Don’t Mess With Texas Asbestos Law

asbestos ALast week, the Texas Supreme Court decided to dismiss a wrongful death suit brought on by the family of a worker who, they say, died from asbestos exposure at his job. The employee worked at Union Carbide Corp., who filed to dismiss the suit on the grounds that the family did not have sufficient medical evidence to prove that he died of asbestosis.

Joseph Emmite was an insulator with Union Carbide for almost 40 years. He started receiving disability payments in 1979 for his health issues like chronic fatigue, weakness, a kidney problem and a myriad of other problems. In 2005 he was in and out of the hospital, and there were medical records that reveal he had lung calcifications and was diagnosed with pulmonary asbestosis. But when he died in June of that year the cause of death was listed as “Alzheimer’s disease and dementia”. In 2007 his family filed a wrongful death suit against his former employer, saying that working with asbestos for so long was ultimately the cause of his death.

The court looked at the Texas provision “Chapter 90” which was enacted in September of 2005, shortly after he died. It states that claimants (or those seeking to recover benefits on behalf of claimants) need to provide a physician’s report that meets several requirements. To be labeled as an asbestos related death, the report must have included a pulmonary function test which proved that Mr. Emmite had pulmonary impairment. Union Carbide stated that the family’s report did not include the proper test. When the state enacted this piece of legislation they were trying to combat asbestos related claims that were “costly to employers, employees, litigants, and the court”.

The family went back to try and amend the death certificate to show asbestosis as the cause of death and not Alzheimer’s/dementia. The court gave them six weeks to get that done, but the family was not able to amend the death certificate in time. So they pointed out that Chapter 90 has a “safety valve” provision, which allows alternatives to the reporting standards set in the original section. They provided a report from Dr. Prince, who diagnosed Mr. Emmite with pulmonary impairment just before his death. However the courts noted that Dr. Prince testified that he did not use the results of the test in his diagnosis, therefore they said that the report did not meet the criteria of Chapter 90, or its safety valve provision.

When the family tried to argue the text of the law and defend their case the response from the court  was “we take statutes as we find them, presuming the Legislature included words that it intended to include and omitted words it intended to omit….we do not read words into a statute to make it what we consider to be more reasonable, rather we may do so only to prevent an absurd result.”

It appears as though the court has resoundingly made up their mind and the family will not be receiving benefits. Though it was a 5-4 decision and some judges were not happy with the results.

PS-  Speaking of workers’ comp in Texas, have you been keeping up with this series from the Texas Tribune? As the only state that does not mandate that its employers carry workers’ comp insurance, it is an in-depth look at what kinds of things happen to the unfortunate employees who suffer injuries in the system.

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