In a decision that may affect not only future but past Workers’ Compensations vis á vis asbestos exposure claims, a New York Workers’ Compensation panel reversed a finding that machinist John Ciafone’s work-related asbestos exposure at Consolidated Edison did not contribute to his developing throat cancer.
This surprising reversal is part of a greater trend, where Workers’ Compensation panels are more and more finding that earlier panels made incorrect decisions. Generally, such panels can – where there are conflicting medical opinions – choose to adopt one or the other opinion based on their experience and observations. This can lead to incorrect evaluations and rulings, especially where the panels’ overall experience and judgment is limited.
In this particular case, Ciafone had worked for his employer, Con Edison, for more than two decades and experienced significant exposure to asbestos dust. He was later diagnosed with asbestosis and asbestos-related pleural insufficiency, and eventually died as a result.
His widow, Isabel, filed a claim for workers compensation benefits, but was refused because her husband’s workplace physician opined that there was no causal link between asbestos exposure and the type of throat (esophageal) cancer the husband died from, based on the best evidence in the medical literature he (the doctor) was familiar with.
In a consulting physician’s opinion, however, the link between asbestos exposure and esophageal cancer was fairly clear cut, and in his opinion asbestos exposure had contributed to the man’s cancer and subsequent death.
By selecting the second of the two opinions as the more valid, or relevant, the panel reversed the previous decision and awarded the widow death benefits. On one hand, one could acknowledge that everyone is fallible. On the other, however, the actual review process may be defective.
Reversals aside, Con Edison – the holding company for Consolidated Edison Co. of New York – is on the hook for a significant number of asbestos exposures, both for workers and the general public. Its system of steam pipes beneath the City of New York, which would be 103 miles long if laid end to end, was first built in 1879 by the Steam Heating and Power Company, formed by Wallace Andrews, who afterward merged with the New York Steam Company. In many instances, the initials NYS Co can still be found on some older manhole covers.
The first customer of the merged company was the United Bank Building in the financial district, which signed up for service in 1882. The company continued to expand and prosper as businesses and building owners chose its services over the cost of installing their own boilers.
The system currently serves about 2,200 office buildings from Wall Street to 97th Street in the north part of New York City, and a number of steam-pipe ruptures have led to claims against the company. A recent one – in August of 1989 – beneath a Gramercy Park neighborhood, sent heated mud rocketing 18 stories high, killing three and injuring two. The truly serious aspect of this failure was the fact that it also released large amounts of friable asbestos (used to insulate the steam pipes) into the air.
Con Edison has stripped much of this asbestos from its pipes and manhole covers, but not always using trained technicians with proper protective gear, so asbestos-related claims for asbestosis, lung and digestive cancers, and even mesothelioma (an incurable cancer of mesothelial tissues in the lung and abdomen) continue to come in.
Sources: The Independent, Risk & Insurance, New York Courts System
