Police officer can bring tort suit for work-related illness

A New York state police officer can bring a liability lawsuit against his employer for work-related mesothelioma because workers compensation exclusive remedy provisions don’t apply to a state injury benefit law for police officers, the state's highest court ruled.

According to court records, James R. Diegelman worked as a police officer for the City of Buffalo, New York from 1968 until 1995. In 2012, he was diagnosed with mesothelioma, a cancer caused by exposure to asbestos.

Mr. Diegelman and his wife, Andrea M. Diegelman, claimed that exposure to asbestos happened during his employment at properties owned by the City of Buffalo and the city’s board of education, which were used by the police department, according to court records. Mr. and Mrs. Diegelman filed a liability claim against the City of Buffalo, but the city said the claim should be denied due to exclusive remedy provisions under New York’s workers comp law.

Court records show that the City of Buffalo does not provide workers comp benefits to its police officers "like many other large municipalities." However, a New York law, section 207-c, provides the "full amount of his regular salary or wages" along with the cost of medical care to police officers or who are injured or become ill because of their job duties.

Another New York law, 205-e, allows police department employees and their families to pursue tort claims when they suffer an injury or die because of a person or entity's "neglect, omission, willful or culpable negligence,” according to a copy of the law posted online. However, the law states that it does not override provisions of New York’s workers comp law.

The New York Supreme Court granted the Diegelmans permission to file a tort claim against Mr. Diegleman's employer, but the court's appellate division reversed that decision, finding the Diegelmans' claim to be "patently meritless," records show. The Diegelmans appealed.

The New York Court of Appeals, the state's high court, ruled 6-1 Monday that the Diegelmans could pursue a tort claim against Mr. Diegelman's employer. The court found that workers comp exclusive remedy provisions do not apply to the state's benefit law for injured or ill police officers.

“The language of section 205-e prohibits only recipients of workers' compensation benefits from commencing suit against their employers; it does not, by its terms, bar the commencement of suits by recipients of section 207-c benefits — which we have repeatedly recognized to be separate and distinct from workers' compensation benefits,” the court majority ruled.

The dissenting justice in the case argued that 205-e was written to allow public employers to recoup the cost of injury benefits for police officers by pursuing negligence claims against third-parties.

"Nowhere in the legislative history of the enactment of section 205-e did the Legislature indicate that it intended for the injured employee to commence a lawsuit against the municipal employer providing section 207-c benefits," the dissent reads.