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

Friday, October 30, 2009

BP fined by OSHA a record $87M for Texas City Explosion

Four years follow a massive explosion in Texas City, OSHA fined BP a record $87 million dollars.

The Financial Times reports:

"Jordan Barab, acting assistant secretary of the labour department’s Occupational Safety and Health Administration, said that in spite of Lord Browne being replaced as BP chief executive after the blast, BP continued to violate US safety regulations under the leadership of Tony Hayward.

“There are some serious systemic safety problems within the corporation,” Mr Barab said.

“That there are so many life-threatening safety problems at this plant means there is still a systemic problem.

To read more about OSHA click here.

Thursday, October 29, 2009

NIOSH: H1N1 Flu Is A Serious Risk to Healthcare Workers

The National Institute for Occupational Safety and Health (NIOSH) has declared that 2009 H1N1 Influenza poses a serious risk for healthcare personnel. With at least 4 deaths of nurses being reported in the media, NIOSH has stepped up its efforts to gather and analyze the prevalence of illness and fatalities among health workers.

"Healthcare personnel are at increased risk of occupational exposure to the 2009 H1N1 virus based on their likelihood for encountering patients with 2009 H1N1 illness. In contrast to seasonal influenza virus, 2009 H1N1 influenza virus has caused a greater relative burden of disease in younger people, which includes those in the age range of most healthcare personnel. For some healthcare personnel, this higher risk of exposure and illness may be compounded by the presence of underlying illness which places them at higher risk of serious flu complications, such as asthma, diabetes, or neuromuscular disease. Of particular concern to the healthcare workforce, which is largely female, is the fact that pregnant women are among those groups considered to be at higher risk of severe infection from 2009 H1N1."

Congressional Hearing to Examine OSHA's Review of Nevada Program

The U.S. House Education and Labor Committee will hold a hearing on Thursday, October 29 to examine the federal Occupational Safety and Health Administration’s critical review of Nevada’s workplace health and safety program. OSHA reviewed Nevada’s health and safety program between January 2008 and June 2009 and found a number of deficiencies with the plan. A spate of accidents drew national attention during the city’s building boom that killed 12 construction workers on the Las Vegas strip over an 18-month period between 2006 and 2008. 

Full Committee Hearing
10:00 AM, October 29, 2009
2175 Rayburn H.O.B
Washington, DC
Watch live testimony click here.

  • U.S. Sen. Harry ReidNevada
  • Jordan BarabActing Assistant Secretary of LaborFederal Occupational Safety and Health Administration
  • Debi Koehler-FergenMother of worker killed at the Orleans Hotel and Casino in Las Vegas
  • Don JayneAdministrator
    Nevada Division of Industrial Relations
    Department of Business and Industry
  • Franklin MirerProfessor of environmental and occupational healthHunter College of the CityUniversity of New York
Additional witnesses to be announced

Wednesday, October 28, 2009

Latex Allergy Adverse Reaction Caused by Swine Flu Shot

Just as health care workers and first responders have started to line up for H1N1 flu shots, an adverse reaction to latex has been reported. This development adds further to to the compensable risks resulting from adverse reactions to the vaccine.

Latex allergy claims have long been held compensable in workers' compensation courts throughout the country. The original claims arose out of exposure to latex protein in gloves that came into use as a result of the AIDS epidemic.

A case of latex allergy reaction has been reported in Australia during a vaccination program. While the vaccine and the vial are supposedly latex free, the packing material may not be, and that may have trigger the reaction.  One in 100 people are thought to have an allergy to latex. 

Reactions to latex may be mild or transitory or may be a permanent sensitization causing hives, shortness of breath, total disability and possible death.

For more articles on Workers' Compensation and the Flu Pandemic click here. 

To read more about compensable latex allergy claims click here.

Workers Compensation Insurance Company and PBMs Liability for Drug Abuse

The Wall Street Journal reports today about a claim against  pharmacies as a result of customer drug abuse. In the State of Nevada a case is pending that may confer liability upon a drugstore for the consequences of an accident caused by patient drug abuse. A pharmacy dispensed narcotic painkillers to a Patricia Copening, 35 year old doctor's office receptionist, who killed a 21 year old man in a fatal Las Vegas accident. 

A case is pending against the seven pharmacies (Wal-Mart, Longs Drugs, Walgreen Co., CVS Pharmacy, Rite-Aid, Sav-On and Lam’s Pharmacy) that dispensed 4,800 tablets of the drug for Copening in the 13 months prior to the fatal accident. 

