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

Tuesday, February 28, 2012

EPA Approves New Jersey’s List of Polluted Water Bodies; Sewage Pollution Continues to be a Major Problem in New Jersey

Passaic River
(c) 2012 Jon Gelman
The U.S. Environmental Protection Agency has approved the 2010 list of waters in New Jersey that are considered either impaired or threatened by pollutants. An impaired water body is one that does not meet federal water quality standards even after pollution controls have been put in place. A threatened water body is one that is expected to be impaired within two years. The list helps establish priorities for addressing threats from water pollution.

“Identifying and prioritizing the state’s most seriously polluted waters are important steps in our work to reduce water pollution,” said Judith Enck, EPA Regional Administrator. "New Jersey faces serious water quality challenges including the need to reduce pollution from combined sewer systems that allow raw sewage to flow into waterways when it rains. By upgrading old infrastructure and implementing green infrastructure strategies, New Jersey communities can improve water quality.”

The Clean Water Act requires states to assess the quality of their waters and to report their findings to the EPA every two years. The list is compiled by the New Jersey Department of Environmental Protection and is a valuable tool for reaching the Clean Water Act goal of “fishable and swimmable” waters for all of New Jersey.

The list specifically includes impaired waters for which the development of budgets for the amount of water pollution allowed is necessary. The budgets define the maximum amount of a pollutant that a water body can receive and still meet water quality standards. They are developed by states and approved by the EPA once the agency determines that the budget will allow the water body to achieve water quality standards.

The most common pollutants causing impairment in New Jersey water bodies include PCBs (8.33%), dissolved oxygen (8.19%), phosphorus (7.86%), pH (7.62%), and arsenic (6.89%). New Jersey’s 2010 list identifies 2,112 instances in which a pollutant is causing an impairment of a water body that keeps it from supporting its “designated use” for drinking water, swimming and recreation, fishing or other activities specified by the state.

The list also notes the most common sources of water pollutants, which include urban/stormwater runoff, combined sewer overflows from systems that capture both domestic sewage and stormwater, and air pollution, including acid rain. A pollutant may come from more than one source.

In 2010, new pollutants were included for waters in the basins of the Hudson River, the Passaic River, the Raritan River, the Delaware Bay, and others. The EPA will continue to work with state and local governments to ensure that impaired waters are cleaned up.

A complete list of impaired waters in New Jersey is available at:

Workers Compensation Law 2012 Now Shipping

Highlights Include:
Electronic Discovery s.22.33
Medicare Conditional Payments 29.32 and 29.33

