A Brokered Marriage: Medicare and Workers’ Compensation

The problems of old age are now worrying are beginning to influence decision makers on what to do with two major delivery system in the United States. Both the Medicare system and the workers’ compensation medical delivery system are now ailing. The fiscal remedy maybe their marriage.

The Medicare Hospital Fund will be insolvent by 2017. The Trustees of the program have indicated that the program has been paying out more than it has collected in taxes and interest over the last two years. This estimated date of insolvency is two years ahead of schedule and the shortfall will necessitate a deposit of $13.4 trillion.

Robert Pear reported in the NY Times this week, “’The financial outlook for the hospital insurance trust fund is significantly less favorable than projected in last year's annual report,’ the trustees said, adding, ‘Actual payroll tax income in 2008 and projected future amounts are significantly lower than previously projected, due to lower levels of average wages and fewer covered workers.’”

The workers’ compensation medical delivery system has been plagued with a set of its own difficulties including: cost shifting to Medicare and reimbursement issues, rising costs that now exceed the indemnity aspect of the program, lack of uniformity and delay in delivery of medical benefits, staggering litigation and administrative costs and uncertainty as to future premiums because of a failing economy.

The voice of change is now being heard in Washington as health care takes the stage front and center on the issues of affordability and choice. David Axelrod has indicated that the Administration is committed to "fix what's broken in the system and preserve what's good."

When the Social Security system was initial enacted, the country faced similar economic troubles. Employee medical coverage was not a consideration of the original program. The geriatric nature of both the Social Security system and the multiple workers’ compensation programs are now evidencing the problems of old age. A marriage of convenience maybe just what the future holds.

Budget Crisis Triggers NJ DWC Closing

The NJ Division of Workers' Compensation will be closed on May 22, 2009. This closing is the result of a State mandated furlough because of the lack of revenue in the NJ State Treasury.

Hyper Technical Procedure Rejected

The NJ Appellate Division, while ruling against an injured worker in a claim where the worker exhibited "egregious conduct" in failing to keep numerous medical exams, in dicta, declared that hyper technical rules should not be enforced in workers' compensation. The Appellate forum declared that even though a notice of motion was "less than perfect," that alone should not be the basis for an adverse ruling.

Williams v, Family Choice, at al., Docket No. A-4474-07T3 (Decided May 2008) 2009 WL 1286895

RICO Case Goes to the US Supreme Court

A Petition for Certiorari has been filed in Brown v. Cassens Transport Co., 546 F.3d 347 (6th Cir. Oct 23, 2008) (NO. 05-2089), following the rehearing and rehearing en banc denied (Jan 05, 2009). The Petition was filed on May 6, 2009. In a landmark decision of immense national significance, the US Sixth Circuit Court of Appeals ruled that a RICO claim brought by injured workers against their employer, insurance carrier and employer medical expert could proceed.

The application states:

"The Sixth Circuit's ruling that the WDCA does not involve the business of insurance is hardly a model of clarity, but it plainly rests on two central and essential elements. First, the court held that workers' compensation categorically is not insurance because, in the Sixth Circuit's view, workers' compensation does not involve a “contractual insurance relationship.” App., infra, 20a. Second, the court regarded as irrelevant Michigan's regulation of the nature of the workers' compensation benefits that must be provided by employers - including requirements imposed identically on employers who self-insure their workers' compensation risks and on those who purchase insurance of those risks - because Cassens self-insures and the court believed that self-insurance does not involve the business of insurance under the McCarran-Ferguson Act. Id. at 22a-24a. But both aspects of this analysis are wrong. They depart from this Court's precedent, will lead to inconsistent treatment of identically situated businesses, and will frustrate state policy regarding both insurance and workers' compensation."

"The issues presented here are ones of enormous practical importance: the court of appeals' holding reads significant limits into the McCarran-Ferguson Act, threatening to interfere with state insurance regulation and overturn the balance struck by States *31 in their workers' compensation systems. Most obviously, by categorically holding that state regulation of employers who self-insure their workers' compensation liability is outside the scope of the McCarran-Ferguson Act, the holding below invites a proliferation of RICO strike suits brought by aggrieved workers' compensation claimants. The attractiveness of RICO's remedies - including treble damages and attorney's fees, e.g., 18 U.S.C. § 1964(c) - and the extraordinarily burdensome nature of RICO discovery assures that an ever-increasing volume of workers' compensation litigation will find its way to federal court for decision under federal law. See, e.g., Cristin Schmitz, Employers Face RICO Claims For Workers Comp Denials, Inside Counsel (Feb. 1, 2009) (RICO permits “wide-open” discovery; plaintiffs' counsel states that if case goes to trial, “I am going to discover every single comp claim that ever existed in the past four years *** so it's going to open a real can of worms”). To the extent that settlements are not compelled in such suits, federal courts will have to pass on the merits of the underlying workers' compensation claims, creating the potential for overlapping (and possibly conflicting) adjudication of eligibility for workers' compensation benefits."

