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

Tuesday, April 30, 2013

Hyde Park Corner - A New Place on Facebook for Discussions

Congratulations to my good friend, Stephen Embry, on the inauguration of his new page on Facebook to post  discussions about current topics, including workplace safety. His new page is called The Hyde Park Corner.

To commemorate the inauguration of The Hyde Park Corner,
I stopped by in London today to see and
hear what was happening actually at The Hyde Park Corner. 

I must say that things are a lot more significant and current on Steve's page. I would encourage you to visit it in the near future.

Monday, April 29, 2013

Intoxication, Work, And Workers' Compensation Don’t Mix

Today's post comes from guest author Paul J. McAndrew, Jr. from Paul McAndrew Law Firm of Iowa.
Most of us know that, for both professional reasons and in the interest of safety, remaining sober while on the job is essential. However, it is important to also recognize that workers who are intoxicated at the time that they sustain a work injury stand a far lower chance of ever collecting workers’ compensation.
If the blood test shows the presence of alcohol or drugs, odds that the employee will be able to collect workers’ compensation are much lower.
This is because of the intoxication defense: if an employer can prove that intoxication was the cause of the workers’ injury, then they employer is not required to provide workers’ comp for that injury. Now, there are some notable

Thursday, April 25, 2013

Returning to Light-Duty Work - What, When, How and Why

Women making airplane wings, circa 1920. Seattle Municipal Archives
Today's post comes from guest author Kit Case from Causey Law Firm of Seattle, WA. Light duty issues can be a tricky area of workers' compensation law since most workers' compensation programs do not provide for a trial return to work period.

The Washington State Department of Labor and Industries encourages employers to offer light-duty positions to their injured workers - - the suggestion is written across the top of every time loss compensation order - - as early after an injury occurs as possible.  

The employer of an injured worker can offer shorter hours, a transitional job/job modifications or a new position entirely.  The pay scale can be at any rate at or above minimum wage.  In order to qualify as a valid job offer, a description of the position must be approved by a physician.  Once approved, the job must be offered, in writing, to the injured worker with specific details including the work schedule, rate of pay and person supervising the work.

If an injured worker declines a valid job offer, time loss compensation will end. 

If an injured worker declines a valid job offer, time loss compensation will end.  If the employer offers a return-to-work position that pays less than the workers’ time loss compensation rate, the worker will likely be eligible for partial compensation to make up the difference.  This benefit, called Loss of Earning Power (LEP) compensation, is based on a comparison of the pre-injury wage less the actual wages earned through return to work and pays 80% of the difference, up to a state-wide cap on compensation or the time loss compensation rate, whichever is less.

Tuesday, April 23, 2013

NJ Governor Christie to Propose Workers' Compensation Reform

The NJ Workers' Compensation system is in for a change. Governor Chris Christie of NJ is taking aim at reforming the NJ system.

In the past, unsuccessful major attempts to reform the State's workers' compensation
system have come from interest groups from outside of the State, ie. 1980's national insurance Industry (AIA) concerns. Now the focus is changing, and the proposals for reform will be coming from the the State's Chief Executive, a major coalition builder who has successfully tackled major legislative changes during his term in office.

Historical efforts on workers' compensation reform in NJ have been:
-1974 Following the NJ State Commission on Investigation "Report of the NJ Workmen's Compensation System"
-1980's Following the WCRI Study attempt to adopt AMA Medical Guidelines
-1998 An attempt to increase the calculation of the State Average Weekly Wage, Dependency      Benefits and Legislative Oversight
-2008 Following the NJ Star Ledger expose ("How NJ Fails Workers") on temporary and medical benefit issues

“'We’re going to be coming up with a package of proposals that’s going to work both sides of that,' Christie told a caller on his monthly NJ 101.5 FM radio show tonight.

'The employers who may not be stepping up and meeting their obligations and also the employees who are committing fraud on the worker’s comp system,' he said."

Click here to read the complete article:  Christie to present plan to reform N.J. worker's compensation system (

Saturday, April 20, 2013

NASA: Safety Is Prime for Today's Launch of Antares

NASA is preparing for the launch of Orbital's Antares™ A-ONE Test Flight Mission scheduled for today at 5pm. I was a guest of NASA this week and toured the facility including the launch pad. Safety is prime for NASA and its corporate affiliates like Orbital.

Launching a space mission is a complex and massive operation. The balancing of public and mission safety concerns is extremely important. Besides the ordinary employee safety issues such as: hearing and eye protection, radio transmission frequency triggers and fire, NASA must identify and protect the public.

