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(c) 2010-2024 Jon L Gelman, All Rights Reserved.

Saturday, May 30, 2015

Confronting Europe's Asbestos Disaster

Brussels, Belgium and London, UK: On 24 June, 2015, the European Economic and Social Committee and the Committee of the Regions are hosting a joint conference on asbestos under the title: Freeing Europe Safely From Asbestos. The European Federation of Building and Woodworkers (EFBWW) are supporting the event together with the Belgian Asbestos Victims’ Group (ABEVA), and the International Ban Asbestos Secretariat (IBAS). 

The objective of this all day session is to reinforce demands by EU politicians, trade unionists, asbestos victims and campaigners for a coordinated response to the European asbestos epidemic which is claiming over 15,000 lives a year. Speakers will call for EU action on a safe removal strategy, a policy for the recognition and compensation of victims and recommendations for gold standard medical screening and treatment for Europeans at-risk of contracting asbestos-related diseases. 

Topics such as EU legislation, asbestos management and/or removal, workers’ training, decontamination, screening and the human impact of Europe’s asbestos catastrophe will be covered by experts from more than a dozen countries. Commenting on this event, Ulrik Spannow Chairman of the EFBWW Occupational Health and Safety Coordination Group said: “In the past workers were exposed to asbestos, but in fact they still are. In this connection, EFBWW sees the European ban of asbestos as an important but only the first step towards an asbestos free Europe. 

We therefore welcome the initiatives of the European Parliament and the European Economic and Social Committee focusing on practical action on asbestos in the various policy areas concerned. We like to contribute to the implementation of these initiatives into practical policy action and consider the asbestos conference on 24th June as an excellent occasion to discuss the various aspects with European and national authorities.” 1 

On April 30, 2015, the World Health Organization confirmed the devastation asbestos continues to cause in Europe in a media release which confirmed that 300 million Europeans are living in countries where the use of asbestos remains legal. The WHO Regional Director for Europe estimated that 15,000 lives were lost in Europe every year because of exposure to asbestos. 

Friday, May 29, 2015

Defective airbag recall expanded by millions of more vehicles

The largest recall of defective auto parts has been yet expanded by millions of more vehicles as the nation's auto makers react to announcement by Takata that their airbag inflators are allegedly defective.

Today's post is shared from usatoday.com

Automakers were adding millions of cars Thursday to their official lists of models recalled because of potentially dangerous Takata airbag inflators.

Fiat Chrysler Automobiles said it will add another 1.4 million vehicles globally. Honda announced the addition of 350,000 in the U.S. And BMW added 420,100, also in the U.S.

Click here to read more.

….
Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thompson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson-Reuters). For over 4 decades the Law Offices of Jon L Gelman  1.973.696.7900  jon@gelmans.com  have been representing injured workers and their families who have suffered occupational accidents and illnesses.

Related articles

Thursday, May 28, 2015

In the name of privacy...

After the massive US IRS data breach announcement this week, CMS has posted that it is establishing a more secure system for access to Medicare Secondary Payer Information. This is pretty consistent with President Obama's announcement to take Social Security Numbers off of Medicare Cards. 

The real issue is that while workers' compensation records are supposedly confidential in State systems, the Federal government has consistently neglected to insure that privacy whether be: medical records under HIPPA; by integration of  state's motor vehicle or workers' compensation records utilizing Social Security Numbers, or by Medicare Secondary Payer Act electronic data systems. 

Additionally, the Federal government will probably be mandating the reporting workers' compensation payment information, in Federal Income Returns shortly. The batting record of the IRS this week on privacy has been dismal.

Time will only tell whether workers' compensation data can actually be shielded from intruders. 

CMS announced today:

"As part of the Strengthening Medicare and Repaying Taxpayers (SMART) Act, the Centers for Medicare & Medicaid Services (CMS) will be implementing optional MFA services on the MSPRP. MFA is the use of two or more different authentication factors to verify the identity of an end user. Verified users will have access to view unmasked claim data on the Portal.

"Non debtors will still need to have a Verified Proof of Representation or Consent to Release authorization to perform actions on cases. Please note that MFA and the associated identity proofing process will be optional to portal users. Portal users may continue to use the portal without going through the MFA process but will not have the benefit of viewing un-masked data.

"MFA is scheduled to be available beginning on July 13, 2015. Updated user guides and training materials will be available on CMS.gov and within the portal upon implementation.


