Industrial Disease: The Quest for Recognition--The Need for Adequate Benefits

The concept of a compensable industrial disease has developed only recently and its acceptance has lagged far behind that of industrial accidents. The original Workers' Compensation Acts, as promulgated from the year 1911 forward by many of the states, did not provide for the recognition of occupational illness and disease as compensable events. As demands have been placed upon the medical system to treat and to prevent occupational illness, the legal system, under social, economic, and political pressure, has sought to provide a remedy for the thousands of injured workers who have suffered and who are continuing to suffer from occupational illness and disease. 

ORIGINAL BRITISH EFFORT TO ESTABLISH A WORKERS' COMPENSATION SYSTEM
In the latter half of the 19th century, England began a rapid evolution from an agrarian society consisting mainly of farming to the industrial era with its factory production based upon the advent of electricity. This significant change in the structure of the society was accompanied by a need for a change in the laws which governed the society. 

The original common law remedies which had been available under the British legal system were emasculated by the rapidly developing doctrines of "assumption of the risk" and "contributory negligence." The employee was said to have assumed the risk of the employment for both usual and unusual, foreseeable and unforeseeable events. Furthermore, any negligence on the employee's part which contributed to an injury served to defeat recovery. In 1877, the British House of Commons appointed a committee to investigate the need for legislation, and the first English Employer's Liability Act was passed in 1880. The original Act was very weak, and the defenses of assumption of the risk, the fellow servant doctrine, and contributory negligence remained viable. In fact, the Act only provided benefits for seven out of one hundred workers. In 1897, the British legislature proposed new legislation to provide a remedy for the injured worker. In his first public address, Winston Churchill stated, "I do not say that workmen have not been treated well in the past by the kindness and consideration of their employers, but this measure removes the question of the shifting sands of charity and places it on the firm bedrock of law..." The authors of the legislation sought to have injured workers compensated for each industrial accident and to make the economic burden for the compensation system part of the cost of production. The employee was not required to prove negligence on the part of the employer but rather had to demonstrate that the injury had occurred during the employment situation. The Act was limited to certain occupations which included factory labor, mine and quarry activities and engineering. Neither the original Employers' Liability Act of 1880 nor the Workmen's Compensation Act of 1897, the latter having been intended to encourage greater attention to safety in the industrial environment, was successful in reducing the number of industrial accidents in the British work place. 

THE AMERICAN SYSTEM-ORIGINAL STATUTORY ENACTMENTS
The American legal system, which was based upon British common law, rapidly developed a need to adopt a mechanism for the delivery of benefits to injured workers during the early 20th century. The initial workers' compensation statutes adopted by numerous states were based upon the British statute which provided for compensation benefits in cases in which traumatic accidents had occurred but not in cases in which occupational disease was involved. While the British statute was amended by 1906 to include occupational disease, none of the American statutes reflected this modification at the time of their enactment. 

EARLY ATTEMPTS BY THE COURTS TO DEAL WITH "OCCUPATIONAL DISEASE"
In 1911, the State of Michigan enacted a workers' compensation law that provided for payment to workers who were injured while in the course of their employment. Augustus Adams was employed at the Acme White Lead & Color Works in Detroit, Michigan on December 18, 1912. He was a sifter or bolter tender in the red lead plant and, in this position, came into contact with lead. On May 29, 1913 he completed his day at work but immediately became so ill that he was unable to return to his job. The employee died on June 27, 1913 of lead poisoning. The Michigan court, following precedent established in English cases, held that lead poisoning was not an "accident" but rather an "occupational disease" and therefore not compensable; it was not a sudden event occurring at a fixed time but was a gradual and slow process. Adams v.Acme White Lead and Color Works, 148 N.W. 485, 182 Mich. 157 ( Mich. 1914) Without specific statutory enactment, the court struggled in its interpretation between the definition of the basic, compensable "accident" and the newly emerging area of "occupational disease." 

