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In this article we compare and contrast asbestos-related injury claims and the potential for future COVID-19 occupational disease claims in both the United Kingdom and United States.
COVID-19 claims – US
In the US, studies have found that upwards of 90% of occupational disease claims are not covered by worker’s compensation programs. Workers' compensation is a form of insurance providing wage replacement and medical benefits to injured workers. Workers’ compensation benefits can vary widely from state to state.
Almost half of the US states are in various stages of extending worker’s compensation coverage to include COVID-19 as a work-related illness to cover first responders, healthcare workers and essential workers.
For example, in Texas, proposed legislation is in the pipeline to provide compensation for nurses who acquired COVID-19 on or after 1 February 2020, resulting in a disability or death. Eligible nurses are those who treated patients with COVID-19 or have performed duties that required them to come into contact with patients with the virus. In such circumstances, it is presumed that the nurse contracted the virus in the course and scope of their employment. It remains to be seen how many of these bills actually pass into law.
COVID-19 claims - UK
In the UK, a group of 65 Members of Parliament (MPs) and peers have called for the UK Government to recognise long-COVID as an occupational disease and to introduce a compensation scheme to provide financial support for Key Workers only. This campaign is being led by Layla Moran, MP, who calls long-COVID the “hidden health crisis of the pandemic”.
As yet, the UK Government has not responded formally to the call for any compensation scheme or to ratify the disease as an occupational disease.
Asbestos claims - US
State law varies in the US but the majority of States follow the rules set out in Thacker v UNR Industries [1992] as set out by the Supreme Court of Illinois. The plaintiff must show frequency, regularity, proximity of exposure to a defendant’s products in order to establish causation.
It is commonplace for plaintiffs to sue numerous defendants and then as the case develops, dismiss them if there is insufficient evidence. Some plaintiff’s attorneys will name up to 80 separate defendants in proceedings. In the US, most plaintiff’s elect for trial by jury and as a result, jury verdicts can include large awards for pain and suffering and punitive damages, resulting in multi-million verdicts. To avoid such risk, defendants often elect to settle mesothelioma claims. In some jurisdictions, living mesothelioma plaintiffs can aggregate millions of dollars’ worth of payouts.
Generally, pleural plaque or pleural thickening is a non-compensable injury. With many courts being faced with large asbestos caseloads including a substantial number of cases involving plaintiffs who do have a legally cognizable injury and therefore face a statute of limitations bar if they fail to file a claim within a specified time frame, some States have established deferred asbestos registries to allow such plaintiffs to satisfy limitation statutes by filing their lawsuits but thereafter delaying the claim until their injuries have developed further.
There have been some noteworthy recent developments in asbestos claims and treatment. In October 2020, Bristol Myers Squibb received European Commission approval for Opdivo (nivolumab) plus Yervoy (ipilimumab) with two cycles of chemotherapy for first-line treatment of malignant pleural mesothelioma which cannot removed completely through surgery. Further, in February 2021, the US Food and Drug Administration granted fast-track designation to ONCOS-102, an immunotherapy vaccine that targets malignant mesothelioma.
Overall, immunotherapy in the US is still in its early use and the side effects are still being scrutinized. We are yet to see whether such treatment will increase a patient’s life span but if so, there may be an eventual downturn on litigation filings.
During the COVID-19 pandemic, there have been some large awards made to plaintiffs. In November 2020, a New Orleans socially distanced in-person jury awarded more than $10.3 million to a worker diagnosed with mesothelioma after unloading raw asbestos from ships in the 1960s, finding that two stevedoring companies and a shipping company contributed to the development of his disease. Further, in Madison County, there was a 32.2% increase in new cases filed through the first half of 2020.
Asbestos claims - UK
The awards for asbestos-related injury claims are much lower in the UK compared to those in the US. We do not have jury trials for these civil cases but rather, they go before judges who decide the amount of compensation to be awarded. Punitive and aggravated are rarely awarded in the UK. Claims in the UK tend to be against a single defendant for mesothelioma claims.
In order to recover compensation for a mesothelioma claim, a claimant need only establish that the defendant materially increased the risk of injury (Fairchild v Glenhaven Funeral Services Ltd [2002]). If established, the claimant can recover 100% of their compensation from a single defendant. It then falls to the defendant to pursue other potential tortious employers for a contribution following the resolution of the claim.
In the UK following a court decision in 2007 (Rothwell v Chemical and Insulating Company Ltd), pleural plaques became a non-compensable injury. A claim for pleural thickening remains recoverable.
Under the Limitation Act 1980, claimants have three years from the date of the injury to issue court proceedings. However, for the vast majority of occupational disease claims, this three year period starts from the date the claimant was deemed to have “knowledge” of the injury, and therefore a much later date.
During the COVID-19 pandemic, there have also been some promising developments in relation to immunotherapy and in particular, news that the National Institute for Health and Care Excellence (NICE) approved the use of nivolumab in second line treatment for mesothelioma. The approval for this immunotherapy treatment is to be re-evaluated in April 2021.
In the UK, there has been a 45% reduction in claims as a result of the COVID-19 pandemic but in the future, we expect to see an increase in occupational stress claims as a result of lockdowns and working from home.
Comment
Many States in the US are considering implementing compensation schemes for workers who contract COVID-19. In the UK, a scheme relating to long-COVID has been proposed to the Government and a response is awaited.
In terms of asbestos-related injury claims, there are key differences between the UK and US, with higher awards being handed down in the US. It appears that, at least in the US, large jury awards continue to be a risk for defendants.
Related item: Long-covid as an occupational disease
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