Opinion
Civil Action No: SA-01-CA-0610-XR
April 28, 2004
ORDER
On this date, the Court considered Defendants' Motion for Partial Summary Judgment on Claims Barred by the Texas Workers' Compensation Statutes (docket no. 142) and the various replies and responses filed by the parties. After considering the evidence and applicable law, the Court GRANTS Defendants' Motion.
I. Facts and Procedural Background
This case involves numerous cancer victims and their beneficiaries who have sued numerous defendants, three of which remain in the suit, for their injuries allegedly resulting from Defendants' uranium mining and milling operations. The majority of the plaintiffs claim exposure resulting from sources outside the uranium processing facilities, primarily through the hauling of ore to and from the facilities. The motion under consideration and this Order only address the claims of five plaintiffs.
Rio Grande Resources Corporation ("RGR"), ConocoPhillips Company f/k/a Conoco, Inc. ("Conoco"), and Chevron U.S.A. Inc. ("Chevron").
Charles Foley, Jimmy Lee Foley, Russell Mutz, Angel Ruiz, and Sam Jansky. Charles Foley was employed at Conoco. from 1976 through 1979 and from Chevron from 1979 to 1981. Jimmy Foley was employed at Chevron from 1979 through 1986. Mr. Mutz worked for Chevron/RGR from 1978 through 1998. Mr. Ruiz worked for Conoco. from 1971 through 1986 and Chevron/RGR from 1987 to 1998. Mr. Jansky worked for Chevron/RGR from 1979 through 1993.
Defendants contend that the five plaintiffs were formerly employed by RGR, Conoco, and Chevron and that these entities were subscribers under the Texas Workers' Compensation Act ("TWCA"). Defendants, relying upon Texas Labor Code § 408.001, argue that "recovery of workers' compensation benefits is the exclusive remedy of an employee covered by workers' compensation insurance coverage or a legal beneficiary against the employer or an agent or employee of the employer for the death of or a work-related injury sustained by the employee." Accordingly, Defendants argue that Plaintiffs' claims of negligence, gross negligence, negligence per se, and res ipsa loquitur are barred.
Plaintiffs respond that the Defendants have failed to establish by competent summary judgment evidence that their various cancers were work-related injuries, and that at the time such injuries became known the Plaintiffs were employed by the Defendants. Alternatively, Plaintiffs argue that they received radiation exposure outside the course and scope of their employment, and Defendants have failed to present competent summary judgment evidence refuting their contention.
ANALYSIS
An employee injured by an occupational disease is required to give notice of such injury to his employer. Tex. Labor Code § 409.001(a). If the injury is an occupational disease, an employee is required to provide notice to the employer no later than thirty days after the date on which the employee knew or should have known that the injury may be related to employment. Tex. Labor Code § 409.001(a)(2). In order to be eligible for TWCA benefits, there is no requirement in the TWCA that an injured worker still be an active employee of an employer on the date the injured worker became aware of his occupational disease. See e.g. IN A of Tex. v. Smith, 765 S.W.2d 524, 528 (Tex.App.-Beaumont 1989, writ denied) (retired employee filed a claim for compensation benefits in connection with hearing loss; "there is some evidence of probative force to support the finding of the jury that Smith had good cause for filing his compensation claim when he did. The record supports the jury's finding that Smith, while acting as an ordinarily prudent person under the same or similar circumstances, did not know that his hearing loss was work related nor did he know that it arose from his employment until so diagnosed by his own physician, one Dr. Herndon, a doctor of osteopathy. Furthermore, Smith swore that he relied upon the employees of Texaco-especially Texaco's nurses-to advise him if he had a hearing loss and if the loss was job related and arose from his employment."). Otherwise, Defendants have demonstrated that they were TWCA subscribers during the entire period of the respective employee/plaintiffs' employ.
With regard to Plaintiffs' second argument, numerous non-Texas cases have found that radiation exposure sustained in the course of employment was causally related to the employee's death or disability from cancer, and that an award of benefits under their state's occupational disease laws was proper. The argument advanced here by Plaintiffs, however, is that they became exposed, in part, to Defendants' radioactive materials outside the course and scope of their employment.
