Shifting Occupational Claim Responsibility to Social Security

Recent Workers' Compensation reforms enacted in the 1990's are more likely to effect older workers  who are then more likely to to apply for Social Security Disability Benefits (SSDI). The reforms are now causing an enormous increase in number of denials of workers' compensation claims. At a recent conference hosted by NASI (National Academy of Social Insurance), Professor John F. Burton Jr. reported on the results of his recent study that has been submitted for publication.

Professor Burton reported that in 1999 between 80% to 93.8% of occupationally disease medical costs were not considered compensable and the costs were being shifted to the SSDI program. He concluded that, "...a substantial infusion of research funds are necessary to clarify the relationships between the Workers' Compensation and SSDI Programs."

To read more about Professor Burton and workers' compensation on the blog, click here.

Policy Holders at NJM Get Dividends

New Jersey Manufacturers Insurance Company announced that it is  continuing its tradition, as it has done since 1918, of paying dividends to policyholders.


"Workers' Compensation policies issued by NJM are receiving a Regular Dividend of 15% of their premiums. NJM's Board of Directors has approved increasing the rate to 20% for policies expiring January through March 2009. Meanwhile, New Jersey Re-Insurance Company Workers' Compensation policyholders are seeing a return of 5% of their premium."

Compensation Benefits for Smokers

On the eve of the annual Great American Smokeout one needs to reflect on the inadequacy of the national workers' compensation to assist in this effort. For decades, the addictive habit of smoking has been treated as a non-compensable cause and a pre-existing condition. See The Health Consequences of Smoking: Cancer and Chronic Lung Disease in the Workplace: A Report of the Surgeon General. 


Like obesity, workers' compensation insurance carriers have considered it as a risk not associated with work condition even though it has been a synergistic agent in many occupational cancers, ie. asbestos exposure and smoking results in an enormous risk increase for lung cancer. 


To make the workplace safer and end the epidemic of occupational cancers, the compensation system should embrace the effort to eliminate smoking in the workplace and provide assistance to workers to stop smoking.

Great American Smokeout ---

November 19, 2009

Although the United States has made great strides toward reducing the prevalence of smoking, approximately 46 million adults (20.6% of the population) still smoke (1), and every day, another 1,000 young persons become new smokers (2). Annually, smoking results in 440,000 deaths and $193 billion in health-care costs and lost productivity (3). November 19 marks the 33rd anniversary of the American Cancer Society's Great American Smokeout. This annual event challenges smokers to quit for at least 1 day and provides information resources to help them quit permanently.
Quitting smoking has immediate and long-term benefits, including reduced risk for heart disease and certain cancers. Successful quitting often takes several tries. To improve success, smokers should use proven cessation treatments and services, including health-care guidance, approved medications, and cessation counseling. Combining counseling and medications can more than double cessation success. More information about the Great American Smokeout is available at http://www.cancer.org, and free help for quitting smoking is available by calling 800-QUIT-NOW (800-784-8669) or visiting http://www.smokefree.gov.

References

1. CDC. Cigarette smoking among adults and trends in smoing cessation---United States, 2008. MMWR 2009;58:1227--32.
2. Substance Abuse and Mental Health Services Administration. Results from the 2008 National Survey on Drug Use and Health: detailed tables, 4-10A and 4-11A. Rockville, MD: US Department of Health and Human Services, Office of Applied Studies; 2009. Available at http://www.oas.samhsa.gov/nsduh/2k8nsduh/tabs/sect4petabs1to16.htm#tab4.10a. Accessed November 4, 2009.
3. CDC. Smoking-attributable mortality, years of potential life lost, and productivity losses---United States, 2000--2004. MMWR 2008;57:1226--8.

Compensating Sick Workers at Home with H1N1 Flu

While the United States has established a national protocol to meet the medical challenges H1N1 flu pandemic, there remains a void on how to pay workers who are ill and have been encouraged by the government to stay home.  The litigious workers' compensation adversarial system may provide benefits ultimately for those who can demonstrate that their illness "arose out of and occurred in the course of the employment," after months, if not years, of delay. 


