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Wednesday, March 31, 2010

Revised CMS Implementation Timetable - Mandatory Reporting

Revised March 29, 2010

Liability Insurance (including Self-Insurance), No-Fault Insurance and Workers’ Compensation (Non-GHP or NGHP):

Medicare Secondary Payer Mandatory Reporting Provisions in Section 111 of the Medicare, Medicaid, and SCHIP Extension Act of 2007 (See 42 U.S.C. 1395y(b)(7)&(b)(8))
Revised Implementation Timeline
Note: “RRE” stands for “responsible reporting entity.” “COBSW” stands for “Coordination of Benefits Secure Web site.” “COBC” stands for CMS’ Medicare “Coordination of Benefits Contractor.”

Electronic registration via the Section 111 COBSW began for all liability insurance (including self- insurance), no-fault insurance and workers’ compensation RREs (NGHP RREs) excluding foreign RREs.

Test and production Query Input Files accepted for NGHP RREs that completed registration and are in a testing status (the RRE’s signed Profile Report has been received by the COBC).

01/01/2010 – 12/31/2010
Claim Input File testing period for all NGHP RREs.  

Electronic registration commences via the Section 111 COBSW for foreign NGHP RREs (those that are based in countries outside the United States and have no Internal Revenue Service-assigned tax identification number and/or US mailing address).

01/01/2011 – 03/31/2011
All NGHP RREs must submit initial Section 111 Claim Input production files to the COBC according to assigned file submission timeframes for their RRE IDs.

All NGHP RREs must be reporting production Claim Input Files on a quarterly basis by this date.

At Home Injury Held Compensable

A truck driver who did maintenance on his vehicle at home on Sunday was allowed to recover benefits. The Court held that the injury occurred "within the course of the employment" even though the accident occurred off premises and not during normal work hours.


Click here to read more about premises and off-premises claims under workers' compensation.

Ohio Upholds New Limits on Liability Actions Against Employers

The Ohio Supreme Court has upheld a 2005 statute that restricts an employee's direct liability actions against employers. The statute requires a showing that the employer deliberately intended to injury an employee. Employees remain restricted to the the Ohio workers' compensation remedy for recovery of benefits.

"As this court has often recognized, workers' compensation laws are the result of a unique mutual compromise between employees and employers, in which employees give up their common-law remedy and accept possibly lower monetary recovery, but with greater assurance that they will receive reasonable compensation for their injury," Justice Robert Cupp wrote in one of the two opinions he authored. "Employers in turn give up common-law defenses but are protected from unlimited liability."

The issue was decided when the US District Court for the Northern District of Ohio certified constitutional questions to the Ohio Supreme Court.

Kaminski v. Metal & Wire Prods. Co. (Slip Opinion)2008-08573/23/20103/23/20102010-Ohio-1027

Sunday, March 28, 2010

Putting a Value on Occupational Cancer Claims

Giving the sick the benefit of the doubt was the mantra the US District Court Judge charged with overseeing the settlement of 911 of the claims of the first responders. The Judge rejected the settlement of $575 several days ago as being inadequate.

The original settlement was crafted by the parties to cover the nearly 10,000 parties to the lawsuit. The Judge recognizes the difficulties in proving cancer claims and the unpredictability of the disease. The original cap offered was $100,000. The Judge said that was inadequate and suggested to the parties to find some method of increasing the benefits.

The 911 first responders were exposed to asbestos and petroleum products that could result in many types of future malignancies, including, lung cancer, mesothelioma and leukemia.

Click here to read more 911 claims.

Saturday, March 27, 2010

David Michaels Testifies That OSHA Needs An Update-Enhance Penalties

In testimony before the Subcommittee on Workforce Protection of US Congress, David Michaels, Assistant Secretary for Occupational Safety and Health, reported that the Occupational Safety and Health Act (OSH Act) needs to be strengthened and enhanced. He encouraged that both civil monetary fines and criminal penalties should be increased.
"....If we are to fulfill the Department's goal of providing good jobs for everyone, we must make even more progress. Good jobs are safe jobs, and American workers still face unacceptable hazards. More than 5,000 workers are killed on the job in America each year, more than 4 million are injured, and thousands more will become ill in later years from present occupational exposures. Moreover, the workplaces of 2010 are not those of 1970: the law must change as our workplaces have changed. The vast majority of America's environmental and public health laws have undergone significant transformations since they were enacted in the 1960s and 70s, while the OSH Act has seen only minor amendments. As a British statesman once remarked, 'The only human institution which rejects progress is the cemetery.'"
"Monetary penalties for violations of the OSH Act have been increased only once in 40 years despite inflation during that period. Unscrupulous employers often consider it more cost effective to pay the minimal OSHA penalty and continue to operate an unsafe workplace than to correct the underlying health and safety problem. The current penalties do not provide an adequate deterrent. This is apparent when compared to penalties that other agencies are allowed to assess."
"Criminal penalties in the OSH Act are also inadequate for deterring the most egregious employer wrongdoing. Under the OSH Act, criminal penalties are limited to those cases where a willful violation of an OSHA standard results in the death of a worker and to cases of false statements or misrepresentations. The maximum period of incarceration upon conviction for a violation that costs a worker's life is six months in jail, making these crimes a misdemeanor.....Nothing focuses attention like the possibility of going to jail. Unscrupulous employers who refuse to comply with safety and health standards as an economic calculus will think again if there is a chance that they will go to jail for ignoring their responsibilities to their workers...... A fresh look at the OSH Act and its relevance for the 21st century is indeed overdue."
Click here to read more about OSHA and workers' compensation.