Wednesday, May 27, 2015

Pending Before the NJ Supreme Court

A-89-13 Estate of Myroslava Kotsovska v. Saul Liebman (073861)
Should the trial court have transferred this wrongful death and survival action to the Division of Workers' Compensation for a determination of the decedent's employment status where defendant raised the workers' compensation bar as an affirmative defense?
Certification granted: 5/19/14
Posted: 5/20/14
Argued: 3/16/15

Case below:

Argued March 20, 2013. Decided Dec. 26, 2013.
Background Estate of driver's home health aid filed wrongful death action against driver, stemming from accident in which driver accelerated vehicle while parking, hitting home health aid. Following jury trial, the Superior Court, Law Division, Union County 2012 WL 3965151, determined home health aid was independent contractor, found in favor of estate, and denied driver's motion for new trial. Driver appealed.

Holdings The Superior Court, Appellate Division, Accurso, J.A.D., held that: 
(1) Division of Workers' Compensation was proper forum for resolution of whether home health aid was driver's employee;
(2) jury instruction as to whether home health aid was employee or independent contractor did not adequately convey the law;
(3) taking judicial notice that person would suffer pain if leg was traumatically amputated while conscious was harmless error; and
(4) damages would be preserved pending remand.

Affirmed in part, reversed in part, and remanded.




Lumbermen's Underwriting Alliance in Receivership

On May 19, 2015, Lumbermen’s Underwriting Alliance, a reciprocal inter-insurance exchange organized under the laws of the State of Missouri ("Lumbermen's"), was ordered into receivership for the purposes of rehabilitation by the Circuit Court of Cole County, Missouri (the "Court"). 

The Court appointed John M. Huff, Director of the Missouri Department of Insurance, Financial Institutions & Professional Registration, and his successors in office, as the statutory Receiver of Lumbermen's. U.S. Epperson Underwriting Company, as Attorney-in-Fact for Lumbermen's, consented to the receivership. 

Pleadings and other information can be found by clicking here. The Judgment, and all subsequent proceedings concerning Lumbermen's, will be conducted in accordance with Mo. Rev. Stat. §§ 375.1150 to 375.1246.

Friday, May 22, 2015

Compensable Mental Stress and Conflict of Law Decisions Posted

The NJ Division of Workers' Compensation [NJDWC] today published 3 Court of Compensation trial level decisions. All were favorable to the injured workers and their dependents.

1. Mental Stress: Stress (harassment) particular to employment results in compensable psychiatric claim
Ross v. City of Asbury Park
06–28659; decided July 28, 2008 by the Honorable Leslie A. Berich
Petitioner alleged compensable injury as a result of mental stress created by prolonged exposure to a hostile work environment. Respondent denied these allegations. After applying the Goyden test along with other relevant legal principles, the Judge of Compensation found that there were objectively stressful working conditions peculiar to the petitioner’s working environment which entitled the petitioner to workers compensation benefits.

2. Mental Stress: Specific event (Hurricane) results in compensable suicide claim
Wilde v. Township of Cranford
99–40680; decided January 17, 2008 by the Honorable Leslie A. Berich
Petitioner filed a claim for dependency benefits for herself and her two children by asserting that her husband suffered a stress-induced occupational suicide. The respondent defended against the claim by contending that the work of the deceased, including his work as a policeman during Hurricane Floyd, was not causally related to his suicide. After careful consideration of the evidence, the Judge of Compensation awarded dependency benefits based on her finding that the work of the deceased as a policeman during this storm "lead to a loss of normal rational judgment that resulted in his suicide".

3. Conflict of Laws: NJ law applied where a special state interest existed
Spiros v. Atlantic Ambulatory Anesthesia Assocs. & Shrewsbury Surgical Center
12–22032; 13-1069 decided October 27, 2014 by the Honorable Leslie A. Beric
Medical providers filed applications for payment/reimbursement of medical expenses, which alleged that the insurance carrier for the employer unreasonably reduced the petitioner’s bills for services rendered. The carrier filed an answer in which it denied liability and jurisdiction, asserting the petitioner’s bills could be paid only at a contractual rate highly limited by Tennessee statute. The carrier also filed motions to dismiss the medical provider claims. In analyzing whether New Jersey has a special state interest in cases where medical providers provide services in New Jersey to injured workers, the Judge of Compensation found that N.J.S.A. 34:15-15 gives New Jersey’s Division of Workers’ Compensation exclusive subject matter jurisdiction and New Jersey law applies where the workers’ compensation benefits were provided in this state. Accordingly, the carrier’s motions to dismiss the medical providers’ claims were denied.

Summaries were provided by the NJ DWC.

Memorial Day

Harry S. Truman speaking at Memorial Day services at the
Amphitheatre of Arlington National Cemetery. May 30, 1948.



