Workers’ Compensation

Job-related cancer, including mesothelioma, makes up one of the largest percentages of occupational deaths and related costs in the United States. Asbestos-related diseases affected thousands of U.S. workers in a variety of occupations. Many workers who were injured by occupational asbestos exposure turn to the workers' compensation system for financial assistance.

Legal Options

Tapping into this system is one legal option for people who were exposed to asbestos while at work. However, these systems can be difficult to navigate, and some result in only modest amounts of financial help. If you have been injured by occupational asbestos exposure, it is a good idea to seek assistance from a qualified mesothelioma attorney

But, in some states workers give up the right to file a lawsuit against their employer if they opt to file for workers' compensation.

A mesothelioma attorney can help you make the most of your options.

History and Purpose

Workers' comp was designed to compensate laborers who are injured in the workplace. Before the 1920s, workers had to sue their employers to receive money for work-related industries.

Most states enacted workers' compensation laws in the 1920s, and these laws eliminated the need to file lawsuits and prove employer negligence. By the 1930s, many workers with occupational lung diseases began seeking compensation for their illnesses under these laws.

Today, every state has a workers' compensation system. These laws create a framework for providing a number of benefits to injured employees. They also establish procedures for claiming the benefits.

Possible benefits include:

  • Medical care
  • Temporary or permanent disability payments (i.e., replacement income)

  • Assistance finding another job (vocational rehabilitation), if appropriate

Laws vary by state and are administered by state boards. Payments typically include a fixed amount of compensation. The amount of compensation is usually spelled out in the statute and is based on the type of injury.

Replacement income provides only partial compensation for lost income and is usually subjected to other limits. Families of deceased workers may apply for benefits.

Employers are generally required to maintain some form of insurance coverage to cover job-related injuries. An injured employee is usually required to report in writing any work-related injuries to the employer. The employer then must provide the worker with a claim form. The employer is responsible for submitting the form to the local board office and to its insurer.

Although these laws were created to provide benefits to eligible employees, they were also designed to protect employers from lawsuits by placing limits on compensation. The federal government and a handful of states rely on government sources to fund workers' compensation claims. Most states fund their compensation budgets exclusively through the private sector or through private carriers, which compete with state-run funds.

Because of substantial underwriting losses, private carriers have favored cutting back the scope of the program during the past two decades. Some states in recent years increased private competition to reduce program costs for employers.

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Workers' Comp and Tort Litigation

A mesothelioma attorney can help decide whether to file a claim with an employer or a legal action against an asbestos manufacturer. Here are some considerations that may affect your decision:

  • Compensation only involves recovery from employers, not manufacturers

    Workers generally waive their rights to sue employers for their injuries in exchange for workers' compensation benefits. However, submitting a workers' compensation claim it is not a bar to suing the manufacturer of asbestos products that led to injury. In this context, lawsuits against asbestos manufacturers are called "third-party claims."

    In most states, employers can seek some form of reimbursement for workers' compensation payments and other benefits if an employee files a third-party claim. Depending on state law, employers may accomplish this by (1) becoming a party in a lawsuit filed by an employee against a third party or (2) obtaining a lien against any award recovered by an employee from a third party. In other words, employers may attempt to any litigation recovery awarded to employees to offset their own workers’ comps costs.

  • Certain types of employees are ineligible for compensation through their job

    Some states exempt certain types of workers (for example, independent contractors or those in certain occupations) from workers' compensation coverage. They may also exempt certain small employers from insurance coverage requirements. You can contact your state's department of labor to find out the specific guidelines that apply to your particular state.

  • Claims are subject to time constraints

    Like lawsuits, workers' comp claims must be filed within an established time frame after an injury occurs. Each state has its own set of guidelines that dictate eligibility, statutes of limitation and other guidelines.

    Although most cases of mesothelioma were caused by occupational exposure to asbestos, not all people with mesothelioma are eligible to file a workers' compensation claim. Many of the factors used to determine the amount of compensation (e.g., employee occupation, age and salary at the time of injury) can change dramatically between the time of asbestos exposure and the discovery of an asbestos-related illness. Because of its long latency period, mesothelioma is not typically diagnosed within the time frame allotted for a worker's compensation claim. In addition, most workers with mesothelioma are no longer employed at the worksite where their exposure occurred. Asbestosis patients, however, may be more likely to qualify for this option because of the disease's shorter latency period.

  • Lawsuits may provide a broader range of compensation

    The amount of compensation available through an employer is often modest compared with potential litigation recoveries. The maximum amount of compensation available for a particular injury is usually fixed by state law. However, litigation awards often include a wider range of losses, including punitive damages and pain and suffering. Punitive damages awards, in particular, can substantially increase the total amount of compensation.

  • Benefits are not guaranteed

    Claims are not designed to assign blame. The claims process is non-adversarial. But as with lawsuits, the outcome of a filed claim is influenced by individual circumstances. Merely filing a claim does not guarantee the receipt of a financial benefit.

    If a dispute arises with your claim or you are unhappy with the outcome of your workers' comp hearing, you may be able to further recourse through the state workers' comp commissioner or in a court of appeals. Always consult an attorney for specific advice.

    Remember that financial assistance may also be available through asbestos bankruptcy trust funds, government disability programs and the Veterans Administration. Contact a Patient Advocate for more information about these options. Consult a qualified attorney for specific legal advice.

Federal Workers' Compensation Program

The federal government established workers' compensation programs for its employees and for certain types of workers. For instance, two specific types of workers who are covered are longshoremen and harbor workers (thanks to the Longshore and Harbor Workers' Compensation Act of 1927) and workers who developed black lung (the Black Lung Benefits Reform Act of 1977).

The U.S. Department of Labor's Office of Workers' Compensation Programs governs federal employees. The Department of Labor says federal employees are entitled to "medical, surgical and hospital services and supplies needed for treatment of an injury, as well as transportation for obtaining care."

Workers' compensation programs are designed to cover several major costs:

  • Lost wages (past and future)
  • Medical treatment
  • Vocational rehabilitation

Additional Resources


Tim Povtak is an award-winning writer with more than 30 years of reporting national and international news. His most recent experience is in researching and writing about asbestos litigation issues and asbestos-related conditions like mesothelioma. If you have a story idea for Tim, please email him at tpovtak@asbestos.com

  1. Burton, John F. Perspectives on Work, Vol. 11, No. 1. Labor and Employment Relations Ass'n. (Summer 2007).
  2. Castleman, Barry. (2005). Asbestos: Medical and Legal Aspects. New York: Aspen Publishers.
  3. Findlaw. (2011). Workers' Compensation - Overview. Retrieved from: http://injury.findlaw.com/workers-compensation/workers-compensation-basics-overview/
  4. Milbank Quarterly. Volume 82, Issue 4, pp. 689-721, December 2004. Occupational Diseases and Workers' Compensation: Coverage, Costs, and Consequences. J Paul Leigh, John A. Robbins. Retrieved from: http://onlinelibrary.wiley.com/doi/10.1111/j.0887-378X.2004.00328.x/full
  5. Division of Federal Employees' Compensation (DFEC), U.S. Department of Labor. Retrieved from: http://www.dol.gov/owcp/dfec/
  6. Division of Federal Employees' Compensation (DFEC), U.S. Department of Labor. CA-11 When Injured at Work Information Guide for Federal Employees. Retrieved from: http://www.dol.gov/owcp/dfec/regs/compliance/ca-11.htm
  7. Union Workers & Injury Compensation. Legal FAQs. Retrieved from: http://www.union-workers-compensation.com/legal_faqs.html

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