McLaughlin, Jr. v. C&D Contractors
Date Filed2022-12-14
DocketN22A-04-002 FJJ
JudgeJones J.
Cited0 times
StatusPublished
Full Opinion (html_with_citations)
IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
WILLIAM McLAUGHLIN, JR., )
)
Claimant-Below, ) C.A. No.: N22A-04-002 FJJ
Cross-Appellant )
) CITATION ON APPEAL
v. ) FROM THE DECISION OF
) THE INDUSTRIAL
C&D CONTRACTORS, ) ACCIDENT BOARD OF THE
) STATE OF DELAWARE
Employer-Below, ) NEW CASTLE COUNTY,
Appellant. ) HEARING NO. 1478363
Submitted: December 8, 2022
Decided: December 14, 2022
OPINION
UPON CONSIDERATION OF AN
APPEAL FROM THE INDUSTRIAL ACCIDENT BOARD
AFFIRMED IN PART AND REVERSED IN PART
Linda Wilson, Esquire, Marshall, Dennehey, Warner, Coleman & Goggin, 1007 N.
Orange Street, Suite 600, Wilmington, DE 19899. Attorney for C & D Contractors.
David Crumplar, Esquire, Jacobs & Crumplar, 750 Shipyard Drive, Suite 200,
Wilmington, DE 19801. Attorney for William McLaughlin, Jr.
Jones, J.
INTRODUCTION
This cross-appeal of an Industrial Accident Board (the âBoardâ or âIABâ)
decision considers a legal issue. Below, the Board found the now-deceased
Claimant, William McLaughlin (âMr. McLaughlinâ or the âEstateâ), suffered a
compensable occupational disease (mesothelioma) as a result of asbestos exposure
through his work as a pipefitter for C&D Contractors, Inc. (âC&Dâ). Mr.
McLaughlin died of mesothelioma shortly after diagnosis.
On appeal, this Court must determine the relevant occurrence that triggers
survivorâs benefits to Mr. McLaughlinâs widow. The appeal specifically tasks the
Court with answering whether Mr. McLaughlinâs average weekly wage, and the
maximum weekly rate, should be taken from the date of Mr. McLaughlinâs last
asbestos exposure (1989) or the date of his mesothelioma diagnosis (2017).
According to C&D, both calculations should flow from the 1989 date of last
exposure. The Estate, on the other hand, submits the 2017 date of diagnosis controls
the calculations. All told, the Board found: (1) the average weekly wage must be
taken from the 1989 date of last exposure, and (2) the maximum weekly rate is taken
from the 2017 date of diagnosis. Unhappy with the Boardâs findings, both parties
appeal the IAB order.
Upon careful review of the record, the Court finds the date of diagnosis
controls both the calculation of the average weekly wage and the maximum rate.
2
Accordingly, the Boardâs decision must be AFFIRMED in part and REVERSED
in part.
FACTUAL AND PROCEDURAL BACKGROUND
What follows is an abbreviated factual summary of the case, drawing only on
those undisputed facts relevant to the appeal. C&D employed Mr. McLaughlin as a
plumber and pipefitter from 1980 to 1989.1 In its decision, the Board reached (and
C&D does not contest) three conclusions as a matter of fact: (1) Mr. McLaughlin
suffered his last injurious exposure to asbestos through his C&D employment in
1989; (2) Mr. McLaughlin was not exposed to asbestos after his C&D employment;
and (3) Mr. McLaughlinâs last injurious exposure to asbestos led to his
mesothelioma diagnosis and subsequent death.2 The parties stipulated that Mr.
McLaughlin was diagnosed with mesothelioma on November 20, 2017 and
succumbed to the disease on February 24, 2018.3
Mr. McLaughlin earned $900.58 per week when he left C&D in 1989.4 He
continued to work until his mesothelioma diagnosis. At the time of diagnosis, Mr.
McLaughlin earned an annual salary of over $110,000.5
1
See IAB Decision at 40.
2
See id. at 46.
3
See id. at 2.
4
See id. at 52.
5
See id.
