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Mr. SHAMANSKY. But are you suggesting that you cannot bargain to create your own private--you bargain for the other terms of your contracts. Why can't you bargain for this one?
Mr. SAMUELS. I think that there's a misunderstanding about the ability to deal with problems at the bargaining table. For example, we have been relatively successful in the economic areas.
Mr. SHAMANSKY. Have you tried these other ones?
Mr. SAMUELS. Let me explain what I'm trying to say. Would we have been successful in these economic areas without a minimum wage, with the rights to have unions and so on? Obviously, we need governmental intervention to successfully bargain in this area.
Mr. SHAMANSKY. You can't bargain otherwise?
Mr. SAMUELS. We can't have a union without governmental intervention.
Mr. SHAMANSKY. Excuse me, gentlemen. You heard a bell ring. That's my electronic tether pulling me to the floor of the House of Representatives for a vote. We will adjourn for about 10 or 15 minutes.
I'd like to apologize to all of our witnesses. This is a most unusual day, more unusual than usual, if you know what I mean. We've got the AWACS controversy on the floor involving the executive branch and the legislative branch and down the hall Secretary James Watt is about to be cited for contempt of Congress, a subhistoric occasion but one which nevertheless requires some careful attention. So I apologize and ask the patience and indulgence of our witnesses.
I agree with you, Mr. Samuels, this may well turn out to be the most important issue facing the work force in this coming decade. We have surveyed the potential for use of genetic screening techniques with HLA antigens and a variety of other descriptive markers, and the legal pressures which we will hear described in the case studies that we are about to turn to will also provide a great deal of pressure to use these new genetic screening techniques widely. There are already four laboratories here in the Washington, D.C. area that provide HLA antigen analysis and I'm quite concerned that the legal and ethical problems that we have seen appear in their initial form with respect to health screening are going to become much, much larger issues, and they are not easy issues by any means. It's going to be difficult for our society to deal with them, but you all have helped us tremendously in getting started in that regard.
I'd like to recognize my colleague, Mr. Walker.
Mr. GORE. I'm advised that my colleagues have asked a number of the questions that I had intended to ask. With that, I'd like to again express our thanks to you for getting us started in this endeavor. Thank you very, very much.
I'd like to call our second panel: Dr. Max Rogers, the medical director for the Southern Railroad; and Dr. John Meyers, medical director for the Southern Pacific Railroad; and ask them to come forward to the witness table.
Without objection, we will put the prepared statements of both of our next witnesses into the record at this point. I'd like to welcome you, Dr. Rogers and Dr. Myers, and, Dr. Rogers, you're accompanied by counsel; is that correct?
Dr. ROGERS. That is correct.
Mr. MITCHELL. My name is Wiley Mitchell. I'm general solicitor for the Southern Railway.
Mr. GRANUM. And I'm Jim Granum, special representative for Government Affairs with the Southern Railway Co.
Mr. GORE. I would like to welcome you also and I assume you're appearing here as counsel for the witnesses? Mr. MITCHELL. That's correct.
Mr. GORE. Without objection, as I said, both of your statements will be put into the record in full at this point and we would invite you to proceed with the presentation of all of the statement or a summary if you wish and, Dr. Rogers, we will begin with you. STATEMENT OF MAX ROGERS, CHIEF SURGEON, SOUTHERN
RAILWAY CO., ACCOMPANIED BY WILEY MITCHELL, GENERAL SOLICITOR, AND JAMES GRANUM, SPECIAL REPRESENTATIVE FOR GOVERNMENT AFFAIRS, SOUTHERN RAILWAY CO.
Dr. ROGERS. Thank you, Mr. Chairman. I am Dr. Max P. Rogers, chief surgeon, Southern Railway Co.
I am a medical doctor, a graduate of Duke University School of Medicine. After my internship and residency at Duke, I was in the private practice of surgery for 20 years before joining Southern as chief surgeon in 1966. In that capacity, I am responsible for overseeing the medical programs for more than 21,000 persons employed by the railroad.
