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UE NEWS HEALTH AND SAFETY


Raw Dust,
Raw Deal

UE News, June/July 1997

They called them the Snowmen of Grand Central Station. They were 140 pipefitters and others who worked for Metro-North Commuter Railroad, breaking off chunks of asbestos insulation in the tunnels deep underground to reach the pipes and valves they needed to repair and replace.

They worked without warning that they were handling asbestos, without training about the dangers of the dust, and without asbestos protective gear. They left work regularly covered from head to toe with layers of fine asbestos dust — hence their nickname, the "snowmen."

This dangerous, potentially lethal exposure continued until 1987, more than two decades after the dangers of asbestos dust were known and widely publicized. Only a critical report from the New York State Attorney General, and another one by the Metropolitan Transit Authority, put an end to these potentially lethal practices.

When these workers realized how badly they had been betrayed by their employers, they went to court to sue for damages from the emotional stress of having to live their lives under the constant threat of developing life-threatening, asbestos-related cancers. They also sued the company to pay the medical costs of the X-rays and other tests they must take regularly for the rest of their lives in hopes of detecting cancers early enough to stand some chance of being cured..

THE RAW DEAL

On June 23, the U.S. Supreme Court ruled unanimously against any compensation for these workers. Justice Stephen Breyer, who wrote the decision, admitted that the workers "suffered wrong at the hands of a negligent employer." But because the workers showed no evidence of physical damage when the lawsuit began, he argued, only emotional distress, they were not entitled to damages.

Michael Buckley, a 43-year-old pipefitter with a wife and two young children — and a second-generation railroad worker — said on hearing of the decision:

"I’m devastated, devastated. I can’t believe, I just can’t believe that they got away with this. They broke every single law you could think of and admitted it in court. And still they walked away. They got away with murder. Can you explain how they did that?"

INJURY TO INSULT

To add insult to this decision, the Supreme Court ruled, by a vote of seven to two, that Buckley and other workers were also not entitled to recover the costs of regular medical monitoring, such as X-rays, lung function tests and other early detector tests for cancer. These tests cost a total of about $1,000 per year per exposed worker, and represent a mere pittance to this large commuter railroad. Again, Justice Breyer (a Clinton appointee) argued for the majority that without physical evidence of harm, workers were not entitled to payment for medical tests.

While it would be easy to blame a conservative Supreme Court for this decision, the chief problem for the workers rests with the workers’ compensation laws themselves. These laws are at their core unjust to workers, and based on outmoded distinctions between physical and mental health problems.

OUTMODED, UNJUST

In the first place, workers’ comp laws were designated at the beginning of this century to compensate workers for lost wages in the case of job-related injury (or later illness). So in cases of facial scarring or disfigurement, despite the evident personal and social costs to the worker, if the employee could continue to work he or she would not be entitled to compensation. That is, if the worker didn’t lose time from work or wages, no "harm" was done in the legal sense; hence, no comp payments. It took the labor movement half a century to get the comp system to cough up even a few hundred dollars for severe facial scars caused by chemical burns on the job.

In this railroad case, none of the workers have yet lost time from their jobs due to work-related illness. Because of the long latency period of work-related cancers, the asbestos diseases are not likely to show up for another 10 to 30 years, even if the damage has already occurred. We know that some of the workers will certainly develop cancers. They and their families live under a cloud of stress and pain — Michael Buckley, for example, regularly sees a psychiatrist — but the courts ignore them.

Also, as is clear, mental health problems are treated entirely differently from physical ailments. Many state comp laws do not cover mental problems at all until and unless a worker can no longer perform his or her job.

Fear, depression, stress don’t count under these laws until the person literally can’t get out of bed in the morning or the stress causes a heart attack. This distinction between mind and body, between mental and physical health, reflects an old, outmoded medical approach. Today, physicians emphasize holistic health, a healthy mind in a sound body. Our workers’ comp law still continue to reflect the medical ideas of the past. No wonder these railroad workers couldn’t get justice — the laws being enforced by the courts are unjust and out of date.

Since the court case began, Michael Buckley and other "snowmen" have developed lung scarring, which will be compensated. Will this scarring develop into full-blown asbestosis lung disease or lung cancer? Neither Buckley nor his doctors know. Meanwhile, the U.S. Supreme Court and our state legislatures are letting these workers twist slowly in the wind.


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