Workers with an occupational disease have almost no chance of enforcing their rights. Dutch trade union confederation FNV’s Beroepsziekten Bureau helps members to prove employer liability and get compensation under the "polluter pays" principle.
An accountant was recently awarded 370 000 euros compensation for burn-out. He had been working 60-to 80-hour weeks for close to 25 years, and by the age of 52 was washed out and sick from working. It took the FNV’s Beroepsziekten Bureau (Occupational Diseases Bureau) nearly eleven years going through the courts to get the employer’s insurer to pay compensation. The highest court in the Netherlands ruled that an employer cannot just dump all the risks of unrelenting work pressure onto workers.
Beroepsziekten Bureau Director Marian Schaapman sees it as a landmark ruling. "The court found that an employer has to protect his employees and use preventive practices even where workers do not own up to suffering badly from pressure of work. The case may have dragged on, but it has set a precedent. After years in the courts, our client finally got compensated for the harm done. The worst thing is that people suffering an occupational disease have not only lost their health, but also find themselves in dire financial straits".
This is one of the main reasons why a number of FNV affiliated unions set up the Beroepsziekten Bureau (BBZ) in 2000. An estimated 40 000 to 50 000 people fall sick due to their work each year in the Netherlands. Another 3 000-odd die each year from an occupational disease, i.e., a disease caused either by the work itself or by the working conditions. The radical roll-back of the work incapacity system in recent decades has left many occupational disease sufferers scraping by on paltry public assistance. But there is a body of tort law which gives workers the right to claim compensation for harm from an employer who has not taken the necessary steps to provide them with a healthy workplace.
However, the right is so complex that few sick workers assert it. In the case of a work accident, the harm to health as a direct result of the accident can readily be seen. Where an occupational disease is concerned, however, the causal link is often much harder to establish (multi causality). How can an individual worker prove that work pressure rather than factors in their private life is what caused the burn-out? Or that exposure to cells? Not to mention the costs of going to law. "In our civilized country, an ordinary worker affected by an occupational disease has almost no chance of asserting their rights", rages Marian Schaapman.
70% of cases won
Since 2000, the members of a few big branch federations affiliated to FNV have not been left to fend for themselves. The BBZ does its best to get recognition of their occupational disease and negotiate compensation. The extensive expertise developed in occupational disease matters makes the BBZ a big player in promoting prevention and securing recognition of "new" diseases. By systematically going to bat for members, BBZ also keeps up the pressure on employers to implement safe work systems. The Bureau’s regular use of advertising also helps – firms and public bodies do not enjoy being named and shamed.
The BBZ has come up with a winning formula in an area shunned by insurance companies. Understandably so, says its director, because occupational disease-related personal injury cases are complicated, long drawn-out and so costly, and of uncertain outcome. Marian Schaapman puts it mainly down to the case groundwork. "We choose cases carefully", she says. Union members have their case taken up. Occupational health experts determine the client’s working conditions and check to see whether or not the employer has breached his statutory duty of care. If he clearly has, the medical advisor investigates whether the disease was caused by work and not other – specifically personal – factors. Only when all these steps are completed does the multidisciplinary team decide whether the employer might be liable. The "claims department" then engages negotiations with the other side.
"Our strength lies in the care we take putting cases together", argues Marian Schaapman. "It is much easier to negotiate from a well-documented case than just flinging out accusations of liability. But if the other side won’t settle, it gives us a solid base on which to sue. We win in about 70% of cases – either through a settlement or court judgement" (see box p. 36). The BBZ always tries negotiation first. "If that doesn’t work out, we won’t hesitate to go to court. When we take up a case, we don’t give up easily. That’s why some cases drag on. Insurers now know we won’t give up and it’s no use stalling".
David v Goliath
Rinus van der Brug is well-versed in the system. Endless discussions with the other side’s insurer are the BBZ personal injury settlement manager’s daily fare. It’s a David v Goliath battle. "Insurers will do anything to wriggle out of paying compensation, including digging their heels in and trying to drag things out. Clients wanting to press their rights have to be very sure of themselves and thick-skinned". Van der Brug cites the example of three women workers who have been bogged down for almost fifteen years in a fight against their former employer.
Their nervous system had been slowly poisoned by endotoxins released by the grass seed plant they worked in. Knowing that the air extraction system was not working, the factory boss still let his staff work in a space where endotoxin levels were 5000 times above the permitted level. As a result, their lives have been turned upside down – they suffer impaired concentration and memory, chronic fatigue and sensory disorders. The BBZ lawyer won the case in the Supreme Court (Hoge Raad), but the legal battle on the amount of compensation has dragged on for two years.
"These women are at the end of their financial tethers; they are ill and going through another painful ordeal. We help them and give them a face", says Rinus van der Brug.
The BBZ is not unhappy with the results. "The tally is positive", says Marian Schaapman. The reason is that it is based on a wealth of information. "In recent years, we have built up an extensive knowledge base on occupational diseases, enabling us to play into the guidelines on the 'new' occupational diseases like burnout and repetitive strain injuries (RSIs). We are also, for example, trying to establish a link between night work and breast cancer, and to demonstrate the risks from radiation and nanoparticles".
The BBZ emphasizes the need for prevention and an appropriate approach by employers and occupational doctors. "Ourcasefilesdocumenttheexacttimelinefrom the first symptoms until the worker’s health gives way. And what do we find? That the company doctor or family doctor rarely connects up working conditions and the health complaints. There are few checks and little feedback". Schaapman know that early intervention, such as in the case of RSIs, can avert permanent work disability. "The knowledge and data we have should be used to develop a tailored prevention programme. Each worker is different. A prevention programme can work for one worker but not for another. The ideal thing would be to keep following up on all clients partially or completely incapacitated by an occupational disease".
One aim in setting up the BBZ was to get a decent compensation system going for work accidents and occupational diseases, thus making itself redundant. But that is a long way off. The BBZ is lobbying for a schedule of recognized occupational diseases which would automatically qualify for compensation once exposure and breach of the duty of care for workers’ health have been established. This would do away with the need to fight over each individual case and more workers would get compensated. But the current procedure would have to keep going for non-schedule diseases. Says Schaapman: "I favour the 'polluter pays' principle. Employers who neglect their duty to look after their employees’ health must be answerable for the resulting problems. Employers plainly and simply have to show the exercise of care"•.