Jon L. Gelman's 2012 supplement to the 3 volume hard bound practice series, Workers' Compensation Law 3rd Ed.,  has been published. Order these important supplements now. The supplement provide almost a quarter of a century continuing and unparalleled analysis on workers' compensation law. The volumes and supplements are integrated into the Westlaw(R), part of Thomson Reuters system for "Better Results Faster."
The newly enacted statutory changes to the New Jersey Workers’ Compensation Act and promulgated Rules permitting Emergent Medical Care Motions, new registration requirements for insurers, and new judicial enforcement powers of Judges of Compensation, including sanctions and contempt powers, are contained in this supplemental material.An analysis of the newly adopted procedures for the reimbursement of conditional payments established by Medicare and the protocols to co-ordinate  workers’ compensation claims with the Centers for Medicare and Medicaid Services is contained in this supplement. The materials also provide the authorizations required to obtain conditional payment  information from the Coordinator of Benefits. Debt collection referral to the Department of the Treasury is also reviewed.
The new Community and Worker Right to  Know material has been incorporated into this supplement. The current hazardous substance lists and the substances that have been deemed extremely dangerous are provided.The supplement reviews new case law concerning electronic cancellation of coverage as well as the standard for claims to be considered casually related to the employment.The mandatory reporting requirements of the SCHIP Extension Act of 2007 are described as well as the appeal procedure under the reimbursement provision of the Medicare Secondary Payer Act.These pocket parts provide information concerning the requirements for medical monitoring in workers’ compensation claims. It discusses. the Asbestos Fund, which has been established for those entities where workers’ compensation coverage cannot be established.  
The newly designed forms that need to be utilized in filing for benefits are included.  Also, the recently modified Motion for Temporary and Medical Benefits, including a form Certification, is provided and discussed.The newly revised Judgments for Total and Permanent Disability are provided in this pocket part.  The Judgments include new refinements in offsets for pensions and Social Security disability benefits. Reviewed also is the “intentional wrong exception” to the Exclusivity Bar which has been the subject of new workers’ compensation insurance policy language and regulation.The recently promulgated administrative rules governing the disposition of Temporary Disability Benefits are discussed. The non-duplication of benefits provisions are reviewed including the multiple agency adjudication process.
An expansion of benefits available to Federal public safety officers is reviewed in this supplement.Collateral medical benefit issues are discussed in light of the recent Supreme Court decision concerning this matter.  The pocket parts include a Motion to Join the Collateral Health Carrier and provide sample Certifications to be used in support of the application.Additionally, these pocket parts provide information concerning the new rules of the Division of Workers’ Compensation embodying electronic filing requirements and new procedures involving both formal and informal proceedings, motion practice, post judgment process, and judicial performance. The expanded Medicare secondary reporting requirements and the mandatory coordination of benefits are reviewed in this supplement.
The recovery aspects of Medicare conditional payments as well as future medical provisions are updated and discussed. The new Child Support Lien distribution forms, computation worksheets and judgments are provided and explained in depth. The NJ Supreme’ Court ruling and the legislative enactments are discussed concerning same sex couples and the availability of workers’ compensation benefits.This supplement reviews the newly promulgated Rules concerning the Uninsured Employers’ Fund and audio and video coverage of workers’ compensation proceedings.  The horrific tragedy of September 11th, 2001 and the impact it has upon the Workers’ Compensation system is discussed.
This supplement reviews the newly enacted Smallpox Emergency Protection Act as well as recent court decisions concerning acts of terrorism.
The subsequent legislative changes enacted in response to potential terrorist threats are reviewed, including the Public Safety Officers’ Benefit Act as well as the liberalized legislative enactments involving rescue workers and medical personnel. The impact of the newly promulgated Federal rules and regulations concerning medical record privacy and compliance with the Health Insurance Portability and Accountability Act (HIPPA) medical authorization requirements are reviewed in this supplement and model forms are furnished.  The recently enacted statutory workers’ compensation coverage options available to proprietors and partners are discussed. The supplement reviews the recent court decisions expanding the responsibility of the Second Injury Fund for pre-existing medical conditions in cases in which latent diseases become manifest during retirement.  The statutory enactments concerning State Temporary Disability Benefits are reviewed.  

The recently amended Energy Employees Occupational Illness Compensation Act is explained in detail and forms are furnished and discussed.The recent Supreme Court decisions concerning the high judicial threshold for evaluation of scientific evidence are analyzed. The requirements for proof of scientific evidence in complex workers’ compensation cases are discussed including the admissibility of testimony from non-physicians experts. Furthermore, the evolving and expanding issues concerning medical monitoring are reviewed.This pocket part also discusses recent changes in the application for counsel fees.
The supplement includes the newly promulgated administrative directive embodying those changes. 

The Compensabilty of Death By Overwork

Late in the 1970s, serious social concern over health problems due to long working hours has arisen in Japan. This report briefly summarizes the Japanese circumstances about long working hours and what the Government has achieved so far. The national statistics show that more than 6 million people worked for 60 h or more per week during years 2000 and 2004.

Approximately three hundred cases of brain and heart diseases were recognized as labour accidents resulting from overwork (Karoshi) by the Ministry of Health, Labour and Welfare (MHLW) between 2002 and 2005. Consequently, the MHLW has been working to establish a more appropriate compensation system for Karoshi, as well as preventive measures for overwork related health problems. 

In 2001, the MHLW set the standards for clearly recognizing Karoshi in association with the amount of overtime working hours. These standards were based on the results of a literature review and medical examinations indicating a relationship between overwork and brain and heart diseases. In 2002, the MHLW launched the program for the prevention of health impairment due to overwork, and in 2005 the health guidance through an interview by a doctor for overworked workers has been enacted as law. 

 Long working hours are controversial issues because of conflicts between health, safety, work-life balance, and productivity. It is obvious that we need to continue research regarding the impact on worker health and the management of long working hours.

