Medical Criteria Swamp for WTC First Responders

The threshold question in determining compensability in any program is how to construct a system that will provide immediate and expeditious delivery. The sick first responders to the horrific attack of September 11, 2001, are still struggling to obtain benefits.

The recent plan offered by the WTC Captive Insurance Company, and rejected by the Court, sets forth elaborate eligibility and disability criteria.  The 96 page agreement, and accompanying exhibits, outlining the settlement process provides insight into struggle.

Drawing from far and wide, the proposed agreement tries to cover all potential diseases and schedule them.

"To constitute a Qualifying Injury, an alleged injury must satisfy all three of the following components of the Medical Proof Criteria: (i) it must be one of the “Qualifying Injuries” listed expressly in the tables immediately below; (ii) it must meet the “Diagnostic Criteria” applicable to the Disease Group in which the Qualifying Injury is listed in the tables immediately below; and (iii) it must satisfy the “Impairment Criteria” for the Disease Group in which the Qualifying Injury is listed in the tables..."

The sources include:

"European Respiratory Society/American Thoracic Society COPD Guidelines – 2005; ATS/ERS Criteria for Diagnosis of Idiopathic Pulmonary Disease in Absence of  Surgical Lung Biopsy; Global Initiative for Asthma/World Health Organization; American College of Chest Physicians Consensus Statement; British Society for Allergy and Clinical Immunology guidelines for the  management of rhinosinusitis and nasal polyposis. Scadding GK; Durham SR; Mirakian R;  Jones NS; Drake-Lee AB; Ryan D; Dixon TA; Huber PA; Nasser SM - Clin Exp Allergy.  2008 Feb; 38(2):260-75. Epub 2007 Dec 20.

The proposed system is yet another attempt to quantify disability and adds another set of elaborate medical criteria and complexity to the insurance company playbook. The loquaciousness of the authors of the proposal is mind boggling. This level of sophistication can only compound the delivery of benefits. This proposal is yet another example of the compelling need for one universal national program that can provide benefits to injured workers without the need of hip  high boots to navigate the swamp.

Click here to read more about 911 WTC claims.

Judge Rejects 911 Settlement -- $595 Million Not Enough

A US District Court Judge rejected the proposed settlement for $595 Million, for 911 first ill responders, declared it to be "not enough."

The Judge in reviewing the proposal said, "In my judgment, this settlement is not enough." Judge Alvin Hellerstein remarked, "I have the power of review, and I don't think it is fair."

A proposal was presented by the WTC Captive Insurance Company that manages the $1 Billion fund established by Congress to pay injured workers. 

The Court ordered more settlement discussions in an effort to seek a fair resolution of the litigation. 

Click here to read more about 911 WTC claims.

Workers Compensation Insurance Company Ordered to Pay For Gastric Bypass

Treating medical conditions that are necessary to relieve and cure a medical condition is the responsibility generally of workers' compensation programs throughout the United States. Now a Court has ordered that an insurance company must treat a persons obesity as an extension of its medical benefits so that weight reduction can occur and the underlying work related condition can be addressed.

"Claimant slipped and fell at work in 2002, and his ensuing workers' compensation claim presently encompasses, among other things, injuries to his head, neck, back and knees. His morbid obesity has contributed to his knee and back problems and, in an effort to combat those problems and counter a broader threat to his survival, claimant sought authorization to undergo gastric bypass surgery. The Workers' Compensation Law Judge granted his request. Upon review, the Workers' Compensation Board affirmed, holding that the surgery was causally related to the compensable injuries. 

In affirming the decision the Supreme Court, Appellate Division, Third Department, New York held:

"The employer is obliged to pay for claimant's medical care “for such period as the nature of the injury or the process of recovery may require” (Workers' Compensation Law § 13[a]; see Matter of Spyhalsky v. Cross Constr., 294 A.D.2d 23, 25-26 [2002] ). There is evidence in the record that claimant has gained a substantial amount of weight since 2002 due to the sedentary lifestyle imposed by the compensable injuries. Claimant's treating orthopedic surgeon opined that claimant's back and knee pain was exacerbated by his obesity and that such could be alleviated by weight loss. An independent medical examiner agreed, opining that weight loss would “certainly” help those conditions. While material in the record before us could support a different result, substantial evidence exists for the Board's determination that claimant's weight gain was caused by his compensable injuries and that gastric bypass surgery “would assist in [his] recovery” ( Matter of Bolds v. Precision Health, Inc., 16 A.D.3d 1007, 1009 [2005]; see Workers' Compensation Law § 13[a]; Matter of Spyhalsky v. Cross Constr., 294 A.D.2d at 25-26, 743 N.Y.S.2d 212).

Laezzo v. New York State Thruway Authority, --- N.Y.S.2d ----, 2010 WL 812862, N.Y.A.D. 3 Dept., 2010, March 11, 2010.

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The Limited Application of a RICO Claim

A Federal District Court in Michigan has dismissed a RICO [Racketeer Influenced and Corrupt Organizations Act] claim against Sedwick Claims Management Services. The plaintiffs alleged that the insurance company, "....'engaged in a scheme to defraud employees of the minimum wages and fringe benefits to which they were entitled' under the McNamara-O'Hara Services Contract Act, 41 U.S.C. 351,et seq. (SCA), 'in violation of the civil provisions of ... RICO.'"

