Recovery for Asbestosis under Virginia Workers Compensation

Posted on Monday, October 11th, 2021 at 4:07 pm    

Many people are familiar with the horrific disease of asbestosis, a lung disease caused by exposure and inhalation of asbestos fibers.  Asbestos is a natural, but dangerous mineral product that was commonly used in many industries until the late 1970’s due to its properties of being resistant to heat and corrosion. Unfortunately, although heavily regulated, it is still not banned in the U.S., even though studies have shown that there are no safe levels of exposure to asbestos.

Asbestosis is a disease that has a long latency period, meaning that from the time of exposure to the asbestos fibers, it can take from 10 to as much as 40 years to develop. It shows up in the form of lung tissue scarring from fibers that remain in the lungs permanently.

The good news is that even though you may have been exposed long ago, even you are long retired, if you’ve recently been diagnosed with Asbestosis, Virginia Workers Compensation law provides a clear and relatively easy path for you to obtain money. Similar benefits are paid for diagnosis of other diseases of the lung caused by exposure to substances at work, including silicosis.

What are the potential symptoms of Asbestos?

According to the Mayo Clinic, symptoms can include:

  • Shortness of breath
  • A persistent, dry cough
  • Loss of appetite with weight loss
  • Fingertips and toes that appear wider and rounder than normal (clubbing)
  • Chest tightness or pain

As the disease progresses, more and more of your lung tissue becomes scarred, making breathing more and more difficult. In its worst form, asbestosis can lead to a specific type of cancer known as mesothelioma, which, in turn, leads to a tragic, catastrophic and extremely painful death for the victim.

Due to the long period of time it takes to develop the disease, many of the victims of asbestosis are older and have long been retired from work, or long ago switched to a different job where there was no asbestos exposure. Typically, those most at risk for the disease are those who were exposed to the most asbestos and for the longest periods of time. Those workers can include anyone who worked in these jobs:

  • Asbestos miners
  • Aircraft and auto mechanics
  • Boiler operators
  • Building construction workers
  • Electricians
  • Railroad workers
  • Refinery and mill workers
  • Shipyard workers
  • Workers removing asbestos insulation around steam pipes in older buildings.

Diagnosis of the disease is typically done through both a clinical exam and a lung x-ray that is read by a qualified pulmonary doctor who has passed certain qualifications to properly categorize your stage of disease. These doctors are known as someone who is a qualified B-Reader.  They have to pass a special national exam that qualifies them to interpret lung x-rays based on standardized categories of work-related lung disease, including asbestosis.

In Virginia, even if you are long retired, even if you last worked in a job that exposed you to asbestos thirty years ago or more, you may be entitled to money simply based on your diagnosed stage of the disease; however, once a physician communicates the diagnosis of asbestosis to you, you only have two years to file a claim for benefits.

Benefits Under Virginia Workers Compensation for Asbestosis

In Virginia, you are entitled to a certain number of weeks of temporary total disability benefits, which number is based on the category of stage of asbestosis you are found to have by a qualified pulmonary doctor. Temporary total disability is 2/3rds of your average weekly wage. (Which average weekly wage to use will be discussed below) Of course, if you require treatment, you are also entitled to have your treatment paid for by the workers compensation insurance company.

Unfortunately, according to the case law, the average weekly wage is measured by the average weekly wage of the last job where you were exposed at the time you were exposed when engaged in the initial filing of your claim for asbestosis. So, if you were making $100.00 per week when you left your position as a master pipefitter in 1971, then your weekly total disability benefit would be $66.67.  The payouts are as follows, depending on the stage of the disease:

First Stage                                                                   50 weeks

Second Stage                                                              100 weeks

Third Stage                                                                  300 weeks

The stage of the disease is primarily determined by the B-reader mentioned above, and is based on the number and extent of asbestos fibers and scarring (typically referred to as opacities) seen in your lungs by the B-reader on x-ray.

