MCKENNEY'S INC. et al.
MILLER, P. J., DOYLE, P. J. and COOMER, J.
MILLER, PRESIDING JUDGE.
discretionary appeal, McKenney's, Inc.
("McKenney's"), and its insurer, Travelers
Indemnity Company of America ("Travelers"), appeal
the superior court's order reversing the decision of the
Appellate Division of the State Board of Workers'
Compensation ("the Board") denying the claim for
benefits filed by Kevin Sinyard, McKenney's former
employee. Because the Board's decision is supported by
some competent evidence, and because it does not
affirmatively appear that the Board's decision was based
upon an erroneous legal theory, we must reverse the superior
After a workers' compensation decision becomes final at
the administrative level, the parties have a right of direct
appeal to the superior court, pursuant to OCGA §
34-9-105 (b). As a reviewing court, the superior court
applies an any-evidence standard of review to the Board's
findings of fact, construing the evidence in the light most
favorable to the party prevailing before the Board, and lacks
authority to substitute itself as a factfinding body in lieu
of the Board. Erroneous applications of law to undisputed
facts, as well as decisions based on erroneous theories of
law, however, are subject to the de novo standard of review
in the superior court. Where it affirmatively appears that
the Board's decision is based upon an erroneous legal
theory, and that for this reason the Board has not considered
all of the evidence in the light of correct and applicable
legal principles, the case should be remanded to the Board
for further findings.
An appeal to this Court from a decision of a superior court
reviewing a decision of the Board is not a matter of right
but rather is discretionary. OCGA § 5-6-35 (a) (1).
Appeals to this Court are governed by the same standards of
review as appeals to the superior court under OCGA §
and punctuation omitted.) Stokes v. Coweta County Bd. of
Educ., 313 Ga.App. 505, 506-507 (722 S.E.2d 118) (2012).
See also OCGA § 34-9-105 (c) (the superior court shall
set aside the Board's decision where the Board acted
without or in excess of its powers, its decision was procured
by fraud, the facts found by the Board do not support the
decision, there is not sufficient competent evidence in the
record to warrant the decision, or the decision is contrary
appropriately, the evidence shows that starting in 1978
Sinyard worked as a union pipefitter, working first as a
welder and then as a foreman or supervisor. From 1986 to
1989, Sinyard worked for McKenney's at Piedmont Hospital
in Fulton County. Sinyard worked for Cleveland Electric
Company ("Cleveland") from 1994 to 1996, including
on a project at the General Motors ("GM") assembly
plant in DeKalb County in 1995. As a result of occupational
exposure to asbestos, Sinyard was diagnosed with mesothelioma
on June 5, 2014.
2014, Sinyard and his wife filed through counsel an
unverified complaint in an Illinois state court seeking
damages based on Sinyard's mesothelioma. Significantly,
in that case Sinyard named more than 80 defendants,
comprising several companies and owners of premises where he
worked after McKenney's, but he did not name
McKenney's as a defendant. In his complaint Sinyard
alleged that as a result of the defendants' conduct, he
was "exposed to and inhaled, ingested or otherwise
absorbed great amounts of asbestos fibers causing [him] to
develop the aforementioned asbestos disease[.]" Sinyard
voluntarily dismissed the Illinois lawsuit without prejudice
and then filed the underlying workers' compensation claim
against McKenney's and Cleveland in January 2015.
opposed the claim, arguing that under OCGA § 34-9-284 it
was not Sinyard's employer when he was last injuriously
exposed to asbestos. OCGA § 34-9-284 provides:
Where compensation is payable for an occupational disease,
the employer in whose employment the employee was last
injuriously exposed to the hazards of such disease and the
insurance carrier, if any, by whom the employer was insured
when such employee was last so exposed under such employer
shall alone be liable therefor, without right of contribution
from any prior employer or insurance carrier. . . .
eventually conceded that the evidence did not show Cleveland
was his employer of last injurious exposure and focused his
claim on McKenney's.
produced evidence that he was injuriously exposed to asbestos
while working for McKenney's at Piedmont Hospital,
including: his own testimony and the testimony of a co-worker
that his work involved disturbing and removing asbestos
without proper protection from exposure and inhalation;
records from the hospital showing the presence of asbestos in
areas he worked; and the expert testimony of Dr. Jerrold L.
