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The removal process generally involved beating the old insulation off with a hammer and then throwing it on the floor to be swept up at the end of the day. The removal process may have created even more exposure to asbestos than the initial insulation.
Even today, despite all the OSHA rules and regulations, insulators are still placed in positions where they are required to have hands on contact with of asbestos containing insulation causing them to breathe in even more asbestos fibers.
The next large wave of employees that Wallace & Graham observed was workers in the construction trade. On thousands of large construction projects, all of the construction trades generally work together. Plumbers, electricians, pipe fitters, millwrights, carpenters, painters, masons, and the like worked side by side with the insulators.
During these construction projects, absolutely no precautions were taken to prevent insulators or members of any other trade from being exposed to asbestos. Workers frequently talked to us about working on numerous construction projects where it looked like they were in “a snow storm” due to all of the asbestos work that was being done.
More recently, Wallace & Graham has represented large numbers of factory workers who are now contracting asbestosis.
Not only are maintenance workers and janitorial staff contracting asbestosis but large numbers of machine operators now have asbestosis. Many of these operators never even worked directly with or had hands on contact with asbestos.
However, given the thousands of miles of asbestos laden pipe and the continual nature of maintenance and construction in most large facilities, many of these workers had a tremendous exposure to asbestos. In order to prevail in an asbestos workers’ compensation case in North Carolina, there are two main issues that must be proven.
First, workers have to prove that they have asbestosis. A diagnosis of asbestosis frequently comes from a workers’ family physician and then is usually confirmed by a pulmonologist.
The second area of proof in an asbestosis case required that the worker be last injuriously exposed to the hazards of asbestos while in the employment of the company against whom the workers’ compensation case has been filed. The North Carolina legislature simply made a policy decision making the last company responsible.
The law could have been written to place liability on the company where the individual had most of their exposure, had their longest exposure, had their first exposure, or the award could be prorated among all of the companies that exposed the worker to asbestos.
However, the North Carolina legislature decided the elements of proof would be too vastly complicated in those areas and decided to make only the company where the individual is last injuriously exposed to asbestos liable for the workers’ compensation claims.
At first glance this appears to create inequitable situations. A worker may have had extremely heavy long term exposure to asbestos while working for Company A. If the employee then changes jobs and has only a very short and extremely light exposure to asbestos at Company B, nevertheless Company B is totally responsible for the injured workers’ asbestosis claim.
In actual practice, no real inequity is created. In the example above, Company B seems to have been treated unfairly. However, there will be an equal number of employees who have long term heavy exposure at Company B but left Company B to go to work for another employer who ends up being responsible for the workers’ compensation claim. Thus on an average, no company is unfairly burdened by this procedure.
Workers do not have to prove that they have an actual disability as a result of their asbestosis. The compensation is designed not only to encourage workers to remove themselves from further harmful exposure to asbestos but also compensate individuals for the incurable nature of this disease.
For more information on asbestos and mesothelioma, please contact Wallace & Graham at 1-800-849-5291 or by email.