3
The Estate filed a Petition to Determine Compensation Due to Dependents of
a Deceased Employee on November 20, 2018.6 Before the Board, the Estate argued
Mr. McLaughlinâs average weekly wage and compensation rate should be based
upon his post-C&D earnings as of the date of his November 2017 mesothelioma
diagnosis, yielding a maximum weekly rate of benefits to his widow in the amount
of $686.99. C&D submitted the relevant occurrence to trigger the compensation
calculation should be Mr. McLaughlinâs average weekly wage at the time of his last
exposure to asbestos â $900.58 â and subject to the maximum rate of $280.64 in
effect in 1989.
The Board issued its findings on March 14, 2022, entitling Mr. McLaughlinâs
widow to death benefits based upon the maximum compensation rate in effect at the
time of his November 2017 mesothelioma diagnosis. The Board, however, did not
calculate benefits based on the 2017 weekly wage rate; instead, it used the weekly
wage rate in place at the time of Mr. McLaughlinâs last asbestos exposure in 1989.
C&D filed a timely appeal, and the Estate cross-appealed shortly thereafter.
STANDARD OF REVIEW
When an employee suffers compensable occupational injury, Delaware law
requires the employer to pay for reasonable and necessary medical âservices,
6
See id. at 2.
4
medicine, and suppliesâ causally connected with that injury.7 The employee seeking
compensation bears the burden of proving, by a preponderance of the evidence, that
a work-related accident caused the injury.8
On appeal from the IAB, the Superior Court limits its review to determining
whether the Boardâs decision was free from legal error and supported by substantial
evidence.9 âSubstantial evidence is that which âa reasonable mind might accept as
adequate to support a conclusion.â It is a low standard to affirm and a high standard
to overturn.â10 Thus, the Court must search the entire record to determine whether,
based on all the testimony and exhibits, the Board could fairly and reasonably reach
its conclusions.11 However, the Court âdoes not sit as trier of fact with authority to
weigh the evidence, determine questions of credibility, and make its own factual
findings and conclusions.â12 It is solely within the purview of the Board to judge
credibility and resolve conflicts in testimony.13 Where substantial evidence supports
the administrative decision, the Court must affirm the ruling unless it identifies an
abuse of discretion or clear error of law.14 Questions of law are reviewed de novo.15
7
19 Del. C. § 2322.
8
See Coicuria v. Kauffmanâs Furniture, 1997 WL 817889at *2 (Del. Super. Oct. 30, 1997), affâd,706 A.2d 26
(Del. 1998). 9 See Glanden v. Land Prep, Inc.,918 A.2d 1098, 1100
(Del. 2007). âSubstantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.â Oceanport Indus. v. Wilmington Stevedores,636 A.2d 892, 899
(Del. 1994). 10 Hanson v. Delaware State Public Integrity Commân.,2012 WL 3860732
at *7. (Del. Super. Aug. 30, 2012). 11 See Natâl Cash Register v. Riner,424 A.2d 669, 674-75
(Del. 1980). 12 Johnson v. Chrysler Corp.,214 A.2d 64
, 67 (Del. 1965). 13 Seeid.
14 See Munyan v. Daimler Chrysler Corp.,909 A.2d 133, 136
(Del. 2006). 15 Seeid.
Absent an error of law, the Court reviews the Boardâs decision for abuse of discretion. The Court will find
abuse of discretion only when the Boardâs decision exceeds the bounds of reason when considering the circumstances.
5
ANALYSIS
A. The Rate Must Be Calculated from the Date of Disease Diagnosis
Pursuant to the Delaware Workmanâs Compensation Statute (the âActâ), an
employee who suffers from, and is totally disabled by, compensable occupational is
entitled to benefits in the amount of two-thirds of his weekly wage.16 Additionally,
the Act establishes a maximum weekly rate by which the wage is to be calculated.17
This rate is adjusted annually.18 On appeal, this Court must determine whether the
average weekly wage and maximum rate are calculated from the date of last injurious
exposure or the date of occupational disease diagnosis.
