Workers' Compensation for Asbestos Exposure

From the 1930s through the 1980s, asbestos was a fact of life in American industry. Pipefitters, electricians, mechanics, shipbuilders, and factory workers handled it daily. They cut it, mixed it, installed it, and breathed it, often without any warning that it could kill them. Many brought the fibers home on their clothes, unknowingly exposing their families.

Decades later, the consequences arrived: mesothelioma, lung cancer, asbestosis, and other devastating diseases. Learn more about the diseases asbestos can cause

For workers harmed by asbestos exposure, workers' compensation offers a safety net. It's a no-fault system, meaning you can receive benefits without proving your employer did anything wrong. Medical coverage, wage replacement, and disability payments are available simply because you got sick on the job.

But workers' comp has limits. For one thing, it doesn't cover pain and suffering. And benefits are capped. While workers' compensation treats workers fairly for small, temporary injuries, it's woefully inadequate for workers who develop illnesses like lung cancer or mesothelioma. That's why workers' compensation is often just the starting point, not the finish line.

What Is Workers' Compensation?

Workers' compensation is a tradeoff written into law. If you are injured or become ill because of your job, you may receive statutory benefits without proving that your employer was negligent. In exchange, you usually give up the right to sue your employer for the same injury or disease.

This is called the exclusive remedy rule, and it shapes almost every asbestos workers' compensation claim.

Most workers' compensation claims are handled under state law. Each state has its own rules for deadlines, benefits, covered diseases, employer immunity, and exceptions. Civilian federal employees are different. They generally use the Federal Employees' Compensation Act, or FECA, instead of a state workers' compensation system.

FECA serves a similar role to state workers' comp, but it is a separate federal system. It is administered by the U.S. Department of Labor's Office of Workers' Compensation Programs. For federal employees with asbestos-related diseases, FECA may provide medical benefits, wage-loss compensation, impairment benefits, vocational rehabilitation, and survivor benefits.

The key point is simple: private, state, and local employees usually look to state workers' comp. Civilian federal employees usually look to FECA. Shipyard workers, railroad workers, and seamen have their own systems, which we cover below.

What Workers' Comp Can Provide

Workers' comp may provide medical coverage for treatment related to your asbestos disease. This can include doctor visits, diagnostic imaging, chemotherapy, immunotherapy, surgery, oxygen equipment, medications, and other care connected to the disease.

Workers' comp may also provide wage replacement if your illness prevents you from working. Depending on the state and the facts of your case, that can include temporary disability while you are in treatment, permanent partial disability if you return to work with limitations, or permanent total disability if you can never work again.

If the disease is fatal, surviving spouses, children, or other dependents may be eligible for death benefits and reimbursement for funeral expenses.

Many people diagnosed with mesothelioma have already retired. If you're no longer working, wage-replacement benefits may be limited in many states, because the disease isn't costing you a paycheck. Medical benefits and death benefits for your family can still apply.

FECA provides similar categories of benefits for eligible civilian federal employees, but the claim goes through the federal system rather than a state workers' compensation board.

What Workers' Comp Does Not Provide

Workers' comp does not compensate you for pain and suffering. It does not pay for emotional distress, loss of enjoyment of life, or the full toll the disease takes on your family. Benefits are capped by statute and often cover only a fraction of the losses caused by mesothelioma, lung cancer, or severe asbestosis.

And because workers' comp is usually the exclusive remedy against the employer, you typically cannot sue your employer to recover what workers' comp leaves out.

But that does not mean workers' comp is your only option. The exclusive remedy rule usually protects the employer. It does not automatically protect the manufacturers that made the asbestos products, the contractors that supplied or installed them, the property owners that controlled the jobsite, or the bankruptcy trusts established for people with asbestos-related diseases.

Clarence Borel's case shows exactly how this works.

The Exclusive Remedy Rule: What Borel's Case Shows

Clarence Borel's lawsuit, filed in 1969, became the first successful failure-to-warn case against asbestos manufacturers. A jury ruled for his family in 1971, and the Fifth Circuit Court of Appeals affirmed the verdict in 1973. Every asbestos lawsuit since has followed the path his case opened. But before Borel sued the manufacturers, he filed a workers' compensation claim, and his case shows exactly how the exclusive remedy rule works in practice.

Borel spent 33 years as an insulator, working for contractors such as Fuller-Austin Insulation Company that sent crews to refineries and chemical plants across Texas and Louisiana, including the Texaco refinery in Port Arthur and Mobil Chemical in Beaumont. He worked for the contractors, but he worked at those refineries.

