By William P. Gavin
Employees of a railroad operating in interstate commerce who claim injury during the course of employment must seek damages under the Federal Employers’ Liability Act (FELA), the Safety Appliance Act, or the Locomotive Boiler Inspection Act. The FELA states that a railroad operating in interstate commerce whose negligence is the cause, in whole or in part, of employees’ injuries is liable for damages to the employee.
Employees who worked as welders and later developed lung cancer or other lung diseases may be entitled to compensation under the FELA. Railroads have known for a long time that electric arc welding produces noxious and toxic fumes.
In 1949, the U.S. Supreme Court ruled that an occupational lung disease is an injury within the meaning of the FELA. This issue has not been reconsidered by the Court since, and the ruling is universally accepted by both state and federal courts. The relationship between welding fumes and lung disease should be reviewed thoroughly by lawyers working FELA cases.
Welding is performed in railroad operations wherever metal pieces need to be fused or where metal cracks must be repaired. The “trucks,” bolsters, brake-beam hangers and equalizer bars on railroad cars and various parts of locomotives frequently require welding.
In past decades, boilermakers, blacksmiths and car men usually performed the welding. With changing operations, however, the need for blacksmiths and boilermakers has greatly diminished. Now car men do most of the welding. Since the task requires dexterity, the railroads usually select certain car men to do the work.
Railroad welding has been and is performed under a wide range of circumstances, including working indoors and within confined spaces. Some railroads have provided ventilated welding booths, but this is the exception rather than the rule.
For lung injuries to be covered under the FELA, the employee’s duties at the time of the injury must directly and substantially affect interstate commerce. Courts have held that an employee working at equipment maintenance in a railroad shop satisfies this requirement. Therefore, this requirement should not be difficult to establish in a suit seeking damages for injury from welding-fume exposure.
The Welding Process
Welding is a process by which metal is fused. The most common method is manual electric arc welding. It is performed by producing an arc of electricity between an electrode and the metal being welded. Temperatures created by the arc range between 3,000 and 4,000 degrees centigrade, causing the electrode and the metal to melt and fuse.
The electrode, also known as a welding rod, is held in a device sometimes known as a “stinger,” which is connected to an electric power source. The arc is created by touching the top of the rod against the metal being welded and moving it along the joint.
The composition of the welding rod varies with the metal being welded, because the rod must be compatible with the metal. Most modern rods are coated with a material known as “flux,” which also melts during the process to form a cone around the weld. The cone of molten flux excludes atmospheric gases that could contaminate and weaken the weld. The molten flux also strengthens the weld. The composition of the flux on the rods varies greatly from rod to rod, but the flux often contains silicates, fluorides, borates, aluminum, cadmium and chromium.
The welding process produces fumes. The composition and quantity of the fumes depend on the rods and the metal. Generally, however, the elements cadmium, iron, zinc, lead, chromium, nickel, manganese, and copper, as well as silicates, have been identified in the fumes. Ozone, nitrogen peroxide and carbon monoxide are also found.
Because of the variety of the contaminants, welding is sometimes referred to as an occupation of cumulative hazards. A claim of lung injury due to the fumes must, therefore, include investigation of the welding materials used. Also, since fume composition may be affected by the type of metal (for example, mild or stainless steel) and whether it is covered with paint or grease, attention must be given to these materials.
Welding Fumes and Cancer
Numerous studies have established a substantially increased incidence of lung cancer among welders. According to one study, “it is clear that welders have a relatively high lung cancer risk.” The same study of 3,247 welders employed through a local of the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers found that deaths due to lung cancer were 32 percent higher among welders than among the general population. For those who were employed longer than 20 years, the death rate was 74 percent higher than the rate for the general population.
The study found a high correlation between length of exposure and latency and increased lung-cancer deaths. Latency in this context refers to the time from beginning of exposure to onset of the disease. Therefore, an important question in any welding-fume lung-cancer case will be, How long did the claimant work as a welder before his lung cancer appeared?
The studies establishing an elevated risk of lung cancer among welders have not gone so far as to identify a specific carcinogen in welding fumes. This may be due to the wide range of substances that may be in the fumes. It should be remembered, however, that known lung carcinogens have been identified in these fumes.
The fumes are known to cause or contribute to several types of lung disease, including cancer.
Siderosis. This is an accumulation of iron particles in the lungs. The particles are inhaled in the form of iron oxide, which is produced from the melting metal and core of the welding rod. After being inhaled, most of the particles are absorbed by macrophages, the lungs’ scavenger cells, and transported to the lymphatic system. Lung biopsies, however, have shown iron particles in the alveoli and respiratory bronchioles where gas exchange occurs.
Siderosis can be seen in chest x-rays taken of the afflicted welder. The changes in the lungs are usually seen as nodular densities throughout the entire lung field, but the heaviest concentrations are seen in the middle third of the lungs. The x-ray changes resemble silicosis, a lung disease that is caused by inhaling silicon dioxide.
Early literature concerning Siderosis did not associate the condition with substantial disability. It was felt that the iron particles produced, at worse, only localizes scarring in the lungs. In 1955, Dr. Robert Charr, a frequent author on the subject, suggested that this belief should be reexamined. As time passed, reports of significant pulmonary disability in welders began to appear in the medical literature. Physicians identified substances other than iron – primarily silicon – in welding fumes as the agents responsible for lung scarring. This scarring may gradually lead to emphysema.
Metal fume fever. This is a temporary condition characterized by cough, chest pain, a feeling of pressure in the chest, fever, malaise and nausea. The condition has been associated with inhaling fluorides, cadmium, chromium and zinc in welding fumes.
Pulmonary edema. This is the abnormal accumulation of fluid in the air spaces and air passages of the lungs; the condition has been linked to exposure to welding fumes. In the 1920s and 1930s, a number of deaths due to pulmonary edema were reported, particularly among welders who worked in closely confined spaces. The disease was caused by exposure to ozone and nitrogen peroxide gases created when the welding arc comes into contact with air.
Recent studies have also associated welding-fume exposure with obstructive-airways disease. Changes in the air passages can obstruct the flow of air to and from the lungs. It has been postulated that gases and particles toxic to the cells of the air passages stimulate them to change, thus narrowing or distorting the airways.
