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(c) 2010-2026 Jon L Gelman, All Rights Reserved.

Saturday, October 15, 2011

Scientific Evidence and The Court

Last week the Third Edition of The Reference Manual on Scientific Evidence (2011) was published by The National Research Council and The Federal Judicial Center.


"The Reference Manual on Scientific Evidence, Third Edition, assists judges in managing cases involving complex scientific and technical evidence by describing the basic tenets of key scientific fields from which legal evidence is typically derived and by providing examples of cases in which that evidence has been used.
"First published in 1994 by the Federal Judicial Center, the Reference Manual on Scientific Evidence has been relied upon in the legal and academic communities and is often cited by various courts and others. Judges faced with disputes over the admissibility of scientific and technical evidence refer to the manual to help them better understand and evaluate the relevance, reliability and usefulness of the evidence being proffered. The manual is not intended to tell judges what is good science and what is not. Instead, it serves to help judges identify issues on which experts are likely to differ and to guide the inquiry of the court in seeking an informed resolution of the conflict.
"The core of the manual consists of a series of chapters (reference guides) on various scientific topics, each authored by an expert in that field. The topics have been chosen by an oversight committee because of their complexity and frequency in litigation. Each chapter is intended to provide a general overview of the topic in lay terms, identifying issues that will be useful to judges and others in the legal profession. They are written for a non-technical audience and are not intended as exhaustive presentations of the topic. Rather, the chapters seek to provide judges with the basic information in an area of science, to allow them to have an informed conversation with the experts and attorneys.

Friday, October 14, 2011

Florida, Oxycodone Trafficking, Workers Compensation and Blame

The announcement by the US Attorney in Florida of the indictment today of 24 individuals for trafficking Oyxcodone puts a cloud over the claims that the workers compensation system is to blame. With the alleged bad apples caught, the announcement should refocus concern not on the work comp system, but rather on those outsiders who attempt to prey on it for personal gain. 

If anything, the system needs more safeguards to protect both the injured workers as well as the taxpayers. Pending legislation in Florida that restricts prescribed medications in workers' compensation claims only emasculates the social remedial benefit program further forcing the disabled to seek help outside the system. Why blame the victims and punish them.

"Wifredo A. Ferrer, United States Attorney for the Southern District of Florida, Mark R. Trouville, Special Agent in Charge, Drug Enforcement Administration (DEA), Christopher B. Dennis, Special Agent in Charge, Health and Human Services, Office of Inspector General (HHS-OIG), José A. Gonzalez, IRS Special Agent in Charge, Director James K. Loftus, Miami-Dade Police Department, Al Lamberti, Sheriff, Broward Sheriff’s Office, and H. Frank Farmer, M.D., State Surgeon General, Florida Department of Health (DOH), announced the unsealing of a federal indictment charging twenty four defendants for their participation in, among other things, conspiracy to distribute oxycodone and oxymorphone, and conspiracy to defraud Medicare. Twenty-one of the defendants, including a doctor, a pharmacist and two pain clinic operators are currently in custody after a multi-agency takedown was executed early this morning. Three defendants, Hattie Mae Green, Eliezer Salgado and Ronald Regains, remain at large.

Researchers from the Centers for Disease Control and Prevention report that Schedule II prescription painkillers, like oxycodone, today cause more drug overdose deaths than cocaine and heroin combined. Oxycodone and other Schedule II drugs have a high potential for abuse and can be crushed and snorted, or dissolved and injected, to get an immediate high. This abuse can lead to addiction, overdose, and sometimes death.

The nine-count indictment, filed on September 30, 2011 and unsealed today, charges all defendants with conspiracy to possess with intent to distribute controlled substances, namely oxycodone and oxymorphone (Count 1), and conspiracy to commit health care fraud (Count 9). Several of the defendants also face substantive charges of possession with intent to distribute controlled substances (Counts 2-6, 8), and attempted possession of controlled substances (Count 7).

