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

Friday, December 31, 2010

NIOSH Focuses On Safety of Nanotechnology

On Wednesday, April 8, 2009 [74 FR 15985], the National Institute for Occupational Safety and Health (NIOSH) of the Centers for Disease Control and Prevention (CDC), announced in the Federal Register plans to evaluate the scientific data on carbon nanotubes and to issue its findings on the potential health risks. A draft Current Intelligence Bulletin entitled ``Occupational Exposure to Carbon Nanotubes and Nanofibers'' has been developed which contains an assessment of the toxicological data and provides recommendations for the safe handling of these materials. NIOSH is seeking comments on the draft document and plans to have a public meeting to discuss the document. The draft document and instructions for submitting comments can be found at default.html.

NIOSH has interest in:
(1) Identification of industries or occupations in which exposures to carbon nanotubes and nanofibers can occur; 
(2) Trends in the production and use of carbon nanotubes and nanofibers; 
(3) Exposure measurement data; 
(4) Case reports or other health information demonstrating possible health effects in workers exposed to carbon nanotubes or nanofibers; 
(5) Reports of experimental in vivo and in vitro studies that provide evidence of a dose-relationship between exposure to carbon nanotubes and nanofibers and biological activity; 
(6) Reports of experimental data on the airborne characteristics of carbon nanotubes or nanofibers, including information on the amounts that are inhalable and respirable; 
(7) Criteria and rationale for including workers in a medical surveillance and screening program; 
(8) Description of work practices and engineering controls used to reduce or prevent workplace exposure to carbon nanotubes and nanofibers; and 
(9) Educational materials for worker safety and training on the safe handling of carbon nanotubes and nanofibers.

This announcement follows an earlier conference by NIOSH in July 2010.

Thursday, December 23, 2010

The World Trade Center Health Program Expands The Path to Federalization

Yesterday the US Congress passed and sent to the President, The World Trade Center Health Program, marking yet another advance on the path to federalize the nation's workers' compensation program. The Federally funded and administered program provides for medical evaluation and treatment of occupational medical conditions that have been neglected or ignored by other benefit programs.

The legislation specifically provides for medical monitoring and treatment to eligible emergency responders and recovery and cleanup workers, including those who are Federal employees, who responded to the September 11, 200, terrorist attacks. Furthermore, the program will provide initial health evaluations, monitoring, and treatment to residents and other building occupants and area workers in New York City who were directly impacted and adversely affected by the attacks.

H.R. 847 Health and Compensation Act of 2010
Click Here for C-Span Video

Wednesday, December 22, 2010

OSHA Issues Bulletin on the Hazards of Exposure to Flavoring Substances


The following flavors may contain diacetyl
Dairy FlavoringsHybrid Dairy 
(Contains a substantial dairy content)
Brown FlavoringsAlcohol FlavoringsOther FlavoringsFruit Flavorings
ButterButter PecanButterscotchBrandyNutmegStrawberry
CheeseStrawberry CrèmeCaramelRumHoneyCranberry
Cream CheeseVanilla CrèmeVanillaWhiskyGraham CrackerRaspberry
CheesecakeOther Crème FlavorsCoffeePina ColadaVinegarBlackberry
MilkRoot Beer FloatTeaMeat flavors (e.g. gravyBoysenberry
YogurtChaiToffeeMaltOther berry flavors
Ice CreamChocolate (esp. milk chocolate)WineFruit flavors -nearly any kind (e.g., banana, apple, grape, pear)
Ranch DressingCocoa ButterTequilaTomato
Sour CreamMaple
ButtermilkBrown Sugar
Peanut Butter
Starter Distillate or Butter Starter DistillateHazelnut & other nut flavors

This Safety and Health Information Bulletin (SHIB) is addressed to employers and workers involved in the manufacture of "flavorings," (as defined by the Food and Drug Administration (FDA) in 21 CFR 101.22)1 in flavoring, food and beverage manufacturing. The SHIB provides information about the potential health effects associated with exposure to flavoring substances or its substitutes. It is important that all manufacturers and users of flavorings understand that even though a flavoring is considered safe to eat, it does not mean that the flavoring is also safe to breathe or handle in occupational settings.

