The Health Reform Act Charts a New Course for Occupational Health Care

The occupational healthcare program embodied in the recently enacted legislation has the potential for being the most extensive, effective and innovated system ever enacted for delivering medical care to injured workers. The “Libby Care” provisions, and its envisioned prodigies, will embrace more exposed workers, diseases and geographical locations, than any other program of the past. Potential pilot programs  will now be available to injured workers and their families who have become victims of the failed workers’ compensation occupational disease medical care system.

The legislation initially establishes a program for the identification, monitoring and treatment of those who were exposed to asbestos in Libby Montana where W.R. Grace formerly operated an asbestos (vermiculite) mine producing, among other things, attic insulation. The plant belched thousands of pounds of asbestos fiber into the air of the geographical area daily. Libby Montana has been declared a Federal Superfund Site and the asbestos disease that remains as its legacy has been declared a National Public Health Emergency.

The newly enacted national health care law will have profound effect upon the treatment of occupational disease.  Placed deep within the text of the bill (H.R. 3590), on page 836 (Section 1881A Medical Coverage for Individuals Exposed to Environmental Health Hazards), is the new occupational medical care model, “Libby Care.”  The Manager’s Amendment, embracing the concept of universal occupational health care, inserted in the final moments of the debate, will make all the difference in world to the future of medical care and the handling of work-related illnesses.

What We Learned From History

Historically it is well known that occupational diseases are problematic issues confronting workers’ compensation.They are problematic for all stakeholders in the system. For employers, it is difficult to defend a claim that may occur over a lengthy working period, ie. 280 days per year. Defending occupational disease claims has always been an elusive and a costly goal for employers and insurance carriers. Employees also are confronted with obstacles in obtaining timely medical benefits. Occupational disease claims are universally contested matter and medical care is therefore delayed until the claim is successfully litigated and potentially appealed. This process results in delay and denial of medical care and sometimes death.

In the 1950’s the insurance industry put tag-along verbiage in the statute to modify the 1911 workers’ compensation act to encompass occupational disease claims. This was not a philanthropic gesture, but one rather intended to shield Industry from rapidly spreading silicosis liability in civil actions emerging in the 1950s.

Over time, the failure of the workers’ compensation system to provide adequate medical care to injured workers suffering from occupational illness has given rise to the emergence of several attempted collateral benefit systems by the Federal government. The Black Lung Act-The Federal Coal Mine and Safety Act of 1969 established the Federal Black Lung Trust Fund, which obtained its revenue from the assessment of a percentage tonnage fee imposed on the entire Industry. In October 2000, the Federal government established The Energy Employees Occupational Compensation Program Act that provided a Federal bailout of liability for the monopolistic beryllium industry. The hastily enacted Smallpox Emergency Personnel Protection Act of 2003 (SEPA) shielded pharmaceutical manufacturers from liability.  Following the horrific events of September 11, 2001, the Federal government quickly established The Victims Compensation Fund to compensate the victims and their families through an administrative system.

The largest transfer of economic wealth in the United States from Industry to the private sector, other than in the Attorney General’s thirty-eight State tobacco litigation, emanated from asbestos litigation which had its geneses in workers’ compensation.   The late Irving Selikoff, MD’s pioneering efforts in providing expert testimony, based upon his sentinel studies of asbestos workers in Paterson, NJ, created the trigger mechanism for a massive wave of claims for occupational health care. The program never did adequately nor efficiently or expeditiously provide medical care.

The workers’ compensation system did not provide an adequate remedy because of a constellation of reasons, and subsequently, the wave spread to civil litigation out of desperation for adequate benefits. Asbestos litigation has been named, "The Longest Running Tort” in American history. While the Fairness in Asbestos Resolution Act of 2003, failed to be release from committee, the insurance industry tried to stifle the litigation but the effort failed.  Asbestos litigation expanded into  bankruptcy claims that continue unabated and the epidemic of disease continues. The remaining cases in the Federal court system were transferred to Federal Multi District Litigation (MDL 875) and the majority are finally concluding after twenty years of Panel consolidation. Medical benefits were not a direct component of that system. Unfortunately, asbestos is still not banned in the United States and the legacy of disease continues at historic rates.

