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Friday, May 27, 2011

Occupational Safety Recognized as One of the Top Ten Great Health Achievements

During the 20th century, life expectancy at birth among U.S. residents increased by 62%, from 47.3 years in 1900 to 76.8 in 2000, and unprecedented improvements in population health status were observed at every stage of life (1). In 1999, MMWR published a series of reports highlighting 10 public health achievements that contributed to those improvements. This report assesses advances in public health during the first 10 years of the 21st century. Public health scientists at CDC were asked to nominate noteworthy public health achievements that occurred in the United States during 2001--2010.

Occupational Safety

Significant progress was made in improving working conditions and reducing the risk for workplace-associated injuries. For example, patient lifting has been a substantial cause of low back injuries among the 1.8 million U.S. health-care workers in nursing care and residential facilities. In the late 1990s, an evaluation of a best practices patient-handling program that included the use of mechanical patient-lifting equipment demonstrated reductions of 66% in the rates of workers' compensation injury claims and lost workdays and documented that the investment in lifting equipment can be recovered in less than 3 years (45). Following widespread dissemination and adoption of these best practices by the nursing home industry, Bureau of Labor Statistics data showed a 35% decline in low back injuries in residential and nursing care employees between 2003 and 2009.

The annual cost of farm-associated injuries among youth has been estimated at $1 billion annually (46). A comprehensive childhood agricultural injury prevention initiative was established to address this problem. Among its interventions was the development by the National Children's Center for Rural Agricultural Health and Safety of guidelines for parents to match chores with their child's development and physical capabilities. Follow-up data have demonstrated a 56% decline in youth farm injury rates from 1998 to 2009 (National Institute for Occupational Safety and Health, unpublished data, 2011).

In the mid-1990s, crab fishing in the Bering Sea was associated with a rate of 770 deaths per 100,000 full-time fishers. Most fatalities occurred when vessels overturned because of heavy loads. In 1999, the U.S. Coast Guard implemented Dockside Stability and Safety Checks to correct stability hazards. Since then, one vessel has been lost and the fatality rate among crab fishermen has declined to 260 deaths per 100,000 full-time fishers.

Reported by: Domestic Public Health Achievements Team, CDC. Corresponding contributor: Ram Koppaka, MD, PhD, Epidemiology and Analysis Program Office, Office of Surveillance, Epidemiology, and Laboratory Services, CDC; rkoppaka@cdc.gov, 347-396-2847.

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.

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Thursday, May 26, 2011

Driving Home From A Conference Held to Be Compensable

The employee's travel which resulted in his fatal injuries while he was driving from home in a vehicle furnished by his employer to an overnight conference outside his normal work area at the employer's request, was held to be compensable for workers' compensation purposes. The travels originated in, and furthered, the business of his employer and, thus, occurred "in course of employment." Even though the accident occurred on the way to pick up a coworker who had the same job as the employee and was also required to attend the same conference, death benefits were payable.

"As previously noted, an employee's travel between home and work furthers the affairs of the employer (the second element of the course and scope definition) because it makes employment possible. Thus, the propriety of summary judgment hinges on the definition's first element—whether the travel originated in the employer's business. There is no bright-line rule for determining whether employee travel originated in the employer's business. Rather, each situation is necessarily dependent on the facts. As a general rule, an employee's travel originates in his employer's business if the travel was pursuant to the express or implied requirements of the employment contract. This reflects the underlying policy goal of allocating to the employer and insurance carrier the risks inherent in an employee's job while leaving to the employee risks that are “shared by society as a whole and do not arise as a result of the work of the employer.” When the employer requires the employee to travel as part of its business—i.e., pursuant to the contract of employment—the risk of traveling stems from that business and properly can be said to arise as a result of the employer's business." [Cites omitted]

Zurich American Ins. Co. v McVey, No. 03–09–00666–CV, 2011 WL 1238657 )Tex. App. - Austin, 2011) Decided March 30, 2011.
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.