Southern operates about 10,500 route-miles of line in 13 States in the Southeast and Midwest. Currently Southern moves about 650 freight trains per day. Railroad work in running trains and building and repairing equipment and structures is hard, physical work, and it is dangerous unless safe work practices are followed by physically and mentally fit employees. Out on the line and in yards and shops heavy equipment must be used in all kinds of weather. Because of the nature of railroad operations, all railroads are very safety conscious. Southern has been a leader in the field of safety. In recent years we have received Harriman awards, trophies given to the railroads with the best safety records.
The safety consciousness at Southern begins with the hiring of a new employee. Over the years we have developed employee recruiting and selection programs designed to attract and hire those persons who are physically able safely to perform the jobs for which they are hired. The more strenuous the job, the more physically fit an employee must be. A clerical worker, for example, need not have the same abilities as a trainman, whose work involves jumping on and off moving trains and lifting and carrying heavy objects.
Mr. Chairman, in order to illustrate the strenuous nature of railroad employment I would like to submit for the record a pamphlet we have prepared at Southern outlining "Safe Work Practices for Railroad Employees.” Safety awareness is an ongoing program at our railroad in order to minimize injuries for our employees. Railroad employees must be physically fit and mentally alert at all times in order to avoid an injury to themselves' or fellow workers.
Our responsibility as an employer extends from hiring the right employee to work the right job to the maintenance of a continuing program of education in order to achieve safety awareness among all employees.
At the hiring stage Southern performs a preemployment physical examination of every applicant who has passed the employment interview. This includes a medical history, physical examination and, in those positions involving substantial physical exertion, the back X-ray. The little booklet on “Safe Work Practices for Railroad Employees" contains photographs showing good safety practices. Those illustrations demonstrate the amount of physical exertion and coordination which is an essential part of safe railroad operations. Moving trains, switching trains, repairing track and other rail structures is hard physical labor. In spite of our best efforts, some employees are injured in performing those tasks. To the extent that we can hire the right person for the right job, we reduce the likelihood that an individual will be physically harmed in performing his job. To the extent that we are successful in teaching all employees safe methods for doing their jobs, we prevent injuries to individuals.
In the late 1960's we began the use of back X-rays as a tool to aid in screening out those employees who had bad backs or backs which would be susceptible to future injury if subjected to the strenuous physical exertion necessary to many railroad jobs. For the record, I have attached to my prepared statement, Mr. Chairman, the pertinent part of a paper I presented in 1973 to the "Conference on Low Back X-Rays in Preemployment Physical Examinations”, sponsored by the American College of Radiology, The American Academy of Orthopedic Surgeons, and the Industrial Medicine Association, under the further sponsorship of NIOSH, explaining our use of the back X-ray as a tool for identifying individuals who would risk injury at a greater rate than normal if employed in certain jobs on the railroad.
I would like to add at this point that the figures given in that paper were those of 1971 and they are understated in terms of present day figures. For example, in 1971, I quoted that the average cost of settling a case of a ruptured intervertebral disc was $32,000. At the present date, 1980-81, this figure is now in the realm of $125,000 to $150,000 and sometimes higher in injury awards.
Unfortunately, the back X-ray is not a perfect measurement for predicting the likelihood of future back injuries. And, I am aware of the disagreement in medical circles about the level of predictability of back injuries that the back X-ray affords. However, when used in conjunction with a physical examination and a complete medical history of an applicant, it is my medical judgment that it provides a good indicator that certain individuals would be exposed to unacceptable levels of risk if they were hired to do certain strenuous jobs on the railroad. Certainly, if intelligently applied, it is a far better predictor than any other test I know of-and it is assuredly better than no screening at all.
I might add, Mr. Chairman, that sometimes an applicant with a congenital back defect learns of his problem only as a result of the back X-ray we have required. For example, the 19-, 20-, or 21-yearold individual with a congenital back defect has not yet begun to experience the degenerative process of aging which would eventually allow the congenital defect to be the cause of marked disability. It is important to discover these congenital difficulties and advise an applicant as to how to take precautions to minimize the risk of future injury in bending, lifting, stooping, or other activities. In such cases, the back X-ray often results in steering an individual to a career, in or out of the railroad industry, where physical demands are less stringent than those in railroad train and engine service, shop jobs, or track or signal construction or repair jobs. Such individuals often change their physical activities outside of the workplace and thereby prevent the onset of a back disability. For some individuals, for example, this may mean substituting fishing for weightlifting or hiking for wrestling.
