Many employees in the workplace are exposed to contaminants which can cause or contribute to lung disease. Any lung disease that is caused by or contributed to by work contaminants may entitle the worker to claim workers’ compensation benefits and medical treatment. Contaminants, which can cause injury, include fumes, gases, vapors, mists, and dust.
In order for an Injured Worker to prove that they sustained an industrial injury to their lungs, there must be a showing of industrial causation. When dealing with an exposure case, there is a multitude of factors that are necessary to prove industrial causation.
What are the Elements of Causation?
There are essentially three elements with respect to causation in an exposure case.
First, there must be proof that the contaminants are in the workplace.
Second, the worker must have been exposed to the contaminant.
Third, there must be a disease which for which the contaminant can either cause, contribute to, or alternatively cause an acceleration or aggravation to an underlying pre-existing condition. For example, a person may have childhood asthma which became worse as a result of the exposure to work contaminants.
How Does One Know that Contaminants are Present in the Workplace?
There are numerous ways that it can be proven that there were contaminants on the premises. Two ways that it can be provided is Eyewitness Testimony and Material Safety Data Sheets.
Eyewitness Testimony is helpful when it can identify the names of products that are used in the workplace. This information allows for further research to identify the contaminants.
Another way to determine whether the contaminants were harmful is to look at the Material Data Safety Sheets. Material Data Safety Sheets are maintained by employers.
Per the US Department of Labor, “Employers must ensure that the SDSs are readily accessible to employees for all hazardous chemicals in their workplace. This may be done in many ways.”
While an Employee may be exposed to harmful materials, the question is whether the disease that the Employee has can be caused or contributed to by the offending material. An analysis by a physician is indicated.
Was there Exposure in the Workplace?
One of the critical elements in causation issues is whether the Employee was actually exposed to the contaminants. This element is factual in nature.
What facts can support that there was exposure in the workplace?
The Employee, Co-Workers or the Employer can provide testimony. For example, they can provide testimony that there was a particular dust or gas in the work environment that the Employee worked and that they saw them breathe in the substance.
Also, there can be testing done as to the nature and extent of materials. For example, it is not uncommon for an Employer to have mold testing or asbestos testing done. These reports usually list the levels of the contamination and whether it reaches a level which could be harmful to a human. The fact that the Employee worked in a particular area and that area had harmful substances present is good evidence concerning exposure. Further information of importance that there is evidence as to how much time spent of the Employee in that area.
How Do We know the Contaminants are Harmful?
One of the ways one can determine whether the contaminants were harmful is to look at the Material Data Safety Sheets. Material Data Safety Sheets are maintained by employers.
The MDSS reporting on the toxicity of materials is required by the Department of Labor. There is a section concerning the toxicological and health effects information concerning substances. The information provided includes: “ Information on the likely routes of exposure (inhalation, ingestion, skin and eye contact). The SDS should indicate if the information is unknown; Description of the delayed, immediate, or chronic effects from short- and long-term exposure; The numerical measures of toxicity (e.g., acute toxicity estimates such as the LD50 (median lethal dose)) – the estimated amount [of a substance] expected to kill 50% of test animals in a single dose; Description of the symptoms. This description includes the symptoms associated with exposure to the chemical including symptoms from the lowest to the most severe exposure; and Indication of whether the chemical is listed in the National Toxicology Program (NTP) Report on Carcinogens (latest edition) or has been found to be a potential carcinogen in the International Agency for Research on Cancer (IARC) Monographs (latest editions) or found to be a potential carcinogen by OSHA.”
Was there a sufficient exposure?
Evaluating Physicians are required to assess whether the Employee was exposed to the offending materials. Sometimes, there can be a doctor’s opinion that the exposure to the contaminant was not sufficient to cause an injury. Often, in the litigation process of workers’ compensation, the amount of the exposure can be an issue for the trier of fact. In other words, the Judge trying the case will make the determination.
Sometimes, in litigation, it is possible to obtain studies of the premises to determine the nature and extent of the contaminants at the Employee’s worksite. This can be done through an Industrial Hygienist.
If you would like a free consultation regarding workers compensation, please contact the Law Offices of Edward J. Singer, a Professional Law Corporation. They have been helping people in Central and Southern California deal with their worker’s compensation cases for 26 years. Contact us today for more information.