(c) 2019 Jon L Gelman, All Rights Reserved.

Friday, June 21, 2019

AI and Workers' Compensation: Who is Watching the Machine?

Artificial intelligence [AI] is the new challenging frontier in the administration of workers’ compensation benefits. While there are cost savings benefits that will be achieved through deep learning and machine intervention there are also serious ethical concerns coming to the forefront as this new technology evolves. 

Deep machine learning is complicated and it is in an ambitious goal. The result may afford a good prediction, but it lacks an explanation of "why" in many instances. 

The potential decrease costs in both administration and payment of workers’ compensation benefits have been alluded to in advertisements of software manufacturers. Already vendors are claiming reductions including: a 5% reduction in claims cost; a 50% decrease in the cost of medical-only claims; and a 25% to 60% reduction in attorney involvement. 

AI programs transfer the decision-making role onto a computer algorithm rather than a human being. In others words, the plight of the injured worker is not left to the decision making capacity of an adjuster, but rather a computer utilizing logarithms. The logarithms can be biased concerning such stereotypes as: racial, demographic, genetic, gender, economic, and/or religious. AI can be utilized to admit or deny claims, restrict temporary disability benefits and direct medical care. 

The lack of privacy in the vast amount of data flowing into machine learning programs continues unabated. Some of the data is distributed without consent and without transparency. How much of this data is used by AI programs remains unknown. The process is unexplainable. 

Computer based learning systems have available vast amounts of data, from unknown sources, that form a gold mine of information available. Insurance carriers and employers can use this data to reduce claims costs and ultimate payouts. The data grows daily from multiple sources both with in the workers’ compensation community as well as from collateral information resources. In the information world the availability of electronic information grows constantly. 

The deployment of artificial intelligence programs that involve deep machine learning raise significant issues involving questions as to the explainability of the decision making process. The Explainability of Artificial intelligence [XAI] including the algorithms employed in the decision making process is problematic. An overriding question is who is responsible for the potential harm since an individual cannot sue a computer. 

The ethical dilemma created is that it is difficult to regulate logarithms. The federal government has taken the lead on this challenging issue. The Defense Advancement Research Projects Agency [DARPA] assesses how the components of AI can be explained and applied in a responsible manner. The components include: how rich, complex and subtle information is perceived; how the machine learns the information within an environment; how the information is abstracted to create new meanings; and how artificial intelligence can reason to plan and decide. 

The integrity of workers’ compensation is being challenged by AI systems that lack explainability. The goal of employers and or insurance companies in utilizing AI for cost-claim reduction is noble. The playing field must remain balanced and the right to “due process” in workers compensation programs needs to be preserved. The oversight by governance, policy, and rules concerning XAI should be utilized to maintain the integrity of workers’ compensation programs.

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

Thursday, June 20, 2019

New COLA Increase for Certain Dependents

NJ Governor Phil Murphy has now signed legislation enacting a  cost of living adjustment [COLA] increase for workers' compensation benefits. The law is limited to dependents of public safety employee who have been killed in a workplace accident.

The law provides, from January 1, 2020 forward, an annual COLA in the weekly WC benefit rate for the surviving dependents of any public safety worker who died from a workplace injury after December 31, 1979. A public safety worker is an individual who is employed by or a member of a paid, partially-paid, or volunteer fire or police unit, including a first aid or rescue squad. 

The annual COLA will equal the percentage increase in the annual Statewide average weekly wages earned by all employees covered by the “unemployment compensation law.” For supplemental WC benefits paid for workplace injuries that occurred after December 31, 1979 but before January 1, 2020, the calculation will be performed relative to the Statewide average weekly wages in effect in the year of the injury. However, the calculation applies only to benefits paid beginning on January 1, 2020 without any retroactive benefit payment. 

COLA benefits are to be reduced by the original amount of any Social Security benefits a surviving dependent receives (but not the amount of any Social Security disability benefits and any subsequent cost-of-living increases in Social Security benefits) or Black Lung benefits. 

In addition, COLA benefits will not be paid to any individual who elects not to receive Social Security benefits for which the individual is eligible, or in any case in which the COLA would be less than $5 per week. 

COLA benefits are to be paid from the SIF starting on January 1, 2020. The Department of Labor and Workforce Development calculates the SIF assessment for each calendar year so that projected resources in the fund equal 125 percent of expected benefit payments in the upcoming year plus 100 percent of the projected cost of administration. The surcharge is levied on all employers that are WC and employer’s liability insurance policyholders or that are self-insured, except for reinsurance or retrocessional transactions, and the State or any local units thereof which acts as a self-insured employer.

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

Saturday, June 15, 2019

Firefighter and Public Safety Officer Presumption Bill Advances

Firefighter and public safety officer presumption bill advances and creates a rebuttable presumption of workers’ compensation coverage for public safety workers and other employees in certain circumstances. 

