Digital Identification: Is Your Employer Going to Take Your Digital Finger Prints, Iris Scans or Face ID

The technology to digitally capture and store an individual's personal biometric identifiable information is growing at a rapid pace. Employers, medical providers and even government agencies have become frustrated by the outlawed use of Social Security numbers as means of identification.

A simple and easily used application has now become available to collect this data through an iPhone. Balacing workers' privacy against the administration of a workers' compensation system has certainly become even more challending. The use of national and international databases for the collection, dissemination and use of this type of data publically, strikes fear in the hearts of injured workers and they become even more reluctant to report both saftey concerns and injuries to employers for fear of discrimination and retaliation.

"The California-based company AOptix rolled out a new hardware and app package that transforms an iPhone into a mobile biometric reader. As first reported by Danger Room in February, AOptix is the recipient of a $3 million research contract from the Pentagon for its on-the-go biometrics technology."

Read he Complete Article::  Now Your iPhone Can Read Fingerprints, Scan Irises and ID Your Face (Wired)

Privacy: Cell Phone Not Protected From Search

A Federal Court of Appeals has ruled that data stored on a cell is not protected from a governmental search and inspection. Over the last few years the privacy of e-mail was called into question, however the now the permitter of permitted inspection has expanded to include the data store of cell phones, whether it be photos or text.

"We conclude that the Stored Communications Act, which prohibits accessing without authorization a facility through which an electronic communication service is provided and thereby obtaining access to an electronic communication while it is in electronic storage, does not apply to data stored in a personal cell phone."

Fannie Garcia v City of Orlando (No. 11-41118) (5th Cir 2012) Decided 12/12/12

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Workers' Compensation: Privacy: Why Injured Workers Are Stalked ...
Apr 30, 2012Privacy: Why Injured Workers Are Stalked With Junk Mail and Nuisance Calls. Data sharing is a major problem and its effect on injured workers is becoming more acute. When injured workers contact providers for "more ...
http://workers-compensation.blogspot.com/

Workers' Compensation: Privacy, Clients and Social Media DiscussionApr 14, 2011
Social networking has become a popular topic within the workers' comp community. In this edition of Workers' Comp Matters, host Attorney Alan S. Pierce, welcomes Attorney Jon L. Gelman, to take a look a social networking ...
http://workers-compensation.blogspot.com/

Facebook, Organ Donations and Medical Privacy of Workers ..May 07, 2012
The announcement of Facebook to allow for the public listing of organ donors of it social media site, albiet with good intentions, raises concerns about the privacy of workers' compensation claims as the organs could become ...
http://workers-compensation.blogspot.com/

Major California Medical Record Privacy Breach DisclosedAug 23, 2011
The lack privacy of medical records in workers' compensation claims has perpetually been a huge concern for workers since Congress ignored requests to protect their dissemination. A recent disclosure in California that the ...
http://workers-compensation.blogspot.com/

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Chamber of Commerce Attempts to Injure Asbestos Victims Further

Deadly Asbestos

The US Chamber of Commerce is now trying to take privacy rights of asbestos victims and their families. After Industry knowingly exposed millions of innocent workers, and their families to deadly asbestos fiber for purely economic greed, they now want to add insult to injury by requring the bankruptcy court to publicly disclose their settlements.

Asbestos has been a known carcinogen for decades. Not yet banned in the US, exposure to asbestos is has been causally linked to: asbestos, lung caner and mesothelioma.

The indiscriminate manufacture and use of asbestos fiber in the US, and worldwide, has resulted in an epidemic of workers' compensation claims throughout the US, and the longest running tort claims in the nations' history. Millions of innocent asbestos victims, and their families, have suffered unfortunate illness and needless illness and death.

The US Chamber of commerce is actively supporting in the US Congress,  and in state legislatures, laws to require disclose of private settlements made in asbestos bankruptcy claims. While the Federal law is pending in Congress, the state legislation is actively being advanced.

See H.R.4369 Furthering Asbestos Claim Transparency (FACT) Act of 2012

Click on this link to registered your OPPOSITION to the legislation.

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Reserves for Asbestos Losses Anticipated to be Deficient

Nov 29, 2012

Fitch Ratings estimates industry asbestos reserves to be deficient by $2 billion to $8 billion at year-end 2011. Asbestos reserves make up approximately 4% of total property/casualty industry reserves with approximately 50% ...

http://workers-compensation.blogspot.com/

Canadian Asbestos Register of Public Buildings Now On-Line

Nov 14, 2012

In an effort to protect workers and public from deadly asbetsos fiber, the Canadian Province of Saskatchewan has now mandated that builings containing asbestos fiber be publically listed and the list published to the Internet.

http://workers-compensation.blogspot.com/

Workers' Compensation: Asbestos Exposure Occurs When Old Pipe ...

