Document 6Bmrj3nEqm4k8Jyz1pBooGzx4

ifa25 i Sireel, n a Washingion. DC 2000) 202-872-1080 ]=] Organization Resources !sJ Counselors, Inc. Memorandum December 20, 1982 To : From: ORC Lawyers Group ORC Physicians Group S u ec Summary of the Combined Physicians and Lawyers Groups Meeting, November 9 and 10, 1982 The recent combined Lawyers anc Phvsicians Groups meeting on tne issue of compensation for exposure to hazardous substances was stimulating and informative. Over 80 physicians, and lawyers were in attendance, leading to liveiv discussions throughout tne course of the meeting. The issues raised at this meeting have provided the basis for a continuing in-depth examination of the entire compensation for exposure issue. The meeting was also notable, in that there was a successful melding of the legal and medical aspects of a particular problem -- a success that has not always occurred when examining other subjects. The importance of this issue, and its potential effect on employer; emplovee relationships as well as the medical and legal pro fessions, has clearly broadened the interests of the medical and legal professions. The meeting covered broad aspects of the toxic exposure compensa tion problem and showed how they are interrelated. Many speakers examined the basis of the "historic bargain" tnat was the orgin of the Workers' Compensation system as we know it today. These discussions began with an overview bv Craig Barrington, Associate Deputy Under Secretary for Labor Standards, who examined the legal problems concerned with the translation of Workers' Compensation into a vehicle that could handle compensation for exposures to toxic substances. It became clear that the Workers' Compensation System was not designed for r.ar.dlir.g toxic substance exposure problems and, because of that, cannot deal effectively with tne problems of employees who as a result of such exposures, have suffered a reduced capacity to vork In developing an overvie" LLA 000314 2- - of the legal issues, Bill Veal of Exxon examined the corporate legal responsibilities in the compensation area. On the last day of the meeting, William Oldaker of Epstein, 3ecker, Borsodv & Green discussed claims resulting from the potential exposure of the fetus to toxic substances. Among the interesting and provocative points made bv these speakers are the following: Prior to the development of the modern Workers' Compensation svstem, the law did not provide a realistic mechanism for the disposition of claims against employers by emplovees who are m.iured while on the job. The defenses of the emplover -contributorv negligence, negligence of a fellow worker, assumption of risk, etc. -- were too diffi cult for emplovees to overcome m most instances. As a result, employees were unable to obtain compen sation even though injured t.nrougn no fault of tneir owp. . o-The Workers' Compensation Svstem tr.at developed in the earlv 1900s was designed to handle traumatic injuries and not illnesses with long latency periods. Even with state Workers' Compensation statutes that have provisions covering illnesses, the statute of limitation provisions in these laws are normally of such a short duration that manv of the illnesses mat we are concerned with todav are not in actuality covered . o The Workers' Compensation Svstem is in danger of breaking down. We have seen a sharp rise in the ef forts to obtain compensation in instances that should be covered bv the Workers' Compensation svstem but either would result in no compensation or in an in adequate level of compensation. Because of those inadequacies, individuals often attempt to circumvent the Workers' Compensation prohibition against taking tort action against employers by suing other employers (or sometimes even fellow emplovees) or organizations on a third party basis. Several suits have also been brought on a theorv that gross negligence overcomes the prohibition against suing one's emplover. o There are continuing a t ten preset in providing a fair Miller Bill which is cor.ce s to develop a new ap- or pe r. sa prog r O dire with a sbes LL -3- and radiation and ultimately vith almost any type of exposure, the Asbestos Coalition bill which is limited to asbestos, and other bills based on the model of the Black Lung Law are under consideration. The upcoming Congress mav well become a battleground over this issue. A funding mechanism such as that presented m the Miller bill or in other bills has been supported m principle by much of business and organized labor. However, to sav that their views on specifics are far apart at this time would be to repeat the one po litical certainty surrounding this subject. The medical aspects of the compensation issue were ably addressee Dr. Burford Culpepper of Dupont, Dr. Hans Weill of Tulane Medical Center and Dr. Edward Gaensler of the Boston University School of Medicine during the meeting first dav and Dr. Harold Imcus of Health _and Hygiene, Inc. during the second dav. Although mere was disagreement over specific issues, thev did agree on tr.e ne cessity for scientifically credible and medically reliable data as the basis for the resolution of