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

Thursday, May 16, 2013

State Law Does Not Preempt State Medical Authorization Criteria

The 5th Circuit Court of Appeals has ruled that The Texas Workers' Compensation Act does not preempt the Medicare Secondary Payer (MSP) 42 U.S.C.§ 1395y(b), as to the state statute's mandated requirement to obtain preauthorization for medical care. 

The Court ruled that.  "...Congress explicitly prohibited workers' compensation and other insurers from subordinating their payment obligations to those of Medicare." "....Congress intended the MSP to complement, not supplant, state workers' compensation rules."

Caldera v. Insurance Co, of the State of PA, ____ F.3rd ___, 2013 WL 1975660 C.A.5 (Tex), 2013. Decided May 14, 2013.

Wednesday, May 15, 2013

The Government Must Lead The Way in Workplace Health and Safety

The government must maintain a strong and credible roll in establishing and maintaining workplace health and safety. The tendency to yield to political and economic interests should avoided.

One area where the government is lacking is the establishment on a complete ban of the
use of asbestos containing products. It is far late in the game, but lives will be saved if in fact asbestos was banned. Additionally, government agencies should be insulated from political  from those interests that would sway them into the opposite area.

"Government has a responsibility to implement effective public health measures that increase the information available to the public and decision makers, protect people from harm, promote health, and create environments that support healthy behaviors. The health, financial, and productivity gains from public health actions benefit individuals and society as a whole."

Click here to read, "Government's Role in Protecting Health and Safety, "Thomas R. Frieden, M.D., M.P.H. N Engl J Med 2013; 368:1857-1859May 16, 2013DOI: 10.1056/NEJMp1303819

Monday, May 13, 2013

The Attack on the Citadel: A Potential National Loss

Workers’ Compensation is conceptually changing, and its extinction is becoming more apparent rather than its transformation. Over the past decades, the “grand bargain” of Workers’ Compensation had evolved to ease the American industrial/manufacturing revolution forward, without burden from the economic complexities and ramifications of the Civil Justice System. 

The Promise” made in 1911, with the adoption of the compensation system, is now past history. The demands of the globalized marketplace have eroded the fortress of workers’ compensation that protected the rights, safety and lives of American workers.

Dynamic developments, occurring at an ever increasing pace, have altered the landscape and accelerated a devastating attack on the citadel of workers’ compensation. The root of the cause is economic.

Friday, May 10, 2013

OSHA's Intent Is Not To Preempt State Tort Law Claims by the HazCom Standard

My thanks to attorney, Steven H. Wodka of Little Silver, NJ, for sending this information:


"Those of you who handle toxic torts may have seen defense motions to dismiss your
clients’ failure to warn claims based on the argument that such claims are preempted by OSHA’s hazard communication standard.  Their argument is based on an unpublished NJ Appellate Division decision, Bass v. Air Products & Chemicals Inc., et al., Docket No.  A-4542-03T3, decided May 25, 2006.

Forecasters Predict Increased Hurricane Activity Raising Concern for Worker Saftey

On the heels of last year's Superstorm, Hurricane Sandy, some of the nation's top storm forecasters are now predicting yet another year of above average storms. The dire prediction raises concerns over the prospects on ensuring worker safety, and whether the workers' compensation system is capable of delivering benefits in an efficient and effective manner during recurrent natural disasters.


"We anticipate that the 2013 Atlantic basin hurricane season will have enhanced
activity compared with the 1981-2010 climatology. The tropical Atlantic has anomalously warmed over the past several months, and it appears that the chances of an El NiƱo event this summer and fall are unlikely. We anticipate an above-average probability for major hurricanes making landfall along the United States coastline and in the Caribbean. Coastal residents are reminded that it only takes one hurricane making landfall to make it an active season for them, and they need to prepare the same for every season, regardless of how much or how little activity is predicted."

Read the complete report: "EXTENDED RANGE FORECAST OF ATLANTIC SEASONAL HURRICANE ACTIVITY AND LANDFALL STRIKE PROBABILITY FOR 2013"

Thursday, May 9, 2013

Protecting Healthcare Workers is a Goal of NIOSH

In the US there are over 14 million healthcare workers and many are not adequately protected from hospital and nursing home infections. Now NIOSH is going on the education offensive to alert healthcare workers on how to use respiratory protection at work.

Over the last few months, I have seen first hand how hospitals struggle to stop the spread of Staph
and Strep infections to little avail.Many healthcare professional don't know how to properly take an efficient culture while swabbing the patient's skin leading to alarming rates of incorrect diagnosis and frantic use of high powdered antibiotics that merely stress that patient more.

