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CHAPTER 3-402 - ASBESTOSIS

1. Purpose and Scope. This Chapter provides guidelines and procedures for developing and adjudicating claims of asbestosis allegedly resulting from a claimant's exposure to asbestos in the course of employment. PM 2-203 and PM 3-400 provide basic information on the development and handling of occupational disease cases in general as well as definitions of relevant terms.

2. Introduction.

a. General Discussion. Asbestos is a naturally occurring mineral fiber which has multiple industrial uses due mostly to its binding and heat retardant properties. From the early years of the Second World War, industrial use (and production) of asbestos fiber products increased dramatically in the United States. As a result it has been estimated that as many as eleven million living Americans have received some occupational exposure to the various asbestos mineral fibers.

About 2/3 of all asbestos was used in the construction industry, particularly in ship construction, since asbestos is effective in insulating boilers, steam pipes, hot water pipes and nuclear reactors. Thus, many persons employed in shipyards have been exposed to asbestos. In addition, exposure may occur during the transporting of asbestos, both on board ships and in terminals.

Exposure to asbestos fibers has been epidemiologically linked to a number of human diseases. Asbestosis, diffuse interstitial fibrosis of the lungs' parenchymal tissues, is the most commonly recognized disease related to such exposure. Recent evidence has suggested, however, that asbestosis may be one of the least frequently occurring asbestos related diseases. Asbestos exposure has also been shown to be a causal factor in a variety of pulmonary (pleural and parenchymal) and gastrointestinal disorders. Probably least recognized is the recently established relationship of this mineral fiber to carcinogenesis including the development of mesothelioma and bronchogenic carcinoma.

Mesothelioma, for instance, once an extremely rare human cancer, has been observed in significantly increased incidence in recent years. It is estimated that 85 to 90 percent of all diagnosed mesotheliomas are directly due to asbestos exposure. Some evidence also exists linking asbestos exposure to gastrointestinal carcinoma, but this relationship is less well documented.

b. Causal Relationship. Mere exposure to asbestos does not mean that an employee will contract a disease. Many workers remain unaffected. In order for a claim to be compensable, an employee must show that he or she has suffered some harm and that there were factors of employment capable of causing this harm. Once the employee meets this prima facie burden then the presumption contained in section 20 applies to link the harm with the claimant's employment.

c. Entitlement to Compensation. A distinction can be made between disability and impairment as follows:

(1) Disability. The partial or total loss of ability to earn wages.

(2) Impairment. The loss or loss of use of an organ, body part, or bodily function.

An employee may show some evidence of asbestos exposure but not have suffered any harm or impairment. Ferruginous bodies ("asbestos bodies") in the sputum are indicative of exposure but do not demonstrate harm or the presence of active disease. Pleural plaques (on chest x-ray) constitute a typical example of abnormalities (harm) which may not cause any impairment or disability. An employee may also have impairment but no disability. This would occur where the employee has some reduction in pulmonary function but no reduction in earning capacity.

The distinction between disability and impairment is relevant for cases where the time of injury is prior to voluntary retirement. If the time of injury is after retirement, disability means impairment.

3. Applicability.

a. Eligibility. Present and former employees of employers subject to the LHWCA as extended, and/or their survivors, may be eligible for LHWCA benefits if exposure to asbestos occurred in the course of employment and some identifiable harm resulted from the exposure.

b. Benefits Provided. Disability benefits provided by the LHWCA and its extensions in the case of a disease causally related to asbestos exposure which is accepted under the Act include:

(1) Compensation for wage loss or loss of wage earning capacity;

(2) Compensation for physical impairment, where the injured employee is retired at the time of injury;

(3) All medical, surgical, and hospital treatment, and medical supplies and services required by the occupational disease;

(4) Vocational rehabilitation where indicated; and/or

(5) Death benefits.

c. Time Limits for Filing.

(1) Generally, the law requires that a claim be filed within one year from the date the employee or claimant is aware, or by the exercise of reasonable diligence should have been aware, of the relationship between the employee's disease or death and his or her employment. In addition, the employee or claimant is required to notify the employer or former employer with whom the employee's last exposure to asbestos occurred, and the DD in the compensation district in which the last exposure to asbestos occurred within thirty days after the employee or claimant is aware, or in the exercise of reasonable diligence should have been aware, of a relationship between the employee's disease or death and his or her employment.