Charged in the indictment are Aiman Izzedin Aryan, 40, of Pinecrest, Emerson Carmona, 40, of Miami,Frank J. Ballesteros, M.D., 57, of Miami, Gerardo Gomez, 38, of Miami, Juan De Dios Gomez, 40, of Miami, Danay C. Manso, 22, of Miami, Danilo Falcon, 38 of Miami, Eliezer Salgado, 29, of Hialeah,Francisco Hernandez, 57, of Miami, Leroy Paige, 49, of Madison, Alyssa Lyn Paige, 32, of Madison,Cynthia Suzette Adderley, 53, of Ft. Pierce, Victor D. Alexander, 50, of Ft. Lauderdale, Aaron Lamar Allen, 44, of Ft. Lauderdale, Henry Louis Conley, Jr., 53, of Miami, Hattie Mae Green, 53, of Miami,Petronella Smith Howard, 52, of Ft. Pierce, Eric Fyke Miller, 42, of Ft. Lauderdale, Annie Mims Simmons, 72, of Miami, Bobbie Lee Anderson, 58, of Gifford, Denise Darcelle Dardy, 48, of Miami, Margaret Marie Elliott, 54, of Ft. Pierce, Billy Joe McCoy, 53,of Ft. Pierce, and Ronald Regains, 56, of Ft. Lauderdale.

U.S. Attorney Wifredo Ferrer stated, “According to recent estimates, Florida prescribes ten times more oxycodone pills than all other states combined. Each day, individuals die from prescription drug overdoses. To stop this drug epidemic, we have previously charged clinic owners, operators, and doctors who deal drugs while hiding behind a medical license. Today, we have focused our efforts on those pharmacies who are churning out pills that are fraudulently prescribed at area pain clinics. We will continue to tackle South Florida’s pill mill epidemic from all angles and at all levels to eradicate these drug dealing organizations.”

DEA Special Agent in Charge Mark R. Trouville said, “The Drug Enforcement Administration continues its relentless attack on those who supply the prescription drug epidemic in our country, state, and local communities. With today’s arrests, twenty four people will no longer add to this drug problem.”

“Today’s multi-agency operation makes clear that drug trafficking and health care fraud make for a vile combination that simply cannot be tolerated,” said Christopher B. Dennis, Special Agent in Charge for the HHS-OIG region based in Miami. “Schemes to steal from taxpayers to pay for highly addictive, highly profitable street drugs , as the government alleges in this case, will trigger investigation and prosecution.”

“The Internal Revenue Service will continue to provide its financial investigative expertise to further the prosecution of criminals, especially those involved in complex financial schemes,” said IRS Special Agent in Charge Jose Gonzalez.

“The trafficking of oxycodone and oxymorphone has seeped into our community and extends beyond the borders of Miami-Dade County. We stand committed to working with our state and federal partners in the ongoing effort to apprehend these drug dealers who are destroying lives with their criminal behavior,” said Miami-Dade Police Department Director James K. Loftus.

“Through operations like this one, prescription drug peddlers are getting the message that pill pushing is no longer tolerated in Florida,” Broward Sheriff Al Lamberti said. “Federal and local enforcement efforts have turned the tide but we need to keep up the good work.”

“The Florida Department of Health has been diligently working with our law enforcement partners to identify unscrupulous practitioners who are inappropriately prescribing controlled substances,” stated Florida Surgeon General Dr. Frank Farmer. “When DOH learns that a practitioner is not following the law, we suspend that practitioners license. We will aggressively continue to fight the prescription drug problem in Florida.”

According to the indictment, from as early as November 2007 September 2011, defendants Gerardo Gomez, Juan De Dios Gomez, and Danay C. Manso operated and utilized pain clinics in Miami-Dade and Broward Counties. These pain clinics housed physicians, including defendant Frank J. Ballesteros, M.D., who would fraudulently prescribe oxycodone and oxymorphone for co-conspirator beneficiaries of Medicare and other prescription drug insurance plans. The beneficiaries would then present the fraudulent prescriptions obtained from the Gomezes’ pain clinics at complicit pharmacies operated by defendants Aiman Izzedin Aryan and Emerson Carmona. Once the prescriptions were filled, Aryan and Carmona would bill Medicare, and other insurers, for the cost of the prescriptions, knowing that the drugs were medically unnecessary and were being re-sold by the beneficiaries.

Defendants Leroy Paige, Alyssa Lyn Paige, Cynthia Suzette Adderley, Victor D. Alexander, Aaron Lamar Allen, Henry Louis Conley, Jr., Hattie Mae Green, Petronella Smith Howard, Eric Fyke Miller, and Annie Mims Simmons facilitated the drug-trafficking and health care fraud conspiracies by recruiting the corrupt health insurance beneficiaries to visit the Gomezes’ pain clinics and Dr. Ballesteros. Often, these recruiter defendants further participated by transporting the beneficiaries to the pain clinics to obtain the prescriptions and then to the pharmacies where they were filled. At the pharmacies, these defendants would receive and take control of the drugs from the beneficiaries. Once these defendants had the drugs, they would distribute them to Gerardo Gomez, Juan De Dios Gomez, Danilo Falcon, and Eliezer Salgado.