Unlike some other nations, the US launches its rockets near the ocean, and strictly monitors their trajectory. Any deviation from the planned flight path, ie. jeopardizing public safety, would result in the the destruction of the rocket over an isolated over-water area.

Today's planned launch will be televised on NASA TV and cane be viewed from a large area on the US Mid-Atlantic seacoast. 

Employer Fraud: Safety Manager Conceals Employee Injuries for Bonus

On Apr. 11, 2013, Walter Cardin, 55, of Metairie, La., was sentenced to serve 78 months in prison followed by two years of supervised release, by the Honorable Curtis L. Collier, U.S. District Judge. Cardin was convicted at trial in November 2012, after being charged by a federal grand jury with eight counts of major fraud against the Tennessee Valley Authority (TVA), an agency of the United States.

The indictment and subsequent conviction of Cardin was the result of a six-year
investigation conducted by the TVA-Office of Inspector General (TVA-OIG). The trial revealed that Cardin, as safety manager for the Shaw Group (formerly Stone & Webster Construction) at TVA’s Brown’s Ferry Nuclear site in Athens, Ala., provided false and misleading information about injuries at that facility as well as TVA’s Sequoyah Nuclear site in Soddy Daisy, Tenn., and TVA’s Watts Bar Nuclear site near Spring City, Tenn. 

The Shaw Group had a contract with TVA to provide maintenance and modifications to the three facilities and to provide construction for the Brown’s Ferry Unit Number 1 reactor restart. Cardin generated false injury rates which were used by the Shaw Group to collect safety bonuses of over $2.5 million from TVA. As part of a civil agreement filed with the United States in 2008, the Shaw Group paid back twice the amount of the ill-gotten safety bonuses.

Friday, April 19, 2013

US EPA Reports: Better Planning, Execution and Communication Could Have Reduced the Delays in Completing a Toxicity Assessment of the Libby, Montana, Superfund Site

The US EPA could have done better in handling the asbestos exposure site in Libby Montana according to a report issued yesterday by the US EPA's Inspector General. 

"U.S. Environmental Protection Agency (EPA) action officials did not complete  planned corrective actions under its Libby Action Plan in a timely manner. This occurred because the scope of the work was larger than originally thought; there was no established charter; and there were contracting delays, competing priorities, unanticipated work, and poor communication with stakeholders. Consequently, the Agency has twice revised its estimates for completing actions in response to our December 2006 report. 

"The toxicity assessment is one of two components (an exposure assessment 
being the other) that makes up the health risk assessment for determining 
cleanup levels in Libby. In December 2011, EPA informed us that the health 
risk assessment would be substantially delayed. As a result, the Agency’s final 
determinations that the completed and ongoing cleanup actions are sufficient to 
address the health risks from site contamination have been delayed from 2 to 6 
years, depending on the studies being performed. This is a significant concern, 
considering that the EPA Administrator declared a public-health emergency at 
the Libby site in 2009 and the Agency has spent over $400 million on cleanup. 
Communications about delays in completing Libby Action Plan items, and the 
reasons for those delays, were not always timely or clearly communicated to 
stakeholders; and EPA officials failed to update the Agency’s follow-up system 
or notify the Office of Inspector General (OIG) about known delays until 
planned corrective actions under the Libby Action Plan could not be met.

Saturday, April 13, 2013

Occupational Illnesses Continue to Unnecessarily Kill Workers

A recent Letter to the Editor in the New York Times focuses on the fact that US workers continue to suffer from fatal occupational diseases and illness that are avoidable. 

Commenting on the feature article exposing the need to great enforcement of safety measures by OSHA, Tom O'Connor, Executive Director, National Council for Occupational Safety and Health, stated: "While nearly 5,000 workers die on the job each year, an estimated 50,000 more develop an occupational illness. Yet despite this toll, the federal government sits on rules that could help prevent workers from developing occupational illnesses. A proposed rule that would prevent workers from being exposed to dangerous levels of silica dust on the job has remained mired at the Office of Management and Budget for more than two years."

Click here to read the entire letter: LETTER Rules on Worker HealthTom O'Connor Should Your Job Kill You?

