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

Monday, August 31, 2009

Study Reveals The Decline in Occupational Injuries Caused by Loss of Manufacturing Sector

A recent report in the American Journal of Industrial Medicine links the decline of occupational injury rates to the loss of manufacturing jobs. The study reviewed statistical data from 1976 to 2000 and concludes that the 18% in occupational injuries is a direct result of the decline in manufacturing sector jobs.

Wednesday, August 26, 2009

Administrative Rules in Workers’ Compensation May Not Infringe Upon The Right to Due Process Court Holds

The right to cross examination medical experts, in a bifurcated claim cannot be extinguished by administrative rules, according to a decision rendered by a NJ Appellate Court.

A total disability claim involving the Second Injury Fund [SIF] was the subject of a bifurcated trial. At the first phase of the trial only the injured party and employer participated. After hearing the matter ,including medical evidence, a total disability award was entered.

In the second phase the trial court heard testimony as to allocation of the award between the employer the SIF. The barred the re-introduction of additional testimony from the injured workers’ medical expert. The SIF objected and on appeal prevailed.

The Court stated, “… administrative regulations cannot be ‘construed to infringe upon the substantive rights of either party’…..the employer's ‘fundamental right to due process which includes the right to present and cross[-]examine a witness, must be respected.’"

Nisivoccia v. County of Essex, et al., Docket No.. A-1864-07T21864-07T2, 2009 WL 2589480 (N.J.App. Div. 2009)

Tuesday, August 25, 2009

NIOSH Schedules Conference on Safety of Nanoparticles

NIOSH announced a conference in July 2010 to discuss the safety concerns that have been raised concerning workers and nanotechnology.

NIOSH research has shown that some nanoparticles, including certain types of carbon nanotubes and metal oxides, can be toxic to the heart and lung in mice and rats in laboratory experiments. Other research has demonstrated various other adverse effects of nanoparticles. Through its Approaches to Safe Nanotechnology, NIOSH recommends that specific precautions be taken to protect workers who might be exposed to any level of nanoparticles or nanoparticle-containing materials. A big question left unanswered is, can nanoparticles cause the same types of disease in humans?”

Concern intensified on this issue following the publication of the September issue of the “European Respiratory Journal, the first medical case series of workers with serious disease that the study authors associate with exposure to nano-sized particles has been published.”

Monday, August 24, 2009

A New Test for Mesothelioma Reported

A team of scientists at Oxford University have reported a more accurate and less invasive test to diagnose mesothelioma. The findings have been reported in a recent edition of the American Journal of Respiratory and Critical Care Medicine.

The test is claimed to be quicker and more accurate in testing for mesothelioma. Since it involves pleural fluid cytology the serum mesothelium is utilized as a bio marker to establish a diagnosis of mesothelioma.

The scientists indicate that the quick test will allow injured workers to file claims with greater reliability. Dr. Helen Davies, who participated in the research project stated, "Claims for worker's compensation may also be instigated once the diagnosis is confirmed."

Mesothelioma is a fatal disease that is associated with exposure to asbestos fiber. It is tumor that grows on the linings of the lungs or abdomen. Many workers have been exposed over the decades to asbestos and have developed mesothelioma in epidemic proportions.

Exposure to asbestos may occur as a result of both direct exposure to asbestos in the workplace or though a secondary exposure as a bystander or even a household contact of an asbestos workers. The disease has a very long latency period of the date of exposure to the date of manifestation. Asbestos, a known human carcinogen, use has not yet been banned in the United States.

For more information about treatment options, potential claims for benefits and the history of asbestos production, please visit out web site

Sunday, August 23, 2009

Compensation Judges Are Becoming Linkedin

A new trend is underway as Judges reach out for ways to stay informed and exchange information in the new technology of the world. It has been reported that Judges from the Federal Circuit Court of Appeals to State trial level Judges are reaching out to stay connected. Derek Mosley, a municipal court judge in Wisconsin, is linked to over 419 connections on linked in.

