      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

ALICIA WEDDLE, as Personal             )
Representative of the Estate of        )
JOSEPH GONZON, Deceased,               )
                                       )
            Claimant/Appellant,        )
                                       )
      v.                               )        C.A. No. N18A-06-004 ALR
                                       )
BP AMOCO CHEMICAL                      )
COMPANY,                               )
                                       )
            Employer, Appellee.        )

                          Submitted: February 1, 2019
                            Decided: April 26, 2019

                 On Appeal from the Industrial Accident Board
                      REVERSED and REMANDED

                                  OPINION




David T. Crumplar, Esquire, Patrick C. Gallagher, Esquire, Jacobs & Crumplar,
P.A., Attorneys for Appellant.

Paul A. Bradley, Esquire, Antoinette D. Hubbard, Esquire, Maron Marvel Bradley
Anderson & Tardy LLC, Attorneys for Appellee.

Rocanelli, J.
      This is an appeal from a decision of the Industrial Accident Board (“IAB”)

dismissing a petition to determine compensation due for an employee’s asbestos-

related disease on the grounds that the employee waived all workers’ compensation

claims arising from asbestos exposure in the workplace, both known and unknown,

in a settlement thirty-four years prior to manifestation of the disease. The question

of whether an employee is entitled to workers’ compensation for mesothelioma

despite settling claims for asbestosis more than thirty years previously has not

previously been addressed by this Court.

              FACTUAL AND PROCEDURAL BACKGROUND

      Joseph Gonzon (“Employee”) was an employee of BP Amoco Chemical

Corporation (“Employer”).1 During the period of employment from 1968–1980,

Employee was exposed to asbestos and developed asbestosis. In 1982, Employee

settled his claims for work-related asbestosis (“1982 Settlement”). Thereafter, in

November 2016, Employee was diagnosed with peritoneal mesothelioma. In April

2017, Employee filed a claim for workers’ compensation for mesothelioma

developed as the result of exposure to asbestos in the workplace (“Mesothelioma

Petition”). Employee died on September 28, 2017 as the result of peritoneal

mesothelioma. Employee is survived by his wife. In his Mesothelioma Petition,



1
 It is undisputed that Employee formerly worked for Avisun, which is now owned
by BP Amoco Corporation.

                                           1
Employee sought a finding of compensability for his mesothelioma as well as a

claim for death benefits for his surviving spouse.

      Employer filed a motion to dismiss the Mesothelioma Petition on the grounds

that Employee was not entitled to additional compensation because Employee had

released all claims related to asbestos exposure against Employer in 1982.

Employee claimed that the 1982 Settlement pertained only to the earlier manifested

asbestosis as set forth in a workers’ compensation claim as well as a tort claim. After

a hearing, the IAB issued a decision on May 24, 2018 dismissing Employee’s

Mesothelioma Petition on the grounds that the 1982 Settlement precluded Employee

from seeking additional compensation related to asbestos exposure (“Mesothelioma

Decision”).2 This appeal followed in which the question presented is whether

Employee’s mesothelioma, diagnosed in November 2016, was included in the 1982

Settlement.

                            STANDARD OF REVIEW

      This Court has jurisdiction over appeals from administrative agencies,

including appeals from the IAB.3        This Court’s appellate role is limited to

determining whether the IAB’s conclusions are supported by substantial evidence




2
  Gonzon v. BP Amoco Chem. Co. and Kraft Food Inc., Appeal No. 1456181 &
1456182 (Del. I.A.B. May 24, 2018).
3
  29 Del. C. § 10142(a).

                                          2
and free from legal error.4 Substantial evidence is “such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.”5 The Court

reviews the IAB’s legal determinations de novo, which “requires the Court to

determine whether the Board erred in formulating or applying legal principles.”6

“Absent errors of law, however, the standard of appellate review of the IAB’s

decision is abuse of discretion.”7

                                     DISCUSSION

    I.      The IAB Incorrectly Ruled that Mesothelioma is a Change in
            Condition When it is Legally a New Accident Because Delaware is
            a Multi-Disease Jurisdiction.

