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Washington state courts may not use the “substantially certain” test to determine whether an employer’s actions against an injured worker were intentional, again held the Supreme Court of Washington in a split decision. Accordingly, a widow’s contention that her husband’s employer required him to work in an area containing asbestos—he died from mesothelioma—and knew he could contract the disease, since it required nearby maintenance workers to don protective clothing and breathing gear before working in the area, was insufficient to support a wrongful death action. The exclusive remedy provisions of the Washington Workers’ Compensation Act barred the widow’s tort action. Important to the majority’s decision was the fact that medical experts had testified that while asbestos exposure does increase the risk of contracting disease, such exposure is not certain to cause mesothelioma or any other disease.
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.
LexisNexis Online Subscribers: Citations below link to Lexis Advance. Bracketed citations link to lexis.com.
See Walston v. Boeing Co., 2014 Wash. LEXIS 764 (Sept. 18, 2014) [2014 Wash. LEXIS 764 (Sept. 18, 2014)]
See generally Larson’s Workers’ Compensation Law, § 103.04 [103.04]
Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law.
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