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(c) 2010-2024 Jon L Gelman, All Rights Reserved.

Wednesday, September 21, 2011

World Trade Center dust and 9/11 first responders with cancer, time for U.S. Government to stop withholding benefits

Guest Blog By Edgar Romano*


Many courageous first responders, who saved lives at Ground Zero, have since been diagnosed with cancer, and yet the U.S. government does not pay for their treatment. This Saturday, September 10, CNN will air Terror In The Dust, an investigation by chief medical correspondent Dr. Sanjay Gupta into the consequences of the deadly dust produced by the World Trade Center’s collapse. Gupta speaks with 9/11 heroes and medical experts about the consequences of the carcinogen-filled dust.

A new study released earlier this week by the New York City Fire Department provides good evidence of a link between 9/11 first responders and cancer. The study showed a 32% greater incidence of cancer among firefighters who worked at Ground Zero than those who did not.

"The NIOSH study concluded that the 9/11 debris did contain known carcinogens."

The U.S. government does not pay for cancer treatments of 9/11 first responders. This is because the administrators of the James Zadroga 9/11 Health and Compensation Act made a determination not to cover cancer, based on a study by the National Institute for Occupational Safety and Health (NIOSH). The NIOSH study, published in July 2011 concluded that while the 9/11 debris did contain known carcinogens, first responders were not exposed to dangerous levels. The New York City Fire Department study provides new evidence that, hopefully, will cause lawmakers to reevaluate their decision.

"It took 25 years to draw that connection between asbestos and mesothelioma, and in that time a lot of people died who might otherwise have been screened, treated, and might otherwise have been saved."

In an interview yesterday with John Stewart, a long-time supporter of the first responders and their cause, Dr. Gupta noted that “It took 25 years to draw the connection between asbestos and mesothelioma” and in that 25-year period, many people died without proper care or screening.

Dr. Gupta expressed hope that the Zadroga bill administrators would immediately acknowledge the newly released scientific evidence and give the go-ahead to compensate first responders who have since been diagnosed with cancer. Dr. Gupta also stated that if the link between the World Trade Center’s dust and cancer were officially acknowledged by the Zadroga bill administrators, early screenings for other responders could be authorized, potentially saving lives.

Representatives Charles Rangel, Carolyn Maloney, Jerrold Nadler, Peter King, and Steve Israel have filed a petition with the Zadroga bill Program Administrator that will require him to consider within 60 days whether or not to add coverage for cancers under the Zadroga Act. NIOSH does not plan to release a follow up study until July 2012.

We all owe a debt of gratitude to these first responders. We encourage everyone out there to watch Terror In The Dust, Dr. Gupta’s documentary on environmental hazards at Ground Zero, on September 10, 9:00 p.m. ET.

EDGAR ROMANO received his undergraduate degree cum laude from Brandeis University and his Juris Doctorate from The John Marshall Law School. He is a Senior Partner in the Workers' Compensation Department and has been with the firm since 1995. Mr. Romano is actively engaged in litigating workers compensation claims including those claims arising out of occupational exposure to asbestos and industrial irritants. He has lectured extensively to labor unions and medical providers. Mr. Romano isPresident of the Workers Injury Law and Advocacy Group and is on the Board of Directors of the New York State Workers' Compensation Bar Association. He is a member of the Leader's Forum of the American Association of Justice and Vice-President of the Workers' Compensation Section. He is a member of theNew York State Bar Association, the New York State Trial Lawyers Association, the Jewish Lawyer's Guild, and NYCOSH. Mr. Romano serves on the Advisory Committee of the World Trade Center Medical Monitoring Program at Mt. Sinai Hospital. He is listed in "Who's Who in American Law"..
Mr. Edgar Romano was selected as one of the "Workers' Compensation Notable People for 2008". These selections are made by the LexisNexis Workers' Compensation Law Center, who state that "These exceptional people have worked tirelessly on behalf of their clients and others and have made significant contributions to the workers' compensation system and/or the workplace". For the complete story go to LexisNexis Workers' Compensation. He blogs regularly at Workers' Law Watch where this posted appeared originally on September 8, 2011.



