Safety and OSHA News

Did time run out on employee’s cancer claim?

An employee was splashed with liquid containing a toxic mix of chemicals. When he was diagnosed with cancer more than two years after the incident, he filed a lawsuit against his employer. Was the lawsuit thrown out due to time limitations? 

Michael Pasko worked for Schlumberger Technology Corp., a company in Texas that supplied employees, equipment and chemicals to a well site.

Pasko says on May 6, 2013, while waiting for his job safety analysis sheet to be signed, a Schlumberger employee told him a berm was about to overflow due to a water spill. The employee told Pasko to clean up the spill.

The spill water contained a mix of chemicals described as “frac chemical residue” that burned his hands. He was taken to the hospital for treatment for his chemical burns. In September 2013, Pasko was diagnosed with squamous cell carcinoma.

Pasko filed suit against various parties on May 5, 2015 for gross negligence. He amended his lawsuit in August 2015 to include Schlumberger. He alleged Schlumberger rigged a hose containing a gelling agent on the day before his injury. He says Schlumberger’s negligence caused the gelling agent to leak into the frac chemical residue that he was told to clean up.

Schlumberger argued that more than two years had passed since Pasko’s injury and his lawsuit should be thrown out. A trial court agreed and threw out his lawsuit against Schlumberger. Pasko appealed.

Regarding the state law on statute of limitations for injury lawsuits, a previous Texas court ruled, “Discovering the nature of the injury requires ‘knowledge of the wrongful act and the resulting injury.'”

That means the clock doesn’t start ticking until the injury is discovered.

Pasko was injured on May 6, 2013, receiving burns to his hands. But he didn’t find out until September 2013 about his cancer diagnosis.

Schlumberger counters that, since the squamous cell carcinoma developed in the exact area where he was burned, Pasko should have already been aware of the injury.

However, a Texas appeals court found Pasko raised an arguable question about when he discovered he was injured. The court said Schlumberger failed to establish that Pasko was aware, as of May 6, 2015, that he suffered from a delayed occupational illness (cancer). He found out about the cancer months later.

Given that analysis, the appeals court reversed the decision of the trial court and refused to throw out Pasko’s lawsuit against his employer.

While laws vary by state, this case points out that when it comes to statute of limitations for occupational illnesses, sometime the clock doesn’t start with the incident. It starts when a medical diagnosis occurs.

(Michael Pasko v. Schlumberger Technology Corp., Court of Appeals 13th Dist. Texas, No. 13-15-00619-CV, 12/8/16)

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