Health Problems due to Long Working Hours in Japan: Working Hours, Workers’ Compensation (Karoshi), and Preventive Measures Industrial Health 2006, 44, 537–540

For over 3 decades the Law Offices of Jon L. Gelman 1.973.696.7900 have been representing injured workers and their families who have suffered work related accident and injuries.

Monday, February 27, 2012

The Religious Opt-Out Scheme: A New Approach to Eliminate Workers' Compensation

Alex Berman
Ed Note:
Over a decade ago Bechtel Corporation initiated an opt-out program that took workers' compensation out of the adversarial system entirely. Shortly thereafter, the concept of universal healthcare emerged as a concept to remove all healthcare delivery and benefits from workers' compensation. Recently Republican presidential candidates have pledged to merge the system into an employee paid for program. Now, legislators in the State of Michigan, where unemployment soared to over 14% in 2009, are suggesting yet another approach to opt-out of workers' compensation based on a religious exemption.
Jon L Gelman

Guest post by
Alex Berman of the Michigan Bar

Representatives Earl Poleski (primary), Matt Lori, Joe Haveman, and Margaret O’Brien have introduced new legislation that would exempt religious organizations from the Michigan workers compensation system.

House Bill No. 5371 provides that: “An individual is not an employee subject to this act if he or she is a member of a religious sect or division that is an adherent of established tenets or teachings by reason of which members are conscientiously opposed to accepting the benefits of any public or private insurance that makes payments in the event of death, disability, old age, or retirement or makes payments toward the cost of, or provides services for, medical bills, including the benefits of any insurance system established by the social security act, 42 USC 301 to 1397mm, and has the practice established for 10 or more years, for members of the sect or division to make reasonable provision for their dependent members. An employer shall retain a copy of the employee’s internal revenue service form 4029 that has been approved by the federal social security administration to assert an exemption under this subdivision.”

This legislation would take away protections that have been in place since the original workers compensation act was passed in 1912. It would allow religious organizations to exempt their employees from the workers compensation system if they are members of the same faith. The idea seems to be that religious groups who are conscientiously opposed to public or private insurance should not be forced to participate in the state workers compensation system.

We believe this legislation is awful and will lead to many unintended consequences. It is also unlikely to survive a constitutional challenge in the courts.
Michigan Workers Compensation Law 101

Workers compensation is a type of insurance that employers are required to purchase under Michigan law. It is intended to protect both employees and employers in the event of a work-related injury.

An employee who suffered a work injury before 1912 used to have to show that their employer was at fault to receive compensation. If the injured worker could prove fault, he or she was entitled to any damages that a jury could award. This included pain and suffering. The problem with this approach was that some employees were overcompensated for their injuries while others received nothing. Employers could also be forced to pay substantial damages for relatively minor injuries.

Michigan adopted its first workers compensation law in 1912. The law was a compromise between employee and employer interests. Employees gave up the right to sue in civil court in exchange for what are essentially no-fault benefits.

Workers compensation now pays wage loss, medical treatment, and vocational rehabilitation. Employers receive protection from civil lawsuits including actions for negligence. The amount of benefits that employers must pay are limited.

Michigan’s workers compensation system has worked for over 100 years and has served as a model for other states. It provides injured workers with fair compensation while protecting employers and business interests.

Unintended consequences

Exempting religious organizations from the workers compensation system creates a slippery slope and sets a bad precedent. Soon other groups will seek to be exempted and the entire system will be put in jeopardy.

Employees gave up their common law rights in exchange for limited workers compensation benefits. If an employer is exempted from the workers compensation system, presumably its employees would be free to file a tort action and seek civil damages. This is exactly what the workers compensation system was designed to prevent in the first place.

Just because someone has a religious belief does not mean they should be exempted from Michigan law. You could give religious organizations total immunity but the last time we checked this was not the middle ages.

Changes to the workers compensation law should not be done hastily

Any changes to Michigan’s workers compensation law should not be done without serious thought and consideration. All stakeholders need to be brought together to ensure continuing viability of the system.

