Federal: Complaint Alleging Damages From Take-Home Exposure to Asbestos Barred by Exclusive Remedy

A federal court dismissed a complaint filed against Weyerhaeuser Co. arising out of plaintiff's exposure to asbestos and a related disease, malignant mesothelioma, while employed at a Weyerhaeuser facility that used asbestos products in the manufacture of fireproof doors. Finding the plaintiff’s action was barred by the exclusive remedy provisions of the Wisconsin Workers’ Compensation Act (WCA), the court observed that plaintiff contended that the WCA did not govern plaintiff's injuries because the injury was not sustained while plaintiff was “performing service growing out of and incidental to his or her employment” and because “[p]laintiff's community exposures and take-home exposures do not as a matter of law . . . arise from the ‘course of employment’” [a requirement of  Wis. Stat. § 102.03(1)(c)(1)].  The court indicated that while plaintiff asserted in an opposition brief that the "exposures occurred during plaintiff's activities outside the workplace," the allegations in the complaint—at least some of them—directly contradicted that assertion. The federal district court cited Silkwood v. Kerr-McGee Corp., 667 F.2d 908 (10th Cir. 1981), rev'd on other grounds, 464 U.S. 238, 104 S. Ct. 615, 78 L. Ed. 2d 443 (1984), where the Tenth Circuit found Oklahoma's Workers' Compensation Act provided the exclusive remedy for injuries caused by exposure to radiation from plutonium found at plaintiff's apartment, where plaintiff was an employee at a nuclear fuel processing plant.  That the plaintiff’s residence was contaminated by plutonium did not alter the fact that the plutonium came from her working in and around the substance.  The same could be said about the instant case.  It was implausible to suggest that the asbestos only caused plaintiff harm once he left the employer’s premises and went home.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is a leading commentator and expert on the law of workers’ compensation.

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See Boyer v. Weyerhaeuser Co., 2014 U.S. Dist. LEXIS 117062 (W.D. Wisc., Aug. 22, 2014) [2014 U.S. Dist. LEXIS 117062 (W.D. Wisc., Aug. 22, 2014)]

See generally Larson’s Workers’ Compensation Law, § 100.04 [100.04]

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law.

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