Opportunities, Challenges in Use of Workers’ Comp Data Are Examined in NIOSH Workshop Proceedings Report

Opportunities for maximizing the use of workers’ compensation data for occupational safety and health surveillance and research - and challenges that researchers face in exploring those opportunities - are examined in a report of proceedings now available both electronically and in paper copy from the National Institute for Occupational Safety and Health (NIOSH).

"Use of Workers’ Compensation Data for Prevention of Occupational Injuries and Illnesses: Proceedings from September 2009 Workshop," DHHS (NIOSH) Publication No. 2010-152, is posted at http://www.cdc.gov/niosh/docs/2010-152/pdfs/2010-152.pdf . The 2009 workshop was co-sponsored by NIOSH, the Bureau of Labor Statistics, the National Council for Compensation Insurance, and the Washington State Department of Labor and Industries’ Safety and Health Assessment and Research for Prevention Program.

"As researchers and practitioners seek innovative means to improve the surveillance of occupational injuries and illnesses, workers’ compensation data offer a potentially useful answer - but the limitations and uncertainties of those data must be addressed," said NIOSH Director John Howard, M.D. "We are pleased to offer these proceedings as a unique resource for assessing current uses of workers’ compensation information for health surveillance, suggesting new uses, and engaging the uncertainties that we face in doing so."

Although workers’ compensation programs record cases of occupational injury and illness that have already occurred, they generate data that may also serve useful purposes for preventing future injuries and illnesses. Those data may provide insights into the severity of cases, recent trends, and emerging concerns that other data sources may not.

However, several factors pose difficulties for using workers’ compensation records as a surveillance and research resource. Because different states have different rules on compensability and because data are not always coded according to a standard system, it may be difficult to harmonize and interpret data nationally. Where larger data sets exist, they generally are proprietary, and access is restricted beyond the purposes for which they were originally established.

The proceedings include more than 30 prepared presentations and a summary from the workshop. Nearly 80 participants from federal and state agencies, labor, academia, and the insurance industry made presentations and engaged in discussions.

The Toxic Contamination of North Jersey

In a recent report in the The Record it was noted that hundreds of toxic sites were located in North New Jersey, specifically Bergen and Passaic counties. The former geographical location of the Industrial Revolution, the area was the home of many manufacturing facilities and in close proximity of the Great Falls of Paterson NJ. The Society of Useful Manufacturers was established by Alexander Hamilton at the base of the Passaic River in Paterson NJ.

The manufacturing facilities left a legacy of toxic pollution and a lot of that pollution migrated into the Passaic River and flowed downstream to from Passaic County to Bergen County. Toxic sites proliferate the area and an epidemic of industrially produced disease remains from the occupational exposures and the bystander exposures.
For over 3 decades the Law Offices of Jon L. Gelman 1.973.696.7900jon@gelmans.com have been representing injured workers and their families who have suffered work related accident and injuries.

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NJ Denies an Occupational Workers Compensation For Last Exposure Applying Apportionment Rule

A NJ Appellate Court denied an employee workers' compensation benefits by applying an apportionment rule as well as the manifestation of disease doctrine. The employee worked in two states and spend more than 10 times of his working career in Pennsylvania working n a similar job during which time manifestation occurred.


"We do not suggest that there is a mandatory mathematical formula that judges of compensation should apply in calculating the employment exposure of a petitioner as part of Williams's jurisdictional test. Although we might quibble with Judge LaBoy's description of petitioner's exposure as "de minimis," we nevertheless conclude that the sixteen-month exposure was not sufficiently substantial under the totality of the circumstances to constitute injury-conferring jurisdiction in the Division."


McGlinsey v George H. Buchanan Company, Not Reported in A.3d, 2010 WL 3932983 (N.J.Super.A.D.) Decided September 30, 2010

For over 3 decades the Law Offices of Jon L. Gelman 1.973.696.7900  jon@gelmans.com have been representing injured workers and their families who have suffered work related accident and injuries.

Cell Phone Safety and Workers Compensation

Workers' Compensation benefits may soon be denied to employees involved in motor vehicle accidents because of the unauthorized use of cell phones while driving within the course of their employment. As the US Department of Transportation (USDOT) continues to educate Americans with overwhelming statistical evidence that distracted driving is a major cause of accident, the denial of benefits to cell phone users may become a major incentive to create a safer work environment.

Meanwhile, the US Department of Transportation is leaning toward banning all use of cell phones by drivers. At the second national USDOT summit on the increased hazards of the use of cell technology  a major campaign was launched to encourage employers to outright  ban the use of cell phones by employees while working.

Employers have become increasingly concerned over employee "cognitive distraction" caused by the use of cell phones in motor vehicles as more data has become available associating driver cell phone use with accidents. Methods of enforcement will include the use of traffic cameras as the system already hss the capability of detecting drivers who are using telephones while driving. Evidentially, telephone billing records produced post accident can be used to corroborate the fact that an employee was using a telephone while working.

The precedent of using the workers compensation acts to make occupational environments safer is already established. The denial of workers' compensation benefits for unsafe actions by employees has previously been incorporated into law and has been an economic incentively for employers to reduce costs. Employees who are under the influence of drugs or alcohol, and those who fail to use employer provided safety devices, have already been denied benefits in some jurisdictions.

For over 3 decades the Law Offices of Jon L. Gelman 1.973.696.7900  jon@gelmans.com have been representing injured workers and their families who have suffered work related accident and injuries.