Citation:

2009 WL 1265298 (U.S.) (Appellate Petition, Motion and Filing)

Supreme Court of the United States.

CASSENS TRANSPORT COMPANY, Crawford & Company, and Dr. Saul Margules, Petitioners,

v.

Paul BROWN, William Fanaly, Charles Thomas, Gary Riggs, Robert Orlikowski, and Scott Way, Respondents.

No. 08-1375.

May 6, 2009.

NCCI Issues a “Guarded” Report of Health of Workers’ Compensation

A report that the short term was “guarded” and the long term “cautionary” was issued this week by NCCI Holdings, Inc. Medical care continues to lead the list of concerns as the costs continue to out pace wages. Medical continues to be problematic as CMS (The Centers for Medicare and Medicaid Services) continue to become more involved in the workers’ compensation process that the Sec. 111 Mandatory Registration process and the recovery efforts and monitoring of future care plans, ie. Workers’ compensation Medicare set aside arrangement.

Lead is Still Breaking the Learning Cycle

The book, "Lead Babies Breaking the Cycle of Learning Disabilities, Declining IQ, ADHD, Behavior Problems, and Autism" by Joanna Cerazy, MEd and Sandra Cottingham, PhD addresses this issue.

"This groundbreaking study reveals the continuing danger that lead contamination presents to health—particularly in the earliest stages of life. Disclosure about the lead content in house paint, gasoline, canned food, and tap water revolutionized the manufacturing of those products a generation ago, but lead-based products are still produced and pose a health hazard as lead remains in the environment years after its initial use."

Asbestos MDL Goal To Remand Cases To US District Courts

Asbestos cases pending in the Multi District Court Litigation (MDL 875) may be remanded to the US District Courts throughout the country. As of January 1, 2009, the inventory of cases pending amounted to 58,625 cases encompassing 3.3 milllion claims.

In an Order entered on April 30, 2009, Judge Eduardo C. Roberto stated that, "remanding cases to the transferor court at an early date remains as important administrative goal of the Court." The Court set up a procedure permitting the Plaintiffs to a file a motion requesting the entry of a "suggestion of remand." by the Court.

Construction Industry Independent Contractor Act

The misclassification of workers is a major problem in the workers' compensation market. Some legislatures, like New Jersey, have enacted laws prohibiting the misclassification of workers.

"The Legislature finds that employers in the construction industry who improperly classify employees as independent contractors deprive these workers of proper Social Security benefits and other benefits, while reducing the employers' State and federal tax withholdings and related obligations. Moreover, this practice puts businesses that bear higher costs for complying with the law at a competitive disadvantage." NJAC 12:65

Automatic Stay Invoked in Chrysler Bankrutcy in MDL Action

On April 30, 2009 Chrysler LLC and certain domestic subsidiaries filed a voluntary petition for bankruptcy in the US Bankruptcy Court for the Southern District of NY under chapter 11 of title 11 of the USC. An automatic stay imposed under section 362 of the Bankruptcy Code has been invoked. A suggestion of Bankruptcy has been filed in MDL No, 875 (asbestos).

OSHA Head Announces Strategy To Protect American Workers From Flu Pandemic

Testifying before the US Congress, Jordan Barab, Acting Assistant Secretary for Occupational Safety and Health (OSHA), declared that the agency had a strategy for protecting American workers. He declared that, "The full range of OSHA’s training, education, enforcement, and public outreach programs will be used to help employers and workers protect themselves at work."


Barab further stated, " ....addressing an influenza pandemic that threatens the workplaces of this nation, we are confronting an unprecedented hazard. In OSHA’s 38-year history, America has never experienced a flu pandemic. However, I would characterize this situation for the workforce just as the President has described it for the nation: “Cause for deep concern, but not panic.” I am very confident in the expertise of OSHA’s medical, scientific, compliance assistance and enforcement personnel. OSHA is prepared to address this threat and we will protect our workforce. I will keep you informed about OSHA efforts to protect America’s working men and women from pandemic flu exposure."

US Congress to Hold Hearing on Helping Schools and Workplaces Prepare For Flu Virus

Taking urgent actions in light of the threat of a pandemic, The Hon. George Miller, Chairman of the Committee on Education and Labor has scheduled a hearing this week.

On Thursday, May 7, the Committee will hold a hearing to examine how federal agencies can help child care, schools, colleges and workplaces prepare for the H1N1 flu virus and future pandemics. The hearing will also provide an update on how schools and workplaces are being affected by and responding to the current outbreak.

