"Workers' Compensation" Selected As LexisNexis Top 25 Blogs for 2009

Workers' Compensation blog has been selected as a LexisNexis Top 25 Blogs for Workers’ Compensation and Workplace Issues - 2009, in the Best Individual Bloggers category. 

Selections were made by the LexisNexis Workers’ Compensation Law Center staff using feedback from community members and Larson’s National Workers’ Compensation Advisory Board members.

The Top 25 Blogs contain some of the best writing out there on workers' compensation and workplace issues in general. They contain a wealth of information for the workers' compensation community with timely news items, practical information, expert analysis, practice tips, frequent postings, and helpful links to other sites. These blogsites also show us how workplace issues interact with politics and culture. Moreover, they demonstrate how bloggers can impact the world of workers' compensation and workplace issues.



Workers’ Compensation
http://workers-compensation.blogspot.com/
Published by Jon L. Gelman
"This prolific and widely respected blog analyzes trends and developments in workers’ compensation law nationwide. Workers’ Compensation blog provides both a bird’s-eye view of the national scene and the low down on what’s happening on the ground level in each state."

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A Call for Suggestions: Top Blog of the Year - 2009

The  next step will be to determine which of the 25 honorees will receive Top Blog of the Year 2009. The LexisNexis Workers’ Compensation Law Center looks forward to hearing the comments of our community members. Deadline for comments is November 11, 2009. The LexisNexis Workers’ Compensation Law Center Staff will review all comments and then select the #1 blog of the year.  Register - click here.


To visit the Workers' Compensation Blog click here.

Medicare to Issue Interim Conditional Payment Letters for Medicare Secondary Payer Mandatory Reporting Compliance

Effective October 1, 2009, the MSP Recovery Contractor [MSPRC] will issue information concerning interim conditional payment amounts automatically (that is, without receiving a request for such information) as soon as an interim conditional payment amount is available. If you have an outstanding request for a conditional payment letter (CPL) for a case established prior to October 1, 2009, the request will be processed in the order received. For all new cases, the Medicare beneficiary and any authorized individuals will receive the CPL within 65 days of the issuance of the “Rights and Responsibilities Letter.” 


A form "Cover Letter" will be provided to facilitate communications with MSPRC once a case has been established. "This cover sheet is for your use when mailing or faxing in correspondence to the MSPRC. Please retain a COPY of this cover sheet for any future correspondence. The information above will ensure accuracy when handling your case documentation."


The NEW Rights and Responsibilities Brochure is now available on line.


The NEW "Proof of Representation Letter" and "Consent to Release" are also available on line.


For more information about the Medicare Secondary Payer Act and workers' compensation click here.

US Supreme Court Allows More Time in RICO Case

Review of a  Petition for Certiorari has been delayed by the US Supreme Court. Time has been extended by the Court until November 2, 2009 to file responsive papers to the Petition. 


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.

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

Click here to see the Workers' Compensation Blog for additional articles on RICO matters.

Compensating Adverse Flu Vaccine Reaction Victims

As the US flu vaccination program rolls out, the numbers are also growing for those who have reported adverse consequences from the H1N1 vaccine. The victims and their families are also lining up for benefits available in the workers’ compensation system as well as the Federal program. The existence of these programs have received little publicity and may be difficult for the public to navigate without adequate representation. 

The US Centers for Disease Control and Prevention (CDC) announced this week that pandemic activity has now increased in the US. Tom Frieden, MD, director of the CDC, said, "We have had up until now many millions of cases of pandemic influenza in the U.S. And the numbers continue to increase." President Obama signed an Executive Order declaring the Swine Fu as a national emergency. Hospitalization and death rates have increased, yet again. Over 60 million have been immunized early for seasonal flu, so that providers would be available to administer  H1N1 vaccine when it becomes available. . 

Even though the supply has been tardy for the H1NI vaccine, the companies that supply the product have promised an additional flow of supply to meet the demand. The European pharmaceutical companies, Novartis’s Focetria, GlaxoSmithKline’s (GSK’s) Pandemrix, and Baxter’s Celvapan are under contract to supply a huge volume of vaccine to the US. Novartis alone has a $979 million contract to supply H1N1 vaccine to the US Department of Health and Human Services (HHS) which amount to 251 million does and the total 35% projected US supply. It is anticipated that the US supply may not arrive until the first quarter of 2010.

A recent Washington Post-ABC News Poll reflects that Americans are more worried than ever about the H1N1 flu. In a matter of weeks, from August 2009 to October 2009 those reportedly worried about getting the H1N1 flu increased from39% to 52%.  The CDC has been reluctant to advertise the need to about the vaccine because the supply has been limited and they were attempting to avoid public panic. Their program will pick up as the supply becomes increasingly available.

