Document RakrvqzKVbqmdjEL9LdmjnnGB

FILE NAME: WR Grace (WRG) DATE: November 25, 1967 DOC#: WRG051 DOCUMENT DESCRIPTION: 1967 Letter to Maryland Casualty Company regarding workmen's compensation claim N o T M b t r 25, 1967 AIM MAIL Maryland Casualty Coapany 1^15 East Anksy Strsat Portland, Orsgon ATTENTIONi John Hopkins Dsar Mr. Hopkinsi Ret Tour Claia Not 750 C 890 Insuredi v. R. Oraoe 4 Co. (Zenollte Division) Claimant! LILAS D. WELCH Polioyt R 001598 This will oonflru our rsosnt talsphons conversation concern^ lng ths abovs aattsr. As I informed you at that tins, Tory rscsnt developaents In ths aass sssa to as to roquiro that wo re-assess our own position and as Mr. Robert Conloy, of Aaorlcan Adjustaont Chapany, was not available, wo ooataotod you dlroot, and In aooordaaoo with your suggestions, I aa forwarding this roport to you with oopy to Mr. Conloy. At tho tlao I oontaotod you I was conferring with Mr. Karl Lovlck, of tho insured's Libby Montana offloss and wo had thoroughly rev1owed all phases of ths ease. In addition, wo had gone oror all naterlal provided by ths Montana Stats Board of Health and had dlsousssd tho entire oltuatlen with Mr. Benjaaln F. Vake, ths State Board's Chief Industrial Hygiene Engineer with tho Division of Disease Control. As wo wore of course earlier aware through reports furnished insured by ths State Board of Health, the original plant Inspection oonduoted in 1956 revealed a duet probloa In the dry Bill. At that tine however, the asbestos content of the due* had not been deterained. Through the years however, the plant inspections did reveal asbestos content, and of oourse the peroentage of suoh fibers found to exist in the dust In the Bill did far exoeed what were considered to be allowable oonoentratleas. -2 - Many reooaaendatlons were presented by the State board, and It would appear Insured gradually attaaptod to oorraot the situation. It aust however further be considered that It alght appear to others that the notion taken by Insured to oorreat the situation whioh was presented, alght not to the unbiased observer, appear to have been either extremely effective, or qulokly performed. Stats Board reoords reveal that additional rsnnaaisiiilstl sne vers aade in 1959, and at that tlae aotaal daet soaplee la the dry alll had revealed as asbestos ooatent, vhloh, while not extremely severe, was, la the wards of the Beard report "significant". In 1962, dust saaples revealed a high asbestos oontent, and the Board's oonoluslosat that tlae were that "ae progress had been aade In reducing dust oonoentratloas In the dry alll to an aooeptable level, and that Indeed the dust oonoentrations had been lnoreased substantially...." further reooaaendatlons vers aade relative to alleviation of the problea. In 1963, oonoentrations again were determined to be well la excess of "aooeptable levels" and at that tins the State Board rsoonaendsd that "considerable effort should be aade laaedlately to Improve the daat control procedures at the plant to reduce dustiness to an aooeptable level". A study of the lnforaatlon furnished by the State Beard would therefore make it appear that the asbestos prebloa has existed oertalnly slnos 1956, and generally with increasing severity. It does however now appear that preventive aeasures have at least ooaaenoed having effeot, and aooordlng to Mr. Lovlok, It would seea that oonslderable strides have been aade within the last oouple of years. Nevertheless, as I Informed you, I would hesitate to allow in evldenoe the State Board reports if It Is possible to keep them out of the hands of the Industrial Aooldent Board, and through It, the general publlo. While 1^ have not researohed the problea, It has even ooourred to ae that insured's Inability to curb the problea at the state Board's reooaaendatlons through the years, alght be alleged at least to havs constituted willful and wanton oonduot on Its part, with whatever complications that particular oharge alght oarry with it. - 3- Further, Mr, Loviok, for the first time, thought to advise se of certain studies whioh have been conducted by a local Radiologist sines around 1963 or 1964, whioh apparently havs involved obtaining annual x-rays of all eaployees for study. The information furnished by Mr. Loviok was to the effect that the Radiologist was conrinoed that a good aany of the eaployees suffered froa lung abnoraalltlee whioh could be the result of enoroaohlng asbestosis. This information of course appeared to ae to be of extreae importance, and we made arrangeaenta to travel to biteflsh, Montana laaediately to interview the Radiologist. The party involved, Dr. William Littla, informad ma that hie studies aost certainly did indloate there to be present s great deal of lung abnormalities among tho insured's employees, far in excsss of tho porcontago ono would find in sxaaining tho ordinary population, and ho did in additloo point out that the situation was even more severe, when considering that he was in general examining young, hearty male work men. Dr. Little stated that we did indeed have a severe problem, and that we might expect a good aany olaiaa involving asbestosis. He did further lndioate however that in his view, the aore recent steps taken by the insured to alleviate tho problem wore having their offoot, In that it appeared to him from his most reoent studies, that a leaser peroentage existed of new or previously non-dlaoovered abnoraallties, aa well ae some decrease in the speed of tho progress of the dis ease in those workers suffering from It throughout tho course of his studies. Ve might point out that apparently the only persons aware of the studies are the Insured's offioials, and Dr. Little. Again, as