JFM Dr Kahn TT report 2023-10-05

JUSTICE FOR MINERS CAMPAIGN NPC

NPC no: 2022/345271/08

www.justiceforminers.org

Press Release from the Justice for Miners Campaign: 9 Oct 2023A Critique of the Tshiamiso Trust by Dr RS Kahn

Dr Kahn has been an Occupational Medicine Practitioner based in Welkomfor over 30 years. He is the medical advisor of the Justice for MinersCampaign.

I have now been assisting claimants of the Tshiamiso Trust [TT] since 2019and feel the need to point out the shortcomings of the organization.

The first problem is that the Tshiamiso Trust is claiming to but in practice notallowing workers to use their Medical Board of Occupational Diseases (MBOD)silicosis certification. This certification of silicosis under the statutorycompensation system should be recognised in line with provisions of theTshiamiso Trust deed that was agreed as part of the out of court settlementof the silicosis and TB class action.

The second problem is the suspect standard of benefit medical examinationsand the work of the Medical Certification Panel plus the Medical ReviewingAuthority who decide whether a worker will receive compensation or not.

The Tshiamiso Trust Trust Deed requires medical practitioners to do thebenefit medical examinations but the Tshiamiso Trust has decided to usenurses despite the fact that the word nurse appears nowhere in the TrustDeed. Nurses are not trained to do an occupational medical history and arenot trained to determine if the quality of the x-ray is of good enough qualityto be read according to the International Labour Organization (ILO)classification system. Furthermore, the nurses are not trained to dospirometry/lung function testing and despite numerous requests for theTshiamiso Trust to at least provide Spirometry Certificates of Competenceto me these have not been provided.

The Medical Certification Panel [MCP] works in secret as the names of thepersons serving on the Panel are denied to the claimants. Furthermore, theMedical Certification Panel (MCP) decline to have a peer review of their work

Justice For Miners board members: Bishop Jo Seoka, Asanda Benya, Ziyanda Manjati, Booi Mohapi, Sinegugu Zukulu, Catherine Meyburgh.

to determine that the x-rays are read in terms of the ILO Guidelines with acopy of the ILO x-ray being put on radiological diagnosis screens forcomparison and reading of the x-ray. Why are the Medical Certification Panelso secretive? Is this because they are finding only 28% of claimants as beingmedically eligible? - which is a low threshold considering that the TshiamisoTrust Deed allows workers with early silicosis to be compensated in contrastto the higher standards required in terms of the Occupational Diseases inMines and Works Act [ODMWA]. Is it because there was no advertisedrecruitment process which is required by the Health Professions Council ofSA?

To date the Medical Bureau for Occupational Diseases [MBOD] is failing toproduce Section 8 figures of how many cases have been compensated andfor what. Why? This means that one has no comparative figures from theMedical Bureau for Occupational Diseases MBOD to compare with the numberof cases being compensated by the Tshiamiso Trust. The Minerals Councilhave placed competent individuals in the Medical Bureau for OccupationalDiseases (MBOD) to chase up the compensation of cases but have noticeablystill not insisted that the MBOD report the numbers of cases to Parliament interms of Section 8 of the Occupational Diseases in Mines and Works Act[ODMWA].

It is claimed that only 2% of cases from the Tshiamiso Trust have appealedtheir finding. It is noticeable that the form given to mostly poor, uneducatedworkers is in English, a language that most claimants do not understand, andthat the document poorly explains that if they are dissatisfied with theTshiamiso Trust findings they can appeal. The appeal mechanism is complexand costly as it requires the worker to approach an occupational medicinepractitioner [OMP], and these are few in the country, and have to pay theOMP for his opinion and pay for a repeat x-ray chest and spirometry.According to the Trust Deed as it now stands, this has to be done within 30days of the date on the notification letter, not the date the claimant receivesthe notification letter. The TT Trustees claim that they want to change the30 days appeal time limit but in 3 years since this issue was first raised withthe Trustees , in December 2019, this has not been done. Their acquiescencetells the story that it suits the Trustees to have the 30 day appeal limit asthen there are only 2% appeals.

It is also a major concern that if one does appeal that the appeal is done bya clandestine body called the Medical Reviewing Authority [MRA]. If the MRArejects the appeal the claimants do not have the money to take the matteron legal review. What is then supposed to happen is that the matter can betaken to the Board of Trustees. Three [3] Trustees, out of seven, are

Justice For Miners board members: Bishop Jo Seoka, Asanda Benya, Ziyanda Manjati, Booi Mohapi, Sinegugu Zukulu, Catherine Meyburgh.

appointed by the settling mines and are usually not sympathetic to appeals.The Chairperson of the Board is paid R0.8m a year, and will be every yearfor 8 years if she continues as chairperson. To date the Board has upheldmost of the Medical Reviewing Authority [MRA] decisions. This is despite onecase having Progressive Massive Fibrosis [the most severe form of silicosis]diagnosed by a specialist physician. This claimant was subsequently found tobe normal/not sick/not entitled to compensation by the Board.

