LANCASTER, Pennsylvania — Finding the first bit of evidence that Gene Cooper’s job damaged his brain and destroyed his health was the easy part. That only took his wife four years, eight doctors and at least a dozen tests.
The hard part: Getting his former employer to pay.
Eight years have passed since Sandra Cooper filed a workers’ compensation claim on her husband’s behalf. She prevailed after 4 ½ years of wrangling, when a judge agreed that chemical exposure on the job at a flooring factory was the reason Gene Cooper — a bright father of two with a quirky sense of humor — had transformed into a nursing-home patient who couldn’t speak and sometimes stared into space when his family visited. That was 2012. Sandra Cooper is still trying to get medical bills and lost wages covered today, nearly two years after he died.
The trouble Cooper has had isn’t unusual for this type of case. What’s unusual is that she’s gotten anything out of workers’ compensation at all.
Americans hurt at work have a difficult enough time with the state-by-state system when their injury is so obvious and immediate — such as an amputation — that it can’t be blamed on anything but the job. When it comes to chemically induced illnesses and other job-triggered diseases that creep up over time, according to researchers and the federal agency overseeing occupational safety, workers’ comp rarely works at all.
“It’s not good, and in many ways, it’s gotten worse,” said John F. Burton Jr., a workers’ compensation expert who chaired a national commission on the subject during the Nixon administration.
The difficulty is partly inherent in the diseases themselves. Most that can be triggered by job exposures — from cancers to lung ailments — have other possible causes, too. Genetics. Smoking. Simple bad luck. Workers have to first suspect their job was to blame and then build a case, gathering exposure information, finding medical experts willing to dig for answers. Most people with occupational diseases never file a claim, researchers say.
But state-run workers’ compensation programs have built additional barriers, often at the urging of industry groups.
In most states, proving that there was a workplace exposure, that it is a known trigger of the illness in question and that, in fact, it was as likely as not the cause of the claimant’s problem isn’t sufficient. Claimants must show work was more likely to blame than all possible outside causes their employers suggest. In some states, the burden of proof is even higher.
And at least 11 states, including Pennsylvania, Alabama and Virginia, require most or all sick workers to file claims within several years of their last hazardous exposure, according to a Center for Public Integrity analysis — even though symptoms for a variety of occupational illnesses can take far longer to appear.
The denial rate for disease claims in Ohio and Oregon, rare states that track the outcome of such cases, is three times higher than for injury claims.
The insurance industry points to claimant fraud as a reason for tighter rules, contending that employees and their doctors too often shift costs into workers’ compensation that aren’t due to work. States, employers and insurers “have to be very careful … in terms of guarding access to the system,” said Robert P. Hartwig, president of the industry-supported Insurance Information Institute.
But J. Paul Leigh, a professor of health economics at the University of California, Davis, found major costing-shifting in the other direction. A study he co-wrote in 2004, partially funded with a federal grant and cited in a 2015 report by the Occupational Safety and Health Administration about how the system fails workers, estimated that more than 95 percent of ultimately-fatal occupational diseases are never covered by workers’ comp.
“It was remarkable — unfortunate, actually — the huge disparity between what workers’ compensation paid for and what epidemiological estimates consider are the true deaths attributed to occupational exposure,” Leigh said.
Taxpayers picked up nearly $27 billion in expenses from work injuries and illnesses in 2007 alone through federal programs such as Medicare, Leigh and a co-author estimated in a separate 2012 study. The biggest share of the burden fell on the workers and their families: an estimated $125 billion, or half the cost.
‘What’s the matter with Dad?’
Gene Cooper was 48 the day he struggled home from the flooring plant where he worked in Lancaster, Pennsylvania, coughing and coughing. He told his wife he’d had to help clean up a spill.
That was September 2003. The cough was so persistent that Sandra Cooper made him see a doctor, but soon she had other things to worry about. Her husband — a talented investor who was more than halfway done with a master’s in financial planning — was suddenly having trouble with simple tasks.
“By late October into November, he was mixing up gender, losing proper nouns when he spoke,” Sandra Cooper said. “The kids noticed and kept asking, ‘What’s the matter with Dad? What’s going on?’ Really, by Christmas, he was very confused, going to work the wrong time, getting dates mixed up.”
“I don’t know what’s the matter,” he told her right after Christmas of that year, teary eyed.
Seven months after the spill, he could no longer work. By 2006, he was in a nursing home, not speaking, his family unable to tell whether he recognized them or not. As his body deteriorated and Parkinson’s symptoms set in, he lost the ability to swallow, and that was how he died in 2014 — choking on the aspirated contents of his stomach. It’s an image his wife cannot get out of her head.