Nov 08, 2012

Today in Boston a steam pipe burst near Boston City Hall exposing the population to cancer causing asbestos fiber. Asbestos continues to be a major health hazard since it remains in construction material exposuing workers ...

http://workers-compensation.blogspot.com/

Deadly Asbestos Exposure Threat Left by Hurricane Sandy

Nov 04, 2012

The path of destruction to buildings caused by hurricane Sandy has created a potential threat of deadly asbestos exposure. Many structures destroyed and damaged by the storm contained asbestos fiber and those were ...

http://workers-compensation.blogspot.com/

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Surveillance Crosses the Privacy Line

Surveillance in workers compensation matters creates sensitive issues regarding privacy. The bright-line of what is public versus private becomes even more acute as employers and insurance companies investigate fraud concerns. When companies cross the line the consequences can be serious.

Several Montana attorneys have sought relief from a Court for what they call a breach of the privacy of the injured workers whom they represent. The attorneys allege that insurance fraud investigators, on behalf of a Montana insurance fund, have violated the privacy rights of their client by recording surveillance videos  and giving them to examining physicians, in order to facilitate reports that the injured workers are malingering.

The attorneys represent that  in over 800 instances, over the past several years, criminal surveillance tapes were unilaterally provided to defense medical experts to the detriment of their client's right to privacy. Harassment of injured workers creates fear that deters claims to benefit of employers and their insurance carriers. Inured workers have limited resources to fight such unscrupulous behavior. The attorneys in Montana had done a great pro bono and public service to take on Goliath on behalf of David. Hopefully the courts will balance the playing field and protect the rights of the injured worker from such tactics.

Workers' compensation was designed as a simple and equitable system. It was intentionally designed for the benefit of all the parties who participate in it. It is important that when the system becomes unbalanced that all the participants join in the effort equally to both redesign and rebalance the program.

For over 3 decades the Law Offices of Jon L. Gelman  1.973.696.7900  jon@gelmans.com have been representing injured workers and their families who have suffered occupational accidents and illnesses.

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Privacy, Clients and Social Media Discussion

Social networking has become a popular topic within the workers’ comp community.  In this edition of Workers’ Comp Matters, host Attorney Alan S. Pierce, welcomes Attorney Jon L. Gelman, to take a look a social networking in the workers’ comp world. Alan and Jon discuss privacy and their clients, client responsibility when it comes to putting up information on social media sites and how social networking can be used as a portal to monitor clients.

Listen - Page URL:    http://legaltalknetwork.com/podcasts/workers-comp-matters/2011/04/privacy-clients-and-social-media/

Listen - MP3 Link:    http://legaltalkmedia.com/LTN/WCM/WCM_030911_SocialNetworking.mp3

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US Supreme Court to Review Employee Privacy Issues

The US Supreme Court has granted certiorari in a case involving the application of the constitutional right to informational privacy to an employee questionnaire. NASA, et al. v. Nelson, Robert M., et al. No. 09-530, March 8, 2010.


The Supreme Court will be reviewing a 9th Circuit Court of Appeals decision involving contract employees of the Jet PropulsionLaboratory (JPL) who filed suit against the National Aeronautics and Space Administration (NASA) and others. The suit claims that contract employees in non-sensitive or “low risk” positions should not be required to submit to in-depth background investigations.


The Circuit Court below held:
We have repeatedly acknowledged that the Constitution protects an “individual interest in avoiding disclosure of personal matters.” In re Crawford, 194 F.3d 954, 958 (9th Cir.1999). This interest covers a wide range of personal matters, including sexual activity, Thorne v. City of El Segundo, 726 F.2d 459 (9th Cir.1983) (holding that questioning police applicant about her prior sexual activity violated her right to informational privacy), medical information,Norman-Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d 1260, 1269 (9th Cir.1998) (“The constitutionally protected privacy interest in avoiding disclosure of personal matters clearly encompasses medical information and its confidentiality.”), and financial matters, Crawford, 194 F.3d at 958 (agreeing that public disclosure of social security numbers may implicate the right to informational privacy in “an era of rampant identity theft”). If the government's actions compel disclosure of private information, it “has the burden of showing that its use of the information would advance a legitimate state interest and that its actions are narrowly tailored to meet the legitimate interest.” Crawford, 194 F.3d at 959 (internal quotation marks omitted). We must “balance the government's interest in having or using the information against the individual's interest in denying access,” Doe v. Att'y Gen., 941 F.2d 780, 796 (9th Cir.1991), weighing, among other things:
“the type of [information] requested, ... the potential for harm in any subsequent nonconsensual disclosure, ... the adequacy of safeguards to prevent unauthorized*878 disclosure, the degree of need for access, and whether there is an express statutory mandate, articulated public policy, or other recognizable public interest militating towards access.”
Id. (quoting United States v. Westinghouse Elec. Corp., 638 F.2d 570, 578 (3d Cir.1980)) (alteration in original).
Both the SF 85 questionnaire and the Form 42 written inquiries require the disclosure of personal information and each presents a ripe controversy."

".....The balance of hardships tips sharply toward Appellants, who face a stark choice-either violation of their constitutional rights or loss of their jobs. The district court erroneously concluded that Appellants will not suffer any irreparable harm because they could be retroactively compensated for any temporary denial of employment. It is true that “monetary injury is not normally considered irreparable,” L.A. Mem'l Coliseum Comm'n v. Nat'l Football League, 634 F.2d 1197, 1202 (9th Cir.1980), and the JPL employees who choose to give up their jobs may later be made whole financially if the policy is struck down. "

Click here to read more about privacy issues and workers' compensation.

