Tag Archives: asbestos

A Victory for Exclusive Remedy on Asbestos

In a recent case, the 2nd Appellate District of California declined to open an new avenue to avoid the exclusive remedy of workers’ compensation in Melendrez v Ameron International Corporation, not only upholding the lower court’s grant of summary judgment for defendant/employer but also allowing the defendant to recover expert witness fees.

The employee, Lario Melendrez, was employed by Ameron for 24 years and was exposed to asbestos from insulation products. In 2011, he died from mesothelioma related to his asbestos exposure. His survivors/plaintiffs attempted to circumvent the exclusive remedy rule by alleging the employee had been allowed to take waste and scraps of insulated pipe home for personal use. Plaintiffs asserted the employee should not be shielded by workers’ compensation exclusivity for his non-work-related use of the employer’s asbestos products. Neither the trial court nor the appellate courts agreed with the effort to create a new exception to the exclusive remedy rule. The Appellate Court commented as follows:

“While we agree that a triable issue of fact exists whether Melendrez’s exposure to asbestos at home arose out of and in the course of his employment with Ameron, that issue is not material to the viability of Ameron’s defense of workers’ compensation exclusivity. It is undisputed that Melendrez’s exposure to asbestos in his employment with Ameron substantially contributed to his mesothelioma. Therefore, under the contributing cause standard applicable in workers’ compensation law, his mesothelioma is covered by workers’ compensation, and his separate exposure at home does not create a separate injury outside workers’ compensation coverage. Thus, plaintiffs’ lawsuit is barred by workers’ compensation exclusivity.”

Citing the recent California Supreme Court holding in South Coast Framing, the 2nd district held:

“Given the purposes of workers’ compensation, courts have long applied a broad concept of contributing cause to bring injuries within workers’ compensation coverage. In short, if a substantial contributing cause of an injury arises out of and in the course of employment, the injury is covered by workers’ compensation, even if another, nonindustrial cause also substantially contributed to the injury. As recently explained in South Coast Framing, Inc. v. Workers’ Comp. Appeals Bd. (2015) 61 Cal.4th 291 (South Coast Framing): “[T]he workers’ compensation system is not based upon fault. ‘It seeks (1) to ensure that the cost of industrial injuries will be part of the cost of goods rather than a burden on society, (2) to guarantee prompt, limited compensation for an employee’s work injuries, regardless of fault, as an inevitable cost of production, (3) to spur increased industrial safety, and (4) in return, to insulate the employer from tort liability for his employees’ injuries.’…”

The court also cited case law that had established that the exclusivity provisions of workers’ compensation also apply to collateral or derivative injuries:

“[C]ourts have regularly barred claims where the alleged injury is collateral to or derivative of a compensable workplace injury.”… see also Vacanti, supra, 24 Cal.4th at p. 815 [“courts have barred employees from suing for psychic injuries caused by their termination, or their employer’s abusive conduct during the termination process]; LeFiell, supra, 55 Cal.4th at p. 284 [“‘[c]ourts have held that the exclusive jurisdiction provisions bar civil actions against employers by nondependent parents of an employee for the employee’s wrongful death, by an employee’s spouse for loss of the employee’s services or consortium, and for emotional distress suffered by a spouse in witnessing the employee’s injuries…'”

The court further distinguished authorities proposed by plaintiff to expand the ability to escape the exclusivity clause. In each of the cases cited by plaintiff, the court noted there were findings that the employee was not performing any service related to employment or even actions prohibited by his employer. In each of those cases, the injury was solely related to the non-work-related episode, and the plaintiff offered no authority to support severing a single injury into separate components as would be required in this case.

Comments and Conclusions:

This case represents an interesting effort to evade the exclusive remedy provisions in workers’ comp. A successful plaintiff’s result could potentially have expanded the ability to file civil actions whenever an employee took home something from work that eventually contributed to a work injury. Think a carpenter who receives permission to take home a tool and later files both a WC injury claim and a civil action against his employer for allowing him to use a work tool at home that resulted in injury. The potential combinations are endless for such scenarios.

Luckily, with this case the exceptions noted by plaintiffs in their brief will remain isolated and not expanded under this ruling.

Cumulative Trauma (CT) – The "Wearing Out" Disease

It is time to revisit and re-evaluate the value of this statutory condition (L/C 3208.1), which is rapidly becoming yet another undue burden on both employers as well as the workers' compensation system. Cumulative Trauma claims are currently being used, and in many instances abused, by disgruntled employees who are no longer on the payroll. By filing Post-Termination Cumulative Trauma claims, employees are circumventing the legitimate needs of businesses to make personnel decisions based on the employer's current financial situation and needs.

One need only look at the increase in Cumulative Trauma claims that are being filed after an employee has been laid off. While there has been no specific injury that they can point to, many are now claiming that “work” has worn them out and that they are therefore entitled to even more money than that which was bargained for as a part of their employment agreement.

I would not argue that there are no real and viable events that can lead to a compensable situation. Asbestosis would be the best example of an occupational disease that was unknown to either management or their employees for many years. Litigation over asbestosis has been ongoing since then, and I believe that the compensation awarded to injured workers in such cases is justified.

However, when an employee who is hired to do a job that produces no discernible injuries and who has been laid off for legitimate, non-discriminatory reasons is able to work around the system by claiming a cumulative injury, it is time to reassess the value of that part of the Labor Code. We must decide if both parties to this equation are being properly served. Or, is this an abuse of the system that has been allowed to fester too long?

As a starting point for this discussion, when someone is hired for a job whether it is for either brain or brawn, the employer is taking on the whole person as he/she finds them. When the employee arrives at the jobsite, he/she does not simply place their body in the corner to rest while some mysterious spirit does their job. Employers hire the entire package as he/she finds them and is responsible for same. I would then point out that whether or not we like it, all of us are “wearing-out” as the years pass. The question then is, “Why should an employer be responsible for the normal aging process vs. being responsible for a specific injury?” I argue that they should not.

I therefore offer three possible options for consideration. Any or all of these will allow legitimate cumulative injuries to be raised as part of the work bargain while at the same time making employees responsible for their own “wearing out.”

  • Take “cumulative” claims out of L/C [Section 3208.1(b)] so that it reads: “An injury may be either specific or cumulative occurring as the result of one or a series of incidents or exposure which causes disability or the need for medical treatment” and then remove cumulative trauma from L/C 5412 and place it under 5411.

    This will allow employees to file a cumulative trauma claim just as they would a specific injury. This would also place the burden of proof on the employee to show, just as they must now with a specific injury. In other words, what extraordinary events of employment occurred thereby showing how this cumulative trauma is more than just part of the normal “wearing out/aging” process we all face every day.

  • Change the definition of a Cumulative Trauma injury to more closely mirror that of psych/stress claims (L/C 3208.3). In other words, let the employee show how the preponderance of actual work, absent the normal aging process, had caused a “disability” which should be covered.
  • Since the employer is hiring the entire package, we should set up a “depletion” allowance funded by the employee. There should be a percentage taken from each dollar earned which is placed in a fund similar to a 401K. It will belong to the employee and will be portable so that it follows him/her throughout their working career. At the time they become eligible for Social Security, they would have access to this additional fund of dollars. This would result in taking the burden of the normal aging process off the backs of employers.

Regardless of which of these or any others the legislature feels would be the best solution to this growing problem, the real point is that this is currently just another further drain on employers and therefore the California economy and needs to be addressed.