Overview of the Legal Elements That Must Be Met for an Asbestosis Claim Under the FELA


We recently received a favorable verdict in a case we handled for the estate of a Norfolk Southern carman who passed away from asbestosis and heart disease.  After the verdict was returned several of his coworkers were concerned they may suffer from the disease and contacted our office with some questions regarding their risk of developing asbestosis.  There is some basic information regarding asbestosis and the railroad industry that may be helpful to those concerned about whether they suffer from asbestosis.

First, there has to be exposure to asbestos dust to cause asbestosis.  Asbestos was used in the railroad industry in large quantities during the steam era.  The post-steam locomotive uses of asbestos include asbestos-insulated steam generators, pipes on passenger cars, steam pipe installation in shops and locker rooms, asbestos-insulated boilers in power houses/shops, steam cranes, asbestos-lined brake shoes, asbestos-containing gaskets and packing and protective asbestos gloves and blankets.

If an employee worked with, or near those working with asbestos-containing materials there is a potential for exposures to asbestos dust.  One of the characteristics that led to widespread use of asbestos in industry was its durability.  So, once asbestos dust is released in an environment, absent some form of exhaust ventilation, it has the potential to remain present in that work environment for an extended period.

If you suspect you have been exposed to asbestos dust, you should take some time to identify the suspected source of your exposure.  This includes the name, appearance and use of the products you suspect contained asbestos and the timeframe for your suspected exposure.  Asbestos was phased out of many products, so the time of your suspected exposure and the identity of the sources of your exposure are important in determining whether or not there was actual exposure to asbestos dust.

Second, there is an accepted latency period for asbestosis which extends roughly from 10 to 40 years.  The length of the latency period depends somewhat upon the frequency and intensity of the exposure to asbestos dust (i.e., the heavier the exposure the shorter the latency period), the type of asbestos and individual differences of those exposed.  As people’s responses vary with exposure to the flu, they also vary with exposure to asbestos dust.  It is usually a good idea to tell your PCP of your suspected exposure to asbestos dust so as you age and return for physicals and other medical follow-up, your physician will be conscious of the potential appearance of asbestosis.

Third, there are some generally accepted symptoms of asbestosis.  Shortness of breath on exertion and a persistent dry cough are such symptoms; however, they are also associated with non-asbestos related lung disease.  If you notice these symptoms, report them to your PCP along with your exposure history, so he can order additional testing to narrow the scope of their possible causes.

Asbestosis is a scarring of the lungs caused by fibers that make their way into the lung.  Asbestosis has an appearance on x-ray physicians can typically recognize.  The scarring also decreases the ability of the lungs to expand and contract with breathing.  A pulmonary function test is a breathing test that analyzes the function of the lung.  The test is usually ordered by doctor’s attempting to diagnosis a lung disease.  Among the characteristics analyzed by the test is the ability of the lungs to expand and contract.  If the lungs are unable to expand and contract normally, the test is usually interpreted as indicating what is known as a restrictive lung disorder which is consistent with asbestosis.

If the patient has an adequate history of exposure to asbestos dust, a restrictive lung disorder on pulmonary function testing and a pattern on the chest X‑ray consistent with asbestosis, a physician will usually be in a position to make a diagnosis of asbestosis.  In some cases physicians can make such a diagnosis without all of these elements.  At this point, medical care is usually provided by a pulmonologist or other lung specialist.

A legal issue closely associated with the medical assessment of asbestosis (or any occupational lung disease) is when does the statute of limitations begin on a claim.  There is a 3‑year statute of limitations for claims under the FELA.  If a claim is not settled or a case not filed in a proper court, prior to the third anniversary of the beginning of the running of the statute of limitations, the claim will be barred when the statute of limitations expires.  So, some care must be taken to make sure the statute of limitations does not expire on a claim.

The 3‑year period for the statute of limitations begins to run when an employee knows, or should know, they have suffered a job-related injury or suffer from a job‑related disease.  You cannot prevent the running of the statute of limitations on an occupational disease claim, such as asbestosis, by simply not going to the doctor and not being diagnosed as suffering from the disease.  Courts have held an employee has a duty to make a reasonable investigation or inquiry if asbestosis (or any other occupational disease) is suspected.  This means an employee who thinks they may suffer from an occupational disease such as asbestosis must talk with their doctor about their concerns to allow the doctor to investigate whether a diagnosis of asbestosis (or any other occupational disease) can be made at the time.  The discussion with the doctor should include a description of the suspected source of exposure, the intensity, duration and frequency.  If a doctor, having this information, is not able to diagnose asbestosis (or any other occupational disease), the statute of limitations will usually not begin to run.  On the other hand, if the doctor diagnoses asbestosis (or any other occupational disease), the date that information is provided to the employee is usually the commencement of the running of the statute of limitations.  Courts have held if an employee suspects they suffer from asbestosis (or any other occupational disease), delays seeing a doctor, and are later diagnosed with asbestosis (or any other occupational disease), the statute of limitations began to run when the employee initially suspected they suffered from the disease.  In some instances, employees have delayed seeing a doctor for over 3 years after they initially suspected they suffered from asbestosis.  The courts have decided in those types of cases, the statute of limitations expired before a doctor formally diagnosed the condition.

So, for medical and legal purposes, it’s advisable to seek medical care when you believe you may be suffering from asbestosis, or any other medical condition, related to your railroad employment.  We are happy to discuss these issues if you have any questions.  Please do not hesitate to contact us either by telephone or email.

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