Recently a court in Arkansas ruled that the estate of a worker, Guy Hendrix, who died from an asbestos-related illness could not bring a civil suit against the workers’ former employer, even though the worker could not get a remedy through the workers’ comp system. In Arkansas, there is a three-year filing window for asbestos disease claims. There are precedents in Arkansas, which allowed workers to file civil action against their employers if they had no remedy available through workers’ comp.
Hendrix had spent almost 30 years working for Alcoa, an aluminum manufacturer, before retiring in 1995. In June 2012, he was diagnosed with mesothelioma, a rare form of cancer linked to asbestos exposure. Hendrix filed a workers’ comp claim the following September, which in turn was denied because of the statute of limitation. The court found that the date of Hendrix’s disablement was June 2012, 17 years after his last exposure to asbestos, thus the claim was time-barred. Hendrix did not appeal from the decision before he died in January 2013 at the age of 69.
His estate filed a wrongful death and survival action against Alcoa. Alcoa moved to dismiss the lawsuit, asserting that the Arkansas Workers’ Compensation Commission had exclusive jurisdiction over any claim related to Hendrix’s illness and subsequent death. The trial judge agreed and granted Alcoa’s motion. Hendrix’s estate appealed to the Arkansas Supreme Court. The estate insisted that Hendrix had no remedy under the workers’ comp system, and the precedents from Arkansas Supreme Court should allow them to pursue a civil claim against Alcoa. Alcoa, however, responded that occupational diseases related to asbestos exposure are covered by the workers’ comp system, so there was a workers’ comp “remedy” available to Hendrix. Hendrix was unable to obtain a recovery because his claim was time barred.
The majority of the Arkansas Supreme Court held that the fact that Hendrix could not bring a viable comp claim did not mean that he did not have a comp remedy available to him. He had a remedy that would have been available, were it not for the application of the statute of limitation. The Court emphasized that “a temporal limitation on a recovery” is not the same thing as the “absence of a remedy.” The majority acknowledged that the remedy afforded to Hendrix “certain rings hollow under the facts of this case,” especially since it is well known that the mesothelioma has a long latency period. While the majority acknowledged that this ruling smacks unfairness, they said they could not refuse to give effect to the limitations imposed by the General Assembly just because they “operate harshly.”
The end result of this case was that a worker was obligated to file a claim for a condition he did not even know he had and that is an impossible burden to meet. Attorneys representing the estate suggested that Arkansas General Assembly could decide to eliminate the statute of limitation period, or at least extend them, so that workers with asbestos-related diseases can actually have a shot at getting a comp remedy. Yet, other attorneys are less optimistic that the legislature is probably likely to do much.
In Georgia, the statute of limitation for workers’ compensation provides that claims must be filed within one year after the injury or within 2 years after the suspension of last weekly benefit payments. Will we see any changes regarding this statute of limitation? Not very likely.
To avoid the running of your statute of limitation, contact us today for free consultation following your injury in the workplace. The Poirier Law Firm routinely, successfully represents injured works in industrial accidents. You must have a zealous advocate fighting and protecting your rights.