The Nevada Prescription Controlled Substance Abuse Task Force had notified the pharmacies that Copening was “taking an unusual amount of these narcotics.” The vehicle causing the accident was commercially owned by a physician who was involved in a relationship with the driver.

The Nevada Supreme Court will be deciding whether the pharmacies, previously dismissed by the trial court, are liable because they dispense enormous amounts of drugs to Copening that resulted in drug abuse and resulting the fatal accident. 

Where the perimeter of liability may end is unknown. Workers' Compensation insurance companies and their integrated pharmacy benefit managers (PBMs) dispense many narcotics, on an ongoing basis, for pain relief, to injured workers.  The courts may ultimately deem them unprotected by the "exclusivity rule," and they, as ultimate wrongdoers, may become targets for these tragic yet foreseeable events.

To read more about drugs and workers' compensation click here.

Tuesday, October 27, 2009

HIPPA Privacy Modifications Under Presidential Emergency H1N1 Flu Order

Under the emergency declaration for H1N1 flu signed by President Obama on October 24, 2009, the HIPPA Privacy rule is not waived according to Federal HHS interpretation; however, "the Secretary of HHS may waive certain provisions of the Rule under the Project Bioshield Act of 2004 (PL 108-276) and section 1135(b)(7) of the Social Security Act."
Those modifications are:
"If the President declares an emergency or disaster and the Secretary declares a public health emergency, the Secretary may waive sanctions and penalties against a covered hospital that does not comply with certain provisions of the HIPAA Privacy Rule:

  •  the requirements to obtain a patient's agreement to speak with family members or friends involved in the patient’s care (45 CFR 164.510(b)) 
  • the requirement to honor a request to opt out of the facility directory (45 CFR 164.510(a)) 
  • the requirement to distribute a notice of privacy practices (45 CFR 164.520) 
  • the patient's right to request privacy restrictions (45 CFR 164.522(a)) 
  • the patient's right to request confidential communications (45 CFR 164.522(b)) 
"If the Secretary issues such a waiver, it only applies:

1. In the emergency area and for the emergency period identified in the public health emergency declaration.

   2. To hospitals that have instituted a disaster protocol.  The waiver would apply to all patients at such hospitals.
   3. For up to 72 hours from the time the hospital implements its disaster protocol.
"When the Presidential or Secretarial declaration terminates, a hospital must then comply with all the requirements of the Privacy Rule for any patient still under its care, even if 72 hours has not elapsed since implementation of its disaster protocol. 
"Regardless of the activation of an emergency waiver, the HIPAA Privacy Rule permits disclosures for treatment purposes and certain disclosures to disaster relief organizations. For instance, the Privacy Rule allows covered entities to share patient information with the American Red Cross so it can notify family members of the patient’s location.  See 45 CFR 164.510(b)(4)."

Monday, October 26, 2009

Denial Rates: An Insurance Company Tactic That Compounds the Health Care Delivery Problem

As Congress considers changes in the nation’s health care program, US health insurance companies continue to be scrutinized. The methodologies of how insurance companies deny claims are being investigated.

A certified nurse assistant, Amelia Mendoza, age 52, of West Covina, California, was attacked twice in the same week by a patient while working at Huntington Hospital in Pasadena earlier this year. Amelia suffered injuries that resulted in her suffering a stroke in April, falling into a vegetative state and contracting pneumonia. The hospital insurance carrier cut off medical care for her, forcing her from the hospital, and leaving her family responsible for medical care for Amelia’s work-related injury that is the hospital’s responsibility.

Her husband, Ralph Mendoza, who met with reporters and supporters outside the hospital, commented, “I am shocked and extremely disappointed that Huntington Hospital would treat Amelia this way. Amelia gave her all to her job for more than six years, and she deserves better….Amelia was injured doing her job, and the hospital has avoided its responsibility for months. I watch my wonderful wife, a mother of four children, slip away in a vegetative state and I wonder whether she would be healthy today if the hospital had met its responsibility. I want the medical care that my wife deserves.”

After an attack by a violent patient, Amelia was examined in the hospital’s Emergency Room and told to return to work. After a second attack just two days later, Amelia went to the Emergency Room and was told to go to Huntington Hospital’s in-house workers’ compensation clinic. The hospital was aware that Amelia’s blood pressure was dangerously high after the attack, and that the patient had infectious diseases. The hospital even called Amelia and her husband to warn of the health dangers Amelia faced. Yet the hospital’s clinic turned Amelia away, saying they were too busy to see her. Amelia suffered a stroke less than three hours later. The attacks had caused bleeding in her brain.