Many substances are used in the manufacture of flavorings. Diacetyl is a substance widely used in food and beverage flavorings. Diacetyl is used in a wide variety of food flavorings, although flavor manufacturers have begun to reduce or eliminate the amount of diacetyl in some kinds of flavorings because of health concerns. The principal types of flavorings that use diacetyl are dairy flavors (e.g., butter, cheese, sour cream, egg, and yogurt flavors) and the so-called "brown flavors" (e.g., caramel, butterscotch, brown sugar, maple or coffee flavors). Some fruit flavors (e.g., strawberry and banana) may also contain diacetyl (Table 1). There are also a variety of special uses of diacetyl such as in vanilla, tea, and other flavorings that are difficult to categorize broadly. Industries where some firms are known to use these flavorings include, but are not limited to, candies, snack foods, prepared canned or frozen foods (especially with sauces), some dairy products, bakeries, animal foods, soft drinks, and flavored cooking oils. Some foods (e.g., dairy products, wine and beer) contain naturally occurring diacetyl.

The occurrence of severe lung disease among workers in workplaces where diacetyl is manufactured and used has led some manufacturers to reduce or eliminate the amount of diacetyl in some kinds of flavorings, foods, and beverages. They have begun to use substitutes such as acetyl propionyl (2,3 pentanedione) and acetoin. These substitutes, some of which are structurally similar to diacetyl, have not been well-studied and there is growing concern that they also pose health risks for workers. There is additional concern that combinations of chemicals may increase the harm.

OSHA does not have permissible exposure limits (PELs) for most flavoring substances, including diacetyl and acetoin. The SHIB provides recommendations for controlling exposure to diacetyl, diacetyl substitutes and other flavorings to protect employees from serious respiratory disease.

Tuesday, December 21, 2010

New Jersey Launches Workers' Compensation Centennial Celebration

Next year, 2011, marks the 100th anniversary of the enactment of the NJ Workers' Compensation Act. For a century,  the State has embraced a no-fault system that has provided benefits to injured workers in a summary fashion.

Peter J. Calderone, Director and Chief Judge has announced that A Celebration and Recognition Dinner is planned on May 17, 2011 and a no fee Seminar with CLE credits at all vicinages will be held on May 2, 2011.

Sunday, December 19, 2010

Medical Witness Cannot Be An Advocate - Knee Replacement Surgery Authorized

A workers' compensation medical witness is not permitted to be become an advocate. A Judge of Compensation disregarded an insurance company medical witness when the medical expert "crossed the line from being a medical witness to an advocate."

In reaching her decision, Diana Ferriero, Judge of Compensation, rationalized that the insurance company's medical expert by the "convoluted cover letter sent by respondent counsel," along with medical records on the injured worker. 

The injured employer suffered two work related accidents as a mechanic for American Airlines. The first accident in to the right knee occurred in July 2004 and resulted in a partial menisectomy and no prolonged sequelae. The worker was symptom free until a second accident in January 2007when he slipped and fell on both knees and hands. The insurance company authorized 28 medical office visits, 15 Hyalgan injections, 14 aspirations and physical therapy for treatment to his right knee. A diagnosis was made by the treating physician and the insurance company refused the injured worker a total knee replacement claiming that the medical condition was unrelated to the 2nd accident of January 2007.

The workers' compensation Judge ordered an independent medical evaluation by a renowned specialist in knee and hip replacements, Mark A, Hartzband of the Hackensack University Medical Center. The judge concluded that, "Dr, Hartzband opined that petitioner's need for a right total knee replacement was directly and causally related to the accident of January 17, 2007."

The court also found that the insurance company's treating physician, who opined that the 2nd accident was unrelated to the need for a knee replacement, was "disingenuous given the contents of his office chart," and reasoned that the insurance company's authorized treating physician did not have an understanding of arthritis and its progression.

The court granted the injured workers' motion for medical treatment, evaluation and scheduling of the right knee replacement, and ordered the payment of temporary medical benefits.

Pepe v. American Airlines, CP No. 2008-5878, NJ DWC 2010), Decided November 11, 2010.

Friday, December 17, 2010

Defective Artificial Hips Maybe a Costly problem for Workers' Compensation

The workers' compensation insurance system is about to be the initial payor for joint replacement surgery and for the complications of defective artificial hip joint damage that were said to be inadequately tested because of a loophole in FDA's rules. With an estimated 93,000 DePuy recalled artificial hips implanted worldwide, the workers' compensation benefit system will probably be paying for a vast amount of the remediation and treatment costs, and then having its hand out through direct and indirect subrogation efforts to seek reimbursement from the manufacturer, Johnson and Johnson.

Called "one of the most troubled orthopedic implants of the past decade," recently recalled Johnson & Johnson artificial hips, DePuy Orthopedics, have drawn recent attention for being sold and promoted without adequate testing. The concern has been focused on devices known as A.S.R., Artificial Surface Replacement hip joints. The device was first introduced in the US in 2005 and was recalled from the market in August 2008.