Railroads such as Southern did not begin the use of back X-rays as a preemployment screen simply on a whim. It was done following years of injury experience in the railroad industry, where even employees following safe practices would suffer back injuries or pain. The human back is always subject to injury when it is misused. The unhealthy human back can be injured when an individual is lifting or otherwise physically exerting himself or herself in a safe manner. All too often, no amount of education or training can prevent the individual with a back predisposed to injury from incurring further injury when he or she undertakes a work task which would carry only a slight risk or none for an individual with a healthy back.
Recognition of this fact led me and many other railway physicians to urge management not to place employees with back impairments in jobs which would require strenuous physical exertion which would be likely to result in a back injury. As businessmen rightfully concerned with the health of employees and the cost of employee injuries my management accepted the need for preemployment screening for physically impaired backs. Personal injury claims represent a substantial cost for any railroad. At Southern, in 1980, $13,539,507 was paid in settlement of employee personal injury claims. In the railroad industry as a whole, more than $343 million was paid for personal injury claims in 1980. On Southern, about 20 to 25 percent of such claims are for back injuries.
The use of back X-rays as one tool for determining whether an individual should be hired for a job requiring strenuous physical exertion in the railroad industry is justified not only because of the nature of some railroad jobs but also based upon the injury experience within the railroad industry. Utilization by Southern of medical histories and physical examinations in conjunction with lowback X-rays, in my judgment, has protected hundreds of individuals from being placed in jobs which they are not physically capable of safely performing. I believe that employers must be given wide latitude in using predictive devices such as back X-rays to screen employment applicants where jobs are dangerous or strenuous, and the health and safety of the potential employee, other
employees, and the public are at risk, as is the case in hiring for railroad jobs.
Screening applicants for jobs on the basis of medical evidence does not involve just the use of the back X-ray. For example, in our industry we rely heavily on color signals in the operation of our trains. Therefore, it is essential that employees involved in the operation of trains should have good color vision. The tests we use are considered to be the best available to determine if an individual's color vision is safe or unsafe. For both the safety of the individual and the safety of other employees we cannot permit an individual who is color unsafe to operate our trains. It has been my experience that there is less criticism of this particular screening tool because of the absolute predictability of color deficiency for those who fail the test. Unfortunately, the degree of predictability for determining back injuries from the use of a medical history, a medical examination, and back X-rays is less perfect. Nevertheless, it is the best available means for making such a determination and I for one do not want to risk the safety of our employees and the public by forgoing medical screening of job applicants until it is as reliable as the test for determining if an individual is color safe.
The science of medicine is advancing by leaps and bounds. I suppose we now know at least twice as much about the human body and disease as we did when I was in medical school. I hope that medical science will develop foolproof systems for predicting which of us will have a particular susceptibility to particular injuries or diseases. Someday genetic screening may be of great value in preemployment selection. But that day is not yet, and Southern therefore does not use genetic screening. When the day comes I think that employees, employers, and society in general will want to minimize the risk to the individual by using such tools to place individuals in occupations where they will not be working at an unacceptable level of risk.
In your letter inviting me to testify one of the questions raised was, “Can or should the workplace be altered to eliminate the risk to these high risk groups?” In the railroad industry we are always striving to improve the workplace to eliminate the risk of accident and injury, but it is unlikely perfect safety could ever be achieved in that way. One limiting factor in safety in my industry is the safety awareness of our employees. Training to inculcate that awareness is the most important means for reducing accidents and injuries. Southern and other railroads are constantly reviewing and changing their practices, procedures, and physical plants in order to minimize the likelihood of accidents. That will continue, but in the final analysis accident prevention through constant safety awareness by employees is the best remedy.
Another question raised in the letter inviting me to testify was whether workers should be permitted to assume the risk involved in a particular job. As you know, Mr. Chairman, in the railroad industry the Federal Employers Liability Act precludes employees assuming the risk even if it were good public policy for them to do so. As a doctor, I am opposed to putting a man or a woman in a job that he or she cannot physically do without running a substantial risk of physical injury.