Hernias: The Next Step in Compensating Workers

One of the major flaws of workers compensation acts is that deny injured workers payments for repaired hernia by establishing specific requirements for compensability.. Historically the workers’ compensation acts denied benefits since employers feared a flood of these occupational claims. In many jurisdictions special notice provisions exist and limitations have been impressed upon permanent disability benefits.

Hernias are very common and over 25% of the population suffer from this condition that involves a weakness in the abdominal wall caused by a variety of events including excessive straining, chronic constipation, obesity, physical activity and persistent coughing.

Surgeons have employed a variety of techniques in an effort to repair these defects. Since late 2005, a widely used procedure has been the insertion of Kugel mesh. This product adhered to the abdominal wall and also allowed the bowl to permit bodily products to flow through the digestive stem without obstruction. Unfortunately this products was defective and caused a rupture and/or a blockage of the intestines. The FDA initiated Class 1 recall of this product commencing on December 2005. (Dec. 22, 2005) The FDA classifies medical device recalls into three levels with the most critical and one the Agency deems that there is a “reasonable probability that the use of or continued exposure to a volatile product will cause serious adverse health consequences or death.”


Despite the inadequate remedy available in most jurisdictions, a remedy now exists for recovery for individual personal injury claimants in both state and federal court which would include negligence, intentional and negligent infliction of emotional distress, violation of state deceptive practices act, breach of of implied warranty of merchantability, failure to war and unjust enrichment. Class actions have been initiated in various states and a Federal Multi-District Litigation (MDL) In re: Kugel Mesh Hernia Patch Litigation, MDL Docket No. 07-1842 ML (D.R.I.). has been established for medical monitoring and economic injury

For further information please contact our office. Jon Gelman http://www.gelmans.com/

This Blog can now be monitored through Technoratic

This Blog can now be monitored through Technoratic. Pleas click the logo on the bottom right side oof the page.
http://www.technorati.com/

Is The EPA in a Rush To the Botton for Asbestos Experts?

The US EPA (Environmental; Protection Agency) has published an announcement to seek appointments to its Scientific Advisory Panel with asbestos expertise in short course. In a notice published in the Federal Register on October 26, 2007 the US EPA announced a deadline of November 16, 2007.

"The EPA Science Advisory Board (SAB) Staff Office is seeking public nominations of additional experts in the formation of the Asbestos Expert Panel in the areas of biostatistics, statistical modeling, epidemiology, meta-analysis, Bayesian analysis and toxicology of inhaled particles." Nominations may be submitted on line. Any interested person or organization may nominate individuals qualified in the areas of expertise described above to serve on the SAB Asbestos Expert Panel. Nominations may be submitted in electronic format through the Form for Nominating Individuals to Panels of the EPA Science Advisory Board which can be accessed through a link on the blue navigational bar on the SAB Web site at: http://www.epa.gov/sab.

An alarm has been sounded that panels of the EPA have been filled by defense firms. See "Don’t Let Mercenaries Advise EPA on Asbestos Science." David Michaels, who heads the the Project on Scientific Knowledge and Public Policy (SKAPP) and is Professor and Associate Chairman in the Department of Environmental and Occupational Health, the George Washington University School of Public Health and Health Services stated, "One important step in ending corruption in science would be to ban employees of product defense firms from federal science advisory committees. The EPA’s Science Advisory Board Asbestos Panel is a good place to start."

The Bush Administration has tried to undermined te integrity of scientific research in an ongoing program. Public Employees for Environmental Responsibility has claimed that the "EPA is dumbing down its research." “There appears to be a deliberate policy of marginalizing EPA science on issue after issue, so that the agency is becoming increasingly irrelevant to emerging environmental threats,” Ruch testified, pointing to internal surveys showing a growing pessimism by agency scientists about the direction of EPA. “EPA’s public health research agenda has been neutered.”

The selection of quality membership is not one than came be done on short notice. Is the EPA yet again in a rush to the bottom?

Workers Compensation Research Institute Conference 2007 – Boston MA

WCRI has been “researching” or generating data for the Industry for 24 years. The introductory remarks were offered by Robert Steggert, Marriott International, Inc., Chair WCRI Bd of Directors. The central topic of the entire program has been medical costs and how to contain them and the consequential effect upon medical claims, temporary benefits and permanent benenfits.

Preliminary research reports were offered on “The California Reforms; Monitoring Impact” by Richard Victor, WCRI. Victor has testified in the past in support of “reforms” before Congress of the Longshore and Harbor Workers Compensation Act. The data presented was a “snapshot” of data from post the 2003 reforms and preliminary data from recent legislative changes. Basically it demonstrated a significant drop in medical services especially in chiropractic care and physical therapy and physical medicine. The data sources were medical bills, telephone interviews of hundreds of injured workers (650 to 750), access to medical care, utilization and costs and timing.