Workers' Compensation Judges have joined the social networking crowd in large numbers. Over 445 "hits" show up on for workers compensation judges. While some links are public others are private allowing for anonymity.

It has been reported that Judges have used Facebook searches to establish the veracity of excuses in case where the attorney calls in sick. The opposite may now be true, the attorney might be able to learn what the Judge has eaten for breakfast.

The logic for connecting through the social networking community is well placed. The access to information through connections and groups provides information, trends and analysis at low cost and relatively ease of use.

Workers: Exposure to Lead At Work May Bring Contamination Home

"Persons employed in high-risk lead-related occupations can transport lead dust home from a work site through clothing, shoes, tools, or vehicles..." according to a study conducted by the Maine Childhood Lead Poisoning Prevention Program and reported recently by the CDC.

"Persons who are exposed to lead at work or through hobbies are advised upon finishing the workday to 1) place lead-contaminated clothes, including shoes and personal protective equipment, in a closed container for laundering or cleaning; 2) take a shower and wash hands, face, and hair when exposed above the permissible exposure limits; 3) change into street clothes; and 4) wash work clothes separately from all other clothes."

Friday, August 21, 2009

Wyoming Supreme Court Rules That Medical Expert Need Not Use Magical Words

A medical expert need not use specific statutory language in order to establish causal relationship between an accident and a medical condition. The Wyoming Supreme Court reserved a lower panel's decision and found compensable a work related accident.

"As we have stated in the context of a claim for workers‟ compensation benefits for an aggravation of a pre-existing injury, the medical expert is not required to utter any particular magic words to establish the requisite causation. See State ex rel. Wyoming Workers’ Safety and Compensation Division v. Slaymaker, 2007 WY 65, ¶ 18, 156 P.3d 977, 984 (Wyo. 2007); In re Boyce, 2005 WY 9, ¶ 11, 105 P.3d 451, 455 (Wyo. 2005). So long as the medical expert‟s testimony contains sufficient information, the fact that she did not use the exact statutory language is irrelevant."

In the matter of the Workers' Compensation Claim of Peter Gaze v State of Wyoming, et al. (Decided August 19 2009)

For more on the topic of "casual relationship" click here.

California Proposes Regulations on Hexavalent Chromium in Drinking Water

The Office of Environmental Health Hazard Assessment (OEHHA) of the California Environmental Protection Agency is announcing the availability of draft technical support document for the proposed Public Health Goal (PHG) for hexavalent chromium in drinking water. This draft document is a new risk assessment, culminating an extensive evaluation of oral toxicity of this chemical. A PHG of 0.06 ug/L or 0.06 parts per billion (ppb) is proposed for hexavalent chromium in drinking water, based on tumor incidence data from rodent cancer bioassays. OEHHA is soliciting comments on the draft report during a 45-day comment period. The Office will also hold a public workshop on October 19, 2009 at the Elihu Harris Building, 1515 Clay Street, Oakland, 94612, Room 1, 10 a.m.-12 noon, or until business is concluded. OEHHA follows the requirements set forth in Health and Safety Code Sections 57003(a) and 116365 for conducting the workshop and receiving public input.

Workplace Fatalities Decline Significantly in 2008

Key findings of the 2008 Census of Fatal Occupational Injuries:
 - Fatal work injuries in the private construction sector in 2008 declined by 20 percent from the updated  2007 total, twice the all-worker decline of 10 percent.
- Fatal workplace falls, which had risen to a series high in 2007, also declined by 20 percent in 2008.
- Workplace suicides were up 28 percent to a series high of 251 cases in 2008, but workplace homicides declined 18 percent in 2008. 
- The number and rate of fatal work injuries among 16 to 17 year-old workers were higher in 2008. 
- Fatal occupational injuries involving Hispanic or Latino workers in 2008 were 17 percent lower than in 2007.    
-       Fatalities among non-Hispanic Black or African American workers were down 16 percent.
- The number of fatal workplace injuries in farming, fishing, and forestry occupations rose 6 percent   in 2008 after declining in 2007.
   - Transportation incidents, which accounted for approximately two-fifths of all the workplace fatalities in 2008, fell 13 percent from the previous series low of 2,351 cases reported in 2007.

