Pedro (not his real name) has cancer because the company he worked for for nine years, Klein SA, did not protect him against asbestos. It was the 80s and in Spain there was already a lot of documentation and regulations on the risks of this toxic substance and the necessary preventive measures for workers who were exposed to it. The “repeated breach of security measures has been a decisive element in the production of the injury,” warns a magistrate of the Social Court No. 1 of Segovia, who has ordered the company to compensate the former worker with 371,770.67 euros, plus interest, for the damages and losses of the occupational disease caused.
The UGT union, which has defended the affected worker, has celebrated the sentence this Monday, dated April 12 and to which elDiario.es has had access. The ruling can be appealed before the Superior Court of Justice of Castilla y León. elDiario.es has contacted Klein SA, dedicated to the manufacturing of rubber hoses, which has chosen not to make any statements about this case.
The worker “was exposed to asbestos during the provision of services on behalf of the employer, without the proper safety measures having been adopted to avoid risks to the worker’s health,” the ruling states. “He did not receive instructions, training, or protective equipment against asbestos,” adds the text. Pedro has suffered from pleural mesothelioma for years, a type of cancer directly associated with exposure to asbestos, which has caused him a total permanent disability.
Diagnosed in 2017, Pedro’s tumor is caused by exposure to asbestos fibers during his work at Klein SA between 1983 and 1992, where he worked as a production and quality engineer. The latency period between exposure to asbestos and the onset of the disease is “20 to 30 years,” recalls Judge Carolina Otero Bravo in the sentence.
Attempt to blame tobacco
UGT underlines the relevance of this court ruling by recognizing the cause-effect of Pedro’s illness and the lack of occupational prevention by Klein SA, especially for two reasons: that the worker was not formally recognized as a “potentially exposed worker” and that he was a former smoker, circumstances that the company alleged in court to try to avoid its responsibility and, ultimately, to reduce the compensation to the employee.
“The worker developed a plural mesothelioma, diagnosed in 2017, which the Medical Treaties associate directly with exposure to asbestos,” says the magistrate, who points out that it is this occupational exposure to asbestos – without protection against it – that caused Pedro’s illness, “without it being proven that the worker’s smoking habit had an impact on the appearance of the malignant tumor.”
Regarding Pedro’s exposure to asbestos, despite not being part of the production chain, the judge assesses various evidence that testifies to this, such as the tasks performed by the employee given his position, as well as the testimony of two workers in the trial. On the other hand, the magistrate rejects the account of a witness provided by Klein SA, “who flatly denied that the actor lent his work in the factory and only in the office.” Judge Carolina Otero Bravo warns, in addition to “the automaticity of the witness’s responses,” that her testimony “is not at all compatible with the proper functions of the job assigned to the actor, of product quality control, that precisely it is the one that the INSS assessed in the permanent disability file “.
Repeated breaches of protection
The magistrate adds that it is proven that in 1983 it was officially recommended to automate the cutting of cloth and place a localized extraction system in the company. “However, the technical report of the Cabinet of Safety and Hygiene at work in 1985 states that the company has not carried out any of the above recommendations, and it is found that the system did not work at the company KLEIN, SA fiber aspiration, nor had medical examinations been carried out on the workers for six years. ”
In 1987, a technician from the National Institute for Occupational Safety and Hygiene found a concentration of fibers very close to the permissible average concentration, with a potentially exposed job. “It was recommended to extend the suction hose and that the ground on which the cutting machine is installed is smooth,” the ruling picks up.
In April 1989, the Labor Inspectorate opened an infraction certificate after verifying in a visit that the last evaluation of environmental conditions was two years earlier and a long list of non-compliances: “Workers potentially exposed to asbestos are not provided with clothing of adequate work, there is accumulation of remaining asbestos on the floor of the work areas where it is used, no information is provided to the workers or their representatives, no medical examinations have been carried out on the workers, there is no record and data file relating to the evaluation and control of the environment “.
One month after the performance of the Labor Inspection, the company Klein, SA installed a suction system in the cutting of asbestos pipes and a vacuum machine began to be used to clean the residues released in the preparation of the asbestos fabric. . Already, between 89 and 91, the measurement reports of the Office of Safety and Hygiene at work show a result of concentration of asbestos fibers lower than the permissible in relation to current regulations.
From all the foregoing, “it follows that this repeated breach of safety measures has been a decisive element in the production of the injury, that is, the necessary causal relationship between it and the work accident,” the ruling states . The judge recalls that “the employer’s duty to protect is unconditional and practically unlimited.”
Once the responsibility of the company has been determined, the judge agrees the amount of compensation to the worker, in a total of 371,770.67 euros plus interest. “The sentence includes, in the compensation amount, both the contractual fault and the non-material damage caused to the worker due to the loss of quality of life caused by the aftermath,” highlights UGT.