Asbestos is a mineral that is crystalline in nature and that has high degrees of durability, flexibility and resistance to corrosion by chemicals and heat. Asbestos is commonly used for making building materials for example floor tiles, ceilings, asbestos cement products, fireproofing material and insulation products, gaskets, coatings, textile products and automotive brakes. Shipbuilders use asbestos for insulation of hot water pipes, steam pipes and boilers. Globally, the incidence of disease related to asbestos is expected to peak around 30 to 40 years following the period when there was peak usage (CDC, 2003).
Many of the patients who have lung disease related to asbestos have a history of exposure, often this history is strong but there are occasions when significant disease occurs in patients who have had minimal exposure and sometimes even with unknown exposure (Oreilly et al, 2007). Asbestos fibres are often expelled after an individual has swallowed or inhaled them, however not all the fibres are expelled. Some are left in the lungs and remain lodged there permanently. Upon accumulation they cause scarring of lung tissue and inflammation too.
This then results in lung disease which affects breathing and air exchange (Solicitor advice, 2007). When inhaled, asbestos fibres leads to a variety of conditions, among these being lung cancer, pleural plaques, asbestosis, malignant mesothelioma and benign pleural effusion among others. Patients present with these conditions related to asbestos exposure long after they have been exposed. The latent period from the time of exposure to the manifestation of the clinical disease is very long. Initially the signs and symptoms are not specific and therefore occupational history becomes a good guide to suspicions that the clinician may have.
Risk factors for development of lung disease related to asbestos include exposure to asbestos such as in occupations like construction workers, shipyard workers, boilermakers and rail road workers. Minimizing and avoiding further exposure are important in reducing further damage when one has been diagnosed with the asbestos related disease. Patients who smoke have an even higher risk of developing these conditions making cessation of smoking an essential factor in reducing risk (Oreilly, McLaughlin and Beckett, 2007).
The risk increases with the duration of smoking, therefore it is necessary to stop smoking and also avoid second hand smoke through passive smoking. Smokers who have been exposed to asbestos have a greater predisposition to development of lung cancer than those exposed to asbestos who are non-smokers. For a long time Australia has lagged behind other countries such as the UK and the USA in terms of regulation and legislation concerning asbestos related disease and worker’s compensation.
This was the case especially in the I970s when the there were few common law claims by victims of asbestos related lung disease even in situations where the conditions resulted from negligence by the asbestos industries (Formato and Gordon, 2007). This was despite the fact that there was a considerable increase in the number of people suffering from mesotheliomas among those working in Wittenoom for ABA Limited, a company that mined and milled asbestos. Some of the obstacles facing the claimants were overwhelming and it is highly probable that the Statute of Limitations was a barring factor for most of these claims.
In addition getting hold of company information was also very difficult and often the corporate end withheld information from the claimants and their legal advisers. Presently, Postal, Defence and Telecommunications employees and other government employees are covered by a no fault benefit scheme referred to as Comcare Australia. The entitlements under this scheme are such that the employee is required to choose between compensation entitlements under the Common Law Damages or under the Comcare Act. One of the most significant barriers under the Comcare Act is the complexity of the legislative framework.
Not until the government agency has received the claim for purposes of determination and then reconsideration can one get into a court or a tribunal (Formato and Gordon, 2007). The laws for compensation show some variance from one State to another. In a general sense, however compensation claims can be made under common law for a variety of reasons. These include, medical (these include expenses for hospitalization and treatment) and pharmaceutical expenses for the past and the future, for pain and suffering and for loss of the capacity to earn an income as well as for loss of income (Solicitor advice, 2007).
The courts also award compensation for other things such as domestic assistance costs for the future and the past as well as damages for loss of life expectancy (Solicitor advice, 2007). When making a claim for damages it is best to make the claim as early as possible upon diagnosis of the condition. This helps one to avoid the barriers that come with the statute of limitations on period. For latent conditions such as those related to asbestos, the period may be extended but even then it is best to act soon. For a long time in Western Australia, victims of asbestos related disease could only hope to receive worker’s compensation entitlements.
This is because though claims for common law damages were available the tendency was that they were not pursued. The common law claims were faced with the rather harsh and extreme statute of limitations period. It had no provisions for extension beyond six years. There have however been amendments that were introduced which have made it a little less difficult to make claims for diseases related to asbestos. There have however been restrictions on common law claims seeking damages for negligence amongst employers. This was previously unrestricted for all employees not just victims of asbestos related disease.
In New South Wales, the compensation scheme for workers is Workcover NSW. The Dust Diseases Board is where Dust Diseases workers can make their claims. A specialist tribunal for dust diseases was set up to hear claims for asbestos related disease. Amendments were later made that did away with the statute of limitations in issues of dust disease. Other amendments included legislation on survivorship where in case a victim passes on before a claim is resolved, the damages are entitled to his/her family (Formato and Gordon, 2007).