"Poor compliance with respiratory protection requirements and proper use recommendations in healthcare settings remains a vexing problem."

Click here to read the complete NIOSH announcement.

Wednesday, May 8, 2013

New DSM Criteria Manual Challenged by Expert for Lack of Validity

Setting standards for the assessment of psychiatric criteria in workers' compensation claims has been a major challenge. Subjective criteria has been difficult for the experts, evaluators and courts to yield an objective analysis.

With a new version of the Diagnostic and Statistical Manual of Mental Disorders, or
D.S.M., to be published a new challenge to the assessment tool has been made.

"Just weeks before the long-awaited publication of a new edition of the so-called bible of mental disorders, the federal government’s most prominent psychiatric expert has said the book suffers from a scientific 'lack of validity.'"

Read the complete article "Psychiatry’s Guide Is Out of Touch With Science, Experts Say" NY Times

Tuesday, May 7, 2013

Oklahoma Opt-Out Workers' Compensation Law Enacted


Governor Mary Fallin today signed into law Senate Bill 1062, a bill that reforms the workers’ compensation system in Oklahoma by removing it from the judicial system and making it an administrative process. The bill, by Senate President Pro Tem Brian Bingman and House Speaker T.W. Shannon, seeks to reduce costs for businesses by providing for an opt-out of the program.

It moves the state from a court-based workers’ compensation system to an administrative system, allowing for more timely processing of claims and reducing the adversarial nature of the process for both workers and employers. 

“For decades, Oklahoma has had one of the most expensive and inefficient workers’ compensation systems in the country, a constant obstacle for business owners looking to expand operations or create more jobs,” Fallin said.  “Senate Bill 1062 completely overhauls our flawed workers’ comp system, dramatically reducing the costs to businesses and freeing up private-sector resources that can be invested in jobs rather than lawsuits. Additionally, our reforms ensure injured workers are treated fairly and given the medical care needed to return to work.  This is an important pro-growth policy that will help us attract jobs and build a stronger and more prosperous Oklahoma.  My thanks go out to Pro Tem Bingman, Speaker Shannon and the entire Legislature forsending this bill to my desk.”

Monday, May 6, 2013

Private Sector Workers Compensation Costs Down For 7th Year

Professor Emeritus John F. Burton Jr., reports in his latest research report that private sector costs for workers' compensation costs are down for the 7th year straight. This gives rise to the next question as to whether workers' are just being denied workers' compensation benefits and the system has eroded.

"Issue 6 of the Workers’ Compensation Resources Research Report (WCRRR) examines
Professor Emeritis
John F. Burton Jr.
the employers’ costs of workers’ compensation. Part I relies on data from the Bureau of Labor Statistics (BLS) to examined national trends from 1986 to 2012. For private-sector employers, costs dropped for the seventh year in a row and represented 1.80 percent of payroll in 2012, the lowest figure since 1986. For all non-federal employers, costs of workers’ compensation dropped to 1.79 percent of payroll in 2012, the lowest figure since the data series began in 1991.

"Part II examines BLS data on the differences in the employers’ costs of workers’ compensation due to factors such as geographical location, industry, union status, and occupations of the firm’s employees. The variations of workers’ compensation costs among industries were significant in 2012, ranging from 4.47 percent of payroll in construction to 0.63 percent of payroll in the financial industry.

Sequester Whacks Injured Workers

Today's post comes from guest author Jay Causey from Causey Law Firm.

Injured workers with claims under the Longshore & Harbor Workers Act and the Defense Base Act, who are awaiting hearings by federal administrative law judges (ALJs), have now had their cases seriously impacted by the Sequester.  The Office of Administrative Law Judges (OALJ), with District Offices in seven cities including San Francisco, schedules hearings not only in those cities but in other venues in the District.  The San Francisco office schedules hearings in San Diego, Seattle, Portland, Denver and elsewhere, and so-called Calendar Calls are scheduled in those cities by traveling ALJs. 
The Sequester has caused the San Francisco office...to cancel all travel by ALJs until at least October, when a new fiscal year for OALJ may refresh its travel budget.
The Sequester has caused the San Francisco office, which covers a larger geographical territory than any other, to cancel all travel by ALJs until at least October, when a new fiscal year for OALJ may refresh its travel budget.  No further Calendars in outlying cities will be scheduled until at least October.  In the meantime, the parties may agree to bring their witnesses to San Francisco for hearings (or agree to a telephonic hearing – rarely a good alternative), but both sides must to agree to the alternative process.  The cost of bringing the claimant and expert witnesses to San Francisco, even if jointly agreed to, makes that a mostly unrealistic option.
The cancellation of travel for ALJs makes the system even more unfair to claimants.