“The workers’ compensation carrier, Sedgwick, has denied liability for Amelia’s medical care, claiming that their investigation did not support a claim of injury and no medical evidence supports the claim either,” said Amelia’s attorney, Chelsea Glauber of the
Glauber/Berenson Law Firm. “Medical evidence does in fact exist which states in no uncertain terms that Amelia’s condition was caused by these attacks at work. Amelia is trapped in a horrible hell, between two insurance companies trying to avoid responsibility. So Huntington Hospital let Amelia go home, in a vegetative state, to be taken care of by her husband, who no matter how loving and well intentioned, is not qualified to provide the critical care that Amelia needs and deserves. What does it say about these insurance companies and a hospital that they would treat a hard-working human being in this awful manner?”

recent report on insurance companies denial rates reveals that, “When it comes to claim denials, insurers may be putting profits ahead of patients’ best interests. Most major insurance companies have reassigned their medical directors—the doctors who approve or deny claims for medical reasons—to report to their business managers, whose main responsibility is to boost profits.”

An inefficient system is not helpful to anyone, including injured workers, insurance companies, and employers. Wasteful administration should be curbed. The U.S. healthcare system wastes between $505 billion and $850 billion every year, recently reported Robert Kelley, vice president of healthcare analytics at Thomson Reuters.

Lawmakers must concentrate the U.S. health debate on how the delivery of medical care can be more efficient and effective. Delays and denials presently occurring in the workers’ compensation system continue to highlight the fact that injured workers need a universal health care system.

"Workers' Compensation" Selected As LexisNexis Top 25 Blogs for 2009

Workers' Compensation blog has been selected as a LexisNexis Top 25 Blogs for Workers’ Compensation and Workplace Issues - 2009, in the Best Individual Bloggers category. 

Selections were made by the LexisNexis Workers’ Compensation Law Center staff using feedback from community members and Larson’s National Workers’ Compensation Advisory Board members.

The Top 25 Blogs contain some of the best writing out there on workers' compensation and workplace issues in general. They contain a wealth of information for the workers' compensation community with timely news items, practical information, expert analysis, practice tips, frequent postings, and helpful links to other sites. These blogsites also show us how workplace issues interact with politics and culture. Moreover, they demonstrate how bloggers can impact the world of workers' compensation and workplace issues.

Workers’ Compensation
Published by Jon L. Gelman
"This prolific and widely respected blog analyzes trends and developments in workers’ compensation law nationwide. Workers’ Compensation blog provides both a bird’s-eye view of the national scene and the low down on what’s happening on the ground level in each state."

A Call for Suggestions: Top Blog of the Year - 2009

The  next step will be to determine which of the 25 honorees will receive Top Blog of the Year 2009. The LexisNexis Workers’ Compensation Law Center looks forward to hearing the comments of our community members. Deadline for comments is November 11, 2009. The LexisNexis Workers’ Compensation Law Center Staff will review all comments and then select the #1 blog of the year.  Register - click here.

To visit the Workers' Compensation Blog click here.

Sunday, October 25, 2009

Medicare to Issue Interim Conditional Payment Letters for Medicare Secondary Payer Mandatory Reporting Compliance

Effective October 1, 2009, the MSP Recovery Contractor [MSPRC] will issue information concerning interim conditional payment amounts automatically (that is, without receiving a request for such information) as soon as an interim conditional payment amount is available. If you have an outstanding request for a conditional payment letter (CPL) for a case established prior to October 1, 2009, the request will be processed in the order received. For all new cases, the Medicare beneficiary and any authorized individuals will receive the CPL within 65 days of the issuance of the “Rights and Responsibilities Letter.” 

A form "Cover Letter" will be provided to facilitate communications with MSPRC once a case has been established. "This cover sheet is for your use when mailing or faxing in correspondence to the MSPRC. Please retain a COPY of this cover sheet for any future correspondence. The information above will ensure accuracy when handling your case documentation."

The NEW Rights and Responsibilities Brochure is now available on line.

The NEW "Proof of Representation Letter" and "Consent to Release" are also available on line.

For more information about the Medicare Secondary Payer Act and workers' compensation click here.

Saturday, October 24, 2009

US Supreme Court Allows More Time in RICO Case

Review of a  Petition for Certiorari has been delayed by the US Supreme Court. Time has been extended by the Court until November 2, 2009 to file responsive papers to the Petition. 