Work Comp Premiums Linked to Stock Market Swings and Not Claims

While it was the intent of the crafters of workers' compensation legislation to past the costs of workers' compensation claims along to the consumer, a new study reveals that work comp rates are actually associated with the swings of the stock market. A report released by the University of California’s UC Davis Center for Healthcare Policy Research reveals the starling finding based on a recent analysis that while accidents and injuries have decreased for the past two decades rates have only risen.

The study, of what it calls "skyrocketing rates" yielding higher premiums,  reveals  that higher premiums are instead associated with decreases in the Dow Jones Industrial Average and interest rates on U.S. Treasury bonds.

"Insurance companies appear to have been setting premiums according to their returns on the stock and bond markets, not according to the number of claims they have," said J. Paul Leigh, UC Davis professor of public health sciences and senior author of the study. "They invest because they need a financial cushion to pay for claims and, if they lose, raise premiums to recoup their losses."

The analysis of trends was an essential part of the report and was provided so that policy makers would have information available to understand why why regulations should be enacted to protect workers. In 2009 California workers sustained between 3 and 4 million occupational injuries amounting to a cost to employers of $74 billion.

In conducting the study, Leigh and UC Davis postdoctoral scholar Abhinav Bhushan examined U.S. Bureau of Labor Statistics data on incidence rates for injuries and illnesses, along with data from the National Academy of Social Insurance on workers' compensation costs (to employers) and benefits (to workers and medical providers) from 1973 through 2007. Beginning in 1992, the Bureau of Labor Statistics began identifying cases involving more than 30 days away from work, providing the study team with the opportunity to evaluate the impact of more severe work-related injuries and illnesses on premiums. That information was compared with Dow Jones Industrial Average indices and Treasury bond interest rates.

The researchers found that while premiums increased from 1992-2007, claims decreased 1 to 2 percent each year. Claims for serious illnesses and injuries varied, but decreased overall.

The team also discovered that for the entire 35-year timeframe of the study, rising premium rates were closely linked with the Dow Jones Industrial Average or Treasury bonds. As either the Dow or interest rates on Treasury bonds fell, premiums rose, and vice versa.

"The association of premiums with the stock market and Treasury bonds was consistent and strong," said Leigh. "Increasing premiums had nothing to do with the number of injured workers, who often are incorrectly blamed for increasing premiums for employers."

The study also explored the decline in workers' compensation claims over the last two decades. This trend is often linked with the establishment of the Occupational Safety and Health Administration, created by Congress to ensure safe working conditions nationwide. The agency, however, was established in 1970, and the downward trend in claims was not evident until 1993.

Leigh suspects the decline may be related to the transition of some high-injury jobs, such as construction and janitorial services, from large companies to smaller companies, where employees may not belong to unions and could be more fearful of losing their jobs if they complain of work-related injuries or illnesses. According to Leigh, small companies are also less likely to keep complete records, so injuries are recorded and reported less often.

"Insurance commissioners and legislators who regulate premium increases should pay greater attention to trends in claims rather than to insurance companies' returns on investments in allowing premium increases," Leigh said. "More effort should also be directed toward policing contractors and smaller businesses to assure they aren't circumventing workers' compensation laws."

Workers compensation has dramatically changed since its enactment a century ago. The system should not be an economic engine to sustain Industry and the cottage industries that evolved. The policymakers need to focus on maintaining the intent of the original crafters, which was to equally balance the costs upon both  labor and Industry so that the costs of the program could be passed along to the consumer. Workers compensation is best served if the system is an economic engine for  a safer work environment rather than a monument to a failed manufacturing economy.

For over 4 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.

Tuesday, September 20, 2011

US CDC Publishes Safety Nanotechnology Guidance

Citing concern over the occupational risks that potentially exist in nanotechnology, the US CDC has issued a safety guidance manual for the nanotechnology.


"Research has shown that materials on this small scale begin to exhibit physical, chemical, and biological behaviors that are quite unique. These unique properties raise concerns about the health impacts of nanotechnology, particularly among workers employed in nanotechnology-related industries."


