Mesothelioma Compensation Rate 32% in Canada

When combined with a history of occupational asbestos exposure, mesothelioma is often presumed work-related.

In Canada, workers diagnosed with mesothelioma caused by occupational asbestos exposure are often eligible for compensation under provincial workers' compensation boards. Although occupational asbestos exposure causes the majority of mesothelioma, Canadian research suggests less than half of workers actually apply for compensation.

Alberta's mandatory reporting requirements may produce higher filing rates but this is currently unknown. This study evaluates Alberta's mesothelioma filing and compensation rates.

METHODS: Demographic information on all mesothelioma patients diagnosed between 1980 and 2004 were extracted from the Alberta Cancer Board's Cancer Registry and linked to Workers' Compensation Board of Alberta claims data.

RESULTS: Alberta recorded a total of 568 histologically confirmed mesothelioma cases between 1980 and 2004. Forty-two percent of cases filed a claim; 83% of filed claims were accepted for compensation.

CONCLUSIONS: Patient under-reporting of compensable mesothelioma is a problem and raises larger questions regarding under-reporting of other asbestos-related cancers in Alberta. Strategies should focus on increasing filing rates where appropriate.

Cree MW, Lalji M, Jiang B, Carriere KC. Am J Ind Med. 2009 Jul;52(7):526-33. PMID: 19484745 [PubMed - in process]

Defense Bar Floods the US Supreme Court With Amicus Briefs in RICO Case

In a RICO case which will have profound impact on the national workers' compensation system, the defense bar has inundated the US Supreme Court with applications to submit amicus briefs. Pending before the US Supreme Court is a petition for a writ of certiorari to review a decision where: the employer, insurance company and their experts were found to have conducted themselves in violation of the RICO Act.

Motions for leave to file Amicus briefs in support of the defense position have been filed by: MI Self-Insurers Association; Michigan Defense Trial Counsel; DRI - The Voice of the Defense Bar;  American Trucking Associations, Inc.;  Chamber of Commerce of the United States of America; and  National Council of Self-Insurers. 

The  US Court of Appeals for the Sixth Circuit denied rehearing on January 5, 2009 and a Petition for a writ of certiorari was filed on May 6, 2009.  On May 26, 2009 US SUpreme entered an Order extending time to file a response to petition to and including June 29, 2009.

Cassens Transport Co., et al., Petitioners v,  Paul Brown, et al.,  No. 08-1375.

California Governor Reportedly Wants to Sell The State Insurance Fund

California, with post reform claim decreases and facing an increase in workers' compensation premiums rates,  reportedly wants to get out of the insurance business. The San Francisco Business Times is now reporting that the Governor is attempting to sell the State Insurance Fund for $1 Billion.  The profits received are anticipated to help fund the State's budget gap.

US Supreme Court Bars Direct Asbestos Claims Against Travelers Insurance

The US Supreme Court ruled that the direct action claims against Travelers Insurance Company for its conduct in the asbestos conspiracy with Johns-Manville Corporation (Manville) were barred by the 1986 reorganization plan of the Manville.

"As part of the 1986 reorganization plan of the Johns-Manville Corporation (Manville), an asbestos supplier and manufacturer of asbestos containing products, the Bankruptcy Court approved a settlement providing that Manville’s insurers, including The Travelers Indemnity Company and related companies (Travelers), would contribute to the corpus of the Manville Personal Injury Settlement Trust (Trust), and releasing those insurers from any “Policy Claims,” which were channeled to the Trust. “Policy Claims” include, as relevant here, “claims” and “allegations” against the insurers “based upon, arising out of or relating to” the Manville insurance policies. 

"The settlement agreement and reorganization plan were approved by the Bankruptcy Court (1986 Orders) and were affirmed by the District Court and the Second Circuit. Over a decade later plaintiffs began filing asbestos actions against Travelers in state courts (Direct Actions), often seeking to recover from Travelers not for Manville’s wrongdoing but for Travelers’ own alleged violations of state consumer-protection statutes or of common law duties. Invoking the 1986 Orders, Travelers asked the Bankruptcy Court to enjoin 26 Direct Actions. Ultimately,a settlement was reached, in which Travelers agreed to make payments to compensate the Direct Action claimants, contingent on the court’s order clarifying that the Direct Actions were, and remained, prohibited by the 1986 Orders. 

"The court made extensive factual findings, uncontested here, concluding that Travelers derived its knowledge of asbestos from its insurance relationship with Manville and that the Direct Actions are based on acts or omissions by Travelers arising from or related to the insurance policies. It then approved the settlement and entered an order (Clarifying Order), which provided that the 1986 Orders barred the pending Direct Actions and various other claims. Objectors to the settlement (respondents here) appealed. The District Court affirmed, but the Second Circuit reversed. 

"Agreeing that the Bankruptcy Court had jurisdiction to interpret and enforce the 1986 Orders, the Circuit nevertheless held that the Bankruptcy Court lacked jurisdiction to enjoin the Direct Actions because those actions sought not to recover based on Manville’s conduct, but to recover directly from Travelers for its own.

Right To Know Hazardous Substance Fact Sheets

The State on NJ Department of Health has now made available hazardous substances fact sheets in a format for Emergency Responders. The sheets can be searched by DOT# or CAS# or in alphabetical sort. All the reference forms may be downloaded.

In-Home Care by Spouse Constitutes Treatment

A claimant who suffered from cognitive problems and partial paralysis as a result of a compensable accident and required full-time supervision, was entitle to have his spouse reimbursed for palliative, in-home care, that she provided to him.  

"If an injured worker requires services compensable under § 23-1062(A), then the employer must provide them. If the employer fails to do so and thus puts that burden on the injured employee's spouse, compensation for the necessary services is required by the statute. Those services provided by Mrs. Carbajal that would constitute compensable palliative care if performed by the Carrier-paid attendants are thus compensable."

Carabajal v. Industrial Commission of Arizona

___ P.3d____, 2009 WL 1650428 (Ariz. 2009) Decided June 15, 2009

EPA Declares Asbestos in Libby Montana is a Public Health Emergency

An historic first occurred today with the announcement by the US EPA that the asbestos in Libby, Montana constituted a Public Health Emergency. The EPA stated, "Over the past years, hundreds of asbestos-related disease cases have been documented in this small community, which covers the towns of Libby and Troy. "

"This is the first time EPA has made a determination under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) that conditions at a site constitute a public health emergency. This determination recognizes the serious impact to the public health from the contamination at Libby and underscores the need for further action and health care for area residents who have been or may be exposed to asbestos. Investigations performed by the Agency for Toxic Substance and Disease Registry have found the incidence of occurrence of asbestosis, a lung condition, in the Libby area staggeringly higher than the national average for the period from 1979-1998. EPA is working closely with the Department of Health and Human Services, which is making available a short-term grant to provide needed asbestos-related medical care to Libby and Troy residents. "