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CLUTE -- Here is
Robert Lara's day: Drag out of bed. Struggle to get dressed and force
down some food. Sit on the couch and stare blankly. Nod off frequently.
Move to the front porch, if the weather is nice, and sit and stare some
more. Have bouts of confusion, irritability and paranoia.
Lara's colorless
life is not much different from Mark Ott's. Once a bright, well-muscled
rock climber and weight lifter, Ott has become a frail, moody recluse
with a childlike dependency on his wife.
Two men with similarly
puzzling afflictions: dramatic weight loss, disorientation and fatigue.
Two men with despondent, angry wives. Two men who gave years to the petrochemical
industry -- Lara as a pipe fitter for Dow Chemical Co. and Ott as an electrician
for Shell Oil Co. -- and now blame that industry for overexposing them
to compounds known to disrupt the nervous system.
Two men who tested
the recently restructured Texas workers' compensation system -- and came
away empty-handed.
Perhaps they made
weak cases. Perhaps their ailments are, as doctors for Dow, Shell and
the companies' insurers surmised, all in their heads, or unfortunate acts
of fate.
Other doctors, however,
believe that Lara, 51, and Ott, 38, show ample evidence of damage from
neurotoxic solvents present in their former workplaces. The workers' failure
to win even minimal benefits through the Texas comp system may, in fact,
point up the system's inability to deal with illnesses, which often have
long latency periods and untraceable sources.
Todd Brown, executive
director of the Texas Workers' Compensation Commission, acknowledged as
much in a recent interview. The system is best equipped, he said, to handle
"impact injuries" -- broken legs, wrenched backs, severed fingers.
The injury either happened on the job or it didn't. If there is a dispute
in such cases, it is usually over the degree of the worker's impairment.
Illnesses, however,
pose a dilemma: Where and when, exactly, did this insulator, who worked
for a dozen contractors, inhale the fibers that caused his asbestosis?
What caused this pipe fitter's chronic myelogenous leukemia? Is this painter's
asthma occupational in nature or hereditary?
Brown knows that
many sick workers never file comp claims. If enough of them did, he said,
"It would possibly break the system."
Ultimately, Brown
said, it may be necessary for Texas and other states to create separate
programs to compensate victims of occupational disease. In the meantime,
workers such as Lara and Ott can face stiff challenges from the moment
they decide to file comp claims. (Under Texas law, they cannot sue their
employers.)
THE first challenge
may be to find a lawyer who will take the case. Before the Texas Legislature
revamped the state's comp system in 1989, plaintiff's attorneys could
make good money on comp cases and many specialized in them.
Among other things,
the new law, which took effect in 1991, did away with lump-sum settlements
for workers. The workers' lawyers used to receive portions of those often-sizable
sums; now they must file for fees as they perform the work and are held
more accountable in other ways.
As a result, most
workers now show up at decisive "contested case" hearings without
legal representation. The insurance companies on the other side almost
always have counsel. Neither Lara nor Ott had an attorney: Ott was represented
by his wife, Rae, and Lara by an officer of his pipe fitters local.
Lara, a pipe fitter
at the Dow complex in Freeport for 15 years, recalls brushes with benzene,
a neurotoxin and carcinogen, and chlorine gas, a severe respiratory irritant.
"You can't breathe," Lara said, describing the effects of chlorine.
"Your chest hurts. You feel like hell."
Ott, an electrician
and supervisor at Shell's Deer Park refinery for 13 years, said he regularly
worked around benzene, toluene, acetone and other solvents, as well as
ammonia and chlorine.
Neither man knew
the intricacies of the workers' comp system, however, and neither was
able to make his case.
They did not know,
for example, that workers whose comp claims are challenged may be sent
to specialists who -- unknown to the workers -- make money performing
"independent medical evaluations" for industry and its insurers.
Lara and Ott were
sent by their plant doctors to Dr. George Delclos, a Houston pulmonologist.
Delclos diagnosed essentially the same thing in both men: depression unrelated
to work.
Although Delclos
has impressive credentials -- he is director of occupational medicine
at the University of Texas School of Public Health -- he has a history
of testifying for industry, especially in asbestos-exposure cases. Delclos
said he tends to be conservative in diagnosing asbestos-related disease
and chemical sensitivity but added, "I don't cater to anyone."
LARA'S wife, Severa,
said that if she had known about Delclos' industry ties, she would have
raised objections about him.
Rae Ott claims that
several Shell employees tried to shame and intimidate her husband after
he got sick and that the company refused to continue his salary unless
he signed forms declaring his illness to be nonoccupational. Shell officials
deny ever pressuring any employee to make such a declaration.
She bears even more
animosity toward doctors, who, in her eyes, are beholden to industry.
"The chemical
companies could not do what they do without the cooperation of the doctors,"
Rae Ott said.
Doctors can make
good money performing examinations for insurance companies. Brown said
he has seen bills as high as $2,400 for a single exam.