Wednesday, August 19, 2009

Federal Government Alerts Employers to Prepare for Flu Outbreaks

The Federal government has now taken action to alert employers and business as to what precautions should be taken in anticipation of the anticipated fall Flu outbreak. Yesterday the government revealed that deployment of vaccines would be too slow to prevent or restrain further spread this fall.

In a joint letter from the Secretaries of Commerce, Health and Human Services, Homeland Security and Labor, the Federal government has alerted employers and business of a new web site directed to encouraging prevention and containment for a resurgence in the months ahead of H1N1 Flu.

For more on this topic and workers' compensation benefits, visit the Workers Compensation Blog.

Tuesday, August 18, 2009

Industry Spokesperson Declares Need for a National Workers' Compensation Law

At an industry based conference in Florida, Terry Fleming, Risk and Management Society's vice president, spoke for the need of a national workers' compensation program with a foundation of a unified benefit structure. Fleming declared that the workers' compensation program which was enacted in 1911 "is dead or dying."

The National Workers' Compensation Education Conference was presented by the Florida Workers' Compensation Institute in partnership with the National Underwriter Company.

Monday, August 17, 2009

AAJ Comments that Medicare Set-Asides Only Recommend

The American Association for Justice issued a statementt that Medicare Set Aside Agreements were only "recommended" by CMS in workers' compensation claims. In interpreting the reporting requirements of Section 111 Medicare, Medicaid & SCHIP Act of 2007 (MMSEA), Public Law No. 110-173, AAJ declared that there no shift of responsibility that would mandate Set Aside Agreements in liability claims.

For more information on Set Aside Agreements visit the Workers' Compensation Blog.

Saturday, August 15, 2009

NJ Supreme Court Advance Notice On Mandatory Continuing Legal Education

While the NJ Supreme Court has yet to take final action on The Final Report of the Supreme Court’s Ad Hoc Committee on Continuing Legal Education, it has issued an advance notice on the validity of credits for courses taken after January 1, 2009.

"To ensure that attorneys continue to participate in continuing legal education programs while the Committee’s Final Report is pending, the Court has determined to provide advance notice that any new continuing legal education program that may be adopted by the Court pursuant to the Committee’s recommendations will grant credit for certain qualifying continuing legal education courses taken after January 1, 2009."

Friday, August 14, 2009

US EPA Cites Vermont Companies for Asbestos Removal

A Vermont company was cited by the US EPA for failing to test for asbestos. The company had been demolishing a building and failed to first test for the presence of asbestos fiber. The companies involved could face a penalty of nearly $30,000 for alleged violations of the Clean Air Act and the National Emission Standard for Hazardous Air Pollutants for Asbestos.

"The federal Clean Air Act and the National Emission Standard for Hazardous Air Pollutants for Asbestos (Asbestos NESHAP) require owners and operators of demolition and renovation operations to follow certain inspection and notification requirements prior to beginning such operations, and to abide by specific work practice and waste disposal requirements when the owners and operators identify the presence of regulated asbestos-containing material."

Ingestion and inhalation of asbestos fibers is a known cause of lung cancer, asbestosis and mesothelioma.

For further reference on asbestsos exposure visit the Workers' Compensation Blog.

Employer Responsibility in the Flu Pandemic

The threat of the spread of flu this fall in the US is a major concern to infectious disease specialists. Healthcare workers are extremely apprehensive as the disease is beginning to spread and employers have not instituted adequate protections for workers.

In the US alone there have been 6,506 hospitalizations of H1N1 Flu patients. The CDC has reported that there have been 436 reported to date because of the novel flu infection. The World Health Organization (WHO) declared the virus a Phase-6 pandemic, the highest level of concern. Over 1,154 deaths have been reported worldwide.

