(c) 2018 Jon L Gelman, All Rights Reserved.

Thursday, August 30, 2007

MD Fed Court Holds a Fighfighter HAS STANDING to bring a private action under the MSP Act

Firefighter brought action against mayor and city council pursuant to private enforcement provision of Medicare Secondary Payer (MSP) statute, alleging that his exposure to asbestos while working caused his pleural malignant mesothelioma. City moved to dismiss.

"...private citizens may collect double damages by bringing claims against primary payers to recover money owed. Id. § 1395y(b)(3)(A). It is under this latter provision that O'Connor asserts the instant suit."

Motion to Dismiss DeniedO'Connor v. Mayor and City Council of Baltimore494 F.Supp.2d 372 D.Md.,2007.July 19, 2007

Jon Gelman
Wayne NJ

Thursday, August 23, 2007

Drop in California Spending Lowers U.S. Workers' Compensation Benefits and Costs

August 22, 2007

WASHINGTON, DC—U.S. workers’ compensation payments for medical care and cash benefits for workers disabled by workplace injuries or diseases declined in 2005, according to a study released today by the National Academy of Social Insurance (NASI).

The drop in payments in 2005 (the most recent year with data) reflects large declines in California payments, as reforms enacted in 2003 and 2004 took effect. Nationally, workers’ compensation payments for injured workers fell by 1.4 percent to $55.3 billion in 2005. The payments include $26.2 billion to providers of medical care and $29.1 billion in cash wage replacement benefits for injured workers. California payments fell by 12.2 percent; a change made up of a 16.0 percent decline in medical payments and an 8.6 percent decline in cash payments. “The reduced spending for benefits and medical care reflects the initial stages of cost containment measures that were put in place in 2003 and 2004 reforms to the California system,” according to NASI member Christine Baker, who directs the California Commission on Health and Safety and Workers’ Compensation, a nonpartisan labor-management group that advises state policymakers.

Because it is a large state – accounting for nearly 20 percent of national benefit payments in 2005 –California altered national trends. Outside California, total workers’ compensation payments rose by 1.7 percent, an increase driven by a 4.1 percent increase in payments to medical providers. Cash payments to injured workers outside California showed a small decline (0.3 percent).

The costs to employers for workers’ compensation are what they pay each year. For employers who buy insurance, costs are premiums they pay to insurance companies plus benefits they pay under deductible arrangements in their insurance policies. For employers who insure their own workers, costs are the benefits they pay plus administrative costs. In 2005, employers paid a total of $88.8 billion nationwide for workers’ compensation. A sharp drop in California employers’ costs (of 9.8 percent) held down the national increase in employer costs to 2.3 percent. Outside California, employer costs for workers’ compensation rose by 6.5 percent.

The new report tracks trends since 1989 in workers’ compensation benefits and employer costs relative to total wages of workers covered by the program. Relative to wages, cash benefits in 2005 were the lowest in 17 years ($0.56 per $100 of wages). Nationally, total benefits (cash plus medical) and employer costs fell relative to wages in 2005. Cash and medical benefits combined were $1.06 per $100 of covered wages in 2005, a drop of $0.07 from 2004, while employer costs were $1.70 per $100 of wages in 2005, down $0.05 from 2004.

Outside California, benefits per $100 of wages fell by a smaller amount ($0.03) and employer costs per $100 of wages rose slightly (by $0.02). According to John F. Burton, Jr., chair of the panel that oversees the study, “The relative stability of benefits outside the Golden State reflects a rough balance between the declining frequency of workplace injuries and higher expenditures for medical benefits.”

The new report, Workers’ Compensation: Benefits, Coverage and Costs, 2005, is the tenth in a NASI series that provides the only comprehensive national data that covers all types of employers. The study provides estimates of workers’ compensation cash and medical payments for each state, the District of Colombia, and federal programs.

To download the full report, click here.
To download a PDF of this release, click here.

Friday, August 17, 2007

U.S. Department of Labor's OSHA proposes $2.78 million fine against Cintas Corp. following Tulsa, Okla., employee death in industrial dryer

U.S. Department of Labor's OSHA proposes $2.78 million fine against Cintas Corp. following Tulsa, Okla., employee death in industrial dryer Alabama, Arkansas, Ohio and Washington facilities also inspected