The Costs

In a study prepared in 2000 by Dr. Steven Markowitz for a book entitled “Cost of Occupational Injuries  and Illnesses”, it was revealed that the direct medical costs attributed to occupation illness by taxpayers, amount to $51.8 Billion dollars per year for the hospital physicians and pharmaceutical expenses. Overall workers’ compensation is covering 27% percent of the cost. This amounts to 3% of the National Gross National Product. The cost is passed on to: employers, insurance carriers, consumers, injured workers and the taxpayer. Medicare, a target of the cost shifting mechanism employer by Industry, continues its “pay and chase” policy in an effort to seek reimbursement under the Medicare Secondary Payer Act. All the stakeholders and the compensation systems have become increasingly bogged down as cost-shifting continues by Industry. The workers' compensation claims process has become stagnant. 

Reportable Data A Questionable Affair

The quantification of occupational illness data has been very problematic as it is based on sources of questionable reliability. The US Bureau of Labor Statistics (BLS) based its collection on employer driven safety reporting, ieNCCI), keeps its data and procedures under wraps.

Both the NY Times and Nebraska Appleseed have reported that there exists underreporting of occupational disease conditions in epic proportions. They report that the elements of fear and intimidation directed to injured workers compound the defense attitude of employers and the insurance industry resulting in a massive underreporting of occupationally related medical conditions.

Increased Hurtles for Compensability

There have been attempts over the years to integrate more claims statutorily into the workers’ compensation system to shield employers from civil action and resultant large liability verdicts. This resulted in a flood of occupational exposure claims into the workers’ compensation arena. An effort in the mid-1980’s, following the asbestos litigation explosion, was by Industry to contain costs and restrict the payment of occupational disease claims even further in the workers’ compensation.

The initial effort was to create higher threshold standards and requirements in the area of mental stress claims. That was quickly followed by efforts to limit orthopedic and neurological carpal tunnel claims.  Restrictive language interpreting what is peculiar to employment further limited all occupational disease claims.

Furthermore, scientific evidence proof requirements became increasingly difficult to surmount. Daubert type arguments emerged by the defense in the nations’ workers’ compensation forums where simplicity of a remedial and efficient benefit delivery program had existed in the past. Where a biological marker was not present, as was in asbestos exposure claims, the establishment of causal relationship was universally challenged.

Pre-existing and co-existing factors soon became other hurtles for injured workers and their families.  Medical histories of orthopedic difficulties such as back conditions soon complicated repetitive motion trauma litigation. Co-existing and pre-existing smoking habits, family genetics and obesity were yet another obstacle to recovery.

Societal Habits Changed

Life and the way we look at work have changed dramatically with the onset of technology. Off-premises work is becoming more and more common with the advent of Internet access and economic globalization. Defining the barriers between work and pleasure has grown to be exceedingly difficult.

People are working harder and longer. More chronic conditions are prevalent in older workers. Disease increases with age and results in more total disability claims.

Occupational Medical Costs

The compensability of occupational claims is much more difficult to sustain in court. In recent studies over 99.9% of occupational deaths and 93.8% of the medical costs of occupational disease were held to be non-compensable. Over 50% of the lifetime medical costs are incurred during the last year of one’s life.

The Legacy of The Libby Montana Gold Rush

In 1881 gold miners discovered vermiculite, a form of asbestos in Libby, Montana. In 1920 The Zonolite Company was established and began to commercially mine vermiculite. W.R. Grace bought the mining operations in 1963. In 1990 the mine was closed and production ended.

For decades W.R. Grace belched over 5,000 pounds of asbestos into the air in and around Libby on a daily basis. The residents who worked at the plant and their families and household contacts were exposed to asbestos fiber.  Mineworkers brought home the asbestos on their clothing. The unknowing inhabitants and their families  used the asbestos to fill their gardens, their driveways, the high school track, the little league field and in their attics for insulation.

The US Environmental Protection Agency (EPA) visited Libby in 1999 and investigated the incidence of disease and the contamination of the site. The EPA declared Libby a Superfund site in October 2002 and a physical clean-up began of the geographical area. The question of who would pay for the medical care of Libby remained an unknown.

A Manager’s Amendment

Senator Max Baucus (D-MT), Chair of the Senate Finance Committee, utilizing a mechanism known as “A Manager’s Amendment,” at the last moment, modified the Senate’s version of the Health Care Reform Bill. The Patient Protection and Affordable Care Act passed the Senate, ultimate cleared the House and was signed into law by President Obama on March 23, 2010. Section 10323, Medicare Coverage for Individuals Exposed to Environmental Health Hazards, 2009 Cong US HR 3590, 111^th Congress, 1^st Session (December 31, 2009).

