Risk Assessments for Asbestos Present Difficulties

For decades asbestos has been known human carcinogen and major health hazard causally related to asbestosis, lung cancer and mesothelioma. It is still not banned in the United States. Recent efforts to provide statistics assessments of the hazard haven’t proven to be unsuccessful.

A study published in the September 2009 issue of The American Journal of Industrial Medicine concludes, “None of the efforts to use statistical models to characterize relative cancer potencies for asbestos fiber types and sizes have been able to overcome limitations of the exposure data. Resulting uncertainties have been so great that these estimates should not be used to drive occupational and environmental health policy. The EPA has now rejected and discontinued work on its proposed methods for estimating potency factors. Future efforts will require new methods and more precise and reliable exposure assessments. However, while there may be genuine need for such work, a more pressing priority with regard to the six regulated forms of asbestos and other asbestiform fibers is to ban their production and use.”

The Urgent Need for Workers Compensation Flu Pandemic Planning

The 2009 influenza pandemic (flu) has created a new framework of acts and regulations to respond the World Health Organization’s (WHO) phase 6 pandemic alert. Governmentally imposed employment disruptions resulting from regulatory work disruptions to prevent the spread of disease maybe massive. While workers’ compensation was envisioned as a summary and remedial social insurance program, the challenges facing the workers’ compensation system to deliver benefits as promised may be seriously burdened.

There has been a global reaction to the 2008 influenza pandemic. On April 25, 2009, the WHO director-General Dr. Margaret Chen declared the H1N1 virus outbreak as a “Public Health Emergency of International Concern.” The international declaration indicated that a coordinated international response was potentially necessary to prevent curtail the spread of the disease that was perceived as a public health risk. Recommendations to restrict both trade and travel may follow.

The United States has structured its response on both a State and Federal level to the 2009 influenza alert. The Public Health Service Act (PHS) permits the Secretary of Health and Human Service (HHS) to access a special emergency fund, allows or the use of unapproved medical treatments and tests, and allows waiver of certain reimbursement of Medicare and Medicaid expenses, and waives penalties and sanctions for violation of the HIPAA Privacy Rule requirements. Additionally, the President may issue an emergency declaration under The Stafford Act to co-ordinate emergency relief under State and Federal programs, ie. use and distribution of anti-viral medications.

The Federal government has sweeping powers under the PHS that could disrupt employment throughout the country. Recommendations for school closings will impact children and staff well beyond the approximate 700 facilities that were closed in the Spring of 2009 during the H1N1 initial outbreak. The Federal government under the PHS has authority to quarantine (interstate and border) and to isolate. An Executive Order (E.O. 13375, April 2005) enumerates the “quarantainable diseases.” Travel restrictions may be imposed to limit the spread of a communicable disease. Employees may not be permitted to board flights under either voluntary airline restrictions or through the Federally imposed “Do Not Board” lists.

These closings and restrictions have raised issues as to what programs, if any, will be able to provide benefits to the employees because of the involuntary nature of the closings and disruptions. A recent Harvard School of Public Health study reveals that 80% of businesses foresee severe problems in maintaining operations if there is an outbreak. The workers’ compensation system could be requested to provide temporary disability benefits for occupational disease absences on a massive scale never before experienced. Pre-emption by superseding emergency regulatory actions may curtail employment that will trigger the implementation of State workers’ compensation benefits. The employer and the workers’ compensation insurance carriers will be required to pay temporary disability and medical benefits as a direct consequence of efforts to prevent the spread of a communicable disease. The carefully crafted employee-employer notification structure integrated into the workers’ compensation system may be partially or entirely disrupted by the consequences and chaos of the global health emergency.

Workers’ Compensation claims arising out of the influenza pandemic of 2009 will need to fit into the convoluted framework statutory acts and regulation. Reimbursement from the usual collateral third-party reimbursement sources may be restricted. In addition to the Doctrine of Sovereign Immunity, enjoyed by the Federal and State governments, other legislation including The “Public Readiness and Emergency Preparedness Act" (PREP Act) limits liability of others under certain specific emergency circumstances.

The enormity of the Pandemic presents a new and novel challenge to the system and one that must be considered by both Federal and State planners. Workers’ Compensation programs have adapted to emergencies before including natural disasters and terrorist attacks. The urgency of the situation requires that the system be vaccinated now.

For more articles on Workers' Compensation and the Flu Pandemic click here.

Breast Cancer Linked to Night Shift Work by Danish Compensation System

The Danish government has begun to pay compensation benefits to women who develop breast cancer after working night shifts and irregular work hours. So far approximately 40 women have received benefits according to BBC reports.

The Danish agency relied upon a finding of the International Agency for Research on Cancer (IARC) a unit of the the United Nation's World Health Organization (WHO) in concluding that night shift work was a probable cause of cancer.

