New England College of Occupational and Volume 2 Issue 6 Environmental Medicine Fall 2002 NECOEM Reporter

SUPREME COURT UNANIMOUSLY REJECTS INSIDE THIS ISSUE:

Direct Threat 1,3,4 LIMITED DEFINITION OF “DIRECT Tony Mazzocchi 1,2,3 THREAT” UNDER EEOC REGULATIONS Ecological Medicine 4,5,6 By Keith H. McCown Ethics 5 State Reports 7 A unanimous the right to stay on the United States Supreme job despite the threat to Web links 8 Court recently ruled in his health.

Chevron U.S.A. v. Echazabal that an em- The ADA pro- Special points of interest: ployer can rely upon hibits workplace dis- NECOEM/MAAOHN medical opinion to bar an crimination against peo- Annual Conference 2002: employee from a particu- ple with disabilities, and lar job that would be requires reasonable ac- Old Problems, New highly likely to damage his commodations rather Problems and the Latest health. The Supreme than exclusions from op- Science Court reversed a federal portunity. However, the December 5 and 6 appeals court, which had ADA has a common where the individual’s dis- said that the Americans sense exception that al- ability “pose[s] a direct Marriott’s Renaissance Hotel, With Disabilities Act be- lows an employer to bar threat to the health or Bedford, MA stowed the employee with an employee from a job (Continued on page 3) Register Now! OBITUARY Featuring: Tony Mazzocchi, 76; • Injury Management, The Spine and Post Surgical Care Workplace Safety Advocate, Political Activist • Latest Scientific Reviews Presented by Faculty from the Harvard School of Public Health, including particu- Tony Mazzocchi, a in the New York bor- cal & Energy Workers late exposure, ergonomics, mold, gene/environment, hormonally longtime advocate for ough of Brooklyn, the (PACE) International Un- active compounds, IAQ vis a vis the workplace safety whose dis- son of a unionized gar- ion and the former Oil, common cold and bioterrorism enchantment with tradi- ment worker who lost Chemical & Atomic • Disaster Preparedness tional politics led him to the family home because Workers Union (OCAW)