Monday, May 18, 2015

Bill delays compensation for asbestos victims, puts privacy at risk

Washington, D.C. — The following is a statement from American Association for Justice CEO Linda Lipsen on today’s markup of the Furthering Asbestos Claims Transparency (FACT) Act (H.R. 526) in the U.S. House of Representatives Committee on the Judiciary:

“Asbestos is still legal in the United States, and with 12,000 to 15,000 Americans suffocating to death every year from asbestos diseases, Congress should act to protect the public by demanding transparency from asbestos corporations. Instead, the FACT Act will grant a handout to the very corporations that poisoned and killed hundreds of thousands of Americans, while doing nothing to prevent further exposure to this deadly toxin.

“The asbestos industry is the only supporter of the FACT Act, and to date, this committee has refused to hear testimony from people who have experienced the ravages of asbestos diseases. Americans should be outraged that this markup will go forward without consideration of the people who will shoulder the entire burden of this one-sided bill – asbestos victims and their families."

The Role Workers’ Compensation Plays in the Amtrak Train 188 Derailment

The unfortunate crash of Amtrak 188 left 8 people dead and injured over 200 people. Compensation benefits for victims and their families face a host of complex and conflicting legal remedies. The National Transportation Safety Board is investigating an Amtrak derailment in Philadelphia, Pa.

Today's post is by guest author Brianne Rohner Erickson of the Nebraska Bar.

Our sympathies go out to all of the friends and families of the victims of Tuesday’s Amtrak passenger train derailment in Philadelphia, as well as a wish for the recovery of those injured. The latest news reports indicate that, as of Friday morning, the crash has left at least eight dead and more than 200 injured.

Thursday, May 7, 2015

NJ State Bar Association Opposes Workers' Compensation COLA Bill

"The New Jersey State Bar Association respectfully has concerns with S-929 (Sweeney) which concerns certain workers' compensation supplemental benefits. The New Jersey State Bar Association opposes this legislation in order to preserve the “Reverse Offset” provision in New Jersey, visa vie Social Security, which provides for a reduction of the workers' compensation benefit of a worker also receiving disability insurance. Enacting this legislation has the potential of harming the economic integrity of New Jersey’s current cost effective system by allowing for a double recovery of disability benefits and workers’ compensation benefits, which will in turn increase the cost of doing business in New Jersey. A potential alternative that would limit these adverse consequences would be to limit the application of the bill to survivor/death benefits. For the reasons set for above, the New Jersey State Bar Association respectfully opposes this bill."

Wednesday, May 6, 2015

Professor John F Burton Jr: Illinois Proposed Changes Are Obectionable

The former chair of the 1972 National Commission on Workers' Compensation told the Illinois legislature yesterday that the proposed changes to the Illinois Workers' Compensation Act will degrade the system and reduce benefits to injured workers. Profession Emeritis John F. Burton, Jr., yesterday presented a statement to the Committee of the Whole before the Illinois House of Representatives.
Professor John F. Burton Jr.

Tuesday, May 5, 2015

Look Who Is Prescribing What

As part of the Administration’s goals of better, care, smarter spending, and healthier people, the Centers for Medicare & Medicaid Services announced the availability of new, privacy-protected data on Medicare Part D prescription drugs prescribed by physicians and other health care professionals in 2013. This data shows which prescription drugs were prescribed to Medicare Part D beneficiaries by which practitioners.
“This transparency will give patients, researchers, and providers access to information that will help shape the future of our nation’s health for the better,” said acting CMS Administrator Andy Slavitt. “Beneficiaries’ personal information is not available; however, it’s important for consumers, their providers, researchers, and other stakeholders to know how many prescription drugs are prescribed and how much they cost the health care system, so that they can better understand how the Medicare Part D program delivers care.”

The new data set contains information from over one million distinct health care providers who collectively prescribed approximately $103 billion in prescription drugs and supplies paid under the Part D program. The data characterizes the individual prescribing patterns of health providers that participate in Medicare Part D for over 3,000 distinct drug products. For each prescriber and drug, the dataset includes the total number of prescriptions that were dispensed, which include original prescriptions and any refills, and the total drug cost paid by beneficiaries, Part D plans, and other sources.

CMS created the new data set using drug claim information submitted by Medicare Advantage Prescription Drug plans and stand-alone Prescription Drug Plans. With this data, it will be possible to conduct a wide array of prescription drug analyses that compare drug use and costs for specific providers, brand versus generic drug prescribing rates, and to make geographic comparisons at the state level.

The Administration has set measurable goals and a timeline to move Medicare toward paying providers based on the quality, rather than the quantity, of care they give patients. This is part of a wide set of initiatives to achieve better care, smarter spending and healthier people through our health care system. Open sharing of data securely, timely and more broadly supports insight and innovation in health care delivery.

