Asbestos claim success

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Despite some recent changes to speed up mesothelioma claims for Industrial Injuries Disablement Benefit through the Department of Social Security (DSS) system, asbestos victims are still finding it difficult to establish that they have a prescribed industrial disease and subsequently to obtain compensation.

The London Hazards Centre was recently contacted by a Battersea pensioner Terry Bradshaw, a former painter and decorator, who had a tumour removed from his lung in 1999 after seeing specialists at Bolingbroke, Royal Brompton and St George's Hospitals. A radiology report in July 1999 concludes (he has), "Pleural plaques typical of asbestos exposure and some evidence of limited asbestosis," but understandably focuses on a soft tissue mass, which subsequently turned out to be lung cancer. At that point Terry and his family concerned themselves with the medical treatment he was about to endure; Terry, who is now 80, has nothing but praise for his medical team.

He did apply for benefit in 1999 but was turned down; then, on the prompting of his doctor, he reapplied in 2002. Given his medical and work history this should have been straightforward. However, claiming benefit for asbestos-related "ordinary" lung cancer is never simple.

In 1984 the Industrial Injuries Advisory Council finally recognised asbestos can cause cancers of the lung other than mesothelioma. Even conservative epidemiology estimates asbestos causes as many lung cancers as mesotheliomas; others say it is 3-5 times as many. Comparing the number of claims for the two different categories of asbestos-related cancer it is likely that for every lung cancer diagnosed, between 6 and 52 are missed every year. Also although the numbers receiving this benefit for mesothelioma over the years has ranged from 23% to 53% of those with the disease; for lung cancer fewer than 7% receive benefit.

The Department of Work and Pensions recognises lung cancer as prescribed industrial disease PDD8 if there is accompanying evidence of one or both of (a) asbestosis and (b) unilateral or bilateral pleural thickening - very strictly defined. We can only speculate about why Terry's claim failed first time around: It may have been due to ignorance of the different diseases or inefficiencies and biases in the social security system. He did not appeal then because according to the notes made by a DSS doctor he was inappropriately advised by a CAB worker that he could not appeal if he could not identify the employer(s). The Fairchild judgement may have been hanging over civil claims at this point but never affected these social security claims.

When he claimed again in 2002 he was again rejected. This time there was no excuse. Linda Walker, his niece, who helped filled in the forms, clearly ticked the box PDD8, and states the previous claim was for asbestosis and lung cancer. The authorities appear to have rejected a claim for bilateral diffuse pleural thickening, when he has and was claiming for something more serious. A Medical Appeal Tribunal in April 2003 overturned this unreasonable decision and Terry, who worked all his life in the building industry, is officially acknowledged to have been made ill by his work and can be assessed for benefit. In his case it is mainly his persistence and that of his niece that achieved the result. Many workers fall through the net.

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