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

Saturday, February 27, 2010

Making a Fatal Circus Out of Safety

The terrible and tragic death of Daum Brancheau, the trainer who was attacked at SeaWorld by a killer whale, provides striking evidence that the present system, to make the workplace safer, is not working. The corporate incentive to maintain a safe workplace unfortunately only can be induced by economics.

Two things need to happen so that workplaces become safer. The Occupational Safety and Health Act (OSHA) need to be strengthened, and the workers' compensation system needs to remove the exclusivity bar that prevents liability claims against employers.

Workers' compensation has been in place since 1911 and limits recovery for an employee injured at work and shields employers from liability claims by injured workers. The system provides for a limitation of recovery and economic caps that shield employers from threatening damage claims. Without an economic incentive employers just won't do what's necessary to prevent accidents and injuries to employere.

Legislation, Protecting America's Workers Act H.R. 2067 S.1580 and Protecting Workers From Imminent Dangers Act of 2009 H.R.2199 ,  is presently under consideration to put teeth back into OSHA. Those pending changes, sadly will not help Dawn, they would be a good first step in preventing injuries and deaths like what occurred at SeaWorld in Florida.

Click here to red more about OSHA and workplace accidents and illnesses.

Friday, February 26, 2010

Novel Approach-Eliminate the Need to Go To Court

Scotland is working on a way to speed up compensation benefits in wrongful death compensation cases. Bill Butler, Minister from Glasgow has proposed that in admitted cases the parties should not have to appear in court.Joe O'Neill, of the Clydebank Asbestos Group, said: "This is welcome news for the people we represent.

"Too often protracted legal proceedings place undue strain on families and I would urge all MSPs to get behind these proposals and ensure that justice can be accessed as quickly as possible."
Speeding up the process is something that Nebraska does already also through the elimination of court appearances. Nebraska allows resolution of lump sum dispositions by merely filing a release.

Thursday, February 25, 2010

Trauma of Job Loss Often Includes Health Problems

Occupational heart attacks are notorious issues in workers' compensation claims. The New York Times reviews the phenomenon cardiovascular episodes attributed to work related stress due to plant closings.

A "....paper, published last year by Kate W. Strully, a sociology professor at the State University of New York at Albany, found that a person who lost a job had an 83 percent greater chance of developing a stress-related health problem, like diabetesarthritis or psychiatric issues."

The Occupational Disease Pilot Program & Healthcare

Health Care reform continues to be at the forefront of the Obama administration’s agenda.   Legal Talk Network Host and Attorney Alan S. Pierce welcomes Jon L. Gelman to discuss health care and workers’ compensation and the Occupational Disease Pilot Program: a close look at the delivery of  medical benefits when it comes to occupational disease and how workers' compensation may or may not fit into the big picture of universal health care or health care reform.

Click here to listen to the interview (duration 27:58):
MP3 Link: (20.6MB)

To read more about the Libby MT Pilot Project click here.

To read more about workers’ compensation and universal health care solutions click here. 

Tuesday, February 23, 2010

Taking Aim At Carcinogenic Cosmetics

The fragrance and cosmetic industry is now the target of potential regulation as the State of Colorado is considering legislation to ban cosmetics that contain cancer producing substances. Legislation has been introduced by Senator Betty Boyd and Representative Dianne Primavera to ban the products.The proposed legislation is entitled "Colorado Safe Personal Care Products Act." [HB 1248]

Recently the NJ Courts upheld a workers' compensation claim of a worker who suffered a medical condition as a result of merely sustaining a bystander exposure to perfume

The cosmetic and fragrance industry is largely self-regulated. The proposed Colorado legislation comes as a new national effort is being made to create a safer environment in the workplace.

The read more about occupational exposures and workers' compensation click here.

Asbestos Deaths Predicted to Continue for Decades

The National Institute for Occupational Safety and Health (NIOSH) has released a draft Intelligence Report concerning asbestos and mesothelioma in an effort to create a "road-map for research."

