In Arizona, most workplace accidents and work-related illnesses, including symptoms you may experience from exposure to chemicals, are subject to the state’s system of workers’ compensation as the source of your remedy.
In some cases, exceptions to this general rule can make available to you remedies other than workers’ compensation, like a personal injury claim or a class action lawsuit.
In this article, we will cover the circumstances under which you may be able to sue your employer if you have suffered harm from chemical hazards at work.
Why Choose Matt Fendon Law Group for Your Workplace Chemical Exposure Claim?
At Matt Fendon Law Group, our attorneys focus on Arizona workers’ compensation claims, and we can help you determine if you can receive workers’ compensation for chemical exposure in the workplace.
We have law offices in Phoenix, Scottsdale, Tucson, Prescott, and Flagstaff so that you can find a highly experienced workers’ compensation attorney near you.
To find out whether you have a workers’ compensation claim for workplace chemical exposure, or whether filing a lawsuit is your better choice, call us at (800) 229-3880 or contact us online to arrange a free consultation.
When Can You Sue Your Employer Instead of Using Arizona Workers’ Compensation?
Workers’ compensation is a form of insurance that most employers in Arizona carry. The general rule in this state is that if workers’ compensation insurance covers your employer, then even if that employer is negligent in exposing you to a dangerous situation like a workplace chemical hazard, workers’ compensation is your sole remedy against that employer.
This rule is set out in ARS 23-1022, which makes workers’ compensation your exclusive remedy against your employer when the statute applies.
The same statute, however, recognizes specific exceptions for willful misconduct that is the personal act of the employer, and for situations involving uninsured employers and employees who have rejected coverage in writing before being injured. We cover each of these below.
Depending on the nature and extent of the harm you suffer, workers’ compensation benefits that you can receive after a chemical hazard exposure include payment for your medical treatment costs, wage replacement, and possibly permanent impairment benefits.
The main advantage to you as a worker is that when you make a workers’ compensation claim, you do not have to prove that your employer was negligent in causing your harm.
Why Sue Your Employer After a Workplace Chemical Exposure?
Workers’ compensation is a compromise solution that takes away one potential benefit from you in return for relieving you of the need to prove employer negligence. This is your right to claim some kinds of legal remedies against your employer.
Specifically, workers’ compensation does not pay benefits, or pays only limited benefits, for the following kinds of harm:
- Pain and suffering. Many chemical-related illnesses involve ongoing discomfort, which workers’ compensation does not compensate you for.
- Non-economic damages. Employees exposed to toxic substances may experience emotional distress or loss of quality of life, which workers’ compensation does not typically address, unless it can be proven that the mental injury resulted from the physical injury (chemical exposure).
- Long-term illnesses. Workers’ compensation may not fully address the ongoing medical care required for long-term or chronic health conditions, and it does not usually account for your future medical expenses. A compensable work injury is a lifetime claim that includes medical care for the work injuries only. This may come in the form of supportive medical care after a claim is closed or active medical after a successful reopening of the claim.
- Loss of future earnings. Your condition may be debilitating, long-term, or permanent, preventing you from returning to your previous job or any form of employment. Workers’ compensation may not fully cover the loss of your future earnings.
But workers’ compensation is not an absolute bar to these kinds of damages claims.
Why Negligence Alone Usually Isn’t Enough to Sue Your Employer in Arizona
Often, chemical exposure occurs through unintentional employer actions, such as inadequate safety protocols, insufficient personal protective equipment, or non-compliance with environmental and occupational chemical safety regulations.
These kinds of safety violations are usually subject to workers’ compensation claims, not employee exposure lawsuits, because to sue an employer directly, Arizona law requires proof of willful misconduct, which is a specific intent to injure and not merely negligence, OSHA violations, or unsafe practices.
For example, if your employer is operating in violation of worker health safety requirements set by the Occupational Safety and Health Administration, and this violation of OSHA regulations leads to your chemical exposure, this generally will not rise to the level of conduct that will preclude workers’ compensation from being your sole remedy.
The two situations where ordinary negligence is enough to support a suit against your employer (when the employer is uninsured, or when you have rejected workers’ compensation coverage in writing in advance) are covered separately below.
What Are Legal Grounds to Sue Your Employer for Chemical Exposure?
Some well-recognized exceptions exist to the general rule of workers’ compensation as your sole remedy, including in chemical hazard exposure cases. We consider each of them below.
Intentional Misconduct by Your Employer
Under ARS 23-1022(B), you can step outside workers’ compensation and sue your employer in tort, but only when two conditions are both met:
- The injury was caused by willful misconduct, meaning an act done knowingly and purposely with the direct object of injuring you. Negligence, recklessness, OSHA violations, and even a knowing exposure to a dangerous chemical are not enough.
