OSHA recently adopted a new set of requirements for protecting workers from exposure to silica dust. Unfortunately, those who already suffer from health effects caused by exposure to this dust, a condition commonly called silicosis, have few options when it comes to compensation for their suffering.
Silica Exposure History
Silica, a fine dust made up primarily of quartz, is found in sand, rock, and mineral ore, and is used in ceramics, masonry, concrete, and other building materials. First exposure to this mineral came in the mining industry, where workers were exposed after blasting rock, often working in confined spaces without respiration assistance or filters.
OSHA estimates that the regulation will cost employers in the construction industry about $659 million per year. The new regulation cuts the previous exposure limits in half and provides a way for workers to get early detection of any health effects from exposure to silica.
Public awareness of the dangers of silica dust exposure began in the early 1930’s in Hawk’s Nest, West Virginia. A three-mile tunnel was being dug for a power station, and up to 2,500 workers were drilling and blasting underground with little to no respiratory protection. The rock in this area was so rich in silica, a rare and expensive commodity at that time, that the diameter of the tunnel was increased and the income offset the cost of the project.
Wet drilling methods were used during the drilling and blasting, but not consistently. It was said water was used only when inspectors were present, as it slowed down production. Workers also did not observe the settle time after each blast, exposing them to more damaging silica dust. Because the project took place during the Depression, workers didn’t complain, as they knew they could easily be replaced. In the end, 764 of the 2,500 workers died from acute silicosis, and another 1,500 ultimately developed the disease.
In 1936, about six years after completion of the Hawk’s Nest tunnel, Congressional hearings were undertaken to look at the actions of the companies employing the sick workers. The US Bureau of Mines had publicized the hazards of silica before the tunnel project, and builders disregarded recommended safety measures. The Congressional subcommittee was highly critical of the tunnel builders, but no further actions were taken. By the end of 1937, 46 states had passed laws protecting workers from silicosis, and many incorporated it into their workers’ compensation programs.
Silica Legal History
After silicosis was included in many states’ workers’ compensation programs, the number of claims dwindled quickly. Between 1936 and 1940, only 79 workers were compensated for silicosis. The disease quickly faded from the public eye, thanks to PR from the mining industry and the low number of claims. By the 1950s it was considered a “dead” disease.
After World War II, many workers found jobs in shipyards, oil rigs, and oil refineries performing sandblasting. Consequently, in the 1970s there was an epidemic of silicosis in the West Texas oil fields.
Suddenly in 2002 there was a large influx of silicosis cases in Mississippi. It went from less than 100 claims yearly to 10,642 in 2002, 7,228 in 2003, and 2,609 in 2004. Insurance companies began to drop silicosis coverage from their policies in response to the increased number of claims.
In 2005, states began to define medical criteria for cases regarding silica and asbestos exposure. This was the result of thousands of cases being thrown out of court by a judge in Corpus Christi, TX, who found one doctor performing thousands of silica and asbestos exposure exams in a short 72-hour period. The judge felt the claims had been “manufactured for money.”
Current Legal Options
Currently, the only recourse for workers exposed to silica is to file a workers’ comp claim or a lawsuit. If the exposure occurred on the job, a workers’ comp claim is the appropriate action. A claim does not require proof of negligence or fault, just that the exposure occurred while the worker was working for the company and that the worker has suffered health effects because of that exposure. A worker’s only course of action is through a workers’ comp claim. An employee cannot file a lawsuit against a company for an injury or illness incurred while working.
If a third party was involved in creating the exposure, however, or if it occurred in some other capacity other than as an employee, a lawsuit would be appropriate. In a lawsuit, negligence or intent to harm would need to be proved before compensation would be awarded.
Employers are not the only potential target for those who have developed a silica exposure illness. Equipment manufacturers, such as sandblasters, can be held liable if their equipment created an environment that exposed workers to unreasonable levels of exposure. Manufacturers of safety equipment can also be targeted if their products were defective or failed to work properly. Lastly, suppliers and manufacturers of silica-based products may be at fault if their products are found unsafe or if they fail to meet minimum safety and health standards.
Silica Protection in the Future
OSHA recently put into effect new controls and minimum levels of exposure that are meant to reduce workers’ exposure to silica dust, and to reduce the chance of health effects from exposure. The standard requires employers to provide annual lung function screening and X-rays to document any effects over time to workers who perform high-risk activities for more than 30 days a year.
The construction portion of the regulation contains a table with some common construction activities, the recommended engineering or dust control method, and the type of respiration protection required based on the number of hours the worker will be exposed to the hazard.
The table offers clear direction to employers on what types of protection they need to offer their workers. “Strictly from a safety standpoint, I think it's extremely good, and I really like how OSHA did it,” said Bob Trinkleback, Senior Vice President and Casualty Risk Control Leader at JLT Specialty USA's analytics and consulting practice in Chicago. “I think it's practical, particularly the construction end of it.”
Unions have some concerns that employers will skirt the 30-day requirement for medical exams by letting workers go before that threshold is reached. They would like to see anyone who must work in an environment that cannot be kept below the threshold to be included in the medical surveillance program. This program is employer-paid.
OSHA estimates that the regulation will cost employers in the construction industry about $659 million per year, while outside analysis puts the total at closer to $4.9 billion per year. The outside analysis includes the increased cost of construction projects due to increases in worker protection costs.
The new regulation cuts the previous exposure limits in half and provides a way for workers to get early detection of any health effects from exposure to silica. Silicosis cannot be cured, but workers have a better chance at a longer life the earlier it is caught. The new protections go into effect for the construction industry in June 2017.