"Asbestos has been a highly visible issue in public health for over three decades. During the mid- to late-20th century, many advances were made in the scientific understanding of worker health effects from exposure to asbestos fibers and other elongate mineral particles (EMPs). It is now well documented that fibers of asbestos minerals, when inhaled, can cause serious diseases in exposed workers. However, many questions and areas of confusion and scientific uncertainty remain. For instance, due to the mineralogical complexity of the asbestos minerals, the scientific literature contains various inconsistencies in the definition and application of the term asbestos for health protection guidance and regulatory purposes."

"The purpose of the Roadmap is to outline a research agenda that will guide the development of specific research programs and projects that will provide a broader and clearer understanding of the important determinants of toxicity for asbestos and other EMPs. NIOSH recognizes that results from such research may impact environmental as well as occupational health policies and practices. Many of the issues that are important in the workplace are also important to communities and to the general population.Therefore, NIOSH envisions that the planning and conduct of the research will be a collaborative effort involving active participation of multiple federal agencies, including the Agency for Toxic Substances and Disease Registry (ATSDR), the Consumer Product Safety Commission (CPSC), the Environmental Protection Agency (EPA), the Mine Safety and Health Administration (MSHA), the National Institute of Environmental Health Sciences (NIEHS), the National Institute of Standards and Technology (NIST), the National Toxicology Program (NTP), the Occupational Safety and Health Administration (OSHA), and the United States Geological Survey (USGS), as well as labor, industry, academia, health and safety practitioners, and other interested parties, including international groups. This collaboration will help to focus the scope of the research, to fund and conduct research, and to develop and disseminate informational materials describing research results and their implications for establishing new occupational and public health policies."

Asbestos Deaths Predicted to Continue for Decades
"NIOSH has annually tracked U.S. asbestosis deaths since 1968 and malignant  mesothelioma deaths since 1999 using death certificate data in the National Occupational  Respiratory Mortality System (NORMS). NORMS data, representing all deaths among  U.S. residents, show that asbestosis deaths increased almost 20-fold from the late 1960s  to the late 1990s (Figure 6) [NIOSH 2007b]. Asbestosis mortality trends are expected to substantially trail trends in asbestos exposures (see Section 2.4.2) for two primary  reasons: (1) the latency period between asbestos exposure and asbestosis onset is 2 typically long, commonly one or two decades or more; and (2) asbestosis is a chronic disease, so affected individuals can live for many years with the disease before succumbing. In fact, asbestosis deaths have apparently plateaued (at nearly 1,500 per year) since 2000 (Figure 3) [NIOSH 2007b]. Ultimately, it is anticipated that the annual  number of asbestosis deaths in the United States will decrease substantially as a result of  documented reductions in exposure. However, asbestos usage has not been completely  eliminated, and asbestos-containing materials remain in place in structural materials and  machinery, so the potential for exposure remains. Thus, asbestosis deaths in the United  States are anticipated to continue to occur for several decades."

Mesothelioma Strongly Linked to Occupational Exposures
"Malignant mesothelioma, an aggressive disease that is nearly always fatal, is known to be  caused by exposure to asbestos and some other mineral fibers [IOM 2006]. The occurrence of mesothelioma has been strongly linked with occupational exposures to asbestos [Bang et al. 2006]. There had been no discrete International Classification of Disease (ICD) code for mesothelioma until its most recent 10th revision. Thus, only seven years of NORMS data are available with a specific ICD code for mesothelioma (Figure 4); during this period, there was a 9% increase in annual mesothelioma deaths, from 2,484 in 1999 to 2,704 in 2005 [NIOSH 2007b]. A later peak for mesothelioma deaths than for asbestosis deaths would be entirely expected, given the longer latency for mesothelioma [J√§rvholm et al. 1999]. One analysis of malignant mesothelioma incidence based on the National Cancer Institute's Surveillance, Epidemiology, and End Results (SEER) Program data found that an earlier steep increase in incidence had moderated and 1 that mesothelioma incidence may have actually peaked sometime in the 1990s in SEER-2 covered areas [Weill et al. 2004]. In contrast to NORMS data, which represents a census 3 of all deaths in the entire United States, the analyzed SEER data were from areas in 4 which a total of only about 15% of the U.S. population resides."