Asbestos Inspector in NY Admits Faking Tests

In the first criminal prosecution for violating the Toxic Substances Act, a NY inspector admitted in court that he made up hundreds of asbestos and lead tests between 2001 and 2009 and never actually inspected the buildings that he was charged to evaluate.
"EPA has also found that inhalation of asbestos can cause lung disease and cancer, and classified asbestos as a known human carcinogen. New York City has rules and regulations intended to reduce human exposure to asbestos fibers. Among other things, those rules and regulations require that, prior to the commencement of certain demolition and other projects, an inspection be performed by a New York City certified asbestos investigator to determine whether asbestos is present and, if so, how much and what kind, and whether the asbestos will be disturbed during the project. One purpose of the inspection is to determine whether or not the project is to be an "asbestos project" which requires the filing of a notice with the City and an abatement prior to commencement of the project. If the project is determined not to be an asbestos project, New York City rules and regulations require that a certified asbestos investigator complete, sign, and affix his or her asbestos investigator seal to a form captioned "Not an Asbestos Project," known generally as an ACP-5, and file that form with the City prior to issuance of a building permit and commencement of the project. 
"Until approximately February 17, 2004, Todara was a New York City-certified asbestos investigator, which authorized Todaro to inspect buildings for asbestos and to prepare and file -3 ACP-5s. On or about February 17, 2004, however, the City of New York suspended Todaro's asbestos investigator certificate, after which Todaro was prohibited from performing building inspections for asbestos and from preparing and filing ACP-5s in the City of New York. 
"However, despite the suspension of his asbestos investigator certificate, Todaro continued to prepare ACP-5s for filing with the City of New York regarding building projects taking place throughout the city. On numerous occasions, Todaro did so without actually performing an inspection of the premises identified in the ACP-5. In order to make it appear that inspections had actually been performed by a certified asbestos investigator, Todaro prepared backdated ACP-5s that falsely represented that he had performed an asbestos inspection and that he had done so prior to the suspension of his asbestos investigator certificate. Todaro submitted bogus ACP-5s, together with invoices describing the services provided as "Inspect/ACP5," to his customers, at least some of whom billed customers of their own for Todaro’s purported services.  Certain kinds of demolition and renovation activities in buildings can result in the release of asbestos fibers from building components into the air and the contamination of building components with lead-containing dust. Asbestos fibers in the air can be detected through the taking of air samples and laboratory analysis of those samples ("air monitoring"). Lead contamination of building components can be detected through lead clearance testing. 
"On hundreds of occasions, Todaro created and caused to be created false laboratory reports purporting to set forth the results of asbestos air monitoring and lead clearance testing performed at sites in which demolition and renovation activities were occurring or had occurred. Todaro then mailed these bogus reports, along with invoices for payment for his purported services, to customers. Those customers included, among others, management companies, landlords, and contractors. Some of Todaro's customers, in turn, billed customers of their own for Todaro's purported services. Moreover, some of the fraudulent invoices submitted by Tosaro were ultimately paid for under New York City government programs, administered by HPD, through which buildings in New York City were renovated, demolished, or demolished and re-built (the "HPD Programs"). One purpose of the -4 HPD Programs was to increase the stock of affordable housing in New York City.
Special Agent-in-Charge Majorie Franzman stated: "The egregious and reprehensible actions of Mr. Todaro exhibited a complete disregard for the health of unsuspecting residents in New York City. Mr. Todaro also placed at risk those workers who perform demolition and renovation work by exposing them to potentially unsafe levels of lead and asbestos. My office will continue to work closely with our law enforcement partners to hold accountable those who violate OSHA safety regulations and worker safety laws."

Friday, March 26, 2010

Caution Your Job May Cause Cancer

The United Nations World Health Organization (WHO) through the International Agency for Cancer Research  (IARC) has issued a new monograph causally relating cancer to certain employments. The IARC warns that doing shift work, painting or just being a firefighter will raise the risk of developing a malignancy.


After a thorough review and discussion of the published scientific evidence, an expert Working Group convened by the IARC Monographs programme has concluded that

• Shiftwork that involves circadian disruption is probably carcinogenic to humans (Group 2A).

• Occupational exposure as a painter is carcinogenic to humans (Group 1).

• Occupational exposure as a firefighter is possibly carcinogenic to humans (Group 2B).

These three occupations involve complex exposure patterns that make it difficult to attribute risk to specific factors. The Working Group, comprising 24 scientists from 10 countries, met at the International Agency for Research on Cancer (IARC), the cancer research agency of the World Health Organization.

A summary of these conclusions is being published in the December issue of The Lancet Oncology. Full results will be published next year as volume 98 of the IARC Monographs.

Shiftwork that involves circadian disruption is “probably carcinogenic to humans”

Epidemiological studies have found that long-term nightworkers have a higher risk of breast cancer risk than women who do not work at night. These studies have involved mainly nurses and flight attendants. The studies are consistent with animal studies that demonstrate that constant light, dim light at night, or simulated chronic jet lag can substantially increase tumour development. Other experimental studies show that reducing melatonin levels at night increases the incidence or growth of tumours.

These results may be explained by the disruption of the circadian system that is caused by exposure to light at night. This can alter sleep-activity patterns, suppress melatonin production, and disregulate genes involved in tumour development. Among the many different patterns of shiftwork, those that include nightwork are most disruptive to the circadian system.

"Nearly 20% of the working population in Europe and North America is engaged in shiftwork, which is most prevalent in the health-care, industrial, transportation, communications, and hospitality sectors: To date, most studies have focussed on breast cancer in nurses and flight attendants. Now more studies are needed to examine this potential risk in other professions and for other cancers," noted Dr Cogliano, Head of the IARC Monographs Programme.

Occupational exposure as a painter is “carcinogenic to humans”
Epidemiological studies of painters have consistently found small but significant increases in the risk of lung cancer and bladder cancer. In addition, several studies of painters have found increased levels of genetic damage.