• Non-Conventional Therapies: Soft organize the nation's first of medical bills for his for 52 years. He became a Tissue Treatment for CTD’s, Mind- labor party in 70 years, cancer-stricken wife. She member of OCAW in Body, Herbal Medicine died at his home in Wash- died when Mazzocchi 1950 on May Day and as a CME, CEU, CCM, and CM (ABIH) cred- ington, D.C., on October was 6. local union president, he its 5. He was 76 and had pan- Mazzocchi was a negotiated a number of For information, call or email NE- creatic cancer. member of the Paper, firsts, including the first COEM at 978-373-5597 or ne- Mazzocchi grew up Allied-Industrial, Chemi- [email protected] or visit our website (Continued on page 2) www.necoem.org Page 2 Volume 2 Issue 6 dental insurance program ever in treasurer of the Oil, Chemical and Testimonials private industry. "Tony Mazzochi Atomic Workers International Un- was one of the most dedicated ion, Mazzocchi advised its most fa- Rose H. Goldman, MD, MPH: trade unionists I have known," said mous member, Karen Silkwood, I would like to add a few of my com- PACE International President whose struggles to ensure plant safety ments to this wonderful obituary Boyd Young. "There were few peo- and tragic death inspired the 1983 about Tony Mazzocchi. I was one of ple in this world like Tony-he was Oscar-nominated movie "Silkwood." the students mentioned in the article true to his belief and a champion of Silkwood, 28, died in a suspicious who participated in the "innovative whatever cause he chose to under- one-car crash in November 1974. internship program that exposed take. Some of his best work was in She had been contaminated with plu- medical and public health students the area of agitating for national tonium while working at Kerr- to workplace conditions". I spent the health care for every man, woman McGee,a fuel rod processing plant in summer of 1980 working with and child in the United States. To Crescent, Okla. A private investigator OCAW while I was in the Preven- be sure, he was a trailblazer for na- hired by the union after her death tive Medicine (Occupational Health) tional health care and for safe con- found evidence that Silkwood’s car program at HSPH. I worked di- ditions in the workplace. Both might have been forced off the road rectly with two locals (New Jersey, causes will sorely miss Tony's lead- while she was allegedly carrying and upstate New York) who were ership, and the entire labor move- documents confirming her allega- dealing with health and safety con- ment mourns his passing." tions about Kerr-McGee’s safety vio- cerns. I did plant tours with the In 1996, Mazzocchi lations. No documents were ever workers, helped to identify potential brought 1,400 union leaders to a found. Mazzocchi pressed for a for- hazards and associated toxic effects, Cleveland convention hall to form mal government inquiry into the cir- and worked with them to define ap- the Labor Party. Labeled a fool- cumstances surrounding her death, propriate protective measures that hardy idea by union leaders and which was ruled an accident despite they could negotiate for. I also had political analysts, it was conceived unanswered questions that fed specu- a chance to see Tony in action when in an era of waning union strength lation for years. In 1986, 12 years af- he came to our locals to speak with and has fewer than 14,000 mem- ter her fatal car crash, a civil suit company representatives-he was a bers. Although disappointed by the lodged against Kerr-McGee by Silk- tiger promoting health and safety. fledgling party's slow growth, Maz- wood’s estate was settled out of court He also always took the time to edu- zocchi remained committed to its for $1.3 million. The Kerr-McGee cate me personally about the need pro-worker agenda, focused on sin- nuclear fuel plants closed in 1975. to protect workers’ health. I will gle-payer national health insurance, During the 1980s, Mazzocchi drew never forget the experiences of that free higher education and workers' attention to efforts in industry to summer-which gave me a first hand rights. His slogan: "The bosses have make women working around toxic view and appreciation of the work- two parties. We need one of our materials undergo sterilization. Ms. ers' perspective. And the experience own!" magazine cited him in 1982 as one of did not end there. Over the years I With Ralph Nader and the "40 Male Heroes of the Decade" had many opportunities to recon- other activists, he was a key figure for "exposing exclusionary corporate nect with Tony, whether at meetings behind the passage of the Occupa- fetal protection policies' " that re- or over various issues—I was always tional Safety and Health Act in stricted the hiring of women of child- amazed at his untiring energy and 1970, one of the most far-reaching bearing age. devotion to the cause of improving pro-labor laws of the past half- workers’ conditions. He always ex- century. "Over the last 30 years, no- pressed an interest in what I was do- body comes close to him," said ing, and nudged me to stay on the Nader, who praised Mazzocchi's path of protecting workers’ health leadership on the drives to pass and safety. He was self-taught and OSHA, the Natural Gas Pipeline self made-he certainly showed me Safety Act and other major legisla- that not all knowledge and wisdom tion. came from formal schooling. My As former secretary- parents taught me “knowledge is Page 3