Alex Berman is the founding member of the Law Office of Alex Berman, P.C., of Farmington Hills, Michigan. For over 30 years he has handled workers' compensation claims for employees who had injuries or disabilities and has battled successfully against employers including automobile suppliers. He is a member of the State Bar of Michigan and the Michigan Association for Justice.

Enter Jeb Bush: Gingrich on Work Comp Now an Issue

Ann Coulter at the 2004 Republican National Co...Image via Wikipedia
Ann Coulter at the 2004 Republican National Convention
The Republican presidential primary is now moving workers' compensation up on the issue ladder. Today, Ann Coulter, a conservative columnist on the Fox New Channel,  attacked Newt Gingrich  on his proposal to employ child janitors and opposition to a workers' compensation system and also attacked Jeb Bush on his pro-immigration policy.

Coulter, who is supporting Mitt Romney,  remarked that the candidates should stop "appealing to people's fear and emotions." She commented that the nomination of Jeb Bush would be an embarrassment to the Republican party and is pro-amnesty for illegal aliens policy was not conservative enough.

On the other hand, she failed to mention that Mitt Romney planned to cut benefits to the disabled. So the choices are pretty poor for injured workers. Whether the Republicans  directly or indirectly attack benefits for injured workers, it is quiet apparent that workers' compensation will be a prominent issue for the 2012 presidential campaign.

Thursday, February 23, 2012

Workers Compensation: The Next Wave From California

The California Division of Workers' Compensation has announced a series of public discussions for comments and concerns as it struggles in crafting a potential modification of its system.

Click here to read the California DWC Announcement

Topics of discussion will include:
  • Provision of appropriate medical treatment without unnecessary delay, the Medical Provider Network (MPN), Utilization Review (UR) or other issues
  • Enabling injured workers to return to work as quickly as medically feasible
  • Adequate compensation for permanent disabilities
  • Reducing the burden of liens on the system
  • Identification of appropriate fee schedules
  • Reducing  unnecessary litigation costs
  • Assessing appropriate use of opiates and other care
  • Any other improvements needed

Saturday, February 18, 2012

OSHA Fines: List Industries Inc. Deerfield Beach Florida $56,000

The seal of the United States Department of LaborImage via Wikipedia

US Department of Labor's OSHA cites List Industries Inc.'s Deerfield Beach, Fla., plant with repeat and serious safety violations; fines total $56,000

The U.S. Department of Labor's Occupational Safety and Health Administration has proposed $56,000 in penalties against List Industries Inc. after an inspection of its Deerfield Beach manufacturing plant found amputation hazards that had been previously cited during OSHA inspections in 2007 and 2009.

One repeat violation with a $49,000 penalty has been cited for allowing workers to operate a mechanical power press that lacked machine guards, exposing workers to being pulled into the machinery and suffering possible amputations. A repeat violation exists when an employer previously has been cited for the same or a similar violation of a standard, regulation, rule or order at any other facility in federal enforcement states within the last five years.

One serious violation with a $7,000 penalty also has been issued for exposing workers to amputation hazards by failing to use safety blocks when changing dies or equipment is being repaired. A serious violation occurs when there is substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known.

"OSHA will not tolerate management waiting for a serious injury to occur before correcting violations that expose workers to potential amputation hazards," said Darlene Fossum, the agency's area director in Fort Lauderdale. "Employers must take proactive actions toward workplace safety."

List Industries, a manufacturer of metal shelving and lockers with six locations in the U.S., has 15 business days from receipt of the citations and proposed penalties to comply, request a conference with OSHA's area director or contest the findings before the independent Occupational Safety and Health Review Commission.

Friday, February 17, 2012

NIOSH Acts To Prevent Lifting Injuries For Home Healthcare Workers

The National Institute for Occupational Health and Safety (NIOSH) has published educational information to prevent musculoskeletal injuries at work. Injuries caused by ergonomic factors have been a major issue of the Federal government for decades and have been the basis for repetitive trauma motion claims for workers' compensation benefits. While the Clinton-Democratic administration had advocated strongly for ergonomic regulations, the Bush-Republican administration took action to reject the reporting of ergonomic injuries to OSHA.

