Miners still waiting for silicosis payout
Two years after landmark settlement, concern trust is moving too slowly
An advocacy group for former miners who have suffered debilitating lung impairment while working on SA’s mines has expressed concern at the slow progress of the trust that is responsible for compensating those affected.
On 10 July, the Justice for Miners Campaign (J4M), which was formed to advocate for miners and ex-miners that have contracted either or both silicosis and tuberculosis while working in SA’s gold mines, published a statement of concern about the state of operation of the Tshiamiso Trust.
The trust was formed after a R5bn settlement in 2018 class action lawsuit. J4M believes that up to 500,000 ex-miners may qualify for compensation administered by the trust.
J4M contends that the trust is moving too slowly in its formation and operations. To date, no ex-miner party to the settlement has received any compensation from the trust.
J4M says the suspension of the lung function tests due to Covid-19 — a measure that is required for an ex-miner to qualify for compensation — will cause “huge delays” in the compensation process.
J4M has proposed that the trust open offices and make use of the paralegals and organisations that were involved in the class action suit.
These organisations have access to scanners, internet and data required to make the system work. They can also double as check points for medical examinations needed to apply for compensation.
In response, the Tshiamiso Trust has defended its progress, saying that while the settlement was made public two years ago, the terms were reached only in late 2019, and that Covid-19 has hampered its ability to discharge its duties.
The trust says that the pilot phase of the compensation process began in late June 2020, and focuses on ex-miners with second stage silicosis. These miners have existing medical records confirming their lung impairment.
Gold miners in SA have been at risk for silicosis, a condition affecting the lungs that develops from exposure to quartz dust, and work-related tuberculosis, which spreads rapidly in the close confines of mines. These lung diseases individually and together can lead to a person suffering impaired breathing, and often early death.
Tshiamiso Trust chairperson Professor May Hermanus said they “fully understand the impatience among prospective beneficiaries, more so since the settlement agreement was made public on 3 May 2018”.
The main delay, according to Hermanus, is that the agreement only became effective on
December 10 2019. The trust was only formally registered in February.
Hermanus said the process of “setting up of the structures of the trust, and the drafting of the policies, procedures and processes, including the recruitment process of staff and service providers, is a huge task. In addition, the database which informs the trust work involves amalgamating data from multiple sources.
“The systems that support the claims process are very complex and detailed with a number of checks and balances.”
J4M has drawn attention to the slow rate at which the trust has been staffed permanently.
The trust is currently using an interim management team.
GroundUp was told that the trust is currently filling four senior posts from over 600 applications received.
Hermanus defended the slow rate of progress, by emphasising that it was not two years, but rather five months that the trust has been able to operate.
“While it may appear that nearly five months is a long time for us to have taken to reach this point, not only has the trust had to undertake much of its work during the Covid-19 pandemic ... but it is essential that the trust’s systems are well-considered, effective and reliable.”
Hermanus said more than 100,000 people have indicated that they intend to submit claims.
Following the Covid-19 crisis, the trust suspended the use of lung function tests (spirometry) due to the heightened risk of Covid-19 transmission. Lung function tests are used to assess the damage to lungs, and in the case of ex-miners under the settlement, are used to determine the level of compensation that they may receive.
The trust’s decision is contentious, but in line with the advice of the South African Thoracic Society (“the representative society for pulmonologists, paediatric pulmonologists, cardiothoracic surgeons and respiratory therapists in SA”), which on 22 April recommended that no lung function tests be conducted during Covid-19. This decision was made to “minimise aerosolisation procedures that may contribute to the spread of the coronavirus”.
Dr Rodney Ehrlich, who has been closely involved with the silicosis case as a medical consultant, said that while he agreed with the decision to suspend spirometry, this did put the trust in a bind. Lung assessment requires a person to empty their lungs into a machine. Many people will use the same machine in any day.
Hermanus said that the trust was focusing its efforts on targeting ex-miners with second degree silicosis during the pilot programme, in part due to the Covid crisis.
These ex-miners will already have MBOD certification, which circumvents the need to use lung function tests. Hermanus said the trust believes that this approach is best in the current climate, “because, firstly, these are the individuals who would be most ill and, secondly, because they will receive the highest level of benefit .
Justice for Miners raised a further concern about”ex-miners who may die during the Covid-19 pandemic. “When a miner dies of Covid-19, their families will not be eligible for payouts as they have not been informed that they can send the lungs of their family members for autopsy — a critical point in deciding on compensation.”
In many mining towns, according to Ehrlich, there is a general understanding among the ex-miners and their families that when an ex-miner dies, the town medical examiner will be instructed to remove the heart and lungs from the body, place the organs in formalin, and send the organs to the National Institute for Occupational Health in Johannesburg, where they will be inspected by the Lung Autopsy Examination Services. These inspections then may be used in the compensation process.
However, many ex-miners are not resident in mining towns. In rural villages, access to medical examiners is limited, and knowledge of the postmortem examination process is less widespread. If an ex-miner dies outside SA, their families face a further barrier if they try to send the organs of deceased relations across borders to the Johannesburg centre.
Hermanus expressed a similar concern, saying that “much more has to be organised with regards to pathology services and the transport of cardiorespiratory organs especially in neighbouring countries. ”