Lester De Witt was employed as a show card sign writer. For about one and one half years, he used dyes dissolved in wood alcohol and forced through a fine needle by air pressure to shade his colors while performing artistic writing. During a particular period of time, he used the apparatus rather extensively in his work and it was necessary for him to clean it with wood alcohol. While doing so and while washing and cleaning his hands, he used a great quantity of wood alcohol and then found that his vision was affected. He went to an oculist who fitted him for glasses but advised him that they would do very little good because the artist was suffering from a degeneration of the optic nerves. Six days later, he was entirely unable to use his eyes and thereafter sought to receive workers' compensation benefits. Four years later, in 1918, the Supreme Court of California held that the artist was entitled to workers' compensation benefits; however, they construed the petitioner's condition not as an occupational disease but as the result of an accident which was unexpected and unintentional. The court's interpretation of the petitioner's occupational exposure to the vapor of wood alcohol in unusual quantities which resulted in the sudden impairment of his vision was defended as constituting an "accident" which arose out of and occurred during the course of his employment and was therefore compensable. Fidelity & Casualty Co. of New York v. Industrial Accident Commission of California, 177 Cal. 614, 171 P. 429 (Cal. 1918) The court struggled with expanding the term "accident" to encompass what is currently known as occupational disease, but based its reluctance upon the fact that a process occurring over a long period of time would be difficult to substantiate and would lead to the filing of fraudulent claims. 

In the fall of 1915, Edwin S. Roth was 18 years of age and was employed as a common laborer. He was requested by his employer, McFeeley Brothers, to paint a building that they were in the process of constructing. Roth attempted to comply with the request; however, since the weather was cold the paint would not flow from the brush. Not being a painter by trade, he requested assistance from the foreman who advised him that he should take the paint into a small designated building and heat it so that it would be warm enough to work with in cold weather. The building had little or no ventilation. Roth continued the process of heating the paint from time to time throughout that entire day and the next day. After the second day of working he became ill from inhaling the poisonous fumes and gases, and his condition worsened until he died 18 days later. Since lead poisoning was considered a usual and customary incident to someone who is a painter, compensation benefits were denied. Additionally, the court reasoned that the employee should have understood the deadly nature of the fumes that he was breathing and should have opened the windows and the doors in the building in which he was heating the paint. The court affirmed the presumption that workers understand the dangers inherent in their jobs and carried this assumption to the case of this decedent even though he had only worked in this hazardous trade for two days. Industrial Commission of Ohio v. Roth, 98 Ohio St. 34, 120 N.E. 172 (Oh. 1918) 

Charles Jerner was employed as a mahogany stainer for the Imperial Furniture Company for a period of 20 days. During that time his duties required him to completely immerse the article that he was staining into a tank containing about 50 gallons of water, 1 1/2 pounds of carbonate or bicarbonate of soda, and 6 pounds of aniline dye. After the article was removed from the tank, the employee was required to brush it off with a brush. With no protective gloves on his hands, Jerner immersed them into the stain liquid. After about 12 days of this process, he complained that his hands started to "open up" and he developed a staphylococcus infection. The court recognized that those engaged in the dyeing of furniture with mahogany stain frequently suffered from sore hands and denied the claimant workers' compensation benefits based upon a strict interpretation of the workers' compensation statute which provided no compensation for those suffering injury from "occupational diseases." The court further alleged that testimony was inadequate to sustain the burden of proof that a specific "accidental" injury had occurred. Jerner v. Imperial Furniture Co., Mich. 265, 166 N.W. 943 (Mich. 1918) 

A strict adherence to the interpretation of the word "accident" led many courts to hold cases compensable only where there was an unexpected or unforeseen event, happening suddenly and violently and producing at the time a specific injury to the physical structure of the body. An employee, who suffered typhoid fever caused by drinking infected water furnished by the employer for the use of its employees, was considered not to have suffered a compensable event. The evidence produced at trial demonstrated that typhoid fever was a germ disease "produced by taking typhoid bacilli into the alimentary canal" and that the disease required more than a week after the infection to develop symptomatology that was discernable. Therefore, it was concluded that the disease did not result from an event which occurred suddenly and violently or from "injury to the physical structure of the body at the time it happens" as required by the workers' compensation statute of Minnesota in accordance with the interpretations of the English courts. Workers' compensation benefits were denied. State v. District Court, Rice County, 138 Minn. 210, 164 N.W. 810 (Minn. 1917). 