Stay Sun Alert - Subscribe to UV Alert

Many workers suffer from compensable diseases caused by sun exposure. As the world's ozone layer continues to be deleted, More and more workers wo who have exposed to the sun on their jobs are suffering from sun induced illness. Prevent this contrition by staying alert as to the amount of Ultra-Violet Radiation (UV) and subscribe to UV Alert.


Every day the National Weather Service calculates the predicted UV Index for the next day in each area of the U.S. This UV Index forecast is published in mid-afternoon (Eastern time zone) at the EPA website. The ozone layer shields the Earth from harmful ultraviolet (UV) radiation.

Protecting Healthcare Workers

Kerri A. Thom, MD, MS, Assistant Professor of Medicine at the University of Maryland School of Medicine, puts a spotlight on the healthcare environment and its role in spreading bacteria that cause healthcare-associated infections. She discusses this topic in context of the Society for Healthcare Epidemiology of America(SHEA) spring meeting, where professionals in healthcare epidemiology and infection prevention are focusing on evidence-based research and policies to further identify the impact of the healthcare environment on healthcare-associated infections.

"At the meeting, several sessions examine motivation and behavior change techniques that
can optimize the efficacy of a good old-fashioned cleaning and disinfection. While hospital cleaning staff often focus on the disinfection of patient rooms’ bathrooms, other near-patient surfaces and equipment can be overlooked. SHEA believes educating staff on the role of the healthcare environment and optimizing worker performance can be one of the most effective measures to adequately disinfect patient rooms.

Saturday, May 4, 2013

OSHA Moves to Protect Temporary Workers

OSHA launches initiative to protect temporary workers from injuries at work.

The U.S. Department of Labor's Occupational Safety and Health Administration today announced an initiative to further protect temporary employees from workplace hazards. The announcement was made during a program at the department's headquarters marking Workers' Memorial Day – an annual observance to honor workers who have died on the job and renew a commitment to making work sites across the country safer.

Dr. David Michaels


OSHA today sent a memorandum to the agency's regional administrators directing field inspectors to assess whether employers who use temporary workers are complying with their responsibilities under the Occupational Safety and Health Act. Inspectors will use a newly created code in their information system to denote when temporary workers are exposed to safety and health violations. Additionally, they will assess whether temporary workers received required training in a language and vocabulary they could understand. The memo, which can be viewed at http://s.dol.gov/ZM, underscores the duty of employers to protect all workers from hazards.

"On Workers' Memorial Day, we mourn the loss of the thousands of workers who die each year on the job from preventable hazards," said Dr. David Michaels, assistant secretary of labor for occupational safety and health. "Many of those killed and injured are temporary workers who often perform the most dangerous jobs have limited English proficiency and are not receiving the training and protective measures required. Workers must be safe, whether they've been on the job for one day or for 25 years."

Friday, May 3, 2013

Workers' Compensation Has Become A Territorial Fight

As the nation's economy continues to struggle for upward movement, workers' compensation has become a political battlefield. Professional athletes have become a target as states attempt to pass legislation to restrict claims from visiting athletes.

"Controversial legislation that would restrict most professional athletes from out-of-state
teams from filing claims in California workers' compensation courts won overwhelming approval Thursday in the state Assembly.
Despite aggressive lobbying by professional football players and other athletes, the bill, AB 1309, passed 61 to 4. The measure now goes to the state Senate.
"Our workers' compensation system has been increasingly exploited by out-of-state professional players at the expense of California teams and all California businesses," said the bill's author, Assemblyman Henry T. Perea (D-Fresno). "The flood of claims are raising insurance costs for all employers."
Read more about "athletes" and workers' compensation

Tuesday, April 30, 2013

Hyde Park Corner - A New Place on Facebook for Discussions

Congratulations to my good friend, Stephen Embry, on the inauguration of his new page on Facebook to post  discussions about current topics, including workplace safety. His new page is called The Hyde Park Corner.

To commemorate the inauguration of The Hyde Park Corner,
I stopped by in London today to see and
hear what was happening actually at The Hyde Park Corner. 


I must say that things are a lot more significant and current on Steve's page. I would encourage you to visit it in the near future.


