A federal judge has taken under advisement a motion to reconsider his dismissal of a 9-year-old suit brought by three former Hill Air Force Base workers alleging they suffered brain damage from exposure to toxic chemicals.
U.S. District Judge Bruce Jenkins set a Dec. 2 hearing on the motion in the case of Carlos Martinez, James Galetka and Clifford Buckley. Meantime, the judge said, he will study transcripts of hearings conducted in 1979 and 1980.At issue is whether federal attorneys indicated nine years ago that some physical ailments cited by the three men, including brain damage, were covered by the Federal Employment Compensation Act.
It is a case that could have national implications because it challenges how federal officials award compensation for job-related brain damage.
The three men filed suit in August 1979 under the Federal Tort Claims Act, alleging they had been permanently injured by chemicals encountered while working at various maintenance and repair jobs at Hill. All three had left the base on medical retirement.
In 1980, Jenkins dismissed the suit, ruling the men had not exhausted their remedies under FECA. He said no further suits could be filed unless a cause-effect relationship was established between toxic chemical use and their disabilities.
Since then, Martinez was determined to have suffered chemical-related brain damage and was awarded temporary disability compensation from FECA for an indefinite period of time.
In addition to his monthly compensation of about $1,250 - 75 percent of his salary at the time he left the base - Martinez asked for a scheduled award to compensate him for damage to an organ, in this case the brain.
Scheduled awards are one-time, lump-sum payments given to compensate people for permanent loss of arms, legs, eyes or other portions of the body.
But Salt Lake City attorney Richard Dibblee told the court Thursday that U.S. Department of Labor officials recently ruled that damage to the brain, heart or back is not covered by FECA.
To his best recollection, Jenkins said, federal attorneys "told me something different in 1979."
Because the original suit was dismissed on the grounds there was still recourse open to the former base employees, Jenkins noted it is important to study the transcript and see what attorneys really said about what remedies were available to the men.
"If a remedy exists, it can't be illusory," the judge said. "It must be an actual remedy."