Pursuing an asbestosis claim is most associated with a confirmed diagnosis of mesothelioma or asbestos related lung cancer, both fatal and incurable diseases. Where medical evidence shows clear symptoms of asbestos exposure, which has resulted in conditions such as pleural plaques or pleural thickening, the courts have not always decided in favour of a claimant. Today, a claim for conditions, such as pleural thickening can be more successful.
In a recent case, a former power station worker was awarded an undisclosed amount of asbestos compensation after nearly forty years of almost continuous asbestos exposure, which left him suffering with shortness of breath and panic attacks caused by pleural thickening.
Seven months earlier, a former fitter at a steel making company who spent twenty years working directly with asbestos insulation materials was awarded a five figure sum for the “provisional harm” caused by the condition.
Rising number of cases
Cases of pleural thickening – the scarring and calcification of the lung linings – have risen in the last two decades. In 2014,the number of diffuse pleural thickening cases newly assessed by the Industrial Injuries Disablement Scheme (IIDB) was 425, compared to just 150 cases in 1991. An average of 430 new pleural thickening cases were annually reported over a ten year period, according to the Health and Safety Executive.
The view once taken by the Ministry of Justice (MoJ) was that those claimants diagnosed with pleural plaques were more likely to be at an increased risk of developing an asbestos-related disease, such as mesothelioma, but only as a result of direct exposure to asbestos rather than because of the plaques themselves.
The reasoning was that while the presence of both pleural plaques and pleural thickening are almost always an indication of exposure to asbestos and are also present in patients with asbestos-related diseases and mesothelioma, the symptoms are neither cancerous nor tumour forming and therefore, considered not harmful in themselves. A court may be more likely to accept that asbestosis disease is “potentially progressive” and a claim may be successful if the effect upon a claimant can be medically identified before he is aware of any symptoms.
Significant disability for an action to proceed
In one court case it was held that a respiratory disability of between 1 and 3 per cent caused by the condition was “significant” and, therefore, an action could proceed. Compensation for pleural thickening can be substantial where more than 10 per cent disability causes progressive symptoms of breathlessness. In cases where a victim has been exposed to asbestos at more than one workplace, each employer may become liable to compensate the claimant for a proportion of overall exposure.
In the most recent case, the claimant was first exposed to asbestos over an eight year period in the late 1950s while working as a scaffolding contractor at power stations across the UK. Further exposure occurred when next employed at a gas works until the early 1970s and subsequently, at power stations in the 1980s and 1990s. However, it wasn’t until 20 years into retirement that the first symptoms of breathlessness led the victim to visit his doctor. After draining fluid from the lungs and carrying out a biopsy – removal of a small tissue sample for microscopic analysis – a diagnosis of pleural thickening was confirmed.
In the second case, the former fitter was also employed at a steel works from the early 1960s until the early 1980s, exactly coinciding with the peak use of asbestos as an insulation and fireproofing material across British industry. The retired steel worker recalls the air filled with asbestos dust while regularly working in areas where there was constant “lagging” of asbestos insulation lining the boilers and steam pipes running throughout the plant.
1 in 4 will suffer worsening of the condition
Asbestos-related disease is known to usually develop over a period of at least ten to 50 years from initial exposure before the first asbestosis symptoms start to emerge. Pleural thickening reduces the elasticity and ability of the lung to function, producing symptoms such as shortness of breath, feeling of tightness across the chest and general chest pains. More than three decades had passed since the fitter retired from the steel works before a diagnosis was made and action to pursue a claim was begun.
The accounts of both men are repeatedly heard in court cases, in which they describe the absence of any safety protection or information warning of the health risks involved with working in environments where asbestos was present.
Around a half of all those who are exposed to asbestos will develop pleural plaques and in an estimated one in four of pleural thickening cases, the level of disability caused by a worsening of the condition will increase on and off in the first ten years after diagnosis. However, many victims will not suffer a further deterioration in their health. While pleural thickening is almost always an indication of exposure to asbestos and is present in patients with asbestos-related diseases it can also be the result of other conditions, such as rheumatoid arthritis, surgery or a previous respiratory infection.