Langham: Mesothelioma and Asbestos in the News

Friday, May 17, 2019 | 0

In 2018, I penned Territorial Jurisdiction in Workers' Compensation. The litigation mentioned there involved a cancerous condition called mesothelioma. That post included a link to the Mayo Clinic as a reference regarding the disease.

Judge David Langham

It was suggested by a reader that this reference was not sufficient to illuminate the disease process or substances to which it is linked. It is also possible that some readers remain unaware of the prevalence of mesothelioma.

In responding to the reader, perhaps the following provides greater edification: 

"[S]ix minerals that occur naturally in the environment as bundles of fibers that can be separated into thin, durable threads for use in commercial and industrial applications. These fibers are resistant to heat, fire and chemicals, and do not conduct electricity." 

According to the Mayo Clinic, mesothelioma "is a type of cancer that occurs in the thin layer of tissue that covers the majority of your internal organs."

There is a significant volume of information on the internet regarding both mesothelioma and asbestos. A search for "diseases linked to asbestos" will yield many websites, a number of them being associated with law firms. Persistence will eventually lead to an informative government website for the National Cancer Institute. 

That site provides insight on topics such as "what is asbestos," "how is asbestos used," "what are the health hazards of exposure" and "how can workers protect themselves." There is not, however, any real focus upon non-occupational concerns with asbestos. That topic may be worthy of mention before proceeding with the occupational concerns and broader concerns. 

In April 2019, the Environmental Protection Agency announced a "nearly complete ban on asbestos," according to CNN. There has been "a decades-old partial ban," but its use remains in some "industrial processes or included in products." The article cites its use in "filtering chemicals and in some vehicle brakes." 

The broader applications of building materials and insulation were previously discontinued with the partial ban. The continued use was said to be allowed by "a very dangerous loophole." The EPA has opined that it lacks authority for a complete and outright ban on the substance.

CNN emphasizes dangers from the substance. It says that ,"It has been linked to mesothelioma, which causes about 3,000 deaths annually." MSN noted that some are critical of the EPA recent action, suggesting it could instead reintroduce asbestos. There is significant discussion in the press regarding the recent EPA action. 

Exposure to asbestos is obviously possible outside of the workplace. There have been reports of asbestos found in cosmetics, concerns of contamination in talc powders and even crayons. Whether those products, or any products, facilitate any health risk is not clear. However, there appears to be some potential for exposure outside of the industrial or work setting.

But the National Cancer Institute says "people who become ill from asbestos are usually those who are exposed to it on a regular basis, most often in a job where they work directly with the material." It may exist in our environments and it may be dangerous, but the highest risk is for those who work with it. 

The institute says "people may be exposed to asbestos in their workplace, their communities or their homes." It notes that mesothelioma is "rare," but is "the most common form of cancer associated with asbestos exposure." It notes that "there is limited evidence" for exposure to cause other cancers. But it is linked to other health risks that include:

"[A]sbestosis (an inflammatory condition affecting the lungs that can cause shortness of breath, coughing and permanent lung damage) and other nonmalignant lung and pleural disorders, including pleural plaques (changes in the membranes surrounding the lung), pleural thickening and benign pleural effusions (abnormal collections of fluid between the thin layers of tissue lining the lungs and the wall of the chest cavity)." 

As to protecting oneself from asbestos, the National Cancer Institute encourages the worker's use of "all protective equipment provided by their employers," and compliance with "recommended workplace practices and safety procedures." These are provided by the National Institute for Occupational Safety and Health (NIOSH) and include "respirators that fit properly," to minimize inhalation of the substance. 

It is clear that the substance remains in our lives. Clearly, there is health risk associated with certain exposures. The questions that remain are whether an outright ban on the production or importation will ever come, and if so, whether that will require further legislation to support the EPA authority.

Furthermore, will the latest EPA changes this year have a significant impact on the production or use of asbestos, either in increasing or decreasing its presence in our lives?

David Langham is deputy chief judge of the Florida Office of Judges of Compensation Claims. This column is reprinted, with his permission, from his Florida Workers' Comp Adjudication blog.