Workers' Compensation

Tuesday, December 17, 2013

Stunning Loss for Lead Paint Makers in Lawsuit by California Cities and Counties

Lead paint manufacturers were held liable for creating a public nuisance. The Court ordered them to pay $1.1 Billion dollars in damages. The claim was prosecuted by a team of lawyers including those from Motley Rice LLC, Providence RI. Today's post was shared by FairWarning and comes from www.fairwarning.org

Lead paint makers suffered a landmark defeat Monday when a state court judge in San Jose, Calif., ordered the industry to create a $1.1 billion fund to eliminate lead hazards to children in hundreds of thousands of homes in the state.

The decision broke the industry’s perfect record of defending suits by public agencies seeking to extract money for removal of flaking lead paint from older homes and apartments. It marked a huge victory for 10 California municipalities — including Los Angeles County, and the cities of San Francisco and San Diego — that will be able to draw on the fund for home inspections and repairs if the ruling holds up.

In the 114-page decision, Santa Clara Superior Court Judge James P. Kleinberg found three companies—Sherwin-Williams Co., NL Industries, Inc., and ConAgra Grocery Products Co.—guilty of creating a public nuisance by manufacturing and selling lead paint long after learning of its dangers. Kleinberg dismissed claims against two other defendants, ARCO and DuPont, finding there was insufficient evidence that they had sold lead paint for use in California homes.

The ruling drew a scathing response from Sherwin-Williams, NL and ConAgra. “The decision violates the federal and state constitutions,” said spokeswoman Bonnie J. Campbell in a prepared statement. “It rewards scofflaw landlords who are responsible for the risk to children from poorly maintained lead paint.”...

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Click here to read the complete Decision. People v. Atlantic Richfield Company, et al.
Superior Court of California, County of Santa Clara
Case No. 1-00-CV-788657

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Firms to pay $1.1-billion in long-running lead paint lawsuit

In an historic ruling, a California Judge, held the lead paint pigment manufacturers liable for the damage they caused children by placing toxic lead pigment into paint. The companies will be held accountable for the remediation required to make homes and other buildings safe. The case was prosecuted by a team of lawyers, including nationally recognized lead litigation experts, Motley Rice, Providence, RI. This article is shared from the latimes.com

A Northern California judge Monday ordered three companies to pay $1.1 billion to remove lead-based paint from inside California homes, concluding a 13-year legal case.

Santa Clara County Superior Court Judge James P. Kleinberg ruled that ConAgra, NL Industries and Sherwin-Williams created a “public nuisance” by selling lead-based paint for decades before it was banned in 1978, finding them liable for exposing children to a known poison.

The opinion set aside $605 million, or 55% of the judgment, to pay for lead removal in Los Angeles County. The money will go into a fund administered by the state’s Childhood Lead Poisoning Prevention Branch and will pay for inspections and lead abatement on the inside walls of tens of thousands of homes.

“The court is convinced there are thousands of California children in the Jurisdictions whose lives can be improved, if not saved through a lead abatement plan,” the judge’s ruling said.

Local governments sued major paint manufacturers in 2000,...

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Click here to read the complete Decision. People v. Atlantic Richfield Company, et al.
Superior Court of California, County of Santa Clara
Case No. 1-00-CV-788657

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Monday, December 16, 2013

Victims of Misclassification

Misclassification is a major issue for workers' compensation programs. Misclassified workers are those who should be considered employes but have been denied employment status. This post is shared by from the nytimes.com

.LAST month, a Michigan construction worker named Matt Anderson testified in a Senate hearing about being a victim of employee misclassification. Mr. Anderson said that his employer forced him, after six years as an employee, to switch to “independent contractor” status. Though the move stripped Mr. Anderson of basic employee rights and protections, he went along with the change, he said, because “my fellow workers and I had families to support and we saw how bad the economy was.”

Today, millions of American workers in a wide variety of sectors, from construction and trucking to I.T. and professional services, are victims of misclassification, a tactic employers use to avoid paying taxes and providing benefits that are guaranteed to employees, such as workers’ compensation, overtime pay, minimum wage and unemployment insurance.

