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Weddle v. BP Amoco Chemical Co.

Superior Court of Delaware

April 26, 2019

ALICIA WEDDLE, as Personal Representative of the Estate of JOSEPH GONZON, Deceased, Claimant/Appellant,

          Submitted: February 1, 2019

          On Appeal from the Industrial Accident Board

          David T. Crumplar, Esquire, Patrick C. Gallagher, Esquire, Jacobs & Crumplar, P.A., Attorneys for Appellant.

          Paul A. Bradley, Esquire, Antoinette D. Hubbard, Esquire, Maron Marvel Bradley Anderson & Tardy LLC, Attorneys for Appellee.



         This is an appeal from a decision of the Industrial Accident Board ("IAB") dismissing a petition to determine compensation due for an employee's asbestos-related disease on the grounds that the employee waived all workers' compensation claims arising from asbestos exposure in the workplace, both known and unknown, in a settlement thirty-four years prior to manifestation of the disease. The question of whether an employee is entitled to workers' compensation for mesothelioma despite settling claims for asbestosis more than thirty years previously has not previously been addressed by this Court.


         Joseph Gonzon ("Employee") was an employee of BP Amoco Chemical Corporation ("Employer").[1] During the period of employment from 1968-1980, Employee was exposed to asbestos and developed asbestosis. In 1982, Employee settled his claims for work-related asbestosis ("1982 Settlement"). Thereafter, in November 2016, Employee was diagnosed with peritoneal mesothelioma. In April 2017, Employee filed a claim for workers' compensation for mesothelioma developed as the result of exposure to asbestos in the workplace ("Mesothelioma Petition"). Employee died on September 28, 2017 as the result of peritoneal mesothelioma. Employee is survived by his wife. In his Mesothelioma Petition, Employee sought a finding of compensability for his mesothelioma as well as a claim for death benefits for his surviving spouse.

         Employer filed a motion to dismiss the Mesothelioma Petition on the grounds that Employee was not entitled to additional compensation because Employee had released all claims related to asbestos exposure against Employer in 1982. Employee claimed that the 1982 Settlement pertained only to the earlier manifested asbestosis as set forth in a workers' compensation claim as well as a tort claim. After a hearing, the IAB issued a decision on May 24, 2018 dismissing Employee's Mesothelioma Petition on the grounds that the 1982 Settlement precluded Employee from seeking additional compensation related to asbestos exposure ("Mesothelioma Decision").[2] This appeal followed in which the question presented is whether Employee's mesothelioma, diagnosed in November 2016, was included in the 1982 Settlement.


         This Court has jurisdiction over appeals from administrative agencies, including appeals from the IAB.[3] This Court's appellate role is limited to determining whether the IAB's conclusions are supported by substantial evidence and free from legal error.[4] Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."[5] The Court reviews the IAB's legal determinations de novo, which "requires the Court to determine whether the Board erred in formulating or applying legal principles."[6]"Absent errors of law, however, the standard of appellate review of the IAB's decision is abuse of discretion."[7]


         I. The IAB Incorrectly Ruled that Mesothelioma is a Change in Condition When it is Legally a New Accident Because Delaware is a Multi-Disease Jurisdiction.

         Cumulative disease cases are unlike other work-related injuries. Given the life-consuming maturation of the harm from asbestos exposure, an employee may develop a series of asbestos-related diseases over time.[8] Accordingly, Delaware has adopted a multi-disease approach, treating each distinct diagnosis attributable to asbestos exposure as a separate claim.[9] This approach takes into account the unique problem of latent disease cases where the same exposure may lead to separate and distinct diseases, the symptoms of each manifesting years apart.[10]

         In Sheppard v. A.C. & S. CO., et al., this Court specifically addressed an employee who was exposed to asbestos in the workplace and who first contracted asbestosis, a non-malignant pulmonary disease with an average latency period of 17 years, and later also contracted mesothelioma, a malignant disease with an average latency period of 25-40 years.[11] In Sheppard, this Court held, and the Delaware Supreme Court affirmed, that the statute of limitations began to run at different times for each diagnosis based upon when the employee knew or should have known that his physical condition was attributable to asbestos exposure.[12] Similarly, in DaBaldo v. URS Energy & Const., the Delaware Supreme Court ruled that the statute of limitations for an employee's asbestosis claim did not begin to run until the employee learned of his diagnosis.[13]

         Here, in the Mesothelioma Decision, the IAB incorrectly equated the diagnosis of future occupational diseases to the progression, worsening, or change of condition that is commonly seen with other work-related injuries. Employee was diagnosed with mesothelioma thirty-four years after settling his asbestosis claim with Employer. While asbestosis and mesothelioma may both be caused by asbestos exposure, they are two different diseases.[14] In light of decisional law declaring Delaware a multi-disease jurisdiction, Employee's manifestations of each disease, and not the exposure to asbestos, are considered separate accidents for purposes of workers' compensation. Employee's diagnosis of mesothelioma thirty-four years after the settlement of his asbestosis claim is not a changed condition of the same asbestos-related injury; rather, it is a new accident for which Employee has a separate claim. Accordingly, the IAB made an incorrect legal determination by finding that the exposure to asbestos is the accident and that the manifestation of mesothelioma is simply a change of Employee's condition. Instead, development of mesothelioma is a separate and distinct accident for which Employee is entitled to workers' compensation.

         II. The IAB Made Incorrect Legal Determinations by Resolving Contractual Ambiguity Against the Employee and by Misapplying Settled Law on Statute of Limitations.

         In 1982, Employee settled claims for work-related exposure to asbestos with Employer, including tort claims and workers' compensation claims. At that time, Employee had developed asbestosis. In connection with the 1982 Settlement, Employee and Employer executed a tort release, [15] a workers' compensation release ("Workers' Compensation Release"), and a declaration of dismissal ("Declaration") that was filed with the IAB on May 11, 1982. Employee's only pending workers' compensation claim was for asbestosis ("Asbestosis ...

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