Monday, April 29, 2013

Intoxication, Work, And Workers' Compensation Don’t Mix

Today's post comes from guest author Paul J. McAndrew, Jr. from Paul McAndrew Law Firm of Iowa.
Most of us know that, for both professional reasons and in the interest of safety, remaining sober while on the job is essential. However, it is important to also recognize that workers who are intoxicated at the time that they sustain a work injury stand a far lower chance of ever collecting workers’ compensation.
If the blood test shows the presence of alcohol or drugs, odds that the employee will be able to collect workers’ compensation are much lower.
This is because of the intoxication defense: if an employer can prove that intoxication was the cause of the workers’ injury, then they employer is not required to provide workers’ comp for that injury. Now, there are some notable

Thursday, April 25, 2013

Returning to Light-Duty Work - What, When, How and Why


Women making airplane wings, circa 1920. Seattle Municipal Archives
Today's post comes from guest author Kit Case from Causey Law Firm of Seattle, WA. Light duty issues can be a tricky area of workers' compensation law since most workers' compensation programs do not provide for a trial return to work period.

The Washington State Department of Labor and Industries encourages employers to offer light-duty positions to their injured workers - - the suggestion is written across the top of every time loss compensation order - - as early after an injury occurs as possible.  

The employer of an injured worker can offer shorter hours, a transitional job/job modifications or a new position entirely.  The pay scale can be at any rate at or above minimum wage.  In order to qualify as a valid job offer, a description of the position must be approved by a physician.  Once approved, the job must be offered, in writing, to the injured worker with specific details including the work schedule, rate of pay and person supervising the work.

If an injured worker declines a valid job offer, time loss compensation will end. 

If an injured worker declines a valid job offer, time loss compensation will end.  If the employer offers a return-to-work position that pays less than the workers’ time loss compensation rate, the worker will likely be eligible for partial compensation to make up the difference.  This benefit, called Loss of Earning Power (LEP) compensation, is based on a comparison of the pre-injury wage less the actual wages earned through return to work and pays 80% of the difference, up to a state-wide cap on compensation or the time loss compensation rate, whichever is less.

Tuesday, April 23, 2013

NJ Governor Christie to Propose Workers' Compensation Reform

The NJ Workers' Compensation system is in for a change. Governor Chris Christie of NJ is taking aim at reforming the NJ system.

In the past, unsuccessful major attempts to reform the State's workers' compensation
system have come from interest groups from outside of the State, ie. 1980's national insurance Industry (AIA) concerns. Now the focus is changing, and the proposals for reform will be coming from the the State's Chief Executive, a major coalition builder who has successfully tackled major legislative changes during his term in office.

Historical efforts on workers' compensation reform in NJ have been:
-1974 Following the NJ State Commission on Investigation "Report of the NJ Workmen's Compensation System"
-1980's Following the WCRI Study attempt to adopt AMA Medical Guidelines
-1998 An attempt to increase the calculation of the State Average Weekly Wage, Dependency      Benefits and Legislative Oversight
-2008 Following the NJ Star Ledger expose ("How NJ Fails Workers") on temporary and medical benefit issues

“'We’re going to be coming up with a package of proposals that’s going to work both sides of that,' Christie told a caller on his monthly NJ 101.5 FM radio show tonight.

'The employers who may not be stepping up and meeting their obligations and also the employees who are committing fraud on the worker’s comp system,' he said."

Click here to read the complete article:  Christie to present plan to reform N.J. worker's compensation system (NJ.com)

Saturday, April 20, 2013

NASA: Safety Is Prime for Today's Launch of Antares

NASA is preparing for the launch of Orbital's Antares™ A-ONE Test Flight Mission scheduled for today at 5pm. I was a guest of NASA this week and toured the facility including the launch pad. Safety is prime for NASA and its corporate affiliates like Orbital.

Launching a space mission is a complex and massive operation. The balancing of public and mission safety concerns is extremely important. Besides the ordinary employee safety issues such as: hearing and eye protection, radio transmission frequency triggers and fire, NASA must identify and protect the public.


Unlike some other nations, the US launches its rockets near the ocean, and strictly monitors their trajectory. Any deviation from the planned flight path, ie. jeopardizing public safety, would result in the the destruction of the rocket over an isolated over-water area.

Today's planned launch will be televised on NASA TV and cane be viewed from a large area on the US Mid-Atlantic seacoast. 

