Friday, September 18, 2015
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Workers’ Compensation Held Sole Remedy for Worker Claiming Exposure Based on Materials He Took Home
By a MetNews Staff Writer
An employee who may have been exposed to carcinogenic substances both at work and at home while using materials he took from his workplace, has no remedy other than workers’ compensation, the Court of Appeal for this district ruled yesterday.
Div. Four 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.
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.
Justice Thomas Willhite explained:
“While we agree that a triable issue of fact exists whether Melendrez’s exposure to asbestos at home arose out of and in the course of his employment with Ameron, that issue is not material to the viability of Ameron’s defense of workers’ compensation exclusivity. 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’s 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 with Ameron. 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.”
The panel also affirmed an award of more than $80,000 in expert witness fees, upholding the trial judge’s rulings that the defendant’s offer to waive costs in exchange for a dismissal was reasonable and that costs incurred by the defendant in to survey and test pipes at the house were expert witness costs.
The case is Melendrez v. Ameron International Corporation, B256928.
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