Monday, December 21, 2015
Page 3
S.C. Denies Plaintiff Review in Toxics Exposure Case
Courts Agree Worker Sickened by Materials He Took Home Can Only Seek WCAB Benefits
By a MetNews Staff Writer
The California Supreme Court has left standing a ruling that an employee who may have been exposed to carcinogenic substances, while using materials he took from his workplace, has no remedy other than workers’ compensation.
The justices, at their weekly conference in San Francisco Wednesday, unanimously denied the plaintiffs’ petition for review in Melendrez v. Ameron International Corporation (2015) 240 Cal. App. 4th 632. They also denied depublication requests by the plaintiffs and by Consumer Attorneys of California.
Div. Four of this district’s Court of Appeal on Sept. 17 affirmed Los Angeles Superior Court Judge Emilie Elias’s grant of summary judgment to Ameron International Corporation in an action brought by the family of Lario Melendrez.
Years of Exposure Claimed
The plaintiffs claimed in the complaint that Melendrez, who died of mesothelioma in 2011, was exposed to asbestos during the 24 years he worked for the defendant. They said that in addition to his exposure at work, he was exposed at home from working with Bondstrand pipe that the company allowed him to take home for his personal projects.
Elias ruled that because Melendrez’s right to take pipe home with him was incident to his employment, the workers’ compensation exclusivity rule extended to any exposure that occurred at his house, and the Court of Appeal affirmed.
C.A. Ruling
Justice Thomas Willhite explained:
“It is undisputed that Melendrez’s exposure to asbestos in his employment with Ameron substantially contributed to his mesothelioma. Therefore, under the contributing cause standard applicable in workers’ compensation law, his mesothelioma is covered by workers’ compensation, and his separate exposure at home does not create a separate injury outside workers’ compensation coverage.”
The justice said the concept of “contributing cause” had been interpreted broadly. He cited a Supreme Court decision holding that a firefighter’s widow was entitled to workers’ compensation death benefits because his inhalation of smoke during his 32 years of employment was probably a contributing cause of his fatal lung cancer.
The court in that case rejected the argument that the decedent having smoked a pack of cigarettes a day for 42 years precluded an award of benefits, saying it was impossible to determine whether smoking or his employment “actually” caused his death, given the likelihood that both contributed.
Willhite wrote:
“In the present case…mesothelioma is covered by workers’ compensation. It is undisputed that a substantial contributing cause of Melendrez’s disease was his exposure to asbestos from the manufacture of Ameron’s Bondstrand pipe in the course of and arising out of his employment….Although Melendrez was also exposed to asbestos from working with scrap pipe at home, that exposure does not create a separate injury outside workers’ compensation coverage that is compensable in tort law.”
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