Personal Injury
Suits Against Employers
The primary purpose of workers'
compensation is to provide employees with compensation for work-related
deaths, injuries, and illnesses. It accomplishes this by paying
defined benefits for illnesses and injuries the employee suffers
in the course of employment, regardless of how the condition
occurred and regardless of who, if anyone, caused the condition.
In exchange for this no-fault system of compensation, these benefits
almost always represent the injured employee's exclusive remedy
against the employer. This arrangement, where the injured employee
gives up the chance of a larger recovery in tort in exchange
for a quick and guaranteed compensation for work- related injuries,
results from a legislatively mandated compromise of the various
conflicting interests to which workplace injuries give rise.
The problem of exclusivity becomes most notable, however, where the employer intentionally maintains, ignores, conceals, or misrepresents a workplace hazard. Though courts clearly place accidental or negligent injuries within the gambit of the workers' compensation laws, and exclude injuries incurred as the result of malicious acts on the part of the employer, the difficult questions occur when the employer has knowingly maintained the workplace in an unreasonably hazardous condition, not motivated by a desire to harm employees, but taking a calculated risk with their lives and safety.
As employees face increasing workplace exposure to toxic chemicals and other hazardous materials such as manganese, silica, asbestos and the like, the frequency of occupational diseases employees suffer, in contrast to traumatic industrial accidents, has increased. These diseases, including Parkinson's, develop gradually and often the employee does not suffer symptoms until long after the exposure and after the employee has contracted the disease. As a result, years often pass before an employee may realize that they may have a claim against their employer or former employer. This may also prevent employees from seeking treatment that could otherwise mitigate the effects or symptoms of their condition.
As a result, knowledge of a hazardous condition may be critical in preventing contraction of a disease. In a number of cases, courts have ruled that an employer's concealment of a latent workplace hazard constitutes an intentional tort for which an employee has an action in tort. While exposure to a concealed hazard may not result in an occupational disease, concealment may result in aggravation of the disease because the employer withheld information necessary for effective medical treatment. Courts have upheld damage awards for employees who continued working in hazardous condition which aggravated diseases contracted at work, when the employer knew of the risk that continued exposure represented.
In the case of manganese, an
employee would have to demonstrate that his or her employer knew
that high levels of manganese exposure could result in Parkinson's.
Since the medical community has long recognized manganism as
a parkinsonian condition, may have a viable claim. At the least,
the employee could argue, the employer should have disclosed
the possible dangers of working with manganese and working around
manganese dust.
Workers'
Compensation
One of the ways in which a welder
or steelworker may recover for the onset of manganese related
Parkinson's is through a state's workers' compensation regime.
Workers' compensation statutes are designed to pay lost wages
and medical costs for injuries or diseases contracted through
work related activities. Generally, workers' compensation statutes
provide the exclusive remedy for workers injured by occupational
diseases.
Workers' compensation statutes may allow for common-law remedies, however, in those matters not within the scope of coverage of workers' compensation statutes. Types of common-law actions that courts have been held as outside the exclusive scope of workers' compensation statutes include: actions to recover for aggravation of disease caused by an employer's fraudulent concealment of the fact or extent of disease and its causal relation to employment; actions based on fraudulent representations that certain toxins are not harmful, with knowledge that such representations were false, that employees exposed to such toxins might become ill and die, and that employees were not aware of the hazardous properties of the toxin, where such representations were made with the intent that employees would rely on them; and actions to recover for intentional torts.
In a proceeding to obtain workers' compensation benefits for injury or death resulting from occupational disease, the claimant generally must establish a number of basic propositions before being able to qualify for compensation. The employee must show that he or she contracted a disease that is peculiar to or characteristic of the claimant's occupation or employment, or that the hazards that caused the disease are peculiar to or characteristic of that occupation or employment. In the case of manganese related Parkinson's, a welder's use of filler or combustible with manganese may qualify as a hazard peculiar to or characteristic of welding. The injured employee must also demonstrate that the disease rendered the employee disabled. Until the symptoms of the Parkinson's disease become pronounced enough to interfere with his or her work, a welder may have a difficult time establishing this element. Finally, the employee must show that the employment caused or aggravated the disease. With the recent finding of the medical community, particularly the Washington University study, welders now, more than ever, may be able to make a showing of such causation.
Workers' compensation statutes ordinarily provide specific procedures for bringing claims for disability and death benefits before specialized compensation courts or other administrative entities. The statutes typically require that the employee give the employer notice of the injury and a claim for benefits in a particular the form, manner, and time. Other procedures include the requirements for the medical examination of the employee, the way in which the hearing will proceed, and the burden of proof that the employee must meet in order to succeed in the claim.
Products Liability Suits
Already, some workers have filed products liability lawsuits against manufacturers of welding supplies that contain toxic fillers responsible for manganese poisoning and early Parkinson's in welders.
In a strict tort liability action to recover for a manufacturer's failure to warn of a danger in the use of a product, the plaintiff must prove that the defendant manufactured or sold the product that injured the plaintiff. The plaintiff must also show that the defendant was in the business of manufacturing or selling products of the type that injured the plaintiff. This requirement is designed to protect the casual seller from the liabilities that commercial manufacturers and sellers face.
The plaintiff must demonstrate that use of the product involved a danger of which the defendant was required to provide a warning. In the case of welding supplies with manganese, the manufacturers at least knew that a danger of incurable, Parkinson's-like symptoms existed. To succeed in the claim, the plaintiff must also prove that the defendant failed to provide an adequate warning of the danger. The question of whether and what warning would be adequate can often be central to the case. To establish that the law required a warning the plaintiff must show that the use of the product presented an unreasonable, foreseeable danger that was present when the product left the defendant's control.
Finally, the plaintiff must show that his or her injury resulted from the lack of adequate warning. In the case of welding supplies, this would require both evidence that manganese caused Parkinson's as well as evidence that a warning to that effect would have served to protect the plaintiff, either by aiding in a decision not to perform the work or to use effective safety precautions.
Unlike claims under the workers' compensation statutes, actions in tort allow for damages beyond lost wages and medical bills. Successful plaintiff in tort actions may recover for pain and suffering, and depending on the egregiousness of the defendant's actions and the laws of the particular state, may be able to recover punitive damages. The spouse of a worker afflicted with Parkinson's may recover for loss of consortium, which includes compensation for the loss of sexual intimacy, society, and companionship, depending upon the severity with which the disease manifests itself.
Conclusion
The law limits the amount of
time in which a plaintiff may file an action for injuries. This
time limit varies with the type of injury, the nature of the
claim, and the state within which the plaintiff files suit. If
you believe that you have suffered an injury, such as the onset
of Parkinson's disease, as the result of manganese exposure,
it is imperative that you contact a qualified
attorney in order to insure that you maintain and protect
your rights.
Manganism and Manganese | Welders Legal Rights | Home
If you need immediate attention call 1-800-942-2056