The Act provides workers suffering from occupational disease with the same
rights to seek compensation as workers who suffer physical injury on the job.19
Under the Act, âinjuryâ is defined as:
[V]iolence to the physical structure of the body, [or]
such disease or infection as naturally results directly
therefrom when reasonably treated, and
compensable occupational diseases ⌠arising out of
and in the course of employment.20
See Person-Gaines v. Pepco Holdings, Inc., 981 A.2d 1159, 1161(Del. 2009); see also Stanley v. Kraft Foods, Inc.,2008 WL 2410212
, at *2 (Del. Super. March 24, 2008). 16 See 19 Del. C. § 2302; see also 19 Del. C. 2301(4) (defining âcompensable occupational diseaseâ as âall occupational diseases arising out of, and in the course of, employment only when the exposure stated in connection therewith occurred during employment.â). 17 See 19 Del. C. § 2302(b)(3). 18 See id. 19 See 19 Del. C. § 2328; see also Dravo Corp. v. Strosnider,45 A.2d 542, 544
(Del. 1945) (finding a work-related
event that caused injury to be a prerequisite for Delaware workmanâs compensation claims).
20
See 19 Del. C. 2301(16).
6
The Delaware Supreme Court summarized the Actâs occupational disease evolution
in Champlain Cable Corporation v. Employers Mutual Liability Insurance Company
of Wisconsin.21 Charged with determining whether the 1974 amendments to the Act
overruled the last injurious exposure rule, Champlain answered in the negative:
In light of our conclusion, we find Champlainâs argument
for overruling Cicamore on the basis of the 1974
legislation to be without merit. Clearly, Justice Carey,
writing for the Court, premised the decision upon the
statutory emphasis on disability as the determinant of
coverage for occupational diseases. This reliance
continues to be well-founded, as evidenced by the notice
and limitations statutes, and reflects the acknowledged
distinction in injuries involving violence to the physical
structure of the body and those resulting from repeated
exposure to toxic materials. We are satisfied that this
disability orientation was not altered by the deletion of the
five-month time constraint. As previously stated, the
amendment to § 2301(4) merely broadened employee
coverage for continuous exposure diseases by not
predicating recovery on the time of clinical diagnosis. We
conclude, therefore, that âinjuryâ, in the context of
occupational diseases, is still determined as of the date of
âdisabilityâ âŚ.22
Champlain directs this Court to determine the occupational disease benefit rate at
the date of disability, not exposure. Thus, a workmanâs compensation claim based
on asbestos exposure must be supported by a diagnosis of occupational disease. This
date of diagnosis triggers the rights to benefits under the Act.
21
479 A.2d 835 (Del. 1984).
22
Id. at 841-42.
7
Before Champlain, this Court confronted a factual scenario similar to the
present matter in E.I. Dupont de Nemours & Co. v. Taylor.23 As is the case here,
Taylor tasked this Court with determining the proper time to calculate the rate of
compensation in an occupational disease case.24 The Taylor employer argued the
date of exposure was the appropriate trigger to determine the average weekly rate
and the maximum rate; the employee, on the other hand, maintained the date of
diagnosis controlled. Siding with the employee, Judge Walsh explained:
An occupational disease cannot be dealt with in the same
manner as can an industrial injury caused by an
identifiable incident. [The] various provisions [of the
Workmanâs Compensation Act] indicate a legislative
recognition that, for many purposes, violence to the
physical structure of the body cannot be dealt with in the
same way as disease. Proof of place and cause of
occupational disease may not prove difficult if one has
worked for a single employer over a long period of time,
but proof of the time disease began may be either swift or
slow. Here, the time of disability caused by asbestosis
must be determined. When a disease is progressive, such
as asbestosis, exposure to the disease-causing substance
may, in the early stage of the disease, cause injury which
is not apparent, even to the worker so affected. Disability,
in a medical sense, may be established by medical
testimony that a claimant cannot work, although in fact the
claimant may actually be working by sheer determination
and ingenuity.
Occupational disease cases typically show a long history
of exposure without disability culminating in the forced
cessation of work on a definite date. In this case, claimant
23
Del. Super. N82A-OC-4.