Defendants Bobbie Lee Anderson, Denise Darcelle Dardy, Margaret Marie Elliott, Billy Joe McCoy, and Ronald Regains were beneficiaries who posed as patients to obtain the fraudulent prescriptions for oxycodone and oxymorphone, which they then sold.

The indictment contains a forfeiture allegation seeking approximately $40,000,000 which is listed as the amount of proceeds derived by the defendants from the drug trafficking offenses charged in Counts 1 to 8 of the indictment.

If convicted, the defendants face a statutory maximum penalty of 20 years in prison on Counts 1 to 8, and a statutory maximum penalty of 10 years in prison on Count 9.

Today’s case, named Operation Gotham, is the result of the ongoing efforts by the Organized Crime Drug Enforcement Task Force (OCDETF), a partnership between federal, state and local law enforcement agencies. The OCDETF mission is to identify, investigate, and prosecute high level members of drug trafficking enterprises, bringing together the combined expertise and unique abilities of federal, state and local law enforcement.

Mr. Ferrer commended the DEA, the HHS-OIG, the IRS, the Miami-Dade Police Department, the Broward Sheriff’s Office, and the Florida Department of Health, for their work on Operation Gotham. This case is being prosecuted by Assistant U.S. Attorney Dwayne E. Williams.

An indictment is only an accusation and the defendants are presumed innocent until proven guilty.

Attachments:
Indictment (PDF)
A copy of this press release may be found on the website of the United States Attorney's Office for the Southern District of Florida at http://www.usdoj.gov/usao/fls. Related court documents and information may be found on the website of the District Court for the Southern District of Florida athttp://www.flsd.uscourts.gov or on http://pacer.flsd.uscourts.gov.

Thursday, October 13, 2011

Dramatic Downturn In Work Comp Underwriting Will Continue Predicts AM Best

Due to the stressed housing market and ongoing economic downturn, 2010 was another difficult year for the title industry, according to an A.M. Best Special Report featured in this week's BestWeek U.S./Canada.

Despite the historically low mortgage interest-rate environment, revenues were pressured from the high unemployment rate and tightened credit standards. As such, operating results deteriorated and total industry written premiums declined slightly, year over year, A.M. Best said. Nevertheless, the title insurance industry managed to report an overall approximate 7% increase in surplus, driven mainly by the equity market recovery in 2010.

Also in BestWeek U.S./Canada, it's unlikely workers' compensation writers will see that line of business turn around anytime soon, despite large-scale workers' compensation reform bills enacted in several states this year, said Edward Keane, a senior financial analyst at A.M. Best.

Keane told BestWeek the deterioration that workers' compensation insurance has seen during the past two years will continue at least until mid-2012, unless the economy makes a dramatic improvement before then.

"I think the way things are going, results are going to get worse before they get better," Keane said, adding that for 2011, A.M. Best is projecting a 121.5 combined ratio. Last year, the combined ratio for the line was 118.1.

And with the election for Louisiana insurance commissioner coming up on Oct. 22, Jim Donelon, the Republican incumbent, and Donald Hodge, a Democrat, spoke to BestWeek about their opposing views.

Donelon has been spending aggressively to increase his name recognition and has continued his effort to court new insurers to the state. His opponent has gone on the attack, targeting Donelon for accepting campaign contributions from insurance companies doing business in the state. In fact, if Hodge had his way, he would be the last elected insurance commissioner in Louisiana.

Outer Continental Shelf Lands Act: US Supreme Court Hears Work Comp Arguments

The US Supreme Court heard oral arguments Tuesday in a mater involving the Outer Continental Shelf Lands Act (OCSLA). The court considered when an outer continental shelf worker, injured on land, is eligible for compensation under the Outer Continental Shelf Lands Act (OCSLA) [43 USC §§ 1331-1356 text].
Click here to read the complete report from Jurist.

Issue: When the Outer Continental Shelf Lands Act, 43 U.S.C., §§ 1331-1356, provides that workers are eligible for compensation for "any injury occurring as the result of operations conducted on the outer Continental Shelf," under what circumstances is an outer continental shelf worker (or his heir) who is injured on land eligible for compensation?