However, other courts in other states considered infectious diseases to be compensable events. In 1916, an employee who wore gloves and who was required to handle dirty and diseased hides which contained wet salt was permitted to recover compensation benefits after he suffered an abrasion of the skin, contracted anthrax germs contained in the hides and developed disease. In this instance the court of the State of New York considered the disease to be unexpected, unusual, and extraordinary and therefore compensable. The court distinguished this case from that of an occupational disease which the court defined as "incidental to the occupation" or a "natural outcome thereof." Heirs v. John A. Hull & Co., 178 App. Div. 350, 164 N.Y.S. 767 (NY App. Div. 1917). 

ATTEMPTS TO ENCOMPASS OCCUPATIONAL DISEASE BY STATUTORY CHANGE
Within two decades of a majority of the states' enactment of workers' compensation systems, amendments to the statutory provisions were enacted to extend compensation benefits to occupational diseases. By statutory and judicial action, the states of California and Massachusetts were the first to recognize occupational diseases as compensable events. California undertook a statutory amendment in 1918 to include "any injury" arising out of and in the scope of employment as compensable.1917 Cal. Stat. c. 538, ss 1-74. On the other hand, Massachusetts, which had no "accident" requirement in the statute, restricted the awarding of workers' compensation benefits in its court decisions by defining "injury" to mean sudden, unexpected incidents attributable to a specific time and place. However, Massachusetts held the disease of an eye which was directly induced by the inhalation of poisonous gases incurred during the course of employment to be a "personal injury" within the statutory requirements and concluded that it was compensable. Hurle, 217 Mass. 226, 104 N.E. 338 (Mass. 1916). 

The majority of cases have followed the lead of the English statutes and have allowed occupational disease to be compensable for a specific list of diseases which were connected with particular occupations. The original Workers' Compensation Act in New Jersey, as promulgated in 1911, failed to recognize any occupational illnesses or diseases as compensable events. In 1924, amendments were made to the New Jersey Workers' Compensation Act which enumerated ten specific diseases as compensable. The compensable diseases included: anthrax, lead poisoning, mercury poisoning, arsenic, phosphorous poisoning, poisoning from benzine and its homologues, wood alcohol poisoning, chrome poisoning, caisson disease, and mesothorium or radium poisoning. Chp. 124, 1924 N.J. Laws, 231, Section 1(22b). 

Those compensable illnesses generally arose from chemical or metallic poisoning. If an illness did not appear in the statute, the employee was required to pursue a common law remedy which, as described earlier, was both difficult and costly to pursue. Bodnar v. Simmons Co., 20 N.J. Super. 147, 89 A.2d 299 (N.J. Super. 1952), aff'd 23 N.J. Super. 109, 92 A.2d 642 (N.J. App. Div. 1952), aff'd 12 N.J. 361, 96 A.2d. 795 (N.J. 1953) The addition of a right to recovery for occupational disease, as added to the Act in New Jersey, withstood constitutional challenge and was held to be valid. A. Fishman Hat Co. v. Rosen, 6 N.J. Misc. 667, 142 A. 559 (N.J. 1928). 

In 1949, a major revision was made to the occupational disease portion of the Workers' Compensation Act of the State of New Jersey which resulted in the general recognition of illness due to occupational exposure as a compensable condition. In the revised statute, the phrase "compensable occupational disease" included all diseases arising out of or in the course of employment, which are due to causes or conditions which are or were "characteristic of or peculiar to a particular trade, occupation, process or employment, or which diseases are due to the exposure of any employee to a cause thereof arising out of and in the course of his employment." Ch. 29, 1947 N.J. Laws 194, 103, Section 2. In 1979, New Jersey sought to restrict the definition of a "compensable disease" to those diseases which are due "in a material degree" to the conditions and causes that are or were characteristic of or peculiar to a particular trade, occupation process, or place of employment. Those medical conditions in which a deterioration of either tissue, organ or part of the body has resulted from the natural aging process, were deemed not compensable. N.J.S.A. 34:15-31, amended by Ch. 283, 1979 N.J. Laws, Section 10, eff. Jan. 10, 1980. Generally, occupational disease claims, in the majority of jurisdictions, are not afforded the same liberal interpretation as claims arising out of ordinary traumatic accidents, whether the restrictions are imposed by enumeration on a list, by statutory peculiarities invoking such restrictions and limitations, or by judicial constraints. 

