Employee Cell Chat Results in $5.2 Million Payment to Widow by Employer

The distractions caused by cell phone use and other electronic gadgetry are increasing the exposure of employers to monetary exposure well beyond those benefits that employers are covered for under their workers’ compensation policies. A fatal accident contributed to by the employee’s use of a cell phone while driving resulted in a recent settlement of $5.2 million.

While employers’ are shielded to limited and scheduled statutory benefits under workers’ compensation for injures arising out of and in the course of their employment, injured third parties may pursue a civil action against the employer for the employees negligence. An employee who was distracted by cell phone use caused a motor vehicle accident that resulted in the death of a widowed mother of four children. Her estate filed a civil claim against the employer alleging that employee was negligent for using the cell phone while driving.

In a recent article in TRIAL magazine, Robert L. Sacks Jr., discusses the liability caused by text messaging and other distractions while driving. “Drivers with one hand on the wheel and one hand on the phone are a common sight, at least in states where it’s still legal to talk and drive. But the cell phone is only one of many potential high-tech distractions. It’s now possible to talk, text-message, take pictures, check the global positioning system (GPS), adjust the satellite radio, scroll through the pages of your MP3 player, send e-mail, and try to drive—all at the same time.”44 TRIAL 2 (February 2008).

Sacks cites the work of psychologists at the University of Utah that it is 50% more dangerous to drive while text messaging than while talking on a cell phone. This increase a serious danger to motorists.

This enhanced risk can result in serious economic liability to employers who permit or direct their employees to become distracted while driving in the course of their employment. Employers maybe wise to immediately issue rules prohibiting such activity.

Lead Paint Creates A Potential New Wave of Occupational Disease Claims

Occupational lead exposure, especially to lead paint, has been a well known hazard in the workplace you decades. Recent epidemiological studies demonstrate the causal relationship of exposure to impaired brain function, over time, in adults, results in early aging. Employers and insurance carriers should brace themselves for a wave of claims. Occupational exposures over 30 years ago arise from the exposure to lead in paint, that has deteriorated and flaked off through: decomposition, friction, repair replacement or improper encapsulation, may trigger an enormous amount of expensive claims.

"The federal government has, through multiple agencies, extensively reviewed the health effects of lead upon workers. Coordinating their effort through the Agency for Toxic Substances and Disease Registry (ATSDR), Centers for Disease Control and Prevention (CDC), and the National Institute for Occupational Safety and Health (NIOSH) the federal government has alerted both employers and employees to the health hazards of lead and the techniques to be utilized when handling this hazardous substance.

"Lead, a bluish-gray metal, has been used since ancient times because of its unusual properties, such as a low melting point, pliability and resistance to corrosion. Hippocrates reported in 370 B.C. that a worker who had used lead suffered a severe case of colic. Lead is used in older American homes, and lead exposures occur in the workplace because of the widespread use of lead compounds during the past century in paints, gasoline and industry.

"The worker becomes exposed to lead when dust and fumes are inhaled and when lead is ingested through contamination on hands, water, food and clothing. When lead enters the respiratory and digestive tracts of the human body it is released to the blood and distributed throughout the system. More than 90% of the body's lead is accumulated in the bones where it is stored for many years. The bones then release the lead back into the blood stream and re-expose the system long after the original occupational exposure has ceased.

"Lead damages the blood-brain barrier and subsequently damages brain tissue. Workers exposed to lead may experience fatigue, irritability, insomnia, headaches and other subtle effects of mental and intellectual decline. Prolonged exposure to lead may present symptoms such as anemia. Lead inhibits the synthesis of heme and damages the ion transport system in the red blood cell membranes. Chronic high exposure to lead may result in chronic nephropathy and in some extreme cases, kidney failure. Gelman, Jon, Workers' Compensation Law 3rd ed., 38 NJPRAC 9.24 (West-Thomson 2008)

It has recently been reported in the scientific literature, that lead, absorbed into the blood stream over decades, may result in poor performance in a wide variety of mental functions. In a recent study, Dr. Brian Schwartz of Johns Hopkins University, remarked that lengthy exposure to lead, cumulative over years, may cause an aging brain to function at a level that is 5 years older that it really is. The Studies at Johns Hopkins objectively measured lead absorbed over a lifetime in human bodies. Dr. Brian Schwartz remarked, "We're trying to offer a caution that a portion of what has been called normal aging might in fact be due ubiquitous environmental exposures like lead."

