Workers' Compensation

Thursday, August 18, 2011

NIOSH to Propose New Criteria for Diacetyl Exposure

The National Institute for Occupational Safety and Health (NIOSH) invites public comment on a draft document, "Criteria for a Recommended Standard: Occupational Exposure to Diacetyl and 2,3-pentanedione.”

For public review and comment, the draft document summarizes current scientific knowledge about the occupational safety and health implications of the food flavorings diacetyl and 2,3-pentanedione, and recommends occupational exposure limits and measures for controlling work related exposures to diacetyl and 2,3-pentanedione, based on the current state of knowledge.

The draft document is available athttp://www.cdc.gov/niosh/docket/review/docket245/default.html for written public comment until Oct. 14, 2011. NIOSH will also hold a public meeting to discuss and obtain comments on Aug. 26, 2011, in Washington D.C.

"Occupational exposure to diacetyl has been associated with severe obstructive lung disease, bronchiolitis obliterans, and decrease in lung function," said NIOSH Director John Howard, M.D. "NIOSH has provided over a decade of research and leadership in this important scientific area. In addition to the recommended exposure limits (RELs), this draft document provides for public comment a comprehensive review of scientific literature, a quantitative risk assessment, and valuable guidance to reduce occupational exposures to diacetyl and 2,3-pentanedione. We invite public comment on the draft Criteria Document to help us develop final recommendations."

The draft document includes, for comment:
For Diacetyl, a recommended exposure limit (REL) of 5 parts per billion (ppb) as an eight-hour, time-weighted average, (TWA) during a 40-hour work week. To further protect against effects of short-term exposures, NIOSH recommends in the draft document a short-term exposure limit (STEL) for diacetyl of 25 ppb for a 15-minute time period.

For 2,3-pentanedione, a recommended exposure limit (REL) of 9.3 parts per billion (ppb) as an eight-hour, time-weighted average, (TWA) during a 40-hour work week. The REL for 2,3-pentanedione in the draft document is based upon the lowest level at which the substance reliably can be detected using the existing analytical method, and should not be misconstrued to imply that 2,3-pentanedione is of lower toxicity than diacetyl. Further, NIOSH recommends a STEL of 31 ppb to limit peak exposures for 2,3-pentanedione on the same basis of analytic method limitation.

State Acts to Restrict Medical Care

The State of NJ has proposed sweeping regulations to limit the payment of medical care under automobile insurance policies, and this action is seen as yet another signal that workers' compensation medical delivery may become even further restricted. In an effort to reduce insurance premiums, the NJ Department of Banking and Insurance, has proposed massive changes in the manner and method that doctors may bill for medical treatment and diagnostic procedures and has restructured the process for appealing a denied claim.

The State claims that medical delivery costs are soaring. It has been reported that for every premium dollar that insurance companies receive, they end up spending $1.23 on medical benefits. The regulations are designed to reduce medical services and produce a profitable insurance product.

Furthermore, the purpose of the regulations are to limit legal costs. The sate reported that in one instance a contested medical resulted in the payment of $375 in medical benefits, but the legal costs awarded for that recovery were $3,380.

The regulations prohibit the use of innovative radiological diagnostic testing. "X-ray digitization or computer aided radiographic mensuration reported under CPT 76499 or any other code are not reimburseable under PIP."

The comment period for the new rules runs thorough early September 2011. The impact of the regulations is to reduce medical care and diagnostic procedures that will impact resulting workers' compensation benefits. Ironically providing the best medical benefits available would seemingly comply with the intent of the compensation act and ultimately economically benefit the employer by producing a healthy workforce, The process of cost cutting will only ultimately degrade the medical delivery component of workers' compensation even further.

Scientific Evidence: What Literature to Rely Upon

The admission of scientific evidence to support causal relationship is critical in workers' compensation cases. Generally, the courts have held that reliable evidence is necessary to support the scientific propositions asserted. Now a recent article challenges the validity of peer reviewed publications, especially in the wake of the flood of papers being published.

"The differences between the scientific and legal processes lead to misunderstandings on both sides, and this editorial reflects our recent frustrations over the way publications have been used. The differences have surfaced in the understanding of peer review but probably lie deeper."

Workers' Compensation hearing officials have become the gatekeepers to evaluate what is reliable evidence for admission. Their dual role of both gatekeeper and fact-finder complicates the even handiness of the judicial process further as the Daubert issues are adjudicated.

The dilatory process invoked to sort this material strains judicial economy, and creates yet another level of delay to what was envisioned as a summary and remedial process. This only further the highlights the need to review the entire workers' compensation system and determine if it can at all function as intended by its crafters a century ago.

Tuesday, August 16, 2011

The Faces of Ground Zero - Ten Years Later

Ten years ago, on September 11, 2001, world renown photographer, Joe McNally, created an exhibition to memorialize the events of that day. Nikon, who sponsored the exhibition is again sponsoring another Joe McNally exhibition to commemorate the 10 year anniversary of that horrific event.