INDUSTRY'S CONSPIRACY TO CONCEAL AND THWART CLAIMS
The drive for economic gain by industry gave rise in the United States to a vast conspiracy to conceal medical data and to thwart claims for compensation benefits. The asbestos industry presents a prime example of how the health of the American worker was exploited for mere economic reward in what has been termed "industrial manslaughter." Asbestos-related disease was reported in industry more than 80 years ago. In 1906 at the Charing Cross Hospital in London, Dr. H. Montague Murray testified before a governmental commission inquiring about occupational disability and stated that he had seen a man in 1898 who was very short of breath and who had worked in an asbestos factory. The man's lungs at autopsy were badly scarred. It was Dr. Murray's prediction that, since the hazards of this exposure were now known, very few similar cases would occur in the future, and that _there was no need to provide compensation benefits.7 In 1924, Dr. Cooke in England reported the case of a woman who died of severe lung scarring after having spent 20 years in a textile weaving factory weaving asbestos. H.R. Rep. No. 14816, 90th Cong., 2d Sess. 349, 355 (1968) 

The first epidemiological study of asbestos manufacturing plants was conducted in 1929 by Dr. Anthony J. Lanza, associate medical director for Metropolitan Life. The study concerned itself with the incidence of asbestos-related disease among manufacturing workers of several companies which included both Raybestos Manhattan and Johns-Manville. Examination of the workers and dust counts were completed in January of 1931 but publication of the final report was delayed until 1935. Vandiver Brown, Secretary and General Counsel for Johns-Manville, and George Hobart, outside counsel for Johns-Manville, sought to delay and edit the report so that the New Jersey Legislative Commission, which was considering the addition of silicosis to the list of enumerated compensable occupational diseases under the New Jersey Workers' Compensation Law, would not expand the list to include asbestosis. Brown insisted that Dr. Lanza should indicate in his conclusion that "clinically, it (asbestosis) is a type of (disease) milder than silicosis." The efforts by Johns-Manville's counsel succeeded in delaying the compensability for asbestosis as a disease under the New Jersey Workers' Compensation Act for about two decades.8 

Furthermore, industry officials such as Sumner Simpson, the President of Raybestos Manhattan, Inc., an asbestos manufacturer which had facilities based in Passaic, New Jersey, sought to suppress data to be published in a trade journal "Asbestos" in 1935. The medical information obtained from the British studies of asbestos-related disease was effectually denied by Sumner Simpson. The editor of "Asbestos" magazine advised Simpson, "always you have requested that for certain obvious reasons we have published nothing, and naturally your wishes have been respected."9 Forty years later, in the 1970's when documents were produced during the course of litigation against the suppliers and manufacturers of asbestos products, the correspondence between Sumner Simpson and Vandiver Brown demonstrating a coordinated and conserted effort to suppress and manipulate information was revealed. Simpson was delighted that information concerning the English medical studies of the health consequences of the use of asbestos had been suppressed and he stated that "the less said about asbestos, the better off we are."10 The conspiracy was acknowledged by reply correspondence of Vandiver Brown on October 3, 1935 when he stated "I quite agree with you that our interests are best served by having asbestosis receive the minimum of publicity."11 

Through the concealment of information, industry was in fact effective in delaying legislation providing for compensability for asbestos-related disease in the State of New Jersey for quite some time. Prior to the amendments of 1944, asbestosis was not even considered to be a compensable disease. Ch. 88, 1944 N.J. Laws, 186. The amendments to the New Jersey Workers' Compensation Act in 1949 kept asbestosis and silicosis separate from the general provisions of the Act. There was no allowance for partial permanent disability under the law. Perales v. Worthington Pump & Machinery Corporation, 26 N.J. Misc. 264, 60 A.2d 804 (N.J. Dept. of Labor 1948) Finally, in 1951, decades after the conspiracy of industry had commenced, the special asbestosis and silicosis section of the Workers' Compensation Act was repealed and asbestosis was given the same status as all other occupational diseases for compensability purposes. Ch. 59, 1951 N.J. Laws, 412. 

