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(c) 2014 Jon L Gelman, All Rights Reserved.

Thursday, April 30, 2009

NIOSH Warns Psychological & Social Support Necessary for Influenza Responders

Comparing the 911 Tragedy with a possible Flu Pandemic, NIOSH has issued an alert that Psychological and Social support for essential service workers may be required during an influenza pandemic.

"This document addresses the psychological and social ("psychosocial") needs of essential service workers during a severe2 influenza pandemic. Essential service workers may include health care workers, public health workers, first-responder organizations, and employees of public utilities, sanitation, transportation, and food and medicine supply-chain companies."

Halliburton-KBR Sued For Endangering Military Contractors

A series of lawsuits were filed against military contractors including KBR and its former parent Halliburton for endangering workers and troops by burning mixed trash, ie. plastics and medical waste, in open pits. The alleged exposures occurred in Iraq and Afghanistan.

"Nine new lawsuits allege that KBR, Inc.jeopardized the health and safety of American soldiers and contractors in Iraqand Afghanistan by burning vast quantities of unsorted waste in enormousopen-air burn pits with no safety controls."

According to the complaints, "U.S. soldiers and other residents of the military bases and camps have become seriously ill, been diagnosed withserious and potentially fatal diseases and in some cases have died from thephysical injuries and diseases caused by the exposure to hazardous smoke and fumes."

Cases were filed by Elizabeth M. Burke Burke O'Neil LLC, a litigation boutique specializing in complex and class action litigation.

Diesel Emissions Causing Injury to Workers


Diesel exhaust continues to be a major health hazard for certain workers. The American Lung Association has reported that, "Truck drivers, dockworkers and railroad workers may face higher risk of death from lung cancer and COPD from breathing diesel emissions on the job. Studies found that these workers who inhaled diesel exhaust on the job were much more likely to die from lung cancer, COPD and heart disease."  

Monday, April 27, 2009

CMS Posts Link To Mandatory Reporting Website

CMS has now posted a link to the Section 111 Mandatory Reporting web site. Registration is required.

https://www.section111.cms.hhs.gov/MRA/LoginWarning.action

Homeland Security Takes Lead in Flu Pandemic Pointing to Compensation Programs

The U.S. Department of Homeland Security (USDHS) has emerged as the lead agency in directing a response to the potential swine flu pandemic. The agency is following a well defined plan published in 2005 to respond to the threat in an effort to secure the Nation's critical infrastructure and key resources (CI/KR). The viability of business in the US remains a critical aspect of the plan and the workers' compensation system is critical tool in the implementation of the response.

The threat is defined as serious. "The (1918 Spanish Influenza} epidemic killed, at a very, very conservative estimate, 550,000 Americans in 10 months; that's more Americans than died in combat in all the wars of this century." Alfred W. Crosby, Influenza, 1918, The American Experience.

While pandemics are unpredictable, the USDHS has estimated that the disease attack rate will be 30 percent in the overall population during the pandemic. The agency estimates that an average of 20 percent of working adults will become ill during a community outbreak. Multiple waves of the disease will occur with each lasting 2 or 3 months.

The approach taken by the Federal government will be to assess the threat and direct coordination with the State agencies. A fundamental part of the plan is to provide psychosocial support and meet the informational needs of the workforce and develop contingency plans for absenteeism, especially among health department groups and develop workforce resiliency.

As the situation unfolds, workers' compensation programs will be tasked to new limits. Much is unknown, "...We are telling everyone to prepare for a pandemic. It's tricky....This is scary and we don't know....That's the message." Dick Thompson, World Health Organization. By directing ill workers to appropriate compensation programs, the USDHS has taken the initial steps necessary to respond to changing conditions and rumors.

Friday, April 24, 2009

The Compensability of a Swine Flu Pandemic

The US Centers for Disease Control (CDC) has issued an alert for the spread of human swine flu virus. Employers and employees will now need to be alerted to preparations and the reactions that may occur.

In preparation for a Smallpox epidemic, the US government, several years ago, issued rules concerning illness flowing from the distribution of smallpox vaccine. Now the focus will switch from not only compensable conditions flowing from preparation to compensable and contagious diseases in the workplace.

