Mesothelioma is a rare disease; approximately 60,000 people in the United States are currently living with the disease. Mesothelioma takes decades to develop, but most people who get a mesothelioma diagnosis have one thing in common, namely that they experienced prolonged exposure to asbestos many years ago. The connection between asbestos and mesothelioma is so strong that laws have gone into effect banning the use of asbestos in products and procedures where there is a high risk that people will inhale it and requiring protective equipment for workers tasked with asbestos removal, such as in the renovation of buildings that were first constructed when asbestos was a common building material. Likewise, statutes and case law have outlined the right to seek compensation if your health has been harmed by asbestos exposure. If you currently work or used to work in an industry where asbestos dust was present at your work locations, filing a workers’ compensation might be an option. Filing a workers’ compensation claim to get your mesothelioma treatment paid for has its pros and cons, though. You should not make a decision about the responsible party with whom you will file a claim until after you discuss your options with a mesothelioma lawyer.
Most Mesothelioma Cases Are Due to Occupational Exposure to Asbestos
There are many factors that influence a person’s risk for developing cancer, from age and family history to smoking, drinking, and a history of infection with certain viruses. For example, the human papilloma virus (HPV) increases the risk of cervical cancer, the Epstein-Barr virus is connected to an elevated risk of certain types of lymphoma, and Kaposi’s sarcoma is associated with human gamma herpesvirus 8 (HHV-8), although this type of cancer usually occurs in patients who not only have been exposed to HHV-8, but whose immune systems have been weakened by the human immunodeficiency virus (HIV). Mesothelioma, however, almost exclusively occurs to people who have been exposed at length to asbestos dust.
Mesothelioma diagnoses in the United States tripled between 1973 and 1984, with most cases occurring in men who had worked in mining, construction, shipbuilding, and other industries where they had been exposed to asbestos on the job between the 1940s and the 1970s. Although laws restricting the use of asbestos were enacted in the 1980s, the damage had been done, and many workers who had retired from these industries were diagnosed with mesothelioma in subsequent decades. Today, approximately 80 percent of mesothelioma cases can be clearly attributed to occupational exposure to asbestos.
People diagnosed with mesothelioma have the right to sue the companies responsible for exposing them to asbestos dust. If you are sure that your asbestos exposure occurred in the context of your job, then you might be eligible to file a workers’ compensation claim to get the employer for whom you worked when you were exposed to asbestos to pay for your mesothelioma treatment.
A Brief Overview of Workers’ Compensation Laws
Workers’ compensation is a separate branch of law from personal injury law. Each state has its own workers’ compensation laws, but they all require employers to pay for the treatment of injuries sustained by employees at the work location during the employee’s work hours. All businesses except the smallest ones must carry workers’ compensation insurance, although eligibility requirements for exemption vary from one state to another. Subcontracting of projects is common in the construction industry, and if your employer is a subcontractor and does not have workers’ compensation insurance, some states allow you to file a workers’ compensation claim with the general contractor who hired your employer as a subcontractor.
Workers’ compensation benefits cover not only accidental traumatic injuries (such as bone fractures resulting from accidental falls), but also repetitive strain injuries, such as carpal tunnel syndrome, and occupational diseases. An occupational disease is one for which the conditions of your work place you at elevated risk, even when your employer is in compliance with safety regulations. Therefore, the list of occupational diseases varies from one occupation to another. Even though schools, healthcare settings, and in-person retail and restaurant jobs place you in close contact with a lot of people, meaning that you are at higher risk of catching a cold or stomach virus at work at one of those jobs than people with more solitary jobs, such as software engineers or people who work in small offices, highly contagious infectious diseases usually do not count as occupational diseases because it is almost impossible to prove that you were infected at work. Many types of cancer count as occupational diseases for one or another occupation if those occupations require you to work near carcinogenic substances. Mesothelioma is an occupational disease for people in occupations that involve exposure to asbestos dust, such as mining and building renovation.
According to federal and state employment laws, filing a workers’ compensation claim is a protected activity. This means that it is against the law for your employer to fire you or take any other adverse action against you in retaliation for filing a workers’ compensation claim.
Even if many years have passed since you last worked at the job where you were exposed to asbestos, you might still be able to get your mesothelioma treatments covered under the employer’s workers’ compensation coverage. If you are not sure whether you are still eligible to file a workers’ compensation claim, a mesothelioma lawyer can help you find out.
How Workers’ Compensation Claims Are Different From Personal Injury Claims
Filing a workers’ compensation claim is a lot more like filing a health insurance claim than it is like a personal injury lawsuit. You do not need to prove that your employer is at fault for the injury or illness, much as, when you file a health insurance claim, you do not have to prove that some other party caused your health problem; you only have to show that the treatment was medically necessary.
In a personal injury claim, by contrast, you must prove that the defendant is directly responsible for causing your illness or injury. In most mesothelioma lawsuits, the defendant is the company for which you were working when you were exposed to asbestos dust for a long period of time or at high concentrations. More specifically, you must prove four claims:
- The defendant had a duty of care not to cause your ill health. This is easy to prove, as occupational safety laws have been on the books since before the first mesothelioma lawsuits were filed.
- The defendant breached the duty of care by causing you to be exposed to asbestos. Here, too, the law is on your side. Today, the dangers of asbestos are so widely known that it is banned in most contexts, and there is evidence that industries that used asbestos knew about the dangers long before they stopped using it, exposing many thousands of workers to dangerous levels of asbestos dust; some of these workers later developed mesothelioma, and some of them filed and won mesothelioma lawsuits.
- The defendant’s negligence (breach of the duty of care) directly caused your mesothelioma. You will need to prove that you were exposed to asbestos, as this is what causes most cases of mesothelioma. You must also prove that the defendant knew or reasonably should have known about the asbestos exposure.
- The mesothelioma is the direct cause of your financial losses. In this case, your medical bills and, if applicable, your early retirement from the workforce due to your illness, make the point clearly.
What Do You Have to Lose by Filing a Workers’ Compensation Claim?
The bad news is that you cannot file both a workers’ compensation claim and a mesothelioma lawsuit; you must choose one or the other. If you file a workers’ compensation claim and receive any money as a result of it, even if the money is not enough to cover the entire cost of your treatment, you lose the right to file a mesothelioma lawsuit against the employer that paid your workers’ compensation claim. Meanwhile, workers’ compensation claims are faster and simpler because you do not have to prove negligence on your employer’s part; you must only prove that you worked in an industry where mesothelioma is considered an occupational disease.
Your decision to pursue one type of legal action or the other will depend not only on how much you are willing to fight but on how much money you have lost because of your mesothelioma and your chances of recovering this money through a workers’ compensation claim. Workers’ compensation claims sometimes compensate you for your inability to work, but the amount of money you can get through workers’ compensation disability benefits is not as much as you can get by being awarded damages for past and future lost income in a personal injury lawsuit. Your mesothelioma lawyer can help you decide on the best course of action for seeking compensation for your mesothelioma-related losses, giving the individual circumstances of your case.