Heather Isringhausen Gvillo Sep. 22, 2014, 1:20pm

OLYMPIA, Wash. (Legal Newsline) – The Washington Supreme Court ruled on Thursday that the exception to the state’s Workers’ Compensation law does not extend to asbestos-related diseases because it is impossible to have absolute knowledge that an injury is certain to occur.

Justice Susan Owens delivered the opinion for the majority, with Justice Charles Wiggins dissenting, addressing provisions in the state’s Workers’ Compensation law, known as the Industrial Insurance Act, IIA.

The majority agreed with the Court of Appeals’ decision that the Boeing Company was immune from a lawsuit because its former employee failed to raise a material question of fact as to whether the defendant had actual knowledge that an asbestos-related injury was certain to occur.

Owens wrote that the claimant must raise such a question in order to pursue a claim outside of the Workers’ Compensation system.

Wiggins, on the other hand, wrote that it is the court’s duty to encourage workplace safety and hold employers accountable when they purposely cause harm to their employees.

“The only way to deliberately produce the disease of mesothelioma is to intentionally and knowingly cause workers to inhale asbestos,” he wrote. “It would undermine the purpose of the statute if an employer could implant a ticking time bomb in an employee’s body and escape liability simply because the particular injury that resulted could not be predicted with absolute certainty.”

The IIA was created to give employers immunity from civil suit by workers in return for giving injured workers a “swift no-fault compensation system for injuries on the job.”

However, employees with injuries resulting from the “deliberate intention” of an employer are not exempt from filing a tort claim.

In the case at hand, claimant Gary Walston worked at The Boeing Company’s hammer shop in Seattle from 1956 until 1992. He fabricated metal airplane parts. While he claims he worked with and around asbestos-containing products throughout his career, there was a time period in 1985 where crews were repairing pipe insulation containing asbestos directly above Walston’s work station.

The insulation workers wore what Walston’s co-workers called “moon suits” for protection, but hammer shop workers continued working without protective clothing or respirators.

The hammer shop workers allegedly requested protection but were told to return to work but try to avoid working directly under the overhead repairs as dust and debris fell on the workers below.

Walston was diagnosed with mesothelioma in 2010. He and his wife filed suit against his employer. Boeing moved for summary judgment dismissing Walston’s claims, arguing employer immunity under the exclusivity provisions of the IIA.

The majority reached its conclusion by applying the Birklid decision, which holds that “deliberate intention” includes situations when an employer knew an injury was certain to occur but chose to disregard that knowledge.

As a result, the decision also holds that acts that have a substantial certainty of producing injury and negligence are not sufficient to meet the standard.

Because asbestos exposure is not certain to cause an injury, but only causes a risk of injury, it fails to meet the Birklid standard.

Walston argued that the “deliberate intention” standard should be satisfied as long as Boeing knew someone is certain to be injured, implying that because a co-worker had already been injured from his asbestos exposure, Boeing knew injury was certain to occur. The Supreme Court rejected the argument.

The majority also rejected Walston’s argument that Boeing had actual knowledge of certain injury because individuals exposed to asbestos are injured at the cellular level.

Owens explains that the plaintiff’s experts acknowledge that the asymptomatic cellular-level injury resulting from asbestos exposure only created a risk of injury, meaning the Birklid deliberate intention standard is not met.

Wiggins, however, disagreed with the majority, concluding that Boeing knew of the hazards associated with asbestos exposure but still forced the claimant to work under a “shower of asbestos over his objection.”

“Walston’s evidence, including expert testimony that inhaling asbestos causes certain injury to the lungs, raises questions of fact as to whether Boeing knew its employees were being injured and willfully disregarded that knowledge,” Wiggins wrote.

Wiggins explains that when defining “injury” in the deliberate intent exception, disease is included, meaning the exception should stretch to circumstances when an employer knowingly exposes workers to conditions certain to produce a disease.

“Diseases differ from traditional workplace injuries,” Wiggins wrote. “There is no way to know with absolute certainty that an exposed individual will even contract a disease. Moreover, most diseases are caused by multiple factors, which can make it difficult to prove causation.”

Furthermore, given the nature of asbestos and the latency period before diseases are diagnosed, it is impossible to know how each exposure will affect an exposed individual, the dissenting opinion says.

“Thus, I would hold that certainty does not mean absolute certainty that a particular plaintiff will develop a particular disease,” Wiggins said.

Wiggins added that requiring 100 percent certainty in order to meet the Birklid standard would “read the statutory exception out of existence in the context of disease – which, given its inclusion of disease in the definition of injury for purposes of the exception, would violate the legislature’s clear intent.”

He explains that the Birklid standard was put in place to encourage workplace safety while balancing the interests of employers and employees.

“At the same time,” Wiggins wrote, “it furthers the general tort principle that injuries are to be compensated and antisocial behavior is to be discouraged.”

“[T]he court should be more, not less, vigilant in protecting workers when employers deliberately expose their workers to asbestos – a known deadly substance,” he added.

Ultimately, the majority affirmed the lower court’s ruling and remanded the case for entry of an order granting summary judgment to Boeing on Walston’s claims.

From Legal Newsline: Reach Heather Isringhausen Gvillo at asbestos@legalnewsline.com

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