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On November 20, 2017, claimant was diagnosed with mesothelioma related to asbestos exposure; he passed on February 24, 2018, and his estate filed a Petition to Determine Compensation Due against C&D Contractors on November 20, 2018. The petition only listed C&D, as they were believed to be the employer responsible for claimant’s “last injurious” asbestos exposure. As to the claimant’s other past employers, Boulden Plumbing LLC and Emjay Engineering, the claimant did not work for them within the ten-year latency period for developing asbestos-related mesothelioma. Further, claimant’s work with these companies did not involve asbestos exposure. Accordingly, claimant’s petition did not name these employers. However, more than one year after the Petition was filed, employer defendant, C&D, filed a motion to add these employers as potential defendants; neither employer was given notice of the motion or a chance to respond before the Board granted the request. Receipt of the Board’s Order was the first notice that either employer had of any potential link between claimant’s diagnosis and his employment with them.
Ultimately, both Boulden and Emjay filed Motions to Dismiss which proceeded to an Evidentiary Hearing where Boulden and Emjay presented evidence as to the lack of asbestos exposure as well as the lack of notice. Claimant admitted that he did not file against either employer because it was believed that such claims lacked merit. C&D’s position, however, was that Boulden and Emjay must be part of the litigation to reserve C&D’s right to pursue indemnification/ contribution against these employers.
The Board soundly rejected C&D’s argument agreeing with Boulden’s position that indemnity and contribution are not permitted in the context of an occupational disease – in fact, the Delaware Supreme Court explicitly recognized that other jurisdictions permitted indemnification while Delaware did not. The employer/ carrier responsible for the last injurious exposure would be responsible for the entire claim. The Board further agreed with Boulden’s arguments that Boulden must be dismissed because claimant did not meet the statutory deadlines. Section 2361(d) of the Workers’ Compensation Act creates a one-year statute of limitations for occupational diseases, while Section 2342 requires the claimant to provide written notice of the potential link between the diagnosis and the employment within six months of claimant obtaining such knowledge. Because the claimant failed to do so, there is an absolute bar on recovery. C&D could not circumvent those requirements via its motion, and thus Boulden and Emjay were dismissed.
William McLaughlin v. C&D Contractors, IAB No. 1478363, Jan. 5, 2021.