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Proving Causation of Work-Related Cancers

Cancer affects much more than just a patient’s physical health. It also can have profound consequences for the sufferer’s financial wellbeing. One hopes that cancer victims always have the benefit of thorough insurance coverage, but that isn’t always the case. When cancer can be traced to a cause that was work-related, a patient can sometimes seek benefits under the workers’ compensation insurance policy of the employer responsible. For cancer to be covered by an employer’s workers’ compensation insurance the patient must be ready to prove that the disease arose “out of or in the course of employment.” For most types of injury the link between an injury and employment is established early in the process, usually at the first visit to a doctor. But unlike a broken arm suffered at a work site, cancer can be slow to develop and its cause may be difficult to trace. There are three threshold matters that the patient must establish (or be prepared to establish) to ensure that coverage will not be denied:
  1. Exposure to a carcinogen at work. Proving exposure to a carcinogenic material at work can be easier in some situations than in others. If the patient worked at a chemical plant and was routinely exposed to substances that are well known to cause cancer, the case will be relatively easy to build. But if the patient’s exposure was in an isolated event, where the presence of carcinogens wasn’t known, proving the link may be more difficult. The passage of time can complicate proof as well.
  2. A causal relationship between the carcinogen and the patient’s specific cancer type. The patient’s doctor can help draw a connection between the work-related exposure to a carcinogen and the patient’s cancer. If a dispute arises with the workers’ compensation insurance provider, additional expert testimony and other scientific evidence might be required to prove causation.
  3. No intervening cause. Although a patient doesn’t need to prove that his or her cancer didn’t come from a source other than work, the insurer will almost certainly argue that it might have. This has been the insurer’s argument in cases involving secondhand smoke exposure at casinos. Because casino workers can be exposed to cigarette smoke other than at work, insurers have successfully denied coverage for their lung cancers.
Another potential problem for slow-developing cancers can be employers who have since gone out of business. Patients in this situation shouldn’t entirely give up hope. Even though the business may no longer exist under its old name, it may still exist under another, been merged with another business, or been bought out. A crucial question will be whether the current legal entity that owns the business has responsibility for lingering obligations to former employees. Nevada provides a special benefit for firefighters who contract cancer, even after retirement. NRS 617.453 can simplify the process of seeking benefits for firefighters who are exposed to carcinogens during their careers. The law provides a specific list of carcinogens and their known related cancer types. Provided the firefighter can show exposure to a carcinogen that the statutory list links to the firefighter’s cancer, there will be a presumption that the cancer is work-related. For over 45 years the law firm of Greenman Goldberg Raby Martinez has served clients with challenging workers’ compensation cases. If you think your cancer may be work-related but you aren’t sure how to go about making a claim against your employer, please reach out to us today for a free attorney consultation. Call us at 702-388-4476 or send us a request through our site.

Pesticides, Herbicides, and Long-Term Health Problems

Pesticides, Herbicides, and Long-Term Health Problems
In sufficient concentrations, pesticides and herbicides used in many forms of agriculture are known to cause a range of health problems, from irritated skin to hormonal imbalances, nerve problems, and cancer. Studies have found a connection between the use of the herbicide Roundup and celiac disease, also known as gluten intolerance. People who are harmed by agricultural chemicals may have legal recourse to recover compensation, but there are a range of challenges that a plaintiff must overcome.

Establishing causation can be difficult in pesticides cases

In a personal injury case the plaintiff must show, among other things, that the defendant’s negligent actions or inactions caused the plaintiff’s injury. In cases involving injuries caused by chemicals, a central question can be whether the defendant’s chemical really caused the injury, or if other intervening sources might be to blame. Putting aside the exotic situation where someone accidentally eats a huge amount of a toxic substance, the most common scenario involves health problems that are slow to develop and difficult to trace. Highly technical evidence is usually required to establish the causal link between the defendant’s chemical and the plaintiff’s injury. Scientific studies can be useful evidence. Typically, one or more expert witnesses are asked to provide written or oral testimony. The witness, who must be properly qualified (for example, an oncologist to speak about causes of cancer), may give a professional opinion about the chemical at issue has been shown to cause the plaintiff’s injury. Scientific evidence doesn’t always provide clear answers. Two studies of similar issues may reach different conclusions. Experts can disagree about the effectiveness of a study’s methods or its applicability to the plaintiff’s particular case. Cases involving relatively new health problems, like celiac disease, may suffer from inadequate studies. And chemical manufacturers often conduct tests of their own, with “experts” standing by to refute any claims about a chemical’s toxicity.

When? Where?