HIPPA Privacy Modifications Under Presidential Emergency H1N1 Flu Order

Under the emergency declaration for H1N1 flu signed by President Obama on October 24, 2009, the HIPPA Privacy rule is not waived according to Federal HHS interpretation; however, "the Secretary of HHS may waive certain provisions of the Rule under the Project Bioshield Act of 2004 (PL 108-276) and section 1135(b)(7) of the Social Security Act."
 
Those modifications are:
 
"If the President declares an emergency or disaster and the Secretary declares a public health emergency, the Secretary may waive sanctions and penalties against a covered hospital that does not comply with certain provisions of the HIPAA Privacy Rule:

•  the requirements to obtain a patient's agreement to speak with family members or friends involved in the patient’s care (45 CFR 164.510(b)) 
• the requirement to honor a request to opt out of the facility directory (45 CFR 164.510(a)) 
• the requirement to distribute a notice of privacy practices (45 CFR 164.520) 
• the patient's right to request privacy restrictions (45 CFR 164.522(a)) 
• the patient's right to request confidential communications (45 CFR 164.522(b)) 

"If the Secretary issues such a waiver, it only applies:

1. In the emergency area and for the emergency period identified in the public health emergency declaration.

   2. To hospitals that have instituted a disaster protocol.  The waiver would apply to all patients at such hospitals.

   3. For up to 72 hours from the time the hospital implements its disaster protocol.

"When the Presidential or Secretarial declaration terminates, a hospital must then comply with all the requirements of the Privacy Rule for any patient still under its care, even if 72 hours has not elapsed since implementation of its disaster protocol. 

"Regardless of the activation of an emergency waiver, the HIPAA Privacy Rule permits disclosures for treatment purposes and certain disclosures to disaster relief organizations. For instance, the Privacy Rule allows covered entities to share patient information with the American Red Cross so it can notify family members of the patient’s location.  See 45 CFR 164.510(b)(4)."

Similar rule modifications were invoked during the Katrina disaster.

To read more about medical record privacy and workers' compensation, click here.

The New Economic Recovery Act Fails to Include Workers' Compensation Privacy Needs

The new stimulus package, The American Recovery and Reinvestment Act [ARRA], fails to protect medical record privacy for injured workers. The new economic recovery package includes an appropriation of $19 Billion for the expansion of electronic health records [EHR] by funding intellectual technology. The legislation fails to include an essential prohibition on the dissemination and misuse of workers' compensation medical records.

The spokesperson for the Center for Healthcare Transformation and the Gingrich Group, stated that, "Privacy cannot be compromised, but neither can we compromise progress in pulling our health care system out of the technological Stone Age," ... "We need to find the right balance between privacy at all costs and progress at any cost."

The legislation should be expanded to protect the privacy of workers’ compensation medical records from misuse use. A coalition of legislators, including Rep. Edward J. Markey, Massachusetts Democrat, expressed deep concerns. Markey stated, "Medical information is probably the most sensitive and personal information that we have about ourselves. Without strong privacy safeguards, a health [information-technology] database will become an open invitation for identity thieves, fraudsters, extortionists or marketers looking to cash in on our medical histories." He further remarked that, "tough privacy safeguards" are necessary to reap the benefits of integrated health databases.

While the EHR is a noble project to increase overall efficiency and economy, the misuse of the data of injured workers remains a deep concern. The open door to this information left by the Health Insurance Portability and Accountability Act [HIPA] and ignored by ARRA must be addressed so that the medical records of our working wounded do not become a gold mine for unscrupulous exploitation..

Privacy Went Out the Window

Privacy, a core element in the workers’ compensation system, is rapidly become a thing of the past. Both the State and Federal governments have not considered it a key ingredient in the program.

States, in their to conversion to electronic claims record keeping, have eliminated privacy. The State of California electronically released workers’ compensation claim data concerning Nadya Suleman, the mother who gave birth to eight babies last week. This was after months of complaints by claimants and attorneys that the California electronic claims system was flawed.

Likewise the Federal law, HIPPA [The Health Care Personal Information Non-Disclosure Act of 1998] governing medical records specifically excludes workers’ compensation medical information. Final Health Insurance Privacy Regulations that were published by the Department of Health and Human Services on December 28, 2000, establishing standards for privacy of individually identifiable health information records eliminate privacy in compensation claims. While the regulations cover health plans, health care clearinghouses and certain other providers who use computers to transmit claims information, workers' compensation insurance carriers are exempted.

The Institute of Medicine (IOM) committee has recently recommended the Congress and health agencies develop a new approach to protecting privacy in health research. In a 316 page report released by their Committee on Health Research and the Privacy of Health Information it concluded that HIPPA does not protect privacy.

As the country embarks on a new economic recovery program, including national health care, the Federal government must rebuild the national system of workers’ compensation system. Privacy should not be thrown out the windows when administering a workers' compensation benefit delivery system.