Workers' Compensation as a Human Rights Issue
The American Journal of Industrial Medicine has a freely available issue focused on the concept of treating workers' compensation as a human rights issue. The issue is here.
New Science - Danish Industrial Compensation for Breast Cancer from Night Work
Here's a new example of changes in science causing changes in law. An article here reports the Danish government has now paid industrial compensation to some 40 women for incidents of breast cancer when they had 20-30 year careers working night shifts. The article includes a UK defense lawyer at Eversheds warning that studies by IARC and the Danish decision may put UK employer's on notice of the risk. Here are key excerpts:
"Are workers at risk of developing cancer because of their shift patterns? That is the question that will be troubling UK employers now a UN study by the International Agency for Research on Cancer (IARC) has concluded that working night shifts raises the risk of breast cancer.
The UN study found in particular that nurses and flight attendants involved in night-shift working over a period of 30 years had an increased incidence of breast cancer.
The study is not definitive - for one thing, it only looked at a limited number of occupations - and the IARC itself has called for further research. However, the Danish government has been sufficiently concerned to recognise as an industrial injury breast cancer developed after night-shift work. That finding cleared the way for compensation payments to approximately 40 women who had worked night shifts for some 20-30 years where there was no other significant factor to explain the development of the cancer.
But even though employers may not yet have the full picture, the courts have decided that it is only necessary to know that some harm is foreseeable to its workers - not the exact type of harm.
The HSE has issued no guidance in this country, and its own research into the potential link is not expected until 2011, but that is not a complete defence when an EU government is already paying out on such claims. Employers cannot ignore this research when assessing the risks to which they expose their workforce. Employers who have made such assessments and given warnings are in a better position to ward off claims."
Proceedings are Underway in an Italian Criminal Prosecution of Owners and Managers for Exposing Employees to Asbestso Hazards
A Swiss media article describes significant media and partisan attention focused on the first day of trial in an asbestos-related criminal prosecution of former owners and managers of Eternit businesses that for decades were global manufacturers of asbestos-cement board, among many asbestos products. Hundreds of people are said to have gathered for the first day of the prosecution that involves allegedly knowing or reckless industrial hygiene decisions said to have resulted in premature deaths and injuries to over 2,500 manufacturing plant employees and local residents. The alleged misdeeds of Eternit have been widely chronicled over the years while this prosecution effort was ongoing. Informative articles are available here and here , and an article I wrote back in 2004 provides some context for EU businesses facing asbestso litigation's expansion into Europe.
Prosecutions of this sort raise a wide-range of issues. From the American perspective, perhaps the most striking aspect is that Italian law expressly allows trial that combine criminal and civil claims, thus giving the defendants significant risks that would not exist in a civil trial in the US. Italian law also allows the judge to reduce sentences to some degree if compensation is paid to victims. This trial will not end quickly - Italian criminal trials move slowly and include a variety of procedures not directly comparable to American criminal trials.
What's the likley outcome? My assumption/prediction is that this trial ultimately will result in Eternit entities and the individual defendants offering to plead guilty subject to a proviso limiting their sentences in return for creation of a significant private fund/trust that will pay money to claimants and that will make some payments to Italian government agencies such as INAIL to offset payments that have paid medical expenses for victims. I strongly suspect the deal will not be as cushy for the defendants as was the tobacco deal cut in the United States.
The inductive fallacy
An article in today's (Nashville) Tennessean newspaper reveals that the worker's compensation liabilities of the state's bankrupt Tennessee Restaurant Association self-insurance fund are being transferred to a small, unrated insurance carrier. The recipient of the transfer, Brentwood National Insurance Company, is heavily criticized by former participants in the self-insurance fund as being "unrated". Former participants seem certain that Brentwood National will go the same way as the association's fund - out of business.
This type of faulty reasoning is all too common in risk management and insurance. Just because the TRA's self-insurance fund crashed and burned does not mean that all future insurers will do the same with the same risks. This is a textbook definition of the inductive fallacy, which warns us that we must understand the sample and its "representativeness" of the population before we generalize from the sample.
Certainly Brentwood National is small, and they are not rated. But if the restaurant fund's participants, and presumably their insurance agents, attorneys, and other advisers, had done their due diligence, they would have spotted the fact that such group self-insurance arrangements are much riskier than "regular" insurance, even from a small, unrated carrier. Just one question captures the essence of the necessary diligence - why was the TRA's coverage 30% less expensive than standard markets?
TTG
