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The California Appellate Court (2nd Dist.) recently affirmed the trial court’s summary adjudication of an employee’s tort action brought against her employer. Jensen v. Amgen, Inc. (2003) 105 Cal. App. 4th 1322.  An employee injured during the course of employment is generally limited to remedies available under the Worker’s Compensation Act.  However, there is a narrow exception to this exclusivity rule where the employee’s injury is aggravated by the employer’s fraudulent concealment of the existence of the injury and its connection with the employment.

The narrow exception was first articulated in the asbestos context.  The employee alleged that his employer learned that he had an asbestos-related disease through routine screening and fraudulently concealed this condition from him, thereby preventing him from receiving treatment for the disease and inducing him to continue working under hazardous conditions.  John Mansville Products Corp v. Sup. Ct. (1980) 27 Cal.3d 465.

Here, plaintiff complained to a company nurse of having sinus headaches, skin rashes and fatigue.  At the time, plaintiff attributed her symptoms to allergies to the laboratory animals present and was transferred.  A few months later, a mushroom was discovered in the building.  Subsequent air testing revealed the presence of “toxic mold” but in concentrations that were lower indoors than outdoors.  The employer informed building occupants of the mold and removed and repaired the water intrusion and mold.  Plaintiff subsequently learned that mold had also been discovered and cleaned five years prior in the air delivery system of the building.

Plaintiff took a medical leave of absence and filed a lawsuit for fraudulent concealment against her employer alleging that her injuries were mold- related and her employer knew of the presence of the “toxic mold” in the building, knew that plaintiff’s symptoms were related to the “toxic mold” and concealed this information from her.

The court rejected plaintiff’s arguments and confirmed the extremely narrow exception to the worker’s compensation exclusivity rule.  The court held that the threshold issue was whether the employer knew of plaintiff’s symptoms before she knew of her own symptoms.  The court noted that the exceptions to the worker’s compensation exclusion are intended to be extremely limited.  The court also noted that plaintiff was the first person to associate her symptoms with mold in the building.  There was no evidence that the employer was aware of any such connection.  Rather, the employee had told the employer that her symptoms were caused by animal allergies.  Moreover, the employer relocated plaintiff after learning of her allegedly building-related symptoms.  Therefore, plaintiff failed to establish the elements of fraudulent concealment and the court affirmed the summary judgment in favor of the employer.

About the author: Article written by J. Kent Holland, Jr.,  a construction lawyer located in Tysons Corner, Virginia,  with a national practice (formerly with Wickwire Gavin, P.C. and now with Construction Risk Counsel, PLLC) representing design professionals, contractors and project owners.  He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects.  He is publisher of ConstructionRisk.com Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932.  This article is published in ConstructionRisk.com Report, Vol. 5, No. 8 (Sep 2003).

Copyright 2003, ConstructionRIsk.com, LLC