APRIL 2005
Brought to you by Gavin Law Firm -William P. Gavin/ Rachel M. Lewis

Employees of a railroad operating in interstate commerce who claim injury during the course of employment must seek damages under the Federal Employers' Liability Act (FELA), the Safety Appliance Act, or the Locomotive Boiler Inspection Act. The FELA states that a railroad operating in interstate commerce whose negligence is the cause, in whole or in part, of employees' injuries is liable for damages to the employee.

Employees who worked as welders and later developed lung cancer or other lung diseases may be entitled to compensation under the FELA. Railroads have known for a long time that electric arc welding produces noxious and toxic fumes.

In 1949, the U.S. Supreme Court ruled that an occupational lung disease is an injury within the meaning of the FELA. This issue has not been reconsidered by the Court since, and the ruling is universally accepted by both state and federal courts. The relationship between welding fumes and lung disease should be reviewed thoroughly by lawyers working FELA cases.

Welding is performed in railroad operations wherever metal pieces need to be fused or where metal cracks must be repaired. The trucks, bolsters, brake-beam hangers, and equalizer bars on railroad cars and various parts of locomotives frequently require welding.

In past decades, boilermakers, blacksmiths, and car men usually performed the welding. With changing operations, however, the need for blacksmiths and boilermakers has greatly diminished. Now car men do most of the welding. Since the task requires dexterity, the railroads usually select certain car men to do the work.

Railroad welding has been and is performed under a wide range of circumstances, including working indoors and within confined spaces. Some railroads have provided ventilated welding booths, but this is the exception rather than the rule.

For lung injuries to be covered under the FELA, the employee's duties at the time of the injury must directly and substantially affect interstate commerce. Courts have held that an employee working at equipment maintenance in a railroad shop satisfies this requirement. Therefore, this requirement should not be difficult to establish in a suit seeking damages for injury from welding-fume exposure.

The Welding Process

Welding is a process by which metal is fused. The most common method is manual electric arc welding. It is performed by producing an arc of electricity between an electrode and the metal being welded. Temperatures created by the arc range between 3,000 and 4,000 degrees centigrade, causing the electrode and the metal to melt and fuse.

The electrode, also known as a welding rod, is held in a device sometimes known as a "stinger," which is connected to an electric power source. The arc is created by touching the tip of the rod against the metal being welded and moving it along the joint.

The composition of the welding rod varies with the metal being welded, because the rod must be compatible with the metal. Most modern rods are coated with a material known as "flux," which also melts during the process to form a cone around the weld. The cone of molten flux excludes atmospheric gases that could contaminate and weaken the weld. The molten flux also strengthens the weld. The composition of the flux on the rods varies greatly from rod to rod, but the flux often contains silicates, fluorides, borates, aluminum, cadmium, and chromium.

The welding process produces fumes. The composition and quantity of the fumes depend on the rods and the metal. Generally, however, the elements cadmium, iron, zinc, lead, chromium, nickel, manganese, and copper, as well as silicates, have been identified in the fumes. Ozone, nitrogen peroxide, and carbon monoxide are also found.

Because of the variety of the contaminants, welding is sometimes referred to as an occupation of cumulative hazards. A claim of lung injury due to the fumes must, therefore, include investigation of the welding materials used. Also, since fume composition may be affected by the type of metal (for example, mild or stainless steel) and whether it is covered with paint or grease, attention must be given to these materials.

Welding Fumes and Cancer

Numerous studies have established a substantially increased incidence of lung cancer among welders. According to one study, "it is clear that welders have a relatively high lung cancer risk." The same study of 3,247 welders employed through a local of the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers found that deaths due to lung cancer were 32 percent higher among welders than among the general population. For those who were employed longer than 20 years, the death rate was 74 percent higher than the rate for the general population.

The study found a high correlation between length of exposure and latency and increased lung-cancer deaths. Latency in this context refers to the time from beginning of exposure to onset of the disease. Therefore, an important question in any welding-fume lung-cancer case will be, How long did the claimant work as a welder before his lung cancer appeared?

The studies establishing an elevated risk of lung cancer among welders have not gone so far as to identify a specific carcinogen in welding fumes. This may be due to the wide range of substances that may be in the fumes. It should be remembered, however, that known lung carcinogens have been identified in these fumes.