Adverse effects from the flu vaccine already are being reported. Deaths have been reported associated with the deaths of at least four nurses with 2009 H1N1The Vaccine Adverse Event Reporting System (VAERS) is a national vaccine safety surveillance program co-sponsored by the Centers for Disease Control and Prevention (CDC) and the Food and Drug Administration (FDA). VAERS is a post-marketing safety surveillance program, collecting information about adverse events (possible side effects) that occur after the administration of vaccines licensed for use in the United States. The data is publically available through the CDC WONDER on-line database.

Workers’ Compensation programs have provided compensation benefits in the past resulting from adverse reactions to vaccines. In many jurisdictions, vaccinations afforded to employees resulting in a benefit to the employer against possible disastrous business consequences, have been considered to be “a mutual benefit.” Therefore, any disease arising from such vaccination has been deemed compensable.

Additionally, a Federal program has been established to shield the vaccine producers from liability claims. On October 1, 1988, the National Childhood Vaccine Injury Act of 1986 (Public Law 99-660) created the National Vaccine Injury Compensation Program (VICP). The VICP was established to ensure an adequate supply of vaccines, stabilize vaccine costs, and establish and maintain an accessible and efficient forum for individuals found to be injured by certain vaccines. The VICP is a no-fault alternative to the traditional tort system for resolving vaccine injury claims that provides compensation to people found to be injured by certain vaccines. The U. S. Court of Federal Claims hears the claims.

As of July 1, 2005, trivalent influenza vaccines have been added to the Table under this Category. Trivalent influenza vaccines are given annually during the flu season either by needle and syringe or in a nasal spray.  All influenza vaccines routinely administered in the U.S. are trivalent vaccines covered under this Category.  

The criteria for filing a claim under the VICP are the following:

• You may file a claim if you received a vaccine covered by the VICP and believe that you have been injured by this vaccine.
• You may also file a claim if you are a parent or legal guardian of a child or disabled adult who received a vaccine covered by the VICP and believe that the person was injured by this vaccine.
• You may file a claim if you are the legal representative of the estate of a deceased person who received a vaccine covered by the VICP and believe that the person’s death resulted from the vaccine injury.
• You may file a claim if you are not a United States citizen.
• Some people who receive vaccines outside of the U.S. may be eligible for compensation. The vaccines must have been covered by the VICP and given in the following circumstances:
• the injured person must have received a vaccine in the U.S. trust territories; or
• if the vaccine was administered outside of the U.S. or its trust territories:
1. the injured person must have been a U.S. citizen serving in the military or a U.S. government employee, or have been a dependent of such a citizen; or
2. the injured person must have received a vaccine manufactured by a vaccine company located in the U.S. and returned to the U.S. within 6 months after the date of vaccination.
• In addition, to be eligible to file a claim, the effects of the person’s injury must have:

1. lasted for more than 6 months after the vaccine was given; or
2. resulted in a hospital stay and surgery; or
3. resulted in death.

The VICP program has paid over $1.8 billion dollars from 1989 through 2009. Over 2,300 families have been paid to date with over 2,200 attorneys representing clients in such matters. "Compensated" are claims that have been paid as a result of a settlement between parties or a decision made by the U.S. Court of Federal Claims (Court). Approximately 18% of the benefits were paid to adults who received vaccines during the existence of the program. Since the program was expanded to adults who received vaccinations, the proportion of benefits to adults under the program has  increased proportionally. Nearly 52% of program awards in 2007 and 2008 went to adult vaccine recipients.

As the H1N1 vaccination program unfolds, those who suffer adverse reactions will be seeking benefits from both, the State workers’ compensation programs, as well as the VICP. Adequate dissemination of information concerning eligibility and procedural access to the programs will be of great benefit to the victims and their families.

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

Insuring Disabled Seniors and The Public Option

Disabled workers over the age of 65 have difficult decisions to make concerning health insurance. Those who rely upon workers’ compensation and Medicare to cover all their medical costs are in for a rude awakening. John D. Podesta and colleagues reported difficulties in the present system that seniors utilize.  “The gaps in coverage, the high cost of insurance, and the quality of care that consumers receive are the most frequently cited problems" in the present medical delivery system. Disabled workers will also have their strife compounded by the fact that Congress anticipates an increase of 15% in basic Medicare premiums next year.

Workers’ compensation insurance usually covers medical conditions that "arise out of and are in the course of employment." Treatment extends to medical care that is reasonable and related to cure the work related condition and relieve the symptoms. Workers’ compensation was not intended to any for conditions that are not work related.