Plain English Issue: When the Outer Continental Shelf Lands Act, 43 U.S.C., §§ 1331-1356, provides that workers are eligible for compensation for "any injury occurring as the result of operations conducted on the outer Continental Shelf," under what circumstances is an outer continental shelf worker (or his heir) who is injured on land eligible for compensation?

Tuesday, October 11, 2011

NJ Rating Bureau Seeks 6.9% Workers Compensation 2012 Rate Increase


Also New 2012 Benefit Rates: "As of Jan. 1, 2012, minimum weekly benefits in New Jersey will increase to $216 from the current $211, while the maximum benefit will increase to $810 a week from the current $792."


News Report From Business Insurance Click Here

Childrens Asthma Caused By Pregnant Mothers Occupational Exposure

A recent study of pregnant working women reveals that their exposure to occupational pollution results in their children's development of asthma. The report was presented at the Eastern European Respiratory's annual meeting in Amsterdam. "The results indicate an association between maternal occupational work exposures and the risk of asthma in the child at age 7 years. "

Reuters reported: "In a Danish review of registry data on 45,658 seven-year-old children and their mothers, 18.6 percent of children of mothers who were exposed to low-molecular-weight particles and irritants at work during pregnancy contracted asthma, compared to 16.1 percent of the general population."

See: Mothers work exposure during pregnancy and asthma in their children, a prospective cohort-study; B. H. Christensen, A. D. Larsen, L. R. Skadhauge, A. M. Thulstrup, K. S. Hougaard, K. S. Hansen, M. Frydenberg, V. Schlünssen (Aarhus, Copenhagen, Esbjerg, Gentofte, Denmark)

Sunday, October 9, 2011

Occupy Wall Street And The Future Of Workers Compensation


The same social/economic forces  present on streets of New York City over a century go, are now re-emerging in the birth of the Occupy Wall Street [OWS] movement. The workers, unions and concerned citizens that are are patriotically seeking to again balance the  social/economic system mirror the century old movement and aspirations that its genesis in the Triangle Shirt Waist tragedy. This time the inspiration generated may evolve into a new and creative system to prevent workplace injuries and compensation. The new system maybe target entirely  to safety and prevention rather than solely compensating for injuries and exposures sustained at work.

Over a century ago the failure of employers to protect workers’ health and safety resulted in the tragedy of the Triangle Shirt Waist factory fire. Following that fatal conflagration emanated the promulgation of the modern day workers’ compensation system. It arose out of frustration and anger and was displayed in the street.

The recent efforts to dismantle the national network of workers’ compensation systems through legislation and regulation has effectively rendered the system both costly to navigate and burdensome to obtain benefits. Efforts have been made to make it more difficult to establish a claim. Occupational disease claims once considered compensable are not being denied and litigated on a regular basis.

The present workers’ compensation system has been emasculated by the competing efforts of Industry to reduce access to benefits at earlier stages of the process, and by a transformed industrial/economic system.  Soaring medical costs necessitated by the need to provide personalized medical treatment protocols to cure for complex diseases are raging havoc to the program. Medical  costs have soared and insurance carriers are continuing to raise rates. The 99% that constitutes the core group of the Occupy Wall Street movement is either unemployed or disabled and unable to work.  They seek good jobs which are safe, and medical benefits that are effectively and efficiently delivered.

Counting failure is no longer an option. Jobs that injury workers and a system that delays and denies benefits for injuries and exposures at work, is not beneficial to nation, its Industry and workers. Hopefully American creativity will give birth to a new system, and the Occupy Wall Street movement will be that catalyst. 

For over 4 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.

Workplace Stress Labeled Black Death of the 21st Century

Mental stress in the workplace has been labeled as the Black Death of the 21st Century in a recent report by the Chartered Institute of Personnel and Development. In most jurisdictions, workplace stress is a compensable workers' compensation condition and benefits for temporary disability, medical treatment and permanent disability are available.

Stress is, for the first time, the most common cause of long-term sickness absence for both manual and non-manual employees, according to this year’s Chartered Institute of Personnel and Development (CIPD)/Simplyhealth Absence Management survey.

A link between job security and mental health problems is also revealed in the survey. Employers planning to make redundancies in the next six months are significantly more likely to report an increase in mental health problems among their staff (51% compared with 32% who are not planning redundancies).

