Asbestos Victims Denied Justice

A recent study in Washington confirmed that workers compensation benefits do not reach the majority of workers who have been disabled by asbestos. Most workers comp systems are designed to compensate discrete, curable and traumatic injuries -- such as a broken leg. But, in the context of progressive, incurable and latent lung diseases like asbestosis, the workers comp system falls tragically short.

The study, reported in the American Journal of Industrial Medicine (1994), reached the followed conclusions:

• The handling of asbestosis claims under the Longshore and Harborworkers Act appeared to be "grossly inadequate", especially in comparison the State of Washington comp fund, which itself was also inadequate. All LHWCA claims for benefits from asbestosis were initially contested. Nearly a third of the claims had not been resolved after 2-6 years. For those shipyard workers who filed claims with both the Federal and State funds, the State fund was far more likely to pay out benefits than the Feds for the same injury.
• The likelihood of acceptance of a State Fund claim for asbestosis benefits appeared to be linked to the race of the claimant. Non-whites were more likely to have their claims rejected than Whites.
• The likelihood of State Fund claim acceptance showed no relationship to the severity of asbestos disease. Severity of asbestosis is usually measured by the chest film ILO profusion rating and by pulmonary function tests. In other words, the bureaucrats who hold the purse strings seem to base their decisions to accept or deny claims on factors other than science or medicine.
• Because the bureaucrats do not understand the medicine, and apparently reject claims arbitrarily, the claimant who tries to re-file later on when his asbestosis gets even worse stands to lose out on the applicable statute of limitations. In other words, damned if you do, damned if you don't.
• The benefits that are parcelled out under-compensate the victim. In many cases, the financial burden shifts from the employer to the injured worker to monitor and treat future complications, such as cancer.

The Washington Study confirms what we have known all along in Texas. The system is stacked against asbestosis and silicosis victims. The bureaucrats don't focus on what asbestosis is: a serious, irreversible, and potentially disabling lung disease that weakens the immune system. Instead, they focus on "paperwork parameters", such as whether the doctor rendered an impairment rating (subjective at best -- how can a doctor predict lung cancer or mesothelioma?) or a maximum medical improvement (MMI). A man can still work to some degree with asbestosis, but the state won't award benefits unless the worker is bed ridden in a hospital and can prove lost time or wages.

This reminds me of a policy enforced by Johns Manville:

"I'll never forget, I turned to Mr. Brown, one of the Browns made this crack (that Unarco managers were a bunch of fools for notifying employees who had asbestosis), and I said, 'Mr. Brown, do you mean to tell me you would let them work until they dropped dead?' He said, 'Yes. We save a lot of money that way.'"

Testimony of Charles H. Roemer about the meeting of Unarco officials with Johns Manville President Lewis Brown and his brother, Vandiver, in 1942 or 1943.

Even more sinister, by denying claims based on technicalities, the State is sending a message to workers that filing comp claims for asbestosis is a waste of time. But if the worker does not put the employer and State on notice within 30 days and 1 year, respectively, of the date he learns of the diagnosis, he will be barred from seeking compensation down the road if his condition worsens.

* * * * * * * * * *

W.R.Grace Exposed to Intentional Poisoning Lawsuits

W.R.Grace has earned the reputation as one of the most reckless and indifferent asbestos companies . For years, Grace and the Zonolite Company, its predecessor, have been targeted by state and federal health and safety regulators for exposing their employees in Libby, Montana to unsafe levels of asbestos dust and fibers. Grace has operated a vermiculite mine and processing plant in Libby since the 1940's.

Until now, employees of the Libby plant with cancer and asbestosis have been barred from seeking damages against Grace because of the "exclusive remedy" clause of the state's workers compensation laws, which strips injured employees of their right to sue their employer in court for negligence. A recent by the Montana Supreme Court, however, opens the door for Libby employees to sue Grace in court for full actual and punitive damages. Lockwood vs. W.R. Grace & Company, No. 94-371 (August 3, 1995).

In Lockwood, the wife of a Libby mine and mill worker who died from mesothelioma sued W.R. Grace on an "intentional tort" theory, as opposed to negligence. Lockwood claimed that Grace knew that exposing her husband to tremolite asbestos would result in harm, that Grace willfully concealed their knowledge of the hazards of asbestos, that Grace failed to provide protective equipment, and that Grace falsely advised their employees that it was safe to work in asbestos-contaminated areas.

The Montana Supreme Court ruled that the allegations of an intentional poisoning were sufficient to overcome the "exclusive remedy" bar and the Court allowed Ms. Lockwood to continue her wrongful death lawsuit at the trial level.

Although we file the majority of our lawsuits in Texas, the Lockwood decision out of Montana is significant because it creates a foundation on which potential intentional tort claims can be brought against particularly nasty employers. The plaintiff now must prove that Grace actually knew that its employee's lungs would be injured by asbestos poison. This points up the need for employees and their unions to aggressively ferret out and document potentially hazardous work conditions.

* * * * * * * * * *

Washington Supreme Court Sides With Workers

We had previously discussed a recent opinion from the Montana Supreme Court that allowed employees of the W.R. Grace Company to sue their employer directly for an intentional tort of poisoning. Normally, a state's workmens' compensation system provides the "exclusive remedy" for on the job injuries, and insulates employers from civil lawsuits.

On October 26, 1995, the Washington Supreme Court entered a ruling that will also remove some of the legal roadblocks employees face in trying to obtain full justice against employers who deliberately injure their workers. In Birklid vs. Boeing, several employees of Boeing in Seattle complained of exposures to toxic phenolic resins used to build airplanes. The workers alleged that Boeing was aware of the health risks, but did not care.

The Boeing employees also alleged that their employer removed warning labels from chemical containers, harassed workers who requested safety equipment or who sought medical attention, and deceived government safety inspectors by altering and sanitizing work conditions. In the past, Washington employees could sue their employers only if they could prove that their boss physically assaulted them.

The Court held that the employees had properly stated a cause of action against their employer and could proceed to a jury trial. The Court ruled that an employee could sue his employer if he could present facts that the employer "had actual knowledge that an injury was certain to occur and willfully disregarded that knowledge."

The Court rejected the more lenient standard under Oregon law. Oregon employees can sue their employer if they can prove that the employer had an opportunity to consciously weigh the consequences of their acts or omissions and knew that someone, not necessarily the plaintiff, would be injured.

Please advise us if any of your employers after 1972-73 deliberately withheld information from you about the dangers of asbestos, refused to supply you with respiratory protection, harassed you for trying to protect your lungs from asbestos, or ordered you against your protests to remove asbestos materials without first complying with all OSHA regulations.