From the Desk of Kyle Riley: In this case, the Washington Court of Appeals held that workers’ compensation benefits for a maritime employee are properly claimed under federal workers’ compensation rules, even if that same employee most recently worked in a non-maritime job. In that situation, traditional Washington workers’ compensation benefits are generally not available.
Claims Pointer: In navigating litigation that involves workers’ compensation claims, insurers should be mindful that Washington courts will generally not allow a claimant to obtain benefits from Washington’s usual workers’ compensation fund, if the claimant also previously worked in a maritime job. Maritime positions are covered by a federal workers’ compensation fund. When an employee has worked in both maritime and non-maritime occupations, the federal fund is the proper source of benefits.
Long v. Wash. Dep’t of Labor and Indus., in the Court of Appeals of the State of Washington, Division II, No. 43187-4-II, — P3d —- (May 29, 2013).
In 2008, Aileen Long’s (“Long”) husband, Robert, died following exposure to asbestos. Prior to his death, Robert was employed in two different types of work. At times, he worked for various maritime employers. At other times, he worked for various non-maritime employers. His maritime employers were covered by the federal Longshore and Harbor Workers’ Compensation Act (“LHWCA”), a workers’ compensation program that provides benefits for certain shore and harbor-based occupations. He also worked for various non-maritime employers who were covered by the Washington Industrial Insurance Act (“WIIA”), a state workers’ compensation program. The WIIA excludes certain workers who are covered by other federal workers’ compensation programs, such as the LHWCA.
At both types of work, Robert was exposed to asbestos, which caused his death. In March 2009, Long filed a claim with the Washington State Department of Labor and Industries (“the Department”) for surviving-spouse benefits, under the WIIA. The Department denied Long’s claim on grounds that Robert’s asbestos exposure occurred during maritime employment, and therefore, benefits should be sought under the LHWCA. Additionally, the Department denied Long’s request for temporary benefits while the claim was being handled. After exhausting her administrative appeals, Long turned to the Washington Court of Appeals.
On appeal, Long argued that the Department was wrong to deny her survivor’s benefits because Robert’s last exposure to asbestos occurred while working for a WIIA-covered employer. The Court of Appeals rejected that argument, finding that the denial was appropriate for two reasons. First, Robert had previously worked for an LHWCA-covered employer and, thus, was not covered by the WIIA. Second, the mere fact that Robert’s most recent employer had been a WIIA employer did not require the Department to pay benefits when Robert also had a viable claim for benefits under maritime law.
In making its determination, the Court applied the Washington Supreme Court’s holding in Gorman v. Garlock, Inc., 155 Wnd.2d 198, 205 (2005). In that case, the Court held that if a worker develops an illness due to asbestos exposure at an LHWCA-covered job, the last LHWCA-covered employer is responsible for providing the employee with LHWCA benefits. Accordingly, the Department was correct to deny Long’s claim for workers’ compensation benefits.
Finally, the Court of Appeals addressed whether the Department should have given Long temporary benefits while it was in the process of evaluating her claim. On this point, the court agreed with Long, finding that, under RCW 51.12.102(1), the Department should have provided temporary WIIA benefits until the Department determines whether state or federal benefits should be provided.
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