Blowing the Whistle on Unsafe Workplace Conditions Gets a Boost

The New Jersey Supreme Court gave a boost to whistleblowers who challenge employers. The Court in a 4 to 2 decision held that an employee who becomes the victim of employer retaliation for engaging in protected whistle-blowing activities, can file a wage-loss claim without proving constructive discharge.

An employee at DuPont Chambers Works for thirty years reported that phosgene gas, a highly toxic and reactive substance, was being handled in a dangerous fashion. The employee, who reported the unsafe workplace condition to the headquaters of DuPont buut became a target of employer harassment and suffered the residuals of psychological disability

Justice Albin, delivering the opinon of the Court stated: "If an employer engages in unlawful retaliation, then it is accountable for the damages proximately caused to the employee."

Donelson v. DuPont Chambers Works, A-112-09, Decided June 9, 2011 (NJ 2011)

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Health Reform Coverage for Asbestos Victims Expands

The Federal health reform medical coverage for asbestos victims is expanding in Libby Montana. The announcement was made by Senator Baucus who sponsored the innovated unified Federal healthcare legislation that is a national pilot program for the treatment of occupational illness and diseases.. 

"Libby Care" is an innovated plan under which the Federal government provides medical care to those who were exposed to asbestos fiber in the geographical area of the Libby asbestos mines. The mines were operated by WR Grace. The program is a pilot plan providing for free coverage to asbestos victims and is administered by Medicare. The pilot program may expand the Federal government's future role  in providing  medical coverage for all occupational exposure claims and thus avoid the litigious and burdened workers' compensation medical treatment system.

Montana's senior U.S. Senator Max Baucus today announced additional asbestos-related health services to be included under the health care coverage he secured for Lincoln County asbestos victims in the Affordable Care Act.

"The people of Libby and Lincoln County suffered a horrendous injustice in the name of greed, and we have a responsibility to help them heal however we can. We secured a Public Health Emergency Declaration in Libby to make sure these folks had access to all the tools they needed. Providing Libby victims with the consistent, reliable, health care they are entitled to under the law is the least we can do to help right this outrageous wrong," Baucus said.

Dr. Brad Black, Medical Director of the Center for Asbestos Related Disease in Libby said, "CARD, our patients, and the Libby community greatly appreciates Senator Baucus' work to secure legislation to provide long-term asbestos health benefits and screening. Medicare benefits, the Medicare Pilot Program for Asbestos Related Disease and ongoing asbestos screening are critical services for the affected population of today and tomorrow."

CARD is a community based non-profit organization established in 2000 that is committed to providing asbestos screening and healthcare related to the Libby asbestos exposure.

"While some in Congress are trying to end Medicare as we know it for Montanans, we strengthened it and improved access to better health care for folks in places like Libby," said U.S. Senator Jon Tester. "Today the people of Libby have better access to the health care services they need and deserve. It's a powerful investment in Montana's people."

The Centers for Medicare and Medicaid Services (CMS) said today the agency would begin covering the additional benefits July 1, 2011 under a permanent pilot program Baucus included in the Affordable Care Act to ensure Libby victims received the full range of services needed to treat asbestos diseases. Benefits cover services not already included under Medicare coverage Libby asbestos victims now receive under the law, including:

• Special home care services;
• Special medical equipment;
• Help with travel to get care;
• Special counseling, for example, help quitting smoking;
• Nutritional supplements; and
• Prescription drugs not covered by Medicare drug plans (Participants in the Pilot Program must be in a Medicare drug plan to receive this benefit.)

According to CMS, individuals participating in the Pilot Program will also be able to work with a nurse case manager to coordinate their health benefits and receive individualized care planning.

Today's news is the third step in Baucus' provisions to secure health care coverage for Libby under the Affordable care Act. In Spring 2010, as part of Baucus' provisions, victims of asbestos exposure in Lincoln County began getting care under Medicare. In March of 2011, Baucus announced a grant program to help Lincoln County health care providers screen for asbestos-related diseases. Before the new program announced today, Libby asbestos victims relied on temporary and uncertain grants programs to receive the additional care they needed.

Individuals can call 1-888-469-9464 to enroll in the pilot by phone or visit the websitewww.noridianmedicare.com/ard beginning June 14.

Earlier this year Baucus was announced as the 2011 Tribute of Hope Award recipient by the Asbestos Disease Awareness Organization (ADAO) for his tireless efforts fighting on behalf of residents of Libby, Lincoln County and Asbestos victims everywhere. In March, the Senate unanimously passed Baucus' resolution to designate the first week of April 2011 as "Asbestos Awareness Week," and call attention to Libby and other victims of asbestos-related disease.

Additional background on Baucus' longstanding efforts to secure declaration of a Public Health Emergency in Libby:

Baucus has been a long-time champion of asbestos awareness in his efforts to declare the mining tragedy in Lincoln County a public health emergency and make sure folks there have access to the clean-up tools and health care they need.

