Friday, November 27, 2009
To read more about Social Security and productivity reports click here.
The "exclusivity doctrine" in workers' compensation limits an employers' responsibility to only scheduled workers' compensation benefits for harm caused to workers that "arises out of" and occurs "within the course of employment." Those benefits have become increasingly difficult to obtain for a multitude of reasons.
The OSGA directive closely follows the prevention guidance issue by The Centers for Disease Control (CDC) to prevent the spread of H1N1 flu. The purpose of the compliance directive is "to ensure uniform procedures when conducting inspections to identify and minimize or eliminate high to very high risk occupational exposures to the 2009 H1N1 influenza A virus."
The CDC has reported that the H1N1 flu activity continues to be widespread in the US and remains above epidemic in proportion for the seventh consecutive week. Over 99% of all subtyped A viruses being reported to the CDC were 2009 influenza A (H1N1) viruses. A total of 171 deaths in children associated with the 2009 influenza A (H1N1) virus infection have been reported to the CDC.
OSHA announced, "In response to complaints, OSHA inspectors will ensure that health care employers implement a hierarchy of controls, and encourage vaccination and other work practices recommended by the CDC. Where respirators are required to be used, the OSHA Respiratory Protection standard must be followed, including worker training and fit testing. The directive also applies to institutional settings where some workers may have similar exposures, such as schools and correctional facilities."
"OSHA has a responsibility to ensure that the more than nine million frontline health care workers in the United States are protected to the extent possible against exposure to the virus," said acting Assistant Secretary of Labor for OSHA Jordan Barab. "OSHA will ensure health care employers use proper controls to protect all workers, particularly those who are at high or very high risk of exposure."
To read more about workers' compensation and the H1N1 Flu click here.
Tuesday, November 24, 2009
Highlights of the NASI (National Academy of Social Insurance) conference convened in Washington were findings presented by eminent leaders in the field. Professor John Burton, Rutgers University, pointed out that newly created barriers to workers’ compensation were pushing more injured workers to the Social Security disability system for benefits. This reflects a phenomenon that occurred in the late 1970’s when a study commissioned by the US Department of Labor and conducted by Mt. Sinai Hospitals’ Environmental Sciences Laboratory, revealed that the inadequate benefit delivery system of workers’ compensation for asbestos related illness, was forcing injured workers and their families into the civil justice arena for adequate compensation.
The problems have not changed in decades; they have only gotten worse, maturing into a system that is in critical condition and on life support. In 1980 Irving J. Selikoff, M.D. reported, “There has been widespread acknowledgement of significant problems with disability compensation for workers in the United States. One major area of concern has been the shortcomings with regard to occupational disease. Whatever the suitability of current workers’ compensation systems in the 50 states for injuries and work accidents, there has been little disagreement about the inadequacies of such systems for workers who become disabled by illness or, if they die, for their surviving dependents.”
Complex questions continue to exist between the scientific and legal communities as to the path to be taken. Barriers placed into the path of recovery, including pre-existing and co-existing conditions, which result in limited or delayed recovery and major shifting of the economic responsibility upon the public/private benefit systems need to be removed. The unspoken social consequences continue as a silent epidemic as families and survivors struggle in silence.
Looking backward over the noble experiment in California which turned sour, Tom Rankin, former President of the California Labor Federation, AFL-CIO, expressed his regret of the reform. The former Labor leader theorized that the results were “unintended consequences.” Indeed he is looking forward to solutions springing forth in a “public option” embedded into the national health care legislation.
Some participants at the NASI conference alleged a major shortcoming of the California workers’ compensation legislative reform effort. Doug Kim, a lobbyist for the claimant’s attorneys, disclosed that the injured workers’ advocates were not invited to partake in the discussion that lead up to crafting the initial drafts of the 2004 California reform legislation SB 899.
History reveals, that when the theoretical reforms were practically applied, the injured workers suffered serious setbacks. If these were in fact “unintended consequences,” then one must consider the active involvement of all stakeholders when looking forward to solutions. The courts in California have consistently upheld challenges to the inequitable results, pointing to the legislative intent to reduce costs. Absent from the discussions of the presenters were practical systemic applications to improve the present system. The “blood and guts” of the traumatic, delay and denial, struggles of navigating in a crippled workers’ compensation system, in California and elsewhere, is verification that change is mandated.
As North Carolina attorney, Valerie A. Johnson, so eloquently remarked, “workers’ compensation is supposed to be a simple system.” The process has now been obstructed by encroaching elements of fault, contributory negligence, apportionment of pre-existing conditions and difficulties of the element of time, manifested by latent diseases unknown to the fathers of the system a century ago. The advance of medical science has brought forth new and innovated modalities that have contributed to soaring medical costs. The convergence of these issues has generated higher administrative costs.