Four of five case-control studies found significant increases in childhood leukaemia associated with maternal exposure before or during pregnancy, although findings were inconsistent for lymphatic and haematopoietic cancers in the painters themselves.

Painters are exposed to numerous chemical solvents, pigments, and additives. They can also be exposed to other workplace hazards such as asbestos and crystalline silica. The available information is not specific enough to identify particular agents as the cause of the excess lung or bladder cancers. It also cannot be determined whether the cancer risks have increased or decreased with changes in the solvents, pigments, and additives used in paints.

Occupational exposure as a firefighter is “possibly carcinogenic to humans”

Epidemiologic studies of firefighters have noted excess cancer risks compared with the general population. Consistent patterns are difficult to discern due to the large variations in exposure across different types of fires and different groups of firefighters. Relative risks were consistently increased, however, for three types of cancer: testicular cancer, prostate cancer, and non-Hodgkin lymphoma.

Acute and chronic inflammatory respiratory effects have been noted in firefighters, and this would provide a plausible mechanism for respiratory carcinogenesis. Firefighters are exposed to numerous toxic chemicals, including many known or suspected carcinogens. These intermittent exposures can be intense, and short-term exposure levels can be high for respirable particulate matter and for several carcinogens, notably benzene, benzo[a]pyrene, 1,3-butadiene, and formaldehyde.

What is new, and what do these results mean to me?

"These are IARC’s first evaluations of shiftwork and firefighting. Because there is credible evidence linking these occupations with increased risks of cancer, it is important that further studies be conducted to better identify what it is about such occupations that may increase the risk of cancer so that preventive measures can be implemented to avoid such risks", concluded Dr Peter Boyle, Director of the International Agency for Research on Cancer.

Occupational exposure as a painter has been classified since 1989 as carcinogenic to humans, and this new evaluation has linked painting to lung cancer and bladder cancer. The new evaluation also suggests that maternal exposure may be associated with childhood leukaemia. It is important that further studies be conducted in this area to confirm whether this risk is real and to identify precautionary measures that are appropriate to consider.


What are the IARC Monographs?

The IARC Monographs identify environmental factors that can increase the risk of human cancer. These include chemicals, complex mixtures, occupational exposures, physical and biological agents, and lifestyle factors. National health agencies use this information as scientific support for their actions to prevent exposure to potential carcinogens. Interdisciplinary working groups of expert scientists review the published studies and evaluate the weight of the evidence that an agent can increase the risk of cancer. The principles, procedures, and scientific criteria that guide the evaluations are described in the Preamble to the IARC Monographs.

Since 1971, more than 900 agents have been evaluated, of which approximately 400 have been identified as carcinogenic or potentially carcinogenic to humans.


Group 1: The agent is carcinogenic to humans.

This category is used when there is sufficient evidence of carcinogenicity in humans. Exceptionally, an agent may be placed in this category when evidence of carcinogenicity in humans is less than sufficient but there is sufficient evidence of carcinogenicity in experimental animals and strong evidence in exposed humans that the agent acts through a relevant mechanism of carcinogenicity.

Group 2.

This category includes agents for which, at one extreme, the degree of evidence of carcinogenicity in humans is almost sufficient, as well as those for which, at the other extreme, there are no human data but for which there is evidence of carcinogenicity in experimental animals. Agents are assigned to either Group 2A (probably carcinogenic to humans) or Group 2B (possibly carcinogenic to humans) on the basis of epidemiological and experimental evidence of carcinogenicity and mechanistic and other relevant data. The terms probably carcinogenic and possibly carcinogenic have no quantitative significance and are used simply as descriptors of different levels of evidence of human carcinogenicity, with probably carcinogenic signifying a higher level of evidence than possibly carcinogenic.

Group 2A: The agent is probably carcinogenic to humans.

This category is used when there is limited evidence of carcinogenicity in humans and sufficient evidence of carcinogenicity in experimental animals. In some cases, an agent may be classified in this category when there is inadequate evidence of carcinogenicity in humans and sufficient evidence of carcinogenicity in experimental animals and strong evidence that the carcinogenesis is mediated by a mechanism that also operates in humans. Exceptionally, an agent may be classified in this category solely on the basis of limited evidence of carcinogenicity in humans. An agent may be assigned to this category if it clearly belongs, based on mechanistic considerations, to a class of agents for which one or more members have been classified in Group 1 or Group 2A.

Group 2B: The agent is possibly carcinogenic to humans.

This category is used for agents for which there is limited evidence of carcinogenicity in humans and less than sufficient evidence of carcinogenicity in experimental animals. It may also be used when there is inadequate evidence of carcinogenicity in humans but there is sufficient evidence of carcinogenicity in experimental animals. In some instances, an agent for which there is inadequate evidence of carcinogenicity in humans and less than sufficient evidence of carcinogenicity in experimental animals together with supporting evidence from mechanistic and other relevant data may be placed in this group. An agent may be classified in this category solely on the basis of strong evidence from mechanistic and other relevant data.

Group 3: The agent is not classifiable as to its carcinogenicity to humans.

This category is used most commonly for agents for which the evidence of carcinogenicity is inadequate in humans and inadequate or limited in experimental animals.

Exceptionally, agents for which the evidence of carcinogenicity is inadequate in humans but sufficient in experimental animals may be placed in this category when there is strong evidence that the mechanism of carcinogenicity in experimental animals does not operate in humans.

Agents that do not fall into any other group are also placed in this category.

An evaluation in Group 3 is not a determination of non-carcinogenicity or overall safety. It often means that further research is needed, especially when exposures are widespread or the cancer data are consistent with differing interpretations.

Group 4: The agent is probably not carcinogenic to humans.

This category is used for agents for which there is evidence suggesting lack of carcinogenicity in humans and in experimental animals. In some instances, agents for which there is inadequate evidence of carcinogenicity in humans but evidence suggesting lack of carcinogenicity in experimental animals, consistently and strongly supported by a broad range of mechanistic and other relevant data, may be classified in this group.

