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Right of reply: Settlement with Assmang is in the interest of all

Published Nov 24, 2008

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The opinion piece, “Spoor's principles may prevent decent settlement” (Business Watch, November 12), reflects badly on me as a lawyer, implying that I am not acting in my clients best interests and it may be a good idea for my clients to get another lawyer.

These insinuations are unjustified and damaging to my professional reputation.

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I act for 30 workers from Assmang's Cato Ridge manganese smelter who show signs and symptoms consistent with manganese poisoning. Exposure to manganese dust and fume can cause severe and irreversible brain damage, a condition known as manganism.

Eighteen were diagnosed to have either possible manganism, probable manganism or confirmed manganism. The diagnoses were made by a panel of medical experts appointed by Assmang that included two neurologists.

Assmang submitted compensation claims to the workmen's compensation commissioner, who has to date approved 10 claims.

The case is the subject of a department of labour enquiry that concluded its hearings on November 14.

Over the past 18 months the National Union of Metalworkers of SA, Solidarity and I have been in discussion with Assmang, seeking agreement on the causes of the epidemic, measures to be put in place at the works to prevent further cases and fair compensation for the affected workers.

Agreement has proven to be elusive. Assmang continues to assert, in the face of overwhelming evidence to the contrary, that there is no problem and that no employee has contracted manganism.

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There is no dispute that many of my clients have been profoundly disabled. Assmang acknowledges that while they may be afflicted by some as yet undetermined medical condition, it is not attributable to manganese.

Subsequent to the original diagnoses, Assmang reconstituted its medical panel to exclude all the medical experts involved in the original diagnoses, and under the guidance of US neurologist Dr Warren Olanow, revised its diagnostic protocol.

(A diagnostic protocol defines the tests and the procedure to be followed to make a specific diagnosis.)

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The new panel, applying the revised diagnostic protocol, re-examined eight of the first 18 cases and promptly reversed the original diagnoses. Out of the 27 cases involving men showing signs and symptoms of manganism the panel found only one "possible" case of manganism.

The panel was not mandated and did not make any alternative diagnoses. The 27 men examined by the panel do therefore still not know the cause of their illness.

On my advice, 10 of the workers, whose claims for compensation had already been accepted by the compensation commissioner, declined to be examined by the new panel.

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While they are not unwilling to be re-examined and re-diagnosed this must be done by a panel of independent professionals agreed by the parties and that the panel should apply a diagnostic protocol that is objective and fair.

Assmang has refused to accede to either of these demands. Evidence led at the department of labour enquiry suggests that the revised diagnostic protocol has been formulated in such a way that it is almost impossible for anyone to be diagnosed to be suffering from manganism.

People with manganism have a movement disorder manifest in range impairments, such as slow speech and movement, loss of balance, tremors and cramps. The revised diagnostic protocol lists seven such signs if even one of those signs is not present then, in terms of the protocol, the patient does not have manganism, regardless of the fact that there is no other more likely explanation for his condition. Many neurologists strongly disagree with that.

The revised diagnostic protocol also pays no regards to psychiatric manifestations of the disease on the spurious basis that such manifestations are not unique to manganism. It has also refused to disclose the revised diagnostic protocol that is being applied by the new panel.

If my clients submitted to re-examination by the new panel applying the revised diagnostic protocol they would almost certainly be found not to be suffering from manganism and would risk forfeiting their workman's compensation pensions and their right to medical care.

There are other reasons to question the objectivity of the revised diagnostic protocol.

Dr Warren Olanow was recently revealed in court papers to have received $2.7 million (R28.5 million at current exchange rates) from the US manganese industry to conduct research and to testify on its behalf in cases brought against it by US workers who have alledged that they contracted manganism as a result of exposure to welding fumes.

In light of my client's refusal to be examined by the new panel, Assmang commissioned a review of my client's medical files to establish if there was any basis to discredit their diagnoses.