Some states have temporary disability programs, fraught with bureaucratic delay and red tape, while the issues of denial in the workers' compensation claims become identified. If held to be compensable, reimbursement is then sought by the temperate disability plan, public or private, 


The issues of a lack of an efficient wage replacement system for those workers affected by the H1N1 flu will be addressed by Congress shortly. The chorus of advocacy is increasing as this debate advances. The following is a recent post from the occupational-environmental mailing list setting forth a pretty persuading argument to establish a plan to pay sick workers with H1N1 flu.

Sick At Work

When the first cases of the H1N1 virus (swine flu) were confirmed in America back in April, the Centers for Disease Control and Prevention advised that sick individuals stay home from work or school. "Influenza is thought to spread mainly person-to-person through coughing or sneezing of infected people," the CDC said."If you get sick, CDC recommends that you stay home from work or school and limit contact with others to keep from infecting them." However, for many Americans, staying home from work due to illness -- or to care for a sick child -- is an impossibility because of a lack of job-protected paid sick days. In response to the threat posed by H1N1, Rep. George Miller (D-CA) has proposed legislation that would "guarantee five paid sick days to employees at businesses with 15 or more workers who are directed to stay home by management." However, Miller's plan sunsets in two years and gives employers, not employees, the right to decide when leave is taken. Plus, under Miller's plan, employees cannot use leave time to care for a sick child. The Healthy Families Act (HFA), which is also before Congress, would guarantee seven paid sick days per year to all workers at firms with 15 or more employees. "Paid sick days has always been a good, common sense idea, but, in light of the recent H1N1 epidemic, it has also become a necessary one," said Rep. Rosa DeLauro (D-CT), an HFA sponsor. "Right when more and more workers are feeling economically vulnerable and afraid to even miss one workday, we face an extraordinarily serious health risk that spreads much more quickly if the sick do not stay at home." Last week, the Obama administration officially agreed, and endorsed the HFA.

LOW-INCOME WORKERS HIT THE HARDEST: The U.S. is currently the only developed nation that does not require some paid sick leave for workers. Nearly 40 percent of private sector workers have no paid sick leave, including 78 percent of hotel workers and 85 percent of food service workers. A survey last year by the National Opinion Research Center at the University of Chicago found that "68 percent of those not eligible for paid sick days said they had gone to work with a contagious illness like the flu." As CAP Senior Fellow Ann O'Leary and Karen Kornbluh, U.S. Representative to the Organisation for Economic Co-operation and Development, pointed out in The Shriver Report: A Women's Nation Changes Everything, "too often, most low- and many moderate-wage workers cannot access even the minimum benefits provided to more highly paid workers." And this is true of paid sick leave, as 88 percent of workers in the top 10 percent of wage earners have it, compared to just 22 percent of workers in the bottom 10. "Hopefully, employers are doing the right thing and not disciplining workers who are out sick as a result of the flu," wrote Center for American Progress Senior Economist Heather Boushey. "But there's no penalty for employers who choose not to pay workers in this situation, or who refuse workers any time off at all."

A BETTER BUSINESS MODEL: Big business organizations have panned the notion of required sick leave, with the Chamber of Commerce saying that "the problem is not nearly as great as some people say," and the National Association of Manufacturers warning that the HFA "would impose an inflexible government mandate on employers, making it more difficult for manufacturers to preserve and create jobs." However, lost productivity due to sick workers attending work and infecting others costs the U.S. economy $180 billion annually. For employers, the cost averages $255 per employee per year and "exceeds the cost of absenteeismand medical and disability benefits." The National Partnership for Women and Families actually found that "while a paid sick days policy would impose modest costs, the estimated business savings total $11.69 per week per worker from lower turnover, improved productivity and reduced spread of illness." The Center for Economic and Policy Research has also concluded that "there is no significant relationship between national unemployment rates and legally-mandated access to paid sick days." "When businesses take care of their workers, they are better able to retain them, and when workers have the security of paid time off, their commitment, productivity and morale increases, and employers reap the benefits of lower turnover and training costs," said National Partnership President Debra Ness.

