Workers' Compensation

Friday, February 11, 2011

Distracted Driving Workers Compensation Claim Draws Major Public Attention

A workers compensation claim filed by a state trooper for injuries he sustained while texting and speeding 126 miles per hour that resulting in a fatal accident with oncoming teenagers, a driver and a passenger, has drawn media attention. An effort to hold a hearing, "on the sly with no press," before the Illinois Workers' Compensation Commission is now receiving coverage by news organizations including; the Associated Press, the Belleville News Democrat, the Courthouse News Service, and the ABA Journal.

Accidents caused by distracted driving are creating an emerging challenge for workers' compensation court to adjudicate. The National Institute for Occupational Safety and Health (NIOSH) is following the lead of the US Department of Labor by encouraging employers to ban cell phone use while operating vehicles. An outright prohibition and supporting legislation may lead to the prohibition of workers' compensation benefits in many jurisdictions in the near future unless more global and radical action is taken to re-mediate this dangerous activity.

The state trooper pleaded guilty to two counts of reckless homicide last year. He has since resigned from his job.

The attempt to conceal the hearing of the Illinois troop was the subject of internal e-mails reported by the Belleville News Democrat. Public commenting was removed from the on-line report because of abuses. No hearing date or location has been reported yet for the compensation hearing.

Related Articles:

NIOSH Supports Efforts to Ban Distracted Driving
Cell Phone Safety and Workers Compensation
The Trend to Exclude Distracted Driving from Workers Compensation Coverage
Put it Down - Friday April 30th
Driving While Distracted Compared to DUI
Are Driving Distractions Within the Course of Employment?
Employee Cell Phone Chat Results in $5.2 Million Payment to Widow by Employer

Thursday, February 10, 2011

AIG Reaches For Its Wallet to Cover $4.1 Billion in Work Comp Claims and Asbestos Liabilities

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The American International Group (AIG), the huge insurance company that the US Government bailed out financially, is still hard pressed to raise funds to cover on going claims. AIG has announced that it will need to raise another $4.1 Billion dollars to cover such costs as primary and excess workers' compensation claims and asbestos liability claims.

AIG's long and troubled history was the subject of investigative reporting in the Academy Award nominated film, Inside Job. The Many factors have impact on an insurance company's solvency including the ability to collect premiums in a down economic cycle, the investment of the premiums collected and colateral bad investments the have a massive economic impact of the financial worth of the company in general.

Workers' compensation claims continue despite a low employment cycle. Latent diseases, such as asbestos related lung cancer, asbestosis and mesothelioma, may be dormant for decades before manifesting into a chronic and terminal medical condition.

The industry continues to struggle on how workers' compensation should be employed to insure industries and employers from these condition. Originally the workers' compensation acts did not cover occupational conditions such as silicosis or asbestosis. In the 1950s acts were amended, at industries insistence to bring these occupational conditions under the umbrella of coverage and shield employers from civil lawsuits. With the expansion of products liability claims, based on the intentional concealment of information of the hazards of these conditions, as well as low economic recoveries from struggling workers' compensation systems put the boat back into the bottle, "the longest running tort", asbestos litigation, was born.

Industry continues to try to put the genie back into the bottle, which is reflected in the latest attempt in Missouri to bar liability claims against employers and co-workers. One of the incentives of a workers' compensation program is to prevent industrial accidents, but the system continues to struggle both economically and procedurally in achieving that objective.

The need for AIG to raise additional cash to pay claims raises a concern as to whether premium dollars to pay claims are being adequately protected in the first place, and whether those premiums ared being directed to injured workers and victims of occupational illness. Instead of trying to figure how to further restrict the payment of benefits, perhaps more attention should be paid to making a safer workplace by banning asbestos use, and providing more convenience access through universal medical care.

Related articles

Public Meeting on Implementation of the Zadroga 9/11 Health and Compensation Act

The National Institute for Occupational Safety and Health (NIOSH) will host a public meeting on March 3 in New York City to receive comments from the public on implementing the provisions of the James Zadroga 9/11 Health and Compensation Act of 2010 (Public Law 111-347).

