What Do You Think: Was Bullet Maker's Lead Poisoning Accidental?

07 Feb, 2022 Frank Ferreri

                               

Mona, UT (WorkersCompensation.com) – When is an at-work injury and accidental injury, which would allow for an exception to a state’s exclusive remedy provision, and when is it an occupational disease, which might not?

Utah’s top court recently faced that question in a case involving a worker’s lead poisoning while making bullets for a manufacturer.

One of the worker’s duties was melting lead. Although the manufacturer mostly made lead-free bullets, a small percentage of its operation focused on bullets with lead cores. The worker made these bullets by buying scrap lead, cutting it into tiny bits, and melting it down using a “small and relatively unsophisticated melting pot.”

After testing revealed unsafe levels of airborne lead, the manufacturer stopped melting and began purchasing lead wire for bullets. Prior to this change, the manufacturer followed safety protocols under which melting took place outdoors and employees wore overalls, leather gloves, and a face shield or goggles. However, the manufacturer didn’t supply respirators for workers until after the safety tests.

Although the manufacturer didn’t assign melting to specific employees, the worker melted lead “far more often” than his coworkers and began to develop respiratory distress, tremors and mood swings, a chronic and persistent cough, neurological difficulties, and chronic fatigue.

After the manufacturer stopped melting lead, the worker continued experience symptoms of lead poisoning and required a rescue inhaler, “after even the mildest exertions.” He also experienced impairments to his memory and executive functions that, he claimed, prevented him from working.

Due to these issues, the worker filed a workers’ compensation claim, for which the Utah Labor Commission awarded him $337,500. The worker also sued the manufacturer in a tort claim in court.

The trial court ruled in the worker’s favor, finding that the state’s exclusivity provision did not prevent the worker from suing because the manufacturer failed to comply with safety regulations and because the worker melted “an amount of lead unprecedent” in the manufacturer’s history.

The manufacturer appealed to the Utah Supreme Court.

As in other states, Utah’s exclusive remedy provisions relieve employers of tort liability for work-related ailments. However, there is a “narrow exception” that allows employees to sue for injuries they experience at work that are caused by an intention tort. In those cases, employees can sue when an agent of the employer intentionally caused the employees injury.

Nonetheless, the court pointed out that under a nuance in Utah law, whether an employee could bring a tort claim depend on whether the lead poisoning at issue was an accidental injury or an occupational disease. If it was an occupational disease, then the worker’s case for suing on a tort claim was weaker because Utah traditionally has not allowed an exception to the exclusivity rule when an employee’s injury is an occupational disease..

Was the worker’s lead poisoning an accidental injury?

A. Yes. In the worker’s case, the lead poisoning was an accidental injury from the manufacturer’s intentionally exposing the worker to lead.

B. No. Lead poisoning is gradual and cumulative over a long period of time and so it is not automatically an accidental injury.

If you chose A, you were on the side of the court in Kay v. Barnes Bullets, No. 20180821 (Utah 01/31/22), which sent the case back to the lower court to determine whether the exclusivity prevented the worker from suing.

The court pointed out that, going back to 1939, cases in Utah had recognized that lead poisoning was an occupational disease. Nonetheless, the court also explained that, depending on the facts of the case, lead poisoning could constitute an accidental injury that would allow the worker to sue under an exception to the exclusivity rule.

But, in sending the case back, the court directed the lower court to analyze two issues: 1) whether the worker’s lead poisoning was an occupational disease; and 2) whether the intentional injury exception would allow the worker to sue the manufacturer.

This feature does not provide legal advice.

 


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    About The Author

    • Frank Ferreri

      Frank Ferreri, M.A., J.D. covers workers' compensation legal issues. He has published books, articles, and other material on multiple areas of employment, insurance, and disability law. Frank received his master's degree from the University of South Florida and juris doctor from the University of Florida Levin College of Law. Frank encourages everyone to consider helping out the Kind Souls Foundation and Kids' Chance of America.

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