U.S. Fails to Protect Workers in Antarctica

~By Sophia Tewa~

An unusual man, David Pecheco decided at the age of 50 that he wanted to live the rest of his life in the treacherous South Pole, his wife Tina by his side. In October 2003, he took a job as a journeyman plumber and moved to the McMurdo Station in the southernmost tip of Antarctica, the hub of the United States’ scientific research efforts in the region.

The thrill didn’t last long.  On the morning of January 28, 2007, David Pacheco was sent to an empty building to drain and put antifreeze on pipes without knowing that the electricity was still on. When the water slashed out of the pipes, it conducted two lines of 277 volts throughout his body.

He flew 20 feet in the air. For a minute his heartbeat stopped.

“Your brain works but your body doesn’t work and you start shaking like a fish and then you try to get up and you can’t,” he said. “It’s like winning a lottery that I am alive.”

When his supervisors finally arrived, it took them an hour and a half to turn off the electricity.

“I saw them running around with blueprints,” said his wife Tina Pacheco who worked at McMurdo as an administrative assistant. “They couldn’t even figure out where the switch was to turn off the electricity. And then later they blamed David for not turning it off. And that’s just, on so many levels, that’s ridiculous.”

After several years of physical therapy for brain and nerve damage, Pacheco is still not expected to fully recover. Liberty Mutual, Raytheon’s insurance and worker’s compensation carrier, didn’t give total disability compensation and never paid his medical expenses. When he tried to seek compensation, he learned the hard way that American labor laws barely apply in the secluded world of Antarctica.

More than 3,500 Americans live in Antarctica to support scientific research for the National Science Foundation’s United States Antarctic Program. Those brave enough to work during the three months of Antarctic winter in perpetual night, at temperatures sometimes averaging –80 degrees, are called winterovers. They have to pass a special psychological test to prove their ability to bear the constant darkness and confinement. Temperatures are so cold that planes usually can’t land in the winter, leaving winterovers trapped; evacuations are often impossible in those challenging austral winter conditions.

What do you do when nothing works at 80 below zero? It’s the cutoff temperature at the South Pole where equipment that would work on warmer continents suddenly stops functioning, resulting in numerous accidents every year.

There are 27 nations, including India, China, and the United States that send scientists and logistical support to Antartica to conduct research, but none of these countries technically owns the vast, icy land, and so deny jurisdiction over workplace injuries.

The Supreme Court decided that Antarctica was a sovereignless country out of its jurisdiction in 1993 when Sandra Jean Smith lost a wrongful death action in the name of her husband who died in Antarctica.

Hundreds of injuries have occurred in Antarctica since 2001, according to documents obtained under the Freedom of Information Act, but only three cases have been reported to the U.S. Department of Labor. This, despite the fact that Antarctic contract employees are entitled to special insurance benefits under the Defense Base Act laws and contract companies are required to report all injuries to the Department of Labor. But Raytheon Polar Services (RPSC), the company hired to run the U.S. Antarctic program, failed to comply with the law.

The continent’s unclear political status makes it almost impossible for employees to appeal denied worker’s compensation claims and assert their Defense Base Act rights in American courts. They have to pay state and federal taxes but are not considered to be American employees and are not covered by most labor laws.

“We pay the taxes and do not get the rights,” one South Pole worker wrote in an email.  She injured several times working three winters in a row outdoors at South Pole in tempatures that averaged 75 below.

She was on crutches this past season after breaking her ankle after falling face down a flight of metal stairs. Her employer failed to provide her her with the proper equipment, she says.  Her goggles fogged and then froze up in an instant of hitting winter temperatures, she wrote. Her mittens had no grip or traction and fell apart  with little use.

“We are inadequately protected against the elements we deal with. We are not provided with sufficient training or gear to do what we need to do,” she wrote.

In 2008, the National Science Foundation in Antarctica could only retain 60% of its contract employees from the summer season, according to safety and injury reports obtained under a Freedom of Information Act request. Auditors also found out that the  work sites had outdated and unusable equipment.

In 2004, a Massachusetts district held that the Fair Labor Standards Act overtime pay rate is not applicable in a foreign country such as Antarctica. The court based its decision on the 1961 Antarctic Treaty, which specifies that Antarctica is not under the sovereignty of any government.

But the IRS held that Antarctica was not a foreign country for tax purposes. The United States Tax Court ruled against Dave Arnett in 2006, the lead case for 150 RPSC employees who thought they didn’t have to pay taxes since Antarctica was a foreign country.