         Cumulative disease cases are unlike other work-related injuries. Given the

life-consuming maturation of the harm from asbestos exposure, an employee may

develop a series of asbestos-related diseases over time.8 Accordingly, Delaware has

adopted a multi-disease approach, treating each distinct diagnosis attributable to



4
  Glanden v. Land Prep, Inc., 918 A.2d 1098, 1100 (Del. 2007); Johnson v. Chrysler
Corp., 213 A.2d 64, 66 (Del. 1965).
5
  Roos Foods v. Guardado, 2016 WL 6958703, at *3 (Del. Nov. 29, 2016); Olney v.
Cooch, 42 A.2d 610, 614 (Del. 1981).
6
  Guardado, 2016 WL 6958703, at *3; Munyan v. Daimler Chrysler Corp., 909 A.2d
133, 136 (Del. 2006); Estate of Fawcett v. Verizon Delaware, Inc., 2007 WL
2142849 (Del. Super. July 25, 2007).
7
  Glanden, 918 A.2d at 1101 (citing Digiacomo v. Bd. of Pub. Educ., 507 A.2d 542,
546 (Del. 1986)).
8
  DaBaldo v. URS Energy & Const., 85 A.3d 73, 77-78 (Del. 2014); Sheppard v.
A.C. & S. CO., et al., 498 A.2d 1126, 1134 (Del. Super. May 16, 1985), aff’d, 503
A.2d 192 (Del. 1986).

                                          3
asbestos exposure as a separate claim.9 This approach takes into account the unique

problem of latent disease cases where the same exposure may lead to separate and

distinct diseases, the symptoms of each manifesting years apart.10

      In Sheppard v. A.C. & S. CO., et al., this Court specifically addressed an

employee who was exposed to asbestos in the workplace and who first contracted

asbestosis, a non-malignant pulmonary disease with an average latency period of 17

years, and later also contracted mesothelioma, a malignant disease with an average

latency period of 25-40 years.11 In Sheppard, this Court held, and the Delaware

Supreme Court affirmed, that the statute of limitations began to run at different times

for each diagnosis based upon when the employee knew or should have known that

his physical condition was attributable to asbestos exposure.12 Similarly, in DaBaldo

v. URS Energy & Const., the Delaware Supreme Court ruled that the statute of

limitations for an employee’s asbestosis claim did not begin to run until the

employee learned of his diagnosis.13

      Here, in the Mesothelioma Decision, the IAB incorrectly equated the

diagnosis of future occupational diseases to the progression, worsening, or change

of condition that is commonly seen with other work-related injuries. Employee was


9
  DaBaldo, 85 A.3d at 77.
10
   Sheppard, 498 A.2d at 1132.
11
   Id.
12
   Id. at 1134.
13
   DaBaldo, 85 A.3d at 80.

                                          4
diagnosed with mesothelioma thirty-four years after settling his asbestosis claim

with Employer. While asbestosis and mesothelioma may both be caused by asbestos

exposure, they are two different diseases.14 In light of decisional law declaring

Delaware a multi-disease jurisdiction, Employee’s manifestations of each disease,

and not the exposure to asbestos, are considered separate accidents for purposes of

workers’ compensation. Employee’s diagnosis of mesothelioma thirty-four years

after the settlement of his asbestosis claim is not a changed condition of the same

asbestos-related injury; rather, it is a new accident for which Employee has a

separate claim. Accordingly, the IAB made an incorrect legal determination by

finding that the exposure to asbestos is the accident and that the manifestation of

mesothelioma is simply a change of Employee’s condition. Instead, development of

mesothelioma is a separate and distinct accident for which Employee is entitled to

workers’ compensation.

      II.      The IAB Made Incorrect Legal Determinations by Resolving
               Contractual Ambiguity Against the Employee and by Misapplying
               Settled Law on Statute of Limitations.