Nikon Inc. is the exclusive photographic equipment sponsor of the “Faces of Ground Zero – 10 Years Later” exhibit at the Time Warner Center in New York. The free exhibit, marking the 10th Anniversary of 9/11, will take place from August 24 to September 12, 2011. The exhibit features more than fifty images and videos by internationally acclaimed photographer, Joe McNally, that bring to life some of the extraordinary individuals personally impacted by the events of 9/11.

Based on McNally’s renowned “Faces of Ground Zero, Portraits of the Heroes of September 11, 2001,” this updated special exhibition will feature original life-size portraits, along with new digital images and exclusive video interviews shot with the latest Nikon cameras, revealing where the subjects are today and how 9/11 indelibly affected their lives.

“Nikon is proud to be a sponsor of the ‘Faces of Ground Zero – 10 Years Later’ exhibition,” said Bo Kajiwara, Director of Marketing, Nikon Inc. “The still images and videos shot by Joe McNally document in compelling detail a very significant event in recent history and are vivid, powerful reminders of the human spirit.”

The exhibition includes portraits and video of everyday people such as firefighters and other uniformed rescuers, families of victims, survivors, caregivers, politicians and students from nearby schools. Some of the individuals honored in this exhibition include Firefighter Louie Cacchioli, Josephine Harris and Ladder 6 and Chef Michael Lomonaco as well as former New York City Mayor Rudolph Giuliani.

“It’s been a truly amazing experience to recreate this exhibition,” said McNally. “It’s an honor to be able to visually tell the ongoing stories of the incredible people I first met 10 years ago that continue to be an inspiration every day.”

Joe McNally is one of the most widely acclaimed photographers in the world and has been a Nikon shooter throughout his career. He is globally recognized as one of the most accomplished masters of light and color and has inspired a world of photographers with Nikon’s Creative Lighting System. McNally’s international photography career includes time as a staff photographer for LIFE Magazine and a contributor to National Geographic for over 23 years. He has also shot cover stories for TIME, Newsweek, Fortune, New York, Entertainment Weekly, The New York Times Sunday Magazine, Sports Illustrated, LIFE and Men’s Journal.

McNally’s 2002 tour, “Faces of Ground Zero,” was seen by an estimated one million people. The collection and sales of related books helped raise more than $2 million for 9/11 relief efforts.

Joe McNally’s “Faces of Ground Zero – 10 Years Later” exhibition will be held at the Time Warner Center in New York City from August 24 to September 12, 2011. The exhibition is open from 10:00 a.m. to 9:00 p.m. Monday – Saturday and from 11:00 a.m. to 7:00 p.m. on Sunday. Admission is free and open to the public.

Wednesday, August 10, 2011

Qui Tam Action for MSP Results in Costs to Plaintiff

A Federal court ruled that a plaintiff acted with an improper purpose and in bad faith by filing seven different putative qui tam actions against various health care providers under the Medicare Secondary payer Act (MSP). The Federal Court imposed sanctions against plaintiff pursuant to court's inherent power.

The Court reasoned that there was no legal support for plaintiff's claim that MSP was a qui tam statute, Court of Appeals had previously determined that plaintiff's claims were “utterly frivolous” and “unreasonable and vexatious,” and plaintiff had already filed dozens of almost identical cases across the country with similar results.

Stalley ex rel. U.S. v. Mountain States Health Alliance, 644 F.3d 349, C.A.6 (Tenn.), 2011, decided July 08, 2011

Related articles

Employee Penalized For Not Following Safety Rules

An employee's workers' compensation award maybe be reduced for failing to follow an employer's safety rules. A Missouri Court ruled that reducing an injured employee's award by 25% to 50% for failing to follow an employer's safety rules was not unconstitutional.

This ruling may have widespread application in many situations including distracted driving claims, where an employee sustains an accident while using a cell phone in violation of an employer's cell phone policy. The employer woud still remain responsible for the reduced award and, of course, subject to a 3rd part law suit by a potential 3rd party.

The reduction rule actually places fault back into the workers' compensation system which both violates the intent of the Act . Such a policy does not compensate for the reduced values (awards) anticipated and prescribed under the workers' compensation act. While the the logic seems to rational, the application further emasculates the intent of workers' compensation. It would be far more logical to put the cart before the horse, and work to prevent the unsafe work condition in the first place. Shifting responsibility to the injured worker is not consistent with the act's intent.

Thompson v. ICI American Holding, 2011 WL 3444008 (Mo.App. W.D.) Decided, August 9, 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.

Medical Providers Barred From Lawsuits Against Employers for Benefits

A NJ Appellate Court, in an unreported decision, ruled that medical providers are barred from filing a civil action against an employer for medical services provided to an injured worker. The medical provider must bring the claim before the Division of Workers' Compensation which has exclusive jurisdiction over benefits.

This decision, while permitting contractual issues to be decided in a civil action, is consistent with a prior NJ Supreme Court ruling barring a collection action outside of workers' compensation directly against an injured worker for medical treatment.

The Valley Hospital v L.Q. Management, 2011 WL 3425591 (N.J.Super.A.D.) Decided August 8, 2011. (Not Approved for Publication)

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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