CDC Issues H1N1 Flu Guidance to Healthcare Personnel-"stay home"

In an urgent need to protect healthcare workers from H1N1 Flu, the today CDC has issued guidance on infection control measures to prevent transmission of 2009 H1N1 influenza in healthcare facilities. The CDC continues to recommend that healthcare workers take time away from work if they are ill. The issue unanswered is whether workers' compensation insurance will pay temporary disability benefits for the absence?


The CDC has defined healthcare personnel as, "....For the purposes of this guidance, healthcare personnel are defined as all persons whose occupational activities involve contact with patients or contaminated material in a healthcare, home healthcare, or clinical laboratory setting. Healthcare personnel are engaged in a range of occupations, many of which include patient contact even though they do not involve direct provision of patient care, such as dietary and housekeeping services. This guidance applies to healthcare personnel working in the following settings:  acute care hospitals, nursing homes, skilled nursing facilities, physician’s offices, urgent care centers, outpatient clinics, and home healthcare agencies.  It also includes those working in clinical settings within non-healthcare institutions, such as school nurses or personnel staffing clinics in correctional facilities. The term “healthcare personnel” includes not only employees of the organization or agency, but also contractors, clinicians, volunteers, students, trainees, clergy, and others who may come in contact with patients."

Healthcare personnel who develop a fever and respiratory symptoms should be:
• Instructed not to report to work, or if at work, to promptly notify their supervisor and infection control personnel/occupational health.
• Excluded from work for at least 24 hours after they no longer have a fever, without the use of fever-reducing medicines.

For more articles on Workers' Compensation and the Flu Pandemic click here.

Are Driving Distractions Within the Course of the Employment?

The US Department of Transportation recently held a national summit on the issues arising from distracted driving. The facts presented were certainly convincing that distracted driving is a leading cause of accidents.   

• Distracted driving is dangerous. Distraction from cell phone use while driving (hand held or hands free) delays a driver's reactions as much as having a blood alcohol concentration at the legal limit of .08 percent. (University of Utah)
• Driving while using a cell phone reduces the amount of brain activity associated with driving by 37 percent. (Carnegie Mellon)
  
• 80 percent of crashes are related to driver inattention. There are certain activities that may be more dangerous than talking on a cell phone. However, cell phone use occurs more frequently and for longer durations than other, riskier behaviors. Thus, the #1 source of driver inattention is cell phones. (Virginia Tech 100-car study for NHTSA)
  
• Drivers that use handheld devices are four times as likely to get into crashes serious enough to injure themselves. (Insurance Institute for Highway Safety)
  
• Nearly 6,000 people died in 2008 in crashes involving a distracted or inattentive driver, and more than half a million were injured. (NHTSA)
• Research shows that the worst offenders are the youngest and least experienced drivers: men and women under 20 years of age. (NHTSA)
  
• On any given day in 2008, more than 800,000 vehicles were driven by someone using a hand-held cell phone. (National Safety Council)

Kristin Backstrom, AAA Foundation for Traffic Safety, testified that, “People who wouldn't get drunk and drive somehow think it's OK to text and drive - which is just as dangerous.

Public policy has always swayed the direction of the legislature. The facts surrounding distracted driving  will probably no exception. Whether this activity can be considered by the courts, as "arising out of and in the course of the employment," or whether the legislature will merely bar compensability if distracted driving is a cause of an accident, has yet to be determined. 
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For more on "distracted driving" please click here.

Medicare's Aggressive Debt Collection Practice

A recent article in Mother Jones reports upon the adverse consequences of Medicare's aggressive debt collection practices upon the aging population. The article describes the evolution of the Medicare's debt collection practice, from initially using the attorneys for the beneficiaries as debt collectors, though the new shift of responsibility to insurance carriers through mandatory reporting.

The author predicts, "The prospect of harsher penalties is already leading to insurance company overkill that, combined with Medicare's bureaucracy, has kept some elderly folks from receiving money that's rightfully owed them."
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To read more about CMS and Workers' Compensation click here.

Bus Driver Assaulted by Gun Denied Benefits

A Pennsylvania Appeals Board has ruled that a bus driver who was assaulted by a passenger with  gun did not suffer a compensable accident. The driver alleged that he suffered several medical conditions including:  post-traumatic stress disorder, anxiety depressive disorder and insomnia.


The employer asserted that assaults could be anticipated and were normal  working condition. " SEPTA's workers' compensation coordinator Michael Selvato testified about the records of assaults on operators in an effort to show that the incident was not abnormal. He explained that between June 1 and November 1, 2005 there were 292 passenger disturbances on SEPTA busses and 11 assaults on operators; between November 1, 2005 and June 1, 2006 there were 738 disturbances and 33 assaults; and between June 1, 2006 and June 25, 2007 there were 62 assaults on bus drivers. Selvato noted that there had been two bus drivers threatened with a gun from the beginning of 2007 until the time of the hearing on August 23, 2007. During his time as a trolley driver for SEPTA, Selvato had not been accosted with a gun, but he had been assaulted and threatened with a knife."


In ruling against the worker, the Appeals Board concluded that the working conditions were normal for the job and that the injured worker had not sustained the burden of proof to demonstrate that his "his injury was not a subjective reaction to normal work conditions."