WHAT: Hearing on “Ensuring Preparedness Against the Flu Virus at School and Work"

WHO:
Jordan Barab, Acting Assistant Secretary, Occupational Safety and Health Administration, Washington, DC

Ann Brockhaus, Occupational Safety and Health Consultant, ORC Worldwide, Washington, DC

Jack O'Connell, Superintendent of Public Instruction, California Department of Education, Sacramento, CA

Miguel Garcia, Registered Nurse and member, American Federation of State, County and Municipal Employees, Los Angeles, CA

Bill Modzeleski, Associate Assistant Deputy Secretary, Office of Safe and Drug-Free Schools, Department of Education, Washington, DC

Dr. Anne Schuchat, Deputy Director for Science and Program (Interim), Centers for Disease Control, Atlanta, GA

WHEN: Thursday, May 7, 2009 10:00 a.m. ET
Please check the Committee schedule for potential updates »

WHERE: House Education and Labor Committee Hearing Room 2175 Rayburn House Office Building Washington, D.C.

California Workers Compensation Fund Alerts Employers and Employees as to Flu

The California Workers' Compensation Fund has taken the initiative of alerting employers and employees as to preventative measures that should be taken to prevent the spread of Swine Flu. 

"To protect California workers and businesses, State Fund advises employers to educate their employees about swine flu facts, symptoms, and preventative measures and to prepare their business operations should a pandemic outbreak significantly reduce their workforce or disrupt their business operation. "

As of today there are 403 reported cases and one death according to the CDC. Numbers are expected to rise as testing has now been shifted from the CDC to the States. California has 49 reported cases.

The novel influenza outbreak (H1N1) has given rise to concern on the impact what a pandemic would cause. The Department of Homeland Security has posted information that workers' compensation programs would probably become involved in responding to the emergency. NIOSH has issued an alert concerning the impact upon psychological and social workers comparing a potential pandemic to the 911 tragedy.

OMB Launches Updated Right To Know Website

OMB Watch launched a redesigned and expanded website for the Right-to-Know Network (RTK NET) at www.rtknet.org. The website serves as a source for information about environmental and public health threats and opportunities for public engagement with environmental policy, and it offers news, data, and analysis of environmental right-to-know issues.

Liberty Mutual Suffers 92% Loss In First Quarter Profits

Liberty Mutual reported that its 1st Quarter profits fell 92%.  The company sustained loss of net income. This it reported $28 Million and the same quarter last year it had reported $360 Million in income. Liberty Mutual sustained a private equity loss of $373 Million in the first quarter.

Advocates Lobby to Eliminate the Death Penalty in Workers' Compensation

Compensating dependents in the workers' compensation has always been problematic. The issue is that the system just can't make complex issues simple and hope that they just go away. 

Dependents are again advocating for the elimination of what appears as "the death penalty in workers' compensation". Workers' Compensation is a scheduled system of payments usually based on wages in effect at the of death capped by wages in effect at the time of employment. For the most part, this is ALWAYS lower than the wages paid to the worker when living. The problem is that in some jurisdictions as NJ, they never increased benefits due to inflation or with cost of living adjustments. Those dependents (post 12/31/1979) are caught in such a trap.

The Sweeney-Madden Bill would correct this injustice in New Jersey. The bill, S-785 would enact an increase effective July 1, 2011. As for the years gone bye and the failure to pay retroactive benefits, they will remain as a monument to an injustice.

FL Legislature Moves to Cap Attorney's Fees

In an action reseversing a prior court decision, the Florida legislature has passed legislation capping counsel fees in FL workers' compensation matters.

CDC Issues A Safety Alert For Laboratory Workers

The safety of laboratory workers involved in testing for the Swine Flu Virus (H1N1 Influenza Virus) is the subject of a alert issued by the US Centers for Disease Control (CDC). The guidance is aimed at laboratory workers who may be processing or performing diagnostic testing on clinical specimens from patients with suspected H1N1 influenza virus infection, or performing viral isolation.

NIOSH Warns Psychological & Social Support Necessary for Influenza Responders

Comparing the 911 Tragedy with a possible Flu Pandemic, NIOSH has issued an alert that Psychological and Social support for essential service workers may be required during an influenza pandemic.

"This document addresses the psychological and social ("psychosocial") needs of essential service workers during a severe2 influenza pandemic. Essential service workers may include health care workers, public health workers, first-responder organizations, and employees of public utilities, sanitation, transportation, and food and medicine supply-chain companies."

Diesel Emissions Causing Injury to Workers

Diesel exhaust continues to be a major health hazard for certain workers. The American Lung Association has reported that, "Truck drivers, dockworkers and railroad workers may face higher risk of death from lung cancer and COPD from breathing diesel emissions on the job. Studies found that these workers who inhaled diesel exhaust on the job were much more likely to die from lung cancer, COPD and heart disease."  

CMS Posts Link To Mandatory Reporting Website

CMS has now posted a link to the Section 111 Mandatory Reporting web site. Registration is required.

https://www.section111.cms.hhs.gov/MRA/LoginWarning.action

Homeland Security Takes Lead in Flu Pandemic Pointing to Compensation Programs

The U.S. Department of Homeland Security (USDHS) has emerged as the lead agency in directing a response to the potential swine flu pandemic. The agency is following a well defined plan published in 2005 to respond to the threat in an effort to secure the Nation's critical infrastructure and key resources (CI/KR). The viability of business in the US remains a critical aspect of the plan and the workers' compensation system is critical tool in the implementation of the response.