The bottom line is that WCRI is not releasing final data that they have available for recent reforms. The trend, however, is toward a dramatic decrease in medical care, and the decrease in the numbers of claims filed. While this will probably result in the decrease in the amount of PPD (permanent partial disability) it is not something that they will publicly admit at this time. They do admit that there is decrease in the number of satisfied injured workers who have serious medical conditions.

The research concerning “The Texas Reforms” was obviously apparent. There are no lawyers in that system and the adversarial system for all intents and purposes eliminated. Texas remains as the highest number of chiropractic visits of any State. See the recent blog report.

The “Lessons from a Stable and Lower Cost State” [Oregon] demonstrated a system where the presenters: Bob Shiprack, Orgeon Building and Construction Trades Council and Jerry Keene, defense WC atty, have engineered a system to eliminate lawyers completely by eliminating litigation. Oregon is now 42nd in the country in WC rates and premiums have not gone up for 18 years while costs have declined 50%. The Oregon system allows treating physicians to initially make recommendation concerning PPD which generates a RTW package [Return to Work] by actively allowing the employer to participate in terminating TDB or PPD. The ADR (Alternate Disputes Resolution) program provides for a 10% counsel fee. The EAIPO [employee accident and injury program] allows for a 50% wage subsidy and theoretically acts as a safety net following a “lump sum” payment. Shipwreck’s philosophy is to first “Starve All the Lawyers.” That was accomplished in Oregon. See also another blog report on Oregon.

Vaccinating Workers In a Pandemic Maybe a Pain for Employers

The US DHHS has issued a draft guidance for allocation of pandemic flu vaccine. Tough decisions for tough times is what it looks like. What workers will be allocated vaccinations and in what order in preference in the general population? Tough decisions for tough times.

Vaccinations afforded to employees which provide benefit to the employer against possible disastrous business consequences have been considered to be a mutual benefit. Saintsing v. Steinbach Co., 1 N.J.Super. 259, 64 A.2d 99 (App.Div.1949).

The public as been asked to comment staring, Friday, October 26, 2007.

"This draft guidance is intended to provide strong advice to support planning an effective and consistent pandemic response by States and communities. Nevertheless, it is important that plans are flexible as the guidance may be modified based on the status of vaccine technology, the characteristics of pandemic illness, and risk groups for severe disease –factors that will remain unknown until a pandemic actually occurs.The Federal Government has embarked on a rigorous and collaborative process that seeks input from all interested parties in developing this strategy. Hearing opinions from persons and organizations with a wide variety of interests and concerns is the best way to ensure that allocation of vaccine in the early stages of a pandemic is fair and provides the best chance for our country to emerge from a pandemic with minimal levels of illness, death, and disruption to our society and economy."

Does OSHA Know Its Numbers: Questionable Counting of Workplace Injuries and Accidents

A debate is occurring in the occupational health community over whether or not the validity of the statistics produced by the Occupational Safety and Health Administration (OSHA) is accurate concerning their reporting of data in recent years that that reflects a decline in occupational injuries and illnesses. Charged with a record-keeping in 1995 OSHA has reported a constant decline annually in its statistical reports.

The agency's recent reporting has become the subject of an analysis by scholars who conclude that the substantial declines in the number of injuries and illnesses merely correspond directly with changes in OSHA's recordkeeping requirements. The report goes on to illustrate that the most significant changes in employment, production, and OSHA enforcement activity, and in fact sampling error just do not explain the large decline. The scientists report that the decline of 2.4 million injuries and illnesses were in fact statistically inaccurate. Over 83% of the decline can be attributed to merely the change in OSHA's recordkeeping requirements.

The House of Lords Steps Backward in Time for Asbestos Compensation

The British House of Lords in a recent decision has take a step backward in time and has ruled that those who suffer pleural plaques (scarring of the lungs) as a result of asbestos exposure are unable to claim compensation. Parliament declared, " If the pleural plaques are not in themselves damage, do they become damage when aggregated with the risk which they evidence or the anxiety which that risk causes? In principle, neither the risk of future injury nor anxiety at the prospect of future injury is actionable. "

The decision widely reported in the British press, has been declared a major step backward in time. British Unions have strongly sounded their dismay. Unite Joint General Secretary, Derek Simpson said: "This is a harsh decision which will affect thousands of people with pleural plaques now and in the future." "The judgment will disadvantage many of our members who have been exposed to asbestos in their work by denying them the right to sue their former employers for developing pleural plaques. Unite will continue to fight to re-coup damages for those people who have developed mesothelioma and other asbestos related conditions."

Many support groups have declared their outrage. Tony Whitson, chair of the forum of asbestos support groups said: 'This judgment gives solace to rich insurance companies and leaves asbestos victims uncompensated. It is a disgrace.'

The House of Parliament has turned it back on the victims of asbestos related disease. Since 1775 when Percivall Pott, a prominent British surgeon, noted that chimney sweeps had a high incidence of cancer which he attributed to prolonged exposure and repeated contact with soot, many other work-related cancers have been documented. The British, who first epidemologically recognized asbestos related disease, have now stepped backward in denying benefits to those who suffer from this terrible disease.