Another problem for plaintiffs is showing precisely when and where they came in contact with the defendant’s chemical. If the plaintiff cannot prove that he or she was exposed to the chemical at issue, a successful case will be hard to make. Proving exposure can be especially challenging if it happened a long time ago. On the other hand, if many people are suffering from the same problems and exposure to the same chemical can be established between them, a group of plaintiffs may be able to draw an inference that would not otherwise be available to an individual. Questions of exposure can be different for someone who works closely with agricultural chemicals. Farm laborers, who are excluded from Nevada’s workers’ compensation system, can be exposed to extremely high levels of toxicity if not adequately protected. Someone who has been exposed to very high levels of toxic chemicals and has developed a serious illness as a result should consult with an attorney as soon as possible.

GGRM is a Las Vegas personal injury law firm

For more than 45 years the law firm of Greenman Goldberg Raby Martinez has represented injured clients to help them get the compensation they deserve. If you are suffering from an illness that may have been caused by exposure to agricultural chemicals, reach out to us today for a free, confidential attorney consultation. Call us at 702-388-4476 or send us a request through our site.

Cancer and Disability Rights in Nevada

Cancer and Disability Rights
Cancer affects every part of patients’ lives, including their careers. The rigors of treatment can force someone to take time off and often hurts job performance. In the midst of a battle with cancer, a patient may need to take advantage of rights and protections for people with disabilities, including the federal Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., and the Family and Medical Leave Act (FMLA).

The ADA prohibits workplace discrimination on the basis of disability

The ADA protects cancer patients who work for an employer with at least 15 employees from being unfairly treated by their employers as a consequence of their illness. Cancer and its treatment will likely qualify a patient as disabled for ADA purposes. The law’s definition of “disability” captures any physical or mental impairment that substantially limits a major life activity. It also covers people with a history of such impairments (for example, cancer survivors) and someone who is perceived to have such impairments (for example, an employee who has lost his or her hair while undergoing chemotherapy treatments). Under the ADA an employer cannot take an adverse employment action solely on the basis of a worker’s disability. Instead an employer must take steps to provide a worker with reasonable accommodations that allow the worker to continue employment. Reasonable accommodations might include a changed work schedule, temporary or permanent reassignment to a less demanding role, or physical changes to the workplace to make the employee more comfortable, such as providing a chair where before the employee was asked to stand. The ADA Amendments Act of 2008 clarifies the ADA’s scope of “disability” to include anything that limits basic bodily functions. It also expressly provides that a condition’s impairments cannot be judged in light of mitigating treatments. For example, a cancer patient who is taking anti-nausea medication may still require accommodations to deal with nausea.

The FMLA offers options for cancer patients and their families

The FMLA protects patients who need to take time off work for treatment by prohibiting employers from firing them. It also protects employees who need to take time off to care for a loved one. An eligible employee may take up to 12 weeks of unpaid leave, cannot lose any employer-provided health insurance coverage while on leave, and must be allowed to return to the same position once leave has ended. Compared to the ADA the applicability of the FMLA is somewhat narrower. It only applies to employers with at least 50 employees, and an employee must have been employed for at least 12 months to be eligible. Note that unpaid leave may qualify as a “reasonable accommodation” under the ADA only after an employee has exhausted his or her FMLA leave. The Equal Employment Opportunity Commission provides a useful explanation of leave under the ADA here.

GGRM is here to help employees in the Las Vegas area

At Greenman Goldberg Raby Martinez we know how difficult it can be to face workplace discrimination while also fighting cancer. Our experienced attorneys shoulder the burden of working out disputes with your employer so you can focus on healing. For a free attorney consultation, reach out to us today at 702-388-4476, or ask us to call you through our contacts page.

The State of Mesothelioma Litigation in 2018

The State of Mesothelioma Litigation in 2018
Mesothelioma is a form of cancer linked to exposure to asbestos. Asbestos is a naturally occurring mineral that has characteristics useful for a wide range of things, including the construction of fire-resistant materials. But it also is highly toxic to human health, with mesothelioma being one of the potential side effects of exposure. As a result, asbestos is no longer used in most construction materials in the United States. But it continues to show up in other products, and people continue to be exposed to older materials that contain it. Therefore, although the danger of asbestos is well understood, litigation related to mesothelioma continues to crop up. Since the U.S. Supreme Court’s decision in Amchem Prods. v. Windsor, 521 U.S. 591 (1997), mesothelioma litigation has been handled on an individual basis, rather than following the class action approach that had dominated earlier asbestos-related litigation. For individuals suffering from mesothelioma, the loss of the class action option has reopened the possibility of controlling one’s own case, tailored to the specific circumstances, and with due consideration of all the plaintiff’s needs. A successful individual case can also result in a higher damages award than what might have been available in the class action context.

