October 30, 2018
Recently, in Robert E. Carson, et al. v. 3M Company, et al., PC-2011-1046. (Oct. 22, 2018), the Court (Gibney, J.) granted a defendant’s motion for summary judgment after concluding that there was no genuine issue of material fact with regard to the Workers’ Compensation Act’s (WCA) applicability. Specifically, the case addressed the exclusivity provision of the WCA in Rhode Island. The case was commenced by Dorothy Carson against multiple defendants in her capacity as the surviving spouse of the Decedent. Decedent Ralph Carson was employed as a boiler maker by ExxonMobil from 1946 to 1971. In 2008, he was diagnosed with pleural mesothelioma and died a year later at the age of eighty-four.
Defendant ExxonMobil Oil Corporation moved for summary judgment, asserting it was immune from the civil suit that Plaintiffs filed against it under the exclusivity provision of the Workers’ Compensation Act. Defendant argued that mesothelioma is an occupational disease for the purpose of the WCA. Decedent contracted the disease while employed by Defendant, and he failed to preserve his common law right to sue. Defendant further argued that Plaintiff Dorothy Carson’s claim for loss of consortium must also fail, because its viability depended on the underlying claim.
In their objection to Defendant’s motion for summary judgment, Plaintiffs conceded that mesothelioma was an occupational disease for the purposes of WCA and that Decedent was an employee of Defendant. However, Plaintiffs argued that worker’s compensation benefits were inappropriate in this case. Plaintiffs further argued that applying the exclusivity provision would be contrary to legislative intent, and that their suit was not barred just because Decedent did not experience a loss of earning as a result of his disease.
The court determined that mesothelioma, although absent from a list of compensable personal injuries under the statute, was nevertheless an occupational disease within the meaning of the WCA, and that loss of earning capacity does not have to be proved as a threshold issue when determining the exclusivity provision. Next, the Court considered whether Decedent waived his common law right to sue. Here, no genuine issue of fact existed with respect to whether or not Decedent preserved his common law right to sue. The WCA provides the exclusive remedy for injured workers. However, there is a narrow exception that allows employees to retain their common law right to sue. This would be applicable if an employee provided the employer with written notice within ten days of the employee’s date of hire or within ten days of the time the employer becomes subject to the WCA, in order to waive his rights to recovery under the act and preserve the right to sue at common law. Absent a waiver, Decedent was subject to the WCA. Lastly, the court ruled that Plaintiff Dorothy Carson’s derivate claim for loss of consortium also failed as a matter of law, because her claim was derivative in nature and was dependent upon her injured spouse’s right to recovery.
When defending an asbestos case in Rhode Island, counsel should thoroughly analyze and investigate any possible interplay between personal injury and workers’ compensation cases and make a determination, where applicable, as to whether her client may defeat a liability case early on based on the exclusivity provision of the workers’ compensation act.