EXPANSION OF STATUTE OF LIMITATIONS TO PERMIT MORE OCCUPATIONAL CLAIMS
Technical barriers, such as the statute of limitations, have been utilized to defeat claims for workers' compensation benefits resulting from exposure to toxic substances. Initially many states adopted a statute of limitations period for occupational disease which was similar to that imposed for traumatic events, namely two years from the date of the accident or exposure. Since a lengthy latency period may exist from the date of an exposure to a toxic substance to the actual date of manifestation of a disease process, many claims went uncompensated. More liberal amendments to the various workers' compensation acts have established variations to the period allowed for the filing of claims. The 1974 Amendment to the New Jersey Workers' Compensation Act established that a claim petition for an occupational exposure could be filed within two years of the date on which the claimant first knew the nature of the disability and its relationship to the employment, regardless of when the last date of the exposure was. This amendment, similar to those in other states, was given retroactive interpretation by the courts since it did not revive an expired claim but merely enlarged the workers' compensation court's jurisdiction. Ch. 65, 1974 N.J. Laws, Section 1 effective July 3, 1974 

The issue then arises of when the injured worker must have received reasonable medical information to be deemed to have the requisite knowledge to pursue a claim for workers' compensation benefits. A medical opinion regarding causal relationship is usually required to establish tolling of the statute of limitations. Vispisiano v. Ashland Chemical Co., 107 N.J. 416, 527 A.2d 66 (N.J. 1987). 

FAILURE OF WORKERS' COMPENSATION SYSTEMS TO ADEQUATELY COMPENSATE
In many instances, the workers' compensation systems have failed to adequately compensate the victims of occupational disease. Generally, this failure has occurred for two reasons: _the failure of employers/insurance carriers to make payment and the failure of employees to apply for benefits to which they may be entitled. The failings on the part of employers have occurred as a result of insolvency proceedings, lack of adequate records concerning insurance coverage, inability to locate an employer, and the payment of minimal benefits. 

In many jurisdictions, there is a requirement that information concerning compensation insurance coverage be filed or recorded with a state agency. Since many occupational disease claims do not manifest themselves for a long period following employment, information regarding prior insurance coverage is necessary, but often unavailable. The insurance records required to prosecute a claim extend far beyond the short time during which records of insurance coverage are required to be maintained. Therefore, the lack of information regarding insurance coverage acts to defeat recovery for the victims of occupational illness. 

Similarly, since latency periods are extensive, businesses have often changed ownership or have dissolved between the time of exposure and the manifestation of disease. Records concerning occupational exposures at those entities are no longer available for review by the injured worker or by his physician. The lack of general information acts as a deterrent to the prosecution of a claim for workers' compensation benefits and in many instances makes recovery impossible. Recent modifications in record-keeping requirements invoked by the federal government may provide some additional, but minimal, relief to the next generation of victims of occupational disease, but unfortunately, provide no assistance to those previously not covered. 

Recent federal regulations require that if an employer ceases to do business, the employer must transfer all employee exposure and medical records to the successor employer. If there is no successor employer, the current employer must notify the affected employees of their right to access the records at least three months prior to the cessation of its business. If the employer intends to dispose of records that must be maintained for 30 years, then the employer must either transfer them to the Director of the National Institute for Occupational Safety and Health (NIOSH) if required by standard or notify the Director of NIOSH at least three months prior to the impending disposal. 1229 CFR Section 19.20(h). 