In all the other states (Victoria, South Australia and Queensland) each state has its own act for worker’s compensation and provisions for limitations. For instance Victoria allows for trial by jury in claims for damages under common law. It has also followed the New South Wales in legislation on survivorship. Only Western Australia has its special court for claims for asbestos related disease. However, there are processes that have evolved for the purpose of fast tracking those claims that are urgent. In determining the risk posed by exposure a history of environmental and occupational exposure is necessary.
Some of the issues that need to be established include the specific occupation, how long the person worked at the same occupation and how much (intensity) exposure there was, an example here would be whether the dust was visible or not. Significant exposure is defined as a minimum of several months of exposure to exposure to visible dust that started ten years before (Wagner, 1997). Physical assessment of the patient to determine exposure to asbestos includes a history of occupation and physical signs and symptoms of disease as well as laboratory investigation of the chest by x-ray or CT scan.
In this client’s case the history for significant exposure has already been established by the fact that he worked in mining and mixing of asbestos for a period of five years. In addition another identified risk factor is the fact that he used to smoke where he increased his susceptibility to asbestos related lung disease. History also includes the patients reports of exertional dyspnea, Assessment also includes chest spirometry to determine lung function and how much lung function may have been compromised by the condition.
Any abnormal results in chest spirometry are followed by pulmonary function tests which involve measuring lung volumes and diffusion capacity. These are also performed in those patients found to have abnormal findings on imaging. Assessment will begin with a head to toe assessment of the client. This will involve checking for signs of poor tissue perfusion as a result of inadequate oxygen uptake by the tissues when lung function of ventilation and air exchange has been compromised. Some of these include finger clubbing and bluish lips.
Other symptoms that the patient may report include shortness of breath, tightness around the chest, pain in the chest, dry crackling sounds when breathing in, a cough that is productive and persistent and loss of appetite. These presenting symptoms are however non-specific and generally indicate pathology of the respiratory system. Consequently other methods are used to determine asbestos exposure. Signs of exposure to asbestos include formation of plaque, changes in the pleura of the lungs (thickening) and collection of fluid around the lungs (Betterhealth, 2007).
Bodies of asbestos can be identified by a use of a staining technique using a special iron. This confirms actual exposure to asbestos. Formation of pleural plaques is one of the most common responses of the respiratory system to asbestos inhalation with plaques occurring in up to fifty per cent of people exposed to asbestos. They are consequently used as a measure of exposure to asbestos (Boffetta, 2004). These plaques may sometimes not be visible on chest radiography and this leads to the requirement for high resolution CT-scans which have the capacity to identify up to fifty per cent of the plaques that will be found on autopsy.
CT scans are commonly used when there is diagnostic uncertainty or for the purpose of making confirmatory tests (Boffetta, 2004). The plaques developed from exposure to asbestos characteristically occur on the lateral walls of the chest and sometimes may occur on the domes of the diaphragm. This causes lung expansion to be impaired making air entry difficult and may account for the chest tightness and chest pain. A computed tomographic scan of the chest helps to demonstrate further the remodelling that may occur as a result of lung tissue destruction. This leads to a decrease in the exchange of oxygen.
To diagnose carcinoma of the bronchus a surgical biopsy is required which is done under anaesthesia. From this metastatic cells can be detected. Other methods that can be sued include bronchoscopy, mediastinoscopy and CT scan. This will serve as a confirmatory test for the signs and symptoms which may have been reported by the patient which include, unexplained weight loss, breathlessness, bronchitis that is recurrent, chest pain, blood streaked phlegm, recurrent chest infections or pneumonia and a persistent or changed cough or wheeze (Betterhealth, 2007).
The detection of asbestos in the lungs of this patient is important because it means that then the cause of his lung carcinoma can be associated with asbestos and not only cigarette smoking since some of his symptoms are indicative of asbestos exposure. Measurement of the plaques will also assist in proving this link even further since most plaques are an indication of asbestosis-related disease. Clinically, lung cancers associated with asbestos and smoking alone are generally indistinguishable but the risk for lung cancer is increased in smokers (Liddell, 2001).
Asbestos and cigarette smoke have an effect of synergism in the causation of lung cancer and in the patient ‘s case his accumulated pack years of cigarette smoking led to the increased risk for asbestos related disease (Hodgson and Darnton, 2006). In lodging his claim for damages the patient will have to present information on treatment that he has undergone as well as the results for all diagnostic tests related to the condition. This will help to make his case stronger as they will provide an indication of the costs of treatment, medication and also the effect of losing means of earning an income to his life and that of his family.
Courtney from Study Moose
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