The New York Times reported that, "Current rules do not require device producers to notify the F.D.A. when they bundle together components from approved and unapproved devices, Mark Melkerson, an agency official, acknowledged. New iterations of device designs already used on patients typically receive scant scrutiny from the F.D.A. before going to market."

It further reported that, "... back in 2005, the F.D.A. allowed DePuy to start selling the other version of the A.S.R., a modified standard hip replacement that used the same A.S.R. cup found in the company’s unapproved resurfacing device." 

As a result of hip joint pain following surgery, and many adverse reports, and surgical implant failures, further investigation have resulted in the recall of DePuy Orthopedics, ASR artificial hips,  Some individuals may suffer damage to bones, muscles and nerves following implant. Lawsuits have been filed against DePuy.

Wednesday, December 15, 2010

High Workers Compensation Costs May Force County to Layoff 100 Workers

Citing the high workers compensation costs, Passaic County NJ is seriously considering laying off more than 100 workers in an effort to balance its budget. The Counting is facing a $7 Million dollar budget cap.

High costs for workers' compensation  coverage has been a critical budget issue for many governmental entities. Last month the United States Postal Service reported that it may consider filing for bankruptcy as a result of high workers' compensation costs.  Some public entities are considering privatizing workers' compensation inorder to reduce mounting workers compensation costs.

Sunday, December 12, 2010

Workers Compensation Benefits for Breast Cancer to Be Law in Manitoba

The Canadian Province of Manitoba is about to enact a law recognizing breast cancer to be a compensable condition for female firefighters. The legislation, will also provide workers' compensation for  prostate cancer, melanoma and multiple myeloma.

The Canadian Broadcasting System (CBC) reports that, "The risk of developing breast cancer is three to five times greater in a female firefighter than in the general population, Forrest said, noting 'at every fire there are more than 200 known carcinogens that are connected to breast cancer.'"

Saturday, December 11, 2010

Judge Orders Arrest of CEO of Asbestos Supplier

A Judge in Tennessee has order the arrest of the Chief Executive Office of an asbestos supplier for his failure to provide information concerning the company's assets. The action followed the jury's award of $4.1 Million for the death of a man who was exposed as a pipe-fitter to asbestos fiber sold/distributed by the company, National Service Industries.

Friday, December 10, 2010

Warning: Surgeon General Finds Workplace Tobacco is Even More Dangerous to Your Health

Workers who are exposed to tobacco smoke, even in small quantities, are subjecting themselves to an increased risk of illness and disease. The newly published Surgeon General Report, How Tobacco Smoke Causes Disease: The Biology and Behavioral Basis for Smoking-Attributable Disease, takes a detailed, scientific look at the toxicology and biology behind nicotine addiction and tobacco smoking, including carcinogenic effects and the adverse effects on cardiopulmonary and reproductive health.

Exposure to tobacco smoke – even occasional smoking or secondhand smoke – causes immediate damage to your body that can lead to serious illness or death, according to a report released today by U.S. Surgeon General Regina M. Benjamin.  The comprehensive scientific report - Benjamin’s first Surgeon General’s report and the 30th tobacco-related Surgeon General’s report issued since 1964 - describes specific pathways by which tobacco smoke damages the human body and leads to disease and death.

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Saturday, December 4, 2010

California Becomes First State to Set Safety Guidelines for Flavoring Chemical

Cal/OSHA continues to be a national leader in worker safety by implementing a new standard today to protect employees who work with diacetyl, a chemical commonly used to give food flavorings a buttery taste.  Cal/OSHA, a division of the California Department of Industrial Relations (DIR), is the only state-OSHA plan to have such a standard.    
"The diacetyl standard is the latest example of how Cal/OSHA is on the forefront of worker safety," said DIR Director John C. Duncan.  "We have taken the lead on this issue from day one and have worked closely with national medical experts as well as the National Institute of Occupational Safety and Health to get to this point. We refuse to wait until more workers suffer serious lung ailments to take action. At this time, not even Federal OSHA has a safety regulation for diacetyl, but we hope that this standard will serve as a model for them to follow."  
The new standard, section 5197 of the California Code of Regulations, requires employers covered by the standard to create a regulated area for each process using diacetyl, unless the process is enclosed.  Employers must also provide safeguards for employees who work with diacetyl at certain concentrations.  These safety measures include creating a written diacetyl control program, periodic monitoring of exposure levels and providing personal protective equipment, respirators, training, and medical surveillance at no cost to employees.  The standard goes into effect today.
"Diacetyl, a chemical that is harmless when it occurs naturally or as an ingredient in many of the foods we eat, can be dangerous in industrial settings where flavorings or foods are manufactured because it is used in much higher concentrations that allow it to get into the air that workers breathe," said Cal/OSHA Chief Len Welsh.  "Cal/OSHA has issued citations in the past related to exposure to diacetyl, but this comprehensive standard will allow us to better target our enforcement efforts."
Workers from two California flavoring companies that use diacetyl have been diagnosed with bronchiolitis obliterans -- inflammation and scarring of the small airways that can result in permanent and life threatening narrowing of the airways.  A number of employees nationwide who have been exposed to diacetyl have developed the serious respiratory illness which in some cases has resulted in patients being placed on lung transplant wait lists or dying.  Symptoms include persistent dry cough, shortness of breath when using extra energy, and wheezing.  Workers' Compensation Acts provide some benefits for those exposed.
Cal/OSHA Consultation also works to protect employees from dangerous food-flavoring chemicals.  Consultation initiated its Flavor Industry Safety and Health Evaluation Program (FISHEP) in 2006 to provide assistance to California food flavor manufacturing companies.  Consultation staff conducted mandatory onsite evaluations and consultations with 28 California companies that use pure flavoring ingredients to manufacture food flavors.  