- The act must be the personal act of the employer, such as the individual themself, a partner in a partnership, or an elective officer in a corporation. Conduct by a supervisor, plant manager, or safety director does not count unless an elective officer personally ratifies it.
This second requirement is what makes the willful-misconduct exception so narrow in practice. Even if a shift supervisor knowingly directs you into a contaminated area, that conduct generally will not strip your employer of workers’ compensation immunity unless it can be tied to an elective officer of the corporation acting personally.
Examples of willful misconduct include:
- Deliberate disregard for safety standards. If your employer knowingly allows you to be exposed to hazardous chemicals despite knowing the risks, this could be considered willful misconduct. An example is an employer that continues to use banned or unsafe chemicals or knowingly exposes you to toxic fumes without proper ventilation.
- Falsification of safety reports. If your employer falsifies safety inspections or reports to meet regulatory requirements, then it may be held accountable if undisclosed risks cause you harm.
- Failure to report hazardous waste or chemical spills. If your employer intentionally conceals chemical hazards, such as by not reporting a chemical spill or mishandling dangerous waste materials, you may be able to sue for damages from the exposure.
Your Employer Fails to Have Required Workers’ Compensation Insurance
Arizona law (ARS 23-906 and ARS 23-907) requires most employers to carry workers’ compensation insurance or qualify as an authorized self-insurer. If your employer has failed to do so and a chemical exposure on the job injures you, you have a choice.
You can claim benefits from the state’s No Insurance Section (the Special Fund), or you can file a civil lawsuit against your employer for damages.
If you choose the lawsuit, the uninsured employer loses the common-law defenses it would otherwise have.
The employer cannot defend the case by arguing that you assumed the risk of the exposure, that you were contributorily negligent, or that a fellow employee caused the harm. In a chemical-exposure case — where defenses based on the worker’s own handling of hazardous substances are common — that is a meaningful advantage.
You Reject Workers’ Compensation Coverage
Under ARS 23-906, you can preserve your right to sue your employer directly by rejecting workers’ compensation coverage in writing before you are injured. To be effective, the written rejection must be served on your employer at least five days before the work-related injury, and a signed copy must be filed with the Industrial Commission of Arizona.
If you have not filed this notice in advance, the law conclusively presumes you have elected to accept workers’ compensation, and that election cannot be undone after the injury occurs.
In practice, very few employees take this step before they are hurt, so this exception comes up rarely.
But if you did sign and serve a proper written rejection before your chemical exposure, you keep the right to sue your employer in tort on ordinary negligence grounds, without having to meet the willful-misconduct and personal-act requirements that ARS 23-1022(B) otherwise imposes.
Third-Party Liability Claims
Sometimes, another party other than your employer can contribute to your harmful chemical exposure. Examples of these third parties include:
- Chemical manufacturers who fail to warn of chemical hazards, or make a defective chemical product, or who manufacture an inherently dangerous product, like asbestos, benzene, or certain solvents or pesticides, and conceal its known risks
- Chemical distributors and suppliers who mislabel dangerous chemicals, or fail to pass along safety warnings about them, or who supply contaminated chemical products
- Equipment and machinery manufacturers that make devices that mix, spray, or contain chemicals, and whose defective equipment causes leaks or exposure to fumes
- Property owners of contaminated buildings or property subject to legacy contamination from asbestos or chemical residues (these are also known as toxic tort claims)
- Contractors or subcontractors who engage in improper handling of chemicals, or who engage in unsafe cleaning or maintenance practices, or who improperly spill, release, or dispose of dangerous chemicals.
- Testing, inspection, or safety compliance companies whose role is to ensure chemical safety, if their inspections negligently fail to detect dangerous chemicals in the workplace
In some cases, government agencies like public utilities can be third-party liability candidates. In Arizona, these entities are subject to special conditions governing the timing of your notice claim and how long you have to file a legal claim against them.
How Do You Establish Employer Liability in a Chemical Exposure Lawsuit?
The elements below apply when you are suing your employer under the willful-misconduct exception in ARS 23-1022(B).
If you are suing because your employer was uninsured, or because you rejected workers’ compensation coverage in writing before being injured, you do not have to prove intentional conduct; those claims proceed as ordinary negligence cases, with the standard duty, breach, causation, and damages elements.
A chemical toxic exposure lawsuit is a type of personal injury claim. Most of these kinds of claims are based on negligent behavior of the at-fault party, but as we have shown above in the context of Arizona workers’ compensation, a showing of negligence by your employer is not enough to preclude workers’ compensation as your only remedy.
Personal injury legal actions can also be based on intentional conduct, so if you are suing your employer for exposure to chemical substances, then your chemical exposure attorney will need to show that it is more likely than not that all of the following elements are true:
- Your employer owed you a duty of reasonable care to provide a safe working environment.