NIOSH will convene the public meeting in response to a request by Reps. Carolyn B. Maloney (D-NY), Jerrold Nadler (D-NY), and Peter T. King (R-NY), the primary sponsors of the James Zadroga 9/11 Health and Compensation Act of 2010 in the U.S. House of Representatives. The meeting will be held from 9:00 a.m. to 4:45 p.m., Eastern Time, at the Jacob K. Javits Federal Building, 26 Federal Plaza, Broadway entrance, 6th Floor, Conference Room A/B, New York, N.Y. 10278.

The meeting is open to the public, limited by the space available. The meeting space accommodates approximately 300 people, and will be available on a first-come-first-served basis. In addition, there will be an audio conference setup for those who cannot attend in person. The toll-free call-in number is 1-800-619-8873; pass code 8693287.

The James Zadroga 9/11 Health and Compensation Act of 2010 established the World Trade Center Health Program within the U.S. Department of Health and Human Services, of which NIOSH is part. Comments from the public will help the Federal government in developing a plan to implement the Act by gaining perspectives from interested parties on ways to meet the Act's requirements.

The Act's requirements include:

Medical monitoring for responders who were likely to have been exposed to airborne toxins that were released, or to other hazards, as a result of the September 11, 2001, terrorist attacks.
Initial health evaluation for survivors.
Follow-up monitoring and treatment for responders and survivors related to World Trade Center-related health conditions.
Education and outreach to potentially eligible individuals.
Clinical data collection and analysis.
Research on health conditions.

A copy of the full Act is available at www.cdc.gov/niosh/topics/wtc/hr847.html. A notice of the public meeting with further information on attendance and registration is scheduled to be posted in the Federal Register on Feb. 10.

For over 3 decades the Law Offices of Jon L. Gelman 1.973.696.7900 jon@gelmans.com have been representing injured workers and their families who have suffered asbestos related disease. Please contact our office if you require assistance in filing a claim under the newly enacted James Zadroga 9/11 Health and Compensation Act.

Tuesday, February 8, 2011

Facebook Becomes a Questionable Friend of Workers Compensation

Social networking’s popularity has become a two-edged sword as a tool in the management, investigation, and disposition of workers’ compensation claims. Over the last several years there has been an exponential explosion in the use of this technology on the Internet. The challenge to properly access and effectively utilize the electronically stored information [ESI] is resulting in procedural and ethical ramifications for the workers’ compensation community.

Complete article appears as a guest blog on: PropertyCasualty360

Proposal to Eliminate Participation of Lawyers

A proposal has been made by the Commission of Labor in Oklahoma, Mark Costello, to eliminate the participation of lawyers at the hearing level in workers' compensation matters. The reform has been suggested to save money and put more money on the hands of the injured workers.

Costello, a local businessman, was elected last November on the Republican ticket. He founded American Computer & Telephone (AMCAT) that he sold in 1991.

McCullough’s 279-page measure, House Bill 1224, would create a workers’ compensation commission with three members: a physician, an attorney and an industry professional. Administrative law judges would preside over claims hearings.

Wednesday, February 2, 2011

The Lingering Consequences of Smoke in the Workplace

Countless studies have confirmed the health risks associated with smoking and secondhand smoke exposure. Now, new research is bringing attention to potential health risks associated with so-called thirdhand smoke, the mixture of tobacco smoke toxicants that lingers in the air and on surfaces after the smoke itself dissipates.

An article in the current issue of Environmental Health Perspectives takes a look at the state of the science on thirdhand smoke and discusses why some researchers believe it is a cause for concern.

California Report Makes Recommendations To Curtail Lien Claimants

A California workers' compensation report has made sweeping recommendations to reduce and manage the filling of liens in pending cases. One recommendation is to charge a $100 filing fee to be paid by a lien claimant.