8
continued to work after his asbestosis was diagnosed by
his medical experts and after they urged him to retire. But
even the medical experts may disagree on the question of
onset of disability. At the Board hearing on January 27,
1982, the medical testimony as to claimantâs disability was
wide-ranging. Claimantâs experts testified that he was
totally disabled and had a 70 percent impairment to each
lung, while one of employerâs experts testified that
claimant was able to work and had no impairment to his
lungs. This diversity of medical opinion illustrates the
difficulty in ascertaining the progression of occupational
disease.
* * *
To hold that the rate of compensation for disability caused
by an occupational disease should be calculated from the
date of actual cessation of work, resulting from the disease
rather than the date of injury, is consistent with the
manifestation rationale of Cicamore and Champlain. The
date of disability, like the manifestation approach to
disability, introduces a note of certainty in an area which
is ripe with speculation. The Boardâs use of the date of
disability was legally and factually correct. Its decision is
accordingly affirmed.
Champlain and Taylor are consistent with Delaware jurisprudence concerning the
statute of limitations in occupational disease cases. In Bendix Corp. v. Stagg,25 the
Delaware Supreme Court found the occupational disease statute of limitations tolls
when the harmful effect of asbestos exposure first manifests and becomes physically
ascertainable.26 And thirty years after Bendix, the Supreme Court rejected the
argument that the statute of limitations begins to run immediately after asbestos
25
486 A.2d 1150 (Del. 1984).
26
See id. at 1153.
9
exposure in Dabaldo v. URS Energy & Construction.27 Rather, as Dabaldo
announced, the bell tolls when the plaintiff is chargeable with knowledge that his
physical condition is attributable to asbestos exposure.28
B. The Public Policy Goals of Multi-Disease Jurisdictions
Moreover, it bears mention that Delaware is a multi-disease jurisdiction. As
such, Delaware plaintiffs may bring multiple claims for different asbestos-related
diseases. The statute of limitations for each claim is based on the date of diagnosis
for each disease.
Washington State is also a multi-disease jurisdiction. In Kilpatrick v.
Department of Labor and Industries of the State of Washington,29 the Washington
Supreme Court faced the identical issue before this Court. Finding survivor benefits
must be calculated at the date of asbestos-related disease manifestation, Kilpatrick
held:
The problem with treating a separately occurring asbestos-
related disease as an aggravation of the original disease is
readily apparent. Each asbestos-related disease involves a
unique pathology, requires a different treatment, and is
not, in fact, an aggravation of continuation of a different
asbestos-related condition. Thus, the asbestos-related
conditions necessarily involve different dates of injury or
manifestation.
Another problem with the Departmentâs approach is that
it focuses on the date of exposure, even though the
27
85 A.3d 73(Del. 2014). 28 Seeid. at 78
. 29125 Wash. 2d 222
(Wash. 1995).
10
relevant occurrence for determining benefits is the
manifestation of disease, not the date of exposure. In
Landon, we noted the shift to the date of manifestation and
away from the date of exposure fulfills our statutory
mandate of liberal construction to ensure the fair
compensation of disabled workers, with all doubts
resolved in favor of the employee. In addition, the purpose
of workersâ compensation benefits is to reflect future
earning capacity rather than wages earned in past
employment, and the application of outdated benefit
schedules fails to fulfill that purpose. The Departmentâs
focus on the date of exposure is more likely to cause an
outdated schedule of benefits to be applied.
The same reasoning applies here. If the worker were
confined to the original date of manifestation, benefits
would be determined according to schedules already
obsolete under current statutes. This is inconsistent with
the purposes of replacing future wages, and the express
goal of the workersâ compensation act to reduce to a
minimum the workerâs economic loss. Thus, the policies
behind the workersâ compensation act, Landonâs directive
that we focus on the date of manifestation in latent
occupational disease cases, and the undisputed medical
evidence compel the conclusion that the claimantsâ final
asbestos-induced disease should be accorded its own date
of manifestation.30
The rationale Kilpatrick applies here. Because Washington State and Delaware are
multi-disease jurisdictions, the public policy philosophy underlying each stateâs
workmanâs compensations acts are the same. Therefore, the Court will follow the
lead of Kilpatrick and Taylor and hold the relevant occurrence for determining
30
See id. (emphasis added) (internal citations omitted).