The bills to care for him were so massive — hundreds of thousands of dollars’ worth — that they gobbled up his retirement fund, his investments and his Social Security disability payments. Sandra Cooper had to tap their son’s college fund, the inheritance her late mother left her and lines of credit to keep going.
Her initial efforts to find out if work could be the cause of his illness went nowhere. The occupational medicine specialist who saw him in 2005 couldn’t help because Sandra Cooper had no idea what substances were in the spill. Her lawyer did request her husband’s medical and exposure records that year from his employer, Lancaster-based Armstrong World Industries, and came away empty-handed. Armstrong spokeswoman Jennifer Johnson said in an email that the company needed a request in writing and did not get one. Sandra Cooper said the company refused to turn over records at all unless she filed a workers’ compensation claim.
Later, OSHA would cite Armstrong for failing to share exposure information when requested in 2015 — a citation the company called minor and said has been resolved. Lawsuits would be filed, alleging that the company intentionally tossed workers’ records into a Dumpster, a claim the company denies. The coroner, after Gene Cooper’s autopsy, would rule that complications from chemical exposure at work caused his death.
But that was all in the future. At the time, Sandra Cooper had nothing to go on to file a claim. Specialists were still struggling to accurately diagnose her husband’s condition, let alone what triggered it. All that was clear was he had some form of dementia.
Then, a doctor filling out paperwork in late 2007 checked a box indicating that Gene Cooper’s medical problems were caused by work. Sandra Cooper took her first step into the world of workers’ compensation, thinking she would finally get some help.
The system is supposed to be faster, cheaper and less adversarial than a lawsuit. That’s frequently not how it plays out in state systems across the country, especially for illnesses. Nor was that the case for the Coopers.
Armstrong filed for Chapter 11 bankruptcy protection in 2000 after a wave of asbestos lawsuits — it once installed asbestos insulation — but has been out of the bankruptcy courts for nine years now. The publicly traded company, which reported nearly $240 million in operating income last year, contested the Coopers’ claim with all the vim of a civil-suit defense.
The company first contended the request for workers’ compensation came after the statute of limitations had expired. When that didn’t quash the claim, Armstrong put more than a dozen witnesses on the stand to make the case that Gene Cooper had not helped clean up the spill, would rarely have come into contact with chemicals at work and was suffering not from solvent-triggered brain damage but simply a non-occupational instance of early-onset Alzheimer’s disease, according to the workers’ compensation judge’s summary of the case.
Sandra Cooper had to bring her own medical experts in to testify, racking up tens of thousands of dollars in further costs. The four specialists — two neurologists, a neuropsychologist and a toxicologist — all linked her husband’s dementia and Parkinson’s symptoms to solvent exposure, in part by using brain scans to identify the type of damage. Other witnesses spoke about conditions at the plant, including an Armstrong worker who testified that he saw Gene Cooper coming up from the basement where the spill clean-up was in progress.
The judge, detailing all this in a 96-page decision letter, declared the claim compensable. Gene Cooper had indeed been exposed to hazardous chemicals as a result of the spill — which occurred while the area was left unattended so workers could go to a safety fair — and over the course of a three-decade career with Armstrong, mostly as an inspector, wrote Judge Tina Maria Rago. Those chemicals included a carcinogenic and neurotoxic solvent called trichloroethylene. Armstrong “admitted the existence of these chemicals” in the plant after the Coopers’ witnesses testified to it, Rago wrote.
But that 2012 decision was far from the end of it. Though largely upheld by the Pennsylvania workers’ compensation appeal board, the original decision was narrowed by the board’s 2014 finding that the company would not have to pay compensation to Sandra Cooper for the 3 ½ years between her husband’s last day of work and the date she was finally able to file the claim. Until notice was provided, “no compensation was due,” the board ruled.
Meanwhile, a forensic accountant she hired to sift through her records testified in July that $364,000 in out-of-pocket medical expenses for Gene Cooper — from before and after the contested 3 ½-year period — remained unreimbursed. Large amounts of interest and post-claim lost wages also have not been paid, the accountant testified. Sandra Cooper said it was only in August, years after the decision, that she received any reimbursement for medical costs incurred after the claim was filed.
Armstrong’s Johnson wrote in an email that the company, while unable to speak in detail about a pending case, has “fully complied with the workers’ compensation decision addressing Mr. Cooper’s medical bills.” She did not address the issue of wages but said some of the medical expenses are “under review or in dispute.”
“We recognize and respect that an employee who is hurt or harmed in the workplace is entitled to pursue a worker’s compensation claim. However, if the claim is erroneous or unfounded, the employer has the right, and arguably the duty, to contest the claim, which is exactly what we are doing,” Johnson wrote. “For example, with respect to Mr. Cooper we do not believe the medical conditions outlined in his case were caused by chemical exposure in the Armstrong workplace. That matter … is currently under appeal by both parties.”