McLaurin v. W.C.A.B. (SEPTA) , 2009 WL 2612578, Pa. Comwlth. 2009)

New Jersey’s Shining Star

Significant progress has been made by the NJ Division of Workers’ Compensation (NJ-DWC) in carrying out the legislative mandate for the newly enacted emergent medical care motion practice.   The Honorable Peter J. Calderone, Director and Chief Judge of the NJ-DWC, delivered a highly favorable report to attorneys attending a workers’ compensation seminar yesterday. The academic seminar was sponsored by the New Jersey Institute for Continuing Legal Education.

Judge Calderone’s report, based on intense statistical tracking and personal involvement  of the Director himself, reveals that New Jersey’s injured workers are in fact receiving medical treatment to “cure and relieve their medical conditions” without delay.

The NJ-DWC has approximately 95,000 cases open cases pending in the system each year. The program efficiently and effectively handles disputes as to medical benefits, temporary disability and permanent disability issues.

Two procedural motions are available to parties who seek medical care when a dispute arises. An ordinary motion for medical care, established by regulation,  has been utilized for years, if not decades, as an avenue to seek redress. The ordinary motion addresses the needs of the parties who require medical care but their condition is not emergent. These motions are handled at the local hearing office level and their status reported to the Director every 90 days, as they remain pending. Approximately 2% of the pending claims statewide involve such ordinary medical motions.

As a result of concerns expressed  in the media approximately 2 years ago, alleging long  delays in the handling of claims for emergent medical care, the NJ Legislature, enacted a statutory mechanism to resolve disputes. That motion requires the observance of a stringent time table for judicial action.  In those cases, where there is a need for emergent medical care, and the failure to provide it on a timely basis would result in irreparable harm, the new administrative procedures for an emergent medical motion may be invoked.  

Immediately following the enactment of the statute, almost a year ago, the NJ-DWC proposed Rules to be followed in processing emergent care motions that would conform with the Legislative mandate. The NJ-DWC operated in conformance with the proposed Rules until they were finally adopted on October 5, 2008, which followed a period for public comment, The rules set forth specific criteria and address procedural compliance issues.  The carefully drafted Rules permit those injured workers who are in need of urgent medical care immediate access to the NJ-DWC system for a speedy and efficient resolution of their claim.

Over the last year, Judge Calderone, has taken an active role in reviewing every single motion that has been filed, in consultation with the supervising judge of the district  office where the case has been venued. A joint determination was then made as to whether or not the statutory criteria had been met and the procedural and substantive compliance with the rules addressed.  If there was compliance by the filing party, the NJ-DWC acted immediately to list the matter for a pre-trial conference in an effort to resolve the dispute before the commencement of a trial. This process remains ongoing.

The statistical evidence reported by Judge Calderone reflects the fact that very few cases have utilized the process, and of those filed, almost all have been resolved within a matter of days on an amicable basis. Within the last year, approximately 50 motions have been filed for emergent medical care, and of those, 16 (32%) had actually satisfied the criteria for filing.  Of the 16  that met the criteria  to be listed for a conference,  all of the cases have been resolved at the conference except for two matters during last year, and those had been set down for trial.

Through the efforts and concerns of the NJ Legislature and the Division of Workers’ Compensation, a good system has been made even better. While this favorable aspect of the NJ workers’ compensation system cannot be globally utilized to solve all the short comings of the national health care crisis, it is a star that shines brightly and may provide some guidance in the on going national health care debate.

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For more on "medical treatment" and workers' compensation, click here.

The Toxic Legacy in Iraq

The Public Education Center (PEC) has published the second in a series of investigative articles concerning the toxic exposure of Army National Guard Units to cancer-casuing chemicals allegedly released by a government contractor, KBR, Inc.

The exposure was a result of a release by KBR, Inc. to, “...dichromate, a rust-fighting industrial chemical and highly-concentrated hexavalent chromium compound, Hexavalent chromium.” Hexavalent chromium has been described as the most toxic chemical known to man.

The series entitled, “No Contractor Left Behind,” chronicles “...chronicles how a toxic time bomb followed three Army National Guard units home from Iraq. It reveals how a notorious military contractor exposed American soldiers to a cancer-causing carcinogen on the battlefield and how the Pentagon tried to downplay the consequences. And it describes how Congress has relegated its investigation to a toothless forum that lacks the political clout and oversight powers to ensure effective accountability.”

A law suit has been filed by 30 West Virginia National Guardsman because of the exposure. Last month a Pittsburg shoulder who served in Iraq and was also exposed filed a law suit seeking damages for the consequences of his exposure.

For additional article on the Halliburton-KBR Litigation click here.

Injured Workers Law & Advocacy Group

The Injured Workers Law & Advocacy Group is an open Linkedin group provides news and open discussions concerning national workers' compensation trends. It is maintained for academic purposes to facilitate national policy discussions. Multiple news feeds and discussion postings are available free of charge.

Workers' compensation is a national system established in the US in early 1900's. 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.

Join the Injured Workers Law & Advocacy Group on Linkedin and stay informed.