Pending before the US Supreme Court is a petition for a writ of certiorari to review a decision where: the employer, insurance company and their experts were found to have conducted themselves in violation of the RICO Act.

Click here to see the Workers' Compensation Blog for additional articles on RICO matters.

Compensating Adverse Flu Vaccine Reaction Victims

As the US flu vaccination program rolls out, the numbers are also growing for those who have reported adverse consequences from the H1N1 vaccine. The victims and their families are also lining up for benefits available in the workers’ compensation system as well as the Federal program. The existence of these programs have received little publicity and may be difficult for the public to navigate without adequate representation. 

The US Centers for Disease Control and Prevention (CDC) announced this week that pandemic activity has now increased in the US. Tom Frieden, MD, director of the CDC, said, "We have had up until now many millions of cases of pandemic influenza in the U.S. And the numbers continue to increase." President Obama signed an Executive Order declaring the Swine Fu as a national emergency. Hospitalization and death rates have increased, yet again. Over 60 million have been immunized early for seasonal flu, so that providers would be available to administer  H1N1 vaccine when it becomes available. . 

Even though the supply has been tardy for the H1NI vaccine, the companies that supply the product have promised an additional flow of supply to meet the demand. The European pharmaceutical companies, Novartis’s Focetria, GlaxoSmithKline’s (GSK’s) Pandemrix, and Baxter’s Celvapan are under contract to supply a huge volume of vaccine to the US. Novartis alone has a $979 million contract to supply H1N1 vaccine to the US Department of Health and Human Services (HHS) which amount to 251 million does and the total 35% projected US supply. It is anticipated that the US supply may not arrive until the first quarter of 2010.

A recent Washington Post-ABC News Poll reflects that Americans are more worried than ever about the H1N1 flu. In a matter of weeks, from August 2009 to October 2009 those reportedly worried about getting the H1N1 flu increased from39% to 52%.  The CDC has been reluctant to advertise the need to about the vaccine because the supply has been limited and they were attempting to avoid public panic. Their program will pick up as the supply becomes increasingly available.

Adverse effects from the flu vaccine already are being reported. Deaths have been reported associated with the deaths of at least four nurses with 2009 H1N1The Vaccine Adverse Event Reporting System (VAERS) is a national vaccine safety surveillance program co-sponsored by the Centers for Disease Control and Prevention (CDC) and the Food and Drug Administration (FDA). VAERS is a post-marketing safety surveillance program, collecting information about adverse events (possible side effects) that occur after the administration of vaccines licensed for use in the United States. The data is publically available through the CDC WONDER on-line database.

Workers’ Compensation programs have provided compensation benefits in the past resulting from adverse reactions to vaccines. In many jurisdictions, vaccinations afforded to employees resulting in a benefit to the employer against possible disastrous business consequences, have been considered to be “a mutual benefit.” Therefore, any disease arising from such vaccination has been deemed compensable.

Additionally, a Federal program has been established to shield the vaccine producers from liability claims. On October 1, 1988, the National Childhood Vaccine Injury Act of 1986 (Public Law 99-660) created the National Vaccine Injury Compensation Program (VICP). The VICP was established to ensure an adequate supply of vaccines, stabilize vaccine costs, and establish and maintain an accessible and efficient forum for individuals found to be injured by certain vaccines. The VICP is a no-fault alternative to the traditional tort system for resolving vaccine injury claims that provides compensation to people found to be injured by certain vaccines. The U. S. Court of Federal Claims hears the claims.

As of July 1, 2005, trivalent influenza vaccines have been added to the Table under this Category. Trivalent influenza vaccines are given annually during the flu season either by needle and syringe or in a nasal spray.  All influenza vaccines routinely administered in the U.S. are trivalent vaccines covered under this Category.  

