It's All About the Medical

As the new political and legislative year unfolds, stakeholders are keeping their eye on the prize, medical benefits, in the workers' compensation arena. Recent court decisions continue to emphasize the major significance of medical care and continue to question the ability of the presently crafted system to deliver medical benefits in an efficient and effective manner.

The New Jersey Appellate Court declared that medical providers have standing to seek reimbursement for the full amount of medical fees from a the workers' compensation carrier. Failure to attempt to pay or negotiate an obligation that it denied by implied "refusal to treat" actions resulted in an employer being obligated to pay the full freight, medical bills, and a counsel fee for recovery. Villanueva v. Federal Express, Inc. DOCKET NO. A-4342-06T24342-06T2 Medical liens remain a critical issue in workers' compensation. Legislation is pending to centralize the chaotic and disruptive process.

In another decision the NJ Supreme Court insulated the insurance carrier from an employee's medical malpractice claim, but did not permit the exclusivity doctrine to extend to the workers' compensation medical expert for a deviation from practice action. This dramatically increases the potential recovery for failure to provide adequate care in a workers' compensation claim. Barbara Basil, etc. v. Frank A. Wolf, et al. (A-80-05/A-110-06)

Universal medical remains a critical factor in 2008 politics. While Hilary lost Iowa, the exit poles demonstrate that people who wanted a change voted for Obama. "Obama won huge among those who cared most about change -- 51-19." The New Hampshire poles reflect while health care is a a critical issue to most Americans the major questions remains over what the action should be taken to fix the ailing system.

Compounding the problem is the fact that workers' compensation carriers have continued to shift the burden on to others. Whether it be private carriers or CMS the situation has now been inflamed by those who attempt to legislatively again limit the workers' compensation carriers' responsibility even in contested situations. This short sighted shell game will merely add even more outrage by taxpayers as Medicare fails to be able to pay its own bills.

24 Hour Care Emerging as Good Medicine for the Ailing Workers Compensation System and CMS Conflicts

All the national political candidates are now framing the health care issue as a cure-all to the ailing American system. One must take a look back in time. History is known to repeat itself and turning the page back a decade in time reveals that the Clinton I plan considered a merger between the ailing workers' compensation system and a national health care proposal.

Insurance carriers are now rapidly moving into coalitions to unify under 24 hour care proposals.

The initially proposed Clinton II proposal lacks sufficient detail to determine whether the proposal is yet again included. One would think that the real answer to complexities brought about through reimbursement demand of CMS (Centers for Medicare and Medicaid Services) and long avoided reimbursement issues, would be the merger of both workers' compensation systems (all multiple and unmanageable entities) into a single payer system thus avoid the duplications of costs and litigation expenses. Congress already rejected proposals offered by some interested parties to circumvent the system last legislative term.

Integrated health care would put workers' compensation back on the track of maintaining its philosophical integrity of maintaining the concept 'of "periodic payments" for disability and thus avoiding the "buy outs" of medical services in "lump sum" packages thereby circumventing the periodic payment/wage replacement nature of workers' compensation payments. Injured workers would be able to continue to receive medical monitoring and evaluation through diagnostic care and observation.

The lump sum "buy outs," encouraged by insurance carriers, merely defeat the public policy issues of workers' compensation periodic payments and abrogate their responsibility and the integrity of the workers' compensation system(s) while shifting yet again the responsibility to the taxpayers and an overburdened Medicare/Medicaid system.

A program of 24 hour care will remove from controversy medical coverage and would eliminate unnecessary litigation and administrative costs while keeping benefits to workers on a periodic basis which was the foundation of the workers’ compensation systems.

NJ Ranks 2nd In Asbestos Related Disease

The legacy of asbestos related disease continues in New Jersey. Around the time of World War II New Jersey was an epicenter of the production asbestos fiber. New Jersey was equal distant from the major shipyards on the East Coast and it was in a major railroad network that allowed it to move asbestos product both in raw format and in furnish goods.

Unfortunately, the legacy of asbestos disease continues to cause a former workers and those exposed to products major to his disease and illness. The United States government has reported an increase in asbestos related disease in New Jersey. The state ranks as number two in the nation with reported asbestos related disease.

Asbestos production and consumption between 1970 and 1979, on a national basis, amounted to 1,060,015 metric tons alone. Since his best is related disease has a latency period, of sometimes several decades between the exposure and the disease, the impact is now being reported demonstrating increased incidence of mesothelioma in the United States. There are major uncertainties in predicting mesothelioma incidents and some investigators project the maximum mesothelioma incidents will not occur until about 2020 in the United States.

Hernias: The Next Step in Compensating Workers

One of the major flaws of workers compensation acts is that deny injured workers payments for repaired hernia by establishing specific requirements for compensability.. Historically the workers’ compensation acts denied benefits since employers feared a flood of these occupational claims. In many jurisdictions special notice provisions exist and limitations have been impressed upon permanent disability benefits.

Hernias are very common and over 25% of the population suffer from this condition that involves a weakness in the abdominal wall caused by a variety of events including excessive straining, chronic constipation, obesity, physical activity and persistent coughing.