The fumes are known to cause or contribute to several types of lung disease, including cancer.

Siderosis. This is an accumulation of iron particles in the lungs. The particles are inhaled in the form of iron oxide, which is produced from the melting metal and core of the welding rod. After being inhaled, most of the particles are absorbed by macrophages, the lungs' scavenger cells, and transported to the lymphatic system. Lung biopsies, however, have shown iron particles in the alveoli and respiratory bronchioles where gas exchange occurs.

Siderosis can be seen in chest X-rays taken of the afflicted welder. The changes in the lungs are usually seen as nodular densities throughout the entire lung field, but the heaviest concentrations are seen in the middle third of the lungs. The X-ray changes resemble silicosis, a lung disease that is caused by inhaling silicon dioxide.

Early literature concerning siderosis did not associate the condition with substantial disability. It was felt that the iron particles produced, at worst, only localized scarring in the lungs. In 1955, Dr. Robert Charr, a frequent author on the subject, suggested that this belief should be reexamined. As time passed, reports of significant pulmonary disability in welders began to appear in the medical literature. Physicians identified substances other than iron - primarily silicon - in welding fumes as the agents responsible for lung scarring. This scarring may gradually lead to emphysema.

Metal fume fever. This is a temporary condition characterized by cough, chest pain, a feeling of pressure in the chest, fever, malaise, and nausea. The condition has been associated with inhaling fluorides, cadmium, chromium, and zinc in welding fumes.

Pulmonary edema. This is the abnormal accumulation of fluid in the air spaces and air passages of the lungs; the condition has been linked to exposure to welding fumes. In the 1920s and 1930s, a number of deaths due to pulmonary edema were reported, particularly among welders who worked in closely confined spaces. The disease was caused by exposure to ozone and nitrogen peroxide gases created when the welding arc comes into contract with air.

Recent studies have also associated welding-fume exposure with obstructive-airways disease. Changes in the air passages can obstruct the flow of air to and from the lungs. It has been postulated that gases an particles toxic to the cells of the air passages stimulate them to change, thus narrowing or distorting the airways

TORT SYSTEM NOT TO BLAME FOR MEDICAL MALPRACTICE PREMIUMS: STUDY

Medical malpractice insurance rates in Texas jumped an average of 135 percent from 1999 to 2003, but university researchers say that the level of malpractice claims and payout's in constant dollars remained stable for years.

In a report called "Stability, Not Crisis," the researchers say they have examined the outcomes of medical malpractice claims in Texas for 15 years, from 1988 - 2002. The study, they say, is unique and comprehensive.

"Recent spikes in medical malpractice premiums in Texas were not caused by rising payout's on claims or jury verdicts," according to the report issued on Thursday by researchers from the University of Illinois, the University of Texas, and Columbia University in New York.

The report says that only two states in the nation maintain publicly available databases on medical malpractice claims, Florida and Texas.

The Texas database could be used as representative for the nation, said Professor David A. Hyman of the University of Illinois College of Law, because Texas is the second largest state by population and third largest by medical spending.

Also, Texas includes a mixture of urban and rural and it has a high rate of uninsured patients, Hyman said.

The researchers analyzed closed claims against insurance companies, claims that were resolved, Hyman said.

They said they found from 1988 to 2002, if one adjusts for inflation by using constant 1988 dollars:

  • Mean and median payout's per large, paid claim (over $25,000) were stable. Such payout's declined if adjusted for medical care cost inflation.
  • The number of small paid claims, less than $25,000 in constant 1988 dollars, declined sharply.
  • Roughly 5 percent of paid claims involved payments over $1 million, with little annual variation.
  • In 2000-2002, there was an average of 4.6 paid claims per 100 practicing Texas physicians per year, down from 6.4 paid claims per 100 practicing physicians per year in 1990-1992.
  • Median, annual jury verdicts in med mal cases where plaintiffs received payments more than $1 (262 cases) from 1988 to 2002 ranged from $180,312 in 1989 to $1,209,401 in 1992.
  • But in 1988, the median jury verdict was under $500,000, and in 2002, it was again under $500,000 in constant 1988 dollars. The mean payout in 2002 was about $528,000, and the median was about $200,000 in 2002 dollars.