The criteria for filing a claim under the VICP are the following:
  • You may file a claim if you received a vaccine covered by the VICP and believe that you have been injured by this vaccine.
  • You may also file a claim if you are a parent or legal guardian of a child or disabled adult who received a vaccine covered by the VICP and believe that the person was injured by this vaccine.
  • You may file a claim if you are the legal representative of the estate of a deceased person who received a vaccine covered by the VICP and believe that the person’s death resulted from the vaccine injury.
  • You may file a claim if you are not a United States citizen.
  • Some people who receive vaccines outside of the U.S. may be eligible for compensation. The vaccines must have been covered by the VICP and given in the following circumstances:
    • the injured person must have received a vaccine in the U.S. trust territories; or
    • if the vaccine was administered outside of the U.S. or its trust territories:
      1. the injured person must have been a U.S. citizen serving in the military or a U.S. government employee, or have been a dependent of such a citizen; or
      2. the injured person must have received a vaccine manufactured by a vaccine company located in the U.S. and returned to the U.S. within 6 months after the date of vaccination.
  • In addition, to be eligible to file a claim, the effects of the person’s injury must have:
      1. lasted for more than 6 months after the vaccine was given; or
      2. resulted in a hospital stay and surgery; or
      3. resulted in death.
The VICP program has paid over $1.8 billion dollars from 1989 through 2009. Over 2,300 families have been paid to date with over 2,200 attorneys representing clients in such matters. "Compensated" are claims that have been paid as a result of a settlement between parties or a decision made by the U.S. Court of Federal Claims (Court). Approximately 18% of the benefits were paid to adults who received vaccines during the existence of the program. Since the program was expanded to adults who received vaccinations, the proportion of benefits to adults under the program has  increased proportionally. Nearly 52% of program awards in 2007 and 2008 went to adult vaccine recipients.

As the H1N1 vaccination program unfolds, those who suffer adverse reactions will be seeking benefits from both, the State workers’ compensation programs, as well as the VICP. Adequate dissemination of information concerning eligibility and procedural access to the programs will be of great benefit to the victims and their families.

Wednesday, October 21, 2009

Insuring Disabled Seniors and The Public Option

Disabled workers over the age of 65 have difficult decisions to make concerning health insurance. Those who rely upon workers’ compensation and Medicare to cover all their medical costs are in for a rude awakening. John D. Podesta and colleagues reported difficulties in the present system that seniors utilize.  “The gaps in coverage, the high cost of insurance, and the quality of care that consumers receive are the most frequently cited problems" in the present medical delivery system. Disabled workers will also have their strife compounded by the fact that Congress anticipates an increase of 15% in basic Medicare premiums next year.

Workers’ compensation insurance usually covers medical conditions that "arise out of and are in the course of employment." Treatment extends to medical care that is reasonable and related to cure the work related condition and relieve the symptoms. Workers’ compensation was not intended to any for conditions that are not work related.

Medicare provides coverage to disabled workers and those who are over 65 years of age. It does not extend coverage to those conditions that are work related. In fact, Medicare, under the Medicare Secondary Payer Act (MSP), will seek reimbursement from the injured employee for those medical conditions related to the employment, but Medicare may have accidentally or conditionally paid for.

The Federal system now keeps a tight rein to avoid duplication of benefits. As of July 1, 2009, the workers’ compensation insurance carriers are now subject to mandatory reporting of those eligible or anticipated to be eligible for workers’ compensation benefits. Medicare seeks to participate in the review of any settlement in workers’ compensation by eligible beneficiaries through an elaborate voluntary scheme of workers’ compensation set aside agreements (WCMSA).

The coverage scenario is complicated further by so called “Medigap policies” sold by private insurance companies that provide supplemental health insurance to those on Medicare for services and benefits not covered by the Federal government.  The Kaiser Family Foundation reports, that Most Medicare beneficiaries (89%) had some form of supplemental health insurance coverage in 2007. More than a third of all beneficiaries (34%) had coverage from an employer-sponsored plan, 22% were in Medicare Advantage plans, 17% purchased supplemental insurance (Medigap) policies, and 15% were covered by Medicaid (generally those with very low incomes and modest assets). Eleven percent [4.48 million] had no supplemental coverage [emphasis added].”

Those who lack coverage, avoid or forgo, medical care. Underlying medical conditions, even those that are work related, may become aggravated or accelerated. The “gap” in coverage for the some disabled workers, that exists in the system, creates additional risk factors for not only those that fall within the gap, but also as to general community health and well being.

The gap in disability insurance converge will need to be debated as Congress goes forward in the health care debate. As Speaker Nancy Pelosie (D-Calif) surveys Congress in anticipation of her final draft of a "public option," the discussion continues in Washington. A universal approach is warranted to bridge the gap for affordable and meaningful coverage.

Monday, October 19, 2009

CDC Reports Flu Widespread - Is the US Workers’ Compensation System Ready?

The US Centers for Disease Control (CDC) has announced that Flu is now “widespread” in 41 States and that deaths attributed to both pneumonia and influenza have increased and exceed what is normally expected for this time of the year.  The workers’ compensation system has never faced a challenge as extensive as what appears unfolding on the horizon. The method and manner of the delivery of benefits will be further complicated by, the broad spectrum of needs from protecting the spread of the disease, as well as treating those who are ill.

