Workers compensation is the exclusive remedy for workers suing San Diego and a city official for injuries they allegedly suffered after being exposed to asbestos, a California appellate court held.

In an unpublished decision handed down Tuesday in Alina Cadena et al. v. City of San Diego et al., the 4th District Court of Appeal rejected the argument that the lawsuit fits an exception to exclusivity for cases where the employer concealed the existence of injuries and the connection to employment.

A group of San Diego employees sued the city, alleging that it intentionally exposed them to asbestos and concealed the extent of the exposure after determining that protecting their health was not worth the cost of breaking a lease.

The workers were all assigned to a downtown office building where the city leased several floors. The city notified workers in 2017 that the building owner was replacing all exterior windows and that about 40 tons of materials containing asbestos would be removed during the project. Workers reported respiratory problems and itchy or watery eyes within days of the city’s notice. They said plastic barriers intended to keep dust out of the workplace were not working and that a ventilator for a sealed area of the building containing asbestos was blowing exhaust into an employee parking structure.

The city decided not to move the workers because it had no legal grounds to terminate the lease and no other place to move them.

In January 2018, the County Air Pollution Control District took dust and debris samples that tested positive for asbestos. The city notified workers about the test results on the same day it received them and told them to stay out of the building until further notice. They were moved to another building.

City officials met with employees in March 2018 and said asbestos discovered in the building was not airborne and, except for a few areas of the building still under containment, everything was within tolerable levels.

The city also said the workers should not worry about adverse health effects from asbestos exposure and provided instructions on how to file a workers compensation claim.

Alina Cadena and other employees then sued the city and its deputy chief operating officer, Ronald Villa. The city raised several defenses, including that there was not sufficient evidence to invoke the fraudulent concealment exception to exclusive remedy. The trial court granted summary judgment for the city.

The workers appealed, arguing that triable issues of fact remained, that workers compensation is not the exclusive remedy for claims of intentional infliction of emotional distress claims and that the trial court erred in dismissing claims for punitive damages against Mr. Villa.

Although workers compensation is generally the exclusive remedy, there is an exception when the employer knew of a work-related injury, concealed this knowledge from the employee, and the concealment aggravated the injury.

The appeals court said the evidence established that the city did not have actual knowledge before its employees did that there might be asbestos exposure.

A worker seeking to invoke the fraudulent concealment exception must satisfy all three criteria, so the inability to demonstrate a triable issue about the city’s actual prior knowledge of their injuries was fatal.

The court also said a string of state Supreme Court rulings established that workers compensation is the exclusive remedy for claims of intentional infliction of emotional distress.

Because claims for punitive damages are ancillary to a valid cause of action for compensatory damages, the trial court correctly dismissed the employees’ claims against Villa when it determined that exclusive remedy barred the rest of the action.

WorkCompCentral is a sister publication of Business Insurance. More stories here.