The federal government established a no-fault program entitled the Smallpox Emergency Personnel Protection Act of 2003 (SEPPA) in an effort to provide benefits and/or compensation to certain individuals, including health-care workers and emergency responders, who are injured as a result of the administration of smallpox countermeasures including the smallpox (vaccinia) vaccine. The Department of Health and Human Services, under rule making authority, established a vaccine injury table and procedural process for filing a request for benefits and/or compensation under the Program.

Already the CDC reported today, "Human cases of swine influenza A (H1N1) virus infection have been identified in the U.S. in San Diego County and Imperial County, California as well as in San Antonio, Texas. Internationally, human cases of swine influenza A (H1N1) virus infection have been identified in Mexico."

The CDC has reported that Swine flu has impacted the US in the past: "Like seasonal flu, swine flu in humans can vary in severity from mild to severe. Between 2005 until January 2009, 12 human cases of swine flu were detected in the U.S. with no deaths occurring. However, swine flu infection can be serious. In September 1988, a previously healthy 32-year-old pregnant woman in Wisconsin was hospitalized for pneumonia after being infected with swine flu and died 8 days later. A swine flu outbreak in Fort Dix, New Jersey occurred in 1976 that caused more than 200 cases with serious illness in several people and one death."

As new cases become suspect, concern will focuss on the spread of the disease in the workplace environment. Over 75 students are being tested in New York City. The Governor of California has issued an alert. As of now the Federal government is directing individuals to their local workers' compensation programs. Since a pandemic could be considered a challenge to Homeland Security, the federalization of prevention, treatment and compensation may ultimately result in expansion of a nationalization of the program.
......
To read more about compensation for the flu click here.

CDC Warns of New Cases of Malignant Mesothelioma

The CDC has issued a warning that new cases of malignant mesothelioma will occur and should be documented by physicians.

"Malignant mesothelioma is a fatal cancer primarily associated with exposure to asbestos. The latency period between first exposure to asbestos and clinical disease usually is 20--40 years (1). Although asbestos is no longer mined in the United States, the mineral is still imported, and a substantial amount of asbestos remaining in buildings eventually will be removed, either during remediation or demolition. Currently, an estimated 1.3 million construction and general industry workers potentially are being exposed to asbestos (2). To characterize mortality attributed to mesothelioma, CDC's National Institute for Occupational Safety and Health (NIOSH) analyzed annual multiple-cause-of-death records for 1999--2005, the most recent years for which complete data are available.* For those years, a total of 18,068 deaths of persons with malignant mesothelioma were reported, increasing from 2,482 deaths in 1999 to 2,704 in 2005, but the annual death rate was stable (14.1 per million in 1999 and 14.0 in 2005). Maintenance, renovation, or demolition activities that might disturb asbestos should be performed with precautions that sufficiently prevent exposures for workers and the public. In addition, physicians should document the occupational history of all suspected and confirmed mesothelioma cases."

"Although asbestos has been eliminated in the manufacture of many products, it is still being imported (approximately 1,730 metric tons in 2007) and used in the United States (3) in various construction and transportation products (6). Ensuring a future decrease in mesothelioma mortality requires meticulous control of exposures to asbestos and other materials that might cause mesothelioma. Recent studies suggest that carbon nanotubes (fiber-shaped nanoparticles), which are increasingly being used in manufacturing (9), might share the carcinogenic mechanism postulated for asbestos and induce mesothelioma (10), underscoring the need for documentation of occupational history in future cases. Capturing occupational history information for mesothelioma cases is important to identify industries and occupations placing workers at risk for this lethal disease."

Thursday, April 23, 2009

Settlement Barring Future Workers' Compensation Claims Void

The Idaho Supreme Court ruled that of a the resolution of a pending workers' compensation for a lump sum dollar value could not act as a bar to future claims. 