Today’s Part D prescriber data availability adds to the unprecedented information previously released on services and procedures provided to Medicare beneficiaries, including hospital charge data on common impatient and outpatient services as well as utilization and payment information for physicians and other healthcare professionals. In addition, under the Qualified Entity (QE) program, CMS releases Medicare data to approved entities for the purposes of producing public performance reports on physicians, hospitals, and other providers. To date, CMS has certified 11 regional QEs and one national QE.

To view a fact sheet on the Medicare Part D prescriber data, visit: http://www.cms.gov/Research-Statistics-Data-and-Systems/Statistics-Trends-and-Reports/Medicare-Provider-Charge-Data/Part-D-Prescriber.html

Updated: May 15, 2015

Related articles
How Proposed Part D Changes Are Playing On Capitol Hill (workers-compensation.blogspot.com) 

Study: Cancer costs 'skyrocketed' despite drug cuts (workers-compensation.blogspot.com) 

Sunday, May 3, 2015

Synchromed II Implantable Infusion Pump Systems: FDA Consent Decree To Limit Use

Medtronic, Inc. cited for manufacturing violations

The U.S. Food and Drug Administration announced today the filing of a consent decree against Medtronic, Inc., and two of the company’s officers—S. Omar Ishrak and Thomas M. Tefft —for repeatedly failing to correct violations, related to the manufacture of Synchromed II Implantable Infusion Pump Systems, medical devices that deliver medication to treat primary or metastatic cancer, chronic pain and severe spasticity. These violations occurred at the company’s Neuromodulation facilities in Columbia Heights, Minnesota, where the devices are manufacture.

The consent decree cites violations of the quality system regulation for medical devices, which requires manufacturers to have processes in place to assure that the design, manufacture and distribution of a device allows for its safe us

The legal action requires the company to stop manufacturing, designing and distributing new Synchromed II Implantable Infusion Pump Systems except in very limited cases, such as when a physician determines that the Synchromed II Implantable Infusion Pump System is medically necessary for a patient’s treatment.

The consent decree also requires Medtronic to retain a third-party expert to help develop and submit plans to the FDA to correct violations. The consent decree will remain in effect until the FDA has determined that Medtronic has met all the provisions listed in the consent decree.

Once Medtronic receives permission from the FDA to resume the design, manufacture and distribution of these products, the company must continue to submit audit reports so the agency can verify the company’s compliance. In addition to these audits, the FDA will monitor the company’s activities through its own inspections.

The FDA first approved the Synchromed II Implantable Infusion Pump Systems in 2004, and first identified problems with the manufacture of these pumps in 2006. These problems can result in over- or under-infusion or a delay in therapy for patients.

Between 2006 and 2013, FDA investigators conducted five inspections at Medtronic’s Neuromodulation facilities, resulting in three warning letters notifying the company of major violations. The violations included inadequate processes for identifying, investigating, and correcting quality problems with the Synchromed II Implantable Infusion Pump Systems; failure to document design changes; and failure to ensure that finished products meet design specifications.

“The FDA expects that all patients will be treated with safe, effective and high-quality medical devices,” said Jan Welch, acting director of the Office of Compliance in the FDA’s Center for Devices and Radiological Health. “We will continue to stop distribution of devices made by firms that fall short of regulatory requirements.”

Patients who are implanted with a Synchromed II Implantable Infusion Pump System should maintain regular follow-up appointments with their physicians. Patients who experience a change or return of symptoms, or hear a device alarm, should contact their physician immediately.

The FDA, an agency within the U.S. Department of Health and Human Services, protects the public health by assuring the safety and effectiveness of human and veterinary drugs, biological products for human use, and medical devices. The agency also is responsible for the safety and security of our nation’s food supply, cosmetics, dietary supplements, products that give off electronic radiation, and for regulating tobacco products.


Friday, May 1, 2015

WHO Reports Widespread Asbestos Exposure Continues In Europe

WHO
WHO (Photo credit: Wikipedia)
The WHO (UN World Health Organization) reports that 1 in every 3 Europeans are still exposed to asbestos.

About one third of the 900 million people in the WHO European Region live in countries that have not yet banned the use of all forms of asbestos, and this potentially exposes them at work and in the environment. In countries where asbestos is banned, exposure persists from past use. Exposure to asbestos can cause cancer of the lungs, ovaries and larynx; mesothelioma; and asbestosis and the most efficient way to eliminate these diseases is to stop the use of all types of asbestos. At its closure, the high-level meeting on environment and health in Haifa, Israel, urgently calls upon all European countries to eliminate asbestos-related diseases.

