Can a worker diagnosed with silicosis collect workers’ compensation benefits if his employer required use of respiratory protection and took steps to eliminate exposure five years before the diagnosis?
Oklahoma’s Court of Civil Appeals upheld a decision by the state’s workers’ compensation commission granting benefits because the worker proved that he continued to be exposed to silica dust despite his employer’s efforts to eliminate the hazard.
Exposed to silica dust while sandblasting in enclosed space
J. Asuncion Soto Abonza was employed by Exterran Holdings as a sandblaster and painter of natural gas compression equipment for the oil and gas industry. Abonza worked for Exterran from 2007 until Sept. 24, 2015.
Prior to working for Exterran, Abonza was a painter for 10 years for a different employer but had no previous experience as a sandblaster. Abonza worked 10 to 11 hours per day, four days per week. He spent the majority of his time sandblasting, with only one day out of the four used for painting.
While performing sandblasting duties throughout most of his time with Exterran, Abonza worked with white sand, which left a lot of silica dust in the air. He often worked in an enclosed space at a facility that provided little ventilation.
Company switched to ‘black sand’ to eliminate exposure
However, Exterran required the use of “a full helmet with a filter.” That helmet was attached to a “breathing apparatus that brought in air.” This respirator was tested by a third-party to ensure that it fit properly and performed correctly. On days when he was painting, Abonza was required to wear a face shield.
Further, one of Exterran’s facilities that Abonza worked at on occasion had a ventilation system in its sandblasting area.
In 2009, Exterran switched over to black sand for its sandblasting operation. The company claimed that black sand didn’t expose workers to the silica hazard, although workers were still required to wear respirators while using it for sandblasting purposes.
Dust lingered in air, got under his respirator
Abonza claimed that despite the PPE he was required to wear, silica dust would get under his mask and linger in the air for long periods of time, even after he thought he was safe to remove the respirator. He also claimed that the face shield he wore during painting did nothing to prevent him from breathing the paint fumes he was exposed to.
On Sept. 24, 2015, Abonza began having breathing problems and became fatigued. He didn’t have any breathing problems prior to that date, wasn’t a smoker and wasn’t exposed to silica dust outside of work. Abonza didn’t return to work after that date.
The breathing problems and fatigue led Abonza to file a workers’ compensation claim on Dec. 10, 2015 for “cumulative trauma with injury to his lungs and respiratory system due to exposure to smoke, sand and chemicals.” A second claim was filed on June 16, 2016 after Abonza was diagnosed with silicosis.
Judge denies both workers’ comp claims
Exterran denied both claims, arguing that Abonza waited longer than three years to file a workers’ compensation claim for an occupational disease. The company argued that more than five years had passed since it made the switch to black sand and eliminated exposure to silica dust. It also claimed that its respirator requirements would have mitigated exposure during the years the company used white sand.
The company claimed that Abonza was first diagnosed with lung problems in 2011, and Abonza denied that allegation. However, Abonza admitted that his doctor did place him on work restrictions at that time advising that he shouldn’t work around dust and needed to protect his lungs.
An administrative law judge ruled that both claims were time-barred from moving forward. Abonza appealed the denial with the state’s workers’ compensation commission. The commission found that the judge’s “decision denying compensability was against the clear weight of the evidence and contrary to law.” The commission found Abonza “was exposed to silica until he stopped working for (Exterran) in September 2015 and, therefore, his claim was timely filed.”
Appeals court: SDS for black sand says it contains silica dust
On appeal with the Court of Civil Appeals, Exterran continued to argue that Abonza’s claims were time-barred. The company again claimed that time should be measured based on its switch to black sand in 2009 compared to when Abonza filed his first claim in 2015.
The appeals court upheld the commission’s ruling, finding that Abonza’s exposure to silica dust and other lung irritants continued until 2015.
That ruling was based in part on:
- testimony from Abonza’s medical expert, who testified that when working in a confined space, fine particulate matter can still make its way through respirator filters, and
- the safety data sheet (SDS) for black sand states that the material does contain silica dust and other irritants that can lead to lung problems.
Because Abonza was diagnosed with silicosis in 2016, both claims were valid and were not time-barred, according to the court.