Wednesday, April 22, 2009

CMS Issues Announcement on Submitting Rated Age

"Effective immediately [April 21, 2009] , submitted rated ages that do not conform to CMS' standards for acceptable proof of Rated Age, which includes being independent, on the letterhead of an insurance carrier or settlement broker, and includes a statement from the submitter that all rated ages obtained on the claimant have been included, will be priced using actual age and CMS will not consider re-pricing the workers' compensation case using the new or corrected rated age information provided by submitters."

Industry Focuses on AAJ's Effort to Lobby for a Workers' Compensation National Commission

Industry has taken focus on the effort by AAJ's (American Association of Justice [formerly The American Trial Lawyers Association (ATLA (r)]) lobbying effort. Citing support of H.R. 635, a bill to establish a National Commission on State Workers' Compensation Laws, the Manhattan Institutes's blog has taken aim at the topics of speakers: Reinhardt, Galpern and Kohl, who are scheduled to speak at the AAJ annual meeting in San Francisco this summer.

The original 1972 National Commission Workers' Compensation Laws made 19 "essential recommendations." The US Department of Labor in 2004 compared the efforts by States to comply.

Saturday, April 18, 2009

Lead Exposure For Adults Continues as a Major Problem

The US CDC has reported that overexposure to inorganic lead remains a critical health problem.  Lead can cause acute and chronic adverse effects in multiple organ systems, ranging from subclinical changes in function to symptomatic, life-threatening intoxication." 

"Industry subsectors with the highest numbers of lead-exposed workers were manufacturing of storage batteries, mining of lead and zinc ores, and painting and paper hanging. The most common nonoccupational exposures were shooting firearms; remodeling, renovating, or painting; retained bullets (gunshot wounds); and eating food containing lead."

Friday, April 17, 2009

Latex Sensitive RN Terminated from Benefits

A latex sensitive registered nurse was terminated from workers' compensation benefits for failing to "stay attached" to the labor market. While she was awarded benefits at $400 per weeks, her attorneys were unable to offer testimony indicating that was searching for unemployment or sough retraining.

St. John's Hospital, 2009WL 1009621 (N.Y. Workers' Compensation Board 2009) Decided April 6, 2009

Court Holds Traumatic Claims Subject to Apportionment

The NJ Appellate Division ruled that apportionment of responsibility was required in a traumatic claim. They rationalized that in a traumatic, claim where various employments contributed in a material degree to the ultimate disability, apportionment was mandated.

The Court reasoned that traumatic claims did not involve the existence of a disease that was undisclosed and unknown over a long period of time and a retrospective analysis could establish a "triggering date" to fix an onset date.

Matters requiring implementation of the doctrine of last injurious rule involved claims where there was "an insidious etiology" and manifestation occurred over a protracted period of time.

PETER T. NOLAN - v. KLEINKNECHT ELECTRIC CO., INC. Decided April 17, 2009 Unpublished 2009 WL 1011174 (NJ App. Div 2009)

Canadian Government Report Reveals Strong Link Between Lung Cancer and Chrysotile Asbestos Mined in Canada

For more than a year a Canadian news agency, CanWest, sought to have released to the public a report that concludes that "a strong relationship" exists between lung cancer and asbestos mined in Canada. 

Asbestos production is not yet banned in Canada. "....Canada remains one of the world's largest exporters of chrysotile asbestos; last year, more than $100 million worth of chrysotile asbestos was exported to developing countries, mainly India, Indonesia and Thailand."

Texas State Senate Passes Bill Establishing Causation Proof in Mesothelioma Claims

The Texas State Senate has passed legislation that will ease the proof in mesothelioma claims.

The bill establishes a standard requiring that a claimant prove that a defendant's product or conduct was a substantial factor in causing an injury and that the exposed person's cumulative exposure to asbestos fibers was the cause of person's mesothelioma.  


Sec.  90.013.  STANDARD OF CAUSATION FOR CLAIMS INVOLVING MALIGNANT MESOTHELIOMA.  (a)  Requires a claimant, to recover damages for malignant mesothelioma allegedly caused by exposure to asbestos or asbestos containing products, to prove, among other elements of the claim, that a defendant's product or conduct was a substantial factor in causing the claimant's injury.

