Work Injury During Sex: Ridiculous?

Guest Blog by Thomas M. Domer  

Not really. From time to time lurid headlines raise eyebrows about employees who claim workers' compensation for injuries occurred during sex. The most common response is “How ridiculous . . . The employee is not being paid to have sex (unless she is a hooker).”

A most recent headline notes an Australian woman who had hotel sex with an acquaintance and was injured when a wall-mounted light fell on her during the encounter. She sought workers' compensation because the incident occurred during a business trip and she claimed having sex on a business trip is “an ordinary incident of life” that entitles her to payment under workers' compensation law.

Traveling employees receive broad workers' compensation coverage in Wisconsin under a 3-step analysis:

1. Traveling employees are deemed to be in the course of employment at all times while on a trip (portal to portal);
2. Except when engaged in deviation for a private or personal purpose;
3. Acts reasonably necessary for or incidental to living are not deviations.

Skeptics may note that sex may or may not be reasonably necessary for living, but the last clause provides that acts merely incidental to living are not deviations and therefore coverage should be provided.

The traveling employee provision was created to remedy situations in which employees, whose work required them to live away from home for periods of time, were not compensated for injuries sustained during normal activities of daily living on a business trip. Wisconsin Supreme Court has issued a presumption that a traveling employee performs services incidental to employment at all times on a trip, with the burden of proving deviation falling to the employer.

Such widely varied activities as skiing, shopping, drinking, and swimming have been found compensable under the traveling employee statute. Recent court cases confirm that traveling employees may participate in reasonable recreational activities without deviating from their employment.

Many employee trips have a “dual purpose,” both personal and business. The Court’s criteria for coverage: If the business purpose could necessitate the trip even if the personal trip were cancelled, compensation is awarded.

Thomas M. Domer practices in Milwaukee, Wisconsin (www.domerlaw.com). He has authored and edited several publications including the legal treatise Wisconsin Workers' Compensation Law (West) and he is the Editor of the national publication, Workers' First Watch. Tom is past chair of the Workers' Compensation Section of the American Association for Justice. He is a charter Fellow in the College of Workers' Compensation Lawyers. He co-authors the nationally recognized Wisconsin Workers' Compensation Experts Blog.

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Employee Death From MRSA Infection Spreads Fear Among Co-Workers

A 28 year old employee's death caused by a MRSA infection has spread fear among co-workers at a NJ Motor Vehicle office. The infection, Methicillin-Resistant Staphylococcus Aureus (MRSA), is a highly contagious disease. Co-workers allege that the dead employee was infected by a customer.

See the NJ Journal Article: http://bit.ly/q9zHwp

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New CMS Policy Announced: Asbestos Exposure, Ingestion, and Implantation Issues and December 5, 1980

The Centers for Medicare & Medicaid Services has consistently applied the Medicare Secondary Payer (MSP) provision for liability insurance (including self-insurance) effective 12/5/1980. As a matter of policy, Medicare does not assert a MSP liability insurance based recovery claim against settlements, judgments, awards, or other payments, where the date of incident (DOI) occurred before 12/5/1980.

When a case involves continued exposure to an environmental hazard, or continued ingestion of a particular substance, Medicare focuses on the date of last exposure or ingestion for purposes of determining whether the exposure or ingestion occurred on or after 12/5/1980. Similarly, in cases involving ruptured implants that allegedly led to a toxic exposure, the exposure guidance or date of last exposure is used. For non-ruptured implanted medical devices, Medicare focuses on the date the implant was removed. (Note: The term “exposure” refers to the claimant’s actual physical exposure to the alleged environmental toxin, not the defendant’s legal exposure to liability.)

In the following situations, Medicare will assert a recovery claim against settlements, judgments, awards, or other payments, and the Medicare, Medicaid, and SCHIP Extension Act of 2007 (MMSEA) Section 111 MSP mandatory reporting rules must be followed:

• Exposure, ingestion, or the alleged effects of an implant on or after 12/5/1980 is claimed, released, or effectively released.

• A specified length of exposure or ingestion is required in order for the claimant to obtain the settlement, judgment, award, or other payment, and the claimant’s date of first exposure plus the specified length of time in the settlement, judgment, award or other payment equals a date on or after 12/5/1980. This also applies to implanted medical devices.