Medicare provides coverage to disabled workers and those who are over 65 years of age. It does not extend coverage to those conditions that are work related. In fact, Medicare, under the Medicare Secondary Payer Act (MSP), will seek reimbursement from the injured employee for those medical conditions related to the employment, but Medicare may have accidentally or conditionally paid for.

The Federal system now keeps a tight rein to avoid duplication of benefits. As of July 1, 2009, the workers’ compensation insurance carriers are now subject to mandatory reporting of those eligible or anticipated to be eligible for workers’ compensation benefits. Medicare seeks to participate in the review of any settlement in workers’ compensation by eligible beneficiaries through an elaborate voluntary scheme of workers’ compensation set aside agreements (WCMSA).

The coverage scenario is complicated further by so called “Medigap policies” sold by private insurance companies that provide supplemental health insurance to those on Medicare for services and benefits not covered by the Federal government.  The Kaiser Family Foundation reports, that “Most Medicare beneficiaries (89%) had some form of supplemental health insurance coverage in 2007. More than a third of all beneficiaries (34%) had coverage from an employer-sponsored plan, 22% were in Medicare Advantage plans, 17% purchased supplemental insurance (Medigap) policies, and 15% were covered by Medicaid (generally those with very low incomes and modest assets). Eleven percent [4.48 million] had no supplemental coverage [emphasis added].”

Those who lack coverage, avoid or forgo, medical care. Underlying medical conditions, even those that are work related, may become aggravated or accelerated. The “gap” in coverage for the some disabled workers, that exists in the system, creates additional risk factors for not only those that fall within the gap, but also as to general community health and well being.

The gap in disability insurance converge will need to be debated as Congress goes forward in the health care debate. As Speaker Nancy Pelosie (D-Calif) surveys Congress in anticipation of her final draft of a "public option," the discussion continues in Washington. A universal approach is warranted to bridge the gap for affordable and meaningful coverage.

To read more about "health care" and "workers' compensation" click here.

CDC Reports Flu Widespread - Is the US Workers’ Compensation System Ready?

The US Centers for Disease Control (CDC) has announced that Flu is now “widespread” in 41 States and that deaths attributed to both pneumonia and influenza have increased and exceed what is normally expected for this time of the year.  The workers’ compensation system has never faced a challenge as extensive as what appears unfolding on the horizon. The method and manner of the delivery of benefits will be further complicated by, the broad spectrum of needs from protecting the spread of the disease, as well as treating those who are ill.

Forty-one states are reporting widespread influenza activity at this time according to the CDC. They are: Alabama, Alaska, Arizona, Arkansas, California, Colorado, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Dakota, Texas, Tennessee, Utah, Virginia, Washington, West Virginia, Wisconsin, and Wyoming.  

Last month the CDC released a guide to business to prepare for the threat of the Flu. Despite the fact that the CDC has directed ill healthcare workers to stay home, workers’ compensation commentators continue to infer that Flu claims should be absolutely defended, and in fact, ill healthcare workers and sick employees should be held to a higher standard of proof to obtain benefits.

As challenges to mandatory vaccination programs meander thorough the courts, and voluntary/mandatory absenteeism programs are implemented, the ability of the system to quickly reimburse wages for lost time from work and provide medical benefits for treatment of the contagious disease, remains questionable. Should claims be filed by even a percentage of those workers who become ill, the system, which itself is anticipated to be overtaxed, may not be able the handle the volume on an emergent basis.

So far there has been silence about  workers’ compensation flu pandemic planning. While the Federal and State governments have rules and regulations in their arsenal to meet the challenge, this is an issue where workers’ compensation should be first in line to deliver benefits to sick workers.

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

Nebraska Adopts Workers Compensation Lump-Sum Settlements Without Court Review

The State of Nebraska has moved forward administratively and now permits the settlement of workers’ compensation claims without Court approval. The parties need only file a release with the Court. The injured workers must be represented by counsel and the settlements are limited to those involving lump-sum amounts.

“Notice Effective May 27, 2009, the Nebraska Workers’ Compensation Act was amended to eliminate court review of certain lump-sum settlements. Legislative Bill 630 provides that in cases where lump-sum settlements are not required to be submitted for approval by the compensation court, a release shall be filed. LB 630 further provides that the release shall be made on a form approved by the compensation court.

“48-136 The interested parties shall have the right to settle all matters of compensation between themselves with the consent of the workers’ compensation insurer, if any, and in accordance with the Nebraska Workers’ Compensation Act. A copy of such settlement, duly verified by all parties, shall be filed with the Nebraska Workers’ Compensation Court and no  such settlement shall be binding unless the settlement is in accordance with such act.”

For more on "workers' compensation" click here.