Since news reports first linked widespread deaths and illness to exposure to deadly asbestos fibers at the defunct W.R Grace and Co. mine, Baucus has visited Libby more than 20 times, secured millions for healthcare and cleanup, brought numerous White House cabinet secretaries to the town, helped save the CARD clinic, and has dogged the EPA to keep cleanup efforts moving forward.

The mine near Libby, Montana, was the source of over 70 percent of all vermiculite sold in the U.S. from 1919 to 1990. There was also a deposit of asbestos at that mine, so the vermiculite from Libby was contaminated with asbestos. Vermiculite from Libby was used in the majority of vermiculite insulation in the U.S. and was often sold under the brand name Zonolite.

As far back as 1999, Baucus wrote a letter to then Secretary of Health and Human Services Donna Shalala requesting immediate medical help and assistance to the area. He further lambasted the EPA's decision to not declare a Public Health Emergency, calling it an "outrage." 

In 2008, Baucus released a report detailing a 2002 attempt by the EPA to declare a Public Health Emergency in Libby that was thwarted by the previous Administration's Office of Management and Budget. And on June 17, 2009, due in large part to Baucus' efforts, the EPA declared its first ever public health emergency in Libby, Montana.

After securing the declaration, Baucus fought hard, as a key author of the Affordable Care Act, to make sure the law included a mechanism for residents of Libby and Lincoln County to access the health care they were entitled to as victims of a public health emergency. As a result, Libby residents began receiving coverage under Medicare in Spring 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 occupational accidents and illnesses.

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Penalties, Paper and The Injured Worker

A penalty of $140,000.00 against an employer for reporting a work-related accident one day late seems a litte much. As David Depaolo points out in his recent post, the world of workers' compensation is drowning in complexity. The days of "simple" have past. The legislative intent of a remedial and summary system has gone by the boards.


Besides being a collection agency with no operating funds, the workers' compensation litigation arena is now being suffocated in litigation detail. In more ways than one, workers' compensation now has the complexity of sophisticated product liability litigation. We have transformed workers' compensation into "A Federal Case."


In this process, when the efficiency suffers so does the injured worker. The compensation system has matured into this level of complexity not because of the intent or design of the parties. It got there because the system just wasn't build to handle the load.


Like a burdened electric grid, the system will have to shed load. The question is how. Are benefits to be eliminated or does the system need to be redesigned to fullfil the needs of today's complex world? Legislatures are struggling across the country to find a solution. The bottom line is that we shouldn't throw out the baby with the bathwater. The solution must incorporate the needs on the injured worker. One must remember, as a tour through Ellis Island memorializes, that this country was build on the backs of immigrant labor. As the redesign goes forward, as it must, the injured worker must not become a helpless pawn in the system.

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Formaldehyde Is A Cancer Causing Agent Reports US Government

The U.S. Department of Health and Human Services announced today that eight substances have been added to its Report on Carcinogens, a science-based document that identifies chemicals and biological agents that may put people at increased risk for cancer. Formaldehyde has been reportedly used in hair straightening products causing potential danger to hair salon workers and users of the products.

The industrial chemical formaldehyde and a botanical known as aristolochic acids are listed as known human carcinogens. Six other substances — captafol, cobalt-tungsten carbide (in powder or hard metal form), certain inhalable glass wool fibers, o-nitrotoluene, riddelliine, and styrene — are added as substances that are reasonably anticipated to be human carcinogens. With these additions, the 12th Report on Carcinogens now includes 240 listings. It is available at http://ntp.niehs.nih.gov/go/roc12.

"Reducing exposure to cancer-causing agents is something we all want, and the Report on Carcinogens provides important information on substances that pose a cancer risk," said Linda Birnbaum, Ph.D., director of both the National Institute of Environmental Health Sciences (NIEHS) and the National Toxicology Program (NTP). "The NTP is pleased to be able to compile this report."

John Bucher, Ph.D., associate director of the NTP added, "This report underscores the critical connection between our nation's health and what's in our environment."

The Report on Carcinogens is a congressionally mandated document that is prepared for the HHS Secretary by the NTP. The report identifies agents, substances, mixtures, or exposures in two categories: known to be a human carcinogen and reasonably anticipated to be a human carcinogen. A listing in the Report on Carcinogens does not by itself mean that a substance will cause cancer. Many factors, including the amount and duration of exposure, and an individual's susceptibility to a substance, affect whether a person will develop cancer.

Once a substance is nominated by the public or private sector and selected for consideration, it undergoes an extensive evaluation with numerous opportunities for scientific and public input. There were at least six opportunities for public input on each substance. The NTP used established criteria to evaluate the scientific evidence on each candidate substance under review. The NTP drew upon the scientific expertise of several federal agencies, including the National Institutes of Health, Centers for Disease Control and Prevention, Agency for Toxic Substances and Disease Registry, U.S. Food and Drug Administration, U.S. Environmental Protection Agency, U.S. Consumer Product Safety Commission, and Occupational Safety and Health Administration.

