Last Injurious Exposure Rule Ohio
In State ex rel. Erieview Metal Treating Co. v. Indus. Comm., 109 Ohio St.3d 147, 2006 Ohio 2036, at P9-10, 846 N.E.2d 515, the court had occasion to further explain the so-called "last-injurious-exposure" theory:
Thus far, this theory has appeared before Ohio courts in just one context: before allowance of a claim, in a situation involving several potentially liable employers.
It usually involves a worker who has recently experienced the onset of a long-latency occupational disease such as asbestosis or black lung.
It always involves a worker who has been exposed to the injurious substance while working for each of several employers. When that worker files a workers' compensation claim, a question arises: When multiple employers have subjected the worker to the hazard, against which employer should the workers' compensation claim be allowed?
The difficulties inherent in this inquiry are obvious. a long-latency occupational disease can take decades to emerge. Once it has, it is often impossible to go back over the years to quantify the amount of exposure at each job or to pinpoint which exposure planted the seeds of eventual disease.
These obstacles inspired the last-injurious-exposure concept, which subordinates the practically unattainable scientific accuracy to the next best thing--consistency.
As the name indicates, the employer providing the last injurious exposure will be the one against which the workers' compensation claim is allowed.
In Erieview, the commission had allocated the entire cost of the permanent total disability ("PTD") award to the claimant's first employer rather than claimant's second employer.
The first claim was allowed for occupational asthma and the second claim was allowed for aggravation of pre-existing occupational asthma. All compensation and benefits had been paid in the first claim, with none having been paid in the second claim.
The commission allocated the entire cost of the PTD award to the first employer based upon the payment history of the two claims.
Finding that the last-injurious-exposure rule was not applicable, the Erieview court, at P11, explained:
The question, of course, remains as to whether the last-injurious-exposure principle should be extended to this situation nevertheless, and upon consideration, we find that it should not. Here, it is possible to determine with some degree of accuracy which exposure was responsible for Yakopovich's disability. Substantial disability compensation has been paid in the Erieview claim, as opposed to none in the Meijer claim. There is, therefore, no reason to resort to the last-injurious-exposure theory.