Thursday, March 25, 2010

Can You Repeat That Please?

The Occupational Safety and Health Administration (OSHA) has reported that an estimated 72% of all noise induced hearing losses occur in the manufacturing sector which employs 16 million people.  Worse than that, most works may have a hearing loss but not be considered impaired.

The wave of compensable occupational hearing losses of the 1980s was restricted across the country by stringent reforms imposed by the Industry. It is much more difficult for employees to obtain workers' compensation benefits for a noise induced loss.

A typical formula imposed has been a mathematical calculation to establish a threshold entry limit for benefits. The frequency values for the determination of the degree of hearing loss have been statutorily defined also.  The frequencies to be considered are 1,000, 2,000 and 3,000 Hertz.  The formula for computation is the average of the three (3) frequencies in each ear less 30dB.  The decibel amount arrived at from the computation is then multiplied by 1.5% for each ear, and then the smaller percentage (the better ear) is multiplied by five (5) and added to the number from the other ear (the poorer ear) and that total is divided by six (6).  The resulting number is the percentage of binaural hearing loss that may be used by the Division of Workers' Compensation in awarding benefits.

The formula does not permit consideration of frequencies above 3,000 Hertz thereby restricting access to benefits, There is a significant drop in hearing ability at the 4,000 Hertz level which also is reflected by a greater loss of hearing acuity at the higher level rather the lower levels.

Click here to read more about "occupational disease" and workers' compensation.

Wednesday, March 24, 2010

Disgruntled Client Unable to Sue Former Attorney

The Third Circuit Court of Appeals dismissed the claim of a disgruntled former client who brought an action against his prior attorney. The injured worker claimed that his former lawyers failed to investigate his workers' compensation claim properly and had invaded his privacy by discussing his claim with a Judge and another law firm.

"We conclude that the District Court applied the appropriate standard for dismissal pursuant to Rule 12(b)(6) and properly dismissed Donnelly's Amended Complaint for the reasons stated in its Opinion. Donnelly argues on appeal that no COM [Certificate of Merit] was required for his breach of contract and legal malpractice claims against the O'Malley defendants because these claims do not call for expert testimony to explain their lapses in judgment or failures in performance. He asserts that his allegations are easy for an ordinary person to understand. For instance, he asserts that the O'Malley defendants gave him employment advice, which is outside their realm of expertise. (Informal Br. at 5.) Regardless of how he chooses to characterize his claim, however, Donnelly's allegations pertain to the quality of the O'Malley defendants' professional representation of him, and thus a COM is required. See Gorski v. Smith, 812 A.2d 683, 694 (Pa.Super.Ct.2002) (stating that in cases where there is an attorney/client agreement for legal services, “there automatically arises a contractual duty on the part of the attorney to render those legal services in a manner that comports with the profession at large”); Pa. R. Civ. P. 1042.3 (a COM is required in “any action” against an attorney that calls into question whether counsel “deviated from an acceptable professional standard”). Involuntary dismissal under Rule 1042.3 is not a dismissal with prejudice, however. See Moore v. John A. Luchsinger, P.C., 862 A.2d 631, 634 n. 3 (Pa.Super.Ct.2004). Hence, we will affirm the District Court's order dismissing this claim as modified to be a dismissal without prejudice."

Donnelly v. O'Malley & Langan, PC, 2010 WL 925869, C.A.3 (Pa.),2010., March 16, 2010 (Unpublished Decision)

Chubb Permitted to Sue Travelers in Manville Asbestos Claim

The Second Circuit Court of Appeals has held that Chubb was denied its due process in a claim flowing from the Manville bankruptcy that was filed in 1982. In a long and convoluted judicial history, Chubb was seeking reimbursement from Travelers, its insured, for lack of notice of a bankruptcy settlement years before. As a result of that settlement, to which Chubb was not a party, Chubb was sued by a new group of plaintiffs in 2004 as a result of Travelers malfeasance in the asbestos conspiracy.

While denying the asbestos personal injury claimants from seeking recovery, the Court allowed Chubb to proceed with its claim.

"We further hold that Chubb was not adequately represented in the proceedings that lead to the bankruptcy court's approval of the 1984 Insurance Settlement Agreement and the Manville Plan, and that it did not receive adequate notice of the 1986 Orders. Accordingly, both the bankruptcy court and the district court erred by rejecting Chubb's due process argument. Chubb is therefore not bound by the terms of the 1986 Orders. Consequently, it may attack the Orders collaterally as jurisdictionally void. And, as we held in Manville III, that attack is meritorious."

In re Johns-Manville Corp., --- F.3d ----, 2010 WL 1007832, C.A.2 (N.Y.),2010., March 22, 2010

Modification Denied Despite Expert Increases

A NJ Appellate Court affirmed a trial court's decision to deny a petitioner modification of a prior award despite the fact that medical experts on both sides found an increase in disability.

"Respondent's neuropsychiatric expert, L. Scott Eisenberg, M.D., examined petitioner on March 9, 2004. He noted petitioner's unrelated medical disorders as hypertension, diabetes, and a viral infection of the eye. He also noted that he had previously examined petitioner in December 2000. Dr. Eisenberg found "[a] degree of elaboration" by petitioner regarding his subjective complaints and concluded that there was no objective evidence of any increase in neurologic disability in 2004. He wrote: "Assuming the complaints and his presentation for the neuropsychiatric point of view are bona fide, I would estimate an additional disability in that regard of 2% of partial total related to his back condition."