See Begay v. Kerr-McGee Corp., 499 F. Supp. 1317 (D. Ariz. 1980), aff'd, 682 F.2d 1311 (9th Cir. 1982) (applying Arizona law); State Compensation Fund v. Yazzie, 25 Ariz. App. 89, 541 P.2d 415 (1975) (lung cancer caused by excessive exposure to ionizing radiation could be compensable under the state occupational disease law); Claimants in Matter of Death of Garner v. Vanadium Corp. of Am., 572 P.2d 1205 (Colo. 1977) (lung cancer as a result of radiation exposure); Union Carbide Corp. v. Industrial Comm., 581 P.2d 734 (Colo. 1978) (uranium miner who contracted lung cancer); Climax Uranium Co. v. Smith's Claimants, 522 P.2d 134 (Colo.App. 1974) (death of a uranium miner from lung cancer); Matter of High, 638 P.2d 818 (Colo.App. 1981) (carcinoma of the lungs); Krumback v. Dow Chem. Co., 676 P.2d 1215 (Colo.App. 1983) (brain cancer was caused by occupational exposure to radioactive material); Dow Chem. Co. v. Gabel, 746 P.2d 1357 (Colo.App. 1987) (deceased nuclear weapons plant worker, who died as result of rare cancer of esophagus known as adenocarcinoma); Dow Chem. Co. v. Industrial Claim Appeals Office, 843 P.2d 122 (Colo.App. 1992) (fatal adenocarcinoma precipitated by occupational exposure to external radiation, together with inhalation and ingestion of alpha-emitting radio elements); Prescott v. U.S., 523 F. Supp. 918 (D. Nev. 1981), aff'd, 731 F.2d 1388 (9th Cir. 1984) (app lying Nevada law) (disabling multiple myeloma caused by exposure to radiation); Besner v. Walter Kidde Nuclear Laboratory, 24 A.D.2d 1045, 265 N.Y.S.2d 312 (1965) (acute myeloblastic leukemia).
In their Fourth Amended Complaint, Plaintiffs allege that because of the Defendants' generation, handling, transport, storage and/or disposal of radioactive hazardous waste, the ground water, air, homes, livestock, vegetation and food in their respective communities have become contaminated, and as a result they were exposed to radioactive decay products. As a result of these activities, Charles Foley alleges he suffers from lung, liver and kidney cancer. Jimmy Lee Foley and Sam Jansky allege that they suffer from colon cancer. Russell Mutz alleges that he suffers from good pasture syndrome. Angel Ruiz alleges that he suffers from non-Hodgkins lymphoma. Nowhere in their complaint do Plaintiffs specifically argue that their injuries are work-related. However, Plaintiffs' expert, Marvin Resnikoff, Ph.D., has calculated radiation exposures for all five plaintiffs that include exposures while in the course and scope of their employment. Dr. Resnikoff also opines that the Plaintiffs received additional, although smaller radiation exposure outside of their respective work duties. Inasmuch as Plaintiffs claim they were exposed to radioactive materials while in the course and scope of their employment, and that such exposure has resulted in various forms of cancer, Plaintiffs' causes of action are barred by the exclusivity provisions of the TWCA. Tex. Labor Code § 408.001; Poyne v. Galen Hosp. Corp., 4 S.W.3d 312 (Tex.App.-Houston [1st Dist.] 1999) (recovery under the TWCA is intended to be an injured employee's sole remedy for work-related injuries), aff'd, 28 S.W.3d 15 (Tex. 2000).
Defendants seek application of the exclusivity doctrine solely as to Plaintiffs' work-related radioactive exposure claims. Defendants do not seek "dismissal of the plaintiffs' minuscule exposure claims premised on exposure to radiation outside the course and scope of their employment." Because Defendants specifically request that this Court not consider Plaintiffs' non work-related exposure, the Court reserves further discussion of that issue for another day.
Conclusion
The Court concludes that, for the reasons stated above, Defendants' Motion (Docket no. 142) is GRANTED.