Forty-one states are reporting widespread influenza activity at this time according to the CDC. They are: Alabama, Alaska, Arizona, Arkansas, California, Colorado, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Dakota, Texas, Tennessee, Utah, Virginia, Washington, West Virginia, Wisconsin, and Wyoming.  

Last month the CDC released a guide to business to prepare for the threat of the Flu. Despite the fact that the CDC has directed ill healthcare workers to stay home, workers’ compensation commentators continue to infer that Flu claims should be absolutely defended, and in fact, ill healthcare workers and sick employees should be held to a higher standard of proof to obtain benefits.

As challenges to mandatory vaccination programs meander thorough the courts, and voluntary/mandatory absenteeism programs are implemented, the ability of the system to quickly reimburse wages for lost time from work and provide medical benefits for treatment of the contagious disease, remains questionable. Should claims be filed by even a percentage of those workers who become ill, the system, which itself is anticipated to be overtaxed, may not be able the handle the volume on an emergent basis.

So far there has been silence about  workers’ compensation flu pandemic planning. While the Federal and State governments have rules and regulations in their arsenal to meet the challenge, this is an issue where workers’ compensation should be first in line to deliver benefits to sick workers.

Sunday, October 18, 2009

Nebraska Adopts Workers Compensation Lump-Sum Settlements Without Court Review

The State of Nebraska has moved forward administratively and now permits the settlement of workers’ compensation claims without Court approval. The parties need only file a release with the Court. The injured workers must be represented by counsel and the settlements are limited to those involving lump-sum amounts.

“Notice Effective May 27, 2009, the Nebraska Workers’ Compensation Act was amended to eliminate court review of certain lump-sum settlements. Legislative Bill 630 provides that in cases where lump-sum settlements are not required to be submitted for approval by the compensation court, a release shall be filed. LB 630 further provides that the release shall be made on a form approved by the compensation court.

“48-136 The interested parties shall have the right to settle all matters of compensation between themselves with the consent of the workers’ compensation insurer, if any, and in accordance with the Nebraska Workers’ Compensation Act. A copy of such settlement, duly verified by all parties, shall be filed with the Nebraska Workers’ Compensation Court and no  such settlement shall be binding unless the settlement is in accordance with such act.”

Friday, October 16, 2009

RICO Claim Alleging Underlying Workers Compensation Fraud Dismissed

A Federal Judge dismissed a case where the alleged misrepresentation of employment status in an underlying State court workers’ compensation case was pleaded as an alleged basis  of a RICO (Racketeer Influenced and Corrupt Organizations Act) action18 U.S.C. § 1961(c). The court held that a federal racketeering action, filed as a RICO action arising  out of a workers’ compensation claim utilizing mail and wire, must demonstrate multiple verifiable activity of facts demonstrating fraudulent action in order to sustain the burden of proof.

The Court reasoned:
"It is well established that “misrepresentations of the law are not actionable as fraud, including under the mail and wire fraud statutes because statements of the law are considered merely opinions and may not be relied upon absent special circumstances.” Sosa v. DIRECTV, Inc., 437 F.3d 616, 621 (9th Cir.2006). Therefore, Plaintiff’s allegations that the Macedos Defendants committed wire and mail fraud by virtue of falsely claiming that Defendant Jose Moreira was an employee of the Macedos Construction Co., Inc. in order obtain Workers’ Compensation benefits is not actionable as mail and wire fraud."

Virginia Sur. Co., Inc. v. Macedo, Slip Copy-Unpublished, 2009 WL 3230909, D.N.J., September 30, 2009 (NO. CIV.A.08-5586JAG)

Wednesday, October 14, 2009

CDC Issues H1N1 Flu Guidance to Healthcare Personnel-"stay home"

In an urgent need to protect healthcare workers from H1N1 Flu, the today CDC has issued guidance on infection control measures to prevent transmission of 2009 H1N1 influenza in healthcare facilities. The CDC continues to recommend that healthcare workers take time away from work if they are ill. The issue unanswered is whether workers' compensation insurance will pay temporary disability benefits for the absence?

The CDC has defined healthcare personnel as, "....For the purposes of this guidance, healthcare personnel are defined as all persons whose occupational activities involve contact with patients or contaminated material in a healthcare, home healthcare, or clinical laboratory setting. Healthcare personnel are engaged in a range of occupations, many of which include patient contact even though they do not involve direct provision of patient care, such as dietary and housekeeping services. This guidance applies to healthcare personnel working in the following settings:  acute care hospitals, nursing homes, skilled nursing facilities, physician’s offices, urgent care centers, outpatient clinics, and home healthcare agencies.  It also includes those working in clinical settings within non-healthcare institutions, such as school nurses or personnel staffing clinics in correctional facilities. The term “healthcare personnel” includes not only employees of the organization or agency, but also contractors, clinicians, volunteers, students, trainees, clergy, and others who may come in contact with patients."