In January 1969, a lung biopsy showed asbestosis. Borel was working for Fuller-Austin at the time, so he filed a workers' compensation claim against Fuller-Austin's insurance carrier, National Surety Corporation. On June 4, 1969, he settled for $13,081.10: $8,000 plus $5,081.10 for medical and hospital bills.

Eight months later, in February 1970, surgeons removed his right lung, and the pathology came back: mesothelioma. Clarence Borel died on June 3, 1970, less than a year after accepting the settlement. He was 57.

Because of the exclusive remedy rule, that $13,081.10 was the only compensation Borel could ever receive from Fuller-Austin. For all that he endured — the lost income, the suffering, the life cut short — he and his family could not sue his employer. And the settlement was reached before anyone knew he had mesothelioma.

But the exclusive remedy rule didn't protect any company other than Fuller-Austin. Borel could sue the manufacturers who made the asbestos products he worked with, so he sued twelve companies, including Johns-Manville, Pittsburgh Corning, Owens Corning, and others. The exclusive remedy rule didn't shield them because they were not his employer.

If a similar case were filed today, the worker's lawyers would also investigate whether a premises-liability claim existed against the property owner. Borel worked at Texaco's refinery, but he worked for Fuller-Austin. Workers' comp would not automatically bar a claim against Texaco as the premises owner, though the strength of that claim would depend on the law of the state, the facts of the worksite, and any contractor-immunity or statutory-employer defenses.

The exclusive remedy rule is real, but it's narrower than most people think. Yes, it blocks lawsuits against your employer, but it leaves every other path open.

Read Borel's full story.

Who Can File Workers' Compensation Claims

Workers' compensation covers employees. If you were directly employed by a company that carried workers' comp insurance, and you developed an asbestos-related disease from exposure on the job, you can file a claim. Benefits are available regardless of fault—even if you didn't always wear your respirator or follow safety protocols.

Family members are a different story. Workers' comp only protects employees, not the people who lived with them. Spouses and children exposed to asbestos through contaminated work clothes have no workers' comp claim, no matter how sick they become.

Clarence Borel's family learned this firsthand. His daughters remember shaking the dust from his work clothes in the garage before washing them. "It was like snow," they recalled. Clarence even brought asbestos home for his children to use as Christmas tree flocking. Decades later, four of his six children developed asbestosis from that secondary exposure.

They couldn't file workers' comp claims because they were never direct employees of any of the companies Clarence worked with or for. But they weren't without options. Family members with take-home exposure can pursue product liability claims against the manufacturers whose products contaminated their homes, and they can file trust claims against companies that have since gone bankrupt.

Contractors present a special situation. Workers' comp generally bars lawsuits only against your own employer, so if you worked at a facility owned by another company, suing that owner is permitted in many cases. But these claims are fact-specific. The outcome depends on the state's law, who controlled the work, what the owner knew about the asbestos, and defenses some states give owners who hire contractors. Texas, for example, requires proof that the owner controlled the work and actually knew of the danger. Learn more about premises liability lawsuits.

Federal Employees and FECA

Civilian federal employees usually do not file state workers' compensation claims. They file through FECA.

FECA may apply if you were exposed to asbestos while working as a civilian employee of the federal government. That can include federal building maintenance workers, federal construction or renovation workers, Postal Service employees, federal inspectors, civilian shipyard workers employed by the federal government, VA facility workers, and other federal employees exposed to asbestos on the job.

Asbestos-related FECA claims are usually occupational disease claims because diseases like mesothelioma, lung cancer, and asbestosis develop from exposures that occurred over time, not from a single one-day accident. Federal employees generally use Form CA-2 for occupational disease claims, and DOL instructs CA-2 claimants to review the appropriate CA-35 evidence checklist.

FECA has its own deadlines. Claims generally must be filed within three years. For latent conditions, that period generally begins when the injured employee becomes aware, or reasonably should have been aware, of a possible relationship between the medical condition and federal employment. If exposure continues after that awareness, the time may run from the last exposure.

FECA is usually the exclusive remedy against the United States. That means a federal employee generally cannot sue the federal government or a federal agency for the same work-related asbestos disease. But FECA does not necessarily eliminate claims against third parties, such as asbestos manufacturers, suppliers, contractors, premises owners, or asbestos bankruptcy trusts.

In other words, a federal employee may have a FECA claim and still need a full investigation into third-party asbestos claims.

Shipyard Workers and Longshoremen

Workers in private shipyards, longshoremen, and other harbor workers are often covered by a separate federal system: the Longshore and Harbor Workers' Compensation Act, administered by the U.S. Department of Labor. Asbestos exposure in shipyards was among the heaviest in American industry; Clarence Borel himself worked at Consolidated Steel's shipyard in Orange, Texas.