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Wednesday, May 25, 2011

Halted: Medicare Secondary Payer Recovery Contractor Demand Letters

The Medicare Recovery Contractor (MSPRC) has now posted a notice on its web site that, "...Issuance of the Rights and Responsibilities (“RAR”) and Demand letters has been temporarily suspended while these letters are under review. The MSPRC is still working cases, and the RAR and Demand letters will be mailed out once appropriate revisions have been made."

This follows a recent US District Court ruling enjoining CMS's collection procedures. Haro v. Sebelius, (A. Ariz.) CV 09-134 TUC DCB


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Employers Face a Triple Legal Threat for Distracted Driving Claims


Employers usually make an "after the fact" reaction to cell phone use that the result in distracted driving accidents. The mounting liability for employers, a triple economic threat, may soon change their attitude to adopt an improved cell phone safety culture.


Employers who have no policy in-place or enforcement protocol, passive or active, seem to be in the majority according to a recently released survey conducted by ZoomSafer Inc. The company offers several products to actively stop cellphone use while driving. Their survey of over 500 business managers reveals that 32% of companies have knowledge or evidence of vehicle cashes that have occurred as a result of distractions stemming from employee use of cell phone while driving.  Of  the 54% of the companies with a defined cell phone policy, more than half, 27.3%, created that policy only after an incident occurred.

Employers are now faced with a triple threat of legal actions including: workers' compensation claims from their employees, liability law suits from the innocent individual who was injured, and now an OSHA fine. It is anticipated that these economic  factors will have a major impact in creating an improved cellphone safety culture.

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.
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NJ Pension System Not Permitted to Deduct Counsel Fee From Workers Compensation Recovery

The NJ State Police Retirement System is not permitted to deduct the workers' compensation counsel fee allocation from the worker's accidental disability retirement allowance.

"We are persuaded that the Board cannot offset petitioner's accidental disability retirement allowance under N.J.S.A. 53:5A-38.1(b) by the amount of the attorney's fee payment credit to petitioner because that payment does not constitute a compensation benefit under our workers' compensation law. The fact that petitioner may have received the attorney's fee payment from his employer in the form of a credit does not change the legal status and convert that payment into a periodic benefit subject to triggering the application of N.J.S.A. 53:5A-38.1(b)."

Baracia v. Board of Trustees of the State Police Retirement System, A-3611-09T2, 2011 WL 1885937 (NJ Super AD 2011)  Decided May 13, 2011.

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.


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Tuesday, May 24, 2011

IARC To Issue Report on Cell Phones

The World Health Organization (WHO) is expected to release a decision by June 1st as to whether the radiation emitted from cellphones causes cancer. Scientists at the WHO’s International Agency for Research on Cancer will take part in an eight-day meeting in Lyons, France starting May 24, 2011. 

The use of cell phones in the course of employment is a major concern as it results in distracted driving accidents. The new report will determine if employer mandated cell phone use can be causally connected to occupational cancer claims.


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.
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Court Permits Deduction of Procurement Costs From Medicare Set-Aside in Liability Claim

Following the guidelines of the CMS Management Memo entitled "Medicare Secondary Payer - Workers Compensation (WC) Information" dated May 7, 2004, and the interpretation of 42 CFR 411.37, a NJ Court granted an attorney the deduction of procurement costs from a Medicare Set-Aside Trust.

"This court's decision to apply 42 C.F.R. § 411.37 to funds obtained in a civil action and placed in a Medicare set aside is also in line with general principles of equity. Where a plaintiff is, or will within a short time become, a Medicare recipient, the plaintiff's attorney also works on behalf of Medicare to secure funds to pay future medical expenses Medicare would otherwise pay. To allow Medicare to avoid paying an equitable share of the procurement fees for a judgment or settlement amount, forcing the plaintiff to cover all the fees, would be unfair to plaintiffs. In some situations, a plaintiff may end up getting nothing after creating the set aside and paying attorneys' fees or may even have to pay money out of pocket to his attorney after a lengthy trial. Such a result would not only be inequitable, it would deter persons on Medicare who are injured by the tortious acts of others from bringing claims."

Hinsinger v. Showboat Atlantic City, L-3460-07, 2011 WL 1885980 (NJ Super Law Division 2011), decided May 19, 2011.
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.
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