(b)   Provides that a defendant's product or conduct was a substantial factor in causing the exposed claimant's injury if the claimant presents qualitative proof that the asbestos exposure attributed to the defendant was substantial, and not merely de minimis, when considering the frequency of exposure, the regularity of exposure, and the proximity of the exposed person to the source of the asbestos fibers.

(c)  Requires a defendant who seeks a determination of the percentage of responsibility of another person under Section 33.003(a) (relating to determination of percentage of responsibility of certain persons), to present qualitative proof in the same manner as is required of a claimant under Subsection (b).

 (d)  Provides that neither a claimant nor a defendant seeking a determination under Section 33.003(a) are required to prove numerically the dose, approximate or otherwise, of asbestos fibers to which the claimant was exposed that are attributable to the defendant or another person under Section 33.003(a).

 (e)  Provides that nothing in this section modifies the general legal requirements for the admissibility of expert testimony with respect to the issue of causation.

Thursday, April 16, 2009

Major Players The Rush to Sell More Coverage

A group of the big three workers' compensation carriers (Travelers, Zurich & CNA) is now rushing to sell discounted workers' compensation coverage in Louisiana. 

“Right now it’s a profitable bit of business, so companies are getting aggressive,” said Jeff Nohr, owner of a Louisiana insurance agency.

Wednesday, April 15, 2009

CMS Is Requesting for Comments on Mandatory Reporting

As the deadline for implementation nears, The Centers for Medicare & Medicaid Services (CMS) has made a request for more comments on the implementation of mandatory reporting under Section 111 of the Medicare, Medicaid, and SCHIP Extension Act of 2007 (See 42 U.S.C. 1395y(b)(7)&(b)(8)).

Tuesday, April 14, 2009

Failures at OSHA Put Workers at Risk

A recently released report from the US Department of Labor reports that the past failures of OSHA under the Bush Administration placed workers at risk. The Labor Department's Office of Inspector General released a repot on March 31, 2009 indicating that failure in inspection, training and enforcement led to the unnecessary deaths of workers.

Injured Workers Without Lawyers - A New Concern

A major decline in the participation of attorneys in workers' compensation claims has accelerated what is already a declining spiral in representation of injured workers. This downward swing, in a formerly recession proof industry, raises the concerns as to whether injured workers are now receiving adequate legal guidance.

Attorneys are joining the unemployment ranks in huge numbers. Last week marked the 10,000th attorney laid off from the major law firms in the last 15 months. The US government reports that over 20,000 lawyers are now unemployed. Sadden Arps announced an offer to it entire associate staff to take a year off at one-third pay. The incentive was valued at an average of $80,000.

The workers' compensation system nationally has been impacted by multiple facts that has accelerated an ongoing decline in the representation of injured workers. State systems have been dismantled, co-ordination of benefit issues and medical reimbursement issue have slowed the system and created a reluctancy in filing of claims. Economic issues exist as to whether costs exceed recovery to make claims viable to handle. Uncertainty exists as whether the claims and the demand for representation will bounce back.

The resulting problem is that injured workers will lack adequate formal representation. Injured workers without lawyers raises new concerns that will need to be addressed.




Asbestos Related Diseases Reflecting a Slight Decline

Asbestosis: Number of deaths, crude and age-adjusted death rates, U.S. residents age 15 and over, 1968–2005

Asbestosis deaths among U.S. residents age 15 and over have increased from 78 in 1968 to 1,493 in 2000 and then decreased slightly to 1,470 in 2004. (Ref. No. 2007F01-01, 2007T01-01). Data from the Occupational Safety and Health Administration (OSHA) and the Mine Safety and Health Administration (MSHA) indicate a trend towards lower asbestos exposure levels from 1979 to 1999, concomitant with mandated reductions in the OSHA permissible exposure limit (PEL). However, data indicate a steady increase in asbestos exposure levels in the mining industry for the years 2000 through 2003 and a slight rise in all other industries in the two years previous to 2003. (Ref. No. 2007F01-05, 2007T01-12).

Residents of California, Florida, New Jersey, New York, Pennsylvania, Texas, Virginia, and Washington together accounted for nearly half of all asbestosis deaths in the 1995 to 2004 period. (Ref. No. 2007T01-04).

