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.