Friday, December 3, 2010

National Mesothelioma Awareness Day Resolution Approved by Congress

The US House of Representative has passed a resolution designating September 26 as National Mesothelioma Awareness Day. The action came as the US House of Representatives unanimously, by roll call vote, approved the passage of a resolution (H. Res. 771). Representative Betty McCollum introduced the resolution that was supported by 58 co-sponsors.

The action by the House of Representatives follows prior approval of an identical resolution passed by the U.S. Senate (S. Res. 288) previously. The Senate resolution was sponsored by Senator Patty Murray (WA) and had 5 co-sponsors and was also approved by unanimous consent.

The test of the resolution is:

Whereas mesothelioma is a terminal, asbestos-related cancer that affects the linings of the lungs, abdomen, heart, or testicles;
Whereas workers exposed on a daily basis over a long period of time are most at risk, but even short-term exposures can cause the disease and an exposure to asbestos for as little as one month can result in mesothelioma 20-50 years later;
Whereas asbestos was used in the construction of virtually all office buildings, public schools, and homes built before 1975 and asbestos is still on the United States market in over 3,000 products;
Whereas there is no known safe level of exposure to asbestos;
Whereas millions of workers in the United States have been, and continue to be, exposed to dangerous levels of asbestos;
Whereas the National Institutes of Health reported to Congress in 2006 that mesothelioma is a difficult disease to detect, diagnose, and treat;
Whereas the National Cancer Institute recognizes a clear need for new agents to improve the outlook for patients with mesothelioma and other asbestos-related diseases;
Whereas for decades, the need to develop treatments for mesothelioma was overlooked and today, even the best available treatments usually have only a very limited effect and the expected survival time of those diagnosed with the disease is between 8 and 14 months;
Whereas mesothelioma has claimed the lives of such heroes and public servants as Admiral Elmo Zumwalt, Jr., and Congressman Bruce F. Vento, and a high percentage of today's mesothelioma victims were exposed to asbestos while serving in the United States Navy;
Whereas it is believed that many of the firefighters, police officers, and rescue workers from Ground Zero on September 11, 2001, may be at increased risk of contracting mesothelioma in the future;
Whereas the establishment of a National Mesothelioma Awareness Day would raise public awareness of the disease and of the need to develop treatments and enhance public awareness for it; and
Whereas cities and localities across the country are recognizing September 26 as Mesothelioma Awareness Day: Now, therefore, be it

    Resolved, That the House of Representatives--

      (1) supports the goals and ideals of Mesothelioma Awareness Day; and

      (2) urges the President to issue a proclamation calling on the people of the United States, Federal departments and agencies, States, localities, organizations, and media to annually observe a National Mesothelioma Awareness day with appropriate ceremonies and activities.

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Thursday, December 2, 2010

CMS Issues Series of Mandatory Reporting Alerts

Centers for Medicare and Medicaid Services (Me...Image via Wikipedia
The Centers for Medicare and Medicaid Services (CMS) has recently issued a series of Alerts for Implementation of 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) & (8)).

One of Alerts defines the Date of Incidence (DOI) for a cumulative injury which is the earlier of:

• The date that treatment for any manifestation of the cumulative injury began when such treatment preceded formal diagnosis; or
• The first date that formal diagnosis was made by any medical practitioner.

