Congressional Committee Moves to Reopen Victims Compensation Fund

Legislation has advanced in the US Congress to reopen the Victims Compensation Fund for those who may have been injured in the 9/11 attack.

NY Congresswoman Carolyn Maloney (D-NY) has sponsored H.R. 847 "James Zadroga 9/11 Health and Compensation Act of 2009." The bill amends the Public Health Service Act to establish within the National Institute for Occupational Safety and Health the World Trade Center Health Program (WTC program) to provide:

(1) medical monitoring and treatment benefits to eligible emergency responders and recovery and cleanup workers who responded to the World Trade Center terrorist attacks on September 11, 2001; and
(2) initial health evaluation, monitoring, and treatment benefits to residents and other building occupants and area workers who were directly impacted and adversely affected by such attacks. Requires the WTC program administrator to:
(1) implement a quality assurance program;
(2) establish the WTC Health Program Scientific/Technical Advisory Committee;
(3) establish the WTC Responders Steering Committee and the WTC Community Program Steering Committee;
(4) provide for education and outreach on services under the WTC program;
(5) provide for the uniform collection of data related to WTC-related health conditions;
(6) conduct research on physical and mental health conditions that may be related to the September 11 terrorist attacks; and
(7) extend and expand arrangements with the New York City Department of Health and Mental Hygiene to provide for the World Trade Center Health Registry. Authorizes the administrator to make grants to the Department to address mental health needs relating to the terrorist attacks.
Amends the Air Transportation Safety and System Stabilization Act to:
(1) make individuals eligible for compensation under the September 11 Victim Compensation Fund of 2001 for harm as a result of debris removal; and
(2) extend the deadline for making a claim for compensation.

The original legislation was a controversial benefit program that was to supplement applicable workers' compensation benefits. It did not provide for medical monitoring as well as treatment of latent medical conditions.

Asbestos Production Slows As The Economy Lags

The sluggish economy is deemed to be the cause of lower asbestos production. Foster Wheeler Ltd., a producer of asbestos, has reported that it's second-earnings profit has dropped 24% based on lower sales of asbestos and lower demand for engineering and construction projects.

Asbestos, a known carcinogen, has yet to be banned from production in the United States. For decades it has been mined and used in products including insulation, floor tile, construction products and gaskets. It has been recognized as the sole cause for mesotheloma, a rare, but fatal, cancer. Asbestos exposure a significant risk factor in lung, gastrointestinal and other malignancies.

Since the latency period of asbestos related disease is 10 to 15 or more years after exposure, the drop in asbestos production may signal that asbestos related disease will also decline in future decades. In most jurisdictions, workers' compensation systems, have struggled to provided benefits to workers who have been exposed to asbestos fiber even though the onset of the occupational disease did not manifest for decades following exposure to the natural occurring fiber.

For many years advocacy groups have fought for a complete ban on the use of asbestos products in the United States. Legislation is currently remains pending in Congress.

Major Insurance Companies Still In A Downward Spiral

Two major insurance carriers have shown continued losses. AIG and Travelers are both facing difficult situations economic issues..

On Friday Moody's Investors Services downgraded two American International Group Inc. (AIG) lending united to near "junk" status. Other rating companies also lowered their ratings of AIG to Baa3.

This follows news last week that Travelers Insurance Company Inc.'s (Travelers) 2nd quarter income fell 21% which resulted in lower income and higher claims costs. Travelers is the second largest insurer after AIG. The revenue decrease at Travelers was reported to be 2.1% of $6.16 Billion.

As unemployment remains static or increases, fewer people are working, and premium revenues will continue to decline.

Working While Texting: The New Workers Compensation Defense

New technology encroaching upon the workplace has been both a help and a hindrance. Recent studies add to the growing volumes of data reporting that the use of cell phones while driving provides a significant distraction and increases the risk of accidents at alarming rates.

A recent study by the Virginia Tech Transportation Institute (VTTI) has adds to mounds of data that the use of cell phone technology is a driving distraction. The study combined more than 6,000,000 miles of driving and causally relates the use of cell phone technology and the increased risk of motor vehicle accidents. The study concluded that merely dialing a cell phone while driving produces an accident risk of 2.8 times as high as a non-distracted driver. The use of a heavy vehicle or truck, normally used in commercial situations, increased rate of a risk of crash of 23.2 times as high as the non-distracted driver. The report concludes that “…..texting should be banned in moving vehicles for all drivers. “

“Given recent catastrophic crash events and disturbing trends, there is an alarming amount of misinformation and confusion regarding cell phone and texting use while behind the wheel of a vehicle. The findings from our research at VTTI can help begin to clear up these misconceptions as it is based on real world driving data. We conduct transportation safety research in an effort to equip the public with information that can save lives,” says Dr. Tom Dingus, director of the Virginia Tech Transportation Institute.

Workers’ compensation is based upon a no-fault system, and few defenses exist that bar recovery. Defenses such as intoxication or working under the influence of controlled dangerous substances may limit or bar recovery in many jurisdictions. Generally, if an accident or injury was the sole or proximate cause of the prohibitive activity, recovery will be denied.