            In 1982, Employee settled claims for work-related exposure to asbestos with

Employer, including tort claims and workers’ compensation claims. At that time,

Employee had developed asbestosis. In connection with the 1982 Settlement,




14
     Id. at 78.

                                             5
Employee and Employer executed a tort release,15 a workers’ compensation release

(“Workers’ Compensation Release”), and a declaration of dismissal (“Declaration”)

that was filed with the IAB on May 11, 1982. Employee’s only pending workers’

compensation claim was for asbestosis (“Asbestosis Petition”). The IAB dismissed

Employee’s Asbestosis Petition and “all claims relating to this cause of action.”16

      As specified by the Workers’ Compensation Act, an employer may only be

relieved of workers’ compensation liability by agreement between the parties or by

an award by the IAB.17 An agreement between the employer and the injured

employee is binding once it is filed and approved by the IAB.18 Generally, the

Workers’ Compensation Act preserves an employee’s right to petition the IAB for

additional compensation after a settlement agreement is approved if there is a change

in the employee’s physical condition.19 This Court has ruled that an employee may



15
   Delaware recognizes the validity of general releases in relation to personal injury
claims, which “are executed to resolve the claims the parties know about as well as
those that are unknown or uncertain.” Hicks v. Sparks, 2014 WL 1233698, at * 2
(Del. Mar. 25, 2014). Here, there is no dispute that the tort release is valid and
Employee waived all future common law claims with respect to asbestos exposure
in the workplace.
16
   Gonzon v. Amoco Chemicals Corp. (Del. I.A.B. Oct. 12, 1982).
17
   19 Del. C. § 2305; English v. Reed Trucking, 2016 WL 3637341, at *7 (Del. Super.
Mar. 24, 2016) (citing Ellison v. City of Wilmington, 301 A.2d 303, 306 (Del. Super.
1972); Am. Commc’n Installations, Ltd. V. DiNorscia, 1985 WL 552196, at *4 (Del.
Super. Sept. 10, 1985) (explaining that any exception from liability must be specified
by the Workers’ Compensation Act).
18
   19 Del. C. § 2344(a).
19
   19 Del. C. § 2347.

                                          6
agree to release an employer’s obligation to pay compensation for an acknowledged

work-related injury.20

      Employee’s Workers’ Compensation Release, which specifically referenced

Employee’s asbestosis claim, states that it “settled all claims” arising out of

Employee’s injury related to exposure to asbestos.21          Employee’s Workers’

Compensation Release goes on to state that, only for the purpose of releasing

Employee’s workers’ compensation case with Employer, “any and all claims for

workmen’s [sic] compensation benefits resulting from asbestos exposure of any

kind, based upon employment with [Employer], are barred for workmen’s [sic]

compensation purposes by the one (1) year Statute of Limitations.”22

      With respect to its applicability to Employee’s Mesothelioma Petition, the

IAB found that the Workers’ Compensation Release was ambiguous and resolved

that ambiguity against Employee. The IAB also improperly applied the law on

statute of limitations. These conclusions are legally incorrect.

      First, the IAB found Employee’s Workers’ Compensation Release to be

ambiguous. Specifically, the IAB could not determine which claims were intended

to be released by the parties. The IAB stated that the language of the Workers’

Compensation Release seemed broad enough to preclude future workers’


20
   Chavez v. David’s Bridal, 979, A.2d 1129, 1134 (Del. Super. 2008).
21
   Workers’ Compensation Release at 1.
22
   Id.

                                          7
compensation claims arising from Employee’s asbestos exposure, but acknowledged

“it is unclear how the parties could stipulate that, for example, a claim for

mesothelioma that would not exist until 2016 was barred by a one-year statute of

limitations in 1982.”23 Then, the IAB resolved the ambiguity in favor of Employer

by reference to the Declaration which bars future claims for “all unknown injuries

and damages arising out of and from employment, as well as those injuries and

damages that are not known that may arise from alleged asbestos-related

occupational diseases arising out of and from employment and/or exposure to

asbestos….”24 The IAB was incorrect as a matter of law to resolve any ambiguity

in favor of Employer. Under the Delaware Workers’ Compensation scheme, the

IAB must resolve ambiguity in favor of the worker.25 Once ambiguity in the

Workers’ Compensation Release is resolved in favor of Employee, the Workers’

Compensation Release is applicable only to Employee’s Asbestosis Petition and

does not waive Employee’s right to workers’ compensation for a new and different

asbestos-related disease that might arise in the future.

      Second, while the IAB correctly stated the law with respect to statute of

limitations, the IAB incorrectly applied the law. Specifically, the IAB correctly


23
   Mesothelioma Decision at 13.
24
   Declaration at 1-2.
25
   Hirneisen v. Champlain Cable Corp., 892 A.2d 1056 (Del. 2006) (“The liberal
interpretation is used to resolve any reasonable doubts in favor of the worker because
it was for the workers’ benefit that the act was passed.”).