Raytheon Polar Services found more than one hundred instances of health and safety non-compliance in 2006 after the contractor inspected its facilities, according to safety and injury reports obtained under a Freedom of Information Act request.

Raytheon also found out that the buildings didn’t have enough equipment available. Much of it was outdated and unusable. Research stations are deteriorating from age and use, according to the audit report. For every major injury that occurs, there were 29 minor injuries and 330 near misses or unsafe acts, the reports shows.

Raytheon Polar Services is supposed to follow the federal regulation of the Safety and Health Administration’s federal regulation (OSHA) and reports all OSHA recordable injuries to the National Science Foundation. They can result in restricted or lost work time. Raytheon Polar Services blamed budgets cuts, which caused them to reduce the summer staff from 750 to 670. The report also suggest that injuries are related to less job specific training before the start of the summer season.

Before they leave for the Ice, employees are warned about the medical risks that come with living and working in the coldest of all continents. Most of them work at the three year-round stations of South Pole, McMurdo and Palmer to support scientific research and logistics. During the Antarctic summer, from November to March, the population in Antarctica is at its highest, about 1,000 workers at the McMurdo station and 250 at the Scott-Amundsen South Pole station.

All NSF-Sponsored personnel traveling to Antarctica have to sign a form informing them that “travel to Antarctica imparts certain risks to the traveler, because of harsh environmental conditions encountered, limitations in the medical care available in Antarctica, and difficulties, in emergencies, of providing timely evacuation to tertiary medical care facilities on New Zealand, South America, or in the United States.”

Heavy machinery accidents were numerous with an employee’s left leg run over by a Mattrack, another worker crushed by a heavy flat bed trailer, and an employee injured while driving a bulldozer by the ice pier.

“About any legal opinion will reach the conclusion that workers may be entitled to DBA [Defense Base Act] benefits,” Bruce H. Nicholson, Defense Base Act attorney, said. “But clearer answers require people asserting their rights to compensation and treatment.”

A building commissioned in January 2008 was not up to the OSHA and the National Fire Protection Agency American codes, a South Pole senior safety employee wrote. Fire sprinkler heads were not in the right place, handrails, siderails and toekicks were missing leaving large gaps and exit signs were incorrectly hung.

“They rely on a flux of people that changes so that problems just sort of go away with the next season’s turnover,” she wrote.

In Antarctica, Pacheco saw a lot of accidents go unreported.

RPSC employees only have access to Raytheon doctors and fear that reporting injuries may lead to a reduction of their annual bonuses and affect their chances of being rehired. There is a medical underground of medical technicians and physician assistants that are not employed as such on the Ice but treat injuries when workers fear that it may reflect on their job evaluations, workers said.

Since employees are technically always on their job site, any injury even off-duty or recreational should be covered by RPSC’s insurance carrier Liberty Mutual. But it doesn’t always happen. The average worker’s comp cost per injury is $13,261. Liberty Mutual managed to reduce claims by about $1.2 million in 2002, Raytheon reported.

Liberty Mutual, Raytheon’s insurance and worker’s compensation carrier, never paid Pacheco’s $14,000 New Zealand hospital bill.  In the United States, the Pachecos were left to pay for most of their medical expenses. They’re now $20,000 in debt on credit cards.

“I am in the mercy of Liberty Mutual right now,” Pacheco said.

This is common, Raytheon employees say. “It is easier for Liberty Mutual to deny one of our claims because by the time we contact them we are unemployed, or between contracts,” a worker wrote.  “Liberty Mutual is renowned for and feared by RPSC employees for not accepting worker’s compensation claims for those injuries for which there may be any personal blame.”

Raytheon Polar Services, a subsidiary of defense contractor Raytheon based in Centennial, Colorado, took over the management of American activities in Antarctica in 1999. Last year, the government allocated about $295 million for RPSC to run the U.S. Antarctic Program. Their contract is supposed to end on March 31, 2012 but the contractor hopes to win the next contract bidding by then.

Pacheco said that Jim Scott, the head of McMurdo told him that Raytheon didn’t receive enough funding to update the building to safety standards.  Pacheco feels lucky for receiving any compensation and doesn’t hope he will ever receive full compensation from Raytheon.

“Nobody wants to take the case because it’s out in Colorado, and then it’s another nation, it’s not a territory. It’s nothing,” Pacheco said. “It’s a sweetheart deal in the fine print.”