Asbestos payout came too late

In memoriam: Charlie Bruwer died two weeks after securing a high-court decree for compensation for cancer. (Supplied)

In memoriam: Charlie Bruwer died two weeks after securing a high-court decree for compensation for cancer. (Supplied)

A former supervisor at a Richard’s Bay chemical plant, Charlie Bruwer, died on Monday, just two weeks after his successful December high court application to receive workers’ compensation for asbestos-related cancer.

Bruwer contracted mesothelioma – cancer of the lining of the lung – after working at the plant between 1976 and 2002. Part of his job involved overseeing the repair and replacement of gas lines, which were lined with asbestos insulation.

Compensation came too late for Bruwer (72), a state pensioner who could not afford the medical care he needed, which included morphine patches that would have provided more effective pain relief. He died knowing that his wife, Alvera Bruwer (68), would not be left destitute.

His stepson, Julian Fouche, believes Bruwer hung on to life just long enough to ensure that his wife was taken care of financially, despite medical experts predicting that he would be lucky to make it to the end of 2014.

“Not knowing if his claim would be approved was a massive stress for him during his illness.
She was his childhood sweetheart and all they had was their house in Gansbaai,” he said.

Human rights attorney Richard Spoor, who was part of the legal team that represented Bruwer, said many workers with mesothelioma die before their claims are approved because of delays in processing them at the department of labour’s compensation fund.

This makes a difference to the amount of money received by the relatives of claimants in terms of the Compensation for Occupational Injuries and Diseases Act, he said in his court submission.

If the applicant dies before the claim is approved, their widow or relatives are required to launch a new claim with the compensation commissioner, which includes a formal postmortem report proving that the deceased died of mesothelioma.

Spoor told the court the relatives are also not entitled to receive back payments of the claimant’s pension – that would have been calculated from the date of diagnosis if the claimant was still alive at the time the claim was approved.

Court documents estimate that, in Bruwer’s case, compensation would be R20 780 a month from the date of diagnosis. This would amount to more than R300 000 for the 15 months since his diagnosis.

Spoor told the Mail & Guardian: “It is well known that most people with mesothelioma can expect to live about 13 months after diagnosis, so it’s essential that their claims are processed quickly to afford them some quality of life before they die and to take some of the burden off their families.

“Bruwer had a constitutional right to dignity and to prompt and fair administration, which was denied to him.” The compensation fund has been plagued for many years by complaints of delays, failure to pay billions of rands in claims, audit queries and financial misconduct.

Complaints of inefficiency led to an investigation by public protector Thuli Madonsela in 2010. She made a number of recommendations on how to improve the fund’s performance.

Probe halted
In 2013 there was an unsuccessful attempt by the then director general of labour, Nkosinathi Nhleko, now minister of police, to suspend the compensation commissioner, Shadrack Mkhonto. The probe was halted by Labour Minister Mildred Oliphant, who said at the time that there was an ongoing investigation into the fund.

In October last year the compensation fund received its second consecutive audit disclaimer from the auditor general’s office, meaning that the office was unable to rely on the financial information supplied. The office found irregular spending of R139-million and underspending of R3.5-billion.

The compensation fund has not delivered unqualified audits over the past few years, which means the auditor-general’s office has continuously raised concerns about aspects of its financial statements.

Bruwer, whose state pension and two retirement annuities would lapse on his death, knew his wife would not be able to survive on her state pension. They had been living on R2 797 a month at the time of his death. The department of labour and the compensation commission agreed on December 22 to approve Bruwer’s claim, despite being given until January 16 this year to decide how they wished to respond to a Pretoria high court order by Judge Neil Tuchten, who found in Bruwer’s favour.

Bruwer’s effort to get his claim approved had been a rollercoaster ride, starting with his diagnosis in September 2013, as documents submitted to the high court reveal.

He had the support of his former company, Foskor, which bought the Richard’s Bay chemical company where he had been employed, and submitted his claim on his behalf in October 2013.

The application included a site report confirming that there was asbestos at the sulphuric acid and fertiliser plant, and detailed reports by medical experts diagnosing fatal mesothelioma in Bruwer.

In March last year, a nurse employed at Foskor called the commission to check on the status of the application and was told to resubmit all the documentation relating to Bruwer’s case.

Six months later, after hearing nothing further about the claim, she went in person to the Richard’s Bay labour centre where she was told the claim had been approved and Bruwer had been awarded 100% compensation. All that was needed were his banking details, which were supplied the same day.

Claim passed on
But the celebration was short-lived. A month later the money had still not been deposited into his account, and a further query by the nurse saw the claim being passed from the local Richard’s Bay centre to the compensation fund.

In November a candidate attorney, concerned about Bruwer’s deteriorating condition, called the compensation fund call centre. He was told the claim had not yet been approved and it would take six to eight weeks to finalise.

On December 1, the attorney was told by a call centre employee that a new system had been implemented and the claim could now take up to 16 weeks. Spoor then faxed a letter to the director general of the department of labour and the compensation commissioner, giving them seven days to approve Bruwer’s claim or the matter would be taken to the high court.

Spoor described Bruwer as a wonderful man “who never once complained about his condition”. According to Fouche, just two weeks before Bruwer died he had attended a fundraising drive for a hospice.

“Obviously he could only sit, but he gave his support,” Fouche said. “He was a good man who was loved by his community and was thanked by hospice for his efforts to assist them.” Bruwer said in his court application: “During those days there was no general appreciation of the dangers posed by the asbestos and respiratory equipment was not worn.”

Asbestos expert Jim te Water Naudé, the manager of the Asbestos Relief Trust in Cape Town, said in his notes that mesothelioma has a long latency period and “typically manifests between 20 and 50 years after exposure to asbestos”.

The compensation commissioner, who administers the fund, was unable to respond immediately this week at the time of going to print to questions about why it took so long to process Bruwer’s application and that of other claimants.

In a report to Parliament in September last year, the compensation fund said it had implemented a turn-around strategy, which included a new management system, which went live in August to improve performance and supply chain management.

It had also recovered over R84-million of the R518-million lost to financial mismanagement in the 2013 to 2014 financial year.

Correction: The print copy carried on January 9 to January 16 incorrectly referred to Jim te Water Naudé, the manager of the Asbestos Relief Trust in Cape Town, as Johann.

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