Workers' Compensation

Monday, June 27, 2011

Tonight on HBO: Hot Coffee - How The Industry Suppresses Litigation

The acclaimed documentary, "Hot Coffee," premieres tonight on HBO. The film reveals what really happened to Stella Liebeck, the Albuquerque woman who spilled coffee on herself and sued McDonald’s, while exploring how and why the case garnered so much media attention, who funded the effort and to what end.

The film reveals what tactics are used by Industry to suppress litigation. After seeing this film, you will decide who really profited from spilling hot coffee.

Penalties, Paper and The Injured Worker (workers-compensation.blogspot.com)
US Supreme Court Advances the Rights of Injured (workers-compensation.blogspot.com)
Federal Court Enjoins CMS From MSP Recovery Procedures (workers-compensation.blogspot.com)
Safer Chemical Industry WIll Produce More Jobs (workers-compensation.blogspot.com)
Hot Coffee Premieres at Sundance (hotcoffeethemovie.com)
Must See TV: Hot Coffee Premieres on HBO on Monday 6/27 (lawprofessors.typepad.com)

Friday, June 24, 2011

The Ugly Canadians

Today, Canada blocked the United Nations from banning asbestos. Reuters reported, "Chrysotile asbestos will not be listed as a hazardous industrial chemical that can be banned from import after countries including Canada and Ukraine blocked consensus."

An editorial in the Toronto Star called the action by Canada as hypocritical:

"The hypocrisy is staggering. The federal government has spent millions to clear its own buildings of this noxious material — including taking it out of 24 Sussex Drive to protect the Prime Minister and his family. Canadian companies, schools and homeowners have also removed asbestos from their structures. Yet we happily export it.The asbestos industry in Quebec has been dying for years and employs only about 300 people. There’s no future in these operations. The miners should be given help to find new jobs or a decent pension and the mines left to wither away. This toxic trade needs to end."

"Asbestos kills. The World Health Organization calls it “one of the most serious occupational carcinogens” and notes that it’s a factor in 90,000 deaths each year. But we keep selling more than $100 million of it each year to countries such as India and Indonesia, where it is used in the manufacture of cement and auto parts. We even market it with a Canadian flag logo, leaving the impression it is stamped with government approval."

***

"The asbestos industry in Quebec has been dying for years and employs only about 300 people. There’s no future in these operations. The miners should be given help to find new jobs or a decent pension and the mines left to wither away. This toxic trade needs to end."

As the Canadian Globe and Mail posted today, "We are the Ugly Canadians."

Canada Called A Pariah State

Canada's activities at the UN Rotterdam Convention to prevent the listing of chrysotile asbestos as a carcinogen has been internationally denounced. Despite the knowledge of the deadly effects of asbestos fiber, Canada continues to encourage the mining of the asbestos for its pecuniary gain in Quebec.

Thursday, June 23, 2011

OSHA Proposes New Reporting Rules for Amputations and Fatalities

OSHA's new proposed rule require employers to report to OSHA, within eight hours, all work-related fatalities and all work-related in-patient hospitalizations; and within 24 hours, all work-related amputations. The current regulation requires an employer to report to OSHA, within eight hours, all work-related fatalities and in-patient hospitalizations of three or more employees.

Additionally, OSHA is proposing to update Appendix A to Subpart B of its Injury and Illness Recording and Reporting regulation. Appendix A contains a list of industries that are partially exempt from maintaining records of occupational injuries and illnesses, generally due to their relatively low rates of occupational injury and illness. The current list of industries is based on the Standard Industrial Classification (SIC) system. In 1997, the North American Industry Classification System (NAICS) was introduced to classify establishments by industry. The proposed rule would update Appendix A by replacing it with a list of industries based on NAICS and more recent injury and illness data.

The Rule: http://tinyurl.com/649rtz4

Accidents Caused by Fatiguing Employment Require a Remedy

Employees sometimes are directed to work long and stressful hours and then if they become injured they are left without a remedy. A Court recently held that even though an employee who was killed as a result of fatigue related accident while driving home after working 22 hours straight on "Black Friday" for Wal-Mart was without a remedy.