The threat is defined as serious. "The (1918 Spanish Influenza} epidemic killed, at a very, very conservative estimate, 550,000 Americans in 10 months; that's more Americans than died in combat in all the wars of this century." Alfred W. Crosby, Influenza, 1918, The American Experience.

While pandemics are unpredictable, the USDHS has estimated that the disease attack rate will be 30 percent in the overall population during the pandemic. The agency estimates that an average of 20 percent of working adults will become ill during a community outbreak. Multiple waves of the disease will occur with each lasting 2 or 3 months.

The approach taken by the Federal government will be to assess the threat and direct coordination with the State agencies. A fundamental part of the plan is to provide psychosocial support and meet the informational needs of the workforce and develop contingency plans for absenteeism, especially among health department groups and develop workforce resiliency.

As the situation unfolds, workers' compensation programs will be tasked to new limits. Much is unknown, "...We are telling everyone to prepare for a pandemic. It's tricky....This is scary and we don't know....That's the message." Dick Thompson, World Health Organization. By directing ill workers to appropriate compensation programs, the USDHS has taken the initial steps necessary to respond to changing conditions and rumors.

The Compensability of a Swine Flu Pandemic

The US Centers for Disease Control (CDC) has issued an alert for the spread of human swine flu virus. Employers and employees will now need to be alerted to preparations and the reactions that may occur.

In preparation for a Smallpox epidemic, the US government, several years ago, issued rules concerning illness flowing from the distribution of smallpox vaccine. Now the focus will switch from not only compensable conditions flowing from preparation to compensable and contagious diseases in the workplace.

The federal government established a no-fault program entitled the Smallpox Emergency Personnel Protection Act of 2003 (SEPPA) in an effort to provide benefits and/or compensation to certain individuals, including health-care workers and emergency responders, who are injured as a result of the administration of smallpox countermeasures including the smallpox (vaccinia) vaccine. The Department of Health and Human Services, under rule making authority, established a vaccine injury table and procedural process for filing a request for benefits and/or compensation under the Program.

Already the CDC reported today, "Human cases of swine influenza A (H1N1) virus infection have been identified in the U.S. in San Diego County and Imperial County, California as well as in San Antonio, Texas. Internationally, human cases of swine influenza A (H1N1) virus infection have been identified in Mexico."

The CDC has reported that Swine flu has impacted the US in the past: "Like seasonal flu, swine flu in humans can vary in severity from mild to severe. Between 2005 until January 2009, 12 human cases of swine flu were detected in the U.S. with no deaths occurring. However, swine flu infection can be serious. In September 1988, a previously healthy 32-year-old pregnant woman in Wisconsin was hospitalized for pneumonia after being infected with swine flu and died 8 days later. A swine flu outbreak in Fort Dix, New Jersey occurred in 1976 that caused more than 200 cases with serious illness in several people and one death."

As new cases become suspect, concern will focuss on the spread of the disease in the workplace environment. Over 75 students are being tested in New York City. The Governor of California has issued an alert. As of now the Federal government is directing individuals to their local workers' compensation programs. Since a pandemic could be considered a challenge to Homeland Security, the federalization of prevention, treatment and compensation may ultimately result in expansion of a nationalization of the program.
......
To read more about compensation for the flu click here.

CDC Warns of New Cases of Malignant Mesothelioma

The CDC has issued a warning that new cases of malignant mesothelioma will occur and should be documented by physicians.

"Malignant mesothelioma is a fatal cancer primarily associated with exposure to asbestos. The latency period between first exposure to asbestos and clinical disease usually is 20--40 years (1). Although asbestos is no longer mined in the United States, the mineral is still imported, and a substantial amount of asbestos remaining in buildings eventually will be removed, either during remediation or demolition. Currently, an estimated 1.3 million construction and general industry workers potentially are being exposed to asbestos (2). To characterize mortality attributed to mesothelioma, CDC's National Institute for Occupational Safety and Health (NIOSH) analyzed annual multiple-cause-of-death records for 1999--2005, the most recent years for which complete data are available.* For those years, a total of 18,068 deaths of persons with malignant mesothelioma were reported, increasing from 2,482 deaths in 1999 to 2,704 in 2005, but the annual death rate was stable (14.1 per million in 1999 and 14.0 in 2005). Maintenance, renovation, or demolition activities that might disturb asbestos should be performed with precautions that sufficiently prevent exposures for workers and the public. In addition, physicians should document the occupational history of all suspected and confirmed mesothelioma cases."

