Congress, Health Care & Unintended Consequences

This past week some very dramatic things happened in the workers’ compensation world. The US Senate moved forward on initiating a floor debate on health care. At the same time, a group of workers’ compensation scholars met in Washington DC to discuss the future of workers’ compensation and the interplay with social security disability.

 Highlights of the NASI (National Academy of Social Insurance) conference convened in Washington were findings presented by eminent leaders in the field. Professor John Burton, Rutgers University, pointed out that newly created barriers to workers’ compensation were pushing more injured workers to the Social Security disability system for benefits. This reflects a phenomenon that occurred in the late 1970’s when a study commissioned by the US Department of Labor and conducted by Mt. Sinai Hospitals’ Environmental Sciences Laboratory, revealed that the inadequate benefit delivery system of workers’ compensation for asbestos related illness, was forcing injured workers and their families into the civil justice arena for adequate compensation.

The problems have not changed in decades; they have only gotten worse, maturing into a system that is in critical condition and on life support. In 1980 Irving J. Selikoff, M.D. reported, “There has been widespread acknowledgement of significant problems with disability compensation for workers in the United States. One major area of concern has been the shortcomings with regard to occupational disease. Whatever the suitability of current workers’ compensation systems in the 50 states for injuries and work accidents, there has been little disagreement about the inadequacies of such systems for workers who become disabled by illness or, if they die, for their surviving dependents.”

Complex questions continue to exist between the scientific and legal communities as to the path to be taken. Barriers placed into the path of recovery, including pre-existing and co-existing conditions, which result in limited or delayed recovery and major shifting of the economic responsibility upon the public/private benefit systems need to be removed. The unspoken social consequences continue as a silent epidemic as families and survivors struggle in silence.

Looking backward over the noble experiment in California which turned sour, Tom Rankin, former President of the California Labor Federation, AFL-CIO, expressed his regret of the reform. The former Labor leader theorized that the results were “unintended consequences.” Indeed he is looking forward to solutions springing forth in a “public option” embedded into the national health care legislation.

Some participants at the NASI conference alleged a major shortcoming of the California workers’ compensation legislative reform effort. Doug Kim, a lobbyist for the claimant’s attorneys, disclosed that the injured workers’ advocates were not invited to partake in the discussion that lead up to crafting the initial drafts of the 2004 California reform legislation SB 899.

History reveals, that when the theoretical reforms were practically applied, the injured workers suffered serious setbacks. If these were in fact “unintended consequences,” then one must consider the active involvement of all stakeholders when looking forward to solutions. The courts in California have consistently upheld challenges to the inequitable results, pointing to the legislative intent to reduce costs. Absent from the discussions of the presenters were practical systemic applications to improve the present system. The “blood and guts” of the traumatic, delay and denial, struggles of navigating in a crippled workers’ compensation system, in California and elsewhere, is verification that change is mandated.

As North Carolina attorney, Valerie A. Johnson, so eloquently remarked, “workers’ compensation is supposed to be a simple system.” The process has now been obstructed by encroaching elements of fault, contributory negligence, apportionment of pre-existing conditions and difficulties of the element of time, manifested by latent diseases unknown to the fathers of the system a century ago. The advance of medical science has brought forth new and innovated modalities that have contributed to soaring medical costs. The convergence of these issues has generated higher administrative costs.

Pecuniary Industry motives have worked adversely to improving safety in the workplace. The need for workers’ compensation would be minimized by adopting a safer occupational environment. Under reporting of workplace accidents continue as the Government Accountability Office announced. Nebraska Appleseed reveals that workers feel intimidated and are apprehensive to report injuries and unsafe work conditions. This is scenario is compounded by the fact that undocumented workers, who have even less job security, work in jobs with higher risk. The Bush Administration did not make efforts to allow OSHA to heighten enforcement efforts. All of these ingredients combine to create a recipe that just doesn’t work.

The US Senate advanced the health care legislation to a floor debate in an unusual late Saturday night session. This action may indeed provide an opportunity for the stakeholders in workers’ compensation to all join in the debate and look for solutions to the delivery of appropriate medical care in an efficient and timely fashion. To avoid “unintended consequences” yet again, injured workers and their advocates will need to be active participants and engage in the debate now.

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To read more about workers’ compensation and universal health care solutions click here.

Proposed System in Oklahoma to Bifurcate Medical

Legislation has been proposed in Oklahoma to dismantle the present workers' compensation system and replace it with an administrative system designed to reduce costs and litigation. The medical component would removed entirely from the workers' compensation litigation system and placed into the hands of a commission who would appoint administrative hearing officials to decide disputes. 

The Chamber of Commerce supports the proposal that would dismantle the present workers' compensation court system in a systematic fashion as cases resolve before the present judicial system.

State Representative Mark McCullock said, "By separating the legal and the medical, we can reduce the adversarial nature of the process, get people treated and back to work, and reduce costs for employers. This reform will ensure medical ratings are handled in a professional, independent fashion and drain the fever swamps of litigation.”

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To read more about medical treatment and workers' compensation click here.

Asbestos Exposure Continues Needlessly

Despite all the knowledge of the hazards of asbestos fiber in the workplace, asbestos is still  mined throughout the world and continues to be used in the United States.  For decades asbestos has been recognized as the cause for asbestosis, lung cancer and mesothelioma. Asbestos is not banned in the US.

The US Geological Survey reports that asbestos production in 2008 (metric tons) continues at alarming rates around the world:
1. Russia.................1,017,000
2. China.....................238,000
3. Brazil.....................225,000
4. Kazakhstaan...........230,000
5. Canada...................180,000


The US continues to import 1,460 metric tons of asbestos at a raw product cost of $1,090,000. It exports and reports  many asbestos and asbestos based products including: cement products, friction products, gaskets, paper and millboard, all valued at $33,200,000.