The California workers compensation court has become a collection agency for unpaid bills. This issue is mirrored throughout the US as medical costs have soared and a single payer system has not yet been enacted as in European countries.

The study commission concluded that the volume of liens alone amounts to "coercion to settle." The report reveals that 35% of the present court calendar now involves liens. The cost to employers amounts to an estimated $200 Million annually. Over 450,000 liens are predicted to be filed this yea alone. Medical liens represent the vast majority of the liens filed in compensation cases.

Excluded from consideration in he report are Federal medical programs such a Medicare (Medicare Secondary Benefit claims), VA Medical claims and TRICARE (Military Health Plans.). Those claims can only be resolved only by a tribunal cloaked with Federal jurisdiction.

Tuesday, February 1, 2011

WR Grace Asbestos Bankruptcy Plan Receives Initial Approval

A Delaware Bankruptcy Judge has approved a reorganization plan for the former asbestos manufacturer, WR Grace. The company sought bankruptcy protection in 2001 from asbestos liabilities. The reorganization plan provides for the payment of benefits to victims of asbestos related disease.The proposed plan now must be reviewed by a US District Court Judge for final approval.

Asbestos exposure results in progressive and latent diseases including: asbestosis, lung cancer and mesothelioma. There is no known cure for mesothelioma, a rare and fatal disease. The use of asbestos is not yet banned in the US.

WR Grace manufactured asbestos insulation, Zonolite, and other asbestos containing products . For many years it mined asbestos in Libby, Montana, and left behind a legacy of disease to its former employees and residence of the mining community. Last year, the US Congress passed and the President signed, a national health care bill that provided medical coverage under Medicare for those who worked and/or resided in Libby, Montana.

Once the US District Court finalizes approval of the plan, the present and futures asbestos victims trusts will begin processing claims for payment.

Friday, January 28, 2011

The RICO Consequences of Managing Health Care in Workers Compensation

It is one thing to provide workers' compensation coverage to injured employers and it is another issue how involved an employer can be in managing medical care. That right was never addressed by the crafters of the workers' compensation system almost a century ago.

That dilemma is now being addressed by a Federal Judge in Colorado where a class action lawsuit pending against Wal-Mart for micro-managing and restricting medical care to injured workers. Brooks Magratten, Esq, has addressed these issues in a recently authored article. "Class Action Attacks Wal-Mart Health Care Model." 25 No. 13 WJEMP 1 (Jan. 25, 2011). The landmark action has the potential to expand workers compensation medical care into the umbrella of a national universal medical care system.

The plaintiffs in the pending action, all former and present Wal-Mart employees, are seeking treble damages against the mega-corporation, with an aggregate market value of $108.8 Billion, for interfering with medical care. Judge Robert Blackburn has denied Wal-Mart's motion to dismiss, now setting the stage for a definitive test of the workers' compensation medical system nationally.

Sunday, January 23, 2011

Benefits Available Under the Zadroga 9/11 Victim Compensation Fund

On January 2, 2010, President Barack Obama signed the James Zadroga 9/11 Health and Compensation Act establishing the World Trade Health Program and extends and expands eligibility for compensation under the September 11th Victim Compensation Fund of 2001.

The President remarked, "I was honored to sign the James Zadroga 9/11 Health and Compensation Act to ensure that rescue and recovery workers, residents, students, and others suffering from health consequences related to the World Trade Center disaster have access to the medical monitoring and treatment they need. We will never forget the selfless courage demonstrated by the firefighters, police officers, and first responders who risked their lives to save others. I believe this is a critical step for those who continue to bear the physical scars of those attacks."

Those who were exposed to the toxic dust and fumes of the World Trade Center disaster continue to suffer from latent and progressive medical conditions. The New England Journal of Medicine has reported that a substantial population that was exposed to the toxic residuals of the event are suffering from sever medical conditions. Positive pathological findings reflect the existence of aluminum and magnesium silicates, chrysotile asbestos, calcium phosphate, calcium sulfate, glass, and carbon nanotubes (CNT) were found in specimens of exposed individuals.

