Charleston Gazette, Joe Morris
Published August 31, 2007
State legislative leaders say next year's regular session will tackle one of the country's most controversial legal debates: asbestos and silicosis liability.
Senate President Earl Ray Tomblin, House Speaker Rick Thompson and Senate Judiciary Chairman Jeff Kessler agree that it's time to attempt legislation dealing with compensating exposure victims, House Judiciary Chairwoman Carrie Webster said Friday at the West Virginia Chamber of Commerce's annual conference.
Earlier attempts in the Legislature - as well as in other states and Congress - to validate compensation claims and shield companies from huge jury awards have failed.
Business owners in particular will need to make the case for limiting liability, Webster, D-Kanawha, told the chamber audience.
"What I need to know ... is not that you need it or that you want it or that you think it'd be good," she said. "I want to see why, not just that it needs to be changed."
Exposure to asbestos, a natural fiber long used for insulation and fireproofing, and silica, quartz dust often kicked up on industrial sites, has been linked to lung ailments such as mesothelioma, asbestosis, lung cancer and silicosis, a chronic lung disease.
By some accounts, the potential liability that remains uncompensated is massive. According to an analysis of government statistics by Environmental Working Group, a Washington-based environmental research firm, about 700 West Virginians died from asbestos-related diseases from 1979 to 2001.
In Kanawha County, 172 people died from asbestos-related diseases in that period, EWG data show.
There's support among Republicans for taking up the legislation.
"We have to move forward this year," said House Minority Leader Don Caruth, R-Mercer, also speaking at the conference.
"We discussed it in the last two years," he said. "It's one of those things ... that for businesses who are outside this state and investors who are outside this state look at and simply reflect upon it as a negative."
Caruth said he expects the legislation to include standards for validating claims and a provision to allow for claims that arise long after exposure.
"There's going to have to be credible, reliable evidence of impairment related either to silicosis and asbestos," he said. "The other [component] goes the other way, and that is there will be no statute of limitations, so that no matter how long ago you had that exposure, you can always come back, even years later, and still maintain your civil action."
The goal is to find a way to identify "the legitimate cases," he said, "where people have suffered credible medical consequences of exposure."
Webster said Democratic leaders also are weighing reforms to the legislation that established BrickStreet Mutual Insurance Co. as the state's sole workers' compensation insurance provider.
Under the 2005 legislation, BrickStreet was formed out of the state's Workers' Compensation Division. Since launching last year, BrickStreet executives say that they've lowered premiums, in part by devising a system for classifying job types for the purposes of assigning premiums.
But Webster said there have been enough complaints about premiums to justify revisiting BrickStreet oversight.
"We are hearing, mostly from the small-business community, about some concerns about workers' comp premiums and how they're increasing," she said.
Webster said the premium-classification system has drawn complaints even from fellow legislators.
"Several legislators came to us and personally raised that issue, and I know from many of you out there that that's an issue," she said. "Delegate [Tom] Campbell, [D-Greenbrier,] who runs a small business, came to us in the last session and said he was worried about how workers were being classified for premium rates."
Caruth said he was suspicious about moves to reform BrickStreet.
"There has been substantial discussion at interim meetings about re-examining BrickStreet, about re-examining our workers' compensation model," he said. "But the re-examination is not focused on oversight as much as it is on the potential to reverse some of the good things we've done without giving it the time to work."
The privatization of workers' comp is one of the state's signature political successes of the past few years, Caruth said. But he believes there may be a backlash brewing.
"I do believe that we have done some substantially good things in the state of West Virginia over the past four to five years," he said. "Whether it's because of the pendulum swing or political will, I'm not sure, but I do sense in many cases a move afoot to react to some of those."