The CDC has issued an Interim Guidance for controlling the spread of infection in healthcare facilities including hospitals, long-term care and outpatient facilities and other settings where healthcare is provided.

Healthcare workers have rallied to protest the firing of a co-worker who disclosed that a healthcare facility was not taken appropriate action to prevent the spread of flu at its work site. The major national unions in April 2009 warned in a report that employers were not taking adequate precautions to protect healthcare workers.

Most recently a task force of the Institute of Medicine (IOM) charged with the responsibility of making recommendations on how to protect workers from the H1N1 flu heard evidence that actions by employers could reduce the spread of the disease. It was reported the use of N95 masks provided 75% protection against lab-confirmed flu.

Workers' remedies from the residuals of the illness have now been limited. The Federal vaccination compensation program will shield the vaccine makers from liability claims. Employers will be protected against civil law suits by the exclusivity provisions of the workers' compensation system. Workers' Compensation does not encompass a roll in prevention of disease. OSHA has alerted employers to take action, but cannot compel them to do so.

It is time for employers to act to prevent unnecessary illness and death in the workplace. Simple educational and enforcement actions by employers will go along way to protect workers from the consequences of this unprecedented pandemic. While time is short and the clock is ticking away as the US flu season formally approaches, time still remains for employers to act and mandate protocols and procedures that will prevent the spread of the disease and will save lives.

For more on workers compensation and the flu pandemic visit the Workers' Compensation Blog.

Thursday, August 13, 2009

NJ Work Comp 2010 rates jumps up 2.7%

It has been announced that the NJ maximum workers' compensation rate will bounce up to a new maximum rate of of $794 per week in 2010. The rate in maximum rate in 2009 was was $773 per week. The rate is mandated by statute and changes yearly. It is calculated from the the State Average Weekly Wage (SAWW) for the year prior.

Wednesday, August 12, 2009

Federal Summit Planned for Distracted Driving

The problem of the increase in accidents on the road caused by distracted drivers will now be the subject of a Federal summit. U.S. Transportation Secretary Ray LaHood has announced a summit in Sate September.

“If it were up to me, I would ban drivers from texting, but unfortunately, laws aren’t always enough,” said Sec. LaHood. “We’ve learned from past safety awareness campaigns that it takes a coordinated strategy combining education and enforcement to get results. That’s why this meeting with experienced officials, experts and law enforcement will be such a crucial first step in our efforts to put an end to distracted driving.”

Yet to be determined is how this new concern will impact State Workers' Compensation programs.

Monday, August 10, 2009

New Legislation to Strength OSHA Introduced in the Senate

New legislation ( S.1580) was introduced last week in the US Senate by Senator Reid on behalf of Senator Kennedy and co-sponsored by:

Sen Akaka, Daniel K. [HI] - 8/5/2009
Sen Bingaman, Jeff [NM] - 8/5/2009
Sen Boxer, Barbara [CA] - 8/5/2009
Sen Brown, Sherrod [OH] - 8/5/2009
Sen Casey, Robert P., Jr. [PA] - 8/5/2009
Sen Dodd, Christopher J. [CT] - 8/5/2009
Sen Durbin, Richard [IL] - 8/5/2009
Sen Feingold, Russell D. [WI] - 8/5/2009
Sen Franken, Al [MN] - 8/5/2009
Sen Harkin, Tom [IA] - 8/5/2009
Sen Lautenberg, Frank R. [NJ] - 8/5/2009
Sen Leahy, Patrick J. [VT] - 8/5/2009
Sen Menendez, Robert [NJ] - 8/5/2009
Sen Merkley, Jeff [OR] - 8/5/2009
Sen Murray, Patty [WA] - 8/5/2009
Sen Sanders, Bernard [VT] - 8/5/2009
Sen Schumer, Charles E. [NY] - 8/5/2009
Sen Stabenow, Debbie [MI] - 8/5/2009
Sen Whitehouse, Sheldon [RI] - 8/5/2009

The legislation will strenghten the Occupational Safety and Health Administration and will make the woprkplace a safer environment.