A work-related musculoskeletal disorder is an injury of the muscles, tendons, ligaments, nerves, joints, cartilage, bones, or blood vessels in the arms, legs, head, neck, or back that is caused or aggravated by work tasks such as lifting, pushing, and pulling. Symptoms include pain, stiffness, swelling, numbness, and tingling.
Lifting and moving clients create a high risk for back injury and other musculoskeletal disorders for home healthcare workers.
Click here to read: How to Prevent Musculoskeletal Disorders (PDF - 802 KB)
For over 3 decades the Law Offices of Jon L. Gelman  1.973.696.7900 have been representing injured workers and their families who have suffered occupational accidents and illnesses. 

Thursday, February 16, 2012

Distracted Driving: Federal Guidelines Proposed For Automakers

After years of accidents in the workplace caused by the use of mobile devices in vehicles, the Federal Government today proposed universal universal guidelines to encourage automobile manufacturers to electronically disable these devices when a vehicle is in operation.  The enforcement of this safety-first proposal may establish a legal standard universally to bar the use of such devices in vehicles and encourage employees to have a safer working environment.

See: U.S. Department of Transportation Proposes ‘Distraction’ Guidelines for Automakers
"Issued by the Department’s National Highway Traffic Safety Administration (NHTSA), the guidelines would establish specific recommended criteria for electronic devices installed in vehicles at the time they are manufactured that require visual or manual operation by drivers. The announcement of the guidelines comes just days after President Obama’s FY 2013 budget request, which includes $330 million over six years for distracted driving programs that increase awareness of the issue and encourage stakeholders to take action. "

Counsel Fees Awarded Against An Employer Who Failed to Pay Timely

A NJ Appellate Court has ordered that an employer must pay counsel fees to an injured worker's attorney, on an hourly basis, when the employer is penalized. The employer failed to timely pay an award for compensation benefits to the injured worker. The Appellate Court ruled that the workers' attorney was entitled, in additional to the standard contingency fee, and counsel fees awarded for the appeal of the matter, to an award for services rendered to enforce the Order of the court.

The Appellate Court, presented with the issue three times on appeal, exercised its original jurisdiction, and held "....that an award of attorney's fees is mandatory and the judge of compensation is not limited by the statutory formula governing fee awards following an award of benefits. Quereshi v. Cintas Corp. (Quereshi I), 413 N.J. Super. 492, 503 (App. Div. 2010)."

In its decision the Appellate Court opined, "...the judge of compensation misinterpreted our original opinion"....and that "the alternative interpretation of the judge's action -- willful defiance of our mandate --is completely unacceptable behavior."

Qureshi v. Cintas Corporation, A-2703-10T2 (NJ App Div 2012) Decided Feb 15, 2012 (Quereshi III), Unpublished Decision.  2012 WL 469726 (N.J.Super.A.D.

Related articles

Wednesday, February 15, 2012

NIOSH Alerts Home Healthcare Workers About Latex Allergies

NIOSH (The National Institute for Occupational Health and Safety) has published a booklet to educate Home Healthcare Workers about preventing latex allergies. Latex products are made from natural rubber, and sensitivity can develop after repeated exposure. Limiting exposure to latex can help prevent allergic reactions for both home healthcare workers and their clients.

Once Natural Rubber Latex (NRL) sensitivity occurs, allergic individuals continue to experience symptoms, which have included life-threatening reactions, not only on exposure to NRL in the workplace but also upon receiving or accompanying a family member receiving healthcare services at inpatient as well as office-based settings.

In September of 1997, the Food and Drug Administration (FDA) issued a final rule requiring cautionary statements in the labeling of all medical devices that contain natural rubber likely to come in contact with humans. The rule provides that such products must contain the following cautionary statement in bold print: "Caution: This product contains natural rubber latex which may cause allergic reactions." Additionally, the FDA issued a final ruling that the labeling of medical devices that contain natural rubber, likely to come in contact with humans, shall not contain the term "hypoallergenic".

Over the last few years, there has been a significant increase in the number of workers' compensation claims filed against employers on behalf of individuals who have suffered latex allergic reactions. Scientists and government officials estimate that about 950,000 U.S. health care workers have developed an allergic sensitivity to latex.
For over 3 decades the Law Offices of Jon L. Gelman  1.973.696.7900 have been representing injured workers and their families who have suffered occupational accidents and illnesses. 