The Longshore Act has a serious trap. If you settle a claim against a manufacturer or another third party for less than the Longshore benefits you're entitled to, without getting written approval from your employer and its insurer first, you can lose your Longshore benefits entirely. That makes the order and terms of every settlement critical.

Civilian employees of Navy shipyards are federal employees, so they use FECA instead.

Railroad Workers and Seamen

Railroad workers aren't covered by workers' comp at all. Instead, they sue the railroad under the Federal Employers' Liability Act (FELA), which requires showing the railroad was at least partly negligent but allows full damages, including pain and suffering. Learn more about railroad asbestos claims.

Merchant seamen are also outside workers' comp. They can bring claims against their employer under the Jones Act and general maritime law. Learn more about maritime asbestos claims.

Workers' Comp Liens: The Insurer Gets Paid Back First

Workers' comp and lawsuits work side by side, but they're connected in one important way. In most states, when you recover money from someone other than your employer, such as a manufacturer or a premises owner, the workers' comp insurer has a right to be repaid what it paid you out of that recovery. This is called a lien, or subrogation.

The details vary by state. Many states reduce the repayment by the insurer's share of the attorney's fees, and some let the insurer take a credit against future benefits instead. Whether a lien reaches asbestos trust payments also depends on the state.

Clarence Borel's case shows how this works. About six weeks after Borel sued the manufacturers, National Surety asked the court to let it join the lawsuit. Under Texas law, it argued, it was subrogated to Borel's rights to the extent of the $13,081.10 it had paid him, so it "actually owns a portion of the cause of action." In January 1970, Borel's lawyers agreed that if he won, National Surety would be repaid its $13,081.10 out of the first money the manufacturers paid.

In other words, even Borel's small comp settlement came back out of his lawsuit. A lien doesn't make a lawsuit less worthwhile, but it has to be planned for. We account for every lien from the start, and negotiate it down where the law allows, so families know what they'll actually take home.

State Laws Vary Dramatically

Whether workers' compensation helps you or limits you depends heavily on where you file. Every state has its own rules for asbestos-related claims, and the differences can be dramatic.

Clarence Borel worked in both Texas and Louisiana. His case illustrates why state law matters so much.

Texas generally steers workers toward the workers' compensation system. If your employer carried coverage, you're typically barred from suing them directly, even if their negligence caused your illness. Benefits are limited: medical coverage, partial wage replacement, and possibly an impairment rating for long-term disability. But no pain and suffering. No emotional distress. And no full recovery for what the disease actually takes from you.

Borel's Texas comp claim settled for $13,081.10, and under the exclusive remedy rule, that was all he could ever recover from Fuller-Austin.

Texas also has two features most states don't:

• Employers can opt out. Texas is the only state where most private employers can choose not to carry workers' comp. If your employer didn't carry coverage, you can sue them directly for negligence, and they lose some of their usual defenses, such as arguing that you were partly at fault.
• A narrow exception for deaths. The surviving spouse and children of a worker whose death was caused by the employer's gross negligence or intentional conduct can sue the employer for exemplary (punitive) damages. In practice, these cases rarely succeed. The family must prove, by clear and convincing evidence, that the company itself, through a corporate officer or high-level manager rather than a foreman or supervisor, actually knew of an extreme risk and consciously disregarded it. In asbestos cases, that usually means proving what specific managers knew decades ago. Exemplary damages are also capped by statute, and they're available only in death cases, never to a worker who is still living.

Louisiana often works differently. In some asbestos cases involving older exposures, Louisiana courts have allowed tort claims against employers because the disease was not covered by the historical workers' compensation law. In other situations, exclusive remedy may still apply. Where a tort claim is allowed, it opens the door to compensation for pain and suffering, full lost wages, diminished quality of life, and emotional distress. The potential recovery is dramatically higher.

Borel's attorney, Ward Stephenson, who had also handled his workers' comp claim, filed the product liability lawsuit in federal court in Beaumont, near the Borels' home in Groves, Texas.

Choice of Law Matters. When asbestos exposure happened across multiple states, determining which state's laws apply can make or break your case. Some states cap benefits or exclude certain diseases. Others allow lawsuits that Texas or similar states would block. If you worked in multiple locations over your career, where you file (and under which state's law) can mean the difference between a modest payout and full compensation.

That is why working with attorneys who understand asbestos, workers' compensation, FECA, and state-by-state law is critical.

See how the laws work in your state.

