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Are Workers with Mesothelioma Limited to Workers’ Compensation?

Normally, when a worker acquires an occupational disease, such as asthma, silicosis or even lung cancer, workers’ compensation is the exclusive remedy. Workers’ compensation pays for all reasonable and necessary medical expenses plus benefits for loss of income, but it does not compensate a worker for pain and suffering or the loss of quality of life. Those damages are only available when a worker files a civil lawsuit. Unfortunately, workers’ compensation bars most lawsuits against an employer. Although workers’ comp does permit lawsuits against third parties who might be liable for the illness, in most cases, the employer is the actual wrongdoer. The exclusive nature of workers’ comp would deal a devastating blow to workers with mesothelioma, if not for the courts willingness to consider a legal exception for “deliberate intention.”   

In a West Virginia case entitled Mandolitis v. Elkins Industries, Inc., the state Supreme Court ruled that a worker can receive personal injury damages when an employer has shown the deliberate intent to do harm. To prove deliberate intent, a worker must present convincing evidence the employer acted consciously to cause injury or death, or evidence that satisfies these five statutory elements:

  • A specific unsafe condition existed that presented a high risk of serious injury.
  • The employer had actual knowledge of the unsafe condition.
  • The condition was a violation of a state or federal regulation.
  • The employer nevertheless exposed the worker to the unsafe condition.
  • The employer suffered harm or death from the condition.

Depending on the facts of a worker’s employment, it may be possible to prove that the circumstances which caused the mesothelioma fit the legal definition of deliberate intent.

The difference between workers’ compensation benefits and damages from a personal injury lawsuit can be huge. If you or a loved one is suffering from mesothelioma, it is well worth your while to consult with an experienced mesothelioma attorney. To schedule a free consultation with the Prim Law Firm, PLLC, call us at 304-721-4619 or contact us online.

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