Surgeons have employed a variety of techniques in an effort to repair these defects. Since late 2005, a widely used procedure has been the insertion of Kugel mesh. This product adhered to the abdominal wall and also allowed the bowl to permit bodily products to flow through the digestive stem without obstruction. Unfortunately this products was defective and caused a rupture and/or a blockage of the intestines. The FDA initiated Class 1 recall of this product commencing on December 2005. (Dec. 22, 2005) The FDA classifies medical device recalls into three levels with the most critical and one the Agency deems that there is a “reasonable probability that the use of or continued exposure to a volatile product will cause serious adverse health consequences or death.”


Despite the inadequate remedy available in most jurisdictions, a remedy now exists for recovery for individual personal injury claimants in both state and federal court which would include negligence, intentional and negligent infliction of emotional distress, violation of state deceptive practices act, breach of of implied warranty of merchantability, failure to war and unjust enrichment. Class actions have been initiated in various states and a Federal Multi-District Litigation (MDL) In re: Kugel Mesh Hernia Patch Litigation, MDL Docket No. 07-1842 ML (D.R.I.). has been established for medical monitoring and economic injury

For further information please contact our office. Jon Gelman http://www.gelmans.com/

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Is The EPA in a Rush To the Botton for Asbestos Experts?

The US EPA (Environmental; Protection Agency) has published an announcement to seek appointments to its Scientific Advisory Panel with asbestos expertise in short course. In a notice published in the Federal Register on October 26, 2007 the US EPA announced a deadline of November 16, 2007.

"The EPA Science Advisory Board (SAB) Staff Office is seeking public nominations of additional experts in the formation of the Asbestos Expert Panel in the areas of biostatistics, statistical modeling, epidemiology, meta-analysis, Bayesian analysis and toxicology of inhaled particles." Nominations may be submitted on line. Any interested person or organization may nominate individuals qualified in the areas of expertise described above to serve on the SAB Asbestos Expert Panel. Nominations may be submitted in electronic format through the Form for Nominating Individuals to Panels of the EPA Science Advisory Board which can be accessed through a link on the blue navigational bar on the SAB Web site at: http://www.epa.gov/sab.

An alarm has been sounded that panels of the EPA have been filled by defense firms. See "Don’t Let Mercenaries Advise EPA on Asbestos Science." David Michaels, who heads the the Project on Scientific Knowledge and Public Policy (SKAPP) and is Professor and Associate Chairman in the Department of Environmental and Occupational Health, the George Washington University School of Public Health and Health Services stated, "One important step in ending corruption in science would be to ban employees of product defense firms from federal science advisory committees. The EPA’s Science Advisory Board Asbestos Panel is a good place to start."

The Bush Administration has tried to undermined te integrity of scientific research in an ongoing program. Public Employees for Environmental Responsibility has claimed that the "EPA is dumbing down its research." “There appears to be a deliberate policy of marginalizing EPA science on issue after issue, so that the agency is becoming increasingly irrelevant to emerging environmental threats,” Ruch testified, pointing to internal surveys showing a growing pessimism by agency scientists about the direction of EPA. “EPA’s public health research agenda has been neutered.”

The selection of quality membership is not one than came be done on short notice. Is the EPA yet again in a rush to the bottom?

Workers Compensation Research Institute Conference 2007 – Boston MA

WCRI has been “researching” or generating data for the Industry for 24 years. The introductory remarks were offered by Robert Steggert, Marriott International, Inc., Chair WCRI Bd of Directors. The central topic of the entire program has been medical costs and how to contain them and the consequential effect upon medical claims, temporary benefits and permanent benenfits.

Preliminary research reports were offered on “The California Reforms; Monitoring Impact” by Richard Victor, WCRI. Victor has testified in the past in support of “reforms” before Congress of the Longshore and Harbor Workers Compensation Act. The data presented was a “snapshot” of data from post the 2003 reforms and preliminary data from recent legislative changes. Basically it demonstrated a significant drop in medical services especially in chiropractic care and physical therapy and physical medicine. The data sources were medical bills, telephone interviews of hundreds of injured workers (650 to 750), access to medical care, utilization and costs and timing.

The bottom line is that WCRI is not releasing final data that they have available for recent reforms. The trend, however, is toward a dramatic decrease in medical care, and the decrease in the numbers of claims filed. While this will probably result in the decrease in the amount of PPD (permanent partial disability) it is not something that they will publicly admit at this time. They do admit that there is decrease in the number of satisfied injured workers who have serious medical conditions.

The research concerning “The Texas Reforms” was obviously apparent. There are no lawyers in that system and the adversarial system for all intents and purposes eliminated. Texas remains as the highest number of chiropractic visits of any State. See the recent blog report.

The “Lessons from a Stable and Lower Cost State” [Oregon] demonstrated a system where the presenters: Bob Shiprack, Orgeon Building and Construction Trades Council and Jerry Keene, defense WC atty, have engineered a system to eliminate lawyers completely by eliminating litigation. Oregon is now 42nd in the country in WC rates and premiums have not gone up for 18 years while costs have declined 50%. The Oregon system allows treating physicians to initially make recommendation concerning PPD which generates a RTW package [Return to Work] by actively allowing the employer to participate in terminating TDB or PPD. The ADR (Alternate Disputes Resolution) program provides for a 10% counsel fee. The EAIPO [employee accident and injury program] allows for a 50% wage subsidy and theoretically acts as a safety net following a “lump sum” payment. Shipwreck’s philosophy is to first “Starve All the Lawyers.” That was accomplished in Oregon. See also another blog report on Oregon.