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Workers’ compensation laws were generally written with good intentions. They provide fast coverage to workers injured on the job, without requiring employees to prove negligence.
But matters become more complicated when the employee suffers a work-related illness that takes many years to develop. By the time the latent disease is diagnosed, he may not even work at the company anymore. He might even be retired.
For those diagnosed with occupational-related mesothelioma, workers’ compensation law might work against them. It’s possible workers’ compensation benefits are still collectible, but one cannot collect workers’ compensation benefits and pursue a civil action against the employer because worker’s compensation is considered an exclusive remedy.
Workers’ compensation generally doesn’t pay as much as a civil lawsuit might, and expenses for someone suffering from an asbestos-related disease are astronomical. If a worker chooses to pursue a lawsuit instead of workers’ compensation, it’s not a guarantee that he or she will be allowed to proceed with the claim, as the recent case of Walston v. Boeing Co. shows.
Here, the Washington Supreme Court held that state workers’ compensation law barred action by the worker against the employee because the worker had not raised a genuine question of material fact about whether the airplane company had actual knowledge that injury was certain to occur. That is the standard necessary to overcome in that state to override the state’s workers’ compensation law and pursue recovery from one’s employer through litigation.
Our mesothelioma attorneys find it troubling the court indicated Boeing lacked “actual knowledge” of the danger caused by asbestos when this very same company issued “moon suits” and ventilators to certain workers handling asbestos.
The plaintiff in this case manufactured airplane parts for the company, and he was not one of those given a special protective suit or gear. He worked for the company between 1956 and 1992, with most of the asbestos exposure occurring in the mid-1980s. The company reportedly commissioned insulation repair work because asbestos was flaking and falling from overhead pipes in the plaintiff’s work area.
Maintenance workers were given protective suits, but those who continued to toil beneath – where the dust, fibers, and asbestos debris fell – were not provided the same protection.
When several workers, including the plaintiff, asked a supervisor whether they could leave or don protective gear themselves, they were told to return to work but try their best to avoid working directly beneath repairs.
The plaintiff asserted his employer had actual knowledge he was certain to be injured by the asbestos and yet willfully disregarded such knowledge. The trial court rejected this assertion, as did the appellate court, and now the state’s supreme court has affirmed that decision.
The company never denied it was aware of asbestos dangers prior to 1985 and never denied the pipe maintenance incident. However, it still maintains that the workers’ compensation law shields it from liability per the “actual knowledge” provision.
Although the claim against the employer in this situation may be barred, the worker’s widow (since he is now deceased) may still be entitled to workers’ compensation death benefits and might consider litigation against the manufacturer of the insulation used at his employer’s plant.
Help for mesothelioma victims can be found at The Ferraro Law Firm by calling (888) 554-2030. Offices in Miami and Washington, D.C.
Walston v. Boeing Co., Sept. 18, 2014, Washington Supreme Court
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