"We cannot afford losing almost 15 000 lives a year in Europe, especially workers, from diseases caused by exposure to asbestos. Every death from asbestos-related diseases is avoidable," says Dr Zsuzsanna Jakab, WHO Regional Director for Europe. "We urge all countries to leave the Haifa meeting to fulfil their 2010 commitment and develop policies by the end of this year that will eliminate asbestos-related diseases from the face of Europe. There is very little time left for that."

Elimination of asbestos-related diseases was one of the major issues discussed at the Haifa meeting. Over 200 representatives of European countries and international and nongovernmental organizations attended the meeting to evaluate overall progress on environment and health in Europe.
An "eye-opener" report: progress toward the elimination of asbestos-related diseases

The report Progress toward the elimination of asbestos-related diseases, presented at the meeting, indicates that asbestos, a group of natural fibrous minerals, is responsible for about half of all deaths from cancers developed at work. According to new estimates, deaths from mesothelioma in 15 European countries cost society more than 1.5 billion euros annually (see table in Annex).

While 37 of the 53 Member States in the Region have banned the use of all forms of asbestos, the remaining 16 countries still use asbestos, especially for building materials, and some continue to produce and export it. Even after its use has ceased, asbestos lingers in the environment, so it needs to be safely removed and disposed without delay.

"Asbestos is known as a silent killer as health disorders from exposure to it usually appear after several decades. This means that many more people are expected to fall sick and die in the coming years throughout Europe", says Dr Guénaël Rodier, Director, Division of Communicable Diseases, Health Security and Environment. "This new report assesses how far European countries have got in eliminating asbestos-related diseases and provides recommendations for the future."

In one week, the Chemical Review Committee of the Rotterdam Convention will consider listing chrysotile or white asbestos, the most common form of asbestos, among the substances for which importing countries have to give their consent to the exporting party for the trade to occur.

"Elimination of asbestos-related diseases is a priority for Israel. Already in 2011 we have passed a law prohibiting the use of new asbestos, requesting removal of existing friable asbestos and guiding disposal of asbestos cement,", says Mr David Leffler, Director-General, Ministry of Environmental Protection for Israel. "An asbestos waste removal project is conducted in Western Galilee where by December 2014, 80 thousand cubic meters of waste were cleaned in 221 sites. Databases on asbestos-related diseases are considered key to monitor asbestos' health effects and are regularly maintained."
Paving the way ahead for better environment and health in Europe

All European countries present at the meeting renewed their pledges to work towards meeting the time-bound targets they adopted in 2010. This includes concrete steps to:
strengthen or establish partnerships with different stakeholders and processes, and utilize already existing policy instruments and tools;
  1. enhance the understanding and use of economic arguments to support action on environment and health; and 
  2. harmonize with the forthcoming post-2015 sustainable development agenda.

They also agreed to address the environment and health challenges of the 21st century posed by:
complex risk factors: air, water, waste or chemicals;
complex systems of direct relevance to environment and health: food, energy or cities; and
matters of international environment and health security: disasters and climate change.

The conclusions of the high-level meeting in Haifa are an important milestone in the run up to the Sixth Ministerial Conference on Environment and Health planned for 2017.
The 16 countries that have not yet banned all forms of asbestos are: Albania, Andorra, Armenia, Azerbaijan, Belarus, Bosnia and Herzegovina, Georgia, Kazakhstan, Kyrgyzstan, Monaco, the Republic of Moldova, the Russian Federation, Tajikistan, Turkmenistan, Ukraine and Uzbekistan.
The five time-bound targets adopted by countries in the European Region in 2010 are to: provide safe water and sanitation to all children by 2020; create healthy and safe environments for children in their daily life by 2020; make children's indoor environments free from tobacco smoke by 2015; safeguard children's environments from toxic chemicals by 2015; develop policies to eliminate asbestos-related diseases by 2015.

The seventh meeting of the Conference of the Parties to the Rotterdam Convention (RC COP-7) will be held from 4 to 15 May 2015, back-to-back with the twelfth meeting of the Conference of the Parties to the Basel Convention (BC COP-12) and the seventh meeting of the Conference of the Parties to the Stockholm Convention (SC COP-7).

Lab Worker Infected by Vaccinia Virus Infection Despite Recent Immunized

The US CDC reported:

Occupational exposures to orthopoxviruses in laboratories can result in infections. The most effective means of prevention are preexposure smallpox vaccination, training, and laboratory safety measures such as proper handling and disposal of needles. In addition, incident reporting and timeliness of seeking medical treatment for inadvertent exposures are critical components of laboratory response plans.