LOCAL EFFORTS: Two major cities -- San Francisco and Washington, D.C. -- have implemented mandatory paid sick leave policies, while a third -- Milwaukee -- has passed the requirement, only to see it tied up in court. In addition, 15 states have proposed mandatory sick leave laws. "We are all being advised by our doctors to stay home if we're sick, but that is a cruel piece of advice if you don't have paid sick time," Maine Senate President Elizabeth Mitchell said. New York City is also looking at mandatory leave, which Mayor Michael Bloomberg has expressed support for, at least for the city's large employers. New York's proposed requirement would also allow workers to stay home in the event their child's school was closed for public health reasons. "Many working parents suffered this past spring because their children's schools were closed even though their children were not sick," said Donna Dolan, chairwoman of the New York State Paid Family Leave Coalition.

To read more about flu and workers' compensation click here.

NIOSH Reports on the Safety of Nanotechnology

The emerging area of nanotechnology has brought with it concerns over worker safety. NIOSH has now released a progress report concerning this technology. NIOSH's goals are:

1. Determine whether nanoparticles and nanomaterials pose risks of work-related injuries and illnesses.
2. Conduct research to prevent work-related injuries and illnesses by ap- plying nanotechnology products.
3. Promote healthy workplaces through interventions, recommendations, and capacity building.
4. Enhance global workplace safety and health through national and international collaborations on nanotechnology research and guidance.

"To date, NIOSH/OEP has committed about $5.3 million dollars to research on applications and implications of nanotechnology. Summaries of the projects funded by NIOSH/OEP are included in Appendix B. NIOSH/OEP plans to continue collaborative efforts with EPA/NCER, NSF, NIH/NIEHS, and other international agencies to support nanotechnology research with occupational safety and health implications. OEP will continue to confer with the NIOSH Nanotechnology Research Center regarding issues, gaps, and future directions.

To read more about nanotechnology click here.

WC Attorney Liable for $359M+ in Legal Malpractice Claim

A NJ workers' compensation attorney who failed to pursue a medical malpractice claim and allowed it to be dismissed was held liable for legal malpractice. The client was injured when a physician punctured the workers' kidney while administering an epidural injection.


To complicate the claim further, the attorney also failed to report the legal malpractice claim to his insurance carrier on a timely basis. In a separate action the legal malpractice insurance carrier was held not liable for the attorney's malpractice.


The workers' compensation claim was settled for $30,000. The liability claim resulted in a judgment, which was entered following a proof hearing, included an award of damages in the amount of $275,000, plus prejudgment interest of $31,453.20, and counsel fees and costs totaling $52,582.17.


Braime v Popovich DOCKET NO. A-3077-07T23077-07T2 NJ App Div Decided 11.6.09 unpublished.


For more about workers' compensation click here.

Sick Leave Pay Law For H1N1 Advances

US Senator Chris Dodd (D-CT) has announced that he is preparing legislation to pay sick workers 7 days of sick leave for H1N1 flu. While workers' compensation benefits may be paid to disabled H1N1 flu workers, the threat of delay and denial has created an emergency that Senator Dodd indicates requires immediate Congressional attention. 


“This isn’t just a workers’ rights issue – it’s a public health emergency. Families shouldn’t have to choose between staying healthy and making ends meet,” said Dodd. “But if staying home means you don’t get paid, that’s an impossibility, especially for families struggling to make ends meet in this tough economy.”

“Workers should have paid sick leave as a matter of basic fairness,” Dodd continued. “But now sick leave is a matter of keeping Americans safe from this pandemic – and from the next one, whatever it may be.”

To read more about influenza and workers' compensation, click here.

He said, "It’s a matter of fairness for workers. It’s a matter of safety."

The CDC reports that H1N1 flu is now widespread in 48 states and may have infected as many as 5.7 million Americans. Fatalities amount to 672 Americans, which includes 129 children.