Obviously, because your payout may be based on wages you earned a very long time ago, your recovery may be very limited; however, as long as you are able to provide some credible information about your last employer where you had exposure to asbestos on the job and you have an appropriate diagnosis, if the employer is still in existence and is still insured,  you should be able to obtain a recovery. If not, it is possible that the Uninsured Employers’ Fund may be able to assist.

In the example given above, if you were found to have reached the second stage of asbestosis, you would be entitled to 100 weeks, or $6,667.00. Sometimes, if you are in otherwise good health, rather than receive the $66.67 per week over 100 weeks or roughly two years, you may be able to negotiate with the workers compensation insurance company to provide you with a  lower, lump sum payment, of say $5000.00, based on your diagnosis.

Obviously, if your average weekly wage was much higher, you will be entitled to more money.

When Asbestosis Disease Advances to a Higher Stage-Potentially Far Greater  Payout

What if you have already filed and received benefits or are receiving benefits for asbestosis and you find out that your disease has advanced, for instance from Stage 1 to Stage 2 or even to mesothelioma?

At that point, everything changes. According to the statutory law at VA Code 65.2-406 ( C ), in order to recover for the more advanced stage, you must file another claim for benefits known as a change in condition, under the same case number as your first claim, and it must be filed within TWO YEARS of the date you received communication from your doctor as to the more advanced stage of asbestosis. For other lung or occupational diseases other than asbestosis, you must file within three years of the date you were last paid for the earlier stage of the disease.

What happens if I die before I am fully paid out?

Once you are found to have a documented stage of asbestos and are awarded benefits, any remaining unpaid benefits would continue to be paid to your remaining dependents, such as a spouse, even if you died of causes unrelated to asbestosis.

If you are diagnosed with a first stage of disease and subsequently were to die of mesothelioma, that would be considered a work-related death and your remaining dependents would be entitled to payment as if a new accident occurred and must file a claim for death benefits within two years of the date of your death.

Of course, if you settle your claim for a lesser lump sum, you can do whatever you wish with the funds, and that will leave more money for your heirs, such as your children or grandchildren to inherit when you pass away.

Why Should I bother with an Asbestosis Claim?

Why should you bother with this, even if you have been diagnosed as having asbestos, but you feel fine? Well, first of all, as mentioned above, if you fail to file within two years of the date you were told you had asbestosis, you can never bring a claim for it. So, if you were to advance to a higher stage of the disease, you will have blown your statute of limitations and you will not be able to recover anything.

In addition, keep in mind that the payout money for permanent impairment is not the only thing you are entitled to. If you prove your claim, you are also entitled to payment by the worker’s compensation insurance company for TREATMENT related to your asbestosis. Even if you don’t need it now, you may need it in a few years. That could save you thousands of dollars in Medicare co-pays.

Moreover, should you decide to settle your claim, one of the components of settlement can be the value of the potential future obligation of the insurance company to pay your future medical bills related to asbestosis. That being said, assuming you are over 65 years of age, that portion of your settlement would have to be paid out via a formal Medicare Set-Aside fund.

Finally, even though fault is not part of workers compensation, there is evidence that many employers were aware of the dangers of asbestos long ago, but failed to inform their employees or take appropriate precautions such as providing respirators or engaging in other mitigation practices that would have reduced the danger. Those employers paid high premiums to insurance companies to cover them for any workers compensation claims that may arise during your employment. Those insurance companies are therefore on the hook for the payouts mentioned above in relation to these claims. If you fail to enforce your rights, that money will simply remain in the pockets of the big insurance companies, rather than in the hands of your children or grandchildren after you are gone.

Joe Miller has been representing injured workers for over 32 years. He has experience representing workers diagnosed with asbestosis and may be able to obtain compensation for you or a loved one, even if it’s been many years since your last exposure to asbestos at work. As mentioned above, there are strict time limitations for filing a claim after you are told you have asbestosis. Don’t bother with this on your own. Leave it to the professionals. We stand ready to assist you. If you were exposed to asbestos on the job in the Commonwealth of Virginia, EVER, you may contact us toll free at 888-694-1671 or email us at intake2@joemillerinjurylaw.com  to see if you may have a compensable, occupational disease claim for asbestosis.