Senator Bacus said,  “This provision is important because it will provide vital medical services to American who—through no fault of their own—have suffered horrible effects from their exposure to deadly poisons. It will provide vital medical services we owe these Americans under our commitment in the Superfund Act.”  The amendment initially provides for screening and medical care to residents of the Libby Montana asbestos contaminated site that was owned and operated by W.R. Grace. It essentially provides for universal health care.

“Libby Care” Is The New Occupational Medical Care Model Legislation

The Libby site qualified for the medical program because the hazardous asbestos contaminated site in Libby was deemed to be “a public health emergency” on June 17, 2009 as defined by the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA). While there are 1700 designated Superfund sites, Libby is the first site in the history of the program that has been designated as “a public health emergency.” The program may be expanded in adopted to other communities at the discretion of the Secretary of of the Department of Health and Human Services (HHS). 

The plan authorizes a grant for initial medical screening purposes. The screening would determine if a medical condition is present that is attributable to the environmental exposure. It allows those individuals with a diagnosed medical condition due to the environmental exposure at the site to get Medicare services. The Secretary of the Department of HHS may establish additional pilot programs to provide additional medical care appropriate for the residents of contaminated communities so designated. The delivery of Medicare medical benefits will be directed to those “who have suffered horrible effects from their exposure to deadly poisons.”

The purpose of the legislation is  “…. to furnish such comprehensive, coordinated and cost-effective care to individuals…..” p2224 l3-1. It mandates the furnishing of “Flexible Benefits and Services,” for items, benefits or services NOT covered or authorized by the Act. It further authorizes the institution of “Innovative Reimbursement Methodologies,” for reimbursement subject to offsets for individuals “eligible to receive public or private plan benefits or legal agreement.” p2226 ll8-11. The Secretary of HHS will maintain “waiver authority.”

Charting A New Course

After a century of struggle, the United States now embarks upon a new course for occupational medical care. The law charts a new path for the delivery of  occupational disease medical benefits on a timely basis. It will permit researchers an avenue for the collection of epidemiological data so that the workplace can be made safer. All will benefit. The innovative legislation provides for a long awaited and much needed initiative to provide an efficient, responsive and coordinated treatment plan and preventive health program that hopefully will expand and will vastly improve occupational health care.

To read more about health care and workers' compensation click here.

Exclusivity Doctrine Shields an Employer-Manufacturer From Liability in Mesothelioma Claim

A Federal Judge, who is managing the Multi-District Asbestos Litigation, has ruled that the exclusivity doctrine defeats the application of the dual capacity doctrine where the manufacturer's corporation was merged into the employer's corporation. 


The employee was hired by Hewlett-Packard (HP) in 1966 which merged into Agilent Technologies in 1999. In 1966 the employee, while working for HP, worked on asbestos containing products manufactured by F&M Scientific Company (F&M). F&M was acquired by HP in 1965. The employee ceased work in 2001 and ultimately died of mesothelioma on April 7, 2007.


The court reasoned that dual capacity, while it is an exception to the exclusivity doctrine, is not easily obtained.  The economic reality, the court reasoned, is that both companies were the same corporate entity due to the merger of the businesses. 


The Judge held that, "Workers’ compensation must remain the exclusive remedy for injuries sustained in the course of employment. When a corporate entity is simultaneously an employer and a manufacturer of harmful products, workers’ compensation serves to limit its tort liability with respect to its employees." 


Shamir v. Agilent, et al., MDL 875, Civil Action 08-76816, Decided April 5, 2010.


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World Trade Center Responders Continue to Suffer

The plight of the first responders to the World Trade Center disaster has been objectively corroborated by a recent study published in the New England Journal of Medicine.

"Conclusion: Exposure to World Trade Center dust led to large declines in FEV1 for FDNY rescue workers during the first year. Overall, these declines were persistent, without recovery over the next 6 years, leaving a substantial proportion of workerswith abnormal lung function."

The attack on the World Trade Center (WTC) on September 11, 2001, when terrorists crashed two hijacked planes into both towers of the WTC, resulted in the deaths of 2,751 people on that day. The crashes created massive combustion, fueled by jet fuel, that resulted in a huge release of of contaminants including: asbestos, pulverized concrete, lead and other toxins. It is estimated that over 90,000 individuals were involved in the massive clean-up efforts that went on for months following the horrific event. Thousands of New York City residents, schoolchildren and commuters were also exposed.