Pecuniary Industry motives have worked adversely to improving safety in the workplace. The need for workers’ compensation would be minimized by adopting a safer occupational environment. Under reporting of workplace accidents continue as the Government Accountability Office announced. Nebraska Appleseed reveals that workers feel intimidated and are apprehensive to report injuries and unsafe work conditions. This is scenario is compounded by the fact that undocumented workers, who have even less job security, work in jobs with higher risk. The Bush Administration did not make efforts to allow OSHA to heighten enforcement efforts. All of these ingredients combine to create a recipe that just doesn’t work.
The US Senate advanced the health care legislation to a floor debate in an unusual late Saturday night session. This action may indeed provide an opportunity for the stakeholders in workers’ compensation to all join in the debate and look for solutions to the delivery of appropriate medical care in an efficient and timely fashion. To avoid “unintended consequences” yet again, injured workers and their advocates will need to be active participants and engage in the debate now.
To read more about workers’ compensation and universal health care solutions click here.
Friday, November 20, 2009
The US Geological Survey reports that asbestos production in 2008 (metric tons) continues at alarming rates around the world:
The US continues to import 1,460 metric tons of asbestos at a raw product cost of $1,090,000. It exports and reports many asbestos and asbestos based products including: cement products, friction products, gaskets, paper and millboard, all valued at $33,200,000.
"U.S. consumption of asbestos was 1,460 t in 2008, a 16% decrease from 1,730 t in 2007. Coating and compounds accounted for 36% of U.S. consumption; roofing products, 34%; and other, 30%. Most of the asbestos reported under “coating and compounds” probably was used in roofing products. Consequently, roofing applications, which comprised bituminous roof coatings and roof sealants, accounted for 65% to 70% of the total U.S. asbestos end-use market."
Thursday, November 19, 2009
"PTD [permanent partial disability] benefits are not meant to supplement a claimant’s wages rather they are intended to assist the worker who will never be able to return to work."
Professor Burton reported that in 1999 between 80% to 93.8% of occupationally disease medical costs were not considered compensable and the costs were being shifted to the SSDI program. He concluded that, "...a substantial infusion of research funds are necessary to clarify the relationships between the Workers' Compensation and SSDI Programs."
To read more about Professor Burton and workers' compensation on the blog, click here.
Wednesday, November 18, 2009
Like obesity, workers' compensation insurance carriers have considered it as a risk not associated with work condition even though it has been a synergistic agent in many occupational cancers, ie. asbestos exposure and smoking results in an enormous risk increase for lung cancer.
To make the workplace safer and end the epidemic of occupational cancers, the compensation system should embrace the effort to eliminate smoking in the workplace and provide assistance to workers to stop smoking.
Great American Smokeout ---
November 19, 2009Although the United States has made great strides toward reducing the prevalence of smoking, approximately 46 million adults (20.6% of the population) still smoke (1), and every day, another 1,000 young persons become new smokers (2). Annually, smoking results in 440,000 deaths and $193 billion in health-care costs and lost productivity (3). November 19 marks the 33rd anniversary of the American Cancer Society's Great American Smokeout. This annual event challenges smokers to quit for at least 1 day and provides information resources to help them quit permanently.
Quitting smoking has immediate and long-term benefits, including reduced risk for heart disease and certain cancers. Successful quitting often takes several tries. To improve success, smokers should use proven cessation treatments and services, including health-care guidance, approved medications, and cessation counseling. Combining counseling and medications can more than double cessation success. More information about the Great American Smokeout is available at http://www.cancer.org, and free help for quitting smoking is available by calling 800-QUIT-NOW (800-784-8669) or visiting http://www.smokefree.gov.
- CDC. Cigarette smoking among adults and trends in smoing cessation---United States, 2008. MMWR 2009;58:1227--32.
- Substance Abuse and Mental Health Services Administration. Results from the 2008 National Survey on Drug Use and Health: detailed tables, 4-10A and 4-11A. Rockville, MD: US Department of Health and Human Services, Office of Applied Studies; 2009. Available at http://www.oas.samhsa.gov/nsduh/2k8nsduh/tabs/sect4petabs1to16.htm#tab4.10a. Accessed November 4, 2009.
- CDC. Smoking-attributable mortality, years of potential life lost, and productivity losses---United States, 2000--2004. MMWR 2008;57:1226--8.
Tuesday, November 17, 2009
While the United States has established a national protocol to meet the medical challenges H1N1 flu pandemic, there remains a void on how to pay workers who are ill and have been encouraged by the government to stay home. The litigious workers' compensation adversarial system may provide benefits ultimately for those who can demonstrate that their illness "arose out of and occurred in the course of the employment," after months, if not years, of delay.
Some states have temporary disability programs, fraught with bureaucratic delay and red tape, while the issues of denial in the workers' compensation claims become identified. If held to be compensable, reimbursement is then sought by the temperate disability plan, public or private,
The issues of a lack of an efficient wage replacement system for those workers affected by the H1N1 flu will be addressed by Congress shortly. The chorus of advocacy is increasing as this debate advances. The following is a recent post from the occupational-environmental mailing list setting forth a pretty persuading argument to establish a plan to pay sick workers with H1N1 flu.