Eligibility for benefits under the James Zadroga 9/11 Health and Compensation Act include those who were World Trade Center victims and First Responders. Under the law those who worked, attended school, childcare and adult day care, may be eligible. The program also covers some who were present in the area of the dust cloud or who lived in the the New York City disaster area. Certain cleanup and maintenance workers are included including tele-communications workers such as Verizon, AT&T and other employees.

Like the September 11th Victim Compensation Act of 2001, even if the exposed individuals are living in another state, but were exposed at the NY Disaster Area, the ill individuals may apply for benefits.

It is probable that cancers resulting from the exposures will be covered under the legislation. Historically, occupational and environmental exposures to carcinogens, such as asbestos, may take many years to progress and manifest into conditions as asbestosis, mesothelioma and lung cancer.

Additionally, various respiratory and digestive diseases are being reported including:

1. Interstitial lung diseases.
2. Chronic respiratory disorder--fumes/vapors.
3. Asthma.
4. Reactive airways dysfunction syndrome (RADS).
5. WTC-exacerbated chronic obstructive pulmonary disease (COPD).
6. Chronic cough syndrome.
7. Upper airway hyperreactivity.
8. Chronic rhinosinusitis.
9. Chronic nasopharyngitis.
10. Chronic laryngitis.
11. Gastroesophageal reflux disorder (GERD).

For over 3 decades the Law Offices of Jon L. Gelman 1.973.696.7900 jon@gelmans.com have been representing injured workers and their families who have suffered asbestos related disease. Please contact our office if you require assistance in filing a claim under the newly enacted James Zadroga 9/11 Health and Compensation Act.

Saturday, January 22, 2011

California Applicants' Attorneys Association Affiliates With Labor

Teamsters and Workers’ Compensation Attorneys Affiliate To Strengthen Political Action Team

SACRAMENTO, CA - The International Brotherhood of Teamsters (IBT), AFLCIO, and the California Applicants’ Attorneys Association (CAAA) today announced a new Affiliation Agreement. CAAA has affiliated with the IBT’s Joint Councils No. 7 and 42, and its California Teamsters Public Affairs Council. The two organizations have agreed to coordinate their activities and pursue mutual interests relating to policy and politics.

“The Affiliation Agreement between the Teamsters and the California Applicants’ Attorneys Association helps both improve our abilities to meet the needs of our respective memberships,” said Randy Cammack, International Vice President of the IBT and Co-Chair of the California Teamsters Public Affairs Council. “The Teamsters will benefit from CAAA’s expertise in advising us on workers’ compensation policy and workplace safety issues. CAAA will benefit from our presence throughout the state at the local level, and our expertise in working for improved public policy relating to working people,” added Rome Aloise, IBT Vice President and the other Co-Chair of the California Teamsters Public Affairs Council.

“Our members represent tens of thousands of working Californians, and we have always worked closely with organized labor on behalf of those injured on the job. Our Affiliation with the Teamsters will provide our members and their clients with an even more powerful voice on their behalf,” said Barry Hinden, president of CAAA. “This Affiliation will harness the power of our two organizations to focus
on state and federal issues that jointly affect our members, including legislation, public policy and political action.”

“Our organization of professionals will remain autonomous and self-governing,” said Hinden. “We are excited to join with others who share our goals and objectives and look forward to an even closer relationship with all of organized labor. This is an opportunity to become even stronger advocates for Californians injured on the job.”

Cammack, Aloise, and Hinden said the partnership between CAAA and the IBT is part of an effort by both organizations to build bridges and form new alliances. The Teamsters, for example, have organized or affiliated airline pilots and other whitecollar professionals. CAAA has embarked on a new initiative to build bridges to like-minded organizations in organized labor, and the civil rights and consumer advocacy communities.