Senator Reid stated, "“We now have strong partners in the White House and at the Department of Labor who are committed to making our workplaces safer. But they need action by Congress as well. That is why today we are reintroducing the Protecting America’s Workers Act, to take concrete steps to address many of the failures of the existing law.”

Senator Kennedy declared in his introductory remarks, "Mr. President, today I am pleased to introduce the Protecting America’s Workers Act. Almost 40 years ago, Congress set out to guarantee a safe workplace for all Americans. The Occupational Safety and Health Act of 1970 was landmark legislation that has dramatically improved the well-being of working men and women. Since then, the annual job fatality rate has dropped from 18 deaths per 100,000 workers to less than four. Thousands of lives have been saved each year. These are not abstract numbers— they represent thousands of families who have been spared the pain and heartache of losing a loved one on the job.....We need to send a strong message that it is unacceptable to treat workers as expendable or disposable."

CMS Requests Public Comments On Mandatory Reporting

The Centers for Medicare and Medicad Services (CMS) has published a public notice requesting comments on the definition of a Responsible Reporting Entity (RRE) to comply with MMSEA Section 111.

The proposed changes would replace the existing Section 7.1 of the User Guide. The proposals would further define:

1. Who Must Report
2. TPAs (Third Party Administrators)
3. RRE (Responsible Reporting Entities)
4. Deductible Issues
5. Fronting Policies
6. Re-insurance, Stop Loss Insurance, Excess Insurance, Umbrella Insurance, etc.
7. Multiple Defendants
8. Self-Insurance Pools
9. Assigned Claim Funds
10. Workers' Compensation
11. Liquidation
12. Bankruptcy
13. Multi-National Organizations, Foreign Nations, American Indian, Alaskan Native Tribes

Comments must be submitted by August 16, 2009.

Sunday, August 9, 2009

Asbestos Exposure Results in $200,000 Award for Future Medical Monitoring

The NJ Appellate Division recently affirmed a jury award for $200,000. for medical monitoring. The injured worker was exposed to asbestos fiber at worked as a millwright for a paper mill during the years 1956 through 1994 and a Johns Manville for approximately 6 months in 1955. He was diagnosed as having "pleural plaques" on his lungs.

The Court, relying on other judicial precedent, held that the award of damages for future medical medical monitoring was "'consistent with well-accepted legal principles'" and "'the important public health interest in fostering access to medical testing for individuals whose exposure to toxic chemicals creates an enhanced risk of disease.'"

Since asbestos related disease is progressive and has a long latency period from the initial exposure to the onset of disease (asbestos, cancer & mesothelioma) it is warranted that medical monitoring through doctor's visits are warranted.

Sarkozy v A.P. Green, et al., NJ Super A-0312-07T1 (App Div) Decided July 31, 2009.

Highlighting Safety at OSHA

The President's nomination of David Michaels to lead the Occupational Safety and Health Administration (OSHA) underscores the Administration's desire to emphasize the need for safety in the workplace. Michaels, author of the book, "Workers at Risk," recognized that safety is a shared responsibility between Labor and Industry.

In a recent discussion on National Public Radio's program "Living on Earth," a "New Approach to Workplace Dangers" was discussed. "President Obama recently announced the nomination of David Michaels to head up the Occupational Safety and Health Administration (OSHA). Michaels, a public health professional, has been an outspoken critic of polluting industries, accusing them of manufacturing uncertainty so as to undermine the science behind regulation. Host Jeff Young talks to Sidney Shapiro, a Wake Forest Law Professor and OSHA expert, about this nomination."

Michael's has indicated that a change of culture is called for. "What polluters have seen is that the strategy that the tobacco industry came up with, which essentially is questioning the science, find the controversy and magnify that controversy, is very successful in slowing down public health protections. And so the scientists who used to work for the tobacco industry are now working for most major chemical companies. They don't have to show a chemical exposure is safe. All they have to do is show that the other studies are in question somehow. And by raising that level of uncertainty, they throw essentially a monkey wrench into the system."