• A requirement of the settlement, judgment, award, or other payment is that the claimant was exposed to, or ingested, a substance on or after 12/5/1980. This rule also applies if the settlement, judgment, award, or other payment depends on an implant that was never removed or was removed on or after 12/5/1980.

When ALL of the following criteria are met, Medicare will not assert a recovery claim against a liability insurance (including self-insurance) settlement, judgment, award, or other payment; and MMSEA Section 111 MSP reporting is not required. (Note: Where multiple defendants are involved, the claimant must meet all of these criteria for each individual defendant in order for a settlement, judgment, award, or other payment from that defendant to be exempt from a potential
MSP recovery claim and MMSEA Section 111 reporting):

•All exposure or ingestion ended, or the implant was removed before 12/5/1980; and

•Exposure, ingestion, or an implant on or after 12/5/1980 has not been claimed and/or specifically released; and,

•There is either no release for the exposure, ingestion, or an implant on or after 12/5/1980; or where there is such a release, it is a broad general release (rather than a specific release), which effectively releases exposure or ingestion on or after 12/5/1980. The rule also applies if the broad general release involves an implant.

For Specific Examples Click Here To Read the CMS Memo

REPORTING REMINDER:

Information related to the MMSEA Section 111 MSP reporting requirements can be found at
www.cms.hhs.gov/MandatoryInsRep. When reporting a potential settlement, judgment, award, or other payment related to exposure, ingestion, or implantation, the date of first exposure/date of first ingestion/date of implantation is the date that MUST be reported as the DOI. This is true for purposes of individual self-identification of a pending claim to the Centers for Medicare & Medicaid Services’ Coordination of Benefits Contractor, as well as for MMSEA Section 111 reporting.
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• The Setoff Nightmare: The Pension Well Runs Dry (workers-compensation.blogspot.com)
• Census of Fatal Occupational Injuries Summary, 2010 (workers-compensation.blogspot.com)
• Qui Tam Action for MSP Results in Costs to Plaintiff (workers-compensation.blogspot.com)

More CMS Resources: 

Check out our Blog, click here.

Check our our Website, click here.

For over 4 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.

CMS Announced Status Update and Future Changes

As part of the Centers for Medicare & Medicaid Service (CMS) efforts to continuously improve its Medicare Secondary Payer (MSP) program; CMS has posted the following information to the MSP websites:

1) An ALERT delaying the Medicare, Medicaid, and SCHIP Extension Act of 2007 (MMSEA) Section 111 MSP reporting requirement for certain liability insurance (including self-insurance) settlements, judgments, awards, or other payments is now posted at www.cms.gov/MandatoryInsRep.

2) Policy guidance related to Exposure, Ingestion, and Implantation issues, and December 5, 1980, is now posted at www.cms.gov/MandatoryInsRep and www.cms.gov/COBGeneralInformation.

3) An ALERT related to Qualified Settlement Funds, under Section 468B of the Internal Revenue Code, is now posted at www.cms.gov/MandatoryInsRep.

4) A policy memorandum, for liability insurance (including self-insurance), on the acceptance of the treating physician's certification, and its impact on the issue of protecting Medicare's interests with respect to future medicals is now posted at www.cms.gov/COBGeneralInformation.

In addition, on September 30, 2011, the MSPRC will implement a self-service information feature to its customer service line. This feature gives callers the ability to get the most up-to-date Demand/Conditional Payment amounts, and the dates that those letters were issued, without having to speak to a customer service representative. The self-service feature will be available for extended hours, and callers will have the option of requesting information on multiple cases during one phone call.

Beginning in October 2011, CMS will implement an option to pay a fixed percentage of certain physical trauma-based liability cases with settlement amounts of $5000 or less. Detailed information on this option will be posted as an ALERT, on or before October 21, 2011, on the MSPRC website at www.MSPRC.info.

Upcoming improvements to the MSP program, expected within the next 3-9 months, include the following:

• The implementation of a MSPRC portal, where the beneficiary/representative can obtain information about Medicare's claim payments, demand letters, etc., and input information related to a settlement, disputed claims, etc.

