History of Asbestos and the Law

Asbestos-related disease was reported in industry more than 70 years ago. Dr. H. Montague Murray in 1906 at the Charing Cross Hospital in London testified before a governmental commission inquiry about occupational disability 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 there was no need to provide compensation benefits. . 

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 factory weaving asbestos. Various studies have been conducted over the years concerning the inhalation of asbestos dust and its relationship to asbestosis, increased rates of cancer and mesothelioma. The Union Asbestos and Rubber Company (UNARCO), an asbestos factory in Paterson, New Jersey, was in operation from 1941 through 1954 manufacturing asbestos insulation products for pipes, boilers, turbines and other industrial uses. Following an initial evaluation of 17 workers who had filed compensation claims in 1951 against this employer, Dr. Irving J. Selikoff, Professor Emeritus of the Mount Sinai School of Medicine, and a world-renowned expert on asbestos-related diseases, conducted a survey of the 933 men employed in the Paterson, New Jersey asbestos factory from 1941 to 1945. Dr. Selikoff reported that the factory workers suffered from asbestos-related disease in much greater proportion than that which could be expected in the general population. Of the 304 deaths that occurred among the 582 men observed from January 1, 1961 to December 31, 1977, cancer of one type or another accounted for 116 deaths (38.2%), and an additional 18 deaths (5.9%) were due to asbestosis. 

Despite the fact that New Jersey has been the site of many asbestos industries, there appears to be a dramatic under-utilization of the workers' compensation system for recovery. An unfortunate legacy of asbestos-related disease is likely to remain a problem of huge proportions not only for New Jersey's Workers' Compensation System, but also for the nation as a whole for many years to come. Asbestos fiber still remains prevalent in work environments throughout the nation. Equipment containing asbestos remains in use, and buildings containing asbestos fiber will require maintenance, repair, encapsulation and/or removal. The long latency periods for asbestos-related disease further complicate estimated projections for the future. Paul MacAvoy of Yale University has predicted that excess mortality due to asbestos through the year 2015 will range from between 154,600 and 450,600. His most probable estimate of death is 265,000. An estimate by the New York Academy of Sciences indicates that the social costs of death and disability flowing from asbestos exposure are estimated at between $39 billion and $74 billion over the next 25 years. Prior to the amendments of 1944, asbestosis was not a compensable disease. Even the amendments to the Workers' Compensation Act in 1949 kept asbestosis and silicosis separate from the general provisions of the Workers' Compensation Act. In 1951, the special asbestosis and silicosis section of the Workers' Compensation Act was repealed and asbestosis was placed in the same status as all other occupational diseases for compensability purposes. 

Workers' compensation benefits have been awarded to claimants who have been exposed to asbestos and who have suffered asbestos-related disabilities. The courts have recognized asbestos exposure as causing multiple disabilities, and awards have been made for occupational exposure which have resulted in a "second disease". 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. Even if the employee's widow had knowledge of the asbestos-related disease and its relationship to the employee's disability during his lifetime, in a dependency claim, the Statute of Limitations does not bar a claim in NJ until two (2) years after the date of death of the employee. 

Psychological/psychiatric disability for asbestos-related diseases has been considered by the courts in workers' compensation actions. A standard for recognition of disability flowing from what appears to be psychiatric (subjective) complaints has been established so that this type of disability is also judged based upon demonstrable objective medical evidence. 

By Jon L. Gelman, Attorney at Law

This newsletter is published periodically by Jon L. Gelman, Attorney at Law, who practices in Wayne, NJ , wrote Workers’ Compensation Law, Volumes 38, 39 & 39A, New Jersey Practice (West Group). He can be reached electronically at: jon@gelmans.com. Internet: www.gelmans.com; Tel: (973) 696-7900; Fax: (973) 696-7988. COPYRIGHT ©2001 Jon L. Gelman.