State EX rel. Pilkington North America, Inc. v. Indus. Comm. (2008)

Our plain-English summary of State EX rel. Pilkington North America, Inc. v. Indus. Comm. (Ohio Supreme Court, April 3, 2008).

Donald Stein worked at Libbey Owens Ford (LOF) from 1947 through 1988 and was exposed to asbestos during much of that time. LOF was insured under the state fund until 1970, when it became self-insured. In 2003 Stein was diagnosed with mesothelioma, and in 2005 his occupational-disease claim was allowed against the self-insured risk under the last-injurious-exposure principle. Pilkington North America, successor to LOF's self-insured claims, was named the responsible employer. Pilkington sought a writ of mandamus, arguing the claim belonged to the state-fund LOF risk. The court of appeals agreed, reading language in an earlier case, Erieview, as limiting the principle. The Ohio Supreme Court reversed. It said the Erieview sentence was only an observation about past cases, not a limit. It held the commission did not abuse its discretion in naming Pilkington. The court also declined Pilkington's proposal to subtract the average latency period from the diagnosis year, calling it a first-injurious-exposure rule.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: Ohio Supreme Court
• Decided: April 3, 2008
• Citation: 887 N.E.2d 317
• Docket: No. 2007-0747
• Stage: Appeal from other
• State: Ohio

Outcome. The Ohio Supreme Court reversed the court of appeals' mandamus grant and held that the Industrial Commission did not abuse its discretion in naming Pilkington, successor to Libbey Owens Ford's self-insured claims, as the amenable employer, so the commission prevailed over Pilkington.

What the court held. The last-injurious-exposure principle assigns workers' compensation responsibility for a long-latency occupational disease to the employer that last exposed the worker to the hazard. It is not limited to the context described in Erieview, and the court declined to adopt a first-injurious-exposure rule.

Issues decided: Employer and Contractor Liability, and Workers' Compensation, Successor Liability.

The people and their exposure

• Donald F. Stein: mesothelioma

The defendants

• Pilkington North America, Inc. (employer)
• Libbey Owens Ford (employer)
• Industrial Commission of Ohio (government)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• State EX rel. Pilkington N. AM. v. Indus. Comm. (Ohio Court of Appeals, 10th Appellate District, 2007). The court adopted its magistrate's decision and granted a writ of mandamus ordering the Industrial Commission to vacate the order placing 100 percent of risk liability on Pilkington as a self-insured employer and to issue an amended allocation order; Pilkington largely won, but its request to assign the claim wholly to the state fund was denied.

Later decisions citing this one

4 later decisions in our library cite this one:

• Burkhart v. HJ Heinz Co. (Ohio Court of Appeals, 6th Appellate District, 2013). The court of appeals reversed the summary judgment for H.J. Heinz Co. in the workers' compensation death-benefits appeal brought by Mary Lou Burkhart, and remanded for trial.
• State EX rel. Roger Bacon High School v. Indus. Comm. OF Ohio (Ohio Court of Appeals, 10th Appellate District, 2011). The court denied Roger Bacon High School's request for a writ of mandamus, leaving in place the Industrial Commission's award of death benefits to the widow of Patrick Mullaney.
• Rosling v. Associated Loggers Exchange (Montana Workers' Comp. Court, 2019). The Workers' Compensation Court held that McMillan's claim was timely, his asbestos-related disease was a compensable occupational disease, and insurer Associated Loggers Exchange was liable, awarding medical benefits, an impairment award, permanent total disability benefits and costs, but denying attorney fees and a penalty.
• Atchley v. Louisiana Pacific Corp. (Montana Workers' Comp. Court, 2018). The Montana Workers' Compensation Court held Louisiana Pacific Corp. liable to Hazel Atchley for death benefits for her husband's asbestos-related disease, and awarded her costs but denied attorney fees and a penalty.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

STATE EX REL. PILKINGTON NORTH AMERICA, INC. v. Indus. Comm., 887 NE 2d 317 - Ohio: Supreme Court 2008 - Google S… 118 Ohio St.3d 161 (2008)

2008-Ohio-1506

887 N.E.2d 317

THE STATE EX REL. PILKINGTON NORTH AMERICA, INC., APPELLEE,

v.

INDUSTRIAL COMMISSION OF OHIO, APPELLANT, ET AL.

No. 2007-0747.

Submitted February 26, 2008

Decided April 3, 2008.

Supreme Court of Ohio.

APPEAL from the Court of Appeals for Franklin County, No. 06AP-232, 2007-Ohio-1011.

Marshall & Melhorn, L.L.C., Michael S. Scalzo, and John A. Borell Jr., for appellee.