There were over 15,000 malignant mesothelioma deaths among U.S. residents age 15 and over accounting for more than 200,000 years of potential life lost to life expectancy in the 1999–2004 period. (Ref. No. 2007T07-01, 2007T07-03). For 1999–2004, nearly 20% of mesothelioma decedents were female. (Ref. No. 2007T07-01). Occupations associated with significantly elevated mesothelioma mortality in 1999 include plumbers, pipefitters, and steamfitters; mechanical engineers; electricians; and elementary school teachers. (Ref. No. 2007T07-09).

The Work-Related Lung Disease (WoRLD) Surveillance System, produced by the National Institute for Occupational Safety and Health (NIOSH), presents up-to-date summary tables, graphs, and figures of occupationally-related respiratory disease surveillance data on the pneumoconioses, occupational asthma and other airways diseases, and several other respiratory conditions. For many of these diseases, selected data on related exposures are also presented.

Friday, April 10, 2009

Raptiva® Withdrawn From Market for High Risk of Fatal Brain Disease


Raptiva® users who have experienced neurological changes including unusual weakness, loss of coordination and changes in vision may have claims against the manufacturer, Genentech.

On April 8, 2009, the drug manufacturer Genentech announced a phased withdrawal of the psoriasis drug Raptiva® (efalizumab) from the U.S. market.

Since October 2008, Raptiva® has been associated with a higher risk for progressive multifocal leukoencephalopathy (PML), a rare, and often fatal neurologic viral disease that affects the central nervous system. The associations between Raptiva® and PML are generally associated with individuals with weakened immune systems.

Symptoms of PML may include:
-Unusual weakness
-Loss of coordination
-Changes in vision
-Difficulty speaking
-Personality changes
-Other neurological changes
-Death

There are no known effective therapeutic options for PML, and no known screening tests that can reliably predict PML. The PML infection often leads to an irreversible decline in neurologic and brain function and death. People who live with PML are severely disabled.

The product withdrawal plans to remove Raptiva® by June 8, 2009. According to the FDA, prescribers should not initiate new Raptiva® treatment.. The phased withdrawal is designed to allow patients time to find other effective treatments for psoriasis so as to avoid severe worsening of the condition or hospitalization.

History of Raptiva®
Raptiva® was approved by the FDA in 2003. It is a once-weekly injection for adults with moderate to severe plaque psoriasis.

Genentech began receiving reports of PML among Raptiva® users as early as September 2008. On October 16, 2008, the Raptiva® label was updated to warn of the risk of life-threatening infections, including PML. A Public Health Advisoryinforming patients and prescribers of the risk of PML in patients taking Raptiva® was issued in February 2009, after four patients developed PML, three of whom died. On March 13, 2009, the FDA approved a Medication Guide for Raptiva® and included additional information in the drug's labeling regarding PML.

Further Information
FDA Notice Withdrawal 4/8/2009

FDA Labeling Notice Updated 10/20/2008

FDA Public Health Advisory 2/19/2009

Expanding the Long Arm of CMS

Legislation has been introduced in Congress to phase out the waiting period for Medicare over the next 10 years from 24 months to zero. Under the proposal, "......[i]n 2010, it would be reduced to 18 months and then reduced by 2 months each year until January 2019, when it would be totally eliminated."

Such an expansion would expand the involvement of CMS's roll in the workers' compensation program under the Medicare Secondary Payor Act to seek reimbursement.

Thursday, April 9, 2009

Medical Bills of Smokers Reported to be Less Than Expected

It has been recently reported that smokers may actually cost society less for medical treatment than non-smokers. The CDC has reported that since smokers die on the average 10 years earlier, their medical costs are actually less to society that non-smokers.

Wednesday, April 8, 2009

Jordan Barab Named Acting OSHA Chief

Jordan Barab has been named Deputy Assistant Secretary for OSHA and Acting Assistant Secretary effective April 13, 2009. Barab has been an outstanding spokesperson for injured workers and was author of the well known and influential blog Confined Space. Internationally recognized as a stronger advocate for worker safety, his incredible advocacy for a safer work environment has been a hallmark of leadership. 

