The 1975 Cutoff: When Can You Sue Your Employer for Asbestos?

The Workers’ Comp Bar: Why Most Employees Can’t Sue

In Louisiana, the “Workers’ Comp Bar” usually prevents employees from suing their employers for work-related injuries. In exchange for “guaranteed” medical and wage benefits, the employee gives up the right to sue for pain, suffering, and punitive damages. However, as the case of Royce Thomas v. Anco Insulations proves, this bar only applies if the disease was actually covered by the Workers’ Comp Act at the time of the exposure.

Pre-1975 Exposure: The “Sweet Spot” for Tort Claims

Before 1975, Louisiana’s Workers’ Compensation Act did not list lung cancer or mesothelioma caused by asbestos as covered “occupational diseases.” This is a massive legal advantage. If your “injury-producing event” (the exposure) happened between 1952 and 1975, you are not restricted to workers’ comp. You can file a full-blown personal injury lawsuit against your employer, seeking significantly higher damages than the workers’ comp system allows.

Lung Cancer vs. Asbestosis: The Battle Over Causation

In the Thomas case, the employer tried a clever defense: they argued his lung cancer was actually caused by asbestosis (which was covered by workers’ comp) rather than asbestos exposure (which wasn’t). This distinction is vital. Winning these cases requires a legal team that can work with medical experts to prove the specific pathology of the disease to ensure the claim stays in the more lucrative tort system.

Most Louisiana workers are told that if they get sick on the job, ‘Workers’ Comp’ is their only option. For victims of asbestos exposure, following that advice could be a multi-million dollar mistake. Because mesothelioma takes decades to develop, your right to sue your employer directly depends on the laws that existed forty or fifty years ago. In the landmark Thomas v. Anco case, the court confirmed that for many workers exposed before 1975, the ‘Workers’ Comp Bar’ simply doesn’t exist.

In the case of employee’s claiming injuries due to asbestos exposure, Louisiana’s Workers Compensation Act can may be tricky to pinpoint. Because asbestos usually manifests itself years after initial exposure, deciding which statute applies, and thus which injuries are covered, may be difficult. The time at which a claim arises is usually measured from the injury producing event, that is in this case, the initial exposure to asbestos.

The injury producing event, in addition to providing a timeline for a cause of action, also determines the law controlling the event. Laws are amended and changed over time, so the date of asbestos exposure actually determines which statute will be applied to the injury claim.

In 1996, Royce Thomas filed a claim against his former employer, Anco Insulations (“Anco”). He claims that his job, from 1968 to 1971, exposed him to large quantities of asbestos, and he contracted lung cancer and asbestosis as a result of the exposure.

His employer challenged the claim, alleging that the injuries were covered under workers’ compensation. This is where the importance of the injury producing event becomes evident. Royce claimed that his lung cancer and asbestosis were related to pre-1975 exposure to asbestos. Under Louisiana law at that time (pre-1975), asbestos was not a substance covered under the Workers’ Compensation Act. Therefore, Royce had a valid cause of action because the injury producing event occurred at a time when asbestos, and lung cancer for that matter, were not injuries covered by the state’s Workers’ Compensation Act.

Determining the injury producing event is very important to a claim, especially one involving asbestos or mesothelioma. Had the asbestos exposure occurred after 1975, Royce Thomas’ would have been bared from filing a claim against Anco because the statute was amended to include asbestos, and he therefore would have been entitled to complete relief under Workers’ Compensation.

Cases involving asbestos exposure also lend themselves to debate over the root cause of the injury. In the above case, Mr. Thomas claimed that his injuries were caused by asbestos exposure, a substance not covered under the Workers’ Compensation Act.

The employer, however, argued that Thomas’ lung cancer was actually caused by asbestosis, a disease explicitly covered by the Act. [Note: Asbestosis is a chronic inflammatory medical condition that effects the lung tissue]. Determining the injury producing event, whether lung cancer was caused by asbestos exposure or asbestosis, can help a court decide whether the injured party has a right to relief under Workers’ Compensation or not. Establishing the exact year of exposure is critical to the Significant Exposure Rule used to date asbestos injuries. Bypassing the Workers’ Comp Bar requires specific evidence of asbestos exposure at the job site.

The timing of your asbestos exposure is the most important fact in your case. It determines whether you are limited to a small administrative check or if you can hold your employer fully accountable in a court of law. If you or a loved one worked in an industrial setting between 1952 and 1975 and are now facing a diagnosis, you need a firm that understands these historical ‘loopholes.’ Contact the Berniard Law Firm today for a free review of your work history.