The agency will next have to be given the necessary tools to permit the culture of safety to flourish. OSHA must become proactive about safety. Congress will now have to act to implement new laws to strengthen OSHA's mission of safety.

Saturday, August 8, 2009

Congressional Committee Moves to Reopen Victims Compensation Fund

Legislation has advanced in the US Congress to reopen the Victims Compensation Fund for those who may have been injured in the 9/11 attack.

NY Congresswoman Carolyn Maloney (D-NY) has sponsored H.R. 847 "James Zadroga 9/11 Health and Compensation Act of 2009." The bill amends the Public Health Service Act to establish within the National Institute for Occupational Safety and Health the World Trade Center Health Program (WTC program) to provide:

(1) medical monitoring and treatment benefits to eligible emergency responders and recovery and cleanup workers who responded to the World Trade Center terrorist attacks on September 11, 2001; and
(2) initial health evaluation, monitoring, and treatment benefits to residents and other building occupants and area workers who were directly impacted and adversely affected by such attacks. Requires the WTC program administrator to:
(1) implement a quality assurance program;
(2) establish the WTC Health Program Scientific/Technical Advisory Committee;
(3) establish the WTC Responders Steering Committee and the WTC Community Program Steering Committee;
(4) provide for education and outreach on services under the WTC program;
(5) provide for the uniform collection of data related to WTC-related health conditions;
(6) conduct research on physical and mental health conditions that may be related to the September 11 terrorist attacks; and
(7) extend and expand arrangements with the New York City Department of Health and Mental Hygiene to provide for the World Trade Center Health Registry. Authorizes the administrator to make grants to the Department to address mental health needs relating to the terrorist attacks.
Amends the Air Transportation Safety and System Stabilization Act to:
(1) make individuals eligible for compensation under the September 11 Victim Compensation Fund of 2001 for harm as a result of debris removal; and
(2) extend the deadline for making a claim for compensation.

The original legislation was a controversial benefit program that was to supplement applicable workers' compensation benefits. It did not provide for medical monitoring as well as treatment of latent medical conditions.

Thursday, August 6, 2009

Asbestos Production Slows As The Economy Lags

The sluggish economy is deemed to be the cause of lower asbestos production. Foster Wheeler Ltd., a producer of asbestos, has reported that it's second-earnings profit has dropped 24% based on lower sales of asbestos and lower demand for engineering and construction projects.

Asbestos, a known carcinogen, has yet to be banned from production in the United States. For decades it has been mined and used in products including insulation, floor tile, construction products and gaskets. It has been recognized as the sole cause for mesotheloma, a rare, but fatal, cancer. Asbestos exposure a significant risk factor in lung, gastrointestinal and other malignancies.

Since the latency period of asbestos related disease is 10 to 15 or more years after exposure, the drop in asbestos production may signal that asbestos related disease will also decline in future decades. In most jurisdictions, workers' compensation systems, have struggled to provided benefits to workers who have been exposed to asbestos fiber even though the onset of the occupational disease did not manifest for decades following exposure to the natural occurring fiber.

For many years advocacy groups have fought for a complete ban on the use of asbestos products in the United States. Legislation is currently remains pending in Congress.

Monday, August 3, 2009

Major Insurance Companies Still In A Downward Spiral

Two major insurance carriers have shown continued losses. AIG and Travelers are both facing difficult situations economic issues..

On Friday Moody's Investors Services downgraded two American International Group Inc. (AIG) lending united to near "junk" status. Other rating companies also lowered their ratings of AIG to Baa3.

This follows news last week that Travelers Insurance Company Inc.'s (Travelers) 2nd quarter income fell 21% which resulted in lower income and higher claims costs. Travelers is the second largest insurer after AIG. The revenue decrease at Travelers was reported to be 2.1% of $6.16 Billion.

As unemployment remains static or increases, fewer people are working, and premium revenues will continue to decline.