Workers’ Compensation and Asbestos-Related Illness

There is no question that asbestos-related disease is one of the biggest job-related cancer concerns in the U.S. today, comprising one of the largest percentages of occupational deaths and related costs.
That said, the question of whether asbestos disease sufferers should file a Charlotte workers’ compensation claim is one that should be approached carefully. One of the general principles of workers’ compensation law is that by filing for these benefits, workers give up the right to sue their employer for their occupational injuries.

In general for a lot of people, the trade-off is worth it because they don’t necessarily have to prove that the employer was negligent or at-fault for the injury, only that the injury occurred at work or arose out of the conditions of employment. Workers’ compensation claims also tend to be less costly than civil litigation and are generally not as drawn-out of a process. Legislators have designed it to be this way for workers to quickly receive benefits, recover, and hopefully return to the workforce as soon as possible.

However, those who have suffered some illness relating to asbestos exposure may want to proceed with caution. The reason is that the kind of illnesses that asbestos causes – lung cancer, asbestosis and mesothelioma – may be permanent and, in the case of mesothelioma, terminal. Given the gravity of the illness (or even the potential future illness, as these conditions often take years to fully be revealed), workers’ compensation may not be sufficient in order to compensate you for this type of ailment, which in many cases is considered catastrophic.

Workers’ compensation is designed to benefit workers who are injured or develop diseases while on the job. It can provide for medical expenses and a portion of your pre-illness wages. In North Carolina, that amount is capped at a little over $800 weekly.

By contrast, compensation amounts obtained by the asbestos industry (manufacturers, distributors, handlers, etc.) may significantly exceed that. There are some cases in which you can file a claim with an asbestos bankruptcy trust (created when companies were forced to file for bankruptcy and set aside funds for future illness claims) or through civil litigation.

Because of the complexity of these kinds of cases, it’s important to work with an attorney who has experience in handling both workers’ compensation and personal injury. We are well-positioned to advise you of your options moving forward – whether that involves filing for workers’ compensation or holding out for a civil settlement or verdict.

Whatever you decide, one of the key points is that you must act quickly. Personal injury actions must be filed within three years to the date of the illness or injury and workers’ compensation claims have to be filed within two years. Those limitations are often tolled in cases of asbestos-related work injuries because asbestos-related illness typically does not become apparent until many years later. (That’s why so many mesothelioma lawsuits are filed by those who worked for the asbestos industry decades ago, and may already be retired.)

Still, that often won’t stop defendants from attempting to fight a claim on the basis of the statue of limitations, and you don’t want to be stalled on a technicality.

This was the argument that the defense attempted to use in the recent case of Dabaldo v. URS Energy & Construction, et al., reviewed by the Delaware Supreme Court. The plaintiff had previously worked for an oil refinery for 34 years, retiring in 2001. A chest x-ray taken in 1992 reportedly revealed material in his lungs that was “suspicious for asbestos exposure.” However, he wasn’t actually diagnosed with a disease at that point. He underwent a series of lung function tests, which returned normal results.

Further x-rays conducted in 1999 indicated a “known history of asbestosis,” despite the fact that he hadn’t actually been diagnosed with the disease.

Updated chest x-rays conducted in 2005 suggested the condition had worsened. Two years later, he ran into a co-worker, who mentioned that he had been diagnosed with asbestosis and that he should contact a particular law firm. He did. A subsequent exam indicated that he did have asbestosis.

It was at this point that he filed a lawsuit against his former employer.

The employer attempted to argue that the claim was time-barred (beyond the statute of limitations). This argument was initially accepted by the trial court, but later reversed upon appeal, leaving the plaintiff free to pursue the claim.

Before you file for workers’ compensation relating to an asbestos-related disease, make sure your legal team explains all of your options.

If you have been diagnosed with a work-related illness in Charlotte, contact the Lee Law Offices at 800-887-1965.

Additional Resources:
Dabaldo v. URS Energy & Construction, et al., Feb. 7, 2014, Delaware Suprem Court

More Blog Entries
Worker Compensation and Statute of Limitations, Jan. 21, 2014, Charlotte Workers’ Compensation Lawyer Blog

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