NIOSH  has invited Public Comment Until April 16, 2010 5:00pm EDT

Friday, February 19, 2010

Defense Expert Found Contradictory in Psych Claim

The NJ Appellate Division affirmed the trial decision of Judge Kovalcik who ruled that the testimony of the defense expert was "contradictory and inconsistent and cannot credit his conclusion that Petitioner no longer suffers from post traumatic stress disorder."

The injured worker was struck from behind by two co-workers who had threatened to kill him.

Sormaz v. Alpha Moving & Storage, Inc. .. JERSEY APPELLATE DIVISION DOCKET NO. A-3482-08T33482-08T3  Decided 2.18.2010

Click here to read more about psychiatric claims and workers' compensation.

Thursday, February 18, 2010

Camp Lejeune Toxic Exposure

Newly reported information is now demonstrating that the water at Camp Lejeune NC military base may have been  contaminated as a result of a toxic spill. Marines, sailors, their families and other civilian contractors may be been exposed to benzene, a human carcinogen.

Benzene was reported in the well water used for drinking on the base. The substance has been causally linked to cancer.It has been alleged that a dry cleaners leaked the toxin into the water for over three decades. Benzene has been liked to childhood cancers and birth defects.

Representative Brad Miller (D-NC) has requested an investigation into the exposure and possible concealment of information. As many as 1 million may have been exposed.

Click here to read more about claims arising out of benzene contamination.

Canadian Asbestos Hypocrisy

Despite the fact that asbestos is a know cancer producing agent, Quebec liberals have won their battle to continue asbestos mining. In 2008 asbestos amounted to a $100 Million dollars business in Canada. Canada exports the majority of its asbestos to developing counties which amounts to 175,000 tons per year. 

Over 100 scientists from 28 nations had written a letter in support of a ban on asbestos production in Canada.  “We appeal to you to respect the overwhelmingly consistent body of scientific evidence and the considered judgment of the World Health Organization (WHO) that all forms of asbestos have been shown to be deadly and that safe use of any form of asbestos has proven impossible anywhere in the world,” the letter began. “Under Canadian law, chrysotile asbestos is classified as a hazardous substance, but the Quebec government has successfully lobbied to prevent it being recognized as such under international environmental law, thus creating a double standard of protection as if some lives were less deserving of protection than others.”

The Canadian Journal of Medicine had also endorsed a ban on Canadian asbestos production. "Canada's government must put an end to this death-dealing charade. Canada must immediately drop its opposition to placing chrysotile under the Rotterdam Convention's notification and consent processes and stop funding the Chrysotile Institute. More importantly, Canada should do its part in alleviating the global epidemic of asbestos-related disease by ending the mining and export of chrysotile, as the WHO recommends."

Asbestos causes multiple diseases including: asbestosis, lung cancer and mesothelioma. For decades US victims of asbestos related disease have sought benefits under the workers' compensation system from employers. They have also filed claims under the civil justice system against suppliers, manufacturers and distributors of asbestos products. Due to the latency of the disease from exposure to manifestation, despite the reduction in the use of asbestos fiber, the disease continues to be very prevalent in the US and throughout the world.

Click here to read more about efforts to ban asbestos production in the US.

Wednesday, February 17, 2010

CMS Postpones Production Date for Mandatory Reporting

CMS has postponed first production date until January 1, 2011:
"CMS advises all NGHP RREs that the date for first production NGHP Input Files is changed from April 1, 2010 to January 1, 2011, effective immediately.
  • NGHP File data exchange testing will continue.  All NGHP RREs should now be registered with the COBC, and either in or preparing for file testing status.  NGHP file data exchange testing may continue during 2010, as needed.
  • All NGHP file data exchange testing will be completed by December 31, 2010.  NGHP RREs that have completed file data exchange testing at any time are encouraged to proceed to production file data exchange status.
During the week of February 22, on this Website CMS will post the next version of the "Section 111 NGHP User Guide" and a number of Alerts relating to particular NGHP policy issues.
Also during the week of February 22, on this Website CMS will post an alert for NGHP RREs describing the steps those RREs can take to assure their ongoing compliance with the Section 111 reporting requirements."

Click here to read more about CMS and workers' compensation.