11
benefits is the manifestation of disease, not the date of exposure.31 This finding is
consistent with the goals of the Act, Delaware law, and the multi-disease
jurisdictional approach.
C. The Last Injurious Exposure Rule
The last injurious exposure rule is well-settled Delaware law.32 In brief, the
Delaware Supreme Court adopted the last injurious exposure rule to compensate
employees âwho were exposed to a disease-causing substance in the course of [their]
employment.â33 For purposes of the rule, the employer at âthe date of the last
exposure to a disease-causing element resulting in manifestation of injuryâ is
responsible for providing workmenâs compensation benefits to the injured
employee.34
C&D argues the Court should use the last injurious exposure rule to determine
the âtime of injuryâ to Mr. McLaughlin. In making this argument, C&D conflates
last exposure with injury. As explained supra, asbestos exposure and time of injury
are not necessarily the same in the context of occupational disease cases.
31
Id. At the time of the Champlain and Taylor decisions, the Act imposed a minimum three-day period of disability
as a condition precedent to making a claim under the Act. See Smith v. Feralloy Corp., 460 A.2d 516(Del. 1983); see also M&M Hunting Lodge v. DiMaio,1991 WL 89802
(Del. Super. May 10, 1991) (explaining â⌠the Court must decide if Claimant has been incapacitated from earning full wages for at least three days.â). Disability to work was also an essential element of any workmanâs compensation claim. The Act no longer requires a period of disability. Thus, the focus now is not on the time of disability, but rather the date of diagnosis. 32 See Estate of Anderson v. American Seaboard Exteriors,2022 WL 10219998
, at *5 (Del. Super. Oct. 18, 2022); see also State Through Pennsylvania Mfrs. Ass. Inc. Co. v. Dunlop,1991 WL 236974
, at *2 (Del. Super. Oct. 16, 1991). 33 Seeid.
34Id.
(emphasis added).
12
Undoubtedly, both are required for a claim to be mature under the Act. But to tie
the manner of payment to the date of last exposure is to ignore that injury
manifestation is required before compensation is due.
Further, C&Dâs position is squarely at odds with the purpose of the Act. The
Act is a remedial statute designed to protect the worker, and Delaware law mandates
the Court interpret the Act liberally to effectuate its remedial objective.35 This liberal
interpretation recognizes that the General Assembly passed the Act for the express
purpose of benefitting the worker and requires the Court to resolve any reasonable
doubts in favor of the claimant.36 Otherwise stated, the Act functions to: (1) provide
assured compensation for work-related injuries without regard to fault; and (2)
relieve employers and employees of the expenses and uncertainties of civil
litigation.37
Accordingly, the Court builds upon the foundation set forth in Taylor and
finds the date of injury (or disease) diagnosis to be the triggering event for
determining both the average weekly wage and maximum rate. This approach best
achieves the legislative goal of construing the Act in a manner that best protects the
worker.38
35
See Delaware Tire Center v. Dox, 411 A.2d 606, 607(Del. 1980). 36 See Hirneisen v. Champlain Cable Corp.,892 A.2d 1056, 1059
(Del. 2006). 37 See Kofron v. Amoco Chem. Corp.,441 A.2d 226
(Del. 1982).
38
C&D argues that using date of diagnosis as the triggering event actually works against retired claimants, as this
form of calculation would reduce the rate of compensation to a level below the rate that would be paid if the date of
last exposure was used. Clearly, C&Dâs hypothetical is not present in this case. To the extent this is an issue in need
of correction in future cases, the proper forum for the matter is the General Assembly, not this Court.
13
CONCLUSION
Based on the foregoing, the decision of the Board to calculate the average
weekly rate based on the date of last exposure is REVERSED. The decision of the
Board to calculate the maximum rate from the date of diagnosis is AFFIRMED.
This matter is REMANDED to the Industrial Accident Board for entry of an
order consistent with this decision.39
39
Any application by the claimant for fees and costs associated with this appeal must be filed within seven (7) days
of the date of this opinion. Any responses to such an application should be filed within seven (7) days of claimantâs
application.
14