(2) However, in the case of an occupational disease which does not immediately result in disability or death, a claim shall be timely if filed within two years after the employee or claimant becomes aware, or in the exercise of reasonable diligence or by reason of medical advice should have been aware, of the relationship between the employment, the disease, and the disability or death. In these cases the employee or claimant is required to notify the employer or former employer and the DD, as noted above, within one year after the employee or claimant becomes aware, or in the exercise of reasonable diligence or by reason of medical advice should have been aware, of the relationship between the employment the disease, and the disability or death.

(3) Time limits for filing a claim do not begin to run against the claim of an injured employee or eligible dependents entitled to compensation if:

(a) The employer has knowledge of the injury or death; or

(b) The employer has been given notice of injury or death; and

(c) The employer fails, neglects or refuses to file a report of the injury or death with the DD.

In this situation, time limits for filing a claim do not begin to run until the employer submits the required report.

4. Evidence to be Requested.

a. From the Claimant.

(1) A detailed history of the disease from the date it started;

(2) The way in which the employee was exposed to asbestos and the degree and length of exposure;

(3) Statement from any witnesses concerning the degree and length of exposure;

(4) The date the employee was last exposed to asbestos in his or her employment;

(5) The date and circumstances when the claimant first became aware of a possible relationship between the disease, any impairment/disability and the employee's work;

(6) The names and addresses of all physicians and hospitals which have provided the employee with medical care for a disease which is causally related to exposure to asbestos;

(7) A printout from the Social Security Administration, which shows the claimant's employment history; and

(8) Information about any third party actions which have been filed, i.e., when filed and against whom.

b. From Other Sources.

(1) It is recommended that the claimant arrange for submission of medical admission and discharge summaries and full hospital reports for all periods of hospitalization for an asbestos-related disease, and medical reports from any hospital which provided outpatient treatment for such a condition.

(2) It is also recommended that the claimant be prepared to submit a medical report from each physician who has examined or treated the employee for an asbestos-related disease. Each report should include as much of the following as possible:

(a) Dates of examination and treatment;

(b) History given to the physician;

(c) Detailed description of the physician's findings;

(d) Results of x-rays, pulmonary function tests, blood gas tests or other laboratory tests;

(e) Diagnosis;

(f) Clinical course and treatment; and

(g) The physician's opinion, with medical reasons, as to whether the disease is causally related to employment, either by direct cause, or by aggravation, acceleration or precipitation.

c. Measure of Impairment. Where the claimant has voluntarily retired, the level of compensation benefits is determined by the amount of impairment. Therefore, in appropriate cases, the claimant should be asked to submit a report which contains the amount of pulmonary impairment measured in accordance with the American Medical Association's Guides to the Evaluation of Permanent Impairment.

5. Procedures. Claims for compensation or death benefits resulting from exposure to asbestos should be filed with the DO having jurisdiction over the state in which the exposure occurred. The claim should be served on the responsible EC which the Social Security printout should help establish. The DO should ask the claimant to submit the evidence listed in paragraph 4, above. When this evidence has been submitted, the DO should make the following determinations:

a. Time of Injury. When the disease became manifest.

(1) For purposes of coverage and for sections 10, 12, and 13: the date on which the employee or claimant becomes aware, or in the exercise of reasonable diligence or by reason of medical advice should have been aware, of the relationship between the employment, the disease, and the death or disability.

(2) For purposes of determining the responsible EC: the date of last injurious exposure.

b. Retirement. Whether the claimant is still working or whether the claimant has voluntarily withdrawn from the work force with no realistic expectation that he or she will return to the work force.

c. Method of Compensation. Whether entitlement is based upon loss of wages or wage earning capacity (time of injury pre-retirement), or impairment (time of injury post-retirement).

(1) For loss of wages or earning capacity, entitlement is based upon the difference between the claimant's earnings and his or her average weekly wage on the date of injury.

(2) For entitlement based upon impairment, the whole person impairment as measured by the AMA Guides multiplied times the compensation rate.

6. Recommendation. After the evidence has been evaluated and a determination regarding entitlement has been made, the DO should make a recommendation to the parties either for or against the payment of benefits. If either party disagrees with the recommendation, the case should be referred for formal hearing in accordance with the procedures contained in PM 4-600.