Related articles

• The Trend to Exclude Distracted Driving From Workers' Compensation Coverage 
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• Ban on Driver Cell Phone Use Considered by Transportation Chief (politicsdaily.com)
• Advocates for In-Car Cell Phone Ban Face Setback (blogs.cars.com)
• Talking to death: texts, phones kill 16,000: study (canada.com)
• NIOSH: Backgrounder of Hazards of Distracted Driving

RICO Case Dismissed By Trial Court After US Supreme Court Decision

A Federal District Court in Michigan has dismissed a RICO [Racketeer Influenced and Corrupt Organizations Act] claim against Cassens Transportation Company and several other defendants. This is the third time the case was negatively reviewed by the US District Court in Michigan and follows a landmark decision in the US Supreme Court supporting the RICO action that flowed from an underlying  by a workers' compensation action.

"The Court concludes that Plaintiffs' exclusive remedy for their claim that they were fraudulently denied benefits under the WDCA [Workers' Disability Compensation Act] lies within the exclusive administrative scheme set forth in the WDCA which forcloses their RICO claim."

Brown v Cassens Transportation Company, et al. No. 04-cv-72316, 2010 WL 3842373, Decided Sept. 27, 2010.

Click here to read more about RICO claims and workers' compensation.

For over 3 decades the Law Offices of Jon L. Gelman 1.973.696.7900  jon@gelmans.com have been representing injured workers and their families who have suffered work related accident and injuries.

Class Action Certification Sought in NCCI et al v AIG Premium Case

Class Action certification is being sought in a claim against AIG brought by NCCI Holdings Inc., Liberty Mutual and Travelers Insurance for underreporting of workers ' compensation premiums. See  AIG tries to block workers comp competitors' class action.

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For over 3 decades the Law Offices of Jon L. Gelman 1.973.696.7900  jon@gelmans.com have been representing injured workers and their families who have suffered work related accident and injuries.

CMS Has 6 Year Statute of Limitations-Court Dismisses MSP Recovery Claim

A Federal District Court in Alabama has declared that the Centers for Medicare and Medicare Services (CMS) is limited to a 6 year statute of limitations in asserting as recovery / reimbursement claims under the Medicare Secondary Payer Act (MSP).

The case stems from a toxic-tort claim against Monsanto Company alleging harms flowing from the use of PCBs. A global, nationally publicized, settlement was reached in the amount of $300 Million in 2003 involving more than 20,500 people. More than 14 years after the settlement CMS initiated a recovery action under the MSP.

"Because the MSPA is silent as to a deadline for filing a claim for recovery, the parties agree
that the relevant statute of limitations for the Government’s claims, if any, is governed by the Federal Claims Collection Act (“FCCA”). 28 U.S.C. § 2415 (2008); see also In re Dow Corning, 250 B.R. 298, 350-51 (Bktrpcy. E.D. Mich. 2000) (stating the universal recognition of FCCA’s applicability to the Government’s MSPA claims). The parties disagree, however, as to whether the FCAA’s six year or three-year statute of limitations applies."

The Court rejected the Government's "implied-at-law contract theory as applicable to the Corporate Defendants," because "it stretches too far beyond the bounds of logic and reason to adopt absent precedent." The Court held that the claim was based in tort and applied a 3 year statute of limitations and determined that Government had filed its claim against the Corporate Defendants "too late."

As to the Attorney Defendants, the Court held was based on contract law.

"Logic suggests that the Attorney Defendants who represented the tort plaintiffs in the
Abernathy case, the alleged Medicare beneficiaries in the instant case, essentially acted as agents pursuant to the contractual relationship between the Government and the Medicare beneficiaries. More specifically, the Attorney Defendants’ obligation to pay their clients any monies allegedly owed to the Government for Medicare reimbursement, unlike that of the Corporate Defendants, arose not from any tortious conduct on behalf of the Attorney Defendants themselves but from an express contractual relationship with the Medicare beneficiaries—namely, any fee agreement or attorney client agreement between them. From that perspective, the Attorney Defendants’ MSPA obligation is essentially founded upon a contractual obligation."

"For these reasons, the grounds for statute of limitations determination as applied to the
Attorney Defendants is more reasonably founded upon contract rather than tort. The contractual nexus is clearer in this instance than as alleged against the Corporate Defendants, whose MSPA obligations ultimately arose from, and cannot be divorced from, allegations of tortious conduct. The court, therefore, concurs that the six-year statute of limitations applies as to the Attorney Defendants."

The accural of the Government's MSP action was held to be different for the two groups of defendants. As to the Corporate Defendants the action arise no later than the point of execution and court approval of the settlement. As to the Attorney Defendants the cause of action arose when payment was made.

The Court noted the the Government could have intervened in the underlying action but chose not to do so. Perhaps the Government will now seek to intervene in all underlying claims. Additionally the Court rejected a statute tolling argument based a fraudulent concealment.

United States of America v James J. Stricker, et al., CV 09-BE-2423-E (USDCT ND Alabama) Filed September 30, 2010 3:59pm.

For over 3 decades the Law Offices of Jon L. Gelman 1.973.696.7900  jon@gelmans.com have been representing injured workers and their families who have suffered work related accident and injuries.

Related Articles:

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Case Advances Challenging MSP Reimbursement Procedures