Asked if the prospect
of such lucrative fees might cause some doctors to lose their objectivity,
Brown said, "There is the potential for that to happen. I would hope
the integrity of any physician would not allow that to happen."
Brown said it is
simply "the game of comp" for a worker to seek maximum benefits
and the worker's employer, and its insurer, to seek minimum benefits or
none.
"The sad thing
about it is, I can give examples of wholly unethical doctors on both sides,"
he said. Just as some may be swayed by insurance money to declare sick
workers fit, others may delay diagnoses or extend treatment of illnesses
to rack up fees for physical therapy, tests and other services.
Brown said the comp
commission should be concerned only with doctors' adherence to commission
rules and "shouldn't be forced to police the medical community"
in search of ethical lapses. That responsibility, he said, rests with
the Texas State Board of Medical Examiners.
Still, Brown said,
the commission is drafting a rule that would establish a maximum fee for
independent medical evaluations in an effort to "level the playing
field."
SEVERA Lara and
Rae Ott maintain that there was plenty of medical and scientific evidence
to suggest that their husbands' problems were caused by chemicals.
Dr. Dale Haufrecht,
a Houston neurologist and an assistant professor at Baylor College of
Medicine, concluded in a report that "Mr. Ott's symptoms are directly
related to . . . multiple chemical exposures" -- primarily benzene
-- at Shell in May 1992. A Shell internal report states that on May 1
and May 9, 1992, benzene vapors were detected in and near the control
room of the unit in which Ott worked. Shell maintains that the benzene
levels didn't get high enough, and the vapors didn't stay around long
enough, to pose any danger.
Haufrecht also examined
Lara and found evidence of peripheral neuropathy, damage to nerves in
the extremities that can be caused by solvent exposure. And Dr. Doreen
Sabalesky, a Houston psychiatrist, noted in a report last December that
Lara's symptoms "began in a progressive fashion" after he was
splashed with the solvent polyethylbenzene in January 1993. "Mr.
Lara is gravely disabled at this point in time," she wrote. "Daily
activities are severely restricted by his headaches, nausea, vomiting
and psychotic depression as well as his neurological deficits."
Although Dow minimized
the significance of the polyethylbenzene exposure at Lara's hearing in
October 1993, a company information sheet on the substance says that "excessive
vapor concentrations are attainable and could be hazardous on single exposure.
Signs and symptoms of excessive exposure may be central nervous system
effects."
Robert Lang, the
hearings examiner who heard both the Lara and Ott cases, sided with Dow's
and Shell's insurers -- Planet and CIGNA, respectively.
Severa Lara thought
the turning point of her husband's hearing came when Dr. Stanley Pier,
a retired toxicologist who taught at the UT School of Public Health for
19 years, took the stand for the defense.
"When he got
up there, he was like, "No way. There's nothing wrong with this man,'
" Severa Lara said.
Pier had not examined
Lara. But he concluded, after reviewing narratives by Delclos and other
doctors, that nothing at Dow contributed to Lara's illness.
Pier told the Houston
Chronicle he has limited recollection of Lara. But in any such case, he
said, he does a "really involved, strictly scientific analysis, obviously
using only what data are available. If a person alleged exposure 10 years
ago, there's no way anybody can go in today and measure what the exposure
was."
He said he has testified
for plaintiffs and defendants in comp and toxic tort cases, although more
for defendants. "That is not by choice," he said. "I respond
to requests that are given to me."
AT Ott's hearing
in January, the key medical witness for the defense was Dr. Roy DeHart,
chairman of the Department of Family Medicine at University of Oklahoma
Health Sciences Center. After reviewing other doctors' narratives on Ott
-- including one that mistakenly said Ott's father had died of cancer
-- and listening to testimony at the hearing, DeHart posited that Ott
had no work-related illness.
"He made a
decision about our lives based on something somebody else wrote,"
Rae Ott said. She could not afford medical witnesses to rebut DeHart,
she said.
DeHart said it is
not unusual for him, or any doctor, to render an opinion without actually
seeing a patient. "A parallel would be in the teaching environment
of a medical school," he said. "Many examples we use in teaching
are, in fact, literature cases and not cases you lay your hands on."
DeHart remembers
the Ott hearing. Although there were "divergent opinions" about
the source of Ott's ailment, DeHart said, he determined that "there
was enough evidence in the medical records to strongly suggest" it
was caused by something other than Shell chemicals.
DeHart theorized
that Ott had been unhappy at home or on the job and, as a result, had
amplified symptoms that might have been only a nuisance to someone else.
DeHart said chemical-exposure
cases are difficult. "Someone working in a chemical plant or refinery
is never exposed to a single agent. They're exposed to a variety of agents,"
which can "reinforce one another" to produce baffling effects.
Officials at Dow and Shell would not comment on the Lara and Ott cases.
Both companies have federally mandated medical-surveillance programs for
chemicals such as benzene, as well as voluntary ones.
