Workers' Compensation (Part 1): The Triumph and Failure of Worker Safety
By PETER ROUSMANIERE who is an expert on the workers' compensation industry.
Coal mining once ranked with steel making and rail transportation as the most dangerous work in the nation. No longer. The decline in the deaths connected to underground mining represents a triumph of worker safety, as mining has become much safer over the past 100 years.
Mining isn't the only industry in which safety has improved ever since Wisconsin passed the first workers' compensation law in the nation in 1911.
Manufacturing, agriculture and even fishing, traditionally among the highest-risk jobs for workers, have all seen their fatality rates plummet over the past century.
Workers can thank tighter laws, new technologies and more attention to safety and prevention on the part of industry. Workers injured in industrial accidents have a basic protection under the state-based workers' comp system, one primarily paid for by a tax on employers.
Now, with 100 years of perspective, we look back and take stock of how the workers' compensation standards have been a catalyst for positive changes in the workplace, and where they have come up short.
Mining grew rapidly as the demand for coal rose with industrialization. In Appalachia, coal production exceeded 300 million tons in about 1905 and has stayed above that level ever since, according to government statistics.
In the United States, some 550 underground coal mines employ 50,000 workers.
Since 1973, underground mining employment has dropped by more than half, and so has the rate of injuries, according to the Energy Information Administration. Productivity has increased by about 4 percent annually, on average.
Former miner Daven Hoskins, the Harlan, Kentucky, coal safety specialist for Kentucky Employers Mutual Insurance, said underground mining remains "dangerous, dangerous work." Like nearly every miner, Hoskins knows fellow miners who have died from coal mining.
The most lethal risks to underground miners are explosions arising from methane and coal dust, roof collapses and black lung, or pneumoconiosis. Nonfatal risks include hearing loss and musculoskeletal injuries.
The worst mine disaster in the past 40 years occurred on April 5, 2010, at the Upper Big Branch underground mine in Montcoal, W.V., killing 29 of the 31 miners who were underground at the time.
A report commissioned by West Virginia focused on corporate decisions of the owner, Massey Energy, which had been cited hundreds of times in recent years for safety violations.
The mine was known to be "gassy," because of the presence of a relatively high level of methane, a natural adjunct to coal. Sparks made from the shearing away of coal along a seam, according to a one interpretation, ignited the methane.
Fuel for a prolonged, larger explosion was then provided by coal dust, which had been inadequately mixed with noncombustible rock dust. Besides finding low deployment of rock dust, investigators faulted the company for not adequately ventilating the mine.
Massey Energy released a report in June, asserting that a "massive inundation" of methane through a crack, not coal dust, was the culprit.
The accident at Upper Big Branch mine, notwithstanding, safety in coal mining overall in the United State has greatly improved. Frequency of fatalities in mining has declined by more than 50 percent between 1911 and 2010, according to government statistics.
Since 1969, when a new age of mine safety began starting with passage of the Coal Mine Safety and Health Act, mining deaths declined by more than half.
In the decade from 1969 to 1979, Washington set tougher standards for mine safety, thanks to the passage of the Federal Mine Safety and Health Act of 1977 which enforces mandatory safety and health rules.
A new federal agency, the Mine Safety and Health Administration, within the U.S. Department of Labor, was formed to regulate the industry more strictly than its predecessor, the Bureau of Mines, housed within the Department of the Interior.
The scourge of black lung, or pneumoconiosis, was mostly tamed. Black lung occurs when insoluble bits of coal lodge in the lung over many years and eventually cause scarring.
Records of the disease were not collected until the federal government, in the late 1960s, passed a special workers' comp program for black lung victims and mandated safety improvements.
Better ventilation in the mines reduced the presence of airborne coal dust, and as a result the incidence of black lung had declined by 90 percent by the late 1990s.
Miners, many retired, are still dying of black lung disease, however, and R. Larry Grayson, former chairman of the Mining Safety and Health Commission, said that the prevalence of miners with coal dust and silica-rated conditions is even rising in some areas.
THE TRAGEDY OF ASBESTOS
In contrast to mining and its safety improvements, occupational exposure to asbestos is perhaps America's greatest failure in workplace safety.
Not only have thousands of workers died from asbestos exposure, but litigation arising from this exposure has clogged the courts, sent hundreds of companies into bankruptcy, and killed thousands of jobs.
Property/casualty insurers are still paying about $2.5 billion a year in settlements, judgments and loss adjustment expenses for asbestos claims, according to an A.M. Best & Co. report published in February on the outstanding and future asbestos litigation.