"Although asbestos has been eliminated in the manufacture of many products, it is still being imported (approximately 1,730 metric tons in 2007) and used in the United States (3) in various construction and transportation products (6). Ensuring a future decrease in mesothelioma mortality requires meticulous control of exposures to asbestos and other materials that might cause mesothelioma. Recent studies suggest that carbon nanotubes (fiber-shaped nanoparticles), which are increasingly being used in manufacturing (9), might share the carcinogenic mechanism postulated for asbestos and induce mesothelioma (10), underscoring the need for documentation of occupational history in future cases. Capturing occupational history information for mesothelioma cases is important to identify industries and occupations placing workers at risk for this lethal disease."

Settlement Barring Future Workers' Compensation Claims Void

The Idaho Supreme Court ruled that of a the resolution of a pending workers' compensation for a lump sum dollar value could not act as a bar to future claims. 

Wernecke v. St. Maries Joint School Dist. No. 401, --- P.3d ----, 2009 WL 982690 (Idaho, 2009) 

CMS Issues Announcement on Submitting Rated Age

"Effective immediately [April 21, 2009] , submitted rated ages that do not conform to CMS' standards for acceptable proof of Rated Age, which includes being independent, on the letterhead of an insurance carrier or settlement broker, and includes a statement from the submitter that all rated ages obtained on the claimant have been included, will be priced using actual age and CMS will not consider re-pricing the workers' compensation case using the new or corrected rated age information provided by submitters."

Industry Focuses on AAJ's Effort to Lobby for a Workers' Compensation National Commission

Industry has taken focus on the effort by AAJ's (American Association of Justice [formerly The American Trial Lawyers Association (ATLA (r)]) lobbying effort. Citing support of H.R. 635, a bill to establish a National Commission on State Workers' Compensation Laws, the Manhattan Institutes's blog has taken aim at the topics of speakers: Reinhardt, Galpern and Kohl, who are scheduled to speak at the AAJ annual meeting in San Francisco this summer.

The original 1972 National Commission Workers' Compensation Laws made 19 "essential recommendations." The US Department of Labor in 2004 compared the efforts by States to comply.

Court Awards Dependency Benefits to Police Officer Who Committed Suicide

The dependents of a deceased police officer will receive benefits as a result of the officer's work-related suicide related to stress.

Wilde v Township of Cranford, NJ Spp. Div. A-3391-07T2 - Decided April 17, 2009

Lead Exposure For Adults Continues as a Major Problem

The US CDC has reported that overexposure to inorganic lead remains a critical health problem.  Lead can cause acute and chronic adverse effects in multiple organ systems, ranging from subclinical changes in function to symptomatic, life-threatening intoxication." 

"Industry subsectors with the highest numbers of lead-exposed workers were manufacturing of storage batteries, mining of lead and zinc ores, and painting and paper hanging. The most common nonoccupational exposures were shooting firearms; remodeling, renovating, or painting; retained bullets (gunshot wounds); and eating food containing lead."

Pennsylvania, Missouri and New Mexico had the highest rates of exposure.

Latex Sensitive RN Terminated from Benefits

A latex sensitive registered nurse was terminated from workers' compensation benefits for failing to "stay attached" to the labor market. While she was awarded benefits at $400 per weeks, her attorneys were unable to offer testimony indicating that was searching for unemployment or sough retraining.

St. John's Hospital, 2009WL 1009621 (N.Y. Workers' Compensation Board 2009) Decided April 6, 2009

Court Holds Traumatic Claims Subject to Apportionment

The NJ Appellate Division ruled that apportionment of responsibility was required in a traumatic claim. They rationalized that in a traumatic, claim where various employments contributed in a material degree to the ultimate disability, apportionment was mandated.

The Court reasoned that traumatic claims did not involve the existence of a disease that was undisclosed and unknown over a long period of time and a retrospective analysis could establish a "triggering date" to fix an onset date.

Matters requiring implementation of the doctrine of last injurious rule involved claims where there was "an insidious etiology" and manifestation occurred over a protracted period of time.

PETER T. NOLAN - v. KLEINKNECHT ELECTRIC CO., INC. Decided April 17, 2009 Unpublished 2009 WL 1011174 (NJ App. Div 2009)

Canadian Government Report Reveals Strong Link Between Lung Cancer and Chrysotile Asbestos Mined in Canada

For more than a year a Canadian news agency, CanWest, sought to have released to the public a report that concludes that "a strong relationship" exists between lung cancer and asbestos mined in Canada. 

Asbestos production is not yet banned in Canada. "....Canada remains one of the world's largest exporters of chrysotile asbestos; last year, more than $100 million worth of chrysotile asbestos was exported to developing countries, mainly India, Indonesia and Thailand."

Texas State Senate Passes Bill Establishing Causation Proof in Mesothelioma Claims

The Texas State Senate has passed legislation that will ease the proof in mesothelioma claims.

The bill establishes a standard requiring that a claimant prove that a defendant's product or conduct was a substantial factor in causing an injury and that the exposed person's cumulative exposure to asbestos fibers was the cause of person's mesothelioma.  