Employer Fraud: Safety Manager Conceals Employee Injuries for Bonus


On Apr. 11, 2013, Walter Cardin, 55, of Metairie, La., was sentenced to serve 78 months in prison followed by two years of supervised release, by the Honorable Curtis L. Collier, U.S. District Judge. Cardin was convicted at trial in November 2012, after being charged by a federal grand jury with eight counts of major fraud against the Tennessee Valley Authority (TVA), an agency of the United States.

The indictment and subsequent conviction of Cardin was the result of a six-year
investigation conducted by the TVA-Office of Inspector General (TVA-OIG). The trial revealed that Cardin, as safety manager for the Shaw Group (formerly Stone & Webster Construction) at TVA’s Brown’s Ferry Nuclear site in Athens, Ala., provided false and misleading information about injuries at that facility as well as TVA’s Sequoyah Nuclear site in Soddy Daisy, Tenn., and TVA’s Watts Bar Nuclear site near Spring City, Tenn. 

The Shaw Group had a contract with TVA to provide maintenance and modifications to the three facilities and to provide construction for the Brown’s Ferry Unit Number 1 reactor restart. Cardin generated false injury rates which were used by the Shaw Group to collect safety bonuses of over $2.5 million from TVA. As part of a civil agreement filed with the United States in 2008, the Shaw Group paid back twice the amount of the ill-gotten safety bonuses.

Friday, April 19, 2013

US EPA Reports: Better Planning, Execution and Communication Could Have Reduced the Delays in Completing a Toxicity Assessment of the Libby, Montana, Superfund Site

The US EPA could have done better in handling the asbestos exposure site in Libby Montana according to a report issued yesterday by the US EPA's Inspector General. 


"U.S. Environmental Protection Agency (EPA) action officials did not complete  planned corrective actions under its Libby Action Plan in a timely manner. This occurred because the scope of the work was larger than originally thought; there was no established charter; and there were contracting delays, competing priorities, unanticipated work, and poor communication with stakeholders. Consequently, the Agency has twice revised its estimates for completing actions in response to our December 2006 report. 

"The toxicity assessment is one of two components (an exposure assessment 
being the other) that makes up the health risk assessment for determining 
cleanup levels in Libby. In December 2011, EPA informed us that the health 
risk assessment would be substantially delayed. As a result, the Agency’s final 
determinations that the completed and ongoing cleanup actions are sufficient to 
address the health risks from site contamination have been delayed from 2 to 6 
years, depending on the studies being performed. This is a significant concern, 
considering that the EPA Administrator declared a public-health emergency at 
the Libby site in 2009 and the Agency has spent over $400 million on cleanup. 
Communications about delays in completing Libby Action Plan items, and the 
reasons for those delays, were not always timely or clearly communicated to 
stakeholders; and EPA officials failed to update the Agency’s follow-up system 
or notify the Office of Inspector General (OIG) about known delays until 
planned corrective actions under the Libby Action Plan could not be met.

Saturday, April 13, 2013

Occupational Illnesses Continue to Unnecessarily Kill Workers

A recent Letter to the Editor in the New York Times focuses on the fact that US workers continue to suffer from fatal occupational diseases and illness that are avoidable. 

Commenting on the feature article exposing the need to great enforcement of safety measures by OSHA, Tom O'Connor, Executive Director, National Council for Occupational Safety and Health, stated: "While nearly 5,000 workers die on the job each year, an estimated 50,000 more develop an occupational illness. Yet despite this toll, the federal government sits on rules that could help prevent workers from developing occupational illnesses. A proposed rule that would prevent workers from being exposed to dangerous levels of silica dust on the job has remained mired at the Office of Management and Budget for more than two years."

Click here to read the entire letter: LETTER Rules on Worker HealthTom O'Connor Should Your Job Kill You?

Read more about "occupational illness" and workers' compensation:
Mar 18, 2011
Fire fighters in Canada are supporting legislation that would establish a legal presumption that breast cancer is an occupationally related illness. The legislation also creates a presumption that 3 other cancers (skin, prostate ...
Mar 31, 2013
A just published study reports that only 25% of occupational disease claims are covered by US workers' compensation programs. Click here to read the entire report: Economic Burden of Occupational Injury and Illness in the .
Mar 05, 2010
Alice in Wonderland has been released in the movie theaters today. The National Institute of Occupational Safety and Health (NIOSH) has been quick to remind us of the Mad Hatter and mercury exposures. "Society has made ...
Mar 17, 2011
In a series of articles, Celeste Monforton discusses the absence in the U.S. of a comprehensive system for surveillance of occupational illnesses sand disease. Citing the the U.S. Surgeon General in 1965 that..."it is almost ...