Asbestos-related disease is unquestionably one of the most prevalent occupational illness concerns in the United States. However, many people suffering from asbestos-related illnesses were not exposed to the deadly mineral over the course of their employment and cannot recover through a workers’ compensation claim. In addition, even individuals with asbestos-related illness from workplace exposure may want to pursue a personal injury claim instead of, or in addition to, their workers’ comp claim.Asbestos in the U.S.
Use of the naturally-occurring mineral came into commercial popularity during the Industrial Age because of its cost-effective and fire-retardant properties. It was heavily used in the construction and automobile industries and the military.
However, in the last few decades millions have come to learn the hard way that asbestos is a cancer-causing carcinogen. Studies have linked over a dozen different diseases to asbestos exposure. Exposure to the mineral, typically caused by inhaling airborne asbestos particles, can increase a person’s risk of developing one or more of these conditions for decades after the exposure. Common asbestos-related illnesses include:
- Asbestosis: An incurable, chronic lung disease that results in scarred lung tissue and long-term breathing complications. Asbestosis is not a form of cancer, and individuals suffering from it can live for many years, even decades. However, the condition typically gets worse over time and patients will require increased treatment as they age.
- Mesothelioma: The signature asbestos-related cancer. It frequently develops in the lining of the lungs, heart, stomach or testicles and is most common in individuals who were exposed to large quantities of asbestos over a long period of time. The average prognosis for mesothelioma is less than one year from the time of diagnosis, during which time the patient will need treatment and their dependents will need money on which to live. The mesothelioma victim’s surviving family can also have a wrongful death damages claim after their loved one has passed.
- Lung cancer: Besides pleural (lung) mesothelioma, asbestos exposure frequently causes different types of lung cancer. Lung cancer caused by asbestos is practically indistinguishable from lung cancer caused by some other risk factor, with symptoms of wheezing, coughing, breathlessness and chest pain. Generally, a medical professional must diagnose lung cancer as being asbestos-related in order for the person to have a claim.
Asbestos use has decreased drastically since the 1970s as more about the deadly consequences of asbestos exposure has become known. Worker protection laws have sought to limit and regulate use of the material; however, the majority of building materials containing now-illegal quantities of asbestos are still in use today in older structures. Despite numerous calls for national and worldwide bans, the United States, as the world’s largest consumer of asbestos, remains one of the few nations in the developed world to not outright ban use of the mineral.
For all of these reasons, grave numbers of individuals are still exposed to harmful levels of asbestos today, particularly in the:
- Demolition or removal
- Maintenance of products containing asbestos that were installed years prior.
Risk to workers handling these materials can be considerable if the hazard goes unrecognized and Occupational Safety and Health Administration (OSHA) standards go unenforced.
In addition, asbestos-related illnesses have a very long latency period, or time between exposure and illness. The typical latency period for mesothelioma is anywhere between 20 and 50 years, depending on the duration and intensity of an individual’s exposure and other factors. Many individuals are not diagnosed with mesothelioma until their 60s or 70s, when disease symptoms—usually difficulty breathing or persistent cough—become chronic or debilitating. In addition to the renovation construction activities listed above, many of these affected individuals were exposed primarily or secondarily to asbestos through past activity on or near:
- Power plants
- Steel mills
- Mining operations for minerals such as vermiculite and talc
- Pipe fitting/cleaning facilities
- Military operations
- Automobile mechanic operations
Asbestos exposure often occurs “on the job,” or as a result of someone’s employment in one of the aforementioned industries. However, exposure can also occur secondhand from air, clothing and material cross-contamination from these facilities for non-employee individuals.
- Workers’ compensation claim: Although asbestos exposure is one of the leading causes of occupational deaths in the United States, those suffering from an asbestos-related condition or illness resulting from their employment may want to proceed with caution. Collecting workers’ compensation for an asbestos-related illness can preclude the employee from recovering in a personal injury suit from their employer (although they still may be able to sue the manufacturer, see below). Workers’ compensation is a limited remedy that is capped at certain amounts. The gravity of asbestos-related cancers and illnesses means that workers’ compensation may not be adequate to cover the damages an individual or their family is owed.
- Personal injury claim:
- Against the employer: Even if an individual files a workers’ comp claim for a work-related asbestos-related disease, they may also still have a personal injury claim against an employer who failed to enforce OSHA regulations or negligently exposed workers to now-illegal levels of asbestos without their informed consent. If the worker also received workers’ comp benefits for the same injury, the workers’ comp insurance carrier will have a lien on any of the injured person’s third party recovery so that they cannot receive “double recovery.” However, workers’ comp only provides compensation for lost wages and does not compensate for injury such as pain and suffering. Thus, the overall amount a person can recover in personal injury is often greater than the amount of workers’ comp they received.
- Against the manufacturer: Regardless of whether the person with the asbestos-related illness was an employee, and regardless of whether that person filed for workers’ compensation for their condition, the individual or their family can have a personal injury claim against the product’s manufacturer. Again, this award amount will be decreased by the amount of workers’ comp the person received for that injury but often exceeds workers’ comp.
If you or a loved one has contracted an illness related to asbestos exposure, it is important to speak with an attorney experienced in both workers’ compensation and personal injury as soon as possible. Both workers’ comp and personal injury claims must be filed within specific amounts of time after a person discovers they have contracted the asbestos-related illness. Having a dedicated legal professional familiar with all avenues of possible recovery can be critical to obtaining the full compensation you and your family deserve. Arnold & Smith, PLLC is a multi-practice civil and criminal litigation firm in Charlotte, North Carolina. Our dedicated personal injury and workers’ comp attorneys are prepared to leave no stone unturned to help ensure that you receive the compensation you deserve. Contact us today for an initial consultation with one of our attorneys.