The Great Health Care Debate

As the US Senate signals the beginning of the floor debate of the proposed health care legislation, a new chapter is about to be written in the Workers' Compensation medical benefit delivery system. If any of the five proposed bills, or prodigies of any, are enacted into law the nation's workers' compensation will be impacted.

The health care delivery system of the nation's compensation system is a patchwork of acts enacted in 1911 that have changed little since then. While modern medical science has move at the speed of light to develop new methods for diagnosis and new modalities for treatment, workers' compensation has stood still like a classic picture in the museum of time. While the US compensation system was crafted in 1911 to provide immediate and remedial medical care for industrial accidents in a swift and summary manner, the recognition of occupational diseases, and their enormous complex etiology, has been met by what some critics observe as a "deny and delay" strategy by Industry resulting in a failure of the system to provide benefits in an efficient and effective manner. Compounding the issue is the massive maize of collateral benefits of global insurance systems that have now resisted inappropriate benefit shifting to them and are mandating reimbursement for improper initial payments in the past and protection from looting in the future, ie. The Centers for Medicare and Medicaid Services.

The workers' compensation stakeholders have been silent participants in the drafting of the new health care legislation and have sat quietly on the sidelines. Only on the eve of the US Senate Finance's Committee's debate on the Rockefeller Amendment, for mandated broad and potentially universal coverage, was the chorus of compensation defense attorneys' heard to rally support in opposition without offering a creative solution.

The proposed legislation will embrace massive change for the nation's medical delivery and involve every individual, business, hospital and doctor. Yet to be determined is whether every employer will be mandated to provide health insurance. While the number of the nation's uninsured has continued to rise in epidemic proportions, the "safety net" for those who have been denied medical benefits under the workers' compensation systems have also grown logarithmically.

Issues remain open as the floor debate opens on health care. To be debated are many issues including: mandatory coverage; the extent of business involvement; financing the program; a public plan; government subsidies; and the cost of care. Any or all of these immense issues will ultimately impact the national workers' compensation system as it now exists.

As the unpredictable health care legislation is debated in Congress, the legislators will hopefully take notice of how other industrial countries have met the challenge to treat workers. The European countries, where workers' compensation had its geniuses almost a century ago, have already solved the problem through the enactment of universal health care.

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For more on workers' compensation and national health care reform click here.

Defense Department to Investigate Hexavalent Chromium Exposure Claims

The US Department of Defense has announced that it will investigate emerging environmental and health risks arising from chemical exposures. One of the particular areas of concern is the exposure to hexavalent chromium that occurred Iraq.

On October 8, the Senate Committee on Veteran’s Affairs will hold a hearing on chemical exposures including the hexavalent chromium incident.

Chromium exposure has been associated with lung cancer. Breathing high levels of hexavalent chromium can irritate or damage the nose, throat, and lungs. Irritation or damage to the eyes and skin can occur if hexavalent chromium contacts these organs in high concentrations or for a prolonged period of time. Exposure to chromium can occur from inhalation of dusts, mists, or fumes containing hexavalent chromium, or from eye or skin contact with hexavalent chromium.

For more information about chromium exposure click here.

Sears Roebuck Pays $6.2 Million for Inflexible Workers Compensation Exhaustion Policy

The Federal Court in Chicago approved the largest monetary amount ever in a single EOCC ADA law suit in a case involving Sears Roebuck.

The following was announced by the EEOC:

"The U.S. Equal Employment Opportunity Commission (EEOC) today announced the entry of a record-setting consent decree resolving a class lawsuit against Sears, Roebuck and Co. (Sears) under the Americans With Disabilities Act (ADA) for $6.2 million and significant remedial relief.

The consent decree, approved this morning by Federal District Judge Wayne Andersen, represents the largest ADA settlement in a single lawsuit in EEOC history. The EEOC's suit alleged that Sears maintained an inflexible workers' compensation leave exhaustion policy and terminated employees instead of providing them with reasonable accommodations for their disabilities, in violation of the ADA.

"The facts of this case showed that, nearly twenty years after the enactment of the ADA, the rights of individuals with disabilities are still in jeopardy," said Commission Acting Chairman Stuart J. Ishimaru. "At the same time, this record settlement sends the strongest possible message that the EEOC will use its enforcement authority boldly to protect those rights and advance equal employment opportunities for individuals with disabilities."

EEOC Chicago District Director John Rowe, who supervised the agency's administrative investigation preceding the lawsuit, said that the case arose from a charge of discrimination filed with the EEOC by a former Sears service technician, John Bava. According to Rowe, Bava was injured on the job, took workers' compensation leave, and, although remaining disabled by the injuries, repeatedly attempted to return to work. Sears, Rowe said, "Could never see its way clear to provide Bava with a reasonable accommodation which would have put him back to work and, instead, fired him when his leave expired."