power,” but Tony taught me how to physicians to prevent an employee safety — regardless of the accuracy harness knowledge’s power to bring from performing a job that was and reliability of the medical opin- about change. I am grateful that I likely to cause him harm. ion, and regardless of the severity had Tony as one of my most inspir- of the health threat. The Ninth ing teachers. Chevron U.S.A. v. Echaza- Circuit relied on a literal reading bal began when Mario Echazabal of the ADA, which only mentions Glenn Pransky, MD, MoccH: was offered work at a Chevron refin- the threat to “others in the work- I met Tony while in medical ery involving exposure to various place” in describing this defense to school. He was giving a talk (I forget chemicals on a daily basis. In a pre- a discrimination charge. the location) to students and practi- placement physical the company’s tioners in the medical field. He dis- doctor discovered that Echazabal When the case advanced cussed the health and safety issues had asymptomatic, chronic active to the Supreme Court, the justices facing American workers and how hepatitis C. Chevron revoked the unanimously gave short shrift to little medical education or research job offer to Echazabal because of a that literal reading of the ADA. was devoted to these issues. Tony strong risk that he would damage his Chevron U.S.A. v. Echazabal was described in very real terms the liver by working in this facility. decided largely on legal technicali- negative impact of doctors' failure to Echazabal did not take this decision ties – the question of how much recognize occupational disease, or to gratefully — he sued Chevron, alleg- deference any court must give to consider the public health impera- ing the company had discriminated regulations promulgated by a regu- tive to identify groups of workers af- against him on the basis of a disabil- latory body like the EEOC. The fected by similar conditions, and be- ity. Supreme Court found that the come involved in preventing further EEOC’s more liberal regulations injury or illness. He energized all of The EEOC has long ac- were deserving of deference, and us - and our subsequent talks con- knowledged that an employer can that the expansion of the statutory firmed that this was the career that I deny a job to an employee or appli- “direct threat” defense to include wanted to pursue. cant if the person has a disability the individual as well as others was that, in combination with the char- supportable as a matter of law. acteristics of the workplace or of the job in question, would pose a Amidst the legal techni- “direct threat” to the safety of oth- calities was a bit of common sense Direct Threat... ers, or to the safety of the em- statutory interpretation – if the (Continued from page 1) ployee/applicant. In response to ADA were to be applied only in safety of other individuals in the Echazabal’s lawsuit, Chevron as- its most literal sense, then an em- workplace ...” This part of the law serted the “direct threat” defense, ployer could not even bar a dis- creates the so-called “direct threat” and argued that the revocation of abled employee who posed a di- defense to a claim of workplace dis- Echazabal’s job offer was justified. rect threat to customers who were ability discrimination. The United States Court of Appeals not part of the workplace. Justice for the Ninth Circuit (with jurisdic- David Souter, writing for the Many years ago the Equal tion over California and several unanimous Supreme Court, noted Employment Opportunity Commis- other Pacific and Western states) that “... there is no apparent stop- sion took the “direct threat” defense rejected Chevron’s defense and ping point to the argument that by one step further in its regulations, al- found that the revocation of the job specifying a threat-to-others de- lowing an employer to bar an em- offer constituted discrimination fense Congress intended a nega- ployee from a job where the individ- against a disabled person. tive implication about those whose ual’s disability “pose[s] a direct threat safety could be considered ... If to the health or safety of the individ- Setting aside the EEOC’s Typhoid Mary had come under ual or others in the workplace.” That longstanding regulatory stance, the the ADA, would a meat packer regulatory expansion recently became appeals court found that the ADA have been defenseless if Mary had the focus of high level judicial inter- “direct threat” defense did not apply sued after being turned away?” pretation, which for a time called into to the candidate’s own health or question the ability of occupational (Continued on page 4) Page 4 Volume 2 Issue 6

PROBLEM STATEMENT:

Direct Threat... WHY ECOLOGICAL MEDICINE? Ted Schettler MD, MPH (Continued from page 3) Science and Environmental Health Network [email protected] In resolving this question of statutory interpretation, the Su- Medical advances have re- In 1998, Jane Lubchenco, preme Court has ended an alarm- sulted in substantial decreases in outgoing president of the Ameri- ing instability in the relationship morbidity and mortality in many can Association for the Advance- between occupational physician, parts of the world. Some of these ment of Science, urged scientists to employer and employee – who come at considerable economic as rethink their social contract with has the right to decide whether an well as environmental costs, and the public. "Part of our collective employee’s health poses an unac- benefits are not equally distributed. responsibility to society must in- ceptable risk for a particular job? Now medicine and public health clude a scientific community-wide The rejected reasoning of the fed- struggle to address the changing pat- periodic reexamination of our eral appeals court would have al- terns of disease resulting both from goals and alteration of our course, lowed the employee to decide, a rapidly changing and degraded if appropriate," she said. "Despite even against medical opinion. earth and from the ways people live the plethora of reports examining