"The judge of compensation was not bound to accept the conclusions of petitioner's doctors. See Perez v. Capitol Ornamental, Concrete Specialties, Inc., 288 N.J.Super. 359, 367-68 (App.Div.1996). On this record, he could reasonably accept the conclusions of respondent's doctors that they found no objective medical evidence in 2004 and 2006 demonstrating an increase in disability from that in 2000.
JOSE MEDINA-SEGARRA v RUDL FENCING & DECKING,, DOCKET NO. A-3652-08T2, 2010 WL 1029948 (N.J.Super.A.D.).

Saturday, March 20, 2010

Medical Criteria Swamp for WTC First Responders

The threshold question in determining compensability in any program is how to construct a system that will provide immediate and expeditious delivery. The sick first responders to the horrific attack of September 11, 2001, are still struggling to obtain benefits.

The recent plan offered by the WTC Captive Insurance Company, and rejected by the Court, sets forth elaborate eligibility and disability criteria.  The 96 page agreement, and accompanying exhibits, outlining the settlement process provides insight into struggle.

Drawing from far and wide, the proposed agreement tries to cover all potential diseases and schedule them.

"To constitute a Qualifying Injury, an alleged injury must satisfy all three of the following components of the Medical Proof Criteria: (i) it must be one of the “Qualifying Injuries” listed expressly in the tables immediately below; (ii) it must meet the “Diagnostic Criteria” applicable to the Disease Group in which the Qualifying Injury is listed in the tables immediately below; and (iii) it must satisfy the “Impairment Criteria” for the Disease Group in which the Qualifying Injury is listed in the tables..."
The sources include:
"European Respiratory Society/American Thoracic Society COPD Guidelines – 2005; ATS/ERS Criteria for Diagnosis of Idiopathic Pulmonary Disease in Absence of  Surgical Lung Biopsy; Global Initiative for Asthma/World Health Organization; American College of Chest Physicians Consensus Statement; British Society for Allergy and Clinical Immunology guidelines for the  management of rhinosinusitis and nasal polyposis. Scadding GK; Durham SR; Mirakian R;  Jones NS; Drake-Lee AB; Ryan D; Dixon TA; Huber PA; Nasser SM - Clin Exp Allergy.  2008 Feb; 38(2):260-75. Epub 2007 Dec 20.
The proposed system is yet another attempt to quantify disability and adds another set of elaborate medical criteria and complexity to the insurance company playbook. The loquaciousness of the authors of the proposal is mind boggling. This level of sophistication can only compound the delivery of benefits. This proposal is yet another example of the compelling need for one universal national program that can provide benefits to injured workers without the need of hip  high boots to navigate the swamp.

Judge Rejects 911 Settlement -- $595 Million Not Enough

A US District Court Judge rejected the proposed settlement for $595 Million, for 911 first ill responders, declared it to be "not enough."

The Judge in reviewing the proposal said, "In my judgment, this settlement is not enough." Judge Alvin Hellerstein remarked, "I have the power of review, and I don't think it is fair."

A proposal was presented by the WTC Captive Insurance Company that manages the $1 Billion fund established by Congress to pay injured workers. 

The Court ordered more settlement discussions in an effort to seek a fair resolution of the litigation. 

Workers Compensation Insurance Company Ordered to Pay For Gastric Bypass

Treating medical conditions that are necessary to relieve and cure a medical condition is the responsibility generally of workers' compensation programs throughout the United States. Now a Court has ordered that an insurance company must treat a persons obesity as an extension of its medical benefits so that weight reduction can occur and the underlying work related condition can be addressed.

"Claimant slipped and fell at work in 2002, and his ensuing workers' compensation claim presently encompasses, among other things, injuries to his head, neck, back and knees. His morbid obesity has contributed to his knee and back problems and, in an effort to combat those problems and counter a broader threat to his survival, claimant sought authorization to undergo gastric bypass surgery. The Workers' Compensation Law Judge granted his request. Upon review, the Workers' Compensation Board affirmed, holding that the surgery was causally related to the compensable injuries. 

In affirming the decision the Supreme Court, Appellate Division, Third Department, New York held:

"The employer is obliged to pay for claimant's medical care “for such period as the nature of the injury or the process of recovery may require” (Workers' Compensation Law § 13[a]; see Matter of Spyhalsky v. Cross Constr., 294 A.D.2d 23, 25-26 [2002] ). There is evidence in the record that claimant has gained a substantial amount of weight since 2002 due to the sedentary lifestyle imposed by the compensable injuries. Claimant's treating orthopedic surgeon opined that claimant's back and knee pain was exacerbated by his obesity and that such could be alleviated by weight loss. An independent medical examiner agreed, opining that weight loss would “certainly” help those conditions. While material in the record before us could support a different result, substantial evidence exists for the Board's determination that claimant's weight gain was caused by his compensable injuries and that gastric bypass surgery “would assist in [his] recovery” ( Matter of Bolds v. Precision Health, Inc., 16 A.D.3d 1007, 1009 [2005]; see Workers' Compensation Law § 13[a]; Matter of Spyhalsky v. Cross Constr., 294 A.D.2d at 25-26, 743 N.Y.S.2d 212).
Laezzo v. New York State Thruway Authority, --- N.Y.S.2d ----, 2010 WL 812862, N.Y.A.D. 3 Dept., 2010, March 11, 2010.

Friday, March 19, 2010

The Limited Application of a RICO Claim

A Federal District Court in Michigan has dismissed a RICO [Racketeer Influenced and Corrupt Organizations Act] claim against Sedwick Claims Management Services. The plaintiffs alleged that the insurance company, "....'engaged in a scheme to defraud employees of the minimum wages and fringe benefits to which they were entitled' under the McNamara-O'Hara Services Contract Act, 41 U.S.C. 351,et seq. (SCA), 'in violation of the civil provisions of ... RICO.'"