Click here to read more about 911 WTC claims.

NJ Appellate Court Upholds $30.3 Million Mesothelioma Verdict

In an unpublished decision a NJ Court of Appeals upheld a $30.3 Million verdict in an asbestos case where the worker was exposed to asbestos fiber during summer employment during his youth. The court held that the standard of causation in a mesothelioma case permitted recovery where there was infrequent exposure to a small amount of fiber.

History

"Mark Buttitta was born in December 1952. He worked as a “parts picker” at the GM distribution warehouses in Edgewater and Englewood during the summers of 1971 to 1973, and during his winter breaks while matriculating at Colgate University. As a summer employee, Mark was also responsible for sweeping the warehouse floor at the end of the shift. Mark worked with his father, who had been employed by GM since the 1940’s. During the summer of 1971, Mark also worked with Frank Buttitta, Jr. (Frank, Jr.), his brother. 

"In his de bene esse deposition, played for the jury at trial, Mark testified that as a “parts picker,” he, along with fifty to seventy-five other employees, were responsible for filling orders for parts submitted to GM by automobile dealers. The picker would retrieve parts from open racks or bins located at various locations within the “very busy” warehouse and place them in a cart. Some parts were packaged in boxes and some were stored loose on shelves. If the parts were packaged in a box, the parts picker would open the box, check to make sure it contained the correct parts and the required quantity, and then either remove the part or reseal the box for transport to the shipping area. Brakes were packaged in boxes containing four units; to fill an order, a parts picker would often retrieve one set of brakes from a box. 

"Mark said that, on some days, he would pick as many as fifty brake shoes or pads and twenty-five clutch pads or assemblies. Frank Ripley (Ripley), who had worked with Frank, Jr. and Mark at the GM warehouse, confirmed that brakes and clutches, which then contained asbestos, were the most common products picked at the warehouse. 

"Mark, Frank, Jr., and Ripley described the warehouse as being very dusty, with thick layers of dust on the shelves, boxes, and automotive parts, which became airborne when disturbed. The air was “stagnant” and there was visible dust “in the air.” The warehouse had no windows and ventilation was poor. Mark wore street clothes to work; masks and respirators were not provided. He often returned home from work “covered with dust”; Frank said he came home covered in a “gray kind of dirt”; Ripley said that after a day working in the warehouse “you’d blow your nose in a handkerchief and you know there would be dust.” Mark did not see any warnings on the boxes. 

The frequency, regularity and proximity test

"The frequency, regularity and proximity test “’is not a rigid test with an absolute threshold level necessary to support a jury verdict.’” James, supra, 155 N.J. at 302 (quoting Tragarz v. Keene Corp., 980 F.2d 411, 420 (7th Cir. 1992)). “The phraseology should not supply ‘catch words’ [and] the underlying concept should not be lost.” Sholtis, supra, 238 N.J. Super. at 29. Tailoring causation to the facts and circumstances of the case, “[t]he frequency and regularity prongs become less cumbersome when dealing with cases involving diseases, like mesothelioma, which can develop after only minor exposures to asbestos fibers.” Tragarz, supra, 980 F. 2d at 420. Thus, exposure in this case must be considered in relation to the uncontradicted expert testimony establishing that mesothelioma is associated with the “smallest exposure” to asbestos and can develop from the cumulative effects of minimal and infrequent exposure. 

"Here, with regard to the frequency of exposure requirement, Mark worked for three summers and during his winter breaks at the GM warehouse. He was also exposed through his contact with his father who worked at GM. That rather brief work history must be considered in light of the nature of mesothelioma and the experts’ testimony that the disease can be contracted after infrequent exposure to asbestos. This was sufficient to establish the frequency of exposure. See Rotondo v. Keene Corp., 956 F.2d 436, 442 (3d Cir. 1992) (holding that plaintiff, who developed mesothelioma and had worked several months one summer in close proximity to asbestos, satisfied frequency, regularity, and proximity test). 

"Plaintiff presented sufficient evidence to establish that Mark regularly worked in close proximity to asbestos-containing clutches, including those manufactured by Borg-Warner, to permit the issue of causation to go to the jury.

Buttitta v Allied Signal, Inc. et al., DOCKET NO. A-5263-07T1 A-5268-07T1 (NJ App Div) 

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Libby Care Launches - Center for Asbestos Related Disease Ground Breaking

The recent health care reform legislation provided for the Libby Care which will provide universal medical care for victims of asbestos related disease. The plan is a pilot program for occupational disease medical care fully funded under the Medicare program.