Even if the injured worker is able to obtain adjudication of a claim for workers' compensation benefits, in some instances, the rates of compensation are so minimal that they are barely worth the effort of pursuing. In many instances, the workers' compensation benefit rate is dependent upon the wages in effect at the time of the original occupational exposure. Even if there are statutory amendments to the Act which would provide for increased rates of workers' compensation benefits, they would usually be geared to the limits imposed by the wages in effect at the time of manifestation of disease since premium dollars for workers' compensation insurance coverage are based upon payroll records. Some states have provided for special adjustment benefits to be paid from a state fund contributed to by all those _insured under a state-mandated workers' compensation insurance program. Those recent modifications act favorably for the injured worker; however, in most instances, they are only applicable in cases in which the victim is totally and permanently disabled or in instances in which dependency benefits are being paid. N.J.S.A. 34:15-95.4, Ch. 26, 1988 N.J. Laws 

LACK OF INSIGHT
As was stated previously, workers' compensation systems have failed to adequately compensate the victims of occupational exposures not only because of inadequacies on the part of the employers and their insurance carriers but also because many employees and their dependents fail to apply for the benefits to which they are probably entitled. 

In many instances, the system to compensate the victims of occupational disease has failed because, in order to obtain benefits, affirmative action by the injured worker and/or his dependents is required. These individuals are often not knowledgeable with regard to the sophisticated intricacies of obtaining benefits and/or are too disabled to seek assistance. In many instances, the injured worker or his legal representative is unable to recall an exposure that occurred three or four decades previously and make the connection between the exposure and the manifestation of disease or resulting death. 

ALTERNATE LEGAL EFFORTS BY VICTIMS TO OBTAIN COMPENSATION
Due to the general inadequacies of the workers' compensation systems in the various states, some victims of occupational disease and their legal representatives have sought alternate remedies to obtain compensation for their disabilities resulting from occupational disease. The intentional tort claim alleging fraudulent concealment by the employer in conspiracy actions has been utilized in an effort to obtain sufficient recovery. A legal cause of action may exist for the aggravation of a disease process which occurred because of the employer's fraudulent concealment of the original medical condition and its cause. An employee who worked for a manufacturer for 29 years brought an action against his employer for aggravation of his respiratory disease which resulted from his continued exposure to a known carcinogen, asbestos, based upon the employer's intentional act of fraudulently concealing from him the company's medical findings that he was suffering from a disease caused by the inhalation and ingestion of asbestos in the workplace. The employer's actions prevented the employee from receiving treatment for the disease and induced him to continue to work under the hazardous conditions. Johns-Manville Products Corporation v. Contra Costa Superior Court, 27 Cal.3d 465, 612 P.2d 948 (Cal. 1980) 

OUTLOOK FOR THE FUTURE
Although diseases flowing from occupational exposures are now generally recognized by workers' compensation systems, it is apparent for any number of reasons discussed above that the victims of work-related disease are inadequately compensated. Therefore, there must be an increased awareness of occupational hazards and a more aggressive abatement of them so that illnesses flowing from the workplace can be prevented. 

The question of adequate surveillance and recording of occupational diseases by clinicians has been discussed recently. According to the authors, "Occupational safety and and health is one of 15 priority areas targeted in the U.S. Public Health Service's 1990 objectives for the nation."12 The prevention of occupational illness will depend upon improved surveillance, modification of the workplace environment, and establishment of medical screening appropriate for the types of workplace exposures.13 Given the fact that neither industrial accidents nor industrial disease can be eradicated, a more appropriate system of economic incentive must be created so that industry and its insurance carriers will respond more adequately to the injuries and illnesses which the workforce will inevitably bear. 

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*This newsletter is published periodically by Jon L. Gelman, Attorney at Law, who practices in Wayne, NJ , wrote Workers’ Compensation Law, Volumes 38 and 39, New Jersey Practice (West Group). He can be reached electronically at: jon@gelmans.com. Internet: www.gelmans.com; 1455 Valley Road, PO Box 934, Wayne, NJ 07474-0934, Tel: (973) 696-7900; Fax: (973) 696-7988. COPYRIGHT ©2000 Jon L. Gelman. 

Cite as: 125 N.J.L.J. 748 (March 22, 1990)

This article is reprinted from the New Jersey Law Journal March 22, 1990.