It is clear from what statistics are available that the Tshiamiso Trust is under-compensating. A research report by Dr Barry Kistnasamy et al, who is theCompensation Commissioner for Occupational Diseases, in MiningOccupational Safety and Health Vol. 75 Issue Suppl 2, showed that therewere 33 000 cases of silicosis compensated by the Medical Bureau forOccupational Diseases over the last 30 years. Yet the TT has onlycompensated about 3759 cases of equivalent silicosis cases from 2019 to2023. This means that in 12 years the TT will only compensate 12500 cases,about a third of the actual number of cases compensated by theMBOD/CCOD. Note also that the period for compensation is from 1965, morethan the 30 years mentioned above so there should be even more casescompensated.

Another way to determine how many silicosis cases there are, is to look atthe mandatory reporting of occupational diseases to the Department ofMinerals and Resources. From 2008 to 2014 there were 10 413 cases ofsilicosis reported by the mines over a period of 6 years. The reporting ofcases to the Department of Minerals and Resources is supposed to becompensatable cases i.e. equivalent to Tshiamiso Trusyt class II and classIII. In the 4 years the Tshiamiso Trust has been active only 3759 cases ofclass II and III have been compensated.

Finally, another study by Kistnasamy et al in the Globalization and Health2018 14:60 states: “As of the 31 December 2017 the database, started in1972, contained 111 166 claims that had been compensated (55 864 ofwhich were for permanent lung impairment and another 52 473 for lostearnings to TB).” The permanent lung impairment would be equivalent toTshiamiso Trust class II and class III [Medical Bureau of OccupationalDiseases 1st degree and 2nd degree certification]. The above is far more thanthe pithy 3759 cases compensated by the Tshiamiso Trust in 4 years. This iseven more alarming considering that the life span. Of the Trust is only 12years of which only 8 years remain.

The bottom line is that the Tshiamiso Trust is under compensatingsilicosis cases.

Justice For Miners board members: Bishop Jo Seoka, Asanda Benya, Ziyanda Manjati, Booi Mohapi, Sinegugu Zukulu, Catherine Meyburgh.

Furthermore, the standard to be compensated by the Medical Bureau ofOccupational Diseases [MBOD] in terms of the Occupational Diseases inMines and Works Act [ODMWA] is higher [it is more difficult to getcompensation in terms of the ODMWA than the TT criteria]. But that meansthere should be more Tshiamiso Trust Class One cases than the only 9302so far compensated. The small numbers of Tshiamiso Trust Class One casesare due to the poor quality chest x-rays being produced which prevent thecompensation of cases with ILO 1/1 silicosis. There is no literature showingthat one can upload x-ray images from a Compact Data disc from a far awayplace onto a digital system without losing definition quality. This practice isall the more alarming given that there is a fine line between the ILO 1/0 andthe ILO 1/1 compensation threshold.

The MCP declines to be peer reviewed and have a medical practitioner chosenby Justice for Miners observe how the MCP committees are reading the x-rays and looking at any ancillary medical documentation a claimant mayprovide. (In fact, there is anecdotal evidence that the lodgement centres arerefusing to upload any ancillary medical evidence from the claimant) Whydeny the MCP this extra evidence? The reading of digital x-rays is not beingdone in accordance with the ILO guidelines. Until such time as anindependent expert can confirm that the Tshiamiso Trust is reading digital x-rays in accordance with ILO guidelines claimants compensation rights remaincompromised.

The Medical Reviewing Authority of the Tshiamiso Trust, which is responsiblefor hearing appeals also works in secret thus continuing the legacy of themining companies’ notorious medical surveillance system that wasresponsible for hiding the greatest man made epidemic in history i.e. SouthAfrica’s silicosis epidemic. This secret system is bizarre and an insult to aconstitutional democracy. Apart from not disclosing who made the decision,the Medical Reviewing Authority does not give detailed reasons for therejecting claims. Instead it provides vague reasons such as “no silicosis” or“no respiratory impairment”. This is useless as the Occupational MedicinePractitioner who assesses the declined claimant needs to know what ILOclassification the claimant has been given e.g. ILO 1/1 or 2/1 etc. Further toassess the grounds of rejection she/he requires the actual spirometry resultse.g. FVC=70% of predicted or FEV1 = 45% of predicted etc. One mustquestion, why the secrecy? The Trustees know that the patients cannotafford to take the matter further e.g. to court for a review of the decision.