References

U.S. National Nanotechnology Initiative. Nano.gov: size of the nanoscale [http://www.nano.gov/nanotech-101/what/nano-sizeExternal Web Site Icon].
U.S. National Nanotechnology Initiative. Nano.gov: Nanotechnology and you, benefits and applications. [http://www.nano.gov/you/nanotechnology-benefitsExternal Web Site Icon]. 
NIOSH [2010]. Nanotechnology Overview[ http://www.cdc.gov/niosh/topics/nanotech/]. 
International Organization for Standardization [2008]. ISO Standard 12885:2008 Nanotechnologies-Health and safety practices in occupational settings relevant to nanotechnologies.
Dahm MM, Yencken MS, Schubauer-Berigan, MK [in press]. Exposure control strategies in the carbonaceous nanomaterial industry. Journal of Occupational and Environmental 53(6S).
Roco M, Mirkin C, Hersam M [2010]. Nanotechnology research directions for societal needs in 2020: retrospective and outlook. Boston and Berlin: Springer. [http://wtec.org/nano2/External Web Site Icon].
NIOSH [2009]. Approaches to safe nanotechnology: managing the health and safety concerns associated with engineered nanomaterials. Cincinnati, OH: U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, National Institute for Occupational Safety and Health, DHHS (NIOSH) Publication Number 2009-125. [http://www.cdc.gov/niosh/docs/2009-125/].

Asbestos Victims in Libby Settle Case for $43 Million

The asbestos victims in Libby, Montana, have  settled their case against the State of Montana for $43 Million. The case alleged that Montana had failed to take proper action to curb the asbestos production at the WR Grace vermiculite plant.


Asbestos is a known carcinogen causally related to asbestosis, lung cancer and mesothelioma. WR Grace manufactured asbestos containing vermiculite as an insulation product. The production process contributed to the toxic contamination of the geographical area and both the workers and the residents developed asbestos related illness on a massive scale. The US Environmental Protection Agency designated Libby, MT, as a Superfund Site for cleanup and remediation.


Additionally, the Obama health care reform legislation, extended universal medical care  (Libby Care) through Medicare to all residents of Libby who were exposed to fiber. This innovated medical insurance program can be extended to other areas designated as a national health emergency areas. Eventually all occupational disease claims in workers' compensation could be encompassed by the program.


The costs for medical benefits extended to the residents of Libby will be reimbursed through the Medical Secondary Acts as directed by The Centers for Medicare and Medicaid Services. This concept is already in place throughout the US. 


For over 4 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.

Monday, September 19, 2011

US Dept of Labor Moves Aggressively on Misclassification of Employees

The misclassification of workers by employers directly impacts the calculation of workers' compensation benefits. The US Department of Labor today has moved aggressively to co-ordinate actives with the US IRS to co-ordinate enforcement and education.

Generally, employees classified as independent contrators are not entitled to workers' compensation benefits Employers sometime commit fraud and designate employees as independent contractors and avoid paying both taxes and benefits such as workers' compensation.

11 state agency leaders also sign, agree to memorandums of understanding

Secretary of Labor Hilda L. Solis today hosted a ceremony at U.S. Department of Labor headquarters in Washington to sign a memorandum of understanding with the Internal Revenue Service that will improve departmental efforts to end the business practice of misclassifying employees in order to avoid providing employment protections. In addition, labor commissioners and other agency leaders representing seven states signed memorandums of understanding with the department's Wage and Hour Division and, in some cases, its Employee Benefits Security Administration, Occupational Safety and Health Administration, Office of Federal Contract Compliance Programs and Office of the Solicitor. The signatory states are Connecticut, Maryland, Massachusetts, Minnesota, Missouri, Utah and Washington. Secretary Solis also announced agreements for the Wage and Hour Division to enter into memorandums of understanding with the state labor agencies of Hawaii, Illinois and Montana, as well as with New York's attorney general.

The memorandums of understanding will enable the U.S. Department of Labor to share information and coordinate law enforcement with the IRS and participating states in order to level the playing field for law-abiding employers and ensure that employees receive the protections to which they are entitled under federal and state law.

"We're here today to sign a series of agreements that together send a coordinated message: We're standing united to end the practice of misclassifying employees," said Secretary Solis. "We are taking important steps toward making sure that the American dream is still available for all employees and responsible employers alike."

"This agreement takes the partnership between the IRS and Department of Labor to a new level," said IRS Commissioner Doug Shulman. "In this new phase of our relationship, we will work together more efficiently to address worker misclassification issues, and better serve the needs of small businesses and employees."

Business models that attempt to change, obscure or eliminate the employment relationship are not inherently illegal, unless they are used to evade compliance with federal labor laws — for example, if an employee is misclassified as an independent contractor and subsequently denied rights and benefits to which he or she is entitled under the law. In addition, misclassification can create economic pressure for law-abiding business owners.