on it. the future of the scientific enter- The Supreme Court’s In 1977, George Engel, prise, I see the need for a different unanimity was a strong endorse- professor of psychiatry and medi- perspective on how the sciences ment of the EEOC’s regulatory cine at the University of Rochester, can and should advance and also approach, and a rebuke to the published a paper in Science called return benefit to society.” federal appeals court that had de- "The Need for a New Medical Over 6 billion people in- parted so abruptly from settled Model: A Challenge for Biomedi- habit the planet, and reasonable law and expectations. The “direct cine." Engel contended that medi- mid-level estimates predict 9-10 threat” defense has existed for cine was in a crisis that derived billion by mid-century. Two-and-a- many years within the overarching from adherence to an outdated half more "earths" would be needed framework of disability discrimi- model of disease. He developed an to support today's population if nation law, which admonishes argument for a biopsychosocial everyone were to use as many re- against paternalistic stereotyping. model of disease, arguing that ex- sources as Americans do. “Direct threat” has never been an clusion of psychosocial factors dis- Stratospheric ozone deple- easy defense to assert; it succeeds torted perspectives and even inter- tion is the direct result of the re- only where there is definitive fered with patient care. "The lease of ozone-depleting chemicals medical evidence of the threat to boundaries between health and dis- used for various industrial and agri- health, and thus, by its narrow ease, between well and sick, are far cultural purposes. scope, never should involve pater- from clear and never will be clear, Carbon dioxide concentra- nalistic, overprotective decisions, for they are diffused by cultural, so- tion in the atmosphere has in- rules, or policies. The EEOC cial, and psychological considera- creased by nearly 30% in the last would not lightly have issued a tions." 150 years. regulation that freely allowed the Engel's arguments were Human activities are re- very discrimination intended to be revolutionary at the time, but they sponsible for more atmospheric erased by the ADA. have since entered the mainstream. nitrogen fixation than all other

No well-informed physician today sources combined. Nitrates con-

Mr. McCown is a partner at Morgan, Brown & Joy can doubt that psychosocial factors taminate ground water and surface in Boston, a management-side employment and impact a patient's health and re- water, and nitrous oxides the air, at labor law firm representing large and small employ- ers in all segments of the economy. sponse to care. Engel encouraged toxic concentrations. us to consider how the psychosocial Humans are responsible environment impacts human health for more mercury deposition on and to incorporate those factors the surface of the earth than from routinely into medical practice. (Continued on page 5) Page 5 Volume 2 Issue 6

Dean Hashimoto, M.D., J.D. Ethics Column: Reply

In the last ethics column, Dr. Kim tients and with professionals in other cost-effective health care providers Pearson describes a situation in disciplines. At the same time, we un- and safety specialists. Dr. LaDou which the safety officer from a client derstand, uniquely, the importance observes that companies have company calls in anticipation of hav- of patient confidentiality concerning turned away from occupational ing you evaluate one of the com- medical information and the value of medicine physicians and have in- pany’s employees for an injury that providing an independent medical stead relied on alternatives, such occurred at work. In the past, he has assessment. Each of us has devel- as nurses. regailed you with slurs about his com- oped our own special approach to pany’s employees’ character, motiva- handling and communicating with I am, however, an optimist. I think tion, and minimized the mechanism difficult individuals, whether they are that our specialty is still young and of injury in each case. Dr. Pearson patient, human resource officers, will someday serve as an important offers a range of options that include safety officers, or for that matter, fel- model for other medical special- taking the call, ignoring the call, giving low physicians. ties that similarly face increasingly the safety officer a lecture about eth- intense economic pressures, ics, or resigning. A colleague, Dr. Skip Atkins, re- whether it be in the form of man- cently gave me a copy of an article, aged care or disease management Obviously, the correct answer is none entitled “The Rise and Fall of Occu- initiatives. Ultimately, each physi- of these. I think that all of us would pational Medicine in the United cian must try to be both a patient take the call and use it as an opportu- States” by Dr. Joseph LaDou (Am J advocate as well as a “physician for nity to learn about the manner of the Prev Med 2002;22(4):285-295). Dr. the situation” and bear responsibil- injury and discuss whether there is a LaDou makes a strong case for the ity for establishing outcomes ac- way to prevent future similar injuries. preposition that our specialty is dy- ceptable to all. We face more personal and social ing. He argues that occupational conflicts in occupational medicine medicine physicians have failed to compared to other physicians be- establish the value in our specialty cause of our professional need to col- and that, to our detriment, industry laborate with people other than pa- simply hires the most compliant and

