The U.S. Fifth Circuit Court of Appeals recently addressed the last maritime employer rule under the Longshore and Harbor Workers’ Compensation Act (LHWCA).  The claimant was employed by Ramsay Scarlett & Co. at the Port of Baton Rouge from 1969 – 1991.  From 1991 – 2013, the claimant worked for a second employer, Westway, also at the Port of Baton Rouge.  In 2011, he was diagnosed with asbestosis, which he alleged was caused by exposure to asbestos brake pads and clutches during his employment with Ramsay Scarlett.  The claimant filed a claim for medical benefits against Ramsay Scarlett under the LWHCA.

 

The Administrative Law Judge determined that the claimant established a prima facie claim, which Ramsay Scarlett failed to rebut and that Ramsay Scarlett was the last maritime employer.  Ramsay Scarlett appealed to the Benefits Review Board, which affirmed the ALJ’s decision.

 

On appeal to the Fifth Circuit, Ramsay Scarlett argued that even if the claimant established a prima facie claim by virtue of his deposition testimony and the report of an industrial hygienist, it was not the last maritime employer.  Ramsay Scarlett argued that the claimant testified he also worked around cranes, trucks, and equipment that could have exposed him to asbestos while employed by Westway.  The Fifth Circuit held that because the claimant did not testify about asbestos exposure at Westway and Ramsay Scarlett failed to provide any contradictory evidence, there was not “substantial evidence” sufficient to rebut the claimant’s claim and establish Westway as the last responsible employer.  The Fifth Circuit affirmed the ALJ’s finding that Ramsay Scarlett was the last maritime employer and was responsible for all medical benefits related to the disease.

 

Ramsay Scarlett & Co. v. Director, OWCP