Read more about "occupational illness" and workers' compensation:
Mar 18, 2011
Fire fighters in Canada are supporting legislation that would establish a legal presumption that breast cancer is an occupationally related illness. The legislation also creates a presumption that 3 other cancers (skin, prostate ...
Mar 31, 2013
A just published study reports that only 25% of occupational disease claims are covered by US workers' compensation programs. Click here to read the entire report: Economic Burden of Occupational Injury and Illness in the .
Mar 05, 2010
Alice in Wonderland has been released in the movie theaters today. The National Institute of Occupational Safety and Health (NIOSH) has been quick to remind us of the Mad Hatter and mercury exposures. "Society has made ...
Mar 17, 2011
In a series of articles, Celeste Monforton discusses the absence in the U.S. of a comprehensive system for surveillance of occupational illnesses sand disease. Citing the the U.S. Surgeon General in 1965 that..."it is almost ...

Thursday, April 11, 2013

Where Have All The Lawyers Gone?

No where is it more evident than in workers' compensation law, that the lawyers and their practices to assist injured workers, are disappearing. Workers are finding it difficult to obtain legal representation.

Many factors are causing this phenomenon. The principle reasons why the practice of

workers compensation law are shrinking are legal, social and economic.

Those factors include: a shrinking employment base, the loss of a manufacturing sector, and continued Industry "reform" efforts to bar injured workers from accessing the compensation system.

Additionally, as the practice of workplace law keeps drying up, disillusioned new lawyers are abandoning the practice of law at ever increasing numbers. Established law firms are consolidating and closing as second generation lawyers seek other types of work far from the practice of workplace law.

David B. Wilkins, who directs a program on the legal profession at Harvard Law School, said, "'In the 1970s, lawyers spent about half their time serving individuals and half on corporations. By the 1990s, it was two-thirds for corporations. So there has been a skewing toward urban business practice and neglect of many other legal needs.'”

Read the complete article: "No Lawyer for Miles, So One Rural State Offers Pay" 

Read more about "lawyers" and "workers' compensation"

Law Schools Should Establish Workers' Compensation Law Firms
Mar 08, 2013
Today the NY Times reports that law schools through the nation are opening law firms for recent graduates creating new post graduate job opportunities for debt ridden students and for additional training. The field of workers' ...

Workers' Compensation: The Law School's Roll in Workers ...
Jan 12, 2012
They will review how many law schools are featuring a workers' compensation course, how the panelists teach the subject, and they will also provide advice on how to lobby a law school to initiate such a course. The College ...

Digital Identification: Is Your Employer Going to Take Your Digital Finger Prints, Iris Scans or Face ID

The technology to digitally capture and store an individual's personal biometric identifiable information is growing at a rapid pace. Employers, medical providers and even government agencies have become frustrated by the outlawed use of Social Security numbers as means of identification.

A simple and easily used application has now become available to collect this data through an iPhone. Balacing workers' privacy against the administration of a workers' compensation system has certainly become even more challending. The use of national and international databases for the collection, dissemination and use of this type of data publically, strikes fear in the hearts of injured workers and they become even more reluctant to report both saftey concerns and injuries to employers for fear of discrimination and retaliation.

"The California-based company AOptix rolled out a new hardware and app package that transforms an iPhone into a mobile biometric reader. As first reported by Danger Room in February, AOptix is the recipient of a $3 million research contract from the Pentagon for its on-the-go biometrics technology."

Read he Complete Article::  Now Your iPhone Can Read Fingerprints, Scan Irises and ID Your Face (Wired)

Texas: The Wild West in Action Without Workers' Compensation

Texas for all intents and purposes eliminated its workers' compensation system. Now comes a scathing report from National Public Radio (NPR) about how bad it is for workers who get injured in Texas.

"According to the study, 1 in every 5 Texas construction workers will require hospitalization because of injuries on the job. Texas is the only state in the nation without mandatory workers' compensation, meaning hospitals and taxpayers usually end up shouldering the cost when uncovered construction workers are hurt."

Listen to the complete story: Construction Booming In Texas, But Many Workers Pay Dearly 

Monday, April 8, 2013

CMS Defines Further Defines Policy Implementation on Part D Coverage of Benzodiazepines and Barbiturates

CMS issued the following statement today concerning its policy implementation on Part D Coverage of Benzodiazepines and Barbiturates

"On October 2, 2012, the Centers for Medicare & Medicaid Services (CMS) issued a memorandum to Part D Sponsors concerning the transition to Part D Coverage of Benzodiazepines and Barbiturates beginning in 2013.

"Effective June 1, 2013, all  Workers’ Compensation Medicare Set-Aside (WCMSA) proposals submitted to CMS for a review of the adequacy of the proposal amount are to include the pricing of benzodiazepines and barbiturates, where appropriate.