"I think Shell
does a very good job of controlling chemical exposures here at the facility,"
said Ed Hawthorne, manager of health and safety at Shell-Deer Park. The
plant's medical director, Dr. Edmond Shepper, said such exposures are
"quite infrequent."
Indeed, both Shell
and Dow have reported only a handful of chemical-inhalation cases to the
Occupational Safety and Health Administration in recent years. OSHA relies
on employers to report work-related illnesses and injuries. Although the
agency can inspect company records, it has limited resources, so reporting
is mostly done on an honor system.
Rae Ott believes
that Shell and other petrochemical companies have colluded, with the help
of certain doctors and insurance companies, to suppress the long-term
impacts of chemicals in the workplace.
Shell's corporate
medical director, Dr. Charles Ross, belongs to a group called the Gulf
Coast Medical Directors. The group, composed mainly of Houston-area plant
doctors, meets every two months or so to informally discuss "issues
of common interest," Ross said. Recent topics, he said, have been
benzene and asbestos.
Ross said there
is nothing "collusional" about the meetings. Workers' comp issues
are not discussed in detail, he said, although one of the group's members
is Dr. Robert Conte, medical director of Brown & Root Inc. and Houston
Lighting & Power Co. and chairman of the Workers' Comp Commission's
medical advisory committee. Individual medical cases are never considered,
Ross said.
RAE Ott is unconvinced.
Certainly, her husband's
and Robert Lara's futures appear cloudy. Lara's weight has fallen from
198 to 155, Ott's from 170 to 128. Such weight loss, said Dr. William
Rea, director of the Environmental Health Center in Dallas, is consistent
with excessive solvent exposure.
"I have seen
people die of malnutrition from this," said Rea, who estimates that
his center has treated 10,000 workers in the past 20 years.
Both men once led
active lives: Ott worked out regularly at the gym, rock-climbed and played
tennis, softball and basketball. Lara played the guitar, fished, camped
and played volleyball.
They also were dedicated
employees. Both worked lots of overtime and were rousted from bed at all
hours to help deal with plant crises. Lara received an Employee Recognition
Award from Dow in 1989 and four other commendations between 1986 and 1991.
The Otts and Laras
have seen their incomes fall precipitously in the past two years. Ott
made upwards of $60,000 a year at Shell; he and his wife, then senior
vice president of an oil leasing company, lived in a large house in Nassau
Bay. Lara's base pay at Dow was $18 an hour, and there were weeks when
he cleared $2,000 with overtime.
Neither man would
have gotten rich by prevailing in the comp system. The maximum benefit
is $472 a week for 401 weeks -- or $24,544 a year for 7.7 years.
Lara had planned
to work at least another 10 years, Ott long enough to get through chiropractic
school. Instead, both spend their days helpless and cloistered -- Lara
in his small frame house in Clute and Ott in his one-bedroom Clear Lake
City apartment. Their wives tend to them as if they were sick children.
"I feel like
my whole life is gone in two years," Severa Lara said.
Both couples are
saddled with thousands of dollars in medical bills. Lara receives medical
insurance and a $195-a-month pension from Dow and $1,085 a month in Social
Security disability benefits. Severa Lara supplements the couple's income
by working as Wal-Mart cashier for $4.50 an hour.
The Otts have filed
for bankruptcy and are behind in their rent. They have no medical insurance.
"We have nothing,"
Rae Ott said. She is convinced that if her husband had fallen down and
broken a bone at work, "there's no question he would have been taken
care of" by Shell.
But because Ott
alleged that his illness was caused by chemical exposure, his wife said,
Shell didn't dare admit responsibility, lest it open itself up to other
comp claims and product-liability lawsuits.
AN internal briefing
paper on "environmental illness," prepared four years ago by
the Chemical Manufacturers Association, makes note of increased media,
medical and legal interest in
possible relationships between chemicals and disease and warns of "the
threat of lawsuits.
"Litigants
seeking redress for personal injury allegedly resulting from exposure
to toxic substances are numerous now," the paper says. "Should
environmental illness be recognized by legal or judicial decree, these
suits would only multiply. Toxic torts create special problems for the
defendant in the best of circumstances."
CMA spokesman Jeff
Van said in a prepared statement that "our industry acknowledges
there is a potential that employees can be harmed by exposure to substances
in the workplace." He added that while "most people don't believe
it, ours is a very safe industry."
Warren Levy, a spokesman
for Philadelphia-based CIGNA, Shell's insurer, said that cases of alleged
chemical illness "are obviously a little bit more complicated than,
say, a trauma." However, he said, "if the causal relationship
is established" between exposure at work and a disease, "we
handle it like a trauma" and pay the claim.
But neurologist
Haufrecht said his diagnoses of chemical illnesses are always challenged
by industry and its insurers.
"It's a financial
problem, and a major one, for the chemical companies," he said. "It's
always to the benefit of large companies, which have a great deal of money
at stake, to defend themselves at any cost. In this case it would be at
the cost of human suffering."
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