Wednesday, May 31, 2000
The Oak RidgerBar None - DOE's strategy in dealing with sick workers
Gene Joyce
This is an update of how the Department of Energy has been paralleling the strategy of the coal and tobacco industries when confronted with evidence of industrial diseases.
In the early 1950s, as Anderson County attorney, I became involved in the coal-mining industry in the Southern Appalachian coal fields. Ever since then I have been fascinated by how lung problems have progressively dominated the health of workers in these once-virgin hills of East Tennessee.
I refer to coal; Smoky Mountain ozone alerts; tobacco-related cancer; and now, berylliosis and other cancerous toxic fumes.
All of these health problems individually have become, in their time, national issues because of the mystery, the denials, the cover-up, the "delay by study," and finally, the industries' capitulation under pressure from the courts and/or the congressional delegation and public opinion.
I will schematically review the instructive comparisons. (For more details, see my columns in The Oak Ridger online: www.oakridge@oakridger.com dated June 4, 1997, and Feb. 28, 1998.)
I dubbed the Oak Ridge lung problems as invisible "white lung" as compared to the "black lung" of the coal fields.
There is an old adage that suggests that you can predict the future by looking to the past. Using that axiom, I have been predicting the outcome of our present white lung situation after many years of seeing how it tracks with the mining (and tobacco) industry.
The first national prominence of health problems from Appalachia's coal came from underground explosions (with pictures of widows and children holding a vigil outside the mine entrance after explosions).
That was agreed to have been caused by coal dust; however, it was cleared up by crude warning devices such as canaries and better ventilation.
Then as workers (and 10-year-old child laborers) complained of respiratory problems, the industry responded by calling the ailment simple "bronchitis" or over-use of cigarettes which called for "studies" and other delaying tactics.
In parallel, the need for deep-mining coal abated with the end of World War II and the less expensive and more lucrative development of strip mining technology.
As the lucrativeness of deep mining faded, the coal corporations silently closed their mines and returned to England with their riches.
The hundreds of thousands of sick workers in Southern Appalachia (principally Kentucky, West Virginia and Tennessee) were left stranded.
It was only with the collaboration between John L. Lewis' union and many coal-field U.S. senators that responded to the national outcry that resulted in the late 1960s of passing the Black Lung Benefits Act. This act called for cash awards, medical treatment and monthly pensions of about $450 per month. (Many old-time coal miners are still receiving this pension today.)
All of this took about 50 years to consummate (from the first explosions to the black lung pensions).
At this point, I am sure you can already detect how DOE has been consciously or unconsciously following the pattern of the coal industry.
But because of the modern media, time has been telescoped in the case of beryllium and toxic fumes. Most of this has been by the alert actions by the citizens of Paducah, Ky., and more recently Oak Ridge. This was initiated by a series of exposés in Louisville and Nashville newspapers.
The coal industry stonewalled for 50 years, but Paducah and Oak Ridge citizens are getting results in a few short years.
The Paducah congressional delegation and our U.S. Sen. Fred Thompson's committee held congressional hearings requiring high DOE officials and private contractors to testify as to what they knew and when they knew it.
The congressional delegation is now pursuing possible cover-up tactics. High local Oak Ridge officials testified at this hearing.
But before the hearings, many federal damage lawsuits were filed and the hearing dates had been set. A federal judge ordered subpoenas and records that were finally produced. Pre-trial discovery depositions are being taken under oath.
But until the hearings and the trials lurked on the horizon, the DOE's facts and figures had been denied and read and then slowly produced.
DOE denials and stonewalling were supported (as in the coal field and tobacco lawsuits) by subcontractors and loyal professionals and unknowledgeable pensioners.
But then DOE suddenly capitulated and quickly changed its strategy and now has admitted health-related injuries to workers, to the surprise and chagrin of their loyal supporters.
DOE has offered $100,000 cash settlements and admitted to the presence of beryllium and other fumes causing sickness.
Let me compare the black lung settlement with the unfolding invisible white lung scenario.
The black lung statue included: waiving the statute of limitations for making claims; and relaxing the severity of the medical evidence required to prove sickness or injury.
For example, if an employee worked underground for 10 years and had been formerly diagnosed with "bronchitis" he was presumed to have had "black lung" unless affirmatively disproved; acceptance of workers' compensation in some cases did not rule out federal black lung pensions, which were about $450 per month.
However, beneficiaries and sick workers should be careful not to waive any rights by signing off on a meager "first offer" of early benefits.
The whole picture is far from being totally unraveled and finalized as it goes through Congress. Because the collaboration of the Paducah and the Tennessee congressional delegations (Thompson, U.S. Sen. Bill Frist and U.S. Rep. Zach Wamp), things are beginning to move rapidly.
But it is not a done deal. The all-important wording of the statute is yet to be drafted and passed through committees of both houses of Congress.
This is a time that internal vigilance must be exercised to be sure that nothing falls through the cracks during the drafting or by amendments by Congress.
But there could be bumps in the road ahead. As it happened in the coal fields, the relaxation of standards caused fraud and malingering to create a minor scandal. For example, in the coal mines, if you worked underground for 10 years, there was a presumption that you had black lung if you had bronchitis.
This caused open vulnerability to fraud by claims of some workers who really worked "underground," but in access corridors -- but never did work in the actual coal. They worked digging clay and rock in the shafts that were sometimes miles from the coal.
Gene Joyce, a longtime civic activist in Oak Ridge, is semi-retired from the law firm of Joyce, Meredith, Flitcroft & Normand.