"Please note that WCMSA cases submitted to CMS  before June 1, 2013, closed due to missing, incomplete and/or inadequate supporting documentation (or any  other reason), and subsequently re-opened after June 1, 2013, will also be subject to a review that includes the pricing of benzodiazepines and barbiturates.

Friday, April 5, 2013

Obama Administration Proposed Social Budget Cut Places More Stress on Workers' Compensation

It has been reported that the Obama Administration will soon propose budgetary cuts in social welfare programs. Those cuts may produce further economic stress on the nation's financially beleaguered workers' compensation system.

A reduction or rationing of medical care through Medicare will remove the safety net available to
injured workers who have been denied workers' compensation benefits initially and are delayed in the administrative/adjudicatory process.

In those states when there is a "reverse offset." the workers' compensation insurance carrier takes an offset when combined benefits exceed the ACE (Average Current Earning) before the onset of lost time, reduction of COLA (Cost of Livening Assessment) the carriers will be required to pay more dollars.

"President Obama next week will take the political risk of formally proposing cuts to Social Security and Medicare in his annual budget in an effort to demonstrate his willingness to compromise with Republicans and revive prospects for a long-term deficit-reduction deal, administration officials say."

Click here to read the complete article: "Obama Budget Reviving Offer of Compromise With Cuts" NYT

Thursday, April 4, 2013

Bring a Gun to Work: Is That A Good Public Policy?

Workers' Compensation covers claims of violence in the workplace. Those claims may be escalating if the NRA (National Riffle Association) gets its way and its model legislation allowing employees to bring a gun to work, even if the employer has a policy to the contrary.

"The measures, backed by the National Rifle Association, would allow workers in Alabama,
President Obama visits with survivors of the
shooting in Aurora, Colorado. July 22, 2012
(White House Photo)
Tennessee, South Carolina and Pennsylvania to keep the weapons locked and hidden in their cars in employee parking areas. Seventeen states have approved similar measures since 2003, according to a tally by the Law Center to Prevent Gun Violence in San Francisco."

Read the complete article:  Guns-to-Work Laws Spread in U.S. as Business Fights NRA (Bloomberg)

Previously-Denied Claims for Some Hanford Workers to be Reviewed

The author, Kit Case, highlights the continuing issues of this Federal Program. The Energy Employees Occupational Illness Compensation Program Act of 2000 (EEOICPA) (P.L.106-398) which was enacted into law in October, 2000 with strong bipartisan support. EEOICPA establishes a program to provide compensation to employers of the Department of Energy (DOE), its contractors and subcontractors, companies that provided beryllium to DOE, and atomic weapons employers. After a decade of enactment the complexity of the EEOIC remains a struggle for injured workers and their families to gain benefits. See also

Annette Cary of the Tri-City Herald reported on a change in the way that some claims will be handled for exposures at the Hanford Nuclear Site, including a review of more than 800 previously denied or pending claims for ill Hanford workers that are being reconsidered or put on a fast track for a decision after federal compensation rules were recently eased.

All those claims are for cancers covered by a newly designated special exposure cohort for workers at Hanford from July 1972 through 1983. Workers received that designation if inadequate information existed to estimate their radiation exposure.
The classification allows workers or their survivors to claim $150,000 in compensation plus medical coverage without an estimate showing they received enough radiation to likely cause the cancer. They also may be eligible for up to an additional $250,000 for impairment and wage loss.

Read Ms. Cary's full story here for more details.

Read more about  EEOICPA" claims.
Jan 13, 2012
15, 2010, DEEOIC determined that the Uranium Mill at Shiprock, N.M., was a covered DOE facility for the purposes of the EEOICPA. Given that Uranium Mill at Shiprock was only one of the facilities associated with the Uranium ...
Sep 05, 2012
Former employees of the following sites may be eligible for EEOICPA compensation and medical benefits if they worked at the facility during a period of covered employment: International Nickel Co. Bayonne Laboratories in ...
Apr 23, 2011
The Department of Health and Human Services (HHS) is proposing to treat Chronic Lymphocytic Leukemia (CLL) as a radiogenic cancer under EEOICPA. Under the current final rule on Guidelines for Determining the ...

