Exposure to silica dust may result in physical complications for employees and legal complications for employers.
By William Atkinson
According to Mark A. Behrens, a partner with the law firm of Shook, Hardy & Bacon (Washington, D.C.), trial attorneys filed 24,995 silicosis-related claims in 2003 – four times the number they filed in 2002, and 268 times the number they filed in 1997.
And according to an article in the November 2003 issue of Best’s Review, an insurance industry publication, some trial attorneys are becoming so active in this area that they have even taken portable X-ray machines to union halls and encouraged workers to be X-rayed for possible silicosis exposure.
If you haven’t done so already, it may be a good time to determine the exposure your employees may have to silica in the workplace – as well as the legal exposure you may have as a result of it.
Silica is the second most common mineral in the earth and is a major component of sand, rock and mineral ores. Most crystalline silica comes in the form of quartz and, of course, concrete and masonry products contain quartz in the form of sand and aggregate stone.
Exposure to airborne silica dust is associated with a number of diseases, including silicosis, bronchitis, tuberculosis and lung cancer. Of most concern to precasters is silicosis, a disabling, nonreversible and sometimes fatal lung disease caused by overexposure to crystalline silica. Overexposure to dust that contains microscopic particles of crystalline silica can lead to inflammation, and eventually scarring, of lung tissue. This reduces the ability of the lungs to extract oxygen from the air.
Symptoms of silicosis include shortness of breath following physical exertion, severe cough, fatigue, loss of appetite, chest pains and fever.
Workers in the precast concrete industry can be exposed to silica during batching/mixing, blasting, chipping, hammering, grinding, sawing, drilling, crushing, loading, dumping, sweeping and air blowing.
There are three types of silicosis:
- Chronic silicosis, the most common type, usually occurs after 10 or more years of overexposure. Unfortunately, it often goes undetected in the early stages. Chest X-rays, for example, may not reveal abnormalities until after 15 or 20 years of exposure.
- Accelerated silicosis develops over five to 10 years as a result of higher exposures.
- Acute silicosis can develop within a few weeks to five years as a result of extremely high exposures.
According to the National Institute for Occupational Safety and Health (NIOSH), approximately 1.7 million U.S. workers are exposed to crystalline silica each year. According to the American Lung Association, approximately 60,000 of these workers will suffer some degree of silicosis.
In the early 1990s, when Behrens’ law firm represented a sand industry trade association, he became familiar with silicosis litigation. “At the time, it was a stable area,” he recalls. Few claims were filed, and few of those were ever successful. “One reason is that silica hazards have been well-known since the 1930s, and the industry has never attempted to keep them a secret. Another reason is that workplaces are regulated by federal and state authorities to address these hazards.” Because of workplace efforts, according to NIOSH, there has been an 84 percent decrease in silicosis mortality rates since 1968 – 1,157 in 1968 (two years before the creation of OSHA) and 187 in 1999 (the last year NIOSH studied the issue).
So why the sudden explosion of silicosis claims in the last couple of years? The primary reason, says Behrens, is proposed tort reform. Trial attorneys are concerned that there may be federal and/or state legislation that will cut into the number of asbestos claims currently being filed. “If this happens, it could have a negative impact on their ‘litigation machine,’” he notes. “As a result, they have begun to look for an ‘alternative fuel’ to run the ‘machine,’ and they have selected silicosis.”
What can and should you do as an employer to protect your employees from silica dust exposure and yourself from legal exposure? There is no cure for silicosis, but it is preventable if employers, workers and health care professionals work together to reduce exposures. “The first step is to prevent claims in the first place through safe work practices,” emphasizes Behrens.
Kenneth Vaughan, president and CEO of Neoterik Health Technologies (Woodsboro, Md.), a respirator manufacturer, agrees. “The first step is for employers to make sure workers are not exposed to levels of silica beyond what OSHA publishes in its standard,” he says. “If they are, the next step is to try to reduce exposure levels of silica in the workplace.”
The key to silicosis prevention is to reduce the amount of silica dust in the air. OSHA requires administrative and/or engineering controls to be used whenever possible.
Examples of engineering controls:
- Wet the dust down at the point of generation.
- When sawing concrete or masonry, use saws that provide water on the blade.
- Use dust collection systems.
- Use local exhaust ventilation.
The most common example of administrative controls is to reduce the time employees are exposed to silica dust.
In addition, all workers exposed or potentially exposed to silica dust should have regular medical examinations consisting of chest X-rays, a pulmonary function test and an annual tuberculosis evaluation.
“If it is not possible to reduce exposure levels to below OSHA’s requirements, then everyone should be wearing the appropriate types of respirators,” says Vaughan.
Again, though, respirators should not be the first line of defense against silica dust exposure. According to OSHA Standard 29 CFR 1910.134, respirators may be used only when “effective engineering controls are not feasible, or while they are being instituted.”
The most common types of respirators for silica control are air-purifying and air-supplying respirators. When respirators are used in the United States, OSHA requires that you establish a comprehensive respiratory protection program, which is outlined in the “NIOSH Guide to Industrial Respiratory Protection” (NIOSH Publication No. 87-116). Program elements include a qualified respirator program manager; procedures for selecting and using respirators; medical evaluations prior to respirator use; fit tests; maintenance procedures and schedules (cleaning, inspecting, disinfecting and storing); training employees on the use of respirators; maintaining records of medical evaluations and fit tests; and procedures for overall program evaluation (including the opportunity for employee participation).
If you fail to follow these requirements, you could find yourself in violation of OSHA and facing a fine. Unfortunately, this is too often the case. A survey conducted by the Bureau of Labor Statistics for NIOSH found that few employers followed all of these requirements. For example, only 48 percent of those surveyed reported that they conducted medical evaluations of their employees before fitting them with respirators, and only 69 percent fit-tested workers for respirators.
Another concern about respirators: If the exposure level is less than 10 times the permissible exposure level, then you are allowed to use the lowest-grade respirator, which is a disposable N95. “However, if workers are exposed to levels greater than 10 times the permissible exposure level, an N95 won’t provide sufficient protection,” cautions Vaughan. “The problem is that few work sites have industrial hygienists with air monitors taking air samples.” As a result, if employers have exposure levels above OSHA’s permissible exposure level, they may automatically select an N95, assuming it will be sufficient. “Employers need to have professionals monitor their air for them on a regular basis to determine what types of respirators, if any, they need,” he says.
If you are hit with a silicosis-related lawsuit, Behrens recommends not automatically settling the claim out of court to prevent going to trial. “What the trial lawyers are trying to do is encourage defendants to settle these cases,” he explains. This is simply a way for them to generate quick cash. Settling may also be appealing to defendants (employers), who may see it as an easy, time-saving and less-expensive way out. “The problem is that if everyone settles, it will only encourage trial lawyers to file even more claims,” he continues. The reason trial lawyers want to settle is that, unlike asbestos cases, it is very difficult for them to win actual silicosis cases in court. The best approach is to contact your attorney or find one who is familiar with silicosis litigation.