• The implementation of an option that allows for an immediate payment to Medicare for future medical costs that are claimed/released/effectively released in a settlement.

• The implementation of a process that provides Medicare's conditional payment amount, prior to settlement in certain situations.

Related articles

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How To Determine If A Substance Causes Cancer at Work

The National Institute for Occupational Safety and Health (NIOSH) is seeking public input to determine what substances cause cancer and at what level of occupational exposure.

"The National Institute for Occupational Safety and Health (NIOSH) of the Centers for Disease Control and Prevention (CDC) intends to review its approach to classifying carcinogens and establishing recommended exposure limits (RELs) for occupational exposures to hazards associated with cancer. As part of this effort, NIOSH is requesting initial input on these issues (including answers to the 5 questions in the following section), to be submitted to the NIOSH Docket number 240, for a comment period lasting through September 22, 2011. This information will be taken under consideration and used to inform NIOSH efforts to assess and document its carcinogen policy and REL policy regarding occupational hazards associated with cancer. NIOSH has also created a new NIOSH Cancer and REL Policy Web Topic Page [see http://www.cdc.gov/niosh/topics/cancer/policy.html] to provide additional details about this effort and progress updates."

"NIOSH is announcing a Request for Information on key issues identified and associated with the NIOSH Carcinogen and REL policies. Special emphasis will be placed on consideration of technical and scientific issues with the current NIOSH Cancer and REL Policies that require further examination including the following:Show citation box

(1) Should there explicitly be a carcinogen policy as opposed to a broader policy on toxicant identification and classification (e.g.carcinogens, reproductive hazards, neurotoxic agents)?Show citation box

(2) What evidence should form the basis for determining that substances are carcinogens? How should these criteria correspond to nomenclature and categorizations (e.g., known, reasonably anticipated,etc.)?Show citation box

(3) Should 1 in 1,000 working lifetime risk (for persons occupationally exposed) be the target level for a recommended exposure limit (REL) for carcinogens or should lower targets be considered?Show citation box

(4) In establishing NIOSH RELs, how should the phrase “to the extent feasible” (defined in the 1995 NIOSH Recommended Exposure Limit Policy) be interpreted and applied?Show citation box

(5) In the absence of data, what uncertainties or assumptions areappropriate for use in the development of RELs? What is the utility of a standard ”action level” (i.e., an exposure limit set below the REL typically used to trigger risk management actions) and how should it be set? How should NIOSH address worker exposure to complex mixtures?

Public Comment Period: Comments must be received by September 22, 2011.

The concept of a compensable industrial disease has developed only recently and its acceptance has lagged far behind that of industrial accidents. The original Workers' Compensation Acts, as promulgated from the year 1911 forward by many of the states, did not provide for the recognition of occupational illness and disease as compensable events. As demands have been placed upon the medical system to treat and to prevent occupational illness, the legal system, under social, economic, and political pressure, has sought to provide a remedy for the thousands of injured workers who have suffered and who are continuing to suffer from occupational illness and disease. 

For over 4 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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• Industrial Disease: The Quest for Recognition - The Need for Adequate Benefits (gelmans.com)

SeaWorld killer whale attacks expose incomplete incident reporting

Guest Blog By Edgar Romano*

This week a trial began in Florida between SeaWorld theme parks and the Occupational Safety and Health Administration(OSHA). The trial is over several citations and a fine stemming from incidents in which killer whales (also known as orcas) killed or injured trainers at SeaWorld water parks. Most recently, on February 24, 2010, a giant killer whale named Tilikum gruesomely killed trainer Dawn Brancheau by grabbing her ponytail and pulling her under the water in front of a horrified audience.

In August of 2011, SeaWorld was fined $75,000 by OSHA for three safety violations, including one in connection with Brancheau’s death. The agency’s investigation “revealed that SeaWorld trainers had an extensive history of unexpected and potentially dangerous incidents involving killer whales at its various facilities,” the OSHA statement said.

Prior to Brancheau’s death, California OSHA had issued a citation against SeaWorld, coming to the conclusion that if procedures at the parks didn’t change, eventually somebody was going to die. SeaWorld used political lobbying to have the citation withdrawn. Just a few years later Dawn Brancheau was killed.