Time to Collect the Salt Shakers

The reduction of factors contributing to cardiovascular disease would make any workplace a lot healthier. Recently, Mayor Bloomberg equated the deadly effects of asbestos exposure with salt intake.

Now comes a recent study reported in the New England Journal of Medicine (NEJM) that illustrates that even a minor reduction of salt intake would produce a significant reduction in cardiovascular events.

NEJM states in an editorial, "The large potential benefits of reducing salt intake observed by Bibbins-Domingo and colleagues may even represent an underestimate. Salt reduction is associated with reduced blood pressure in children and an attenuated age-related rise in blood pressure in adults. Neither of these benefits was modeled in the present analysis. There is also evidence that salt reduction may reduce the risk of gastric cancer, end-stage kidney disease, left ventricular hypertrophy, congestive heart failure, and osteoporosis."

As employers have eliminated other co-exisitng contributing factors such as tobacco smoke, they would be indeed wise to also consider the reduction of other factors, such as salt intake. Such action could only make the workplace a healthier environment.

Click here to read more about salt intake and possible workers' compensation consequences.

Senators Call for Toxic Substances Act Update

The New York Times today reports that Senator Frank Lautenberg (D-NJ.) is anticipated to introduce new legislation to modernize The Toxic Control Substances Act (TSCA) originally enacted in 1976. 

"There's no question that chemicals are essential to our modern lives ... but when we use these products, the chemicals in them can end up in our bodies," Lautenberg said. "And when the chemicals used in flame retardants, plastics or rocket fuel show up in our children's bodies, we have a potentially dangerous situation."

Click here to read more about toxic exposures and workers' compensation.

Sunday, February 14, 2010

Meso for Miles - Supporting Mesothelioma Research

A Walk/Run in support of research to treat and cure mesothelioma was successfully held in South Florida today. Hundreds were in attendance to support the research effort and demonstrate to ban the use of asbestos in the United States.

The legacy of disease caused by the innocent exposure to asbestos exposure continues in epidemic proportion. Asbestos, a known carcinogen, exposure results in asbestosis, lung cancer and mesothelioma.

Zurich May Face a Surge in European Asbestos Claims

It has been reported that Zurich Insurance in Britain may be facing a huge increase in asbestos disease claims.The British House of Lords may act on legislation permitting recovery for asbestos disease claims where there is evidence of scarring called pleural plaque.

Bloomberg News reported“There could be a material deterioration in prior year profitability,” said David Masters, a London-based credit analyst at Moody’s. “There remains a risk that pleural plaques claims costs could spiral over time.”

The century old workers compensation programs have become stagnated in processing occupational claims. Huge delays in compensating victims of asbestos disease in Britain have been reported. This mirrors what is occurring in the US. Workers' Compensation systems that have also been dilatory in with the disposition of these claims for numerous reasons.

Rating agencies have indicated that costs for asbestos related disease through Europe may have significant impact upon the reserves of insurance carriers including large one like Zurich.

Asbestos exposure is a cause of latent and fatal diseases such as asbestosis, lung cancer and mesothelioma. 

Click here to read more about asbestos and workers compensation.

Malignant Pleural Mesothelioma and Occupational Exposure to Asbestos

A strong relationship has been reported between industrial uses of all forms of asbestos is generating an increase in mesothelioma-related diseases and deaths among Mexican workers.

"Environmental and occupational exposure to asbestos in Mexico in the past has been a cause of deaths and health damages. Its magnitude is unknown to date. Our objective was to identify the proportion of cases of malignant pleural mesothelioma (MPM) that can be attributed to and occupational exposure to asbestos."

"As a public health policy, Mexico should the use of asbestos in all production processes with the aim of controlling the epidemic and preventing the occurrence of new cases of MPM."

Saturday, February 13, 2010

US Department of Labor’s OSHA cites C.A. Franc $539,000 for willful fall hazard violations

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has fined the C.A. Franc construction company $539,000 following the investigation of a roofing worker who fell 40 feet to his death at a Washington worksite. The Valencia, Pa.-based roof installer – whose owner is Christopher A. Franc – was cited for 10 per instance willful citations for failing to protect workers from falls.