Related articles

Tuesday, February 14, 2012

Subscribe to Workers Compensation on Google Currents

Stay up to date with Workers Compensation on Google Currents an application for your table or smartphone. It is FREE.

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Monsanto guilty of chemical poisoning in France

Consistent with an enforcement trend by the EU to reduce agricultural pesticides used by 50% between 2008-2018,  a  French court on Monday declared U.S. biotech giant Monsanto guilty of chemical poisoning of a French farmer, a judgment that could lend weight to other health claims against pesticides.

See: Thomson Reuters News & Insight
"It is a historic decision in so far as it is the first time that a (pesticide) maker is found guilty of such a poisoning," Fran├žois Lafforgue, Francois's lawyer, told Reuters.

Monday, February 13, 2012

Pair sentenced to 16 years in Italy asbestos trial

Pair sentenced to 16 years in Italy asbestos trial - Telegraph:

Prosecutor Raffaele Guariniello is surrounded by media at the Turin courthouse, Italy
Stephan Schmidheiny, the former owner of a company making Eternit fibre cement, and Jean-Louis Marie Ghislain de Cartier de Marchienne, a major shareholder, were sentenced in absentia after being found guilty of causing an environmental disaster and failing to comply with safety regulations.

NIOSH To Review Underreporting of Occupartional Injuries and Illnesses by Workers

NIOSH logoImage via Wikipedia

National Institute for Occupational Safety and Health (NIOSH), Centers for Disease Control and Prevention (CDC) has proposed a project to review the Underreporting of Occupational Injuries and Illnesses by Workers.

"In 2008, the Congressional Committee on Education and Labor released the report, “Hidden Tragedy: Underreporting of Workplace Injuries and Illnesses,” indicating “that work-related injuries and illnesses in the United States are chronically and even grossly underreported.” Based in part on the report's results, Congress allocated funds for NIOSH to conduct a follow-up study using NIOSH's occupational supplement to the National Electronic Injury Surveillance System (NEISS-Work) to estimate underreporting among individuals who seek care at an emergency department (ED) for an occupational illness, injury, or exposure.

"Objectives for this project are to (1) assess the reporting behavior of workers that are injured, ill, or exposed to a harmful substance at work; (2) characterize the chronic aspects of work-related injuries or illnesses; and (3) estimate the prevalence of work-related chronic injuries and illnesses among United States workers treated in EDs. Particular attention will be paid to self-employed workers, workers with work-related illnesses, and workers with chronic health problems.

"Data collection for the telephone interview survey will be done via a questionnaire containing questions about the respondent's injury, illness, or exposure that sent them to the ED; the characteristics of the job they were working when they were injured, became ill, or were exposed; their experiences reporting their injury, illness, or exposure to the ED and their employer (if applicable); the presence of an underlying chronic condition that was associated with their ED visit; and the nature of any other work-related chronic conditions they have experienced. The questionnaire was designed to take 30 minutes to complete and includes a brief series of questions to screen out individuals who were not seen in the ED for a work-related injury, illness, or exposure; who are younger than age 20 or older than age 64; who do not speak English or Spanish; or who were working as volunteers or day laborers when the injury, illness, or exposure occurred or was made worse.

77 FR 6803 2/9/2012

Sunday, February 12, 2012

Santorum: Selling Health Care the Apple Way

Source: NY Times
As the Republican presidential primary keeps rolling along, it is becoming more apparent that under the Republican platform injured workers are going to get stuck under the wheels of the bus for health care.

In Woodland Park, Colorado, at a campaign stop Rick Sanatorium policy The National Journal reported:

"A young boy asked the former U.S. senator from Pennsylvania what he would do to keep prescription drugs affordable. Another woman in the audience chimed in that she couldn't afford her $900-a-month prescription.

"Santorum compared the costs to buying an iPad. "People have no problem going out and buying an iPad for $900,” he said. “But paying $200 for a drug they have a problem with -- that keeps you alive. Why? Because you've been conditioned in thinking health care is something you should get and not have to pay for."

This conservative dogma ironically conflicts with the social, economic and moral philosophy of the majority of Americans. It is one thing to reduce benefits due to austerity measures, it is quite another thing to just eliminate them outright because of a conservative doctrine. 