Like asbestos and tobacco, lead exposure may cause a latent disease which causes the brain to deteriorate at an accelerated rate. Those who worked with lead, and those who were bystanders to lead exposures on the workplace, may have a workers' compensation benefits for the mental condition related to the lead exposure.

This significant new research relating lead exposure to aging puts insurance carriers and employers at risk for both direct claims under workers compensation systems and for claims against potential third parties, ie. property owners and paint manufacturers. Unlike tobacco and asbestos, these claims may be significantly more costly since because of the long potential long payment period of benefits under workers' compensation acts and the potential legions of workers who have been exposed in directly or indirectly.

Presidential Primaries Are Defining the Future Course of Workers' Compensation Medical Benefits

Workers' Compensation medical benefits continue to be up for grabs as the US Presidential Primaries continue. The problematic compensation delivery system continues to provide little cost containment, high administrative costs and continues to drain the system by endless delay hampering the delivery of effective medical care.

A recent survey article in the New England Journal Medicine, baes on a Kaiser Family Foundation and Harvard School of Public Health review, crystallizes the political future of universal health care based upon present perceptions and future solutions. The review article analyzes multiple surveys and concludes that while polarization continues in many areas there are common grounds. It are those similarities that will define the future of medical care in the US.

While both Democrats (79%) and Republicans (52%) agree that the nation's health care system is "poor," they both Democrats (46%) and Republicans (28%) agree that it does not need to be completely rebuilt.

Both parties content that the failure to health insurance is a serious problem, Democrats (94%) and Republicans (55%) and the overwhelming majority of both parties feel that employers should not bear the responsibility for medical care, Democrats (19%) and Republicans (19%). The issue over the implementation of a universal coverage program seems to be split consistently along party lines, Democrats (79%) and Republicans (53%).

Interestingly enough very few surveyed wish to reduce Federal government programs, Democrats (5%) and Republicans (12%) which implies that a shift to a more efficient and effective Federal universal system would be warranted. Incorporating workers' compensation medical benefits into such a universally designed system would appear to be the direction where things are headed.

CMS Hammers Work Comp Carriers with Major MSP Reporting Requirements

A new law on the books introduced in the Senate on Dec. 18, 2007 and signed by the President on December 29, 2007 is going to have significant impact on how the workers' compensation system operates in the future concerning Medicare Secondary Payer (MSP) issues. Robert E. Taren, Esq. of California, a national expert on the subject, has alert me to the new legislation.

For years it has been a dirty little secret in the Workers' Compensation Industry that the insurance carriers were shifting the medical liability from themselves to Medicare. Enacted in 1980 the Medicare Secondary Payment Act has had major enforcement problems and Medicare has continued to bleed dollars. Struggling with the issue and after major reports of a failing system, Medicare in 2001 issued the famous Patel Memorandum establishing a system where the workers' compensation industry would be required to obtain Medicare consent before future medical benefits could be compromised. Medicare also established a recovery program from benefits that were paid in the past and actually the responsibility of the workers' compensation system.

Plagued by the multiple network of workers' compensation programs and reluctant players in the system to provide data, Medicare has struggled to establish a efficient program. Attorneys, claimants, insurance carriers and the agencies themselves have been reluctant to provide information to Medicare and in turn Medicare has had to seek information through convoluted reporting procedures.

A stagnating system has caused those in the workers' compensation industry to complaint that that the process is too slow and that the workers' compensation has been placed on life support systems. Additionally the major stakeholders in the system, the insurance carriers and the employers have made failed attempts to cut Medicare off at the knees by eliminating and reducing the past due recoveries and the potential future medical payments.

The Medicare, Medicaid, and SCHIP Extension Act of 2007 requires workers' compensation carriers to submit information to Medicare on a schedule prescribed by the Federal government or be subject to a $1,000 a day fine for each violation.

It's All About the Medical

As the new political and legislative year unfolds, stakeholders are keeping their eye on the prize, medical benefits, in the workers' compensation arena. Recent court decisions continue to emphasize the major significance of medical care and continue to question the ability of the presently crafted system to deliver medical benefits in an efficient and effective manner.