The bill affirms that if, in the course of employment, a public safety worker is exposed to a serious communicable disease or a biological warfare or epidemic-related pathogen or biological toxin, all care or treatment of the worker, including services needed to ascertain whether the worker contracted the disease, shall be compensable under workers' compensation, even if the worker is found not to have contracted the disease. If the worker is found to have contracted a disease, there shall be a rebuttable presumption that any injury, disability, chronic or corollary illness or death caused by the disease is compensable under workers' compensation. 

The bill affirms workers’ compensation coverage for any injury, illness or death of any employee, including an employee who is not a public safety worker, arising from the administration of a vaccine related to threatened or potential bioterrorism or epidemic as part of an inoculation program in connection with the employee’s employment or in connection with any governmental program or recommendation for the inoculation of workers. 

The bill creates a rebuttable presumption that any condition or impairment of health of a public safety worker which may be caused by exposure to cancer-causing radiation or radioactive substances is a compensable occupational disease under workers' compensation if the worker was exposed to a carcinogen, or the cancer-causing radiation or radioactive substance, in the course of employment. Employers are required to maintain records of instances of the workers deployed where the presence of known carcinogens was indicated by documents provided to local fire or police departments under the “Worker and Community Right to Know Act,” P.L.1983, c.315 (C.34:5A-1 et seq.) and where events occurred which could result in exposure to those carcinogens. 

In the case of any firefighter with seven or more years of service, the bill creates a rebuttable presumption that, if the firefighter suffers an injury, illness or death which may be caused by cancer, the cancer is a compensable occupational disease. 

The bill provides that, with respect to all of the rebuttable presumptions of coverage, employers may require workers to undergo, at employer expense, reasonable testing, evaluation and monitoring of worker health conditions relevant to determining whether exposures or other presumed causes are actually linked to the deaths, illnesses or disabilities, and further provides that the presumptions of compensability are not adversely affected by failures of employers to require testing, evaluation or monitoring. 

The public safety workers covered by the bill include paid or volunteer emergency, correctional, fire, police and medical personnel. 

This bill was pre-filed for introduction in the 2018-2019 session pending technical review. As reported, the bill includes the changes required by technical review, which has been performed. 

The following bill(s) have been scheduled for a committee or a legislative session. 

The following bill(s) have been scheduled for a committee or a legislative session.
Quijano, Annette/Benson, Daniel R./Lagana, Joseph A.
"Thomas P. Canzanella Twenty First Century First Responders Protection Act"; concerns workers' compensation for public safety workers.
6/20/2019 1:00:00 PM Assembly
Voting Session
Assembly Chambers

Greenstein, Linda R./Bateman, Christopher
"Thomas P. Canzanella Twenty First Century First Responders Protection Act"; concerns workers' compensation for public safety workers.
6/20/2019 1:00:00 PM Assembly
Voting Session
Assembly Chambers

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

Updated: 06-15-2019

Friday, June 14, 2019

Cosmetic Products Containing Asbestos Recalled

Hazardous cosmetic products containing deadly asbestos fiber continue to appear in the workplace. The US Food and Drug Administration (FDA) has recently issued an alert concerning a voluntary recall concerning one of those cosmetic products. 

On May 29, and 30, 2019 Beauty Plus Global and Claire’s Stores, Inc., undertook voluntary recalls of their respective cosmetic products that tested positive for asbestos during FDA’s ongoing testing of cosmetics for asbestos. The recalled products include:

· Beauty Plus Global Contour Effects Palette 2, Batch No. S1603002/PD-C1179

· Claire’s JoJo Siwa Makeup Set, SKU #888711136337, Batch/Lot No. S180109

Consumers who have these batches/Lots of Beauty Plus or Claire's products should stop using them.

The FDA is advising consumers not to use any of the following products.

Health care professionals and consumers are encouraged to report any adverse events to FDA’s MedWatch Adverse Event Reporting program by:

· Completing and submitting the report online at MedWatch Online Voluntary Reporting Form

· Downloading and completing the form, then submitting it via fax at 1-800-FDA-0178

For more information on FDA's investigation of potential asbestos contamination in cosmetics, see the FDA’s Talc

Friday, June 7, 2019

Burnout Classified as a Medical Condition

Today's post is shared from 

Meeting in Geneva on 20-27 May 2019 for its 72nd session, the World Health Organization (WHO) World Assembly has taken a landmark decision. Referring to the conclusions of health experts, it has declared burn-out to be an “occupational phenomenon”, opening the door to having it classified in the WHO's International Classification of Diseases (ICD). Codenamed “QD85”, burn-out is now to be found in the section on “problems associated with employment or unemployment”.

In the words of the WHO, burn-out “specifically refers to phenomena related to the professional context and should not be used to describe experiences in other areas of life.”

The new International Classification of Diseases (ICD-11) will come into force on January 1, 2022.

First identified in the 1970s, burn-out had not yet been listed in any of the international classifications (i.e, that of the WHO or the American Psychiatric Association).