This week Senator Max Baucus, instrumental in crafting and enacting he program, participated in the ground breaking for ceremony for the expansion of the Center for Asbestos Related Disease (CARD).

“Today was a great day for CARD and the people of Libby,” Baucus said at the groundbreaking. “We’re all in this together, and it’s really through team work that we’re able to get this expansion done. It’s also great day because now the people of Libby will get the health care they need and deserve.”

Baucus said that the EPA designation, along with the new legislation, “has triggered over $300 million [in health aid for Libby] over the next 10 years. This is going to be bigger and better than the aid that was given to victims of 9/11.”

Click here to read more about Libby Care.

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National Asbestos Week: What is Asbestos and Why is it Bad for Our Health?

This week is National Asbestos Awareness Week. To commemorate this event the ADAO is holding its 6th International Asbestos Awareness Conference. The following is a cross-post from that event.

What is Asbestos and Why is it Bad for Our Health?
April 2nd

By Richard Lemen
PhD, MSPH, Assistant Surgeon General, USPHS (Ret.) & Rear Admiral (Ret.)

Asbestos is a commercial term referring to a group of naturally-occurring fibrous minerals. Asbestos has remarkable durability and resistance to heat, properties conferring value in a wide range of products including building and pipe insulation, friction products including brake shoes, and fire-resistant bricks. Asbestos has been woven into fireproof cloth and incorporated into cement pipes used for water transport and into erosion-resistant cement roofing tiles. Unfortunately, asbestos fibers are also inhalable, and once inhaled, cause grave health risk, apparently because of their physical characteristics and bio-persistence in the body. Asbestos exposure causes a wide range of serious and fatal health conditions including pleural changes (plaques, thickening, breathlessness, loss of lung function), asbestosis (scarring of the lungs), cor-pulmonale (right sided heart enlargement and then failure), lung cancer, mesothelioma (cancer of the linings of the lung or abdomen), laryngeal cancer, gastro-intestinal cancers (including stomach, colon, rectal), ovarian cancer, and is suspected of causing kidney cancers.  All asbestos fiber types have been found to cause all major types of asbestos-related disease, including chrysotile, the most commonly used form of asbestos. In reality, most asbestos use involves either intentional mixing of different fiber types or inadvertent contamination of a fairly pure product with small quantities of another (natural contamination). Today world production of asbestos is highest from Brazil, Canada, China, Kazakhstan, Russia, and Zimbabwe. Vast amounts of asbestos are still used in many developing countries where exposure is not limited to just workers, by also non-occupational groups including children. For these reasons and because scientists have not been able to determine a safe level of exposure to asbestos most industrial countries have banned its use. However, this has not been true for Canada or the United States where products can still contain asbestos.*Dr. Lemen is the Retired Assistant Surgeon General who has recently been appointed by President Obama to the Presidential Advisory Board on Radiation and Worker Health. He will present at ADAO’s 6th International Asbestos Awareness Conferenceon April 10th. Click here to read more about asbestos and workers' compensation. Click here to read about asbestos litigation.

Positive Pathological Findings in the Lungs of World Trade Center Patients

The forensic pathological skills of the Mt. Sinai Medical Center (MSMC) in New York have yet again revealed the mysteries of an occupational exposure. MSMC was the medical laboratory of Irving J. Selikoff and sentinel studies on asbestos related disease attributing exposure to asbestosis, lung cancer and mesothelioms.

MSMC took the early initiative in medically investigating the World Trade Center (WTC) first responders. Following up on the 2001 event MSMC had conducted pathologic evaluations of WTC dust present in lung tissue of a sampling of the lose exposed to WTC dust. It is estimated that between 60,000 to 70,000 responders have been exposed.

"We found that three of the seven responders had severe or moderate restrictive disease clinically. Histopathology showed interstitial lung disease consistent with small airways disease, bronchiolocentric parenchymal disease, and nonnecrotizing granulomatous condition. Tissue mineralogic analyses showed variable amounts of sheets of aluminum and magnesium silicates, chrysotile asbestos, calcium phosphate, and calcium sulfate. Small shards of glass containing mostly silica and magnesium were also found. Carbon nanotubes (CNT) of various sizes and lengths were noted. CNT were also identified in four of seven WTC dust samples."

Click here to read more about the WTC exposures and workers' compensation.