In Summary: the Tshiamiso Trust refuses to use medical practitioners to dothe benefit medical examinations. Clandestine committees then assess whata nurse sends them, in essence an x-ray and a spirometry result without

Justice For Miners board members: Bishop Jo Seoka, Asanda Benya, Ziyanda Manjati, Booi Mohapi, Sinegugu Zukulu, Catherine Meyburgh.

considering other data such as. job histories, biopsy results, diffusioncapacity results, blood oxygenation results, lung CT scan results etc. If onedoes appeal within the 30 days it goes to another secret committee whichrefuses to give actual detailed reasons for their decision.

It is a no-win situation for the poor miners and makes a mockery of the Courtdecision and the Judge Vally Judgement that “you should err on the side ofpaying rather than not paying”. By paying out as little compensation aspossible the mining companies will avoid having to top up the currentallocation of R5 billion as agreed in the out of court settlement. It pays theMining Industry to prevent the payment of compensation to sick miners. Themining industry is even employing a legal firm to help them minimizepayments they may feel are too generous. For example, if a worker died withILO 3/2 silicosis and this is confirmed by an autopsy finding the legal agentsof the mines agent argue that it does not mean the worker died of silicosis.They wish to deny the deceased worker compensation even though theworker clearly has silicosis. This is not in good faith as was negotiated bythe settlement.

An autopsy diagnosis of silicosis does not imply that the worker had to diefrom silicosis and only section 3.2.2 of the Tshiamiso Trust trust deed statesthat the cause of death has to be silicosis whereas the other sections givepathological criteria and do not state the worker had to die from silicosis nordoes it state that the pathological criteria and death from silicosis arenecessary. The Tshiamiso Trust CEO report from the 2022/3 Annual Report

states: “DECEASED CLAIMS DELAYS For Dependent TB and Silicosis Category Aclaims (i.e. claims in respect of mineworkers deceased before 10 December 2019), theTrust Deed prescribes the qualifying disease (silicosis or work-related TB) must beindicated as the primary cause of death on either an official death certificate or on anabridged death certificate.”

The definition of a deceased silicosis individual/claimant in the Trust Deedstates the worker died with not from silicosis [see definitions no. 1.1.27.1.]before the effective date.

Finally, one needs to determine for whose benefit the Tshiamiso Trustserves, as doctors on the Medical Certification Panels are paid in excess ofR1m a year for a part-time job [R17m per annum divided among 12 medicalpractitioners], the chairperson of the Tshiamiso Trust was paid R0.8m in yearending Feb 2023 [plus R200 000 back pay] and another trustee was paidR400 000 per annum for year ending Feb 2023. Compare these amounts tothe R70 000+, once off [not annually] for the worker with class I silicosis,

Justice For Miners board members: Bishop Jo Seoka, Asanda Benya, Ziyanda Manjati, Booi Mohapi, Sinegugu Zukulu, Catherine Meyburgh.

R150 000 once off [not annually], for class II silicosis and R250 000+ onceoff [not annually] for class III silicosis [a sick person]. The most sick, usuallyterminally ill, are paid R500 000+ [once off] compared to the R6.4m andR3.2m of the mentioned trustees and R8m of a doctor on the MedicalCertification Panel [this is for over 8 years].

What needs to happen is that the Technical Advisory Committee advertisefor medical practitioners with experience in lung disease and silicosis readingand interview them for appointment to the Medical Certification Panel. Thisis a fairer system than Tshiamiso Trust choosing doctors who are apparentlyamenable to the mines as explained above by their under-compensating.

Both the Medical Certification Panel and the Medical Reviewing Authorityneed to be transparent about who is serving on these bodies.

Detailed reasons for rejections must be provided to claimants. Current topdown proclaimations which lead to under compensation are a continuationof the inhumane legacies of mining that continue to deprive miners of theirdignity and compensation rights.

The claimants’ attorneys need to get more involved in all these abovementioned issues as they signed the settlement agreement and thus have aresponsibility to see that claimants and not the mining companies are servedby the out of court settlement that led to the creation of the Tshiamiso Trust.

I hope that urgent attention is paid to the above issues as only 8 yearsremain before the Trust is dissolved.

Dr RS Kahn MB BCh DOH DTM&H (Rand) DGG DGA (Pta) CIME (ABIME)

Occupational Medicine Practitioner and Medical Advisor to the Justice for MinersCampaign.
77 Toronto Rd, St Helena Welkom
rkahn@icon.co.za

Tel: 0827729850

Justice For Miners board members: Bishop Jo Seoka, Asanda Benya, Ziyanda Manjati, Booi Mohapi, Sinegugu Zukulu, Catherine Meyburgh.