compensation issues. tv Dr. Culpepper discussed the role mat a responsible corporation must plav in the issue of compensation for toxic substance expos ire. The fragmented nature of the compensation problem, Dr. Culpepper noted, makes it difficult to address this problem in the corporate setting. He urged that physicians stav out of an advocacy role, particularly if a compensation question goes to trial. Drs. Weill ana Gaensler discusses the issue of medical deter mination and the relationship between organ impairment and disability. It was pointed out that with organ impairment an accurate decision can usually be made concerning how well a particular organ functions. With disability, however, there is less concern with the actual degree of organ impairment than with his/her ability to earn a living. Earning ability depends on the educational and socio-economic level of the individual which determines the type of job the worker may hold. It was also noted that the psychological elements of the whole issue are extremely important. Other issues raised during the di scussions were: The e x i ster.ee c: x claque or pleura c o e s not necessa rilv r^ar t r a t iroa:nm e r. t or disa Hj.li: v i ? certain to follow Plaques o n t n e n 1 -era ire a: - ' a 1 c: na?: asres:'s e r d:sere : o s s i 1 markers LLA 000316 -4- The important point is what the lung looks like between the nodules, not the presence of nodules. o X-rays may give false confidence that one realiv has a good picture of what is happening-to the lungs. o Manv radiologists call all asbestos related pro blems ashestosis -- this is not accurate. o Pleural plaques are not cancer and cannot become cancerous because thev are acellular. o There is no doubt that asbestos exposure is dose rel a ted . If ar.v concensus was reached hv the sneakers, it was that tr.e issues raised by both the physicians and the lawyers during the first da-f of the meeting were so intertwined as to make it impossible to discuss compensation for exnosure without in cluding both the relevant medical and legal issues. Problems ra i sed during the first day were skillfully addressed, but certamlv not resolved during the meeting's second dav. Ken Feinberg, of Kaye, Scholar, Fierman, discussed the socalled Asbestos Coalition 311 1 . Mike Goldberg discussed the Miller Bill and compared the two approaches. These speakers, m addition to Frank Petramalo of 3redhoff and Kaiser (a fir*' which represents labor unions'), brought a wide range of views as to how the subject should be addressed. Thev also indicated, however, that there was some basis for agreement in the development of a mult i-companv or mu 11 i - ind us t r fund mechanism from which payments would be made to appropriate claimants. Almost without exception, however, the finger was pointed at the Black Lung Bill as an example not to be followed. Ken Feinberg pointed out tw-o major differences between the As bestos Coalition Bill and the Miller Bill. The Asbestos Coalition 3i11 would preserve state apparatus for the determination of an appropriate claimant. It also does not include "presumptions . The Miller Bill, on the other hand, orovides that the decision for claim payments be federally determined. The Miller Bill in cludes "presumptions". In addition, the Miller Bill, nrovides for r b e possibility of c r e a 11 r. 0 n e v funds for pxdosut? to c t r. 0 r substances. Both bills provide for exclusive remedies. LLA 000317 The AFL-CIO position as presented by Frank Petrzmaio was for a election of remedies with the funding mechanism only handling "run of the mill" type claims. There was scant support for th tvpe of approach by the meeting attendees. Dave Pullen of Manville Corp., discussed the reasoning behind the Manville bankruptcv. He argued that the decision to go into bankruptcy involved a simple examination of the numbers concerned. Manville could see that the potential liabilities it faced from payment of all potential claims exceeded its net worth and that without the bankruptcv there could not be an orderly payment of future claims. The combined meeting brought to the attendees attention the cn plexity of the compensation for exposure issue and tr.e wav in which the elements of the prohie~ are intertwined, with each o~ The excellent attendance and interest at the -'eting ha? conv: ORC that "this is a major issue that cannot be ignored. is ?. result ORC is exploring ways to work with interested companies in this area including: o A series of seminars, for groups of co~panies or individual companies, that will address the issues concerning the potential scope of li ability that companies mav face, how to recognize these problems, and how to take steps within the company to resolve t.nese problems. o A meeting group that would concentrate on the compensation for exposure issue. o We have invited representatives George Miller (D-Cal.) to speak at the ORC meeting on February 2, 1983. He intends to discuss his legislative proposal on the compensation to exposure issue. This should be a verv lively session! We would appreciate vour comments on this subject and look fo to seeing you at future ORC meetings. A.