Related articles

Out of State Medical Treatment Allowed By Workers Compensation Court

An employer is required to provide medical care, including surgery and followup care, to an employee even if the employee leaves the state within two days of an initial surgical intervention. Chubb Insurance was ordered to pay for medical care, including subsequent surgery, when an employee was required to leave the state for a family emergency.

The court held that the failure of the employer/insurance carrier to provide medical care for out-of-state treatment, even though requested by the employee, was deemed a refusal of the employer to provide adequate medical care to cure and relieve the worker of the work related injury. The employer/insurance company was ordered to pay for out-of-state medical care.

Ham v. Anchor Glass Container Corporation, Docket No. A-1797-09T3, Decided January 20, 2011 Not Reported in A.3d, 2011 WL 166206 (N.J.Super.A.D.)

Friday, January 21, 2011

Workers Compensation Blog Marks Over 100,000 Views

The Workers' Compensation Blog has now logged over 100,000 views since its inception on July 27, 2007. It continues as an academic experiment to identify and disseminate information about developments and trends in workplace injury law, and hopefully encouraging a safer work environment for future generations. With almost 700 posts on line, and a readership that reaches 7 continents, the experiment has far exceeded my expectations.

As the United States approaches its Workers' Compensation Act centennial celebrations, and history looks back upon the catalytic events, ie. the tragic Triangle Shirtwaist factory fire, that generated the model acts of 1911, it is hoped that experiments such as this blog will inspiring a new focus on critical issues such as workplace safety, the environment and international commerce that will embrace the system for the next 100 years.

Thursday, January 20, 2011

Federal Push to Cap Workers' Compensation Based on Age

Sen. Susan M. Collins (R-Maine) has asked for an investigation by the Government Accounting Office to determine if too many Federal employees of retirement age are receiving workers' compensation benefits.

She stated, ""I am increasingly concerned that individuals with no intention of returning to work continue to receive these benefits," said Senator Collins. "At the U.S. Postal Service, for example, 1,000 employees currently receiving federal workers' compensation benefits are 80 years or older. Incredibly, 132 of these individuals are 90 and older and there are three who are 98. This abuse may extend across the government where the Department of Labor regularly pays benefits to employees in their 70s, 80s, 90s, and even 100s. The lack of benefit caps and requirements for regular third-party certifications of continued need further expose the FECA program to possible fraud. If recipients are gaming this crucial benefit at taxpayers' expense, they must be exposed and the underlying program must be reformed.""

Thursday, January 13, 2011

New Drug May Be Effective Against Mesothelioma

Recent research by Japanese scientists have been reported effective against malignant pleural mesothelioma [MPM], a rare cancer associated with asbestos exposure. The drug, named S-1, has been developed as a novel oral antineoplastic agent "based on the modulation of 5-fluorouracil (5-FU) bioactivity."

The scientists used three human MPM cell lines, Y-MESO-14, NCI-H290 and MSTO-211H. In vitro proliferation of human MPM cells was determined by MTT assay. Human MPM cells were orthotopically implanted into thoracic cavity of SCID mice. Tumor-bearing mice were treated with S-1 or vehicle.

"The combination of 5-FU and 5-chloro-2,4-dihydroxypyridine (CDHP) was more effective than 5-FU alone in inhibiting MPM cell proliferation in vitro. This combination was most effective in Y-MESO-14 cells, which co-expressed high protein level of dihydropyrimidine dehydrogenase (DPD) and thymidine phosphorylase (TP). In vivo data showed that treatment with S-1 significantly reduced thoracic tumors and pleural effusion produced by Y-MESO-14 cells. Moreover, treatment with S-1 prolonged the survival of Y-MESO-14 cell-bearing SCID mice."

They concluded, "We demonstrated that S-1 was effective for inhibiting the proliferation of MPM cells, particularly with both DPD and TP expressions, suggesting that S-1 might be therapeutically effective for control of MPM."