“Mr. Franc knowingly and willfully failed to protect his workers from falling to their death,” said Assistant Secretary of Labor for OSHA Dr. David Michaels. “Despite repeated requests from workers that he provide fall protection, on this step roof, Mr. Franc refused to provide readily available protection. We will not tolerate this type of blatant and egregious disregard for the health and safety of workers.”

OSHA began its investigation immediately following the worker’s death on Aug. 15, 2009, and found the C.A. Franc company had failed to provide any fall protection to its employees working on a pitched roof 40 feet off the ground. In addition, Mr. Franc failed to train a newly hired college student in hazards and the necessary safety measures for roofing work. As a result of the investigation, the company has been cited for 10 alleged per-instance willful violations, one for each employee working unprotected on the roof, with a proposed penalty of $490,000, and one additional alleged willful violation for failing to train the new employee, with a penalty of $49,000.

General contractor Hospitality Builders Inc. also has been cited with one willful violation and a proposed penalty of $70,000 for failing to ensure that C.A. Franc workers had fall protection.

“This fall fatality was one of five that occurred during a 15-day span in the Pittsburgh area,” said John M. Hermanson, OSHA’s regional administrator in Philadelphia, Pa. “Falls are the leading cause of fatalities in the construction industry. Failure to provide employees with fall protection is unconscionable. We urge construction companies to take the necessary action to ensure their workers are protected.”

OSHA defines a willful violation as one committed with intentional, knowing or voluntary disregard for the law’s requirements, or with plain indifference to employee safety and health. Detailed information about fall hazards and safeguards is available on OSHA’s Web site at

The company has 15 business days from receipt of the citations to comply, request an informal conference with OSHA’s area director, or contest the citations and proposed penalties before the independent Occupational Safety and Health Review Commission. The investigation was conducted by OSHA’s Pittsburgh Area Office; telephone: 412-395-4903. To report workplace accidents, fatalities or situations posing imminent danger to workers, call OSHA’s toll-free hotline at 800-321-6742.

In a related criminal charge, Christopher A. Franc today entered a guilty plea in federal court to a violation of 29 U. S. C. Section 666(e). Sentencing is scheduled for June 18.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to assure these conditions for America’s working men and women by setting and enforcing standards, and providing training, outreach, education and assistance. For more information, visit

Thursday, February 11, 2010

New 911 Photos Dramatically Illustrate Toxic Cloud

The horrific tragedy of the attack on the World Trade Center on 911 and the toxic cloud of fumes and dust are vividly portrayed in newly released photos. The massive extend of the spread of toxic substances has given rise to resultant disease and illness to emergency first responders and residents of lower Manhattan.

ABC secured the release of the photos by a Freedom of Information Act Request to the New York Police Department (NYPD). The photos were taken  from an NYPD helicopter immediately following the attack when two large jet liners, loaded with fuel and passenger, were seized by terrorists and crashed into the buildings.

The fight to secure adequate medical care for medical conditions flowing from the exposures has been very problematic. While several local agencies have attempted to provide medical care, the lack of funds and a unified program has left many without appropriate medical care.

Click here to read more about 911 and medical care programs.

Wednesday, February 10, 2010

Travelers Insurance Lobbies Congress With $1.66 Million

The Associated Press reports today that, "Insurer Travelers Cos. spent $1.66 million in the fourth quarter to lobby the federal government on global warming issues, workers compensation, consumer protection rights and other issues, according to a recent disclosure report." Travelers "also lobbied on issues including the National Insurance Consumer Protection Act, coastal wind zone proposals, bankruptcy issues and asbestos-related legislation."

To read more about Travelers Insurance Company and workers' compensation click here.

Workers Compensation Countable as Income Despite Special Needs Trust

An injured worker was denied food stamps in NJ because money from a workers' compensation  award was countable as income despite the existence of a special needs trust.