(Continued from page 4) amniotic fluid. The toxicity of most severity is sharply increasing other geological sources. Freshwater is unknown. throughout the world and is often and marine fish are sufficiently con- At the same time patterns of of epidemic proportions. taminated with mercury to require human disease are changing Depression and other warnings to women of reproductive throughout the world. To remain mental health disorders are be- age to limit consumption because of focused on increases in life expec- coming new public health threats risks to fetal brain development. tancy and decreasing child mortality in many parts of the world, with Large numbers of plant and in many parts of the world is to miss profound consequences for indi- animal species have been driven to the "essential newness" of environ- viduals, families, and communi- extinction, and most marine fisheries mental change and associated dis- ties. are severely depleted. More than half eases. Nearly 12 million chil- the world's coral reefs are threatened Antibiotic resistance, includ- dren in the US (17%) suffer from by human activities. ing multidrug-resistant tuberculosis, one or more developmental dis- Novel synthetic industrial is increasingly common. abilities. Learning disabilities chemicals contaminate the world's Chronic diseases such as hy- alone affect 5-10% of children in ecosystems, its human and non- pertension, heart disease, and diabe- public schools, and these num- human inhabitants, their breast milk tes are increasing throughout much bers are increasing. Attention and egg yolk, ovarian follicles, and of the world. Asthma prevalence and (Continued on page 6) Page 6 Volume 2 Issue 6

(Continued from page 5) unprecedented global environmental ety. This perspective must be em- deficit hyperactivity disorder affects change, the expanding medical in- bedded in knowledge of changes in at least 3-6% of all school children, dustrial complex has itself contrib- the natural and social worlds, and and the numbers may be considera- uted substantially to environmental the shifting patterns of disease. In- bly higher. The incidence of autism damage through the manufacture, deed, not only must health care is increasing. use, and disposal of an extensive ar- providers and institutions reexam- The age-adjusted incidence ray of materials, including toxic sub- ine their stance in the world, but all of melanoma, lung cancer in women, stances such as mercury, cadmium, individuals and communities would non-Hodgkins lymphoma, and can- solvents, dioxin precursors, cleansing do well to become aware of how cers of the prostate, liver, testis, thy- agents, and pharmaceuticals. Health their wellbeing is connected to roid, kidney, breast, brain, esopha- care institutions use large amounts of other people, other species, and gus, and bladder has increased over water and are second only to manu- the natural world. the past 25 years. facturing in electricity consumption The "essential newness" of In the US, the incidence of per square foot. The exhaust from observations and circumstances some birth defects, including hypo- vehicles traveling to and from medi- calls for a more ecological view of spadias, cryptorchidism, some forms cal facilities adds considerably to re- medicine. Ecological medicine of congenital heart disease, and ob- source depletion and air pollution. would easily shift focus back and structive disorders of the urinary tract Some of these environmental threats forth between the individual and is increasing. are unique to the health-care indus- public health; between nutrition Sperm density is declining in try. and the food chain and agricultural some parts of the US and elsewhere Like other enterprises in- systems. It would consider other in the world. tended to focus on the public good species and biodiversity, soil fertil- Smoking, sun exposure, and in return for public support, medical ity, water cleanliness, forestation, diet explain few of these trends. Ge- and public health practices have at- land use patterns, or any of a num- netic factors explain, at most, about tempted to respond to societal needs ber of other measures of the health half of the population variance for a as they were perceived and articu- of the systems that support life. It few of these conditions and far less lated in the last century. But even by would no doubt understand hu- for the majority of them. Improved prevailing standards, the shortcom- man health by the health of its understanding of development of the ings of the dominant medical model most vulnerable individuals and brain, immune, reproductive, respi- have become apparent. Some forms populations. It would incorporate ratory, and cardiovascular systems of alternative or complementary movement of focus from the indi- and of gene-environmental interac- medical care address these deficien- vidual to larger biotic and social tions leads to the conclusion that cies in substantive ways. A less posi- systems and back again, because other environmental factors contrib- tive result has been a weakening of the health of larger systems affects ute significantly to impairments. In the public health system. The public individuals, and vise versa. laboratory animals, wildlife, and hu- health approach, which emphasizes The challenge is to inte- mans, considerable evidence docu- primary prevention for individuals, grate this ecological perspective ments a link between ambient levels families, and communities, has often into health care and public health of environmental contamination and stood in contrast to and competed practice in ways that demonstrate malignancies, birth defects, repro- unsuccessfully for resources support- understanding of the identifiable ductive success, and impaired behav- ing the biomedical model of treating changes occurring in the natural ior and immune system function. disease. Environmental health is of- and social worlds around us, as we But there is more to the ten narrowly imagined as dealing collectively develop the new social story. During the past 25 years, the with little more than the impacts of contract for medicine. medical-industrial complex has air, water, or food contamination on grown enormously in the US, and it the wellbeing of people. now represents about 12% of the The context for any of these GNP. Its reach into many corners of approaches or practices has funda- our social and political institutions is mentally shifted, and a new perspec- extensive. tive is needed to guide how medicine Ironically, during this time of advances and returns benefit to soci- Page 7