In yesterday’s hearing, OSHA asserted that, although SeaWorld does walk each trainer through all recorded dangerous incidents between whales and humans (98 incidents since 1988), there are many dangerous incidents that just don’t make it into the incident reports.

This brings up an important point that all employers would be smart to take note of: without comprehensive reporting, working conditions will remain unsafe.

EDGAR ROMANO received his undergraduate degree cum laude from Brandeis University and his Juris Doctorate from The John Marshall Law School. He is a Senior Partner in the Workers' Compensation Department and has been with the firm since 1995. Mr. Romano is actively engaged in litigating workers compensation claims including those claims arising out of occupational exposure to asbestos and industrial irritants. He has lectured extensively to labor unions and medical providers. Mr. Romano isPresident of the Workers Injury Law and Advocacy Group and is on the Board of Directors of the New York State Workers' Compensation Bar Association. He is a member of the Leader's Forum of the American Association of Justice and Vice-President of the Workers' Compensation Section. He is a member of theNew York State Bar Association, the New York State Trial Lawyers Association, the Jewish Lawyer's Guild, and NYCOSH. Mr. Romano serves on the Advisory Committee of the World Trade Center Medical Monitoring Program at Mt. Sinai Hospital. He is listed in "Who's Who in American Law"..

Mr. Edgar Romano was selected as one of the "Workers' Compensation Notable People for 2008".  He blogs regularly atWorkers' Law Watch where this posted appeared originally on September 23, 2011.

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Bad Cases Make Bad Law

Guest Blog by Thomas M. Domer  

The Illinois legislature just passed a law in response to a notorious claim in which a Sheriff Deputy, driving more than 100 miles per hour while using his cell phone, crossed a median and slammed into a car, killing two teenage sisters.

The claim drew regional and national attention and ultimately resulted in a revision in Illinois’ workers' compensation claims that would prevent any State employee hurt at work from being eligible for workers' compensation if the injury happened during a forcible felony, an aggravated DUI, or reckless homicide, if any of those crimes killed or injured another person.

The law is much more restrictive than the initial media summaries blaring “State law bars State employees injured while committing crimes from receiving worker’s comp.”

This is another example of bad cases creating bad law. The Sheriff filed a workers' compensation claim for his injuries but an arbitrator concluded that his high speed and cell phone use was a “substantial and unjustifiable risk resulting in gross deviation” barring his claim. The Illinois legislature reacted to the media and public outcry.

In other states, notably Wisconsin, an advisory council meets annually to deal with such perceived excesses, and to change the law accordingly.

A few years ago I represented a worker who, despite his employer’s offer to re-employ him with his disability, chose instead to obtain vocational rehabilitation, which was ordered by a judge and the Commission. His claim seemed to run afoul of the express purpose of worker’s compensation in Wisconsin and other states, which is to restore the injured worker to a job.

After the case was reported, the employer and insurance carrier representatives on Wisconsin’s Advisory Council recommended (appropriately) this perceived loophole be closed, and the new law barred the employer’s liability for vocational rehabilitation benefits if the employer offered a job to the injured worker which was refused.

Since the early days of workers' compensation in Wisconsin the courts have liberally construed “in the course of employment.” Absent evidence of abandonment of employment, it is presumed employment continues, except if a deviation can be proved.

Poor judgment or negligence is not synonymous with deviation and an employee must willfully abandon job duties to be excluded. If an employee is injured while engaging in an activity and disobedience of an order of the employer solely for the employee’s own benefit, workers' compensation benefits will be denied. However, if the disobedient actions were in furtherance of the employer’s interest rather than the employee’s, compensation is granted.

As one workers' compensation veteran judge has noted, “even bad employees get compensation.” The no-fault nature of workers' compensation sometimes produces hard-to-swallow results.

Thomas M. Domer practices in Milwaukee, Wisconsin (www.domerlaw.com). He has authored and edited several publications including the legal treatise Wisconsin Workers' Compensation Law (West) and he is the Editor of the national publication, Workers' First Watch. Tom is past chair of the Workers' Compensation Section of the American Association for Justice. He is a charter Fellow in the College of Workers' Compensation Lawyers. He co-authors the nationally recognized Wisconsin Workers' Compensation Experts.