Decedent died from mesothelioma. His employment included Longshore-based jobs. Following Decedent’s death, his widow requested workers’ compensation benefits under the Washington Industrial Insurance Act (“WIAA”). Washington’s Board of Industrial Insurance Appeals denied her claim for benefits. On appeal, the Department of Labor and Industries opposed the widow’s claims. Specifically, the widow argued that “she is entitled to WIAA benefits because her husband’s last injurious exposure to asbestos occurred when he was employed by a non-maritime employer covered by the WIIA.” Further, the widow argued that the Department violated Washington law “when it denied her temporary and interim benefits and when it failed to pursue a [Longshore claim] on her behalf.” The Court of Appeals of Washington, Division 2, held that the widow’s arguments were only partially correct.
State workers’ compensation benefits were not available to the widow “because (1) her husband had worked previously for an LHWCA-covered employer and, thus, [was] not covered by the WIIA; and (2) [Washington’s] last-injurious-exposure rule . . . does not require the Department to pay benefits when the worker has a claim for benefits under maritime law.” In Washington, workers are excluded from permanent workers’ compensation benefits if the Longshore and Harbor Workers’ Compensation Act applies. Nonetheless, Washington’s workers “may receive payment of temporary and interim WIIA benefits under some circumstances.” For instance, Washington law directs the Department to provide “temporary, interim WIIA benefits to a maritime worker who develops an illness as a result of asbestos exposure ‘until it is conclusively determined whether the state or federal workers’ compensation program is responsible for providing benefits to [the] worker.'” The Longshore Act applies if the asbestos exposure was caused at least in part by LHWCA-covered employment.
Finally, the Court of Appeals determined that the Department was not required to pursue a Longshore claim for the widow. Here, the widow “had been entitled to LHWCA benefits until she accepted third-party settlements without the prior agreement of her liable maritime employer.” Thus, the Longshore Act’s Section 33(g) exempted the Department from pursuing a Longshore claim for the widow because the Longshore claim no longer existed.
Long v. Washington State Dept. of Labor and Industries, — P.3d —- (Wash. Ct. App. 2013).
(Note: I originally published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)