Peg Seminario, the AFL-CIO’s director for safety and health, says Barab is an “excellent choice” for OSHA deputy assistant secretary. 

He has decades of experience in safety and health working in the labor movement, at OSHA and in the House of Representatives on a broad range of issues. He has a deep commitment and dedication to protecting workers and will bring to OSHA the kind of energy and leadership that is sorely needed to move the agency in a new direction.

CMS Workers' Compensation Mandatory Reporting Teleconference Thursday April 9, 2009

Teleconference Event for Mandatory Reporting for
Liability Insurance (including Self-Insurance), No-Fault Insurance and Workers’ Compensation

Date: April 9, 2009
Time: 1:00 PM – 3:00 PM Eastern Time
Participation is by telephone only. (The Centers for Medicare & Medicaid Services (CMS) will not have space for individuals/entities to participate onsite at CMS).

Call-in Line: 800 779 4354
Pass Code: SECTION 111

Please begin dialing in approximately 20-30 minutes before the call due to the large number of participants.

Click here for Notice and Agenda

AIG Workers' Compensation Under Investigation Again

American International Group Inc. (AIG) is reportedly now under investigation by the insurance regulators of 50 states who are reviewing whether the company violated rate setting rules. AIG in 2006 agreed to a payment of $300 Million in a Federal law suit for mistaking premiums. The company has also been the subject to multiple Federal bailout attempts.

Tuesday, April 7, 2009

Candy Makers Found to Have Popcorn Lung - Flavoring Illness

It has been reported by, Andrew Schneider, investigative reporter, that severe cases of "popcorn lung" caused by exposure to diacetyl butter are now being reported in candy makers as well. Five cases of severe lung disease have been identified by physicians. Those cases involved workers who made candy.

NJ Issues a Procedural Alert for Medicare Elligible Petitioners

The New Jersey Division of Workers' Compensation has issued a procedural alert to attorneys handling claims of Medicare Elligible Petitioners. Peter J. Calderone, Director and Chief Judge of the NJ agency issued a Memorandum in an effort to establish a formalized and smooth transition with the integration of the mandatory reporting requirements to be initiated this year by The Centers for Medicare and Medicaid Services (CMS).

1. "...parties should not send unsigned settlements to CMS";

2. "...settlements signed by a judge which are not based on a transcribed court record would violate our law since judges must find a settled case resolution fair and just on the court record presented";

3. "Up to date Medicare information must be obtained prior to the entry of a signed workers' compensation order that needs final CMS approval";

4. "When a case is settled, the parties can agree on language in the settlement that a party, usually the petitioner, will be responsible for any additional CMS reimbursements. The petitioner is generally identified since only the petitioner can petition CMS for a waiver from additional payments on hardship or equity grounds. We are advised that such waivers when supported are most often granted;" and

5. "As an alternative, the parties can agree in Orders Approving Settlements (but not Section 20 Orders [lump sum payments in lieu of compensation]) and the judge can insert language in judgments that the parties have the right to reopen the case ifthere are additional Medicare reimbursements and a dispute as to which party is responsible for the payment."

The memorandum goes on to caution the parties that if the parties and the Court are uable to agree upon settlement terms, then a trial and judicial resolution will be required.

Domer on Wisconsin Workers' Compensation Law Published

Thomas and Charles Domer have authored an exhaustive and authoritative analysis of Wisconsin Workers' Compensation Law. Their volume provides excellent practical insight on how to handle the simplest case to the most complex litigation. Wisconsin Workers' Compensation Law furnishes compensation lawyers with historical information and a current analysis of the law. The treatise skillfully identifies trends to aid the practitioner in crafting winning legal arguments in critical and cutting edge issues.

Wisconsin Workers' Compensation Law, 2009 ed. (Vol. 17, Wisconsin Practice Series) By Charles F. Domer, Thomas M. Domer

Petition Filed to Re-Consider California AMA Guide Decision

The California Workers' Compensation Appeals Board (CAWCAB) has decided to review its prior decision of February 27, 2009, challenging the AMA Guidelines. The CAWCAB has issued an Order granting reconsideration and inviting mucus briefs to be filed.