Sec.  90.013.  STANDARD OF CAUSATION FOR CLAIMS INVOLVING MALIGNANT MESOTHELIOMA.  (a)  Requires a claimant, to recover damages for malignant mesothelioma allegedly caused by exposure to asbestos or asbestos containing products, to prove, among other elements of the claim, that a defendant's product or conduct was a substantial factor in causing the claimant's injury.

(b)   Provides that a defendant's product or conduct was a substantial factor in causing the exposed claimant's injury if the claimant presents qualitative proof that the asbestos exposure attributed to the defendant was substantial, and not merely de minimis, when considering the frequency of exposure, the regularity of exposure, and the proximity of the exposed person to the source of the asbestos fibers.

(c)  Requires a defendant who seeks a determination of the percentage of responsibility of another person under Section 33.003(a) (relating to determination of percentage of responsibility of certain persons), to present qualitative proof in the same manner as is required of a claimant under Subsection (b).

 (d)  Provides that neither a claimant nor a defendant seeking a determination under Section 33.003(a) are required to prove numerically the dose, approximate or otherwise, of asbestos fibers to which the claimant was exposed that are attributable to the defendant or another person under Section 33.003(a).

 (e)  Provides that nothing in this section modifies the general legal requirements for the admissibility of expert testimony with respect to the issue of causation.

Major Players The Rush to Sell More Coverage

A group of the big three workers' compensation carriers (Travelers, Zurich & CNA) is now rushing to sell discounted workers' compensation coverage in Louisiana. 

“Right now it’s a profitable bit of business, so companies are getting aggressive,” said Jeff Nohr, owner of a Louisiana insurance agency.

CMS Is Requesting for Comments on Mandatory Reporting

As the deadline for implementation nears, The Centers for Medicare & Medicaid Services (CMS) has made a request for more comments on the implementation of mandatory reporting under Section 111 of the Medicare, Medicaid, and SCHIP Extension Act of 2007 (See 42 U.S.C. 1395y(b)(7)&(b)(8)).

Failures at OSHA Put Workers at Risk

A recently released report from the US Department of Labor reports that the past failures of OSHA under the Bush Administration placed workers at risk. The Labor Department's Office of Inspector General released a repot on March 31, 2009 indicating that failure in inspection, training and enforcement led to the unnecessary deaths of workers.

Injured Workers Without Lawyers - A New Concern

A major decline in the participation of attorneys in workers' compensation claims has accelerated what is already a declining spiral in representation of injured workers. This downward swing, in a formerly recession proof industry, raises the concerns as to whether injured workers are now receiving adequate legal guidance.

Attorneys are joining the unemployment ranks in huge numbers. Last week marked the 10,000th attorney laid off from the major law firms in the last 15 months. The US government reports that over 20,000 lawyers are now unemployed. Sadden Arps announced an offer to it entire associate staff to take a year off at one-third pay. The incentive was valued at an average of $80,000.

The workers' compensation system nationally has been impacted by multiple facts that has accelerated an ongoing decline in the representation of injured workers. State systems have been dismantled, co-ordination of benefit issues and medical reimbursement issue have slowed the system and created a reluctancy in filing of claims. Economic issues exist as to whether costs exceed recovery to make claims viable to handle. Uncertainty exists as whether the claims and the demand for representation will bounce back.

The resulting problem is that injured workers will lack adequate formal representation. Injured workers without lawyers raises new concerns that will need to be addressed.

Asbestos Related Diseases Reflecting a Slight Decline

Asbestosis: Number of deaths, crude and age-adjusted death rates, U.S. residents age 15 and over, 1968–2005

Asbestosis deaths among U.S. residents age 15 and over have increased from 78 in 1968 to 1,493 in 2000 and then decreased slightly to 1,470 in 2004. (Ref. No. 2007F01-01, 2007T01-01). Data from the Occupational Safety and Health Administration (OSHA) and the Mine Safety and Health Administration (MSHA) indicate a trend towards lower asbestos exposure levels from 1979 to 1999, concomitant with mandated reductions in the OSHA permissible exposure limit (PEL). However, data indicate a steady increase in asbestos exposure levels in the mining industry for the years 2000 through 2003 and a slight rise in all other industries in the two years previous to 2003. (Ref. No. 2007F01-05, 2007T01-12).

Residents of California, Florida, New Jersey, New York, Pennsylvania, Texas, Virginia, and Washington together accounted for nearly half of all asbestosis deaths in the 1995 to 2004 period. (Ref. No. 2007T01-04).

There were over 15,000 malignant mesothelioma deaths among U.S. residents age 15 and over accounting for more than 200,000 years of potential life lost to life expectancy in the 1999–2004 period. (Ref. No. 2007T07-01, 2007T07-03). For 1999–2004, nearly 20% of mesothelioma decedents were female. (Ref. No. 2007T07-01). Occupations associated with significantly elevated mesothelioma mortality in 1999 include plumbers, pipefitters, and steamfitters; mechanical engineers; electricians; and elementary school teachers. (Ref. No. 2007T07-09).