In dismissing the case, the court reasoned, "an injured worker may not use RICO as an 'end run' around the exclusive procedures and remedies prescribed by the WDCA [Michigan's Workers Disability Compensation Act] -Defendants contend that Plaintiffs have filed this action in an attempt to convert their workers compensation disputes into a federal RICO case-the basis of which is the Defendants' allegedly-fraudulent violation of the WDCA. Plaintiffs' effort to convert their disputes over benefits into RICO claims, while creative, must be rejected. Plaintiffs' RICO claims seek to expand RICO far beyond its intended reach. As the federal courts have repeatedly held, a plaintiff may not use a RICO claim as an 'end run' around a comprehensive, specialized, and exclusive administrative scheme like the scheme established by the WDCA. Yet that is precisely what these Plaintiffs seek to do."

"....RICO was never intended to create a path into courts for litigants who would otherwise be limited to exclusive administrative remedies and procedures, and subject to strict damages limitations. The Court finds that Plaintiffs may not use their RICO claim to reform Michigan's workers' compensation law-allowing them to do so would be an unwarranted intrusion into Michigan state law and procedure."

Jackson v. Sedgwick Claims Management Services, Inc., 2010 WL 931864, E.D. Mich. 2010, March 11, 2010.

Click here to read more RICO claims and workers' compensation.

Wednesday, March 17, 2010

CMS Announces New Life Tables

The Centers for Disease Control (CDC) has recently published its 2005 United States Life Tables. Effective April 12, 2010, the Centers for Medicare & Medicaid Services (CMS) will begin referencing the CDC's Table 1: Life table for the total population: United States, 2005, for WCMSA life expectancy calculations. This means that for any newly submitted WCMSA proposal received by CMS' Coordination of Benefits Contractor (COBC), or where any WCMSA case is reopened on or after April 12, 2010, CMS will apply the CDC's 2005 Table 1 for life expectancy calculations.

In 2005, the overall expectation of life at birth was 77.4 years, representing a decline of 0.1 years from life expectancy in 2004. From 2004 to 2005, life expectancy at birth remained the same for males (74.9), females (79.9), the white population (77.9), white males (75.4), white females (80.4), the black population (72.8), and black males (69.3). Life expectancy at birth increased for black females (from 76.0 to 76.1). Life expectancy estimates based on the revised meth­ odology are slightly lower than those based on the previous method­ ology. For 2005, life expectancy at birth based on the revised methodology was lower by 0.4 years for the total population.

Click here to read more about "Life Expectancy" and workers' compensation.

Hot Coffee- Is Justice Being Served

Everyone has heard of the case against McDonald for spilled hot coffee that resulted in a large verdict.  Susan Saladoff has undertaken an effort to undo the effects of the "brainwashing" campaign of the insurance industry designed to demonstrate  the triviality of the claim.

Last week I had the opportunity to watch a screening the movie and the actual and horrendous bodily damage caused by the scalding hot coffee. The movie depicted the callouss behavior of McDonald's in its disregard of the on going complaints concerning its beverage.

Ms. Saladoff has undertaken a mission to right a wrong and reverse the effort of the insurance industry to limit all types of lawsuits under the guise of reform. The movie in its final stages of production. The producers are making an incredible effort to serve justice.

Click here to read more about "The Starbucks Doctrine" and workers' compensation.

Legislation Introduced to Reform OSHA to Make the Workplace Safer

Congresswoman Dina Titus of Nevada’s Third District introduced the Ensuring Worker Safety Act  (H.R. 4864) this morning.  The legislation aims to protect workers by assuring that state OSHA plans are at least as effective as federal standards and enforcement, while protecting states’ rights by giving OSHA additional options when a state plan is found to be underperforming.
“The tragic deaths of numerous workers in Southern Nevada highlighted the need to ensure that state OSHA plans are doing their job of protecting workers,” Congresswoman Titus said.  “Unfortunately under current law, federal OSHA is left with only two options, both at the extreme end of the spectrum, when it finds state plans that are ineffective.  This legislation provides OSHA with an important middle ground so it is not left with the choice of doing nothing or the drastic step of terminating a state plan. ”
The Occupational Safety and Health Act of 1970 sets out a federal-state framework for workplace safety and health.  Under existing law, states may either apply to the federal Department of Labor to operate their own state health and safety program or remain under federal OSHA authority.  To be approved, states must demonstrate that their program standards and enforcement are “at least as effective” as federal OSHA.  Currently, there are 22 states and territories, including Nevada, where health and safety enforcement is done by state health and safety programs.
Once federal OSHA issues final approval for a state plan, OSHA is extremely limited in its authority to hold state plans accountable.  If OSHA determines that an approved state plan is not “at least as effective as” federal standards and enforcement, its only recourse to compel changes to an underperforming program is to terminate the state plan, a drastic step that would remove state control, leave state and local government employees unprotected, and add costs to DOL for funding and running a health and safety program in the state.
Specifically, the Ensuring Worker Safety Act establishes a formal mechanism for OSHA to identify a problem with a state plan and compel a remedy without beginning the process for withdrawing approval.  It also ensures the continued application of health and safety regulations by providing OSHA with concurrent enforcement authority while a state plan is remedying deficiencies.  Finally, the bill holds federal OSHA accountable for providing strong oversight and guidance to state plans by establishing a regular Government Accountability Office study – one every five years – to look at the effectiveness of state plans and the Secretary of Labor’s oversight of such plans.
A number of deaths on the job led to Nevada being the first state in the country to have an in-depth review that highlighted the problems facing Nevada OSHA.  This review made it clear to Titus that federal OSHA needs an additional option to work with states that are not meeting federal standards.

Making Movies Can Be Hazardous to Your Health

The recent blog about the Mad Hatter's exposure to mercury has drawn much attention. The National Institute of Occupational Safety and Health (NIOSH) has revealed more movies associated with dangerous exposures at work.