In dismissing the case, the court reasoned, "an injured worker may not use RICO as an 'end run' around the exclusive procedures and remedies prescribed by the WDCA [Michigan's Workers Disability Compensation Act] -Defendants contend that Plaintiffs have filed this action in an attempt to convert their workers compensation disputes into a federal RICO case-the basis of which is the Defendants' allegedly-fraudulent violation of the WDCA. Plaintiffs' effort to convert their disputes over benefits into RICO claims, while creative, must be rejected. Plaintiffs' RICO claims seek to expand RICO far beyond its intended reach. As the federal courts have repeatedly held, a plaintiff may not use a RICO claim as an 'end run' around a comprehensive, specialized, and exclusive administrative scheme like the scheme established by the WDCA. Yet that is precisely what these Plaintiffs seek to do."

"....RICO was never intended to create a path into courts for litigants who would otherwise be limited to exclusive administrative remedies and procedures, and subject to strict damages limitations. The Court finds that Plaintiffs may not use their RICO claim to reform Michigan's workers' compensation law-allowing them to do so would be an unwarranted intrusion into Michigan state law and procedure."

Jackson v. Sedgwick Claims Management Services, Inc., 2010 WL 931864, E.D. Mich. 2010, March 11, 2010.

Click here to read more RICO claims and workers' compensation.

CMS Announces New Life Tables

The Centers for Disease Control (CDC) has recently published its 2005 United States Life Tables. Effective April 12, 2010, the Centers for Medicare & Medicaid Services (CMS) will begin referencing the CDC's Table 1: Life table for the total population: United States, 2005, for WCMSA life expectancy calculations. This means that for any newly submitted WCMSA proposal received by CMS' Coordination of Benefits Contractor (COBC), or where any WCMSA case is reopened on or after April 12, 2010, CMS will apply the CDC's 2005 Table 1 for life expectancy calculations.

In 2005, the overall expectation of life at birth was 77.4 years, representing a decline of 0.1 years from life expectancy in 2004. From 2004 to 2005, life expectancy at birth remained the same for males (74.9), females (79.9), the white population (77.9), white males (75.4), white females (80.4), the black population (72.8), and black males (69.3). Life expectancy at birth increased for black females (from 76.0 to 76.1). Life expectancy estimates based on the revised meth­ odology are slightly lower than those based on the previous method­ ology. For 2005, life expectancy at birth based on the revised methodology was lower by 0.4 years for the total population.

Click here to read more about "Life Expectancy" and workers' compensation.

Hot Coffee- Is Justice Being Served

Everyone has heard of the case against McDonald for spilled hot coffee that resulted in a large verdict.  Susan Saladoff has undertaken an effort to undo the effects of the "brainwashing" campaign of the insurance industry designed to demonstrate  the triviality of the claim.

Last week I had the opportunity to watch a screening the movie and the actual and horrendous bodily damage caused by the scalding hot coffee. The movie depicted the callouss behavior of McDonald's in its disregard of the on going complaints concerning its beverage.

Ms. Saladoff has undertaken a mission to right a wrong and reverse the effort of the insurance industry to limit all types of lawsuits under the guise of reform. The movie in its final stages of production. The producers are making an incredible effort to serve justice.

Click here to read more about "The Starbucks Doctrine" and workers' compensation.

Legislation Introduced to Reform OSHA to Make the Workplace Safer

Congresswoman Dina Titus of Nevada’s Third District introduced the Ensuring Worker Safety Act  (H.R. 4864) this morning.  The legislation aims to protect workers by assuring that state OSHA plans are at least as effective as federal standards and enforcement, while protecting states’ rights by giving OSHA additional options when a state plan is found to be underperforming.

“The tragic deaths of numerous workers in Southern Nevada highlighted the need to ensure that state OSHA plans are doing their job of protecting workers,” Congresswoman Titus said.  “Unfortunately under current law, federal OSHA is left with only two options, both at the extreme end of the spectrum, when it finds state plans that are ineffective.  This legislation provides OSHA with an important middle ground so it is not left with the choice of doing nothing or the drastic step of terminating a state plan. ”

The Occupational Safety and Health Act of 1970 sets out a federal-state framework for workplace safety and health.  Under existing law, states may either apply to the federal Department of Labor to operate their own state health and safety program or remain under federal OSHA authority.  To be approved, states must demonstrate that their program standards and enforcement are “at least as effective” as federal OSHA.  Currently, there are 22 states and territories, including Nevada, where health and safety enforcement is done by state health and safety programs.

Once federal OSHA issues final approval for a state plan, OSHA is extremely limited in its authority to hold state plans accountable.  If OSHA determines that an approved state plan is not “at least as effective as” federal standards and enforcement, its only recourse to compel changes to an underperforming program is to terminate the state plan, a drastic step that would remove state control, leave state and local government employees unprotected, and add costs to DOL for funding and running a health and safety program in the state.

Specifically, the Ensuring Worker Safety Act establishes a formal mechanism for OSHA to identify a problem with a state plan and compel a remedy without beginning the process for withdrawing approval.  It also ensures the continued application of health and safety regulations by providing OSHA with concurrent enforcement authority while a state plan is remedying deficiencies.  Finally, the bill holds federal OSHA accountable for providing strong oversight and guidance to state plans by establishing a regular Government Accountability Office study – one every five years – to look at the effectiveness of state plans and the Secretary of Labor’s oversight of such plans.

A number of deaths on the job led to Nevada being the first state in the country to have an in-depth review that highlighted the problems facing Nevada OSHA.  This review made it clear to Titus that federal OSHA needs an additional option to work with states that are not meeting federal standards.

Click here to read more about OSHA and workers' compensation.