"A special needs trust that effectively exempts assets or income from inclusion in Medicaid eligibility calculation can be established for the benefit of an individual deemed disabled pursuant to 42 U.S.C.A. § 1382c(a)(3). 42 U.S.C.A. § 1396p(d)(4)(A). The disability determination, however, can only be made by the Social Security Administration or the state disability review team, and only based on the definition set forth in the federal statute. See N.J.A.C. 10:71-3.10 to -3.12(a). Hence, the workers' compensation court judgment as to petitioner's disability, issued by a judge in the workers' compensation context, is not dispositive of whether she is "disabled" pursuant to the federal definition. See N.J.A.C. 10:71-3.10. As the Director of DMHS stated, unless and until petitioner is found to be disabled by the Social Security Administration or the state disability review team, she is not entitled to protect her assets through the use of a special needs trust. See Determining Disability and Blindness, 20 C.F.R. § 404.1504 (2009); Determining Disability and Blindness, 20 C.F.R. § 416.904 (2009)."

J.C. v. Division of Medical Assistance and Health Services, et al., Docket No.: a5632-07 Decided: 2010-02-08

Note: N.J.A.C. 10:71-3.10 Disability and Blindness Factors
For purposes of determining medical eligibility for the Medicaid Only program, the disability and blindness standards shall be the same as for the Supplemental Security Income program under Title XVI of the Social Security Act, as amended by Public Law 92-603. 42 N.J. Reg. No. 4.

Tuesday, February 9, 2010

CMS Set-Aside Rules Raise Concern of Civil Trial Bar

At a recent continuing legal education program in Wisconsin members of the plaintiff and defense civil trial bar raised their concerns over the Rules governing CMS set-aside arrangements. While both sides recognized the need to reimburse Medicare, the methods being utilized by CMS to obtain reimbursement of future medical expenses caused deep concern by the lawyers.

Click here to read more about CMS Set-aside arrangements.

Secretary at Former Asbestos Plant Awarded $17.87 Million

A former secretary at an Illinois asbestos plant, Union Asbestos and Rubber Company (UNARCO) was awarded $17.87 Million as a result of contracting an asbestos related disease, mesothelioma. The woman was employed from 1967 to 1969 at UNARCO as a secretary.

The lawsuit alleged that Pneumo Abex LLC and Honeywell International Inc. and their corporate predecessors knew of the dangers of asbestos and failed to warn their employees and customers of the hazards.

UNARCO also operated an asbestos plant in Paterson NJ from 1942 through November, 1954. It produced asbestos pipe covering and textile material for US Navy ships and and others. The Paterson NJ group of workers, and their families, became the cohort group for sentinel studies conducted by the late Irving J. Selikoff, MD (1915-1992), who linked asbestos exposure to various disease including: asbestosis, lung cancer and mesothelioma. Those studies ultimately lead to a world renown conference in 1964 sponsored by The New York Academy of Sciences.

Asbestos is still mined in Canada. The use of asbestos in the United States has yet to be banned in the United States.

Disease caused by asbestos has resulted in an epidemic of disease and resulting massive amounts of workers' compensation occupational exposure claims and civil actions. Asbestos litigation has been deemed "The Longest Running Tort in American History."

Click here to read more about asbestos and workers compensation.

Click to read more about asbestos litigation.

Monday, February 8, 2010

The Saga of Asbestos in LIbby Montana

The plight of the workers of Libby Montana may have been highlighted by efforts of Senator Harry Reid in the recent Senate Health Care Reform legislation, but it goes historically much deeper. While the hazardous of asbestos may have been studied for over a hundred years, it wasn't until a newspaper article 1999 did horrors of Libby become nationally recognized.

A a recent lecture Aubrey Miller, M.D. spoke on the plight of Libby and its people. An environmental epidemiologist and a captain in the U.S. Public Health Service board-certified in occupational medicine, Miller currently serves as the chief medical officer in the U.S. Food and Drug Administration (FDA) Office of the Commissioner's Office of Counterterrorism and Emerging Threats. Previously, he worked for the U.S. Environmental Protection Agency (EPA) and for the U.S. Department of Health and Human Services (DHHS) as a regional health administrator, coordinating multi-agency emergency responses, such as the Libby situation.

"It's the worst site in EPA history in terms of human health......Even though asbestos has been studied for 100 years," he added, "the science and regulations were developed from worker studies for workplace settings and thus were not very useful for environmental situations and non-worker exposures."

