The Washington Supreme Court recently decided a case making it easier for injured employees to meet the “deliberate injury” exception to Washington’s workers’ compensation statutes and allow workers to sue their employers for latent diseases, like cancer after a career or asbestos exposure.

In Cockrum v. C.H. Murphy/Clark-Ullman, Inc., an employee was repeatedly exposed to asbestos over a long career, sometimes without protective gear, and eventually developed cancer. The employer knew that he was exposed to asbestos and that it could cause long-term injuries or disease. After being diagnosed with cancer, the employee sued his former employer, claiming the employer deliberately intended to injure him by knowingly exposing him to asbestos without proper warnings or protection. The employer argued that the suit was barred since it was a workplace injury and Washington’s no-fault workers’ compensation applied, thus the employer was immune from suit.

Washington’s Industrial Insurance Act generally makes no-fault workers’ compensation the exclusive remedy for workplace injuries, and immunizes employers from civil suits, except where the employer deliberately intended to cause the injury. Under prior caselaw, an employee had to show the employer had “actual knowledge that the injury was certain to occur,” and that the employer willfully disregarded that knowledge. Past courts had determined that knowing a hazard exposure was “likely or probable to cause injuries” did not meet the certainty threshold, making it hard to prove latent disease cases.

In this case, the Court decided those prior cases contradicted the plain text of the Industrial Insurance Act and the public policy behind the law. It reasoned that absolute certainty was not required by the statute to show “deliberate intent” and that courts including such a requirement made it impossible for employers who knowingly put workers at great risk could avoid liability for wrongdoing.

Ultimately, the Court held that “virtual certainty” is enough to prove actual knowledge in latent disease cases.

Certain city employees could be at higher risk of developing latent diseases from regular exposure to hazardous substances. Cities should make sure that employees are aware of the risks of exposure to harmful substances in their work and take steps to mitigate exposures that could result in latent diseases later in life.

Note: This article is for general educational purposes and is not intended as legal advice. Cities should consult their legal counsel with any questions or concerns about specific legal issues or risks.