Marc Dann, Attorney General, and Sandra E. Pinkerton, Assistant Attorney General, for appellant.

Workers' compensation — Occupational disease — Last-injurious-exposure rule — Liability of successor to self-insured employer.

Per Curiam.

{¶ 1} Donald F. Stein has an allowed occupational-disease claim. We must determine which employer is amenable for the workers' compensation claim.

{¶ 2} Stein worked at Libbey Owens Ford ("LOF") from 1947 through 1988 and was exposed to asbestos during much of that time. From 1947 until 1970, when it became self-insured, LOF was an employer insured under the state fund. Pilkington North America, Inc. is now the successor to LOF's self-insured claims.

{¶ 3} In 2003, Stein was diagnosed with mesothelioma, and in 2005, his occupational-disease claim was allowed against the self-insured risk under the "last-injurious-exposure principle." Because Pilkington was the successor to LOF's self-insured claims, Pilkington was named the amenable employer. Pilkington petitioned the Court of Appeals for Franklin County for a writ of mandamus, alleging that the commission had abused its discretion in assigning workers' compensation liability to it as a self-insured entity rather than to the state-fund LOF risk.

{¶ 4} The court of appeals agreed. It viewed certain language in State ex rel. Erieview Metal Treating Co. v. Indus. Comm., 109 Ohio St.3d 147, 2006-Ohio-2036, [*162] 846 N.E.2d 515, as limiting the last-injurious-exposure rule to circumstances distinguishable from the case at bar. It ordered the commission to issue an amended order that "appropriately determines allocation of risk liability." 2007-Ohio-1011, 2007 WL 701566, at ¶ 8.

{¶ 5} The commission now appeals to this court as of right.

{¶ 6} Occupational diseases can pose difficult questions of employer amenability for workers' compensation claims. Some common occupational diseases have latency periods of up to 40 years. When an employee has worked for multiple employers during that time, assigning workers' compensation responsibility can be difficult because "it is often impossible to go back over the years to quantify the amount of exposure at each job or to pinpoint which exposure planted the seeds of eventual disease." Erieview at ¶ 10.

{¶ 7} This problem inspired the concept of last injurious exposure. Alluded to as early as 1950, see State ex rel. Marion Power Shovel Co. v. Indus. Comm. (1950), 153 Ohio St. 451, 456, 41 O.O. 438, 92 N.E.2d 14, the principle assigns responsibility to the employer last providing hazardous exposure. Concededly less than perfect, it "subordinates the practically unattainable scientific accuracy to the next best thing — consistency." Erieview, 109 Ohio St.3d 147, 2006-Ohio-2036, 846 N.E.2d 515, ¶ 10.

STATE EX REL. PILKINGTON NORTH AMERICA, INC. v. Indus. Comm., 887 NE 2d 317 - Ohio: Supreme Court 2008 - Google S… {¶ 8} This concept prompted the commission to declare Pilkington to be the amenable employer. Pilkington in turn persuaded the court of appeals that the last-injurious-exposure principle did not apply based upon a single sentence from Erieview:

{¶ 9} "Thus far, this theory has appeared before Ohio courts in just one context: before allowance of a claim, in a situation involving several potentially liable employers. It usually involves a worker who has recently experienced the onset of a long-latency occupational disease such as asbestosis or black lung. It always involves a worker who has been exposed to the injurious substance while working for each of several employers. When that worker files a workers' compensation claim, a question arises: When multiple employers have subjected the worker to the hazard, against which employer should the workers' compensation claim be allowed?" (Emphasis added.) Id. at ¶ 9.

{¶ 10} The emphasized sentence was not intended as a limitation. It was only an observation of the history of our encounters with the theory up to that time. It is not an impediment to application here, nor should it be. The last-injurious-exposure principle is a practical, workable method for assigning responsibility in multiple-employer situations. Pilkington's suggestion to deduct the average latency period from the year of diagnosis and assign liability to the employer that corresponds to that year is no more than a first-injurious-exposure rule, which we decline to adopt. [*163] {¶ 11} The court of appeals limited the application of the rule of last injurious exposure based upon an incorrect reading of Erieview. We therefore hold that the commission did not abuse its discretion in finding that Pilkington is the amenable employer. The judgment of the court of appeals is reversed.

Judgment reversed.

MOYER, C.J., and PFEIFER, LUNDBERG STRATTON, O'CONNOR, O'DONNELL, LANZINGER, and CUPP, JJ., concur.

Sources

• The opinion on Google Scholar
• Ohio asbestos laws
• Ohio asbestos exposure sites