The UNO’s specialist agency had initially stated that burn-out had been included as a disease in the ICD, a classification used for identifying health trends and statistics. However, the next day a WHO spokesperson issued a revised statement, saying that burn-out was going to be switched from the category “factors influencing health status” to “occupational phenomena”, though without being included in the list of “diseases”.

“Inclusion in this chapter means that burn-out is not conceptualized as a medical condition, but as an occupational phenomenon”, the spokesman clarified in a communiqué.

See also:

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

Tuesday, June 4, 2019

Safety Incentive Programs: Lawful? Effective?

Today's guest author is Jon Rehm, Esq. of the Nebraska bar.

The ” _____ days without an accident sign” is a common feature in many workplaces. These signs are often parts of employer safety incentive programs. These programs intend to reduce work injuries which should reduce workers’ compensation expenses for business.

Often these programs include money or other financial incentives for employees. The use of programs that financially rewards employees presents three questions to me. Are these programs lawful, are they effective and are their other ways to improve workplace safety?

Are employer incentive programs lawful?

In 2018 the Department of Labor reversed Obama era regulatory guidance that safety incentive programs would violate OSHA anti-retaliation rules. The concern of the previous administration was that safety incentive programs discouraged reporting of injuries. But even the Trump DOL believes that a lawful safety incentive program must include anti-retaliation training and also address “near misses” or incidents that were nearly accidents so as not to discourage the reporting of workers’ compensation claims.

OSHA regulations largely address how that federal agency enforces workplace safety law. Employees can’t sue their employers for violations of OSHA. But in certain industries, OSHA allows whistleblower cases for employees reporting unsafe work condtions. Similarly, state laws can allow employees to being retaliation cases for reporting safety problems and or reporting a work injury. Safety incentive programs that penalize workers for injuries could violate anti-retaliation laws depending on how they are designed.

Are safety incentive programs effective?

Safety experts have questioned the effectiveness of directly rewarding employees for not being hurt. These experts believe that these programs lead employees to cover up injuries which could cover up bigger safety issues. Philadelphia attorney Richard Jaffe criticized safety incentive programs because they are premised on the fact that employees create unsafe conditions. Put another way, the programs are premised on the assumption that employees are to blame for getting hurt.

There is powerful anecdote about the failure of some safety incentive programs. The Massey Energy Upper Big Branch Mine explosion killed 29 West Virginia minors in 2010. Massey’s CEO Don Blankenship had a safety incentive program that included sporting equipment and luxury goods for minors who didn’t miss work for accidents. Blankenship was convicted of violating safety standards in connection with the Upper Big Branch explosion.

The Upper Big Branch explosion coupled with the callousness of Don Blankenship is an extreme example of what could go wrong with employee safety incentive programs.

So what works?

Safety programs that involve employees working with management are the most effective. Employee input is critical because employees often have the most knowledge about a job. They also have a strong incentive to avoid injury.

Unions give employees a say in their workplace. Not surprisingly, studies in the United Statesand Canada show unionized workplaces are safer than non-unionized workplaces. Scholars have coined the term “union safety dividend” to describe the workplace safety benefits associated with unions.

I think unions are a better safety tool than programs that target worker behavior because they don’t assume that workers are at fault for their injuries. There are times where an employee may be at fault or share fault for an injury. But that’s why workers compensation pays limited benefits regardless of fault. Workplace safety programs that incorporate employee and employer viewpoints realize that risks in the workplace can come from employer, employee and third parties like equipment manufacturers.

Wednesday, May 22, 2019

Food Manufacturer Agrees to Safety and Health Improvements

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) and J&J Snackfoods have reached a region-wide settlement agreement to improve workplace safety and health at the company’s eight food manufacturing and warehouse facilities throughout New Jersey and New York. Under the settlement, the Pennsauken, New Jersey-based company agreed to pay a $152,934 penalty.

OSHA cited the company in September 2018 after inspectors determined that the company exposed employees to serious machine hazards. OSHA issued willful and repeat citations for failing to train employees and utilize procedures to control hazardous energy when they perform servicing and maintenance work on machinery.

"This settlement shows the Department’s enforcement efforts leading to positive changes on important safety issues," said Regional Solicitor Jeffrey S. Rogoff, in New York. "A repeat violator with a history of safety problems related to machine hazards took responsibility and is improving those conditions across the region, beyond the violations identified by a single inspection at a single facility."

In addition to the penalty, J&J Snackfoods agreed to hire a full-time corporate safety director to manage and coordinate safety and health across all facilities, and a full-time site-safety manager to coordinate safety and health onsite at the facility. The company will also hire a qualified safety and health professional as an outside consultant to conduct two comprehensive safety and health inspections per year and implement a written safety and health program consistent with OSHA’s best practices guidelines. J&J Snackfoods will also provide employees with safety and health training in a language they understand and establish a safety and health committee comprised of employees, union representatives and managers to recommend further safety and health improvements.

"This settlement reflects a commitment to comply with required standards and ensure that employees are protected from hazards that pose a risk for injuries," said OSHA’s New York Acting Regional Administrator Richard Mendelson.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to help ensure these conditions for American working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit
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