Regional Attorney John Hendrickson of the EEOC Chicago District Office said pre-trial discovery in the lawsuit revealed that hundreds of other employees who had taken workers' compensation leave were also terminated by Sears without seriously considering reasonable accommodations to return them to work while they were on leave, or seriously considering whether a brief extension of their leave would make their return possible.

"The era of employers being able to inflexibly and universally apply a leave limits policy without seriously considering the reasonable accommodation requirements of the ADA are over," Hendrickson said. "Just as it is a truism that never having to come to work is manifestly not a reasonable accommodation, it is also true that inflexible leave policies which ignore reasonable accommodations making it possible to get employees back on the job cannot survive under federal law. Today's consent decree is a bright line marker of that reality."

In addition to providing monetary relief, the three-year consent decree includes an injunction against violation of the ADA and retaliation. It requires, in addition, that Sears will amend its workers' compensation leave policy, provide written reports to the EEOC detailing its workers’ compensation practices' compliance with the ADA, train its employees regarding the ADA, and post a notice of the decree at all Sears locations.

According to Greg Gochanour, EEOC supervisory trial attorney in Chicago, "This is not merely a garden variety so-called 'cost of litigation' settlement. We discovered well over a hundred former employees who wanted to return to work with an accommodation, but were terminated by Sears - and some of them found it out when their discount cards were rejected while shopping at Sears. We believe Sears' decision to accept this decree makes good sense."

The lawsuit, filed in November 2004, was assigned to Federal District Court Judge Wayne Andersen of the Northern District of Illinois and Magistrate Judge Susan Cox, and is captioned EEOC v. Sears Roebuck & Co., N.D. Ill. No. 04 C 7282. Today's decree is dated September 29, 2009. The court will hold a final hearing, currently slated for approximately February 2010, at which time the court will make a final determination as to the fairness of the individual distributions from the $6.2 million settlement fund.

The EEOC litigation team has included, in addition to Hendrickson and Gochanour, Chicago trial attorneys Aaron DeCamp, Ethan Cohen, Deborah Hamilton and Laurie Elkin.

The EEOC enforces federal laws prohibiting discrimination in an employment. Further information about the Commission is available on its web site at www.eeoc.gov.

AAAS Enthusiastically Endorses the Nomination of Dr. David Michael as Assistant Secretary of OSHA

The prestigious, American Association for the Advancement of Science (AAAS) has endorsed the nomination of Dr. David Michaels to become Assistant Secretary of Labor for The Occupational Safety and Health Administration (OSHA). In a letter to Senator Tom Harkin, Chairman of the Health, Education, Labor and Pensions Committee, Albert H. Teich, Director of Science & Policy Programs for AAAS enthusiastically endorsed the Michael’s nomination.

Teich wrote, “My colleagues and I agree wholeheartedly. Michaels is an expert on the health effects of exposure to toxic chemicals and understands the ways that science can be used- and misused- in legal and regulatory decision making. Much of his research and policy work has focused on the health of the disadvantaged.”

Michael’s was the recipient of AAAS Scientific Freedom and Responsibility Award, an annual prize created by the AAAS in 1980 to “honor scientists and engineers whose exemplary actions have served foster scientific freedom and responsibility.”

The AAAS’s endorsement letter in support of the nomination further stated, …. “The citation on Dr. Michaels's award recognizes him both for his " commitment to obtaining justice for workers whose health has suffered from working in nuclear weapons programs and for his advocacy for scientific integrity in public policy making."

The American Association for the Advancement of Science, 
"Triple A-S" (AAAS), is an international non-profit organization dedicated to advancing science around the world by serving as an educator, leader, spokesperson and professional association. In addition to organizing membership activities, AAAS publishes the journal Science, as well as many scientific newsletters, books and reports, and spearheads programs that raise the bar of understanding for science worldwide.

For more information about OSHA click here.

US EPA Targets Hazardous Chemicals for New Regulations

The Obama Administration has announced a proposed initiative to regulated hazardous substances. The workplace and the Workers' Compensation system has been literally plagued for decades with an epidemic of disease caused by the use of dangerous and unregulated chemicals in the workplace.

Lisa Jackson, US EPA Administrator, in a speech before the Commonwealth Club in San Francisco announced the Administrations proposed initiative to finally ban the use of asbestos. Asbestos, still permitted to be used in the US, is well known carcinogen that has been causally connected to asbestosis, lung cancer and mesothelioma (a fatal illness).

Citing the failure of the 1976 Toxic Substances Control Act (TSCA), Jackson has proposed new legislation that will require that manufactures to develop new data on safety of existing chemicals and new chemicals used. She stated:

"As with existing chemicals, the burden of proof falls on EPA. Manufacturers aren’t required to show that sufficient data exist to fully assess a chemical’s risks. If EPA has adequate data, and wants to protect the public against known risks, the law creates obstacles to quick and effective action.Since 1976, EPA has issued regulations to control only five existing chemicals determined to present an unreasonable risk. Five from a total universe of almost 80,000 existing chemicals. In 1989, after years of study, EPA issued rules phasing out most uses of asbestos, an exhaustively studied substance that has taken an enormous toll on the health of Americans. Yet, a court overturned EPA’s rules because it had failed to clear the many hurdles for action under TSCA.