you may well realize, I would auoh liko to avoid having ovidenoe presented by the opposing party vhloh would reveal tha extent and severity of the problem with which we are concerned. Claimant Veloh had baen employed in ihe warehouse situate in the yard at the aill site sinos 1936, or from a tlae three year prior to Montana's adoption of the Industrial Disease Act. In addition, "asbestosis" was not added as a compensable industrial disease until 1965. No dust Counts had boon obtained in tho warehouse or yard area by tho State hoard, and it appeared that no information with rospoot to contamination of those areas was available. I understood that insured's own engInters were never able to find a measurable amount of dust In the yard area, and accordingly it was ny thought that our prlaary defense would rest upon the faot that claimant's last injurious exposure must have boon prior to tho offootlvo dato of tho Aot, and tho lnoluslon of asbootosls. As you know howoror, I havo folt that tho Industrial Aooldont Board would require us to provide all available relevant information obtained by the State Board of Health, and while we were willing to adalt the existence of asbestos fibers in the dust in the dry mill, it was not felt that tests there oonduoted were truly relevant to the issuss in this case Involving employment in the warehouse. In a letter to me of June 28, 1967, Mr. Robert Swanberg, Chairman of the Industrial Aooldont Board, had urged a "full disclosure of all pertinent material on this question to avoid controversies that will merely prolong the liti gation without materially effeotlng Its outcome", and further dleousslons with him made It appear that be agreed that a total disclosure of all Information in the State Board's hands night well not be justified in the instant case. Now however, I am informed by Mr. Wake, of the State Board of Health, that while he had limited his own dust oonnts to the dry mill, he did believe that a problem would exist with respect to the drillers in the mine itself, as well as with raspeot to truck drivers loading and unloading under and into hoppers. Further, while this information did not appear in any of his reports, he stated that the exhaust at the mill was so placed as to create a dust problem in the yard itself. The warehouse is looated in the yard and accordingly it would now appear that the entire area may be considered to be possibly permeated with concentrations of asbestos fiber in excess of allow able percentages. \ Mr. Lovlck has now advised that the company did receive a request from union officials to change the mill exhaust around a year ago, and my recollection is that Mr. Wake had made such a recommendation, however apparently on an oral basis. - 5- \( a n y rats, the problem now presented is that olalaant Welch ay well have suffered "an injurious exposure" as that term may be defined in the Occupational Disease Act, a t most every point he was employed, including the ware h o u s e . The fact also now must be considered that a great many of insured's employees suffer from lung abnormalities and a good many of them have probably never been in the sill, which of oourse simply means that they are oontraotlng the disease in the yard or in fact at any point where a dust condition may exist. I had explained to Dr. Osoar Sander, of Milwaukee, Wisconsin, In a recent conference, my own theory of defense concerning exposure at the warehouee, however In reviewing the Patheloglst's report, and report of Dr. Thomas Power, retained by the Industrial Aooident Board to perform a biopsy on claim ant Welch, Dr. Sander felt that Mr. Veloh must have suffered injurious exposure even while employed in the warehouse. lie advised that he did not feel he oould assist us in any way at the Hearing, in that all information available to him would indicate that the claim might well be oompeneable. He has now provided me with hie written report in this respect, copy of which I am attaching, and you will notice that he feele claimant must have suffered a considerable exposure not only in the mill in 1949, but also in the warehouse since 1996. When all of the above developed so rapidly, it occurred to me that discretion might be the better part of valor in the instant case, and that you might wish to seriously consider a compromise settlement in hopes of, in this manner, avoiding the necessity of exposure of all of the more damaging aspeots of our own situation at the Hearings rooms. It was my feeling that when considering the studies made by Insured's own adiologist, that the problem of asbesiosis among insured's employees might better be met through a continued attempt by the employer to alleviate the dust problem prior to facing either the Industrial Aocident Board, or a competent claimant's attorney. As you ^re aware of oouree, this matter has been set down for Hearing in Kallspell on November 29, 1967. I attempted to obtain a stay through counsel representing olaimant. lie advised however that his own client was becoming so impatient that he simply oould not agreed to a delay at this time, and accordingly if therm is any heps of avoiding a Hearing, it must necessarily involve attempting to obtain some authority and disposing of the matter prior to that date. -6 - As you explained to me in our telephone conversation of November 22, 1967, you did not fool wo would bo in a position to obtain such authority without this writton report, and 1 am accordingly forwarding it to you at tho first opportunity, I nay say that it now appoaro that oounsol intends at tho Hearing of November 29 to establish his rooord through claimant hlasolf, as well as other oaployoos who aay be