The National Board of Industrial Injuries announced that, "Danish women with breast cancer who have worked night shift for usually 20-30 years and at least one night per week are encouraged to apply for compensation for their cancer disease."

Dr. Vincent Cogliano (photo) of the IARC said, "The level of evidence is really no different than it might be for an industrial chemical."

CMS Schedules Town Hall Meeting to Discuss a Secure Internet Portal for Submissions of Proposed WCMSAs

On September 9, 2009 CMS has scheduled a "Town Hall" telephone conference call to discuss:

1. Overview of CMS plans to make available a secure Internet web-based portal or interface for the WCMSA submission process for the various affected stakeholders.
2. Question & Answer Session. Only questions regarding the ongoing implementation of a secure Internet web-based portal or interface for the WCMSA will be addressed. No policy or case specific questions will be accepted.

Call in number and Pass Code click here.

CMS Lists How to Avoid 10 Top WCMSA Errors

The Centers for Medicare and Medicaid Services has now posted the 10 top errors on Workers' Compensation Set Aside Agreement submissions and how to avoid them:

1. No medical records for the last two years of treatment

2. Claims payment history missing or undated

3. Response to development requests incomplete

4. Calculation method stated as fee schedule when state does not have a fee schedule

5. Calculation method not stated for the medical set-aside

6. Total settlement amount missing or unclear

7. No rated age statement from submitter confirming that all rated ages obtained on the claimant have been included

8. Payout amount not used in annuity situations

9. Proposed medical set-aside amount is missing, unclear, or inconsistent with other information

10. Proposed prescription drug set-aside amount is missing, unclear, or inconsistent with other information

Click here for the solutions.

Congressional Action on Workers’ Compensation

From coast to coast, the patchwork of state workers’ compensation systems continues to be under constant scrutiny for change. The problems seem global in characteristic as the frustrations continue to rise. The fate of the entire system may result in the effort to enact or defeat legislation to embrace a new national commission on workers’ compensation.

The States universally enacted Workers’ Compensation in 1911 in an effort to replace civil litigation with an administrative system. The approach was to provide a remedial system to injured workers in a summary manner while providing a cost effective approach for employers. Despite the efforts to reduce benefits and limit access States are struggling to maintain the system in one fashion or another. Rumors are spreading that New York, a former industrial jurisdiction, may join the list of radically modifying their system.

The once touted as a “no fault” system, the nation’s workers’ compensation has been besieged by efforts to assert more restrictive requirements for benefits. Medical delivery has stagnated in a complex world of etiology and evidential proof of occupational claims. The cost of soaring medical care, once shifted easily to collateral health insurance companies and the Social Security system, has been met with convoluted reimbursement efforts. Large corporations and public entities that in the past were able to provide an additional stream of revenue to injured workers are now rapidly drying up and or become non-existent under bankruptcy laws. State governments, that maintain the administrative system, are now facing a monumental shortage is revenue and are closing down operations and converting some for criminal and economic sanctions to merely benefit the general state revenues. The few remaining second injury funds have become insolvent and the future remains bleak as the premiums committed to finance these agencies and programs become depleted.

On January 22, 2009, Representative Joe Baca, a Democrat from California, introduced legislation (HR635) to establish a second National Commission on State Workers' Compensation Laws [Commission]. The first Commission was established under the Nixon administration in accordance with the Occupational Safety and Health Act. The new legislation that is now supported by representatives of injured workers lacks co-sponsors. Opposing the legislation is a long line of Industry based employers including the Americans Manufacturing Association and the National Chamber of Commerce.

John Burton, the former chair of the 1971 Commission, in a recent interview, commented that many of the present systems do not even comply with threshold recommendations of the original Commission and that many of the present programs face some serious challenges.

Patrice Woeppel, Ed.D., author of Depraved Indifference the Workers' Compensation System, has called for a single payer medical system to embrace both work and non-worker related injuries. By allowing the employer and insurance carrier to control the medical care she indicates, results in "restricting treatment to the cursorily palliative" or delay and denial of treatment to the injured worker. Additionally medical plan administrative costs of duplicative and wasteful.

As the national health care debate continues and the final legislation unfolds, the workers’ compensation medical delivery issues and wage replacements for temporary and permanent disability may become incorporated into direct or ancillary legislation. A second Commission, in one form or another, aimed at nationalizing the workers compensation system, may indeed become a reality.

NIH Defense Asbestos Expert Pleads Guilty to Lying

A physician who was working full time in a senior position with the National Institutes of Health (NIH) pleaded guilty to lying about moonlighting as an expert in litigation at $425.00 per hour. Dr. Jack Snyder pleaded guilty recently and was convicted of a felony.