Eddy Ball, a reporter covering the Miller's lecture to a capacity audience concluded, "Politics and financial interests further complicate the regulation of such environmental hazards as Libby's. For instance, there was ample evidence accruing for many years that environmental asbestos contamination was hazardous and that the Libby situation was 'a predictable surprise.' Based on his experiences Miller is convinced that 'there must be other Libbys occurring under our noses' in the U.S. Miller stated we need to challenge dogma and preconceptions about environmental exposures and who is at risk in order to identify disease and provide honest and useful solutions for our communities."

Friday, February 5, 2010

Quebec's The Selling of Asbestos Called "Immoral"

The Montreal Gazette has called for a ban on the sale of asbestos. Asbestos continues to be  mined in Quebec.

Asbestos is a long known carcinogen causally related to asbestos, lung cancer and  mesothelioma (a rare and fatal disease.) A major effort has been underway internationally to ban asbestos as the epidemic of asbestos disease continues to be rampant.  Injured workers and their families have inundated workers' compensation system throughout the US highlighting insufficiencies in the system to provide adequate benefits and straining the traditional tort system.

In an editorial the paper stated, "The day should be long gone when a civilized society such as Quebec's knowingly sells a carcinogenic substance - asbestos - to a poorer, developing country such as India."" In an interview with an Indian publication in December, New Democratic Party MP Pat Martin said, 'Asbestos and tobacco are the two industries where the industry knows well it is killing people, but it survives by junk science and aggressive lobbying of politicians.'"

"A coalition of more than 100 scientific experts from 28 countries sent a letter to Charest [Quebec's Premier] last week, on the eve of his trade-mission visit to India, pointing out that Quebec is facing an uspurge of asbestos-related illness. Asbestos is to blame, the province's workers' compensation board says, in 60 per cent of the 104 cases of Quebec workers who died from work-related causes in a seven-month period last year."

CMS Sues Lawyers Over MSP Reimbursement

The Secretary of Health and Human Services (HHS) [The Centers for Medicare and Medicaid Services (CMS)] has filed a recovery action in the US District Court in Alabama for recovery of Medicare Secondary Payments (MSP). 

The recovery action is based upon an alleged failure of the attorneys to honor a claim that CMS had filed in an underlying bankruptcy claim filed in 2003. The settlement provided for distributions to be paid from 2004 through 2013 by the defendants.

The complaint alleges that the US may initiate a claim for recovery of Medicare conditional payments when it "learns that payment 'has been or could have be made' under a liability insurance policy of plan. 42 C.F.R. Sec 411,24(b)."

Click here to read more about Medicare Secondary Payer Act and workers' compensation.

Ethnic Disparities in Workers' Compensation

Researchers from the National Institute for Occupational Safety and Health (NIOSH) have partnered up with researches from other agencies and organizations address the needs, challenges, and opportunities for improving workplace safety and health for underserved worker populations in a special February 2010 issue of the American Journal of Industrial Medicine, “Occupational Health Disparities.” 

NIOSH reports, " Low-wage, low-skilled, and immigrant workers face disproportionately high risks for work-related injuries and illnesses in comparison with the U.S. workforce in general.  They also encounter significant barriers in accessing training and education programs, health care systems, and legal protections that are critical for mitigating those risks."

“This special issue of the American Journal of Industrial Medicine adds to our knowledge by examining occupational health disparities and inequities immigrant and other workers face, and measuring the extent of the problem,” U.S. Secretary of Labor Hilda Solis states in a Foreword to the issue. “In addition to helping address the need for better data, this research promises to create new knowledge that can be used to improve the lives of our nation’s workers."