1. Determine whether nanoparticles and nanomaterials pose risks of work-related injuries and illnesses.
2. Conduct research to prevent work-related injuries and illnesses by ap- plying nanotechnology products.
3. Promote healthy workplaces through interventions, recommendations, and capacity building.
4. Enhance global workplace safety and health through national and international collaborations on nanotechnology research and guidance.
"To date, NIOSH/OEP has committed about $5.3 million dollars to research on applications and implications of nanotechnology. Summaries of the projects funded by NIOSH/OEP are included in Appendix B. NIOSH/OEP plans to continue collaborative efforts with EPA/NCER, NSF, NIH/NIEHS, and other international agencies to support nanotechnology research with occupational safety and health implications. OEP will continue to confer with the NIOSH Nanotechnology Research Center regarding issues, gaps, and future directions.
To read more about nanotechnology click here.
Monday, November 16, 2009
To complicate the claim further, the attorney also failed to report the legal malpractice claim to his insurance carrier on a timely basis. In a separate action the legal malpractice insurance carrier was held not liable for the attorney's malpractice.
The workers' compensation claim was settled for $30,000. The liability claim resulted in a judgment, which was entered following a proof hearing, included an award of damages in the amount of $275,000, plus prejudgment interest of $31,453.20, and counsel fees and costs totaling $52,582.17.
Braime v Popovich DOCKET NO. A-3077-07T23077-07T2 NJ App Div Decided 11.6.09 unpublished.
For more about workers' compensation click here.
Thursday, November 12, 2009
The American Public Heath Association (APA) has called for a ban by Congress on the manufacture, sale, export, or import of asbestos containing products including products in which asbestos is a contaminant. Asbestos claims 10,000 American lives each year.
Wednesday, November 11, 2009
"To improve oversight immediately, I sent interim guidance to OSHA regional administrators about the monitoring tools available to them and encouraged more in-depth investigation of potential problems," said Barab. "To ensure that deficiencies similar to those found in Nevada do not exist in any of the other state plans, OSHA will conduct a baseline evaluation, similar to what we conducted in Nevada, for every state that administers its own program. These evaluations will lead to better program performance and consistency throughout all state plans."
The read more about OSHA and workers' compensation click here.
Tuesday, November 10, 2009
To read more about medical benefits & workers' compensation click here.
Monday, November 9, 2009
“If near universal coverage becomes a reality, the medical portion of several types of property casualty insurance could be delivered in a much more efficient manner. Absent near universal coverage, we will likely have to continue relying on the more costly, but important role of other insurance models.”
To read more about workers' compensation and medical benefits click here.
To read more about workers' compensation and California click here.
Friday, November 6, 2009
"In October, the number of unemployed persons increased by 558,000 to 15.7 million. The unemployment rate rose by 0.4 percentage point to 10.2 percent, the highest rate since April 1983. Since the start of the recession in December 2007, the number of unemployed persons has risen by 8.2 million, and the unemployment rate has grown by 5.3 percentage points."
"Among the marginally attached, there were 808,000 discouraged workers in October, up from 484,000 a year earlier. (The data are not seasonally adjusted.) Discouraged workers are persons not currently looking for work because they believe no jobs are available for them. The other 1.6 million persons marginally attached to the labor force in October had not searched for work in the 4 weeks preceding the survey for reasons such as school attendance or family responsibilities."
While currently disabled workers may continue to collect benefits in most jurisdictions , even if unemployed, lower payrolls will result in lower premium revenues for insurance companies and lower contributions to State workers' copensation funds. The advocacy system will continue to implode with the resulting less revenue to maintain present and generate new infrastructure.
The numbers show a pattern that the "aging workforce", complicated by younger discouraged workers, may have difficulty finding employment in the new market post-recession. While the practice of workers' compensation law may rebound somewhat on the future, it will cetainly take a different path.
To read more about the the furture of workers' compensation click here.
Tuesday, November 3, 2009
Workers' compensation is social, remedial legislation. It is supposed to be a summary proceeding that delivers benefits expeditiously and efficiently to injured workers. The promise made in 1911 was a system removed of fault, contributory negligence and assumption of the risk. Society has reneged on that agreement and now apportions and allocates disability on pre-existing conditions, prior functional credits and individual habits of workers. Ironically, it is Industry itself that markets items that results in obesity, smoking addiction and many other allegedly non-compensable factors.
The quality of a system is not only factored on rate of benefits, cost of insurance and lost time frequency. It is a system that should be evaluated on the human factors of injured workers' access to benefits and the time required to achieve the result. Justice delayed is indeed justice denied.
Yes, California, Alaska, New Jersey, New York and Montana may all share the bottom of the tank on the Risk and Insurance rating scale. However, horror stories are heard from Massachusetts (#1) concerning "opt-out programs," and in Nevada (#2) from OSHA, concerning the failure to abide by safety regulations. These dismal problems seem to be universal and embrace the entire program as it now exists.
Like the Miss America Pageant, it is time to take a good hard look at how the system presently functions and why it is not meeting expectations, both financial and socially. Congress should commission an undertaking to figure out how to put the workers back into workers' comp.
To read more about a Congressional Commission click here.