For manual workers, stress is now level with acute medical conditions and has overtaken musculoskeletal problems to become the top cause of long-term absence. While among non-manual staff, stress has moved ahead of acute medical conditions.

There is a particular increase in stress-related absence among public sector organisations, with 50% of these respondents reporting an increase. Public sector respondents identify the amount of organisational change and restructuring as the number one cause of stress at work, highlighting the impact of public sector cuts to jobs, pension benefits and pay freezes. Job insecurity is also reported as a more common cause of work-related stress in the public sector this year (24%) compared with last year (10%) and is higher than in the private (14%) and non-profit sectors (14%).
Unsurprisingly, given the significant budget cuts, more than two-fifths (43%) of public sector organisations report they will be making redundancies over the next six months (compared with 17% in the private sector and 24% of non-profits).

Dr Jill Miller, CIPD Adviser, says: “The survey this year shows that stress is for the first time the number one cause of long-term sickness absence, highlighting the heightened pressure many people feel under in the workplace as a result of the prolonged economic downturn.

“Stress is a particular challenge in the public sector where the sheer amount of major change and restructuring would appear to be the root cause. To a large degree, managing stress is about effective leadership and people management, particularly during periods of major change and uncertainty.

“Line managers need to focus on regaining the trust of their employees and openly communicating throughout the change process to avoid unnecessary stress and potential absences. They also need to be able to spot the early signs of people being under excessive pressure or having difficulty coping at work and to provide appropriate support.”

Gill Phipps, HR spokesperson for Simplyhealth, comments: “Stress can often have a negative effect on the workplace, which can result in loss of productivity and disengaged employees. It’s therefore encouraging that almost half of employers have a wellbeing strategy in place, with 73% offering counselling services and a further 69% providing an Employee Assistance Programme. These benefits allow employees access to information and advice on workplace issues, as well as emotional, psychological and personal issues, and can be a huge help during difficult times. Employers need to ensure that benefits such as these are communicated effectively to staff in order for employees to get the most from them.

“With many organisations looking for ways to save money, employee health and wellbeing shouldn’t be over looked and should remain at the heart of the company. Benefits that engage employees do not have to be expensive. By introducing a recognition scheme or equipping leaders with the skills they need to care for the health and wellbeing of their teams, employers can make small, affordable changes that make a positive difference.”

Overall employee absence levels have remained static at 7.7 days per employee per year. Public sector absence has decreased from 9.6 days per employee per year last year to 9.1 days this year and private sector absence has increased from 6.6 days in 2010 to 7.1 days in this year’s survey. The trends in absence levels appear to reflect the relative fortunes of these sectors. Although overall absence levels show little change, the proportion of absence that is stress-related has increased. Nearly four in ten (39%) employers report an increase in stress-related absence, compared to just 12% reporting a decrease.

Other findings include:
• Absence levels are lowest among manufacturing and production organisations at 5.7 days per employee per year (6.9 days in 2010) while among non-profit organisations absence has increased to 8.8 days (8.3 days in 2010)
• Over a quarter (28%) of employers report an increase in the number of people coming to work ill in the last 12 months
• Organisations that were expecting redundancies in the coming six months were more likely to report an increase in presenteeism (32% compared with 27% of those who were not expecting to make further redundancies). They were also less likely to report they had not noticed an increase (48% compared with 66%) and less certain (20% report they didn’t know if there had been an increase compared with 7% of those not making redundancies)
• Organisations that had noted an increase in presenteeism over the past year were more likely to report an increase in stress-related absence over the same period (49% compared to 33% of those who did not report an increase in people coming to work ill)
• Over a quarter of organisations (29%) report they have increased their focus on employee wellbeing and health promotion as a result of the economic context. Over two-fifths of the public sector report an increase in focus compared with just over one-fifth of the private sector.

View the Absence Management survey

For over 4 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.

Thursday, October 6, 2011

Murder at California Company Safety Meeting: 3 Shot Dead

The suspect in the shootings at a company safety meeting at a California quarry that left three dead.  After a massive manhunt, law enforcement sources told NBC affiliate KNTV.

