Court of Appeals of Georgia, May 28, 2019

GEORGIA – Kevin Sinyard worked as a union pipefitter since 1978; from 1986-1989, the plaintiff worked for the defendant, McKenney’s Inc. at Piedmont Hospital. In 2014, the plaintiff was diagnosed with mesothelioma and he and his wife filed a complaint in Illinois against more than 80 defendants. Although the complaint named several companies and premises owners where he worked after McKenney’s, the plaintiffs did not name McKenney’s as a defendant. The plaintiffs dismissed the Illinois lawsuit without prejudice, and filed workers’ compensation claims against McKenney’s and another employer, Cleveland Electric, in January 2015.

McKenney’s opposed the claim and argued that it was not the Sinyard’s employer when he was last injuriously exposed to asbestos. The plaintiffs produced evidence that he was injuriously exposed to asbestos while working for McKenney’s at Piedmont Hospital, including records showing the presence of asbestos and expert testimony from Dr. Abraham stating that this exposure caused the plaintiff’s mesothelioma. The plaintiff also testified that he never worked with or around asbestos after working for McKenney’s. The administrative law judge (ALJ) denied the claim because the plaintiff did not show whether McKenney’s or Cleveland Electric was his employer when he was last exposed, the allegations of injurious asbestos exposure after McKenney’s, as raised in the Illinois lawsuit, were conclusive and binding, despite the plaintiffs’ argument that the complaint was filed by counsel without his review and simply named all his employers. Although the Georgia Workers’ Compensation Board affirmed the denial, it was determined that the ALJ erred in finding that allegations were binding. The plaintiffs sought superior court review, which reversed the board’s decision and entered an award in favor of the plaintifsf after reviewing the evidence de novo. McKenney’s and the insurer, Travelers, appealed.

The appellate court found that the superior court applied the incorrect standard of review. Applying the correct standard of review, the board’s decision was upheld. It stated “…the superior court lacked authority to substitute itself as a fact-finding body in lieu of the board.” The plaintiffs bore the burden of proving by a preponderance of the evidence which employer provided the last injurious exposure; here, there was competent evidence that the plaintiffs suffered some injurious exposure with an employer subsequent to McKenney’s. Further, “The fact that Sinyard’s Illinois complaint was unverified does not render the allegations therein incompetent as evidentiary admissions or admissions against interest.” The board’s decision must be upheld unless it affirmatively appeared that the board committed an error of law, which it did not.

Read the case decision here.