Abraham, who opined that the asbestos exposure Sinyard
experienced during this time caused his mesothelioma. Sinyard
also testified that after his work for McKenney's he
never worked with asbestos-containing materials or disturbed
asbestos, and representatives of some employers for which he
subsequently worked testified that no asbestos was present or
known to be present at his jobsites. Regarding the Illinois
lawsuit, Sinyard testified that he did not participate in the
preparation of the suit, that the complaint was not provided
to him for his review, and that his counsel in the case
essentially used his employment records and named all of his
former employers as defendants.
Administrative Law Judge ("ALJ") denied
Sinyard's workers' compensation claim, ruling that
despite "abundant" evidence of his injurious
exposure to asbestos with McKenney's, he failed to carry
his burden of proving by a preponderance of competent and
credible evidence that McKenney's or Cleveland was his
employer when he was last injuriously exposed to asbestos.
The ALJ found that Sinyard's allegations of injurious
exposure to asbestos after his time with McKenney's, as
raised in the Illinois lawsuit, were admissions in judicio
and therefore conclusive and binding against him.
Alternatively, the ALJ found that these allegations could be
used against Sinyard as admissions against interest, and to
the extent the allegations merely raised a question of fact,
the preponderance of evidence showed Sinyard's last
injurious exposure to asbestos occurred after his time with
McKenney's. The ALJ deemed not credible Sinyard's
assertion that he suffered no exposure to asbestos after
McKenney's, finding that because asbestos is
"invisible to the naked eye," Sinyard could have
been injuriously exposed to it without his knowledge while
working for subsequent employers.
also found that there was "evidence to support a finding
that [Sinyard] was injuriously exposed to asbestos while
working for Cleveland at the GM assembly plant in 1995."
The ALJ explained that in 1996, shortly after Sinyard worked
there, asbestos was found in the plant's air handlers and
an abatement was performed, and a reasonable inference could
be drawn that Sinyard suffered an injurious exposure while
breathing air that passed through the air handlers. The ALJ
also determined that Sinyard's initial fee contract with
his workers' compensation counsel was consistent with a
claim against Cleveland, and not McKenney's, because in
the contract Sinyard retained counsel to represent him with
respect to an injury sustained while working in DeKalb or
Gwinnett County during a time period ending in 1996.
Sinyard's arguments under Scapa Dryer Fabrics, Inc.
v. Knight, 299 Ga. 286 (788 S.E.2d 421) (2016)
("Scapa"), that a de minimis exposure to
asbestos is insufficient to establish legal causation and
that a party must show through expert testimony that an
exposure was sufficiently meaningful to establish causation,
the ALJ distinguished Scapa on the basis that it
involved a tort claim involving multiple defendants where the
factfinder must apportion liability, while in a workers'
compensation claim OCGA § 34-9-284 imposes sole
liability for an occupational disease against the employer of
last injurious exposure. The ALJ stated that "meaningful
exposure," as defined in Scapa, is not required
in a workers' compensation claim, and, as Sinyard's
own expert witness testified, an "injurious
exposure" is any exposure exceeding the baseline
presence of asbestos in the atmosphere. Finally, the ALJ
found that Sinyard attempted to incorrectly shift the burden
to McKenney's to establish an injurious exposure to
asbestos while working for a subsequent employer, but it is
the claimant's burden to prove which employer was his
employer of last injurious exposure.
Board affirmed the ALJ's denial of Sinyard's claim
and agreed with the ALJ's ultimate finding that Sinyard
did not carry his burden to prove McKenney's or Cleveland
was his employer of last injurious exposure to asbestos.
However, the Board reversed in part the ALJ's findings of
fact and conclusions of law. The Board noted that the ALJ
correctly placed the burden of proof on Sinyard, as
McKenney's had no affirmative defense and bore no burden
of proof against any subsequent employer. However, the Board
determined that the ALJ erred in deeming the allegations in
the Illinois lawsuit binding and conclusive admissions in
judicio, as admissions in judicio are only binding in the
lawsuit in which they are made, and the allegations here were
only evidentiary admissions or admissions against interest
that Sinyard could explain or contradict. The Board stated
that the allegations ...