Making movies could be a dangerous activity. In 1954 asbestos was dumped onto Bing Crosby by a stage hand above to simulated the appearance of snow while he was singing the theme song from "White Christmas". Asbestos is a known carcinogen, ie. lung cancer and mesothelioma.

NIOSH has posted a blog for readers to vote and comment on the movies with occupational hazards. Visit the NIOSH science blog.

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

Tuesday, March 16, 2010

Twittering Workers Compensation

Social media has taken off as a major communications tool for client, lawyers, educational institutions and governmental agencies. The exchange of information is now instantaneous and global. It is now a critical element in the constellation of available assets in legal research and practice.

Twitter is not an ordinary social media site. Everyday millions of "tweets" are created and read about workers compensation. Government transparency has now allowed more legal based information to become available online. The 140 character "burst" of information provides a fantastic resource on a current basis.

Follow us on Twitter.

Saturday, March 13, 2010

Yet Another Attempt to Shift CMS Costs

The American Insurance Association (AIA) and collateral Industry groups have banned together in a formal attempt to avoid the Federal mandate to reimburse Medicare for conditional medical payments. This is yet a third assault on the responsibility of employers to avoid payment of medical treatment of injured workers and shift the burden upon the ailing and financially strapped Medicare. Two prior legislative attempts to modify the Medicare Secondary Payer Act (MSP) have failed.

The proposal is embraced in recently introduced HR4796. It is an attempt to modify the Medicare Secondary Payment Act by reducing conditional payment responsibilities of Industry. 

In the past, failures in the enforcement of reimbursement practices were highlighted in various investigative reports. Since the reporting of those failures, the Centers for Medicare and Medicaid Services (CMS) have enhanced its efforts to seek reimburse. The US Congress has also imposed compulsory employer/insurance carrier reporting requirements.

Recent studies presented at the National Association of Social Insurance (NASI) disclosed that the majority of conditional payment issues arise in occupational claims which traditionally are denied compensability initially by insurance carriers. 

A proposal was made at the NASI meeting to provide more effective and efficient delivery of medical care to injured workers. It was suggested that medical coverage in occupational disease claims  become the initial responsibility of US Medicare system who then could seek indemnification from insurance carriers and others who may be ultimately responsible. A pilot plan for this type of health care was embodied in the US Senate passed health care legislation.

Click here to read more about health care and workers' compensation.

NJ Mandates Proof of Insurance Coverance

The NJ Division of Workers' Compensation has clearly mandated that claimants have the burden of proving insurance coverage. In a memorandum letter issued by the Director/Chief Judge, injured workers and their representatives were advised that failure to have evidence of proof of coverage will result in a dismissal of the insurance carrier as a party to the claim petition. Dismissal will be effectuated administratively, without the need of the filing of a formal notice motion by the improperly named party.

"A earner is not required to prove the negative that the carrier did not cover a respondent. It is helpful if the carrier can provide information from CRIB or other sources as to the correct carrier if the respondent is insured. However, the petitioner must provide some sufficient basis for listing a carrier and keeping the carrier in the case if the petitioner objects to the dismissal as to carrier."

Click here to read more about insurance coverage and workers' compensation.

NJ Unemployment Worse Than Previously Estimated

NJ has released revised statistics reflecting than 2009 unemployment rates were worse than previously reported.

"New Jersey employers continued to trim payrolls in January as total employment fell by 9,100 jobs over the month. The state's unemployment rate for January fell by 0.1 percentage point to 9.9 percent.  The national rate was 9.7 percent for the month.

"In addition, the results of the annual benchmarking adjustment process - conducted each year at this time by every state - showed that the previously announced seasonally adjusted job loss from December 2008 to December 2009 of 90,100 was revised lower to reflect a loss of 114,100 jobs. New Jersey's over-the-year percentage loss of -2.9 percent was slightly better than the nation's -3.6 percent loss (-4.8 million jobs). Moreover, during the recession, December 2007 - December 2009, New Jersey has lost 228,300 jobs (-5.6% vs 6.1% nationally).

"Labor force estimates also were revised for 2009 and the state's revised 2009 unemployment rate averaged 9.2 percent, fluctuating within a wide range of 7.3 to 10.0 percent. The nation's unemployment rate averaged 9.3 percent in 2009.

Click here to read more about workers' compensation and economic recessions.

Thursday, March 11, 2010

NYC Settles 9-11 Rescue Workers' Suit for $657.5 Million

A lawsuit, involving over 10,000 9-11 Ground Zero workers, has been reportedly settled for $657.5 reports the NY Times. The case pending in US District Court has been pending for years on behalf of rescue workers and first responders for adverse health effects as a result of the explosion.

The read more about 9-11 claims click here.

Tuesday, March 9, 2010

Citing Violations Medicare Ends Contract with Fox Insurance Company Drug Plan

The Centers for Medicare and Medicaid Services has issue an announcement of the immediate termination of Fox Insurance Company.

Members Will Be Provided Access to Drugs While Transitioning to New Plans.

The Centers for Medicare & Medicaid Services (CMS) today terminated its contract with Fox Insurance Company. After an onsite review of the plan and its services, CMS determined that the plan’s significant deficiencies – not meeting Medicare’s requirements to provide enrollees with prescription drugs according to recognized standards of care – jeopardized the health and safety of Fox enrollees. CMS found that Fox committed a series of violations, including improperly denying its enrollees coverage of critical HIV, cancer, and seizure medications. The termination of the contract is effective immediately.

