affirming an award of benefits for COPD as an occupational disease, despite the fact that the employee was a smoker, because the appellate court concluded that the trial court must have found that the employee’s workplace exposure to paint fumes was “sufficient in intensity and duration” to cause or aggravate his COPD
How later courts described this case
- affirming an award of benefits for COPD as an occupational disease, despite the fact that the employee was a smoker, because the appellate court concluded that the trial court must have found that the employee’s workplace exposure to paint fumes was “sufficient in intensity and duration” to cause or aggravate his COPD
Written by the judges who cited it.
The opinion
Although I question whether American Interstate (rather than the company) is actually the real party in interest that should have prosecuted the third-party claim asserted against INA and Wausau in this case, 4 I believe that the "last injurious exposure" rule applied by the court in affirming the trial court's judgment as to that claim is consistent with Alabama law. See Ala. Code 1975, §§ 25-5-116 and 25-5-117 (b), and 2 Terry A. Moore, Alabama Workers' Compensation § 31:33 (1998) (stating that Article 4 of the Alabama Workers' Compensation Act espouses a bright-line rule that "precludes apportionment of occupational disease benefits among different insurers . . . by placing the entire loss on the insurer who happens to be carrying the risk on the date of last exposure"). Accordingly, I concur in the main opinion.
4 See Rule 17(a), Ala. R. Civ. P., and Phico Ins. Co. v. Providers Ins. Co. , 888 F.2d 663 (10th Cir. 1989).