Baby powder and mesothelioma

In recent years household products maker Johnson & Johnson has faced litigation by mesothelioma sufferers who claim that Johnson & Johnson’s talc powder (or baby powder) products contain traces of asbestos. In November 2017 a California court found J&J not liable for the plaintiff’s cancer, but other cases have gone the other way, with total damages in excess of $700 million over the last two years. The California case offers interesting insight into the ways a defendant can undermine a plaintiff’s mesothelioma case. The question of causation often rests at the heart of cases involving cancer. To prevail, the plaintiff must show that the defendant’s wrongful action—in these cases, something that exposed the plaintiff to the carcinogenic toxin—was the cause of the plaintiff’s disease. Meanwhile, the defense will spare no expense looking for alternative causes of the disease in order to cast doubt on the plaintiff’s case. In the California case, J&J focused on radiation treatments the plaintiff had previously received, as well as the likelihood that the plaintiff was exposed to asbestos on her father’s work clothing. Plaintiffs in mesothelioma cases can expect the defense to take a literal microscope to their lives in hopes of finding potential alternative causes for the plaintiff’s cancer. One of the many reasons to seek out personalized legal representation, instead of working with an impersonal “litigation shop” firm, is to ensure that intrusions into the plaintiff’s personal affairs are minimized and handled in a thoughtful way.

Firefighters and mesothelioma

Another topic GGRM continues to monitor is the high rate of cancer among our firefighters. Firefighters face a high risk of uncontrolled exposure to asbestos in burning buildings. During the course of a fire a wall or ceiling might need to be demolished by hand, unleashing asbestos fibers into the air. Nevada law provides specific rules for when a firefighter’s cancer is covered under the state’s worker’s compensation system. NRS 617.453. Firefighters should know that the statute provides a specific list of chemicals and related cancers that will be covered, but asbestos exposure is not one of them. Although the list provided in the law is not exclusive, the burden will fall upon a firefighter to show that his or her mesothelioma is related to on-the-job exposure to asbestos.

GGRM can answer your mesothelioma questions

The attorneys at the law firm of Greenman Goldberg Raby Martinez are proud of the close relationships we have with our clients. When a cancer like mesothelioma threatens to take away so much, it’s important to have caring counsel in your corner. If you are trying to make sense of your legal options we would be happy to answer your questions about mesothelioma litigation. For a free attorney consultation call us today at 702-388-4476 or ask us to reach out to you through our contact page.

The Legal Side of Firefighters and Cancer in Nevada

The Legal Side of Firefighters and Cancer in Nevada
Firefighters are often exposed to toxic substances during the course of their careers. A fire can release an incredible amount of potentially cancer-causing materials into the air and environment, adding a pervasive and challenging danger to an already dangerous job. Unfortunately, cancer claims many firefighters’ lives. For that reason, Nevada’s workers’ compensation law provides specific protection for firefighters who develop cancer as a consequence of their work.

Nevada defines cancer as an occupational disease of firefighters

NRS 617.453 specifically defines as an occupational disease a cancer that is caused by exposure to toxins during a firefighter’s duties and results in the firefighter’s temporary or permanent disability, or death. The statute provides benefits for firefighters who either have been in full-time service in Nevada or worked as volunteer firefighters (as defined in NRS 616A.145) for five years or more. To qualify for coverage, the firefighter must have been exposed to a known carcinogen in the course of his or her employment, and the carcinogen must be “reasonably associated with the disabling cancer.” The statute provides a nonexclusive list of known carcinogens and their related cancers; if a firefighter’s cancer is not on the list, the firefighter can offer evidence to show that the cancer was caused by a particular carcinogen. A firefighter’s cancer is presumed to be related to the job, however an employer can seek to overcome this presumption by showing that the cancer has another source. The statute also protects recently retired firefighters who develop cancer after leaving the service. A formula determines how much time a retiree will be covered by the law from retirement to diagnosis: 3 months for every year of service up to a maximum of 60 months. For qualified cancers, the statute provides for full reimbursement for expenses related to the firefighter’s medical treatment as well as the standard slate of benefits available for death or disability under Nevada’s industrial insurance law.

GGRM serves our first responder community

Greenman Goldberg Raby Martinez has proudly served Las Vegas first responders for more than 45 years. If you or a loved one is a firefighter who is battling cancer and you would like to speak to an attorney about how Nevada workers’ compensation law works, our attorneys are here to help. Call us today at 702-388-4476, or send us a request through our contact page.