Wednesday, April 3, 2013

Student Athletes Should be Covered by Workers' Compensation Policies

Student Athletes Should be Covered by Workers' Compensation Policies

They call them "student players" and the schools, televisions companies and advertisers make the money. The "students" get injured and no benefits are available for medical (except when over $90,000 on medical has been expended then an NCAA policy kicks in), no temporary disability or permanent disability are afforded. The student suffer lifetime and carrer altering injuries as they play their hearts out for the schools and they do so without adequate compensation.

There is major inequality going on in College sports which indeed is a BIG business. 

The coaches hammer at the student players and entice them to play too many games in a growing TV broadcast season where one conference add up upon another expanding to greater proportions and placing serious physical demands upon the player resulting in accidents and injuries. 

Additionally bullying by coaches as revealed by Rutgers Basketball Coach Rice physically assaults the students and berates them with indecent name calling.

Where is the accountability? The students are actually employed by the schools to earn profits for the educational institutions and corporate sponsors. The student players are being exploited. Student athletes should be covered by workers' compensation policies.

Tuesday, April 2, 2013

CMS Hosting a Town Hall Event for WCMSA

Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Town Hall  Event

The CMS will be hosting a WCMSA teleconference on April 11, 2013. This event will provide stakeholders an opportunity to learn more about the Workers’ Compensation Review Contractor (WCRC), and discuss procedural matters that are not case specific.

In an effort to address as many topics as possible, CMS is requesting stakeholders to submit non-case specific questions they would like to have addressed during the teleconference to the CMS MSP Central mailbox* prior to the teleconference. CMS will review and categorize the questions submitted and attempt to answer as many questions as possible during the teleconference. There may also be an opportunity for the stakeholders to ask questions after the presentation.

Date of Teleconference:   April 11, 2013
Call-in time for all calls:   2:30-4:30p.m. EST
Call-in line:                          (800) 603-1774
Pass Code:                           WCRC
Questions for call:            Please submit to CMS*

Questions may be submitted beginning April 1, 2013 thru April 5, 2013 @ 3:30 p.m. EST.
All questions submitted for the teleconference to the email address shown above should clearly state in the subject line “WCRC April 11, 2013 Town Hall Teleconference.”  

Note: Questions submitted to the mailbox after the date and time noted above will not be considered.

US Surgeon General Alerts Americans to the Hazards of Asbestos Disease

The US Surgeon General issued an alert to Americans as to the hazards of asbestos disease, Dr. Regina Benjamin, on the occasion of National Asbestos Awareness Week 2013, has issued a statement alerting Americans to hazards of asbestos exposure.

The occupational exposure to asbestos remains a major health hazard to workers who are involved in the restoration, rehabilitation and repair of older buildings. Asbestos exposure causes latent medical conditions such as: asbestosis, lung cancer and mesothelioma, a fatal malignancy. Asbestos is still not banned in the US.

During National Asbestos Awareness Week, April 1-7, I urge Americans to learn about the dangers of asbestos exposure.

Asbestos is a mineral fiber that occurs naturally in our environment; in rock and in soil.  Because of its fiber strength and heat resistance, asbestos has traditionally been used in a variety of building construction materials, as insulation and as a fire retardant.

Activity that disturbs asbestos causes small asbestos fibers to float in the air.  Inhaling these fibers leads to asbestos-related diseases.  Three of the major health effects associated with asbestos exposure are lung cancer; mesothelioma, a rare form of cancer that is found in the thin lining of the lungs, chest, abdomen and heart;  and asbestosis, a serious progressive, long-term, non-cancer disease of the lungs.

Anyone who disturbs asbestos is at risk.  However, it is of special concern for construction, insulation, and demolition workers, pipefitters, boilermakers and others who might disturb asbestos found in old buildings or equipment as part of their work.  The hazard is also very real to home handymen, first-responders, and community volunteers. 

An Emerging Health Consequence of Fracking: Silica Exposure

Sand produced while fracking is becoming a major health issue for energy workers throughout the country. The intransigency of the Obama Administration to promulgate regulations is further complication the situation and jeopardizing the workers' health.

Silicosis is one of the oldest recognized compensable workers' compensation occupational diseases. In fact, it pre-dated the and was the genesis for the expansion of many occupational statutes to reduce employers' liability under the civil justice system. The Industry effort was an attempt to reduce costly liability verdicts for exposing workers to the hazards of silica.

"Peg Seminario, director of safety and health with the AFL-CIO, a group of unions that has been pushing for stronger silica regulation, says the situation with fracking is a wake-up call.

"'Hopefully it will give some impetus for the need for the silica regulation — that there is a whole other population at risk and those numbers are potentially growing,' says Seminario."