CANCER CHEMOTHERAPY AND PHARMACOLOGY DOI: 10.1007/s00280-010-1503-x

Wednesday, January 12, 2011

Workers Compensation Benefits Awarded for Breast Cancer

The Nevada Supreme Court has awarded workers' compensation benefits to a firefighter who alleged that her occupational exposure at work to toxic substances caused her breast cancer. The court held that there was substantial evidence that supported the finding that her exposure to known carcinogens was causally related to her breast cancer.

The injured worker was employed for the City of Las Vegas in 1992 and was diagnosed with breast cancer in 1997. She under whet treatment and lost 8 to 9 months of work. In 2004 she suffered a recurrence of the breast cancer and under when a double mastectomy and chemotherapy.

The Nevada statute defines what a "carcinogen" is based upon the definition of the International Agency for Research on Cancer [IARC] or the National Toxicology Program [NTP]. The former firefighter alleged that she was exposed to benzene, a know carcinogen. One of her expert witnesses, Dr. James Melius, testified that, "Several studies have found occupational exposure to benzene to be associated with breast cancer risk in both males and females."

Also her treating physician causally related her medical condition to her occupational exposure to carcinogens. He advised her to cease work as a firefighter.

City of Las Vegas v. Lawson, No. 53900, 126 Nev. Adv. Op. 52, 2010 WL 542282 (Nev. 2010) Decided December 30, 2010.

Too Old to Get Workers Compensation

Washington's Governor, Chris Gregorine has proposed legislation to retire older totally disabled workers from the state's workers' compensation system. About 8% of the state's totally disabled workers would have the option of receiving a lump sum benefit to opt out of the system of periodic benefits. The senior beneficiaries amount to 85% of the present systems' cost and amount to only 8% of the total beneficiaries.

Related articles

Thursday, January 6, 2011

EPA Urged to Shut Down Dangerous Asbestos Removal Method

The U.S. Environmental Protection Agency's Inspector General has just signed an "Early Warning Report" that will shut down a dangerous and unapproved asbestos removal method that two EPA offices have been testing for the past seven years.

The report supports what Public Justice has been arguing -- that the method both endangers public health and doesn't work.

The approved method requires all asbestos to be removed from a building by trained specialists wearing protective gear before it is demolished. Under the unapproved method, called the "Alternative Asbestos Control Method," or AACM, most of the asbestos-containing materials are left in place during demolition. Water with added surfactants is sprayed on the building to try to suppress asbestos release and contamination.

Read more about the EPA Asbestos Report:

For over 3 decades the Law Offices of Jon L. Gelman 1.973.696.7900 jon@gelmans.com have been representing injured workers and their families who have suffered occupational accidents and illnesses.

Wednesday, January 5, 2011

NIOSH Proposes New Digital Classification for Pneumoconiosis

Monitoring the health of individuals involved in dusty work is intended to provide assurance to the worker that ongoing exposure controls are adequate. Recognition of minor health abnormalities serves as an early warning to both workers and managers when there is need for more effective measures to prevent work-related impairment and disability. Since 1970, NIOSH and other organizations have successfully applied traditional film screen chest radiography, interpreted using the ILO International Classification of Radiographs of Pneumoconiosis, toward these objectives.

Imaging of interstitial lung diseases such as the pneumoconiosis represents one of the most difficult challenges in diagnostic radiology, and comprehensive attention to technological, methodological, and human factors is required to assure that the image quality and interpretation are satisfactory for achieving early disease detection.

This NIOSH Guideline is based upon accepted contemporary professional recommendations, and provides technical and operational guidance for radiographic facilities and physician readers who obtain digital chest radiographs for the evaluation of pneumoconiosis. The intent is to assure that the recognition of pneumoconiosis using digitally-acquired chest radiographs is at least as safe and effective as traditional film screen radiography. The Guideline should not be considered a mandate for medical practice; however participating practitioners and facilities who deviate from the specifications should have a sound medical rationale for alternative approaches.

The ILO system has been used extensively in the diagnosis of asbestos related disease.

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