"Today, advances in toxicology and analytical chemistry are revealing new pathways of exposure. There are subtle and troubling effects of chemicals on hormone systems, human reproduction, intellectual development and cognition. Every few weeks, we read about new potential threats: Bisphenol A, or BPA – a chemical that can affect brain development and has been linked to obesity and cancer – is in baby bottles; phthalate esters – which have been said to affect reproductive development – are in our medical devices; we see lead in toys; dioxins in fish; and the list goes on. Many states – including California – have stepped in to address these threats because they see inaction at the national level.

"Senator Lautenberg, Chairman Waxman, Senator Boxer, Congressman Rush and others in Congress have already recognized that TSCA must be updated and strengthened. EPA needs the tools to do the job the public expects. And we are working together with President Obama on this issue.

The Administration's 6 part initiative will include the following according to Jackson:

"First, we need to review all chemicals against safety standards that are based solely on considerations of risk – not economics or other factors – and we must set these standards at levels that are protective of human health and the environment.

"Second, safety standards cannot be applied without adequate information, and responsibility for providing that information should rest on industry. Manufacturers must develop and submit the hazard, use, and exposure data demonstrating that new and existing chemicals are safe. If industry doesn’t provide the information, EPA should have the tools to quickly and efficiently require testing, without the delays and procedural obstacles currently in place.

"Third, both EPA and industry must include special consideration for exposures and effects on groups with higher vulnerabilities – particularly children. Children ingest chemicals at a higher ratio to their body weight than adults, and are more susceptible to long-term damage and developmental problems. Our new principles offer them much stronger protections.

"Fourth, when chemicals fall short of the safety standard, EPA must have clear authority to take action. We need flexibility to consider a range of factors – but must also have the ability to move quickly. In all cases, EPA and chemical producers must act on priority chemicals in a timely manner, with firm deadlines to maintain accountability. This will not only assure prompt protection of health and the environment, but provide business with the certainly that it needs for planning and investment.

"Fifth, we must encourage innovation in green chemistry, and support research, education, recognition, and other strategies that will lead us down the road to safer and more sustainable chemicals and processes. All of this must happen with the utmost transparency and concern for the public’s right to know.

"Finally, we need to make sure that EPA’s safety assessments are properly resourced, with industry contributing its fair share of the costs of implementing new requirements.

For more information concerning "occupational illnesses" and workers' compensation click here.

AIG Claims Conspiracy by Liberty and Hartford

AIG, an insurer bailed out by the US, now claims that other workers' compensation carriers entered into a conspiracy against them by underreporting their premiums. In an amended complaint filed last week in the Federal Court in Chicago (USDCT N.D. Ill.), AIG alleged that Liberty Mutual and Hartford/ACE entered into a conspiracy to underreport their premiums.

Premium calculations determine contributions to State compensation funds that cover State operated programs for employers unable to secure coverage in the open market. These include high risk employers.

National Workers Compensation Reinsurance Pool v. American International Group Inc., 1:07C-2898, U.S. District Court, Northern District of Illinois

For more about AIG click here.

CMS Terminates Voluntary WC Data Match Program

CMS has formally terminated the voluntary WC Data Match program that it instituted several years ago. With the enactment of Section 111 Mandatory Insurance Company reporting the voluntary program afforded to States and Insurance Company has been terminated.

In a letter to those participating CMS stated:

"This voluntary reporting arrangement has now ended. On July 1, 2009, Section 111 of the Medicare, Medicaid, and SCHIP Extension Act (the MMSEA) became effective for Workers’ Compensation insurance coverage. As of that date, the reporting of Workers’ Compensation information in support of Medicare Secondary Payer (MSP) determinations by CMS became mandatory. All existing voluntary reporting arrangements involving Workers’ Compensation programs are now null and void.

"July 1, 2009, is the date Section 111 reporting became effective, but it is not the date that states will begin to report Workers’ Compensation information under the Section 111 requirements. In summary, states that will be reporting Workers’ Compensation data through the Section 111 process are required to register for Section 111 reporting by September 30, 2009. The testing of the electronic data exchange process will start January 1, 2010. The first “production” file exchanges will start April 1, 2010.

"The process for arranging Section 111 reporting, and all the reporting timeline benchmarks that have been established are described in full on the Section 111 Website, www.cms.hhs.gov/mandatoryinsrep . The current version of the “NGHP User Guide” and additional instructions needed to report Workers’ Compensation information are located on the Website’s “Liability Insurance, Self-Insurance, No-Fault Insurance and Workers Compensation (NGHP)” page."