These memorandums of understanding arose as part of the department's Misclassification Initiative, which was launched under the auspices of Vice President Biden's Middle Class Task Force with the goal of preventing, detecting and remedying employee misclassification.


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.

Related articles

Wednesday, September 14, 2011

Truck Crash That Kills 11 Results in Call For A National Cellphone Ban

Citing distraction from the use of a mobile phone by the driver of an 18-wheel semi truck as the probable cause of a crash that killed 11 people, the National Transportation Safety Board recommended banning the use of mobile phones by commercial drivers except in emergencies. Accidents arising from the use of cell phone are resulting major liability & workers' compensation problems for employers.

"Distracted driving is becoming increasingly prevalent, exacerbating the danger we encounter daily on our roadways," said NTSB Chairman Deborah A.P. Hersman. "It can be especially lethal when the distracted driver is at the wheel of a vehicle that weighs 40 tons and travels at highway speeds."

On March 26, 2010, at about 5:14 a.m. CDT, near Munfordville, Kentucky, a truck-tractor semitrailer combination unit driven by a 45-year-old male departed the left lane of southbound Interstate 65, crossed a 60-foot-wide median, struck and overrode a cable barrier system, entered the northbound travel lanes, and struck a 15-passenger van, driven by a 41-year-old male and occupied by 11 passengers (eight adults, two small children, and an infant). The truck driver and 10 of the 12 occupants of the van were killed.

Investigators determined that the driver used his mobile phone for calls and text messages a total of 69 times while driving in the 24-hour period prior to the accident. The driver made four calls in the minutes leading up to the crash, making the last call at 5:14 a.m. CDT, coinciding with the time that the truck departed the highway.

The Safety Board also determined that the median barrier system, which had recently been installed following another cross-median fatal accident on the same section of I-65, contributed to the severity of the accident because it was not designed to redirect or contain a vehicle of the accident truck's size. Because median crossover accidents involving large vehicles are so deadly, the NTSB made recommendations regarding the use of appropriately designed median barriers on roadways with high volumes of commercial vehicles.

At the meeting today, the NTSB issued 15 new safety recommendations to the Federal Highway Administration (FHWA), the Federal Motor Carrier Safety Administration (FMCSA), the National Highway Traffic Safety Administration (NHTSA), the American Association of State Highway and Transportation Officials (AASHTO), the Governors Highway Safety Association (GHSA), all 50 states, and the District of Columbia. The Safety Board also reiterated two previously issued recommendations to the FMCSA.

A synopsis of the NTSB report, including the probable cause, findings, and a complete list of all the safety recommendations, is available on the NTSB's website. The NTSB's full report will be available on the website in several weeks.

RELATED MATERIAL

Board meeting announcement (9/8/11)

Investigative update (5/14/10)

Launch of investigative team to accident site (3/26/10)

The Top 10 Drugs Prescribed For Workers Compensation Claims

A recent study by NCCI Holdings, Inc. reports the top 10 most popular drugs prescribed for workers' compensation claims.
  1. OXYCONTIN® 
  2. LIDODERM® 
  3. HYDROCODONE-ACETAMINOPHEN 
  4. LYRICA® 
  5. CELEBREX® 
  6. GABAPENTIN 
  7. SKELAXIN® 
  8. CYMBALTA® 
  9. MELOXICAM 
  10. CYCLOBENZAPRINE HCL 
Workers compensation medical costs per claim average more than $6,000 and soar to nearly $25,000 for lost-time claims. The report examined workers compensation prescription drug (Rx) use, a medical expense that makes up 19% of all workers compensation (WC) medical costs.

    Other key findings of the report were:
    • The indicated Rx share of total medical is 19%; this is slightly higher than the estimate given in the 2010 update
    • OxyContin® climbs from the number 3 WC drug in Service Year 2008 to number 1 in Service Year 2009 
    • Hydrocodone-Acetaminophen drops from the top WC drug in Service Year 2008 to number 3 in Service Year 2009 
    • Recent overall cost increases are driven more by utilization increases than by price increases 
    • Physician dispensing continues to increase in Service Year 2009 in almost every state 
    • Increased physician dispensing is associated with increased drug costs per claim 
    • Per-claim Rx costs vary significantly by state
    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.