In 2000, a United States Department of Labor study estimated that up to 30 percent of employers misclassify workers. This year, the Treasury Department’s inspector general concluded that the problem had worsened. Fifteen states have now teamed up with the Department of Labor and the Internal Revenue Service to reduce misclassification through information sharing and joint...

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FDA challenges safety, effectiveness of antibacterial soaps

In many medical treatment scenarios antibacterial soaps have been used and prescribed to treat injured workers. The US FDA has announced that new procedures to substantiate the allegations of the manufacturers as to the effectiveness and safety of these products. Today's post is shared from cidrap.umn.edu

Liquid hand soap

The US Food and Drug Administration (FDA) today proposed a rule that would require companies that make antibacterial hand soaps and body washes to show that the products are safe for long-term use and are better than regular soap and water in preventing illness and the spread of infections.

Under the FDA's proposal, manufacturers that don't demonstrate the safety and effectiveness would be required to reformulate the products or relabel them to remain on the market, the agency said in a statement today. The FDA detailed its proposal in a 130-page report posted in the Federal Register and is taking comments on it over the next 180 days.

Today's rule proposal doesn't apply to hand sanitizers, wipes, or antibacterial products used in healthcare settings.

The FDA's proposed rules are part of a broader effort to weigh the benefit and risks of certain active ingredients in antibacterial products, including triclosan in liquid soaps and triclocarban in bar soaps. Scientists have raised concerns about a possible role of widespread antiseptic use in the development of antibiotic resistance.

The FDA said in...

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Sunday, December 15, 2013

Kansas, The Next Target: Unions expect difficult legislative session in 2014

Today's post is shared from cjonline.com

Negative legislation for workers included changes in workers’ compensation, collective bargaining and project labor agreements, which are agreements that set wages on particular construction jobs, said Andy Sanchez, executive secretary-treasurer of the Kansas AFL-CIO.

The Kansas Legislature passed a number of bills unions believe are unfavorable to workers during the
2013 session, and such actions remind the Kansas AFL-CIO to stay focused on its job in the
Sunflower State: to represent all working people, not just union members.

“I think there’s a lot of negative legislation that’s been passed in the past couple of years regarding unemployment benefits,” Sanchez said. “They reduced the number of weeks and workers comp benefits. We think that’s going to hurt a lot of people and we think it’s already hurting our economy.”

The project labor agreement changes stop government entities from requiring union-level wages on jobs. Unemployment benefits were changed to allow employers to avoid paying benefits if the employee broke even minor rules, such as failing to wear a name tag or being late.

Such anti-worker legislation, Sanchez said, made it even more important for local unions to work together in the political process. At the 24th biennial convention recently, leaders tried to stay ahead of the political process by throwing support behind candidates for the next election, even though it is a year out.

“This...
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Even Superwoman Can Have Back Problems

As workers' compensation professionals we have seen and handled thousands of back injury claims. We can recite the issues, observations, diagnostic findings and surgical reports by memory. The cases are cranked through workers' compensation systems at a steady stream. As we age we all realize that no one is immune from an occupational back disorder. Today's post is shared from the nytimes.com .

There are two kinds of people, my sister says. People with back problems, and people who don’t have back problems yet.

Are you the kind of person who will develop back problems? Take this easy test.

l. Are you alive?

2. Are you getting older?

3. Do you ever pick things up?

If you answered “yes” to any of these questions, back problems are probably in your future. (Eighty percent of adults experience them at some point.)

“But I’m not the kind of person who has back problems!” you protest.

That’s what everyone says. Right up until the moment his or her back goes out.

What did mine in was decades of library work. Hours spent lifting small weights (books). And heavier weights (reference books). Not to mention carrying carton after carton of donated books from the vestibule where patrons dropped them off into the storage room. All of which I handled with the casual assumption that I was, and would always be, Superwoman.

I thought nothing of stooping, hoisting up a mammoth box of books, then lugging it the length of the library.

People tried to warn me. “Watch your back!” a patron would caution as I staggered by with a large box.

“Thanks!” I would respond, while thinking: “Back problems? Me? Not a chance.”

Then one morning I got out of bed and I couldn’t stand up. My back refused to bear my weight. I hit the floor, then crawled back into bed and phoned my sister, who has coped with back problems...