                                           8
stated that the statute of limitations in an occupational disease case “‘does not begin

to run until the claimant, as a reasonable person, should recognize the nature,

seriousness and probable compensable nature of the injury or disease.’”26

Nevertheless, the IAB incorrectly concluded that the 1982 Settlement released

Employer of workers’ compensation liability for Employee’s development of future

unknown occupational diseases related to asbestos exposure in the workplace. This

conclusion is inconsistent with settled law that mesothelioma is a different disease

and any claims based on this new disease are subject to a different statute of

limitations. By concluding that the statute of limitations precludes Employee from

recovering workers’ compensation benefits for his mesothelioma, even though this

disease did not manifest until 2016, thirty-four years after the 1982 Settlement, the

IAB made an incorrect legal determination.

     III.   Employee’s Workers’ Compensation Claims Arising from
            Mesothelioma Were Not Resolved by the 1982 Settlement.

        Parties may only agree to relieve an employer of liability as permitted by the

Workers’ Compensation Act. It is undisputed that parties may settle a workers’

compensation claim for a known, compensable injury.27 However, an employee


26
   Mesothelioma Decision at n. 5 (quoting Geroski v. Playtex Family Products, 1996
WL 69770, at *1 (Del. Jan. 24, 1996)).
27
   Christiana Care Health Services v. Davis, 127 A.3d 391, 395 (Del. 2015) (“The
ability of parties to settle a workers’ compensation claim is undisputed, and
Delaware law favors such agreements.”); Chavez, 979 A.2d at 1134 (“[I]n a
settlement agreement, a party may effectively waive his or her right to petition the

                                           9
cannot absolve an employer of responsibility for an occupational disease that has not

yet manifested. In dismissing Employee’s Mesothelioma Petition, the IAB failed to

take into consideration that, pursuant to settled law in Delaware as a multi-disease

jurisdiction, Employee’s mesothelioma was an entirely new accident. The statute of

limitations for mesothelioma did not start to run until Employee knew or should have

known he had this disease.       Unlike the progression, worsening, or change of

condition of work-related injuries for which an employee can waive the right to

petition the IAB for additional compensation, an employer and employee cannot

agree to waive workers’ compensation protection with regard to a future accident.28

Because mesothelioma is a new accident, Employee could not have waived his

workers’ compensation benefits before this new disease was known to him.

      An agreement that an employee waives or dismisses a claim for any injuries

resulting from an accident that has not yet occurred is void both as a matter of public

policy and under the Workers’ Compensation Act. Accordingly, as a matter of law,

the 1982 Settlement which released Employer of the obligation to pay workers’



[IAB] for additional compensation by agreeing to free an employer for responsibility
of the injury.”); Konstantopoulos v. Westvaco Corp., 690 A.2d 936, 939 (Del. 1996)
(Delaware courts are to interpret the Workers’ Compensation Act “liberally so as to
effectuate its remedial purpose.”).
28
   Such an agreement is not contemplated under the Workers’ Compensation Act and
there is no case law directly on point. Nevertheless, in accordance with Sheppard
and DaBaldo, this Court declines to recognize the validity of an agreement waiving
workers’ compensation protection with regard to an unknown future accident.

                                          10
compensation for Employee’s asbestosis claim is not valid to relieve Employer of

the obligation to pay workers’ compensation to Employee for mesothelioma that was

diagnosed in 2016.

                                CONCLUSION

      For the reasons stated, the Court hereby finds that the IAB committed legal

error in its decision to dismiss Employee’s Petition to Determine Compensation Due

for mesothelioma developed as the result of exposure to asbestos in the workplace.

This matter is hereby remanded for proceedings consistent with this Opinion and

Order.

      NOW, THEREFORE, this 26th day of April, 2019, the decision of the

Industrial Accident Board is REVERSED and REMANDED for consideration

of the Petition for compensation for mesothelioma, which is now the claim of

Susan Gonzon for death benefits claimed as the alleged result of Employee’s

workplace asbestos exposure.

      IT IS SO ORDERED.



                                                                                                                               Andrea L. Rocanelli
                                            ________ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ___ ________ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ____




                                            The Honorable Andrea L. Rocanelli




                                       11