    Healthcare personnel who develop a fever and respiratory symptoms should be:
    • Instructed not to report to work, or if at work, to promptly notify their supervisor and infection control personnel/occupational health.
    • Excluded from work for at least 24 hours after they no longer have a fever, without the use of fever-reducing medicines.

For more articles on Workers' Compensation and the Flu Pandemic click here.

Saturday, October 10, 2009

Are Driving Distractions Within the Course of the Employment?

The US Department of Transportation recently held a national summit on the issues arising from distracted driving. The facts presented were certainly convincing that distracted driving is a leading cause of accidents.   

  • Distracted driving is dangerous. Distraction from cell phone use while driving (hand held or hands free) delays a driver's reactions as much as having a blood alcohol concentration at the legal limit of .08 percent. (University of Utah)
  • Driving while using a cell phone reduces the amount of brain activity associated with driving by 37 percent. (Carnegie Mellon)
  • 80 percent of crashes are related to driver inattention. There are certain activities that may be more dangerous than talking on a cell phone. However, cell phone use occurs more frequently and for longer durations than other, riskier behaviors. Thus, the #1 source of driver inattention is cell phones. (Virginia Tech 100-car study for NHTSA)
  • Drivers that use handheld devices are four times as likely to get into crashes serious enough to injure themselves. (Insurance Institute for Highway Safety)
  • Nearly 6,000 people died in 2008 in crashes involving a distracted or inattentive driver, and more than half a million were injured. (NHTSA)
  • Research shows that the worst offenders are the youngest and least experienced drivers: men and women under 20 years of age. (NHTSA)
  • On any given day in 2008, more than 800,000 vehicles were driven by someone using a hand-held cell phone. (National Safety Council)
Kristin Backstrom, AAA Foundation for Traffic Safety, testified that, “People who wouldn't get drunk and drive somehow think it's OK to text and drive - which is just as dangerous.

Public policy has always swayed the direction of the legislature. The facts surrounding distracted driving  will probably no exception. Whether this activity can be considered by the courts, as "arising out of and in the course of the employment," or whether the legislature will merely bar compensability if distracted driving is a cause of an accident, has yet to be determined. 
For more on "distracted driving" please click here.

Friday, October 9, 2009

Medicare's Aggressive Debt Collection Practice

A recent article in Mother Jones reports upon the adverse consequences of Medicare's aggressive debt collection practices upon the aging population. The article describes the evolution of the Medicare's debt collection practice, from initially using the attorneys for the beneficiaries as debt collectors, though the new shift of responsibility to insurance carriers through mandatory reporting.

The author predicts, "The prospect of harsher penalties is already leading to insurance company overkill that, combined with Medicare's bureaucracy, has kept some elderly folks from receiving money that's rightfully owed them."
To read more about CMS and Workers' Compensation click here.

Bus Driver Assaulted by Gun Denied Benefits

A Pennsylvania Appeals Board has ruled that a bus driver who was assaulted by a passenger with  gun did not suffer a compensable accident. The driver alleged that he suffered several medical conditions including:  post-traumatic stress disorder, anxiety depressive disorder and insomnia.

The employer asserted that assaults could be anticipated and were normal  working condition. " SEPTA's workers' compensation coordinator Michael Selvato testified about the records of assaults on operators in an effort to show that the incident was not abnormal. He explained that between June 1 and November 1, 2005 there were 292 passenger disturbances on SEPTA busses and 11 assaults on operators; between November 1, 2005 and June 1, 2006 there were 738 disturbances and 33 assaults; and between June 1, 2006 and June 25, 2007 there were 62 assaults on bus drivers. Selvato noted that there had been two bus drivers threatened with a gun from the beginning of 2007 until the time of the hearing on August 23, 2007. During his time as a trolley driver for SEPTA, Selvato had not been accosted with a gun, but he had been assaulted and threatened with a knife."

In ruling against the worker, the Appeals Board concluded that the working conditions were normal for the job and that the injured worker had not sustained the burden of proof to demonstrate that his "his injury was not a subjective reaction to normal work conditions."