The immediate termination will not impact or delay access to drugs for the more than 123,000 Medicare beneficiaries currently enrolled in Fox plans. Beginning tomorrow, all enrollees will obtain their drugs through LI-NET, a program run by Medicare and administered by Humana, to ensure that beneficiaries receive their Medicare prescription drugs. Fox enrollees will be able to choose a new Medicare prescription drug plan through May 1, 2010. Current enrollees who do not choose a plan will be enrolled into a new plan by Medicare.
“The immediate termination of Fox as a Medicare prescription drug plan demonstrates our commitment to protecting the health of some of their most vulnerable enrollees from getting necessary drugs, in some cases life-sustaining medicines. CMS’s immediate action was essential to protect members’ health and safety – an integral part of our contract with all Medicare beneficiaries,” said Jonathan Blum, acting director of CMS’ Center for Drug and Health Plan Choices. “Fox enrollees also need to know that they are not losing their drug coverage and will continue to have access to needed medicines. We will be sending letters explaining the steps we are taking to ensure they continue to get their medicines. They can also call 1-800-MEDICARE or their local state health insurance assistance programs if they have questions.”

CMS issued an enrollment and marketing sanction to Fox on Feb. 26, 2010, because the organization was not following Medicare’s rules for providing prescription drug coverage to its enrollees. After an onsite audit, which ran between March 2 and March 4, CMS found Fox’s problems persisted and it continued to subject its enrollees to obstacles in getting needed and, in many cases, life–sustaining medicines. CMS also found that many of the obstacles were in place to limit access to high-cost drugs, which could have led to enrollees’ clinical needs not being met. In many cases, Fox enrollees were required to have unnecessary and invasive medical procedures before they were able to obtain drugs. Fox was unable to satisfactorily address these compliance concerns and furnish medicines to its Medicare enrollees.

Among the audit findings CMS found include:

· Failing to provide access to Medicare prescription drugs benefits by imposing unapproved prior authorization and step therapy criteria that made it more difficult for beneficiaries to get drugs that are protected by law.

· Not meeting the plan’s appeals deadlines,

· Not complying with Medicare regulations requiring enrollees to be transitioned to new drugs at the beginning of the new plan year.

· Failing to notify enrollees about prior authorization and step therapy determinations as required by Medicare.

According to CMS auditors, Fox was unable to satisfactorily address compliance concerns cited in the enrollment and marketing sanction and meet contractual obligations to provide medicines to Medicare beneficiaries enrolled in their plans.

“We take our oversight role of Medicare prescription drug plans seriously,” said Blum. “We review and take action on all complaints received about Medicare health and drug plans and will take appropriate and immediate actions wherever necessary.”

CMS encourages Medicare prescription drug plan enrollees having concerns with access to drug coverage to contact 1-800-MEDICARE (1-800-633-4227) or the state health insurance assistance program (SHIP) to help get them resolved. Medicare enrollees, their families and their caregivers can contact a SHIP near them by visiting:

# # #

NOTE: States in which the Fox plan was available were: Arkansas, Arizona, California, Colorado, Connecticut, Florida, Georgia, Hawaii, Illinois, Louisiana, Maryland, Missouri, North Carolina, New Jersey, New York, Nevada, Ohio, Pennsylvania, South Carolina, Texas and West Virginia.

US Supreme Court to Review Employee Privacy Issues

The US Supreme Court has granted certiorari in a case involving the application of the constitutional right to informational privacy to an employee questionnaire. NASA, et al. v. Nelson, Robert M., et al. No. 09-530, March 8, 2010.

The Supreme Court will be reviewing a 9th Circuit Court of Appeals decision involving contract employees of the Jet PropulsionLaboratory (JPL) who filed suit against the National Aeronautics and Space Administration (NASA) and others. The suit claims that contract employees in non-sensitive or “low risk” positions should not be required to submit to in-depth background investigations.

The Circuit Court below held:
We have repeatedly acknowledged that the Constitution protects an “individual interest in avoiding disclosure of personal matters.” In re Crawford, 194 F.3d 954, 958 (9th Cir.1999). This interest covers a wide range of personal matters, including sexual activity, Thorne v. City of El Segundo, 726 F.2d 459 (9th Cir.1983) (holding that questioning police applicant about her prior sexual activity violated her right to informational privacy), medical information,Norman-Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d 1260, 1269 (9th Cir.1998) (“The constitutionally protected privacy interest in avoiding disclosure of personal matters clearly encompasses medical information and its confidentiality.”), and financial matters, Crawford, 194 F.3d at 958 (agreeing that public disclosure of social security numbers may implicate the right to informational privacy in “an era of rampant identity theft”). If the government's actions compel disclosure of private information, it “has the burden of showing that its use of the information would advance a legitimate state interest and that its actions are narrowly tailored to meet the legitimate interest.” Crawford, 194 F.3d at 959 (internal quotation marks omitted). We must “balance the government's interest in having or using the information against the individual's interest in denying access,” Doe v. Att'y Gen., 941 F.2d 780, 796 (9th Cir.1991), weighing, among other things:
“the type of [information] requested, ... the potential for harm in any subsequent nonconsensual disclosure, ... the adequacy of safeguards to prevent unauthorized*878 disclosure, the degree of need for access, and whether there is an express statutory mandate, articulated public policy, or other recognizable public interest militating towards access.”
Id. (quoting United States v. Westinghouse Elec. Corp., 638 F.2d 570, 578 (3d Cir.1980)) (alteration in original).
Both the SF 85 questionnaire and the Form 42 written inquiries require the disclosure of personal information and each presents a ripe controversy."

".....The balance of hardships tips sharply toward Appellants, who face a stark choice-either violation of their constitutional rights or loss of their jobs. The district court erroneously concluded that Appellants will not suffer any irreparable harm because they could be retroactively compensated for any temporary denial of employment. It is true that “monetary injury is not normally considered irreparable,” L.A. Mem'l Coliseum Comm'n v. Nat'l Football League, 634 F.2d 1197, 1202 (9th Cir.1980), and the JPL employees who choose to give up their jobs may later be made whole financially if the policy is struck down. "