The New Jersey Appellate Court declared that medical providers have standing to seek reimbursement for the full amount of medical fees from a the workers' compensation carrier. Failure to attempt to pay or negotiate an obligation that it denied by implied "refusal to treat" actions resulted in an employer being obligated to pay the full freight, medical bills, and a counsel fee for recovery. Villanueva v. Federal Express, Inc. DOCKET NO. A-4342-06T24342-06T2 Medical liens remain a critical issue in workers' compensation. Legislation is pending to centralize the chaotic and disruptive process.

In another decision the NJ Supreme Court insulated the insurance carrier from an employee's medical malpractice claim, but did not permit the exclusivity doctrine to extend to the workers' compensation medical expert for a deviation from practice action. This dramatically increases the potential recovery for failure to provide adequate care in a workers' compensation claim. Barbara Basil, etc. v. Frank A. Wolf, et al. (A-80-05/A-110-06)

Universal medical remains a critical factor in 2008 politics. While Hilary lost Iowa, the exit poles demonstrate that people who wanted a change voted for Obama. "Obama won huge among those who cared most about change -- 51-19." The New Hampshire poles reflect while health care is a a critical issue to most Americans the major questions remains over what the action should be taken to fix the ailing system.

Compounding the problem is the fact that workers' compensation carriers have continued to shift the burden on to others. Whether it be private carriers or CMS the situation has now been inflamed by those who attempt to legislatively again limit the workers' compensation carriers' responsibility even in contested situations. This short sighted shell game will merely add even more outrage by taxpayers as Medicare fails to be able to pay its own bills.

24 Hour Care Emerging as Good Medicine for the Ailing Workers Compensation System and CMS Conflicts

All the national political candidates are now framing the health care issue as a cure-all to the ailing American system. One must take a look back in time. History is known to repeat itself and turning the page back a decade in time reveals that the Clinton I plan considered a merger between the ailing workers' compensation system and a national health care proposal.

Insurance carriers are now rapidly moving into coalitions to unify under 24 hour care proposals.

The initially proposed Clinton II proposal lacks sufficient detail to determine whether the proposal is yet again included. One would think that the real answer to complexities brought about through reimbursement demand of CMS (Centers for Medicare and Medicaid Services) and long avoided reimbursement issues, would be the merger of both workers' compensation systems (all multiple and unmanageable entities) into a single payer system thus avoid the duplications of costs and litigation expenses. Congress already rejected proposals offered by some interested parties to circumvent the system last legislative term.

Integrated health care would put workers' compensation back on the track of maintaining its philosophical integrity of maintaining the concept 'of "periodic payments" for disability and thus avoiding the "buy outs" of medical services in "lump sum" packages thereby circumventing the periodic payment/wage replacement nature of workers' compensation payments. Injured workers would be able to continue to receive medical monitoring and evaluation through diagnostic care and observation.

The lump sum "buy outs," encouraged by insurance carriers, merely defeat the public policy issues of workers' compensation periodic payments and abrogate their responsibility and the integrity of the workers' compensation system(s) while shifting yet again the responsibility to the taxpayers and an overburdened Medicare/Medicaid system.

A program of 24 hour care will remove from controversy medical coverage and would eliminate unnecessary litigation and administrative costs while keeping benefits to workers on a periodic basis which was the foundation of the workers’ compensation systems.

NJ Ranks 2nd In Asbestos Related Disease

The legacy of asbestos related disease continues in New Jersey. Around the time of World War II New Jersey was an epicenter of the production asbestos fiber. New Jersey was equal distant from the major shipyards on the East Coast and it was in a major railroad network that allowed it to move asbestos product both in raw format and in furnish goods.

Unfortunately, the legacy of asbestos disease continues to cause a former workers and those exposed to products major to his disease and illness. The United States government has reported an increase in asbestos related disease in New Jersey. The state ranks as number two in the nation with reported asbestos related disease.

Asbestos production and consumption between 1970 and 1979, on a national basis, amounted to 1,060,015 metric tons alone. Since his best is related disease has a latency period, of sometimes several decades between the exposure and the disease, the impact is now being reported demonstrating increased incidence of mesothelioma in the United States. There are major uncertainties in predicting mesothelioma incidents and some investigators project the maximum mesothelioma incidents will not occur until about 2020 in the United States.