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My employer says that at the time I was welding, I had the proper safety equipment. Does this mean my employer isn’t liable for my damages?
Welding operations in general require face, neck and eye protection for the welder — against sparks, splatter of molten metal, and the radiations (ultraviolet, infrared, and intense visible) of the arc or flame. Normally this means that a welder will wear a welding hood, or helmet, though in some cases gas welding may properly be done with adequate goggles, gloves, and other protective clothing of neck and arms. When personal respiratory protection is required, this may be provided by a supplied-air welding hood or when the components and concentration of the fume are known, by a filter-type respirator with filter for protection against fumes. The fact that your employer provided ventilators which you did not use may be used to diminish any damages that you might receive from a welding rod exposure case.
However, it appears that your employer did not require that you use the ventilator. Did you ever sign a waiver, accepting responsibility for not using a ventilator? If not, you may still be able to bring a suit against your employer for exposing you to the welding rod fumes. If you did sign a waiver, you may still be able to institute a lawsuit, however. Courts do not necessarily uphold signed waivers, depending on the circumstances of the signing, what you waived, and how much information you had when you signed the waiver. Any paperwork that you were given have relating to the use of ventilators in the workplace would be useful. If you do not have this paperwork, your attorney will want to ask your employer for it as part of the discovery process.
Another factor that will play into the defense is the failure of the defendants to give adequate warnings to the end user. In many situations, the worker had no reason to know that there was specific long-term harm being caused by the welding fumes. Since the manufacturers knew about these damages as early as the 1940’s but decided not to share their knowledge with the workers using the consumables, they may be barred from defending that the employee should have know to use a respirator. Later, even when the manufacturers included warnings, these warnings were watered down so that they did not provide enough information, and in many cases, they were attached to the bottom of the container of welding rods, rather than to the individual consumable product.
Your attorney will also want to find out what has happened to your co-workers who used the ventilators, to see if they are suffering from Parkinson’s as well. If this is the case, you may be able to show that the ventilators were not effective and that even if you had used the ventilator, you still probably would have developed Parkinson’s. This would, of course, help your case immeasurably.
If your case does proceed, you probably will have a greater chance of recovery in a strict product liability case against the welding rod manufacturers for making a product that exposed you to an unreasonable danger. These manufacturers may argue, however, that your damages should be lessened since your employer offered protection to you in the form of a ventilator and you refused it. They may use this to show that your actions led to your illness.
You can anticipate that any case will hinge on you successfully proving a link between your exposure to welding rod fumes and the development of your Parkinson’s disease. There are many possible causes for Parkinson’s and welding rod fume exposure may only be part of the picture. Anticipate that any damage award you receive may be reduced by your refusal to use the company-supplied ventilators unless you are able to prove that the ventilators wouldn’t have helped. You will want to talk to an attorney who has a great deal of experience in welding rod cases to help you understand and evaluate your case.
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