The review was carried out by a by a Pretoria-based occupational health practitioner, Dr Murray Coombs. Coombs has a substantial financial interest in companies contracted to provide a range of occupational health services to Assmang.

Coombs is not a neurologist, on his own admission he has never seen a case of manganism, he never examined the patients himself and he never discussed the cases with the neurologists who made the original diagnoses, yet he confidently reported that the 10 men had been misdiagnosed and were not in fact suffering from manganism.

One of the neurologists whose diagnosis Dr Coombs has disparaged is Dr Susan Tager, the head of the Movement Disorder Clinic at the Wits medical school. Dr Tager has extensive experience treating and diagnosing manganism. She testified at the enquiry that she stood by her original diagnoses. His employer, the Mount Sinai University Medical School, is taking disciplinary action against him for his failure to disclose these payments.

In May negotiations collapsed when my clients rejected an offer of payment of R500 000 if they would agree to be examined by the new panel.

Assmang then dismissed my disabled clients from its service and terminated the medical and other benefits that the company had been affording them throughout the negotiations. It also declared that it would no longer respect my clients' right to be represented by a legal representative of their choice and would in future only deal with them directly.

My clients require representation. They have suffered a severe neurological injury, they are seriously ill, a number of them are unsophisticated and illiterate rural people, the issues to be negotiated are complex. And of huge importance to them and their families.

Assmang has sought to deny them this right in order to gain an advantage over them in the negotiations.

Assmang then increased its offer to the ten from R500 000 to R800 000 subject to their signing a settlement agreement and agreeing to be examined by Dr Olanow.

Several of my clients were willing to sign the settlement agreement provided that they were given an opportunity to take my advice on its terms. Assmang refused to let them have a copy of the draft agreement and insisted that they would get a copy only after they had signed it.

In an effort to resolve that problem I wrote to Assmang and suggested that they allow my clients to furnish me with a copy of the draft agreement. I would then furnish my advice in writing to both them and to my clients. If they felt that my advice was bad they could discuss it directly with my clients who would take the final decision for themselves. Again Assmang refused.

Assmang then invited my clients to appoint another lawyer, who would be given the opportunity to read, translate and explain the terms of the draft settlement agreement to them before they signed it. The lawyer would not, however, be permitted to receive a copy of the agreement before it was signed.

My clients refused to accept this and insisted that they would not sign until I had advised them that the agreement was in order. I was unable to give that advice because I have not been able to consider the terms of the agreement.

Assmang then called upon a local tribal chief to prevail upon my clients to sign the agreement. He was told that their ongoing refusal to do so was an obstacle to the creation of new jobs and investment at the Cato Ridge works.

The chief declined to instruct my clients to sign. A few days later Assmang advised that all negotiations were off and that there would be no further discussions around settlement. A settlement remains in both my clients' and Assmang's best interest.

The dispute has soured relations between Assmang its employees and with government; it has delayed their plans for a major capacity upgrade of the smelter, and cost the company millions of rand.

A fair settlement would ensure that my clients will be able to continue to support and maintain their families and that they will receive the medical care and attention they require. Environmental conditions in the workplace remain abysmal and there is the very real prospect that the company will face criminal charges for violations of the Occupational Health and Safety Act.

It is not in my interest to prevent a settlement as Business Report has suggested. I get paid if and when a settlement is achieved. I do have strong opinions on Assmang's conduct to date. I believe that the company's management of the manganese issue has been utterly inept, a text book study on how not to do it.

I believe that Assmang has acted in bad faith, dishonestly and with little regard for principle. These opinions are justified on the facts, if they are challenged I can defend them.

I remain hopeful that a settlement can and will be reached because good sense and common decency demand it and it is in all the parties interest that we do.

During the negotiations Assmang offered a generous contribution towards costs I would have been delighted to accept but unfortunately I could not in good conscience recommend the terms of settlement to my clients.

Richard Spoor is a lawyer specialising in occupational health and the mining sector

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