Arkansas: Former Employee’s Attempt to Cure Untimely Filing of Claim With Separate Filing of Civil Action Was Unsuccessful

Arkansas: Former Employee’s Attempt to Cure Untimely Filing of Claim With Separate Filing of Civil Action Was Unsuccessful

In a split decision, the Supreme Court of Arkansas recently issued a writ of prohibition in a civil action filed by a former employee against his former employer for damages associated with his bladder cancer that he contended arose from exposure to harmful elements within the workplace.  The employee, who worked for defendant from 1959 to 1989, contracted bladder cancer in 2004.  Initially, he filed an occupational-disease claim for benefits before the Commission, alleging that he "was exposed to asbestos while on the job causing cancer." The law judge applied the statute of limitations pertinent to asbestosis and found that the employee's claim was time-barred. See Ark. Code Ann. §§11-9-601(g)(1)(B) (Repl. 2012); Ark. Code Ann. § 11-9-702(a)(2)(B) (Repl. 2012).  Rather than appeal, he filed a separate civil action against the employer, alleging he "was exposed to and did inhale coal tar pitch, coal tar volatiles, and polycyclic aromatic hydrocarbons (PAHs)," which caused his bladder cancer and his disability.  The employer argued that the civil action against it was barred by the exclusive remedy provisions of the state’s workers’ compensation act.  The employee countered that his occupational disease was not covered under the Act—his cancer had been contracted outside the statute of limitations—and he was, therefore, free to seek common-law remedies in circuit court.  The majority of the high court agreed with the employer, but not for the reasons it had suggested were controlling.  Noting that the initial claim before the Commission asserted that the employee’s cancer had been caused by asbestos exposure and that in the complaint in circuit court he had alleged that his bladder cancer was caused by exposure to "coal tar pitch, coal tar pitch volatiles, and polycyclic aromatic hydrocarbons (PAHs)," the majority held that the claim presented in the circuit court was not the same one adjudicated before the law judge. The variance was critical, primarily because the limitations periods for occupational diseases were different, depending on the type of exposure.  Relying upon the “well-established” rule of exclusive jurisdiction—that any claim for occupational disease as a result of exposure must first be presented to and decided by the Commission, the majority held that because the employee's claim had not been submitted to the Commission, the circuit court lacked jurisdiction to decide this case.

Reported by Thomas A. Robinson, J.D.

LexisNexis Online Subscribers: Citations below link to Lexis Advance. Bracketed citations link to

See Reynolds Metal Co. v. Circuit Court of Clark County (Kirksey), 2013 Ark. 287, 2013 Ark. LEXIS 324 June 27, 2013) [2013 Ark. LEXIS 324 June 27, 2013)].

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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