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An Alternative to Giving Up the Car Keys

Occupational therapy is taking a place in the evaluation of an injured worker's ability to drive a vehicle. oday's post is shared from the nytimes.com .

Robert Cullon, 80, has a neurological condition that makes his feet numb and forces him to rely on a walker. He thought he was driving just fine, but his six children were worried.

“They kept saying, ‘Are you sure you’re doing all right?’ ” he said. “They broke me down.”

Instead of handing over his keys, though, Mr. Cullon, who lives in Albany, decided to consult a driving rehabilitation specialist. She rode with him, observing how well he used his feet, how good his reflexes were and how good his range of motion was in his shoulders and neck. Then she pronounced him fit to take the wheel.

His children backed off — and he felt reassured. As the baby boomer generation ages, more older drivers like Mr. Cullon are going to be on the road. In the United States, about 35 million licensed drivers are over 65, an increase of 20 percent since 2003, according to the National Highway Traffic Safety Administration.

While that is a scary thought for some people, the common perception, that the only real choice is between ignoring the difficulties faced by elderly drivers and taking away the car keys, is wrong. “We’re evolving in our thinking,” said Jodi Olshevski, a gerontologist and executive director of the Hartford insurance company’s Center for...

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The Appalling Stance of Rand Paul

"We have gone from a war on poverty in this country to a war on the poor....." Today's post was shared by Steven Greenhouse and comes from www.nytimes.com

I don’t put much past politicians. I stay prepared for the worst. But occasionally someone says something so insensitive that it catches me flat-footed.

Senator Rand Paul, Republican of Kentucky, said Sunday on Fox News: “I do support unemployment benefits for the 26 weeks that they’re paid for. If you extend it beyond that, you do a disservice to these workers.”

This statement strikes at the heart — were a heart to exist — of the divide between conservatives and liberals about whether the social safety net provides temporary help for those who hit hard times or functions as a kind of glue to keep them stuck there.

Whereas I am sure that some people will abuse any form of help, I’m by no means convinced that this is the exclusive domain of the poor and put-upon. Businesses and the wealthy regularly take advantage of subsidies and tax loopholes without blinking an eye. But somehow, when some poor people, or those who unexpectedly fall on hard times, take advantage of benefits for which they are eligible it’s an indictment of the morality and character of the poor as a whole.

The poor are easy to pick on. They are the great boogeymen and women, dragging us down, costing us money, gobbling up resources. That seems to be the conservative sentiment.

We have gone from a war on poverty in this country to a war on the poor, in which poor people are routinely demonized and scapegoated and attacked, and conservatives have led the...

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Improving Value in Medicare with an SGR Fix

Today's post was shared by NEJM and comes from www.nejm.org

Perspective

Gail R. Wilensky, Ph.D.

December 11, 2013DOI: 10.1056/NEJMp1313927

Comments open through December 18, 2013

Article

With the end of another year approaching and a scheduled reduction of 24.4% in physician fees, physicians and policymakers are once again concerned about what the sustainable growth rate formula (SGR) that is used to calculate Medicare's physician fees could mean for physician payment.1 This year, however, is different from most years, when attention has generally been limited to finding ways to postpone the scheduled payment reductions (which have actually been enacted only once). This year, for the first time, bipartisan, bicameral attention is being directed toward developing an alternative reimbursement system that rewards physicians who improve the quality and efficiency of care, rather than just kicking the proverbial SGR can down the road for one more year.

Since 1992, Medicare has been reimbursing physicians according to a fee schedule called the resource-based relative-value scale combined with a spending limit that since 1997 has been called a sustainable growth rate. The relative-value scale was designed to create more rational relationships among the payments for the various services that physicians provide. It sets relative prices on the basis of the amount of work associated with a service, the average practice expenses involved, and a geographic adjustment factor. The relative values are converted to dollars by means of a metric called...