WHO Urges Worldwide Asbestos Ban: Mesothelioma Rates Surge

The World Health Organization urges a worldwide ban on asbestos productions, as deaths from mesothelioma continue to escalate:

"In conclusion, malignant mesothelioma remains a rare form of cancer but the disease is on the rise, probably due to the spread of asbestos use over past decades. Our analysis shows that the disease burden is still predominantly borne by the developed world. However, since asbestos use has recently increased in developing countries, a corresponding shift in disease occurrence is anticipated. Our analysis of the global mortality pattern suggests that there are early indications of this shift and lends support to the call by international organizations to eliminate asbestos-related diseases and discontinue the use of asbestos throughout the world."

Bulletin of the World Health Organization 2011;89:716-724C. doi: 10.2471/BLT.11.086678

Surgery Common for Medicare Patients in Final Year of Life

"Of the 1.8 million Medicare patients who died in 2008, about one-third underwent a surgical procedure the year before their death, according to a new study published online in The Lancet. More than 18% underwent a procedure in the last month of life.

Primary source: The Lancet
Source reference:
Kwok A, et al "The intensity and variation of surgical care at the end of life: a retrospective cohort study" Lancet 2011; DOI:
10.1016/S0140-6736(11)61268-3.

Worker-On-Worker Violence Among Hospital Employees

"Violence toward hospital workers is an internationally recognized occupational hazard. While patients are frequently perpetrators of physical violence, other employees are often responsible for acts of nonphysical violence. However, few hospitals have systems for documenting and monitoring worker-on-worker violence. This study encompassed all incidents of worker on- worker violence recorded by employees in a hospital system database over a six-year period. Incidence rates per 100 full-time equivalents (FTEs) and rate ratios (RR) were calculated by year, hospital, and job category. The majority (87%) of worker-on-worker incidents involved nonphysical conflict. The overall incidence rate was 1.65/100 FTEs, ranging among the six hospitals from 0.54 to 3.42/100 FTEs. Based on multivariate analysis, no single professional group was at increased risk for worker-on-worker violence. Co-worker violence threatens the well-being of hospital employees and should be regularly tracked with other forms of workplace violence so that suitable intervention programs can be implemented and assessed.

The New Danger of Thirdhand Smoke: Why Passive Smoking Does Not Stop at Secondhand Smoke

"Passive smoking exposure is a topic of great concern for public health because of its well-known adverse effects on human health (International Agency for Research on Cancer 2004). Two news articles on this topic were published in the February 2011 issue of Environmental Health Perspectives (Burton 2011; Lubick 2011). Lubick (2011) discussed the global health burden of secondhand smoke, and Burton (2011)emphasized a new and alarming consequence of 
smoking in indoor environments—“thirdhand smoke”—a term first coined in 2006 (Szabo 2006).

"Thirdhand smoke is a complex phenomenon resulting from residual tobacco smoke pollutants that adhere to the clothing and hair of smokers and to surfaces, furnishings, and dust in indoor environments. These pollutants persist long after the clearing of secondhand smoke. They are reemitted into the gas phase or react with oxidants or other compounds present in the environment to form secondary contaminants, some of which are carcinogenic or otherwise toxic for human health (Matt et al. 2011). Thus, thirdhand smoke exposure consists of unintentional intake (mainly through inhalation but also via ingestion and dermal routes) of tobacco smoke and other related chemicals that occurs in the absence of concurrent smoking. Exposure can even take place long after smoking has ceased, through close contact with smokers and in indoor environments in which tobacco is regularly smoked.

Citation: Protano C, Vitali M 2011. The New Danger of Thirdhand Smoke: Why Passive Smoking Does Not Stop at Secondhand Smoke. Environ Health Perspect 119:a422-a422. http://dx.doi.org/10.1289/ehp.1103956


For over 4 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.




Wednesday, October 5, 2011

CMS to Use New Life Tables to Calculate MSP Information

The Centers for Disease Control (CDC) has recently published its 2007 United States Life Tables. Effective October 31, 2011, the Centers for Medicare & Medicaid Services (CMS) will begin referencing the CDC's Table 1: Life table for the total population: United States, 2007, for WCMSA life expectancy calculations. This means that for any newly submitted WCMSA proposal received by CMS' Coordination of Benefits Contractor (COBC), or where any WCMSA case is reopened on or after October 31, 2011, CMS will apply the CDC's 2007 Table 1 for life expectancy calculations.