  • Occupational health surveillance must be enhanced and improved to describe the nature and extent of disparities in occupational illnesses and injuries (including fatalities), identify priorities for research and intervention, and evaluate trends. This is a priority of NIOSH and its partners under the National Occupational Research Agenda (NORA). Serious shortcomings in current surveillance systems include an undercounting of what research suggests to be the true incidence of work-related injuries, illnesses, and deaths, and a lack of information in key datasets that would allow users to identify incidence and trends in cases by race, ethnicity, and place of birth.
  • A case study under NIOSH’s state-based Sentinel Event Notification System for Occupational Risk (SENSOR) demonstrated the value of occupational health surveillance for protecting migrant farmworkers from risk of job-related illness. SENSOR’s pesticide-poisoning surveillance staff identified a birth-defects cluster among migrant farmworkers exposed to pesticides. Subsequent state legislation in North Carolina provided funding to strengthen surveillance, improve the quality of state inspections for compliance with pesticide regulations, increase and improve worker pesticide safety training, and broaden the coverage of state anti-retaliation rules to include agricultural workers.
  • Questionnaires for worker health studies that ask questions in different languages are essential for identifying work-related injuries and illnesses, and trends in those cases, among the ethnically diverse U.S. workforce. Developing such questionnaires is complex, and literal translation often is not appropriate or accurate. More research should be focused on development of useful bilingual and multilingual research tools.

Thursday, February 4, 2010

Requesting a CMS Overpayment Waiver For Hardship

In conjunction with the enhancement of Section 111 mandatory reporting,  The Medicare Secondary Payment Contractor (MSPRC) has defined a 13 step process to collect overpayment from beneficiaries. Once post demand correspondence is issued, interest accrues on the overpayment if a full refund is not received within 60 days. If the full refund is not received after 120 days a case is referred to the US Treasury for collection.

In certain situations the beneficiary may have a financial hardship which could reduce or entirely eliminate the repayment request. In such circumstances a waiver request may be made by the beneficiary. The Social Security Administration (SSA) form number SSA-632 must be completed and submitted in a timely fashion. The beneficiary must advise SSA of the factors concerning the alleged hardship and then make a complete financial disclosure to SSA.

To read more about the Medicare Secondary Payer Act and workers' compensation  click here.

Tuesday, February 2, 2010

Occupational Hazards in the Home Healthcare Industry

NIOSH has focussed on the dangers of working in the home healthcare industry. Home healthcare works face unique risks on the job to their own health. During 2007 alone 27,400 recorded injuries occurred among the more than 890,800 home healthcare workers. 

The US agency reported, "Home healthcare workers are frequently exposed to a variety of potentially serious or even life-threatening hazards. These dangers include overexertion; stress; guns and other weapons; illegal drugs; verbal abuse and other forms of violence in the home or community; bloodborne pathogens; needlesticks; latex sensitivity; temperature extremes; unhygienic conditions, including lack of water, unclean or hostile animals, and animal waste. Long commutes from worksite to worksite also expose the home healthcare worker to trans- portation-related risks."

The report concludes, "The Bureau of Labor Statistics has projected home healthcare work to be the fastest growing occupation through 2016. Home healthcare workers, including home healthcare aides, nurses, physical therapists, occu- pational therapists, speech therapists, therapy aides, social workers, and hospice care workers, face unique hazards delivering services in patients’ homes and in various di- verse communities. Persons other than the patient who are residing or visiting in the patient’s home may be a risk to the worker. Home healthcare workers are susceptible to injuries. These may result from overexertion due to transferring patients into and out of bed or to assisting with patient walking or standing. Home healthcare workers may be exposed to bloodborne pathogens, needlesticks, infectious agents, latex, stress, violence occurring in the home or street, verbal abuse, weapons, illegal drugs, and they may encounter animals, temperature extremes, unsanitary conditions in the homes, lack of water, severe weather, or a response to a chemical spill or act of terrorism. The large amount of driving from home to home ex- poses the home healthcare worker to risks of vehicular injury or fatality."

Click here to read the complete NIOSH report.

Click here to read more bout NIOSH and workers' compensation.

Monday, February 1, 2010

Senate Votes to End Debate on Smith Nomination

In an historic action, the US Senate this evening voted 60 to 32 to end debate on the nomination of Patricia Smith for US Labor Solicitor. The favorable Role Call vote on Motion to Invoke Cloture on the Nomination of M. Patricia Smith, to be Solicitor for the Department of Labor successfully ended the Republican filibuster  on the nomination of Ms. Smith. The nomination had the support of the AFL-CIO.  It has been almost a year since she was nominated by President Obama for the position.