In the realm of Worker’s Compensation, one of the most difficult topics to address is occupational disease. We are surrounded by a significant measure of potential irritants, pollutants, viruses, and more. Perhaps the most challenging element of these is their existence in a variety of locations in our daily lives.
In the early days of my legal practice, I was embroiled in a massive volume of asbestos claims. That introduced me to occupational disease when the compensability standard was perceived by some as far simpler than today. From that exposure, I became amazed at how things so small and undetectable can be so pernicious and damaging.
In that age, I took hundreds of depositions regarding asbestos exposure, and medical science, which surrounded the diagnosis of various disease processes. There were several potential diagnoses that might be associated with asbestos exposure. A recurrent theme was the potential for compounding effects of multiple exposures, the “repetitive exposure” analysis.
As a side note, if you are over 40, and have lived your life in America, There is some probability that you have inhaled a measure of asbestos at some point. To be fair, it’s perhaps as likely we have each taken in some quantity of "forever chemicals," "nano particles," and even erosion from someone’s yoga pants. Not mine, I don't wear yoga pants (you are welcome). You can Google all this, I’m not making it up.
We might encounter such irritants and pollutants naturally. They might be in what we purchase and consume. They might fall from a passing vehicle and take up residence in our vicinity or body, as asbestos allegedly did in a Montana town over the course of decades of shipping.
As small as items are, they are nonetheless, particulates, physical, And tangible. They are part of our world. We might be exposed to them in the workplace, in our kitchen, on a bus, or otherwise. That is one of the toughest challenges of occupational exposure, demonstrating where the exposure occurred. With some substances, occupational presence may be more profound or probable, but can workplace exposure be proven to the exclusion of other exposure? The compensability of such exposure allegations may come down to who has the burden of proof.
The news recently focused on a small population of people who have found themselves ill. Medical experts have apparently concluded that this illness is not a result of a particle or particulate, but a fume. That is not revolutionary. Over many years, I have seen various examples of valid medical diagnoses linking causation to fume exposure. Typically, in the industrial setting, that has been associated with various chemicals, processes, and production.
Perhaps there is some tendency to anticipate and appreciate such risks. Certainly, I have heard lectures by various occupational safety experts, who expound on the importance of PPE (personal protective equipment) in the workplace. Admittedly, that focus and such devices may be more prevalent in some occupations than others. Despite many efforts at workplace safety, there are some who nonetheless perceive a significant population of ongoing risks.
Nonetheless, I was intrigued by the report of a recent study regarding the perceived increase in the prevalence of “Teflon flu.“ There is an increasing volume of diagnoses related to non-stick implements, which have become overheated, leading to fumes. An immediate question upon reading the article is whether more people are recently suffering from Teflon flu, or whether increasing knowledge and recognition is leading to a more prevalent label or diagnosis for an existing malady. That is worthy of consideration.
The outcome is similar, and the fundamental conclusion remains: there is a potential for symptomatology and injury being expressed by some in the scientific community. Though the numbers are still moderate (267 cases in 2023), there may be reason for concern.
The analysis seems to be one of cost/benefit. There is a product that is prominent in our lives (206.1 million non-stick retail units sold in 2020). There is a fair chance to find this material in almost any home. And yet, there are few among us who maintain PPE in our homes in preparation for something as seemingly mundane as an overheated frying pan. The potential for exposure at home therefore seems significant, and PPE seems lacking. But where might such material exist in the workplace? If we don’t know, PPE might be ignored there also.
Thus, there are risks we face daily that may be similar in our personal lives and occupations. Another good example is motor vehicle accidents, which could be occupational or not depending not on the action (driving), but the purpose of the particular trip. There may similarly be occupations in which the presence of such Teflon coatings may not be patent or obvious, and yet might yield occupational exposure in various circumstances.
There is therefore no patent answer as to occupational exposure to something like these fumes. The questions will remain. Where was the exposure at work? Was the activity leading to exposure the work? Is the risk of such exposure one to which the worker is not exposed in non-occupational settings? Would it matter if the person claiming exposure neither owned nor used such implements in the home?
The result of this analysis is that there are many potential questions and challenges associated with such exposure allegations. There will be burdens to prove, science to examine, and questions to answer.