Now Available On-Line: Complete Letter Report On Incorporating Occupational Information in Electronic Health Records


Incorporating Occupational Information in Electronic Health Records: Letter Report

The National Academies Press

The National Academies Press (NAP) was created by the National Academies to publish the reports issued by the National Academy of Sciences, the National Academy of Engineering, the Institute of Medicine, and the National Research Council, all operating under a charter granted by the Congress of the United States. The NAP publishes more than 200 books a year on a wide range of topics in science, engineering, and health, capturing the most authoritative views on important issues in science and health policy. The institutions represented by the NAP are unique in that they attract the nation’s leading experts in every field to serve on their award-wining panels and committees. The nation turns to the work of NAP for definitive information on everything from space science to animal nutrition.

Author:
David H. Wegman, Catharyn T. Liverman, Andrea M. Schultz, and Larisa M. Strawbridge, Editors; Committee on Occupational Information and Electronic Health Records; Institute of Medicine
84 pages PAPERBACK $35

Each year in the United States, more than 4,000 occupational fatalities and more than 3 million occupational injuries occur along with more than 160,000 cases of occupational illnesses. Incorporating patients' occupational information into electronic health records (EHRs) could lead to more informed clinical diagnosis and treatment plans as well as more effective policies, interventions, and prevention strategies to improve the overall health of the working population. At the request of the National Institute for Occupational Safety and Health, the IOM appointed a committee to examine the rationale and feasibility of incorporating occupational information in patients' EHRs. The IOM concluded that three data elements - occupation, industry, and work-relatedness - were ready for immediate focus, and made recommendations on moving forward efforts to incorporate these elements into EHRs.


Recommendations:

Initial Focus on Occupation, Industry, and Work-Relatedness Data Elements


Recommendation 1: Conduct Demonstration Projects to Assess the Collection and Incorporation of Information on Occupation, Industry, and Work-Relatedness in the EHR

NIOSH, in conjunction with other relevant organizations and initiatives, such as the Public Health Data Standards Consortium and Integrating the Healthcare Enterprise (IHE) International, should conduct demonstration projects involving EHR vendors and health care provider organizations (diverse in the services they provide, populations they serve, and geographic locations) to assess the collection and incorporation of occupation, industry, and work-relatedness data in the EHR at different points in the workflow (including at registration, with the medical assistant, and with the clinician). Further, to examine the bidirectional exchange of occupational data between administrative databases and clinical components in the EHR, NIOSH in conjunction with IHE should conduct an interoperability-testing event (e.g., Connectathon) to demonstrate this bidirectional exchange of occupational information to establish proof of concept and, as appropriate, examine challenges related to variable sources of data and reconciliation of conflicting data.

Recommendation 2: Define the Requirements and Develop Information Models for Storing and Communicating Occupational Information

NIOSH, in conjunction with appropriate domain and informatics experts, should develop new or enhance existing information models for storing occupational information, beginning with occupation, industry, and work-relatedness data and later focusing on employer and exposure data. The information models should consider the various use cases in which the information could be used and use the recommended coding standards. For example, NIOSH should consider how best to use social history templates to collect a work history and the problem list to document exposures and abnormal findings and diagnoses with optional work-associated attributes for possible, probable, or definite causes; exposures; and impact on work.

Recommendation 3: Adopt Standard Occupational Classification (SOC) and North American Industry Classification System (NAICS) Coding Standards for Use in the EHR

NIOSH, with assistance from other federal agencies, organizations, and stakeholders (e.g., Bureau of Labor Statistics, Census Bureau, Council of State and Territorial Epidemiologists [CSTE], National Library of Medicine, National Institute of Standards and Technology, National Uniform Billing Committee, Health Level 7 International [HL7]), should recommend to the Health Information Technology (IT) Standards Committee the adoption of SOC and NAICS to code occupation and industry. Furthermore, NIOSH should develop models for reporting health data from EHRs by occupation and industry at different levels of granularity that are meaningful for clinical and public health use.

Recommendation 4: Assess Feasibility of Autocoding Occupational Information Collected in Clinical Settings

NIOSH should place high priority on completing the feasibility assessment of autocoding the narrative information on occupation and, where available, industry that currently is collected and recorded in certain clinical settings, such as the Dartmouth-Hitchcock health care system, Kaiser Permanente, New York State Occupational Health Clinic Network, Cambridge Health Alliance, and hospitals participating in the National Electronic Injury Surveillance System.