In Massachusetts, The Impartial Unit of the DIA has agreed to increase the rate paid to physicians for impartial examinations from $350 to $450. This change was actively supported by the Senior Judge of the DIA, Daniel J. O'Shea, in recognition of the time and expertise that impartial physicians bring to the process and the value of their examinations. Bill Patterson, MD, MPH, FACOEM Chair, Medical Policy Board OH+R

In Vermont

Vermont passed a compromise drug screen bill. Random and For Cause testing were removed. The 10 day preno- tification rule was removed for post hire testing as well as the requirement that it must be accompanied by a pre- placement physical. Prior to this change last July, all applicants had to have a signed prenotification agreement 10 days prior to the test date. Thus THC was likely to be the only positive.

A Legionnaires' disease outbreak was traced back to a cooling tower at the State Office Complex at the old Waterbury State Hospital Site. A total of 18 cases of Legionnaires' disease were confirmed during the outbreak in- vestigation, which began on August 1. All of these individuals had pneumonia. Two of the cases were classified as sporadic and unrelated to the outbreak. There were no deaths associated with the outbreak and no one remains hos- pitalized. An additional 12 cases of milder illness caused by the same bacterium that causes Legionnaires' disease were also identified in the Waterbury area. More than 180 people with a range of symptoms were tested and found to be negative for Legionnaires' disease. Verne Backus, M.D., M.P.H. Medical Director For more info, see http://www.healthyvermonters.info/ Northwestern Occupational Health http://www.healthyvermonters.info/ St. Albans, VT 05478-9753 New England College of Occupational and Environmental Medicine First Class Mail 22 Mill Street, U.S. Postage Groveland, MA 01834 Paid Haverhill, MA Voice/Fax: 978-373-5597 Email: [email protected] Permit

NECOEM Reporter, Editor: Robert Naparstek, MD NECOEM President: Fred Kohanna, MD,MBA Executive Director: Dianne Plantamura,MSW

NECOEM

"NECOEM is a not -for-profit, regional component society of the American College of Occupational and Environmental Medicine, the pre-eminent organization of occupational and environmental physicians in the United States.

NECOEM has over 200 physician members and is dedicated to preventing and treating occupational injuries Have you visited your website? and illnesses. NECOEM provides continuing medical www.necoem.org education for its physician members in order to enhance You can win an OEM Press book simply by visiting. You can register for the annual conference. You can the care that they provide to read all issues of the NECOEM Reporter.You can learn dates of events and board meetings. You can post men and women in the jobs and you can link to any of the following sites. workplace. NECOEM is an advocate for workplace safety, American College of Occupational and Environmental Medicine occupational health research, Duke University Occ-Env-Med-L raising public awareness of Occenvmed.net links Annual occupational and environmental health issues, guiding public Centers for Disease Control and Prevention Conference policy, and recognizing National Institute for Occupational Safety and Health December 5-6 outstanding achievement by Occupational Safety and Health Administration individuals in occupational and Harvard Education and Research Center for Occupational Health environmental health." Greater Boston Occupational Health Nurses New England Chapter of the American Industrial Hygiene Association Renaissance

The editorial board welcomes State of Maine Workers’ Compensation Board, Department of Labor Hotel, letters to the editor. Write to State of Massachusetts Department of Industrial Accidents, Advisory Council NECOEM at the above address. Bedford, MA State of New Hampshire Department of Labor The editor reserves the right to The editorial Board welcomes State of Rhode Island Workers’ Compensation Court edit letters for publication pur- letters to the editor. Write to State of Vermont Workers’ Compensation Division posesNECOEM at the above address. See page one for details The editor reserves the right to edit letters for publication pur- Physician employment resources: poses Healthecareers, LWW classifieds, Medbulletin, PhysicianWork

Other useful sites submitted: Interfacetec, free electronic w/c forms for all New England states OEM Press, specialty book sales, Beverly Farms, Massachusetts (enter contest here) BWDRG, Biological Weapon Diagnosis and Support Guide