The report predicted that the ultimate cost to American insurers will reach as high as $75 billion to resolve all asbestos-related claims. Asbestos was banned from the American marketplace 40 years ago.
That's the financial cost to insurers of the darkest episode in occupational safety in the 20th century. The cost to workers was tens of thousands of deaths. The cost to employers was dozens of bankruptcies because of liability suits.
Asbestos began to be used for insulation in the 1860s. After World War II, the product became popular with the booming construction industry as a cheap and effective way to insulate homes and businesses.
But doctors began to report health problems among asbestos plant workers, and before long the medical profession was dealing with patients suffering from a disease called asbestosis.
Asbestosis is acquired only by breathing in asbestos, and is associated with shortness of breath, limitations on activity and other debilitations. Pleural mesothelioma, a deadly cancer, was found to be intimately associated with asbestos.
Evidence of the danger of asbestos exposure caused some insurance companies to stop selling policies to workers in asbestos plants.
The year 1964 was a turning point. That year, the Journal of the American Medical Association published an article documenting the link of asbestos exposure with cancers.
Upon examining insulation workers in the New York City, the article's lead author, Irving J. Selikoff, found that of workers with less than 10 years' exposure to asbestos, one in 10 suffered from asbestosis. Among workers with 40 years of exposure, as many as 94 percent suffered from the condition.
The authors reported the next year that "lung cancer was found to be at least seven times as common as expected and cancer of the gastrointestinal tract three times as common as expected."
Manufacturers of asbestos insulation products began putting caution labels on their products.
Soon, the "wonder" product, whose use skyrocketed in the 1940s, was withdrawn from the market and the newly created Occupational Safety and Health Administration weighed in, and in 1972 issued its first ruling on safe practices and handling asbestos.
A research team in 1982 estimated that between 1940 and 1979, some 25 million Americans, mostly workers, were exposed to asbestos. Many of them would succumb to mesothelioma, a disease with a median latency of 32 years.
The researchers, William J. Nicholson, George Perkel, and Irving J. Selikoff, also estimated there were 8,600 asbestos-related cancer deaths in 1982.
In 1989, the EPA issued a final rule banning asbetos from the marketplace in most instances, but the action came too late for many, By 2025, some 3,000 more people are still expected to die from asbestos-related cancer.
In 2008, another research team estimated that between 1970 and 2004, as many as 25,413 people had died of asbestosis, and that about 90,000 cases of fatal and nonfatal mesothelioma were projected to occur between 2005 and 2049.
To put the asbestos losses in perspective, the annual number of asbestos-related deaths rivals OSHA's annual overall figures of workers who died from on-the-job injuries.
Enter the lawyers. No occupational hazard has spawned so much liability litigation as has asbestos. In 1969, a Texan sued asbestos manufacturers for damages.
When Clarence Borel v. Fibreboard Paper Products Corporation reached the U.S. Supreme Court, the court in 1974 ruled that asbestos manufacturers had an obligation to inform the public about product dangers that reasonable foresight would reveal.
The Borel decision let loose suits that brought tens of thousands of plaintiff workers up against asbestos manufacturers. Many companies crumbled, as did Johns Mansville Corp., which declared bankruptcy in 1982.
Asbestos-related litigation ate into the business fabric of industry. It spread outward from manufacturers to engulf firms whose employees made or used asbestos-related products, such as car breaks.
One economist in 2001 estimated that 61 defendant corporate bankruptcies had cost the economy as many as 60,000 jobs.
Attorneys corralled workers who had no symptoms of malignant asbestos-related disease, and launched massive screening programs. Attorney over-reaching on silica claims arising from asbestos exposure led to a federal judge (who was a former nurse) castigating attorneys and their doctors in 2005.
Court cases have ranged from multiple plaintiffs suing as a class to individual plaintiffs.
Litigation remains so active that asbestos expert Barry Castleman said that courts in 2011 have been crammed with depositions. Supreme Court Justice David Souter has called the hundreds of thousands of suits against 6,000 companies an "elephantine mass."
The stories of coal mining and asbestos merge in a concentrated time period of the 1960s, when medical science caught up with occupational diseases.
Safety measures for black lung and product bans for asbestos sharply reduced exposures, but the damage had been done.
Fortunately, underground coal mining has, on balance, become much safer and continues to employ many workers. Safety issues remain highly visible and contentious. Vigilance is a necessary virtue when lethal risks are daily work companions.
October 15, 2011
Copyright 2011© LRP Publications