"We also will give any interested person or entity until 5pm on Friday, May 1, 2009 to file an amicus curiae brief and to serve that brief on all counsel in both the Almaraz and Guzman cases."

Alvaraz v. Environmental Recovery Services, et al.

CMS Publishes Memo on Pricing Future Prescription Drug Treatment

The Centers for Medicare & Medicaid Services' (CMS) has published a memorandum outlining the methodology of pricing future prescription drug treatment costs/expenses in Workers' Compensation Medicare Set-Aside Arrangement (WCMSA) proposals.

"The CMS will begin independently pricing future prescription drug treatment costs/expenses in WCMSA proposals beginning June 1, 2009. Effective with complete WCMSA submissions received by CMS’ Coordination of Benefits (COB) Contractor on or after June 1, 2009, where the WC related injury warrant(s) the need of prescription drugs for the ongoing treatment of the WC related injury, CMS’ independent pricing of the prescription drug amount will be calculated and priced using average wholesale price (AWP). The CMS will not use or recognize any other pricing, discounting, or calculation methods when determining the adequacy of the prescription drug amounts in WCMSA proposals. "

Saturday, April 4, 2009

US Supreme Court Hears Challenge to Manville Asbestos Bankruptcy Plan

The US Supreme Court once again hear oral argument in a claim arising out of "the longest running tort" in the nation's history, asbestos litigation. The case played to a full house as the Court revisited the 1986 Johns Manville Bankruptcy program and questioned whether the the process that paid out more than $2.8 Billion could be challenged yet again. Plaintiff lawyers, not party to a settlement mediated by former NY Governor Mario Cuomo, argued that they should be allowed to sue various insurers including Travelers Insurance Company.

Travelers Indemnity Co. v. Bailey

Color X-Rays to Beam in on Asbestos Disease


A new radiography technique has been announced to diagnose asbestos related disease. Dr. Michael Harbut, co-director of the National Center for Vermiculite and Asbestos-Related Cancers at the Barbara Ann Karmanos Cancer Institute in Detroit, Michigan reported a new method to assist the diagnose of workers who have been exposed to asbestos, coal dust, beryllium and other heavy metals.

“If we can identify the ’sentinel’ or first cases of asbestosis or lung cancer at an early stage, then we can help identify asbestos exposures in places where it might not have previously been suspected,” said Harbut, who is also chief of the Center for Occupational and Environmental Medicine at Wayne State University.

Friday, April 3, 2009

CMS/MSP Not Going To Require Pre 12/5/1980 Exposure Reporting, BUT....

CMS will not require reporting of claim data where the exposure occurred prior to 12/5/1980 (Effective date of the MSP Act), but if exposure continues after that date, that is another story.

"We were asked about the 12/5/80 date for liability and no fault and the date of incident. Yes we say that in general CMS is determined that it won’t pursue recovery if the date of CMS defined date of incident is prior to 12/5/1980. But then we give an example of a situation with a continuing DOI specifically with respect to exposure.

"If it’s easier for you to think of it that way, if you have a situation with exposure and that exposure continues on or after 12/5/80 it’s really like you’ve got a series of continuous multiple DOIs and we only require you to report the first DOI but yes we do have a recovery claim in that situation.
Transcript of Teleconference 3/24/1980, page 12

CMS/MSP Requires Deceased Beneficiary Information

CMS has announced that workers' compensation information concerning deceased beneficiaries must be reported by insurance carriers.

"We received another question about deceased beneficiaries, were they covered under the reporting; yes they are. If someone is a Medicare beneficiary or was a Medicare beneficiary at any of the time period issue the claim has to be reported if it meets the other criteria."
Transcript of Teleconference 3/24/09, page 5

Death benefits to dependents, are those reportable? Again you go back to what we’ve referenced in the manual where something that doesn’t claim or release or have the effect of releasing medicals with respect to the beneficiary does not need to be reported. But if it does any other those things then yes it needs to be reported.
Transcript of Teleconference 3/24/09, page 12