Jiang Tao

Case Brief

Mr. Zhang Haichao is a 28-year-old rural migrant worker in Henan Province, China. He got the occupational lung disease, pneumoconiosis, after he worked in Zhendong Abrasion Proof Material Company from June 2004. In October 2007, shortly after he left the company, he began his long journey among hospitals in Zhengzhou (the capital of Henan Province) and Beijing. Many famous hospitals in Zhengzhou and Beijing confirmed that Mr. Zhang had pneumoconiosis. But these hospitals were not the officially designated occupational disease hospitals (whose diagnosis would be accepted in court for compensation cases), so their conclusions were not valid from a legal point of view. From the beginning of 2009, Zhang Haichao had returned to the Zhengzhou Occupational Disease Prevention and Treatment Institute to apply for their diagnosis. After he struggled for a few months to obtain the required documents from the company, the Zhengzhou Occupational Disease Prevention and Treatment Institute gave its official diagnosis on Mr. Zhang’s disease as being tuberculosis, not pneumoconiosis, on 25 May 2009. Of course, Mr. Zhang could not accept this result. Since he had suffered a lot in the process of seeking the diagnosis, Mr. Zhang could not stand to continue anymore in the long journey. On 22 June 2009, under Mr. Zhang’s demand, the doctor in the First Affiliated Hospital of Zhengzhou University opened Mr. Zhang’s chest and checked his lung directly through surgery. The doctor was later criticized by the authorities for conducting such a surgery in a non-designated hospital – although meanwhile, they also punished the Institute for giving the wrong diagnosis, by sacking the health officials involved. Finally Mr. Zhang’s pneumoconiosis has been confirmed in this extreme and damaging way. He finally received compensation in the amount of 615,000 RMB, and his struggle has inspired other occupational disease victims to form a new NGO for themselves.

The Problems in the System

Requiring the self-incrimination of the employer

According to the Article 11 of the Occupational Disease Diagnosis and Certification Regulation in China, when a worker applies for diagnosis of occupational disease, these following documents are necessary: employment history, the copy of occupational health record, the result of the physical examination for occupational health, the examining report on the factors causing occupational disease in the workplace and other relevant documents. Because the first three of those required documents are kept by the employer, it is difficult for the worker to obtain these documents. In fact, if the occupational disease has been confirmed, it will be adverse for the employer not only due to financial responsibility. As the Articles 52 and 53 of the Chinese Occupational Disease Prevention and Treatment Law provides that whether or not the employer has paid the work-related injury insurance for the worker, the worker has the right to claim compensation from the employer. Also, the fact of the worker’s suffering the occupational disease has a negative impact on other workers.

Since the result is so unfavorable for the employer, the legal requirement that the employer must submit documents to enable the employee to claim compensation from him/her is as difficult to satisfy as asking a tiger for its skin. Though there are provisions about the obligation of the employer to submit the relevant documents for occupational disease diagnosis in the law, there is no enforcement provision if the employer does not submit the documents, nor does the Occupational Disease Diagnosis Institute have any power to coerce the employer to do so. Therefore, it is very difficult for the worker to get these documents from the employer in practice, as Zhang Haichao’s case shows.

Another example of self-incrimination which the law requires but employers are not willing to fulfill, is providing information of the physical check-up result. Article 32 of the Chinese Occupational Disease Prevention and Treatment Law provides that the employer must tell the employee the result of the physical check-up. But if the employee has got an occupational disease, the employer will probably not tell him his result, like in Zhang Haichao’s case. Meanwhile, the hospital who carries out the examinations usually tells the results of physical examination to the employer, not the workers themselves, since the employer pays to the hospital.

Monopoly of the authorization to diagnose occupational disease

Both the Occupational Disease Prevention and Treatment Law and the Occupational Disease Diagnosis and Certification Regulation has provided that only the medical institute which is authorized by the administrative department of public health at the provincial level has the right to carry the diagnosis and treatment of occupational disease. This provision has caused a monopoly of diagnosis and treatment of occupational disease by only certain designated institutes in many areas in China. Furthermore the monopoly results in bad service for the workers who may suffer from occupational hazards because only the diagnosis from those authorized institute is valid in the legal eyes. That is why in Mr. Zhang’s case the Zhengzhou Occupational Disease Prevention and Treatment Institute dared to make a contrary conclusion to challenge many more famous hospitals. Obviously, the confidence of the Zhengzhou Occupational Disease Prevention and Treatment Institute does not come from its professional ability but only from its monopoly status according to the law. This was the direct reason for Mr. Zhang to decide upon the open chest surgery. At the same time, the monopoly of some institutes on the diagnosis is the biggest problem of the legal system on occupational disease, facing the sharpest criticism from the public after the reports of Mr. Zhang’s case.

With the development of the medical market and medical institutes in China, there are many more medical institutes having the professional ability on the diagnosis and treatment of occupational disease than the occupational prevention and treatment institutes authorized by the provincial administrative department of public health. This has been proven in Zhang Haichao’s case. Effective and convenient medical services for workers who have suffered occupational disease could be available by introducing more qualified hospitals and breaking up the monopoly.

The Possibility of Change

Since Mr. Zhang’s case was published, there has been huge debate on his case and the legal system for the prevention and treatment of occupational disease in China. Mr. Zhang and his case became the important work of different government departments from the local to the national. In September 2009, Mr. Zhang got compensation of 615,000 RMB from the Zhendong Abrasion Proof Material Company, his former employer. However, as one famous labour law professor in China predicted, Zhang Haichao’s case has been resolved as a special case in a special way within the bureaucratic system in China without any change to the legal system for occupational disease. Based on the history and practice of some departments dominating in the process of legislation in China, the spokesman of the Ministry of Public Health has commented on Zhang Haichao’s case, insisting that the law and regulations on the diagnosis of occupational disease would not change in a short time. Nevertheless, the central government decided to investigate the whole process and sent investigation teams to various provinces.

Even though Mr. Zhang’s case cannot bring systematic change to the diagnosis and treatment of occupational disease right now, Zhang Haichao’s case is very significant not only for himself but also for more than two hundred million workers who may suffer from the threat and hazard of occupational disease. Mr. Zhang’s case has shown the problem of the diagnosis and treatment system and the plight of the workers to the public. The encouraging aspect for the workers is the improvement in the consultation draft of work-related injury insurance regulations in July 2009.

Meanwhile, similar cases have continued to appear in the public and in media reports. In November 2009, 125 ex-construction workers from Hunan came to Shenzhen who also suffered from the same disease, to petition the authorities for compensation. The Shenzhen labour bureau denied their compensation because of the absence of solid proof of having any labour contract. Being informal and casual daily labourers, it is very difficult for them to gather all the related evidence dated back to 1996.

Cases of workers with occupational disease certainly will not subside, but rather increase in the coming years. Occupational diseases usually have a long latency of 5-10 years. For example, it was discovered that many ex-tatami workers suffered from occupational diseases after working over five years. (See forthcoming report by AMRC, ‘The Current Situation of the Pneumoconiosis Workers and the Prevention of the Occupational Diseases’, [2010].) Now they have been abandoned by their employers and sent back to their home village in Chongqing, with little or no compensation at all. China is now facing a surge of occupational diseases; by 2007 there have been more than 600,000 reported lung-related cases as a result of rapid industrialization and gross negligence of OSH standards. So, the Pandora’s box is being opened.

Conclusion

In short, it is the legal system on occupational disease which needs ‘open chest surgery’ - meaning, strict scrutiny - not the workers who are suffering the occupational diseases.