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Thursday, March 2, 2017

Trump Administration May Bring a Surge in Occupational Disease Claims

Mesothelioma death rates remain high in the US even on the eve of an anticipated national ban of the asbestos fiber. Things may radically change for the worse as the Trump Administration goes forward with its announced intention to dismantle environmental regulation now in place and placed on-track for enactment during the former Obama Administration. With anticipated less EPA and OSHA regulation under the Trump administration, there is the potential for a serious surge of future occupational disease claims in the United States.

President Trump has remarked, “I believe that the movement against asbestos was led by the mob, because it was often mob-related companies that would do the asbestos removal. Great pressure was put on politicians, and as usual, the politicians relented.” Trump, The Art of the Comeback, 1997.

The Centers for Disease Control and Prevention (CDC) today published a report indicating that mesothelioma, a neoplasm, continues to be prevalent at high rates.
"Malignant mesothelioma is a neoplasm associated with inhalation exposure to asbestos fibers and other elongate mineral particles (EMPs). The median survival after malignant mesothelioma diagnosis is approximately 1 year. The latency period between the first exposure to asbestos fibers or other EMPs and mesothelioma development ranges from 20 to 71 years. Occupational exposure has occurred in industrial operations including mining and milling, manufacturing, shipbuilding and repair, and construction. Current occupational exposure occurs predominantly during maintenance and remediation of asbestos-containing buildings. The projected number of malignant mesothelioma deaths was expected to increase to 3,060 annually by 2001–2005, and after 2005, mortality was projected to decrease."
"During 1999–2015, a total of 45,221 malignant mesothelioma deaths were reported, increasing from 2,479 (1999) to 2,597 (2015). Mesothelioma deaths increased for persons aged ≥85 years, for both sexes, persons of white, black and Asian or Pacific Islander race, and all ethnic groups. Continuing occurrence of malignant mesothelioma deaths in persons aged <55 years suggests ongoing inhalation exposure to asbestos fibers and possibly other causative EMPs."
"Despite regulatory actions and decline in asbestos use, the annual number of malignant mesothelioma deaths remains substantial. Contrary to past projections, the number of malignant mesothelioma deaths has been increasing. The continuing occurrence of mesothelioma deaths, particularly among younger populations, underscores the need for maintaining efforts to prevent exposure and for ongoing surveillance to monitor temporal trends."
Asbestos is a naturally occurring fibrous mineral which was widely used in the manufacture of a variety of products beginning in the late nineteenth century. Although the majority of exposure to asbestos occurred between 1940 and 1980, in occupations such as construction, shipyards, railroads, insulation, sheet metal, automobile repair, and other related fields, exposure continues to this day. Asbestos fibers are inhaled by workers and remain in the lungs where they can cause disease. Fibers are also inhaled by family members or any other person coming into contact with asbestos wherever it may be. We believe that the evidence shows that the companies which manufactured these products knew that their products would injure people and that they actively conspired to hide this information in order to keep selling their products, and as a result, they are now being held liable for the resulting injuries.

"Workers' compensation benefits have been awarded to claimants who have been exposed to asbestos and who have suffered asbestos-related disabilities. Bolger v. Chris Anderson Roofing Co., 112 N.J.Super. 383, 271 A.2d 451 (Co.1970), aff'd 117 N.J.Super. 497, 285 A.2d 228 (App.Div.1971). The courts have recognized an asbestos exposure as causing multiple disabilities, and awards have been made for occupational exposure which have resulted in a “second disease”. Shepley v. Johns-Manville Products Corporation, 141 N.J.Super. 387, 358 A.2d 485 (App.Div.1976). Even where the exposure to asbestos can be identified as occurring 50 years earlier in the course of the employment, the resultant disease has been recognized as compensable. Bush v. Johns-Manville Products Corporation, 154 N.J.Super. 188, 381 A.2d 65 (App.Div.1977), certif. denied 75 N.J. 605, 384 A.2d 835 (1978)." Gelman, Workers' Compensation Law 3rd ed. §9,20 (Thomson-Reuters).

With the anticipated dismantling of EPA and OSHA regulations by the Trump Administration, in conjunction with a return to manufacturing jobs in the US, there remains to be seen whether there will be a resurgence of occupational disease claims and fatalities in the US,  as a result of the continued work-related exposures to such toxic substances such as asbestos.

Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thomson-Reuters). 

For over 4 decades theLaw Offices of Jon L Gelman  1.973.696.7900  has been representing injured workers and their families who have suffered occupational accidents and illnesses.