- Your employer breached that duty by knowingly and purposefully putting you in a work environment that exposed you to dangerous chemical hazards.
- This deliberate exposure actually caused you to suffer harm.
- Your harm can be measured in monetary damages.
What Can You Recover From Your Employer in a Chemical Exposure Lawsuit?
In a personal injury claim against your employer, you can recover economic damages, non-economic damages, and, in some cases, punitive damages.
Economic Damages
Economic damages include some of the same remedies that a chemical exposure workers’ compensation claim provides. These include:
- Payment for your related medical bills
- Lost wages if your chemical exposure prevents you from going to work
- Loss of income-earning capacity if you cannot go back to work in the same capacity as your pre-exposure job
- Costs in connection with long-term therapy and vocational rehabilitation, if needed
Some economic damages overlap with workers’ compensation, but tort claims allow full wage loss and future earning capacity, which workers’ compensation limits.
The table below summarizes how workers’ compensation benefits compare to economic damages.
| Category | Workers’ Compensation | Tort Claim |
|---|---|---|
| Medical bills | Yes | Yes |
| Lost wages | Capped at 66 2/3% | Full wage loss |
| Future earning capacity | Limited | Full |
| Vocational rehab | Yes | Yes |
| Future medical | Limited by ICA rules | Full |
Non-Economic Damages
These are damages that workers’ compensation will not pay for, and which we mentioned above (pain and suffering, emotional distress, anxiety and depression, loss of companionship, and so on).
These forms of harm are intangible, so proving them can be more challenging than proving economic damages. But in a personal injury claim, non-economic damages often amount to more than economic damages.
Punitive Damages
Punitive damages require proof of an ‘evil mind,’ which is a higher standard than the willful-misconduct exception and is rarely met. But because punitive damages require specific intent to injure, they may be more of a possibility in a lawsuit against your employer because a frequent element of such a claim is purposeful behavior on the part of the defendant.
If you qualify to receive them, punitive damages can be a substantial part of a judgment award. They can also increase the potential value of any settlement you negotiate, often taking the form of a multiple of your economic damages.
Factors that Can Affect Your Damages Compensation in a Chemical Exposure Lawsuit
Your personal injury claim against your employer will, of course, allege that you were exposed to hazardous substances. To add value to your claim, your chemical exposure lawyer will also seek to establish additional elements, including:
- The kind of chemicals you were exposed to. Chemicals have varying toxicities, which determine how dangerous they can be to human health. Some chemicals might cause you immediate harm on contact, while others may manifest long-term effects later.
- The duration of your exposure. The length of time you were exposed to a hazardous chemical is crucial in determining your level of risk. Prolonged exposure often leads to more severe health effects, which can accumulate over time.
- The frequency of your exposure. The number of times you were exposed to a harmful chemical can significantly impact your health. Frequent exposure, even to lower levels of a toxic substance, might increase the likelihood that you develop compensable health issues.
- Chemical concentration levels. The amount of substance in the air or on surfaces can directly influence toxicity. High concentrations, even over short periods, can pose significant risks.
- The mode of your exposure. Your chemical exposure can occur in several ways, including inhalation exposure, skin contact, ingestion, and injection through puncture wounds from contaminated objects. Each mode of exposure presents unique risks and contributes to the overall toxicity experienced by the individual.
- Your individual susceptibility. Personal factors, such as your age, pre-existing health conditions, and genetics, can affect how your body reacts to chemical exposure.
Do You Have a Claim Against Your Employer for Chemical Exposure? Call a Chemical Exposure Attorney Today
Most of the time, absent a showing of circumstances showing that your employer’s conduct was more than negligent in nature, if you suffer harm from exposure to hazardous chemicals or other substances in your work, then Arizona workers’ compensation insurance is your recourse.
If this has happened to you, then an experienced workers’ compensation attorney at Matt Fendon Law Group can help you gather evidence to support your claim, file your claim with the Industrial Commission of Arizona (the ICA), and represent you in negotiations with your employer’s workers’ compensation insurance company to settle your claim.
In less common situations, you may have a personal injury claim against your employer directly.
This includes cases where the employer’s conduct rises to willful misconduct that is the personal act of the employer under ARS 23-1022(B), cases where the employer failed to carry the workers’ compensation insurance Arizona law requires, and cases where you rejected workers’ compensation coverage in writing before your injury under ARS 23-906.
One of our Arizona workers’ compensation lawyers can help you determine whether you have a claim against your employer for damages, and can help you get in touch with a quality chemical exposure attorney if so.
To learn more about your legal options after a work-related toxic chemical exposure, call Matt Fendon Law Group at (800) 229-3880 to speak with one of our workers’ compensation legal professionals in a free initial consultation, or use our online contact form.
