Social Security at a Critical Crossroads

The last safety net for injured workers, Social Security, is now facing severe economic challenges ahead. At a recent hearing before the US House Ways and Means Committee testimony was presented that the system is now at a critical crossroad because of a surge in disability applications complicated by an increasing administrative backlog.

Beth Bates, testified on behalf of the Consortium for Citizens with Disabilities, “...The wave of new claims is having a very significant impact at the state Disability Determination Services (DDSs) that will eventually affect the hearing level.  At the DDS levels (initial and reconsideration), the number of new applications, applications waiting for a decision, and processing times are all on the rise.  In fiscal year (FY) 2009, SSA received 385,000 new claims, an increase of nearly 15% since the end of FY 2008.  Even more worrisome is the growing backlog of pending initial claims at the DDSs, i.e., those waiting for a decision, up nearly 40% since the end of FY 2008.”

Click here for the complete transcript

Click here for the Subcommittee on Social Security Chairman Tanner Announces a Hearing on Clearing the Disability Claims Backlogs: The Social Security Administration’s Progress and New Challenges Arising From the Recession

Click here to read more about Social Security and workers’ compensation

California Comp is OK, But Just Don't Get Sick

The RAND Corporation published yet another report evaluating the troubled California workers' compensation system. The report, in its esoteric evaluation, reflects on the poor financial judgment of the industry to meet the needs of the injured workers.

The study misses the focus and humanization of what workers' compensation is all about. The concept of providing a remedial and expeditious remedy to injured workers seems to have been left outside in the company parking lot.

The California problems are not isolated, they are nationally systemic. The system fails to deliver and fails to encourage a safer worker environment. More of the same old thing, as RAND recommends, ie. more business should be covered, and more premiums should be collected, just isn't going to cut it any longer.

Workers' compensation is fine, as long as a worker doesn't get sick. Dormant and latent conditions for the most part remain untreated by the present system. Preventive medical care is non-existent. Medical monitoring is a major struggle to secure.

Occupational disease cases have perpetually lingered through delay and denial tactics, and now the condition needs critical care that a bandaid will not cure. As the NY Times reports in results of a recent poll, the safety net has failed.

Nationally the system needs to re-worked. Injured workers need to receive medical care through an effective and efficient process and not left out in the streets to suffer. Congress needs to act to provide coverage through an expansion of the proposed national health care agenda.

Click here to read more about medical benefits and workers' compensation.

Genetics and Workers' Compensation Claims

Genetic predisposition to occupational illness and disease presents a complex issue in workers’ compensation claims and health technology assessment. New methods now permit the identification of individuals who have risk factors establishing a greater propensity for disabling medical conditions.

The challenge of how to use this evidence in the workplace, to create both a safer work environment, while maintaining the privacy of the existence of the workers’ genetic propensity is an on going challenge. Additionally, genetic evidence becomes increasingly important to establish pre-existing and co-existing medical conditions that might reduce or bar recovery in claims for benefits under workers’ compensation acts.

Testimony offered at trial has effective defeated claims.  Evidence has been effective presented to defeat occupational claims, A defense expert testified,"....that studies show almost conclusively that no occupation causes a degenerative disc. It's familial. It's genetic. It has to do with how the DNA forms the disc in embryonic development.’” Allgood v. Parsons Trucking Co., 148 N. C.App. 405 (N.C.App. (2002).

A delicate balance exists between, the ethical, moral and legal use of this evidence. The appropriate use of this information by an employers in assessing risks and benefits in the workplace is challenging. Many tasks at work now include risk factors of a  carcinogenic, mutagenic, and/or genotoxic nature.

NIOSH ‘s recently published report,  Genetics in the Workplace: Implications for Occupational Safety and Health, addresses balancing some of aspects of these issues while focussing on the paramount issue of safety in the workplace. “The use of genetic information in occupational safety and health research requires careful attention because of the real or perceived opportunities for the misuse of genetic information. Society in general and workers in particular have concerns that discrimination and lack of opportunity will result from the inappropriate use of genetic information [MacDonald and Williams-Jones 2002; Maltby 2000]. While only sparse or anecdotal information supports this contention, a wide range of workers, legislators, scientists, and public health researchers have concern that such discrimination could occur. Thus, GINA and other regulations were passed to prevent the potential misuse and abuse of genetic information in the workplace. Examples of safeguards include rules and practices for maintaining privacy and confidentiality, prohibition of discrimination, and support of a worker’s right of self- determination (autonomy) with regard to genetic information.”


Click here to read more about occupational illness and genetics.

Teacher Acting as School Chaperone Wins Benefits for Skiing Accident

Massachusetts has expanded the recreational activity doctrine to include volunteer recreational activity as compensable. The Supreme Court permitted a schoolteacher, who acted as a school chaperone on a ski trip, to recover benefits as a result of a ski accident necessitating two surgeries and physical therapy.

Alan Pierce, attorney for the injured workers said, “It sends a message to municipalities and teachers that the work they do on either side of the classroom bell is valued.’’

Karen Sikorski’s Case, SJC-10481 Decided Oct. 5, 2009

Click here to read more about recreational activity claims and workers’ compensation.

NJ Assembly Passes Bill to Stop Raid on Second Injury Fund

The NJ Assembly approved legislation to halt raids on the NJ workers' compensation Second Injury Fund (SIF). The vote to approve passage of SCR60 was unanimous. In the past $95 million was diverted from the SIF to the State's general treasury.


Click here to read more about the Second Injury Fund.

US Supreme Court Turns Down RICO Appeal- Good News for Injured Workers

Good news was message to injured workers' from the US Supreme Court today. The Court upheld a favorable RICO decision of the Court of Appeals that permits injured workers to institute federal Racketeer Influenced and Corrupt Organizations Act(RICO) claims against employers, insurance carriers and defense medical experts. It upheld the 6th Cir. decision that Michigan's Workers' Compensation Disability Act (WDCA) did not reverse preempt, under the federal McCarran-Ferguson Act by engaging in predicate acts of mail fraud and wire fraud, in order to deny the injured employees' valid claims for workers' compensation benefits.

"08-1375 CASSENS TRANSPORT CO., ET AL. V. BROWN, PAUL, ET AL.

The motion of MI Self-Insurers Association for leave to file
a brief as amicus curiae is granted. The motion of American
Trucking Associations, Inc. for leave to file a brief as amicus
curiae is granted. The motion of DRI - The Voice of the Defense
Bar for leave to file a brief as amicus curiae is granted. The
motion of National Council of Self-Insurers, et al. for leave to
file a brief as amici curiae is granted. The petition for a
writ of certiorari is denied."


Cassens Transport Co. v. Brown, --- S.Ct. ----, 2009 WL 1269080, 77 USLW 3635, 78 USLW 3011 (U.S. Dec 07, 2009) (NO. 08-1375)

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

Click here to read more about the late Judge Harold Ackerman who sat below on the 6th Cir.  By Designation. That decision was affirmed by the US Supreme Court. Judge Ackerman was a former NJ Workers' Compensation Judge(1955-1965), the Federal Judge who managed the entire, original,  asbestos litigation docket in the 1980's (ie.  Austin v. Johns-Manville Products Corp., 672 F.2d 902 (C.A.3 (N.J.) 1981)). Judge Ackerman passed away last week at age 81. 

David Michaels Confirmed by US Senate to Head OSHA

David Michaels has been confirmed by the US Senate to head the Occupational Safety and Health Administration (OSHA).  The Senate voted favorably to confirm in a session on December 3, 2009.

Click here to read more about David Michaels and OSHA.