U.S. Department of Labor press releaseAugust 17, 2007

WASHINGTON – The U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) today proposed $2.78 million in penalties against Ohio-based Cintas Corp. following an inspection into the March 2007 employee death at the Cintas laundry facility in Tulsa, Okla. The employee was killed when he fell into an operating industrial dryer while clearing a jam of wet laundry on a conveyor that carries the laundry from the washer into the dryer.
Cintas is the largest uniform supplier in North America, with more than 400 facilities employing more than 34,000 people. The facility in Tulsa has 160 employees.
"Plant management at the Cintas Tulsa laundry facility ignored safety and health rules that could have prevented the death of this employee," said Assistant Secretary of Labor for OSHA Edwin G. Foulke Jr.
Forty-two willful, instance-by-instance citations allege violations of the OSHA lockout/tagout standard for the failures to shut down and to lock out power to the equipment before clearing jams, and to train four employees responsible to clear jams that lockout/tagout applies and how to perform the operations. One repeat citation alleges the failure to protect employees from being struck or pinned by the conveyor. Three serious citations allege the failures to protect employees from falls, to have a qualified person inspect the lockout/tagout procedures and to certify the procedures as required.
In a separate case, OSHA today issued five repeat and two serious citations with penalties totaling $117,500 for violations of the lockout/tagout and machine guarding standards found at the Cintas Columbus, Ohio, facility. OSHA also has opened investigations in Arkansas and Alabama. Washington, an OSHA State Plan state, has issued four citations with proposed fines totaling $13,650, alleging violations for similar hazards at the Yakima Cintas facility.
A willful violation is one committed with intentional disregard of the requirements of the Occupational Safety and Health Act or plain indifference to employee safety or health. A serious violation is one that could cause death or serious physical harm to employees, and the employer knew or should have known of the hazard.
Cintas has 15 working days from receipt of the citations to contest the citations and the proposed penalties before the independent Occupational Safety and Health Review Commission.

Saturday, August 11, 2007

NJ Permits Intentional Tort Claim Against Former Employer- PVC Exposure

While denying class action certification for a medical monitoringclass and a punitive damage class, the NJ App Div permitted an INTENTIONAL TORT action against the employer to go forward in a common law civil claim.

This case involved exposure to poly vinyl chloride at a Pantasote, a Paterson NJ plant, causing disease to former workers which is characteristic of Raynaud's phenomenon ( fingers blanch and numbnessand discomfort are experienced upon exposure to the cold), changes inthe bones at the bones at the end of the fingers [Known asacro-osteolysis (AOL)], joint and muscle pain, and scleroderma-likeskin changes (thickening of the skin, deceased elasticity and slightedema).

Inhaled vinyl chloride has been shown to increase the risk of a rareform of liver cancer (angiosarcoma of the liver) in humans. It is classified by the Environmental Protection Agency (EPA) as a Group A, human carcinogen.

Plaintiffs represented by: Jon Gelman (NJ), Ron Simon (DC), Herschel Hobson (TX) and Mark Cuker (PA)

Decision- Buynie v. Airco Co, NJ App Div 2007, Decided August 10, 2007

See related articles:
Misleading Statements Made By Vinyl Chloride Companies Held Valid Basis for Suit

Workplace Poison

Vinyl Chloride Conspiracy Documents: Part 4 (Jun 1974 - Dec 1974)

Vinyl Chloride Plants in New Jersey

Thursday, August 9, 2007

National Census of Fatal Occupational Injuries 2005

A total of 5,702 fatal work injuries were recorded in the United States in 2005, down

about 1 percent from the revised total of 5,764 fatal work injuries recorded in 2004. The rate at

which fatal work injuries occurred in 2005 was 4.0 per 100,000 workers, down slightly from a

rate of 4.1 per 100,000 in 2004.

The Census of Fatal Occupational Injuries has been conducted each year since 1992. The

numbers reported in this release are preliminary and will be updated in April 2007.

Press Release: Aug 10, 2007 - National Census of Fatal Occupational Injuries in 2005

Additional Information:
Census of Fatal Occupational Injuries Summary, 2005

Text version of entire news release

Monday, August 6, 2007

Insurance Industry Again Offers MSP Legislation That Would Discourage Workers' Compensation Periodic Payments

After a failed attempt in the last Congress, the Insurance Industry has again offered similar legislation to encourage "lump sum" settlements in Workers' Compensation hearings, H.R.2549, and circumvent reimbursement of the ailing Medicare program. This legislation failed to gain acceptance in the last Congress as it did not receive the support of interest groups involved in preserving the Medicare system and Labor who continues to support a periodic benenfit system in Workers' Compensation. The proposal would encourage the dismantling of the current Workers' Compensation system in favor of lump sum benenfits. Leading commentators also oppose such legislation.

"In some jurisdictions, the excessive and indiscriminate use of the lump-summing device has reached a point at which it threatens to undermine the real purposes of the compensation system. Since compensation is a segment of a total income insurance system, it ordinarily does its share of the job only if it can be depended on to supply periodic income benefits replacing a portion of lost earnings. If a partially or totally disabled worker gives up these reliable periodic payments in exchange for a large sum of cash immediately in hand, experience has shown that in many cases the lump sum is soon dissipated and the worker is right back where he or she would have been if workers' compensation had never existed."
[8 Larson's Workers' Compensation Law, § 132.07[1] at 132-17 (2006).]