The Work-Related Lung Disease (WoRLD) Surveillance System, produced by the National Institute for Occupational Safety and Health (NIOSH), presents up-to-date summary tables, graphs, and figures of occupationally-related respiratory disease surveillance data on the pneumoconioses, occupational asthma and other airways diseases, and several other respiratory conditions. For many of these diseases, selected data on related exposures are also presented.

Raptiva® Withdrawn From Market for High Risk of Fatal Brain Disease

Raptiva® users who have experienced neurological changes including unusual weakness, loss of coordination and changes in vision may have claims against the manufacturer, Genentech.

On April 8, 2009, the drug manufacturer Genentech announced a phased withdrawal of the psoriasis drug Raptiva® (efalizumab) from the U.S. market.

Since October 2008, Raptiva® has been associated with a higher risk for progressive multifocal leukoencephalopathy (PML), a rare, and often fatal neurologic viral disease that affects the central nervous system. The associations between Raptiva® and PML are generally associated with individuals with weakened immune systems.

Symptoms of PML may include:
-Unusual weakness
-Loss of coordination
-Changes in vision
-Difficulty speaking
-Personality changes
-Other neurological changes
-Death

There are no known effective therapeutic options for PML, and no known screening tests that can reliably predict PML. The PML infection often leads to an irreversible decline in neurologic and brain function and death. People who live with PML are severely disabled.

The product withdrawal plans to remove Raptiva® by June 8, 2009. According to the FDA, prescribers should not initiate new Raptiva® treatment.. The phased withdrawal is designed to allow patients time to find other effective treatments for psoriasis so as to avoid severe worsening of the condition or hospitalization.

History of Raptiva®
Raptiva® was approved by the FDA in 2003. It is a once-weekly injection for adults with moderate to severe plaque psoriasis.

Genentech began receiving reports of PML among Raptiva® users as early as September 2008. On October 16, 2008, the Raptiva® label was updated to warn of the risk of life-threatening infections, including PML. A Public Health Advisoryinforming patients and prescribers of the risk of PML in patients taking Raptiva® was issued in February 2009, after four patients developed PML, three of whom died. On March 13, 2009, the FDA approved a Medication Guide for Raptiva® and included additional information in the drug's labeling regarding PML.

Further Information
FDA Notice Withdrawal 4/8/2009

FDA Labeling Notice Updated 10/20/2008

FDA Public Health Advisory 2/19/2009

Medication Guide for Raptiva®

Expanding the Long Arm of CMS

Legislation has been introduced in Congress to phase out the waiting period for Medicare over the next 10 years from 24 months to zero. Under the proposal, "......[i]n 2010, it would be reduced to 18 months and then reduced by 2 months each year until January 2019, when it would be totally eliminated."

Such an expansion would expand the involvement of CMS's roll in the workers' compensation program under the Medicare Secondary Payor Act to seek reimbursement.

Medical Bills of Smokers Reported to be Less Than Expected

It has been recently reported that smokers may actually cost society less for medical treatment than non-smokers. The CDC has reported that since smokers die on the average 10 years earlier, their medical costs are actually less to society that non-smokers.

Jordan Barab Named Acting OSHA Chief

Jordan Barab has been named Deputy Assistant Secretary for OSHA and Acting Assistant Secretary effective April 13, 2009. Barab has been an outstanding spokesperson for injured workers and was author of the well known and influential blog Confined Space. Internationally recognized as a stronger advocate for worker safety, his incredible advocacy for a safer work environment has been a hallmark of leadership. 

The AFL-CIO reported:

Peg Seminario, the AFL-CIO’s director for safety and health, says Barab is an “excellent choice” for OSHA deputy assistant secretary. 

He has decades of experience in safety and health working in the labor movement, at OSHA and in the House of Representatives on a broad range of issues. He has a deep commitment and dedication to protecting workers and will bring to OSHA the kind of energy and leadership that is sorely needed to move the agency in a new direction.

CMS Workers' Compensation Mandatory Reporting Teleconference Thursday April 9, 2009

Teleconference Event for Mandatory Reporting for
Liability Insurance (including Self-Insurance), No-Fault Insurance and Workers’ Compensation
Date: April 9, 2009
Time: 1:00 PM – 3:00 PM Eastern Time
Participation is by telephone only. (The Centers for Medicare & Medicaid Services (CMS) will not have space for individuals/entities to participate onsite at CMS).

Call-in Line: 800 779 4354
Pass Code: SECTION 111

Please begin dialing in approximately 20-30 minutes before the call due to the large number of participants.

Click here for Notice and Agenda

AIG Workers' Compensation Under Investigation Again

American International Group Inc. (AIG) is reportedly now under investigation by the insurance regulators of 50 states who are reviewing whether the company violated rate setting rules. AIG in 2006 agreed to a payment of $300 Million in a Federal law suit for mistaking premiums. The company has also been the subject to multiple Federal bailout attempts.