The path toward federalization will not be an easy one. There will be those who argue for elimination based on ideology, religion and cost. Workers' Compensation programs initially were met with such challenges, and those issues were surmounted. 

Comparing the purchase of life-saving drugs to the purchase of an iPad, is just wrong.  Those living in abject poverty don't buy iPads monthly. They need their prescription drugs to live. The companies that exposed workers to toxins, and then deny them workers' compensation benefits when they become ill, should not then pull the medical safety-net from under them. It is immoral to deny poverty-stricken ill workers medical care.

Selling the "option" of health and safety to American workers goes against the basic tenants of the century old system of workers' compensation. Healthcare, including, infections and diseases, impact all Americans. Much more creatively needs to be expressed rather just proposing cost shifting to those who obviously can't pay the cost.

See The New York Times report: Even Critics of Safety Net Increasingly Depend on It
"Dozens of benefits programs provided an average of $6,583 for each man, woman and child in the county in 2009, a 69 percent increase from 2000 after adjusting for inflation. In Chicago, and across the nation, the government now provides almost $1 in benefits for every $4 in other income."

Saturday, February 11, 2012

US Labor Department announces comprehensive final rule on H-2B foreign labor certification program

Official portrait of Secretary of Labor Hilda ...Image via Wikipedia
Secretary of Labor Hilda L. Solis
The U.S. Department of Labor's Employment and Training Administration and its Wage and Hour Division today announced a final rule to improve the H-2B temporary nonagricultural worker program. The rule, to be published in the Feb. 21 edition of the Federal Register, includes changes to several aspects of the program to ensure that U.S. workers receive greater access to jobs and strengthens worker protections.
The H-2B program allows the entry of foreign workers into the United States on a temporary basis when qualified U.S. workers are not available, and the employment of those foreign workers will not adversely affect the wages and working conditions of U.S. workers. The H-2B program is limited by law to a cap of 66,000 visas per year.
"The H-2B program is designed to help businesses when there is a temporary shortage of U.S. workers," said Secretary of Labor Hilda L. Solis. "The rule announced today will ensure that the program is used as intended by making these jobs more accessible to U.S. workers and providing stronger protections for every worker."
The department responded to comments received from employers and worker advocates in drafting the final rule, providing employers with greater flexibility and certainty throughout the application and recruitment processes as well as improving U.S. workers' access to jobs. The final rule creates a national registry for all H-2B job postings and increases the amount of time during which U.S. workers must be recruited. The rule also requires the rehiring of former employees when available.
In addition, H-2B program benefits such as transportation costs and wages will be extended to U.S. workers performing substantially the same work as H-2B workers. Worker protections also will be strengthened by enhanced transparency throughout the employment process.
The rule will be effective on April 23. It can be viewed at Materials, including fact sheets, are available at and
Related articles

Thursday, February 9, 2012

Stephen Levin MD - Dies of Cancer

It is with sadness that I report of the passing of Dr. Stephen Levin.  Dr. Levin began an occupational disease evaluation practice in the office of Jack Sall, MD of Paterson NJ over 3 decades ago. He advanced to the Environmental Sciences Laboratory at the Mt. Sinai School of Medicine under the leadership of the late Irving J. Selikoff, MD, a pioneer in occupational disease research and more specifically asbestos related illnesses.

After the passing of Dr. Selikoff, Dr. Levin chaired the Environmental Sciences Department and maintained the archives of Dr. Selikoff. Dr. Levin was a leader and advocate for occupational disease research and treatment. His research work in post World Trade Center airborne toxins and disease build the foundation for the passage of the Zadroga 9-11 Health Benefits legislation enacted by Congress 14 months ago.

Joel Shufro, Executive Director of NYCOSH and Bill Henny, NYCOSH Board Chair, made the following statement, "He understood that the health of working people was directly tied to the health of the labor movement - that being organized into union or any other formation - was the first and most important step workers could take to protect their safety and health."

Stephen Levin championed the cause for helping victims of environmental and occupational disease. Ironically, like his predecessor, Dr. Selikoff, he also succumbed  to cancer, the disease that they both battled against for others. Dr. Levin's will be sadly missed but his legacy will on.