One interesting finding that could show doctors are under pressure is that total claims against practicing physicians averaged 25 per 100 physicians annually in 20002002.

This is one claim a year for every four doctors.

"I agree, that's a very high number," Hyman said. He pointed out that 80 percent of those claims were closed without any payment.

Claims do not necessarily mean lawsuits, said Hyman who is both a law professor and an MD.

A "claim" in the study means, Hyman said:

    • A doctor notified his insurance company based on an adverse event he might have some liability; or
    • A health care provider of some sort gets a request for medical records from a lawyer and notifies its insurance company; or
    • An insurance company is notified of a lawsuit against a health care provider, its

policy holder. Although the study compared rising insurance rates to relatively stable payout's in malpractice claims, it is not clear how the study calculated rising insurance rates. The claim payout's are adjusted for inflation, but insurance rates may show the effects of inflation.

But Hyman said, "Inflation was small during the time period in question (1999-2002), so the adjustment would make only a small difference." The study's conclusion, Hyman said, is that "premiums are not a very good guide as to what's going on in the tort system. We had huge spikes in premiums for insurance coverage but no changes in the tort system."

"Although politicians and health care providers tend to focus on premiums", you have to diagnose properly to get the right solution. If you think the problem is the tort system is going crazy, your reforms are not going to do anything for you, and they might have some adverse effects you haven't anticipated.

The cause of the rise in insurance premiums, Hyman said, could be matters within the insurance industry. The study suggests insurance rates soared "when the stock market was falling and interest rates were low.

Asked who financed this study, Hyman said, "It was financed by the University of Texas and the University of Illinois using internal funding from the schools." He said it had "no outside funding" from representatives of plaintiffs or defendants.

(Jerry Crimmins, Chicago Daily Law Bulletin, Volume 151, No. 48, March 10, 2005)

UNDERSTANDING MINOR VEHICLE CRASHES (Why do I hurt when my vehicle was not badly damaged?) By Dr. Kathleen Roche

Whiplash injuries are caused by automobile collisions. This simple statement of the casual relationship between a collision and whiplash injury belies the complexity of the vehicle-seat-occupant system that makes up a typical whiplash producing collision. The focus of this article is on the rear end collision, which has a higher risk of whiplash and frequency for multiple symptoms than either frontal or lateral crashes.

Let me examine the basic bumper systems and examine the good, the bad and the ugly.

THE GOOD. Bumpers were designed to protect cargo (i.e. bodies) from damage in low-speed collisions, by absorbing crash energy without causing significant damage to the bumper itself. Bumpers on today's vehicles generally consist of a plastic cover and underneath, a reinforcement bar made of steel, aluminum, fiberglass composite, or plastic. A bumper system also should include mechanisms that compress to absorb crash energy - (which often fails thus transferring the crash energy to the occupants) polypropylene foam or plastic honeycomb, also known as 'egg crates.'

THE BAD. Not all bumpers are the same in terms of components and performance. This is true among cars of similar size and type. Some bumpers put more emphasis on style than protection. Bumpers were stronger on older makes of cars. Due to varying standards The auto accident attorneys at the Gavin Law firm serve clients through-out Illinois and Missouri. among automobile manufacturers the government stepped in. The first federal standard prohibited damage to safety-related equipment in low-speed crashes. Next came a property damage standard, effective for 1979 models, that prohibited damage except to bumpers and their attachments in 5 mph flat-barrier tests. Cars made during the 1980-1982 model years prohibited all but minor cosmetic damage to the bumper itself in 5 mph tests. The result was bumpers protected cars from damage in many low-speed collisions, thereby decreasing repair charges, but increasing injury claims. The bumpers have lost the elasticity of the past. This loss of elasticity causes crash forces to be absorbed by the occupants of the vehicle, instead of the bumper itself.

THE UGLY. Modern automobile bumper standards only address damage to the vehicle and its safety systems. This neglect of the occupants has been reinforced by insurance and consumer associations that assign value to vehicles that exhibit little or no residual damage following a collision severe enough to cause whiplash and low back injuries to some individuals. Each bumper system has a stiffness (its force-deflection properties) and an elasticity (its ability to return energy stored in the bumper system by the collision.) Together with the mass of the vehicles and the pre-collision approach speed, this stiffness and elasticity determine the shape, duration and magnitude of the collision pulse. All things being equal, stiff bumper systems produce shorter duration collisions and higher peak accelerations thereby transferring energy to the occupant causing the whiplash and/or low back injuries. These findings have been confirmed with the use of the crash test dummies.