Recommendation 5: Develop Meaningful Use Metrics and Performance Measures

Based on findings from the various demonstration projects and feasibility studies, NIOSH, with the assistance of relevant professional organizations and the Health IT Policy Committee, should develop meaningful use metrics and health care performance measures for including occupational information in the meaningful use criteria, beginning with the incorporation of occupation, industry, and work-relatedness data, and later expanding as deemed appropriate to include other data elements such as exposures and employer.

Recommendation 6: Convene a Workshop to Assess Ethical and Privacy Concerns and Challenges Associated with Including Occupational Information in the EHR

NIOSH should convene a workshop involving representatives of labor unions, insurance organizations, health care professional organizations, workers’ compensation-related organizations (e.g., International Association of Industrial Accident Boards and Commissions, National Council on Compensation Insurance), and EHR vendors to 
.. assess the implications for the patient and clinician of incorporating work-relatedness in the EHR, with respect to workers’ compensation; and
.. propose guidelines and policies for protecting the patient’s non-workrelated health information from inadvertent disclosure and to ensure compliance with the Health Insurance Portability and Accountability Act, workers’ compensation, and other privacy standards.

Enhance the Value and Use of Occupational Information in the EHR


Recommendation 7: Develop and Test Innovative Methods for the Collection of Occupational Information for Linking to the EHR

NIOSH should initiate efforts in collaboration with large health care provider organizations, health insurance organizations, EHR vendors, and other stakeholders to develop and test methods for collecting occupational data from innovative sources. Specifically, NIOSH should evaluate collection methods that involve

.. patient input through mechanisms such as web-based portals and personal health records, and
.. other means such as health-related smart cards, health insurance cards, and human resource systems.

Recommendation 8: Develop Clinical Decision-Support Logic, Education Materials and Return-to-Work Tools

NIOSH, relevant professional organizations, and EHR vendors should begin to develop, test, and iteratively refine and expand

.. clinical decision-support tools for common occupational conditions (e.g., work-related asthma);
.. tools and programs that could be easily accessed for education of patients and caregivers about occupational illnesses, injuries, and workplace safety;
.. training modules for administrative staff to collect occupational information in different care settings; and
.. tools to improve and standardize functional job assessment and return- to-work documentation in EHRs, including standards for the transmission of these forms.

Recommendation 9: Develop and Assess Methods for Collecting Standardized Exposure Data

NIOSH should continue to work with occupational and environmental health clinics and other relevant stakeholders to develop and assess methods for collecting standardized exposure data for work-related health conditions. NIOSH should explore the feasibility of 

.. listing possible or probable exposures in the problem list or elsewhere in the EHR;
.. linking occupational information in the EHR to online occupational, toxicological, and hazardous materials databases, such as the Occupational Information Network (O*NET), the Association of Occupational and Environmental Clinics, and Haz-Map, to enhance diagnosis and treatment of work-related illnesses and injuries; and
.. automatically generating codes for exposures based on narrative text entries.

Recommendation 10: Assess the Impact of Incorporating Occupational Information in the EHR on Meaningful Use Goals

NIOSH, in conjunction with relevant stakeholders (e.g., Public Health Data Standards Consortium, CSTE, Association of State and Territorial Health Officials), should

.. develop measures and conduct periodic studies to assess the impact of integrating occupational information in EHRs, and
.. estimate the economic impact of EHR-facilitated return-to-work practices for both work-related and non-work-related conditions.


Tuesday, October 4, 2011

The Need to Incorporate Occupational Histories Into Electronic Medical Records

Each year in the United States, more than 4,000 occupational fatalities and more than 3 million occupational injuries occur along with more than 160,000 cases of occupational illnesses. The use of electronic health records (EHRs) has increased rapidly since the passage of the 2009 Health Information Technology for Economic and Clinical Health (HITECH) Act. Incorporating patients’ occupational information into EHRs could lead to more informed clinical diagnosis and treatment plans as well as more effective policies, interventions, and prevention strategies to improve the overall health of the working population.

At the request of the National Institute for Occupational Safety and Health, the IOM appointed a committee to examine the rationale and feasibility of incorporating occupational information in patients’ EHRs. The committee focused on the potential benefits of the inclusion of occupational information to individual and public health, current systems that use this information, and technical barriers to incorporating occupational information into the EHR. The IOM concluded that three data elements – occupation, industry, and work-relatedness – were ready for immediate focus. To incorporate these data into EHRs, recommendations were made that include assessment of data collection and incorporation, requirements for storing and communicating occupational information, development of metrics and performance measures, and assessment of privacy concerns, among others.