See also:
Dr. Stephen Levin dead of cancer NY Daily News
"As the medical director of Mount Sinai Medical Center’s Irving J. Selikoff Center for Occupational and Environmental Medicine, Dr. Stephen Levin had long known how damaging airborne toxins were to unprotected lungs."
A memorial service will take place Tuesday, February 21, 2012 at 4 p.m. at the Mount Sinai School of Medicine's Stern Auditorium, 1468 Madison Avenue (@ E. 100th Street, New York, NY 10029.

Workers Compensation: A Cash Cow For Medical Providers

Guest Blog
by Julius Young of the California Bar

Are medical treatment recommendations sometimes driven by profit motive?

In my whole career I've met very few injured workers who expressed concern that the treatment recommendations of their doctor were influenced by physician income considerations.

Americans tend to trust their doctors. Some of us grew up watching Dr. Kildare, Ben Casey, or the MASH doctors. Others cut their teeth on ER or General Hospital.

Nothing pisses off an injured worker as much as having an outside, non-examining utilization reviewer doctor challenge the recommendations of their doctor.

But the reality is that sometimes medicine and economics are intertwined. Just as insurers want to limit costs, there are some doctors who are happy to push procedures and tests for profit.

In a prior post, "Upcoding", I noted recent investigative reporting by California Watch that documented unusually high rates of billings for "cardiac failure" in some California hospitals:

So it was no surprise to see today's article in the Wall Street Journal which documents high rates of spinal surgery procedures in some California hospitals. The article, "In Small California Hospitals, the Marketing of Back Surgery", was written by John Carreyrou, Tom McGinty and Joel Millman.

The article focuses on spinal surgery at Tri-City Regional Medical Center in the city of Hawaiian Gardens which is in southeast Los Angeles County near Long Beach.

According to the Wall Street Journal investigative reporters:

"For an operation known as spinal fusion, which joins two or more vertebrae, the small hospital billed workers' compensation insurers $65 million in 2010, up from less than $3 million three years earlier, state hospital discharge data show.Helping spur the business was Paul Richard Randall, a consultant to whom Tri-City has paid millions of dollars in marketing fees. According to people familiar with his role, it was twofold: bringing surgery cases to the hospital by recruiting surgeons to operate there, and supplying metal implants for the surgeries through distributorships he owned."

The article notes that Randall has been the subject of a federal investigation although charges have apparently not been filed nor have illegal acts been proven.

According to the Journal, many small hospitals are doing lots of workers' comp spinal surgeries, noting that "California employers paid $7.1 billion in insurance premiums to cover their workers' compensation liability in 2010. Spinal-fusion surgery is a growing part of the care these premiums pay for. It accounted for 40% of inpatient hospital charges to the state workers' compensation system in 2010, up from 30% in 2001, a Journal analysis of hospital discharge data shows."

Hospitals that did a large amount of spinal surgeries included university-based hospitals such as UCSF, well known treatment centers such as Cedars Sinai and Scripps La Jolla but also a number of small hospitals around the state.

While it would be unfair to assume that some of the hospitals mentioned in the article are encouraging spinal surgery cases as a "cash cow", the article raises a number of questions worthy of further looks by policymakers.

Spinal hardware costs have already been addressed in a RAND study prepared for CHSWC, "Payment for Hardware Used in Complex Spinal Procedures Under California's Official Medical Fee Schedule", by Barbara O. Wynn and Giacomo Bergamo:

Julius Young is a partner at Boxer & Gerson LLC and has practiced workers' compensation and social security disability law since 1979 advocating for injured workers and their families.. He is the founder, writer, and editor of an award winning blog on workers’ compensation and wider more far ranging and always engaging political issues, The blog has twice been selected as winner or co-winner of the top workers’ comp blog in the US by Lexis/Nexis. He was a Board member of the California State Bar Executive Committee in Workers' Compensation from 2007 to 2010. Julius has acted as a training consultant for the US Hastings Employment Law Center Workers’ Compensation Clinic, has acted as an advisor to Worksafe on workers’ compensation and safety issues, and is currently serving on an Advisory Committee re Rand Institute studies at the request of the California Commission on Health, Safety, and Workers’ Compensation.