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September 18th, 2014

Washington State’s High Court Upholds Traditional Interpretation of Worker’s Comp Law

With a 5-4 decision today, the Washington Supreme Court narrowly but laudably preserved the integrity of the workers’ compensation system there by resisting an asbestos plaintiff’s attempt to alter longstanding interpretation of relevant state law.

In Walston v. The Boeing Company, et al., the plaintiff had cited a provision of the Evergreen State’s Industrial Insurance Act (IIA), enacted more than a century ago, that allows employees to forsake the swift, no-fault compensation system in order to pursue a tort claim if they can show that their employer deliberately injured them.

In earlier cases, the Washington high court had interpreted the IIA’s deliberate intent exception narrowly, holding that a deliberate intent to injure means the employer had actual knowledge that an injury was certain to occur and willfully disregarded that knowledge.

But Walston sought a new, radically expansive interpretation of the “deliberate intention” exception.  Walston asked the court to find that any employer who is engaged in hazardous materials operations deliberately intends to injure its employees because there is a possibility that such work could someday lead to disease.

Thankfully, the majority wasn’t swayed and reaffirmed earlier precedent, holding that risk of disease is insufficient to meet the deliberate intention standard.  The court said that the risk of injury — even substantial risk — does not equal malice.  Further, the court held that an asymptomatic cellular-level condition is not itself a compensable injury.   An asymptomatic cellular-level condition simply creates a risk of compensable injury.

Thus, “even if Boeing had actual knowledge that exposure to asbestos would cause asymptomatic cellular-level injury, the…deliberate intention standard would not be met,” wrote Justice Susan Owens for the majority.

It’s not every day that the Washington Supreme Court issues such a sound decision, so this one may automatically qualify for recognition among “Points of Light” in the upcoming edition of ATRA’s annual Judicial Hellholes report due for publication in mid-December.  Meanwhile, today’s interpretation of the IIA’s deliberate intention standard is consistent with the legislature’s intent and several generations of judicial interpretation.

And as ATRA and other interested advocates had argued in an amicus brief, if the plaintiff’s approach had been embraced, it would have effectively eviscerated the IIA’s exclusive remedy construct in asbestos and other toxic tort cases, and subjected Washington employers to full-blown tort suits stemming from any number of hazardous, occupational exposures.  In particular, Washington employers would have faced the mesothelioma lawsuits that are ginned up continuously by asbestos law firms’ television and Internet ads.

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