agreed that the purpose of the
first stage of the proceedings was to decide which employer
Mr. Boyle was working for when he was last exposed to
asbestos. It contended that the finding that Mr. Boyle worked
for Lappin Brothers when last exposed to asbestos was proper,
but the additional finding that the exposure
"contributed to his later development of an
asbestos–related disease, mesothelioma" while
working for Lappin Brothers, exceeded the agreed-upon scope
of the hearing.
[¶6]
The ALJ issued an amended decision in which he addressed the
scope of the first stage of the proceedings as follows:
In the absence of a written agreement otherwise defining the
issues to be decided in the first stage of this bifurcated
proceeding, the Board concludes that by agreeing to and
requesting such a proceeding addressing the question of
"last injurious exposure," the employers agreed
that the employee developed an asbestos-related disease as a
result of employment-related exposure to asbestos, leaving
the Board to determine
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