Protecting health, compensating disease in miners Presentation to the Portfolio Committee on Mineral Resources June 24, 2015 Prof. Rodney Ehrlich School of Public Health and Family Medicine University of Cape Town Presentation of Framework Papers Each framework paper team will select one person to present their research to date, providing an assessment of the current situation and outline challenges and opportunities for the group to consider. Each person will have 15 minutes for presentation followed by a 5 minute Q&A session. Presentation schedule:  10:05 – 10:25 Potential models for an effective compensation clinic 10:25 – 10:45 Ensuring linkages to TB/HIV care 10:45 – 11:00 Break 11:00 – 11:20 Current policy and legal challenges in South Africa 11:25 – 11:45 Comparative legal systems for compensation worldwide 11:45 – 12:00 Discussion

Silicosis Scarring of the lungs due to inhaling silica dust Normal x-ray Silicosis Silicosis + tuberculosis

Questions What difficulties face sick ex-miners (and their families) in getting compensation for their disease? Why do mineworkers who have got lung disease because of their work, need to go to the courts to get compensation? Are measures now in place on the mines (through the “zero harm” initiative, for example), that limit the exposure of present mineworkers to silica dust, so that no new cases of silicosis will appear in mine workers?

Question 1 What difficulties face sick ex-miners (and their families) in getting compensation for their disease?

The Act ODMWA = Occupational Diseases in Mines and Works Act (administered by Dept. of Health since 1984). Income replacement during temporary incapacity for TB if in mine employment (75%). Income replacement for permanent incapacity - restricted to lump sums at “first degree” or “second degree” depending on extent of disease. Post mortem compensation (even if mining disease not cause of death). Two yearly “benefit examinations” (unless already 2nd degree).

Barriers facing individual miner Prior to claim Ex-miners, and particularly black ex-miners, have poor access to compensation medical examinations. System poorly understood. “One stop services” recently opened at Carletonville and Umtata . After claim submitted Reportedly 8 000 case backlog in medical certification at the Medical Bureau for Occupational Diseases. (Understaffed) After claim medically certified Massive backlog of current claims payment at Compensation Commissioner for Occupational Diseases (CCOD) – 104 000

ODMWA system in crisis Longstanding consensus that ODMWA system needs to be reformed. Solvency uncertain – last financial statements submitted (but not accepted) 2010/11. Actuarial assessment lacking and difficult. Levies paid only by mines “controlled” under the Act. No. of such mines down to 246 from 920. (About 1 600 in operation). Prior to 1997, levies based on air quality system. Then set on basis of claims experience in 1990s by commodity (gold, platinum, coal, etc.) and increased based on Fund need after that. Chamber of Mines court challenge to rise in levies failed. Administration of MBOD, ODMWA funded from general taxation - R 55 million per year.

Financial benefits generally inferior to COIDA Lump sum based on wage - formula for 1st and 2nd degree uses a capped wage (currently = R3 000), not actual wage. Has lagged behind inflation. In 1973, 1st degree compensation covered 2 years of wages; 2013 - 7 months. Harmonising (or merging) with COIDA would greatly increase numbers compensated and amounts paid, and reintroduce pensions. Pensions viable? (Rand Mutual Assurance pays pensions to ex-miners under COIDA).

Some solutions Merger with COIDA: But COIDA itself dysfunctional. Financing of administration: From levies, not from taxpayer MBOD: Improve conditions of service, allow flexibility in appointment and payment of medical staff, and amend law to allow decentralisation of medical certification. CCOD: Transfer its functions to a separate agency or to a private insurance mutual company, with the Commissioner exercising appropriate statutory oversight.  Full reform (equity and efficiency) likely to lead to large actuarial deficit.

Question 2 Why do mineworkers who have got lung disease because of their work, need to go to the courts to get compensation?

Different reasons Failure of the statutory system. Unlike civil law, ODMWA does not incorporate principle of negligence, nor provision for damages, pain and suffering, nor a court determined loss of earnings.  Larger burden of proof (and cost) of litigation.  Much larger payouts if successful. Allows for settlement, e.g. via a class action suit, covering a large number of miners with silicosis. (Precedent - asbestos settlement and the Asbestos Relief Trust)

Litigation has other impacts Publicity, engaging public interest. Large suits, e.g. class action, will result in potentially large number of ex-miners being medically examined. Should have a preventive effect in action by mines to minimise silicosis occurrence. May accelerate reform of the statutory compensation system.

Question 3 Are measures now in place on the mines (through the “zero harm” initiative, for example), that limit the exposure of present mineworkers to silica dust, so that no new cases of silicosis will appear in mine workers?

Silica Silicon dioxide - component of hard rock and sand – found, e.g. in gold mining, sandblasting, foundry grinding

What are the protective measures? Primary: limit exposure of workers to airborne concentration of silica particles through wetting down, ventilation, filtration, clear-out periods, task segregation etc. Respiratory protection (“masks”) is a secondary protective measure, used when primary methods are not feasible. Difficult to assess compliance or effectiveness. All these processes set out in various documents (e.g. DMR Guidelines) and operating procedures. How will we know whether these processes are working?

No disease “By 2013, no new cases of silicosis among workers exposed for first time after 2008” (2003 Undertaking) However, steady flow of annual silicosis cases, e.g. in mine annual reports. (1 500 - 2000 active miners in recent years) MBOD has not produced an annual report since 2000! Problem: silicosis takes 15-20 years to appear on the x-ray. Thus we will have to wait until 2028 to know whether the above goal has been met. (Could “have advance warning” using autopsy information).

“No dust” Use of an occupational exposure limit (OEL): a concentration in air of silica particles, below which most workers will not get silicosis over a lifetime (40 years) of exposure. OEL in SA is 0.1 mg per cubic metre of air (mg/m3) 2003 declaration: “By December 2008, 95% of all exposure measurements result will be below the occupational exposure limit for resipirable crystalline silica of 0.1 mg/m3” “Reached” in 2013 according to DMR, but no independent verification.

No dust (cont.) Emerging evidence that exceedances of the OEL get “buried” in averaging, or by random sampling of workers rather than focusing on where the dust problem is worst. However, even with 100% compliance, there is also evidence that OEL of 0.1 mg/m3 is be protective against silicosis. New (non-statutory ) aim is to reaching half the current OEL, i.e. 0.05 mg/m3, by 2024. (MHSC milestones) Need independent verification of dust monitoring and public accountability by publishing annual dust reports.

Thank you. Questions and discussion.