Safety, including proper handling of chemicals, “informs everything we do and is our number one priority,” Johnson added.
Word of Sandra Cooper’s battle with Armstrong slowly spread. One by one, people approached her — other sick former workers from that flooring plant. Some of them had Parkinson’s, like her husband. Others had cancer, particularly multiple myeloma, a rare bone-marrow condition some studies link to solvent exposure. Sometimes it wasn’t the workers themselves but their survivors who came to her.
None had filed a workers’ compensation claim for those illnesses. A few had only suspected a work connection; for most, the possibility had never crossed their minds. Now it was too late to file a claim: Pennsylvania’s deadline, set in 1972, is a few months shy of six years after the last on-the-job toxic exposure.
Appellate court opinions suggested the purpose of the cutoff was to “prevent stale claims” and “prevent speculation over whether a disease is work-related years after the exposure occurred,” according to the Pennsylvania Department of Labor & Industry.
The former Armstrong workers and their families came to Cooper with the same question: What should they do?
Workers’ compensation developed a century ago in the country, state by state, as an attempt to fix a broken system. Injured employees rarely prevailed in court, because laws at the time immunized companies from liability if the worker contributed to his injury in any way — even by slipping. Employers, meanwhile, had to defend themselves frequently enough — occasionally with big-ticket losses — that they were anxious about costs.
Workers’ compensation was pitched as a “grand bargain”: Injured employees would get medical and wage assistance without having to prove negligence, while employers would not have to pay for pain, suffering or punitive damages.
This new system wasn’t merely an alternative to lawsuits. It was — and remains — a substitute. With rare exceptions, typically in cases involving a clear intent to harm, the only option for people seeking compensation from their employers for on-the-job injuries or illnesses is workers’ comp.
When workers’ compensation systems were first set up in the U.S., the major known risk an employee faced was traumatic injury. Mine explosions. Train derailments. Machinery malfunctions. Hazards were ever-present: Some 23,000 people died in U.S. industrial accidents in 1913.
Now, though, deaths from occupational diseases outnumber fatal work injuries nine to one, according to a 2011 analysis by Leigh, of the University of California, Davis. But workers’ compensation still handles injuries better than illnesses, said Burton, the workers’ comp expert and a professor emeritus at both Rutgers and Cornell University.
The denial rate is markedly higher for disease claims than for injury claims in the few states that track that statistic. In Oregon, for example, 36 percent of disabling-disease claims were denied in 2014, compared with 11 percent of disabling injury claims. In Ohio, disease claims were denied nearly half the time in 2014, compared with just 14 percent of injury claims.
When workers’ comp does pay for an occupational disease, it’s far more likely to be a condition such as tendinitis or carpal tunnel syndrome than potentially deadly illnesses such as cancer, Leigh found in 2004.
Rules written decades ago and never changed are part of the problem. At least 11 states, for instance, set the worker’s deadline to file a claim for most or all diseases based on the time elapsed since the last exposure to the hazard — not when the person was actually diagnosed with the illness. In those states, the window generally closes in one to seven years.
Silicosis, a lung disease triggered by the silica dust that can shroud a badly run construction site, typically takes 10 years or more to develop. Bladder cancer, which can be set in motion by coal tar, metalworking fluids and other workplace toxics, usually appears 15 to 40 years later. Mesothelioma, a cancer caused by asbestos, almost always lies latent for decades. Other such examples abound.
The National Commission on State Workmen’s Compensation Laws said in 1972 — 43 years ago — that deadlines should be set after employees become aware that they have an occupational disease, given the “substantial lag” that can come between exposure and diagnosis. At that point, about half the states didn’t meet that test.
Iowa is one of the states that still don’t. If workers there do not become disabled or die within one year of the last “injurious” exposure, or three years if the hazard causes one of the lung diseases categorized as pneumoconiosis, they’re out of luck. The only exception is for diseases involving radiation, in which case workers are allowed to actually find out that they have a disabling occupational illness before the clock starts ticking.
Paul J. McAndrew Jr., an Iowa lawyer who has represented employees in workers’ compensation cases for 25 years, called the state’s deadline rule “a patent injustice” that requires him to tell very sick people that they have no legal remedy against their former employer. Usually, the people he is able to help file a claim are those still employed at the site that made them ill.
He was part of a brief effort just over a decade ago, when Iowa made changes to workers’ comp, to get the deadline altered. Workers’ advocates proposed to start the clock ticking when the disease is discovered. That idea was immediately batted down, McAndrew said.
“When we negotiated in 2004, the only message coming back from defense side that made any sense at all was, ‘This one is too valuable. We won’t even consider it,’ ” he said. “It’s a well-known cost savings to the insurance industry. That’s what it is.”