"U.S. consumption of asbestos was 1,460 t in 2008, a 16% decrease from 1,730 t in 2007. Coating and compounds accounted for 36% of U.S. consumption; roofing products, 34%; and other, 30%. Most of the asbestos reported under “coating and compounds” probably was used in roofing products. Consequently, roofing applications, which comprised bituminous roof coatings and roof sealants, accounted for 65% to 70% of the total U.S. asbestos end-use market."

While U.S. imports and sales continues to decline, the legacy of asbestos disease lives on, continuing to generate unnecessary disease, suffering  and death. An efficient and expeditious compensation system for those workers who have been exposed and suffer disease has become increasing complicated and difficult to navigate. Another recent report indicates that the workers' compensation system continues to shift responsibility to the social security system as the path for benefits becomes more litigious and difficult to navigate. A good first step to solve the problem would be for Congress to ban asbestos entirely in the U.S.

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To read more about asbestos and workers' compensation click here.

To read more about asbestos litigation click here.

Montana Cuts Off Benefits For Retirees

The Montana Supreme Court reiterated that the right to receive Workers' Compensation benefits is not a fundamental right and it could be terminated at retirement age.  The Court rationalized that the receipt of permanent partial disability [PPD] benefits was conditioned upon the ability to return to work. Therefore, an individual should not receive workers' compensation partial disability benefits if the worker retires due to age.


"PTD [permanent partial disability] benefits are not meant to supplement a claimant’s wages rather they are intended to assist the worker who will never be able to return to work."

"It is well established that the control of workers’ compensation costs is a legitimate government interest that may constitutionally be pursued by the legislature."

Satterlee v. Lumberman's Mutual Casualty Company, et al. AL 08-03037

Shifting Occupational Claim Responsibility to Social Security

Recent Workers' Compensation reforms enacted in the 1990's are more likely to effect older workers  who are then more likely to to apply for Social Security Disability Benefits (SSDI). The reforms are now causing an enormous increase in number of denials of workers' compensation claims. At a recent conference hosted by NASI (National Academy of Social Insurance), Professor John F. Burton Jr. reported on the results of his recent study that has been submitted for publication.

Professor Burton reported that in 1999 between 80% to 93.8% of occupationally disease medical costs were not considered compensable and the costs were being shifted to the SSDI program. He concluded that, "...a substantial infusion of research funds are necessary to clarify the relationships between the Workers' Compensation and SSDI Programs."

To read more about Professor Burton and workers' compensation on the blog, click here.

Policy Holders at NJM Get Dividends

New Jersey Manufacturers Insurance Company announced that it is  continuing its tradition, as it has done since 1918, of paying dividends to policyholders.


"Workers' Compensation policies issued by NJM are receiving a Regular Dividend of 15% of their premiums. NJM's Board of Directors has approved increasing the rate to 20% for policies expiring January through March 2009. Meanwhile, New Jersey Re-Insurance Company Workers' Compensation policyholders are seeing a return of 5% of their premium."

Compensation Benefits for Smokers

On the eve of the annual Great American Smokeout one needs to reflect on the inadequacy of the national workers' compensation to assist in this effort. For decades, the addictive habit of smoking has been treated as a non-compensable cause and a pre-existing condition. See The Health Consequences of Smoking: Cancer and Chronic Lung Disease in the Workplace: A Report of the Surgeon General. 


Like obesity, workers' compensation insurance carriers have considered it as a risk not associated with work condition even though it has been a synergistic agent in many occupational cancers, ie. asbestos exposure and smoking results in an enormous risk increase for lung cancer. 


To make the workplace safer and end the epidemic of occupational cancers, the compensation system should embrace the effort to eliminate smoking in the workplace and provide assistance to workers to stop smoking.

Great American Smokeout ---

November 19, 2009

Although the United States has made great strides toward reducing the prevalence of smoking, approximately 46 million adults (20.6% of the population) still smoke (1), and every day, another 1,000 young persons become new smokers (2). Annually, smoking results in 440,000 deaths and $193 billion in health-care costs and lost productivity (3). November 19 marks the 33rd anniversary of the American Cancer Society's Great American Smokeout. This annual event challenges smokers to quit for at least 1 day and provides information resources to help them quit permanently.
Quitting smoking has immediate and long-term benefits, including reduced risk for heart disease and certain cancers. Successful quitting often takes several tries. To improve success, smokers should use proven cessation treatments and services, including health-care guidance, approved medications, and cessation counseling. Combining counseling and medications can more than double cessation success. More information about the Great American Smokeout is available at http://www.cancer.org, and free help for quitting smoking is available by calling 800-QUIT-NOW (800-784-8669) or visiting http://www.smokefree.gov.

References

1. CDC. Cigarette smoking among adults and trends in smoing cessation---United States, 2008. MMWR 2009;58:1227--32.
2. Substance Abuse and Mental Health Services Administration. Results from the 2008 National Survey on Drug Use and Health: detailed tables, 4-10A and 4-11A. Rockville, MD: US Department of Health and Human Services, Office of Applied Studies; 2009. Available at http://www.oas.samhsa.gov/nsduh/2k8nsduh/tabs/sect4petabs1to16.htm#tab4.10a. Accessed November 4, 2009.
3. CDC. Smoking-attributable mortality, years of potential life lost, and productivity losses---United States, 2000--2004. MMWR 2008;57:1226--8.