The Court reasoned that the law barred any recovery. The Workers' Compensation Act is not an available remedy the Court held since the injured occurred off the premises of the employer and not under the employers control. Also a civil action was barred by the deceased's estate against Wal-Mart since the Court reasoned that, "...The imposition of a duty upon an employer for injuries sustained by an employee, arguably arising out of the fatiguing conditions of employment, yet occurring outside of the course of employment would alter the necessary balance struck by the New Jersey legislature when defining the scope of compensable injuries."

Despite the changing economic times, the laws should keep pace with the growing momentum of making the workplace safer. Regressive employment practices are not the solution for a healthier workplace. It is more important than ever that the Legislature revisit working conditions and strike a balance to provide a regulatory response to injuries and accident caused by such adverse situations.

See: Aylward v Wal-Mart Stores Inc., CA No. 10-4799, 2011 WL 2357762 (D.N.J.) Decided June 9, 2011

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.

Wednesday, June 22, 2011

Congress Told CMS Must Continue to Stop Work Comp Cost Shifting

At a House Oversight hearing today it was revealed that over the last decade the Centers for Medicare and Medicaid Service (CMS) has obtained over $50 Billion in reimbursement under the Medicare Secondary Payer Act (MSP). CMS has worked diligently to stop cost shifting from workers' compensation insurance carriers to the US taxpayer.

Deborah Taylor, Chief Financial Officer and Director, Office of Financial Management Centers for Medicare and Medicaid Services, stated, "Any restrictions on existing MSP rights or recovery processes would adversely affect savings that would otherwise accrue to the Medicare Trust Funds through MSP recovery activities, as well as the $1 billion per year in cost-avoided savings that CMS is able to track. Proposals that would impose mandatory process changes may affect Medicare’s status as a secondary payer or its priority right of recovery, as well as CMS’ ability to prioritize its own workload. These changes may also have the unintended effect of undercutting the underlying intent of the statute, increasing costs, and reducing existing savings. "

Ms. Taylor concluded by stating that, "...CMS is committed to a transparent MSP process that ensures that beneficiaries receive the care they need, while reducing Medicare payments for claims that are the legal responsibility of a group health plan, NGHP, or other responsible party. We understand that the MSP process can present challenges to all involved in coordination of benefits between Medicare and other payers. We are committed to maintaining a strong line of communication with beneficiaries, insurance and workers’ compensation plans, and other stakeholders on MSP policy in general, as well as the new Section 111 reporting requirements. Additionally, we will look to expand and strengthen our training and education opportunities where possible. CMS looks forward to working with our partners and beneficiaries in the future to preserve the integrity of the Medicare program and secure the Medicare Trust Funds for future generations. We look forward to working with Congress as well on these important goals."

Related Resources

Medicare Secondary Payer: Process for Situations Involving Non-Group Health Plans, US GAO Study James C. Cosgrove, Director, Health Care - 6.22.11

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Tuesday, June 21, 2011

World Trade Center (Zadroga) Compensation Fund Rules Announced

Special Master Sheila L. Birnbaum has announced the publication of proposed rules to govern The Zadroga Act Health Claim Fund and the payment of $2.775 Billion of benefits over the next 6 years. The Special Master pledged a process: that is fair, transparent and easy to navigate; procedures that will not dilute the fund; and a full investigation of the response, clean-up and debris removal activities necessitated by the attacks and those injured.

"The James Zadroga 9/11 Health and Compensation Act of 2010 reopens the September 11th Victim Compensation Fund of 2001 to provide compensation to those who were physically injured or who died in the immediate aftermath of the terrorist attacks of September 11, 2001, including those who were injured during the clean-up and debris removal operations at a 9/11 crash site." This extension recognizes the considerable efforts of and effects on those engaged in or in the immediate vicinity of the response, recovery, and clean-up operations. The intent of the extension of the Fund is to provide fair and consistent compensation for those who are eligible and to do so in an efficient and timely manner.

"The regulations reiterate the expanded definition of the "9/11 Crash Site" to include both the crash site and contiguous areas of impact of the aircraft or subsequent fire, explosions, or building collapses. The Special Master will consider scientific evidence regarding the risks of physical harm resulting from the crashes. The routes of debris removal will be considered.

The Special master will "...maintain and publish a list of presumptively covered conditions that resulted from the air crashes or debris removal, and that this list shall consist of the physical injuries and conditions that are found, under the WTC Health Program, to be WTC-related health conditions."

Click Here to View Proposed Rules.

 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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