Putting the Horse Before the Cart

BusHealth follows legal strategy to improve compensation for job-related ailments

by Jamie Newman

Urban bus drivers know the job is killing them. A driver suddenly stops showing up for work, and Rumor whispers that he suffered a heart attack. Another driver disappears, laid up by back pain or by ulcers, and no one says exactly why.

Now a group of King County drivers calling themselves BusHealth is organizing to stop the harm. The group wants to hold employers accountable for stressful working conditions that damage bus drivers' health. By enabling drivers to recover fair compensation, BusHealth hopes to create a financial incentive for the employer to make the necessary changes in working conditions. BusHealth expects to make use of an Oregon State Supreme Court's decision: after establishing his constitutional right to a civil suit, an injured electrician won $1.2 million that would have otherwise been denied to him under the state Workers Compensation system.

Fifty years of epidemiological research establishes that urban bus driving is one of the unhealthiest occupations. In comparison to individuals in other occupations, urban bus drivers are at greater risk for cardiovascular disease, hypertension, gastrointestinal illnesses and musculoskeletal disorders. In plain language bus drivers have more heart attacks, more ulcers and more back problems. Few drivers make it to retirement age.

BusHealth points to conclusions in the 1998 Journal of Occupational Health Psychology that occupational stress causes elevated disease levels among urban bus drivers.

Constitutional right to compensation

Workers have always had a right under common law to compensation for work-related injuries and illnesses. Before the Workers Compensation system was created, workers who suffered a work-related injury or illness could bring suit against the employer. The Workers Compensation system--essentially a mandatory, no-fault system of insurance--took away workers' right to file a civil suit of action. The jurisdiction of the courts was abolished in favor of "sure and certain relief."

What looks good in theory often disappoints in practice. According to BusHealth, the Workers Compensation system frequently operates to shelter the employer from liability for negligence while providing the worker with inadequate compensation--or sometimes with no compensation whatsoever. Not every illness is deemed "compensable." For example, seldom does Workers Compensation classify occupational diseases as compensable. Although Washington law makes some provision for firefighters who suffer from respiratory disease, employers have not generally been held accountable for working conditions that cause heart disease, gastrointestinal disorders, or musculoskeletal diseases. Under the "exclusive remedy" provision of the Workers Compensation law, workers with occupational diseases have been blocked from filing a civil action.

BusHealth says all that is about to change. The Oregon State Supreme Court decision established Oregon workers' constitutional right to fair compensation. The Oregon constitution guarantees that "every man shall have remedy by the course of law for injury done him in person, property, or reputation." When Workers Compensation denies a remedy to the injured worker, reasoned the court, it is unconstitutional. Since Washington legislators are bound by a similar constitutional provision, BusHealth plans to establish Washington workers' right to fair compensation.