expected to testify in general terms as to the dust problem at the mill, and most probably at other points around the promisee. In addition, it appears that counsel has subpoenaed Insured's Safety Engineer, who we would assume, is well aware of the major aspects of our problem, and a good bit of damaging testimony may get into the reoord at that time. On the other hand however, I do not believe oounsol intend* to attempt at that time to obtain reports of the State Board of Ilealth, and in faot, Mr. Swanberg of the Industrial Aooldent Board has indioated to ae that he aay well continue the Hearing, resetting it in Helena at a later date to pick up this information. In this latter regard, I am now convinced that we have a good argument with roapeot to the privileged character of State Ooard reports, through a provision included in the Session Laws of 1 9 6 7 relating to State Board of Health reoords and information. As indicated on previous occasions however, I simply do not feel when considering the extent of the problem here presented, that we oan afford to antagonize the Industrial Accident Board by refusing to be at least somewhat candid in making information available upon which it aay make a reasonable decision. The question of relevancy now of course presents difficulty, in that if dust from the mill is being exhausted in the yard area where the warehouse is situate, the content of the dust at the dry mill aay well be considered to relate dlreotly to Mr. Welch's condition. Even our own expert, Dr. Oscar Sander, would be foroed to hold to this view, were he in fact examined. -7 - It is my feeling that we nay attribute our present situa tion primarily to the fact that it appears that no one has ever quite realized the extent of the problem which exists. Certainly Mr. Loriok, who has been extremely .'ooperative and helpful, felt that there was not a contamination problem present at any point other than nt the dry mill itself, and possibly at the loading and unloading hoppers. Nov however, we find that dust from che mill itself may from time te tine permeate the entire yard, and of course it may well be argued, and perhaps with some validity due to the lnoorreatly placed exhaust, that the entire yard area may subject workmen to what might be termed to be "injurious exposure". Mr. lx>viok does inform that funds are now available vhioh will allow moving the exhaust, and correcting that particular problem. I might point out that the Radiologist involved, Dr. Little did mention his amazement at the percentage of workers presenting lung abnormalities at the Insured's plant, as compared to a problem such as silioosis at a typical mine. Ills own explanation was that generally in a mine, the only persons direotly exposed are the hard-rook miners theselves, and then only on those oooasions when si 1loan dioxide is existent in the ore, and he differentiates that situation from our own where the entire area may from time to time be permeated with injurious dust. I believe it should be further pointed out that we have no genuine guidelines to assist us in approaching this problem. As I understand from Information furnished by Mr. Lovlck, the Libby, Montana Vermloulits mine and plant may well be the only one in the world where an Identical situation exists, and while the problem of asbestosis has been subjeot to considerable study, It has generally involved either asbestos miners, or persons working with asbestos in some oommerclal form. In our case, we are concerned primarily with Tremolite, an extremely short fiber asbestos which cannot be used for commercial purposes and which accordingly has not figured in previous studies. As I informed you in our telephone conversation, it may be that I oan obtain a favorable deolslon in the instant oase on technicalities alone, however it would appear that it will be necessary to expose the entire situation to the Industrial Accident Board, whose records may well, be available to union and the general public. Moat certainly claimant's counsel around the area are going to be well aware of the existence of the problem if all infomation is placed in evidence. -a - Additionally, when considering the most reoent developaents, it would appear to # that the Industrial Aooideat Board night well ignore technicalities and determine the Instant claim to be compensable, allowing us to test its decision at the District or Supreme Court level. At the time I eontaoted counsel relative to a possible stay of the proceedings, I informed him that we might be willing to consider some sort of oosq>romise in order to avoid the expense of proceeding further. I asked if he had a figure of his own in mind, and was Informed that he did not, and I am accordingly unable to provide you with any information to pass along concerning possible compromise and settlement. Ve will of course advise you ef all developments as thsy occur, and should you wish to dlsouss the matter further personally, I would appreciate your contacting me by telephone. In this regard, I will be in other industrial accident Hearings on Monday and Tuesday, November 27 and 2 8 , however arrangements for suoh dlsoussion can be made through my personal secretary, Mrs. Klshm, should It be neoessary. I am at this time attaching statement submitted by Dr. Oscar Sander in the sum of 950.00, and request that draft in payment be Issued and forwarded to this offloe, in order that we may personally thank the Dootor for his assistance. Slnoerely, SYL/nk Enclosures* \ S. Y. Larriok Dr. Sander's Report Dr. Sander's Statement CO t Mr. Robert Conley American Adjustment Company Great Falls, Montana 59^01 (with Enclosures as Listed Above) Your File l C 5*-0l6l60