CRASH FACTS. Most injuries occur at crash speeds below 12 mph. 18% of whiplash patients were injured in crashes of less than 6.2 mph, 60% at speeds between 6.2 and 12.4 mph and the remainder at higher speeds. Most cars and their bumper systems withstand 8-12 mph impacts without structural damage. Hondas and Toyotas, in particular, can frequently withstand 10 mph and higher delta V with no structural damage.

If you are ever in an automobile accident, please seek medical and legal assistance. You can be hurt even if it appears that your vehicle is not damaged.

NOISH: ASBESTOSIS STILL CLAIMING LIVES LONG AFTER ASBESTOS USE HALTED

WASHINGTON - Although overall deaths from pneumoconiosis - an occupational disease caused by the inhalation of mineral dusts - have declined significantly during the last 30 years, the death rate for one such disease, asbestosis, has been rising, according to a recent NIOSH study.

The study looked at pneumoconiosis mortality from 1968-2000, comparing 1968-1981 to 1982-2000. Researchers found the death rates among males increased 400 percent for asbestosis from 77 deaths in 1968 to 1,493 deaths in 2000. The rise occurred even though asbestos use, which was used heavily during and after World War II, has declined sharply since the 1980s, the study noted.

Researchers attributed the increase to the fact that asbestosis mortality peaks 40 to 45 years after initial occupational exposure to asbestos. Given its latency, asbestosis-related mortality is expected to increase for at least another decade, they wrote. Asbestos-containing materials that continue to be used in some workplaces and remain in buildings represent a potential risk.

Deaths from all other forms of pneumoconiosis showed decreases during the same time period, the study found. Among males, the death rates declined 36 percent for coal workers pneumoconiosis and almost 70 percent for both silicosis and unspecified/other pneumoconiosis.

Researchers concluded that "considerable progress" has been made toward eliminating pneumoconiosis, but that "efforts to eliminate these diseases should continue."

The study was published in "Morbidity and Mortality Weekly Report" (Vol. 53, No. 28).

(Safety + Health, September 2004)

MADISON COUNTY MEDICAL MALPRACTICE

Cases dismissed or settled out of court: 196
Cases won by doctors/hospitals: 13
Average jury award: $380,000
Source: Verdict Reporter, Madison County Circuit Clerk

Cook County: Businesses filed suits 5.8 times more often than trial attorneys representing individuals. The number of business lawsuits filed was 137,890 compared with just 26,938 by individuals.

(Public Citizen's Congress Watch, October 2004)

POLL FINDS MOST ILLINOISANS REJECT CAPS

A poll for the St. Louis Post-Dispatch and KMOX-TV shows that a strong majority of Illinois residents oppose the notion that "pain-and-suffering" monetary awards in malpractice suits should be "capped" at a set amount as a means of controlling insurance costs and stopping the exodus of doctors. The telephone poll of 800 likely Illinois voters found that 55 percent of respondents reject the concept of caps on such awards, while just over a third of them support the idea.

(St. Louis Post-Dispatch, September 19, 2004 - Reprinted in ATLA October 2004, Volume 15, Number 3)

SURVEY: U.S. Children Not Wearing Bike Helmets

Fewer than half of all U.S. children wear a helmet while biking, skating and riding scooters, according to a survey by safety researchers and the National Safe Kids campaign. Many children observed in the survey who were wearing helmet were wearing them improperly, leaving them vulnerable to head injury.

Researchers found helmet use was lowest on residential streets even though this is where most accidents take place. Only 40 percent of children playing on residential streets wore helmets. In states with mandatory helmet laws, 52 percent of children on bikes wore helmets as opposed to 42 percent in states with no helmet laws.

Helmets reduce the risk of brain injury in a bike accident by 88 percent, and head injuries account for up to 80 percent of bicycle fatalities, researchers reported.

http://www.gavinlaw.com/(Safety & Health, August 2004)

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