MMSEA 111 - Alert - November 18, 2010 - ALERT: Liability Insurance (Including Self-Insurance), No-Fault Insurance, and Workers' Compensation - Special Default ICD-9 Code for Responsible Reporting Entities (RREs) [PDF 69.45KB] 

MMSEA 111 - Alert - November 18, 2010 - ALERT:  TIN Reference File Address Validation Information for Liability Insurance (Including Self-Insurance), No-Fault Insurance, and Workers' Compensation Responsible Reporting Entities (RREs) [PDF 58.76KB] 

MMSEA 111 - Alert- November 9, 2010 - I. Revised Implementation Timeline for TPOC Liability Insurance (Including Self-Insurance) Settlements, Judgments, Awards or Other Payments and II. Extension of Current Dollar Thresholds for Liability Insurance (Including Self-Insurance)  and Workers' Compensation [PDF 46.95KB] 

MMSEA 111 - Revised Alert - November 5, 2010 - Direct Data Entry (DDE) Registration Information for Liability Insurance (Including Self-Insurance), No-Fault Insurance, and Workers' Compensation [PDF 49.17KB] 

MMSEA 111 – Revised Alert - November 5, 2010 - New Direct Data Entry (DDE) Option for Liability Insurance (Including Self-Insurance), No-Fault Insurance and Workers' Compensation [PDF 65.37KB] 

MMSEA111 - Alert - October 14, 2010 - Alert For Liability (Including Self-Insurance), No-Fault Insurance and Workers' Compensation - Reporting Timeframe [PDF 44.34KB] 

MMSEA111 - Alert - October 14, 2010 - Alert For Liability (Including Self-Insurance), No-Fault Insurance and Workers' Compensation - DOI For Cumulative Injury [PDF 40.89KB] 

New information concerning ICD Provider & Diagnostic Codes has also been posted to the CMS website:
Version 28 Full and Abbreviated Code Titles - Effective October 1, 2010 [ZIP 922KB] 

Conversion information to the proposed (NEW) ICD-10 Codes is also posted.

Congressional Deficit Reform May Incorporate Workers Compensation Awards

Congressional deficit reform may encompass workers' compensation awards as an element for deficit reduction. National Underwriter (NU) reports that the proposal is supported by the co-chairman of the budget deficit commission (National Commission on Fiscal Responsibility)  that was appointed by President Barach Obama. A vote of the full committee is scheduled for Friday.

A proposal was also made to impose caps on punitive and non-economic damages in tort claims.

NU reported, "On tort reform, the co-chairmen recommended that among the policies that should be pursued, state and federal governments should consider modifying the “collateral source” rule to allow outside sources of income collected as a result of an injury (for example, workers’ compensation benefits or insurance benefits) to be considered in deciding awards."

Commission's report stated:
"Among the policies pursued, the following should be included: 1) Modifying the “collateral source” rule to allow outside sources of income collected as a result of an injury (for example workers’ compensation benefits or insurance benefits) to be considered in deciding awards; 2) Imposing a statute of limitations – perhaps one to three years – on medical malpractice lawsuits; 3) Replacing joint-and-several liability with a fair-share rule, under which a defendant in a lawsuit would be liable only for the percentage of the final award that was equal to his or her share of responsibility for the injury; 4) Creating specialized “health courts” for medical malpractice lawsuits; and 5) Allowing “safe haven” rules for providers who follow best practices of care."

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Wednesday, December 1, 2010

Employee Sues Co-Worker Following Perfume Assault

An employee in Ohio who was denied a claim for workers' compensation benefits, has filed a lawsuit against her co-workers against her co-employees. With the workers' compensation claim have been rejected, the workers' compensation law would not act as a bar to such an action under the Exclusivity Doctrine.

In NJ an employee was
permitted to bring a claim for workers compensation benefits. The NJ court reasoned in its opinion that the accident occurred in the course of her employment and arose out of her employment. The exposure at work was deemed a "neutral risk," one that was out of the control of the employee.
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. The cosmetic and fragrance industry is largely self-regulated.

Recently the California Attorney General filed a  lawsuit against the manufacturers of a cosmetic product that contained formaldehyde, a hazardous substance. The complaint alleges that the cosmetic company engaged in deceptive identification, advertising and promotional practices.

"Recent testing by the Oregon Health & Science University’s Center for Research on Occupational and Environmental Toxicology and Oregon OSHA found between 6.3 and 11.8 percent formaldehyde in the solution. The Cosmetic Ingredient Review Expert Panel, a monitoring agency for cosmetic safety, states that formaldehyde is only safe at a level of less than 0.2 percent." Health Canada is warning Canadians that Brazilian Blowout Solution manufactured by Brazilian Blowout of California has been found to contain unacceptable levels of formaldehyde.

The Ohio employee, who is bringing the action against her co-workers, was hospitalized because of the exposure at work and now is forced to use an inhaler to relieve her respiratory symptoms.

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