Workers' Comp Is Just One Piece of the Compensation Puzzle

Clarence Borel's workers' compensation claim paid $13,081.10, which was not nearly adequate for his injuries. He lost years of earning capacity. His wife Thelma watched him waste away, gave him morphine shots for the pain, and served coffee to the defense attorneys who came to depose him while he was dying. Workers' comp covered none of that.

If Borel were diagnosed today, his lawyers would look beyond workers' comp:

Workers' compensation against Fuller-Austin's insurer could provide limited benefits without proving employer fault, with the insurer's lien on any lawsuit recovery planned for from the start. (For a civilian federal employee, the workers' compensation piece of the puzzle may be FECA instead of state workers' comp. But the broader investigation is still necessary. A federal employee may need to coordinate FECA with third-party asbestos lawsuits, trust claims, and other benefits.)

Premises-liability claims would be investigated against refinery or jobsite owners, depending on the state law and the facts of the worksite. Full damages would be available, including pain and suffering and wrongful death compensation for Thelma. Learn more about premises liability lawsuits.

Product liability claims against any asbestos manufacturers still solvent. Most of the companies Borel originally sued are now bankrupt, but investigation might uncover other responsible parties. Learn more about product liability lawsuits.

Trust claims against the bankruptcy trusts established by Johns-Manville, Pittsburgh Corning, Owens Corning, and dozens of other companies. With Borel's exposure history and mesothelioma diagnosis, trust payments alone could approach or exceed $1 million. Learn more about asbestos trust claims.

Social Security Disability under the Compassionate Allowances program, which fast-tracks approval for mesothelioma patients. Learn more about Social Security disability.

Coordinating every available claim is what turns a $13,000 settlement into a full compensation strategy that protects a family properly.

Learn more about why families choose us.

Workers' Compensation and Asbestos Claims FAQ

Can I still file an asbestos lawsuit if I file for workers' compensation?

Yes, in many cases. Workers' compensation may limit claims against your employer, but it does not necessarily prevent lawsuits against other responsible parties.

You may still have claims against asbestos product manufacturers, suppliers, contractors, premises owners, or other companies that contributed to your exposure. You may also qualify for asbestos bankruptcy trust claims. Workers' comp is often only one part of the full compensation picture.

Will workers' comp take part of my lawsuit recovery?

Often, yes. In most states, the workers' comp insurer has a lien that lets it be repaid out of a lawsuit recovery for what it paid you, usually reduced by its share of the attorney's fees. Clarence Borel's comp insurer joined his lawsuit for exactly that reason. We identify every lien at the start and negotiate it where the law allows, so you know what you'll actually receive.

Should I settle my workers' comp claim?

Be careful about settling early. A comp settlement can close your comp claim for good, and depending on the state and the settlement's wording, that can include problems that haven't been diagnosed yet. Borel settled his comp claim for asbestosis eight months before he learned he had mesothelioma. For shipyard workers under the Longshore Act, the order of settlements can also put your benefits at risk. Have every claim reviewed together before you sign anything.

Are federal employees covered, and does FECA block a lawsuit?

Civilian federal employees usually go through FECA, the federal workers' compensation system, rather than a state one. FECA can cover asbestos diseases like mesothelioma, lung cancer, and asbestosis when they're tied to federal employment. It's generally the exclusive remedy against the United States, but it doesn't necessarily block claims against asbestos manufacturers, suppliers, contractors, premises owners, or bankruptcy trusts.

What if I was exposed to asbestos in more than one state?

Multi-state exposure can make an asbestos workers' compensation claim more complicated. Different states have different rules for filing deadlines, benefit amounts, covered diseases, employer immunity, and exceptions to the exclusive remedy rule.

If you worked in several states, the law that applies can make a major difference. One state may limit you to workers' comp, while another may allow broader claims under certain facts. Your legal team should review your full work history before deciding where and how to file.

What if my employer is no longer in business?

You may still have options. Workers' compensation coverage may have existed when you were exposed, even if the employer later closed, merged, changed names, or went bankrupt.

You may also have claims against asbestos product manufacturers, premises owners, contractors, suppliers, or bankruptcy trusts. Many asbestos companies created trust funds specifically to compensate people exposed to their products. A closed employer does not necessarily mean your case is over.

Should I file workers' comp, a lawsuit, or asbestos trust claims first?

The answer depends on your work history, diagnosis, exposure sites, employer, state law, and the companies responsible for the asbestos products you encountered.

Workers' compensation may provide medical and wage-loss benefits, but it does not usually provide full compensation for a serious asbestos disease. Lawsuits and trust claims may provide additional recovery, but they have separate deadlines and proof requirements. The safest approach is to review all possible claims together before filing or settling any one claim.