Candy Makers Found to Have Popcorn Lung - Flavoring Illness

It has been reported by, Andrew Schneider, investigative reporter, that severe cases of "popcorn lung" caused by exposure to diacetyl butter are now being reported in candy makers as well. Five cases of severe lung disease have been identified by physicians. Those cases involved workers who made candy.

NJ Issues a Procedural Alert for Medicare Elligible Petitioners

The New Jersey Division of Workers' Compensation has issued a procedural alert to attorneys handling claims of Medicare Elligible Petitioners. Peter J. Calderone, Director and Chief Judge of the NJ agency issued a Memorandum in an effort to establish a formalized and smooth transition with the integration of the mandatory reporting requirements to be initiated this year by The Centers for Medicare and Medicaid Services (CMS).

1. "...parties should not send unsigned settlements to CMS";

2. "...settlements signed by a judge which are not based on a transcribed court record would violate our law since judges must find a settled case resolution fair and just on the court record presented";

3. "Up to date Medicare information must be obtained prior to the entry of a signed workers' compensation order that needs final CMS approval";

4. "When a case is settled, the parties can agree on language in the settlement that a party, usually the petitioner, will be responsible for any additional CMS reimbursements. The petitioner is generally identified since only the petitioner can petition CMS for a waiver from additional payments on hardship or equity grounds. We are advised that such waivers when supported are most often granted;" and

5. "As an alternative, the parties can agree in Orders Approving Settlements (but not Section 20 Orders [lump sum payments in lieu of compensation]) and the judge can insert language in judgments that the parties have the right to reopen the case ifthere are additional Medicare reimbursements and a dispute as to which party is responsible for the payment."

The memorandum goes on to caution the parties that if the parties and the Court are uable to agree upon settlement terms, then a trial and judicial resolution will be required.

Domer on Wisconsin Workers' Compensation Law Published

Thomas and Charles Domer have authored an exhaustive and authoritative analysis of Wisconsin Workers' Compensation Law. Their volume provides excellent practical insight on how to handle the simplest case to the most complex litigation. Wisconsin Workers' Compensation Law furnishes compensation lawyers with historical information and a current analysis of the law. The treatise skillfully identifies trends to aid the practitioner in crafting winning legal arguments in critical and cutting edge issues.

Wisconsin Workers' Compensation Law, 2009 ed. (Vol. 17, Wisconsin Practice Series) By Charles F. Domer, Thomas M. Domer

Petition Filed to Re-Consider California AMA Guide Decision

The California Workers' Compensation Appeals Board (CAWCAB) has decided to review its prior decision of February 27, 2009, challenging the AMA Guidelines. The CAWCAB has issued an Order granting reconsideration and inviting mucus briefs to be filed.

"We also will give any interested person or entity until 5pm on Friday, May 1, 2009 to file an amicus curiae brief and to serve that brief on all counsel in both the Almaraz and Guzman cases."

Alvaraz v. Environmental Recovery Services, et al.

CMS Publishes Memo on Pricing Future Prescription Drug Treatment

The Centers for Medicare & Medicaid Services' (CMS) has published a memorandum outlining the methodology of pricing future prescription drug treatment costs/expenses in Workers' Compensation Medicare Set-Aside Arrangement (WCMSA) proposals.

"The CMS will begin independently pricing future prescription drug treatment costs/expenses in WCMSA proposals beginning June 1, 2009. Effective with complete WCMSA submissions received by CMS’ Coordination of Benefits (COB) Contractor on or after June 1, 2009, where the WC related injury warrant(s) the need of prescription drugs for the ongoing treatment of the WC related injury, CMS’ independent pricing of the prescription drug amount will be calculated and priced using average wholesale price (AWP). The CMS will not use or recognize any other pricing, discounting, or calculation methods when determining the adequacy of the prescription drug amounts in WCMSA proposals. "

US Supreme Court Hears Challenge to Manville Asbestos Bankruptcy Plan

The US Supreme Court once again hear oral argument in a claim arising out of "the longest running tort" in the nation's history, asbestos litigation. The case played to a full house as the Court revisited the 1986 Johns Manville Bankruptcy program and questioned whether the the process that paid out more than $2.8 Billion could be challenged yet again. Plaintiff lawyers, not party to a settlement mediated by former NY Governor Mario Cuomo, argued that they should be allowed to sue various insurers including Travelers Insurance Company.

Travelers Indemnity Co. v. Bailey

Color X-Rays to Beam in on Asbestos Disease

A new radiography technique has been announced to diagnose asbestos related disease. Dr. Michael Harbut, co-director of the National Center for Vermiculite and Asbestos-Related Cancers at the Barbara Ann Karmanos Cancer Institute in Detroit, Michigan reported a new method to assist the diagnose of workers who have been exposed to asbestos, coal dust, beryllium and other heavy metals.

“If we can identify the ’sentinel’ or first cases of asbestosis or lung cancer at an early stage, then we can help identify asbestos exposures in places where it might not have previously been suspected,” said Harbut, who is also chief of the Center for Occupational and Environmental Medicine at Wayne State University.