"The strength of this report lies in the rigorous scientific review process," said Ruth Lunn, Dr.P.H., director of the NTP Office of the Report on Carcinogens. "We could not have completed this report without the significant input we received from the public, industry, academia, and other government agencies."

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 occupational accidents and illnesses.

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3 Ways Infections Become Compensable in Workmens Comp

Infections are nasty and sometimes fatal. Ill employees maybe entitled to collect workmens comp benefits for the treatment and residuals of an infection. Infections are considered communicable diseases and are contagious. There are 3 types of infections that be eligible for payment.


Infections that flow from a traumatic event are generally compensable. Even if there is a delay in seeking professional medical care the injured employee may be entitled to benefits. Sometimes the infections is dormant and does not become manifest for some time after the traumatic event that caused the injury. Preventative antibiotic treatment is sometimes recommended.


Some infections are contracted during treatment such as infection that are acquired during hospital stay. Those are called Hospital Acquired Infections  (HAI). These infection are expensive to treat and are a major concern to insurance carriers and government insurance programs such as Medicare. Medicare plans to impose economic penalties on hospitals for infections, ie. staph (MRSA),  that patient acquired during hospital stays.


A third type of infections are those that are the result of occupational accident and injuries. First responders and medical personnel  who suffer from exposure to meningitis, strep and HIV patients. These exposures may occur by simple contamination of the work area. In California legislation has been offered to establish a presumption that hospital employees infected on the job qualify for workers' compensation benefits.

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 occupational accidents and illnesses.


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NJ Urged to Adopt Single Payer System for Workmens Comp

A coalition that has been formed in NJ is urging that the Garden State follow the lead of Vermont and establish a single-payer system.  Single-payer movements have already made important progress in California and Pennsylvania. The New Jersey One Plan One Nation coalition is leading the campaign in New Jersey.


Citing that in 1777 the Commonwealth of Vermont became the first sovereign state in the world to abolish slavery the coalition, the coalition is now advocating a similar nation adoption of Vermont legal precedence. On May 26, 2011. Vermont became the first state in the U.S. to commit itself to establishing a truly universal single-payer healthcare plan that includes workers' compensation medical care. 

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Illinois Punishes Workers for Employer Deceit

The efforts by employers, insurance carriers and the Chamber of Commerce in Illinois, to take away the rights of injured workers and strip them of benefits may have all been based on Industry fraud. Recently obtained documents, secured under the Illinois Freedom of Information Act (FOIA), reveal that the employer’s own doctor had in-fact validated the causal relationship of the medical claims of the injured workers to work. 

A campaign in Illinois by Industry to dismantle the State’s workers’ compensation system was triggered and flamed by a story appearing in a local newspaper asserting that several correction officers had filed fraudulent claims for repetitive motion trauma to their hands. The local news report insinuated that the claims could not have been credible. 

The story, for some suspicious reason, was disseminated in a viral manner on the Internet. Concurrently, the Illinois Chamber of Commerce went on the attack claiming that the workers’ compensation system in Illinois was loaded with fraudulent activities. The Chamber and employers lobbied for legislation to strip injured workers of what little rights they still had under the law. The statutory changes they sponsored reduced ill workers access for benefits, reduced medical treatment expenditures by 30%, and set up a series of hurtles that left the injured without remedy to cure and relieve conditions caused by work. 

Even that wasn’t enough. Supporters of the Industry’s draconian legislative effort, have now vowed to return to take away the basic promises granted workers a century ago, that injured workers could obtain the limited and capped scheduled benefits, under a no-fault system. The workers’ compensation system was intended to provide a remedial and expeditious benefit to injured workers in a summary and efficient fashion, without the element of fault being considered. 

A hidden report reveals that Anthony E. Sudekum, MD, a Board Certified Hand Surgeon, retained by the employer, State of Illinois Department of Corrections, on March 30, 2011, after and extensive review of the facts, circumstances, inspection of the premises and equipment, and examination of the employees, concluded that, on the job activities contributed to their illness. He wrote, “…I feel that ….work activities at Menard Correctional center served to aggravate…bilateral carpal tunnel syndrome and left ulnar neuropathy.” 

Furthermore, some contend that the neurological illnesses that appeared at the Menard Correctional Center may have been the result of a mysterious disease cluster that warrants much further investigation instead of a knee-jerk denial. Similarly, a mysterious outbreak of disease in Philadelphia ultimately resulted in the discovery of Legionnaires Disease. Today the US Centers for Disease Control continues to investigate worldwide clusters of gastro-intestinal conditions to determine their potential causal relationship. It is through continued medical research and investigation that we make the workplace healthier, safer and more productive. 

We should learn from history. In the past, employers and manufacturers were also caught intentionally concealing the hazards of asbestos, tobacco and lead paint. That left a legacy of disease and death, and billions of dollars of economic loss. One would think that everyone learned from those tragic mistakes. For our nation to survive, employers must take an active roll in improving the health of our workers, and build a stronger system, rather than just deny the hazards of the workplace and blame the injured.

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