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Why The Roberts Court’s Anti-Consumer Decisions Are Even Worse Than They Seemed

Today's post was shared by Take Justice Back and comes from thinkprogress.org

"Why The Roberts Court’s Anti-Consumer Decisions Are Even Worse Than They Seemed"

Consumer Financial Protection Bureau director Richard Cordray

Consumer Financial Protection Bureau director Richard Cordray

Thanks in part to several recent decisions by the U.S. Supreme Court under Chief Justice John G. Roberts, most consumers are bound to contractual terms that severely restrict avenues for holding corporations accountable. Arbitration clauses, for example, force consumers to enter the private conflict resolution proceedings as an alternative to filing a lawsuit in court. Many arbitration clauses also prohibit “class action” cases, meaning each individual wanting to challenge the same practice must file his or her own separate case even when doing so would be prohibitively expensive.
The Consumer Financial Protection Bureau has a new study out that tells us why these clauses are even worse: Consumers almost never use arbitration. Out of tens of millions of people subject to arbitration clauses in agreements for credit cards, loans, checking accounts, and other financial transactions, only 900 people used arbitration between 2010 and 2012. During that same period, and even with so many contracts prohibiting court challenges, consumers filed more than 3,000 federal court cases on credit card disputes alone, including more than 400 class action lawsuits, each involving potentially millions of consumers, according to CFPB Director Richard Cordray.
“One...

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Annual Disability Statistics Compendium

Today's post was shared by US Dept. of Labor and comes from www.disabilitycompendium.org

The Rehabilitation Research and Training Center on Disability Statistics and Demographics (StatsRRTC) facilitates evidence-based decision making in many different service and policy arenas to benefit persons with disabilities, leading to improved social outcomes.

Large quantities of survey data and administrative records related to people with disabilities are collected each year. Yet these data lack continuity and are underutilized, leading to missed opportunities to improve the programs and policies that advance the lives of people with disabilities. Policymakers, program administrators, service providers, researchers, advocates for people with disabilities, and people with disabilities and their families need accessible, valid data/statistics to support their decisions related to policy improvements, program administration, service delivery, protection of civil rights, and major life activities.

The Center’s goal is to support decision making through a variety of integrated research and outreach activities by (a) improving knowledge about and access to existing data, (b) generating the knowledge needed to improve future disability data collection, and (c) strengthening connections between the data from and regarding respondents, researchers, and decision makers. In this way, the Center hopes to support the improvement of service systems that advance the quality of life of people with disabilities.

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China Coal Mine Gas Explosion Kills Dozens Of Workers

Today's post was shared by Steven Greenhouse and comes from www.huffingtonpost.com

BEIJING (AP) — A gas explosion at a coal mine in western China has killed 21 workers, an official said Saturday.

The miners were earlier reported trapped by the blast in Xinjiang region's Changji prefecture early Friday. Twelve others escaped the explosion.

An official at the Xinjiang region's work safety bureau said that 21 miners were confirmed dead and another one who had been trapped was injured. The official, surnamed Wang, refused to give further details and said the incident was under investigation.

China's mines are the deadliest in the world and suffer frequent explosions, floods and cave-ins.

Such accidents are usually caused by a failure to ventilate methane gas from the shaft.

Safety improvements have reduced the number of deaths in recent years, but regulations are still often ignored.

The official Xinhua News Agency reported that the mine had been ordered to suspend production in June to make safety improvements, citing the State Administration of Coal Mine Safety.

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Labor faces backlash over BART strikes

Today's post was shared by Steven Greenhouse and comes from www.sfgate.com

The two strikes that BART workers staged this year damaged the image of labor unions in California, particularly among middle-of-the-road voters, according to a new Field Poll.

The survey found that 45 percent of respondents said unions do more harm than good, while 40 percent felt they do more good. That's a large shift from when the Field Poll asked the question in March 2011, when 46 percent said unions do more good and 35 percent felt they do more harm.

Among those who described their political ideology as "middle-of-the-road," 47 percent in the new survey said unions do more harm and 36 percent believed the opposite. Two years ago, the numbers were reversed: 45 percent believed unions are generally a force for good, and 34 percent said they aren't.

The latest poll's findings are a warning to unions, said Field Poll director Mark DiCamillo, heading into a year in which voters statewide could be considering a ballot measure that would increase public employees' pension contributions.

"A lot of this is due to the BART strikes," DiCamillo said. "It may have only affected Bay Area commuters, but it was watched around the state."