McLaurin v. W.C.A.B. (SEPTA) , 2009 WL 2612578, Pa. Comwlth. 2009)

Thursday, October 8, 2009

New Jersey’s Shining Star

Significant progress has been made by the NJ Division of Workers’ Compensation (NJ-DWC) in carrying out the legislative mandate for the newly enacted emergent medical care motion practice.   The Honorable Peter J. Calderone, Director and Chief Judge of the NJ-DWC, delivered a highly favorable report to attorneys attending a workers’ compensation seminar yesterday. The academic seminar was sponsored by the New Jersey Institute for Continuing Legal Education.

Judge Calderone’s report, based on intense statistical tracking and personal involvement  of the Director himself, reveals that New Jersey’s injured workers are in fact receiving medical treatment to “cure and relieve their medical conditions” without delay.

The NJ-DWC has approximately 95,000 cases open cases pending in the system each year. The program efficiently and effectively handles disputes as to medical benefits, temporary disability and permanent disability issues.

Two procedural motions are available to parties who seek medical care when a dispute arises. An ordinary motion for medical care, established by regulation,  has been utilized for years, if not decades, as an avenue to seek redress. The ordinary motion addresses the needs of the parties who require medical care but their condition is not emergent. These motions are handled at the local hearing office level and their status reported to the Director every 90 days, as they remain pending. Approximately 2% of the pending claims statewide involve such ordinary medical motions.

As a result of concerns expressed  in the media approximately 2 years ago, alleging long  delays in the handling of claims for emergent medical care, the NJ Legislature, enacted a statutory mechanism to resolve disputes. That motion requires the observance of a stringent time table for judicial action.  In those cases, where there is a need for emergent medical care, and the failure to provide it on a timely basis would result in irreparable harm, the new administrative procedures for an emergent medical motion may be invoked.  

Immediately following the enactment of the statute, almost a year ago, the NJ-DWC proposed Rules to be followed in processing emergent care motions that would conform with the Legislative mandate. The NJ-DWC operated in conformance with the proposed Rules until they were finally adopted on October 5, 2008, which followed a period for public comment, The rules set forth specific criteria and address procedural compliance issues.  The carefully drafted Rules permit those injured workers who are in need of urgent medical care immediate access to the NJ-DWC system for a speedy and efficient resolution of their claim.

Over the last year, Judge Calderone, has taken an active role in reviewing every single motion that has been filed, in consultation with the supervising judge of the district  office where the case has been venued. A joint determination was then made as to whether or not the statutory criteria had been met and the procedural and substantive compliance with the rules addressed.  If there was compliance by the filing party, the NJ-DWC acted immediately to list the matter for a pre-trial conference in an effort to resolve the dispute before the commencement of a trial. This process remains ongoing.

The statistical evidence reported by Judge Calderone reflects the fact that very few cases have utilized the process, and of those filed, almost all have been resolved within a matter of days on an amicable basis. Within the last year, approximately 50 motions have been filed for emergent medical care, and of those, 16 (32%) had actually satisfied the criteria for filing.  Of the 16  that met the criteria  to be listed for a conference,  all of the cases have been resolved at the conference except for two matters during last year, and those had been set down for trial.

Through the efforts and concerns of the NJ Legislature and the Division of Workers’ Compensation, a good system has been made even better. While this favorable aspect of the NJ workers’ compensation system cannot be globally utilized to solve all the short comings of the national health care crisis, it is a star that shines brightly and may provide some guidance in the on going national health care debate.


The Toxic Legacy in Iraq

The Public Education Center (PEC) has published the second in a series of investigative articles concerning the toxic exposure of Army National Guard Units to cancer-casuing chemicals allegedly released by a government contractor, KBR, Inc.

The exposure was a result of a release by KBR, Inc. to, “...dichromate, a rust-fighting industrial chemical and highly-concentrated hexavalent chromium compound, Hexavalent chromium.” Hexavalent chromium has been described as the most toxic chemical known to man.

The series entitled, “No Contractor Left Behind,” chronicles “...chronicles how a toxic time bomb followed three Army National Guard units home from Iraq. It reveals how a notorious military contractor exposed American soldiers to a cancer-causing carcinogen on the battlefield and how the Pentagon tried to downplay the consequences. And it describes how Congress has relegated its investigation to a toothless forum that lacks the political clout and oversight powers to ensure effective accountability.”

A law suit has been filed by 30 West Virginia National Guardsman because of the exposure. Last month a Pittsburg shoulder who served in Iraq and was also exposed filed a law suit seeking damages for the consequences of his exposure.

For additional article on the Halliburton-KBR Litigation click here.