Public outrage as to the findings of the VTTI study has quickly generated into proposed Federal legislation, by Sen. Charles E. Schumer (D. N.Y.) and three other Democrats, to ban the use of cell phones for texting while driving. Only 14 States have enacted progressive legislation to outright ban texting while driving.

Accidents and injuries at work have a devastating economic impact on a State’s economy. The study will assist State legislatures and courts to recognize that manual manipulation of phones, such as dialing and texting of the cell phone, results in a substantial increase in the risk of being involved in a safety critical event. Workers’ compensation benefits may be prohibited by statute for working while texting (WWT) . In the alternative Courts, may merely consider such events as a risk not associated with the employment, ie. a communication not related to employment or an employer prohibited activity, or, in some instances, a mere deviation from employment. Audits of wireless communication records will assist in providing a data trail.

The Center for Truck and Bus Safety at VTTI, by publishing the study, has made a significant contribution to workplace safety. The message has now been sent for action to be taken to eliminate this safety risk at work.

President Barack Obama announced his intent to nominate David Michaels Assistant Secretary for the OSHA

President Barack Obama announced his intent to nominate David Michaels, Assistant Secretary for the Occupational Safety and Health Administration, Department of Labor.

David Michaels, PhD, MPH, is an epidemiologist and is currently Research Professor at the Department of Environmental and Occupational Health at the George Washington University School of Public Health and Health Services. He has conducted numerous studies of the health effects of occupational exposure to toxic chemicals, including asbestos, metals and solvents, and has written extensively on science and regulatory policy.

From 1998 to 2001, Dr. Michaels served as Assistant Secretary of Energy for Environment, Safety and Health, responsible for protecting the health and safety of workers, neighboring communities and the environment surrounding the nation’s nuclear weapons facilities. In that position, he was the chief architect of the historic initiative to compensate nuclear weapons workers who developed occupational illnesses as a result of exposure to radiation, beryllium and other hazards.

In 2006, Dr. Michaels received the American Association for the Advancement of Science’s Scientific Freedom and Responsibility Award for his work on behalf of nuclear weapons workers and for his advocacy for scientific integrity. He is also the recipient of the 2009 John P. McGovern Science and Society Award given by Sigma Xi, the Scientific Research Society.

David Michaels, former Assistant Secretary of Energy for Environment, Safety, and Health during the Clinton administration contends that corporations hire their own scientists to skew the safety records of certain products. He recently spoke at an event was hosted by the Center for American Progress in Washington, DC. The speech was broadcast by C-Span TV. in 2006. Michael authored Doubt is Their Product: How Industry's Assault on Science Threatens Your Health.

Nationwide Certification Denied in UPS Discrimination Case

The US 3rd Circuit Court of Appeals refused to certify a national class of UPS employees who alleged a pattern or practice of unlawful discrimination based upon the American Disabilities Act (ADA).

The plaintiffs had alleged that UPS, "...as a matter of companywide policy, refuses to offer any accommodation to employees seeking to return to work with medical restrictions, effectively precluding them from resuming employment at UPS in any capacity because of their impaired condition." The Plaintiff's definition of the class included, "...Those persons throughout the United States who: (i) according to the records of UPS, its agents and contractors have been employed by UPS at any time since May 10, 2000, including those employees absent from work and receiving either workers' compensation or short or long term disability insurance benefits; and (ii) have been absent from work because of a medical impairment; and (iii) are disabled as defined under the Americans with Disabilities Act (ADA); and (iv) have attempted to return to work or continue to work at UPS or have submitted to UPS a medical release that permits the employee to work with restrictions and conditions, or have been disqualified by UPS from returning to work; and (v) were harmed as a result of UPS's policies, practices and procedures that control reentry into the workplace or otherwise govern the making of reasonable accommodations under Title I of the ADA to employees in UPS's workforce."

The Court reasoned, in denying the application, that, "...claims cannot be adjudicated within the parameters of Rule 23 such that a determination of classwide liability and relief can be reached. Rather, establishing the unlawful discrimination alleged by plaintiffs would require determining whether class members are "qualified" under the ADA, an assessment that encompasses inquiries acknowledged by the District Court to be too individualized and divergent with respect to this class to warrant certification under Rule 23(a) and (b)(2)."

Hohider v. United Parcel Service, Inc., ____F.3rd____, 2009 WL 2183267 (3rd Cir. 2009) Decided July 23, 2009

Jury Awards $70,000 to Injured Employee For Discrimination & Retaliation

A corrections officer in Hudson County NJ was awarded $70,000 by a jury for violation of her workers' compensation rights and discrimination charges flowing from her accident at work.

The employee, who had suffered an injury to her knee and subsequent surgical intervention, received a disciplinary notice from her employer alleging that she was "faking her injuries."

NJ law permits a common law action for wrongful discrimination based upon an alleged retaliatory firing attributed to the filing of a workers' compensation claim is also available to an employee. The judicial remedies include: loss of wages and reinstatement of employment, as well as other compensatory and punitive damages.