In a defendant’s perfect world, we could enter into Compromise and Release agreements which would absolve the defendant of any and all liability for any and all injuries, known or unknown, resulting from an applicant’s employment with an employer. Such broad releases are not likely to be approved, and where they are signed off on by a WCJ, they would not stand up to scrutiny before the Appeals Board. It is therefore necessary that Compromise and Release agreements identify all proper body parts and/or dates of injury to maximize the scope or the Compromise and Release. The recent decision in Herbert Cooper (Dec’d), Pamela Cooper (Widow), Applicant v. Johns Manville, PSI employer, ESIS, TPA, Defendants, 2015 Cal. Wrk. Comp. P.D. LEXIS 585 (ADJ8826379), highlights the need to not let the pendulum swing too far the other way and to limit the identified body parts or conditions included in a Compromise and Release, with reliance on broader release language in an addendum.

Mr. Cooper worked over 30 years for roofing and insulation provider Johns Manville as a mixer operator. Mr. Cooper filed an Application claiming a 1988 injury to his respiratory system with the WCAB. This was settled by Stipulations in 1991 prior to Mr. Cooper’s retirement. In 2007, a Compromise and Release was entered into, which was subsequently amended in 2008. Mr. Cooper was unrepresented throughout his claim.

As a result of his exposure to asbestos during his employment with Johns Manville, the applicant developed respiratory injury as a result of his exposure to asbestos. The exposure to asbestos was also the basis for Mr. Cooper’s claim of respiratory and lung injury which was settled by Compromise and Release in 2008. Following his death, Mr. Cooper’s wife filed a death claim. The cause of Mr. Cooper’s death as asbestos-caused mesothelioma of the peritoneal, or stomach lining, was undisputed by defendant.

The defendant sought to have the death claim barred as having been settled in the 2008 Compromise and Release. Listed in the body parts section of the Compromise and Release were only the “lungs and respiratory system.” The defendant had included an addendum to the Compromise and Release indicating that “this settlement resolves any and all remaining claims against Johns Manville for Workers’ Compensation benefits due to exposure to asbestos. Settlement includes any and all injuries arising from exposure to asbestos including mesothelioma and asbestos-related cancers.”

Unfortunately, for the defendant, the 2005 WCAB Compromise and Release form included paragraph 3 on page 1 which stated “this agreement is limited to settlement of the body parts, conditions, or systems and for the dates of injury set forth in paragraph number 1 despite any language to the contrary in this document or any addendum.” The current 2008 version of the Compromise and Release form includes similar language in paragraph 3 on page 5, “This agreement is limited to settlement of the body parts, conditions, or systems and for the dates of injury set forth in paragraph number 1 and further explained in paragraph 9 despite any language to the contrary elsewhere in this document or any addendum.”

It would appear from the language of the Compromise and Release (there is some question in the Cooper case that there may have been a lack of communication regarding the intent of the parties) that the language was intended to resolve all claims related to the applicant’s exposure to asbestos and potential mesothelioma.

However, the WCJ included that the Compromise and Release applied only to the respiratory system, and not to the abdomen or stomach which was the ultimate cause of the applicant’s death. The abdomen, cancer, or even reference to asbestos were not included in the body parts on the Compromise and Release, but only referenced in the addendum. The WCJ concluded that the addendum could not expand on the Compromise and Release and therefore the Compromise and Release did not cover the peritoneal mesothelioma which was the cause of death.

To ensure that a Compromise and Release covers potential future claims related to an existing condition, it must be included in paragraph 1 or paragraph 9 of the current Compromise and Release form. A general release in an addendum is not sufficient. Although Cooper involved the particularly pernicious extensive illness which may be triggered by asbestos, the reasoning should not be limited to asbestos related claims. All body parts claimed by the injured worker in pleadings or referenced in medical reports which are intended to be part of the Compromise and Release must be included in paragraph 1 or paragraph 9 of the Compromise and Release agreement.

The defendant in Cooper may have been spared liability for a death claim had all potential body parts which may have been affected by mesothelioma been included in paragraph 1. In the current version of the Compromise and Release form, the defendant’s language from the addendum regarding release of all asbestos related injures should, at the very least, be included in paragraph 9. Given the WCJ’s reasoning, such inclusion in paragraph 9 should prevent a finding that the settlement was limited to only the body parts listed in paragraph 1. However, the language may not be so broad as to include “any and all, known or unknown” injuries.