Decedent worked as a pipefitter for thirty-five years, and during that time he was exposed to asbestos while working for both maritime and non-maritime employers. While the maritime work was covered by the Longshore and Harbor Workers’ Compensation Act (“LHWCA”), the non-maritime work was covered by the Washington Industrial Insurance Act (“IIA”). Decedent was last exposed to asbestos while working for an IIA-covered employer. Following his death in 2007, his widow filed a claim under both the LHWCA and the IIA for surviving spouse benefits. In 2008, the Washington State Department of Labor and Industries (“Department”) awarded temporary benefits under the IIA, which would stop when the LHWCA started paying benefits. The award of temporary benefits was based on the Department’s finding that decedent was exposed to asbestos in shipyards and considered a maritime employer.
For the most part, the IIA provides workers with their exclusive remedy for work-related injuries. One exception, however, is when the LHWCA applies. In Washington, a worker is excluded from IIA benefits when the LHWCA applies. Despite this exclusion, Washington has codified a temporary solution for injured workers when the LHWCA could apply. The Department will provide temporary benefits for qualifying asbestos-related injuries “until the liable [LHWCA] insurer initiates payments or benefits are otherwise properly terminated under this title.”
The IIA is not the only workers compensation scheme with an exclusivity provision. The LHWCA also provides that benefits under the Act shall be exclusive. See 33 U.S.C. §§ 905(a), 933(i). Nevertheless, it is not entirely correct to say that when the LHWCA applies, the IIA does not. Instead, “if a worker has a claim under federal maritime law, he may nonetheless be covered under [the IIA], but benefits under [the IIA] are temporary.” Gorman v. Garlock, Inc., 118 P.3d 311 (Wash. 2005). Accordingly, the widow was entitled to temporary benefits under the IIA until the LHWCA insurer paid or benefits under the LHWCA were properly terminated.
In addition to the exclusivity provision analysis, the court addressed the last responsible employer rule, as codified and applied in Washington. The last responsible employer rule assigns responsibility to the last insurer at risk. Washington’s last responsible employer rule cannot be used to overcome the exclusivity of the LHWCA.
Olsen v. Washington State Dept. of Labor and Indus., — P.3d —- (Wash. Ct. App. 2011).
(Note: I originally published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)