Ill will in Bay Area

Bay Area voters, despite being more liberal than those elsewhere in California, are now especially unsympathetic to public transit workers unions, the poll found. Although voters statewide support such unions' right to strike by a bare 47-45 percent, a majority of Bay Area respondents said such...

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Your Flu Shot is Waiting

Today's post was shared by RWJF PublicHealth and comes from www.rwjf.org

New reports from the U.S. Centers for Disease Control and Prevention (CDC) show that 39 percent of adults and 41 percent of children six months and older got their flu shots for the 2013-2014 season by early November—a rate similar to flu vaccination coverage last season at the same time.
Other flu shot statistics of note this year include:

Vaccination among pregnant women (41 percent) and health care providers (63 percent) is about the same as it was this time last year
High rates were seen again this year among health care providers including pharmacists (90 percent), physicians (84 percent) and nurses (79 percent), but the CDC reported much lower vaccination rates among assistants or aides (49 percent) and health care providers working in long-term care facilities (53 percent)

“We are happy that annual flu vaccination is becoming a habit for many people, but there is still much room for improvement,” says Anne Schuchat, MD, director of the National Center for Immunization and Respiratory Diseases at CDC. “The bottom line is that influenza can cause a tremendous amount of illness and can be severe. Even when our flu vaccines are not as effective as we want them to be, they can reduce flu illnesses, doctors' visits, and flu-related hospitalizations and deaths.”
Seasonal influenza activity is increasing in parts of the United States. Further increases in influenza activity across the country are expected in the coming weeks. “If you have not...

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Saturday, December 14, 2013

IMR: DWC Get Out of the Way

Today's post was shared by WorkCompCentral and comes from daviddepaolo.blogspot.com

What is the purpose of California's Independent Medical Review?

I have to ask myself this question in light of the most recent proposed changes to Utilization Review/IMR rules published by the Division of Workers' Compensation (a whopping 75 pages long, albeit inclusive of all changes since origin).

What causes me to pause is that the new amendments would allow a medical reviewer to, “issue a determination as to whether the disputed medical treatment is medically necessary based on both a summary of medical records listed in the utilization review determination,” and additional documents submitted by the employee or requesting physician.

In addition, the latest amendments reverse the order in which documentation is mandated - prior versions of the regulations said the claims administrator shall provide the documents. This version provides that the IMR entity shall RECEIVE documents. I don't know why this was done, but to me it seems bass-ackwards.

Finally the pending amendments would allow the DWC administrative director to determine that an IMR decision is not valid because the case should not have been deemed eligible for review in the first place. The rules would say the director can vacate an IMR determination at any point unless an appeal has been filed with the Workers' Compensation Appeals Board or the time to file an appeal has expired.

IMR was statutorily authorized by Labor Code section 4610.5, added via SB 863.

LC 4610.5 provides a list of the documents...

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Congress Moves Closer To Changing How Medicare Pays Doctors

Today's post was shared by Kaiser Health News and comes from www.kaiserhealthnews.org

Key House and Senate committees approved legislation Thursday to repeal the Sustainable Growth Rate, the formula officials use to pay doctors who treat Medicare patients. KHN’s Mary Agnes Carey and Politico Pro’s Jennifer Haberkorn discuss.

>> Click here to download audio of the conversation.

MARY AGNES CAREY: Congress is one step closer to repealing the Sustainable Growth Rate, or SGR, Medicare's physician payment formula. Today key House and Senate committees approved legislation to repeal the formula and replace it with a different way to pay doctors who treat Medicare beneficiaries.
Politico Pro's Jennifer Haberkorn is covering that story and joins us now. Thanks for being with us.
JENNIFER HABERKORN, POLITICO PRO: Thanks so much for having me.
Today the Senate Finance Committee and, in the House, the Ways and Means Committee voted on a bipartisan basis to repeal the Medicare physician payment formula, also known as the SGR. How are those aproaches the same, and how do they differ?
JENNIFER HABERKORN: These bills are very similar. Both of them change the way that doctors are paid under Medicare and eliminate the Sustainable Growth Rate. That's the old formula under which Medicare pays doctors. Neither of them are paid for, which is going to be a significant issue, particularly for Republicans. And one of the big differences in the bills is that there's a permanent fix to a series of provisions that come up...

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