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

Friday, September 30, 2011

CMS Announced Status Update and Future Changes

As part of the Centers for Medicare & Medicaid Service (CMS) efforts to continuously improve its Medicare Secondary Payer (MSP) program; CMS has posted the following information to the MSP websites:

1) An ALERT delaying the Medicare, Medicaid, and SCHIP Extension Act of 2007 (MMSEA) Section 111 MSP reporting requirement for certain liability insurance (including self-insurance) settlements, judgments, awards, or other payments is now posted at www.cms.gov/MandatoryInsRep.

2) Policy guidance related to Exposure, Ingestion, and Implantation issues, and December 5, 1980, is now posted at www.cms.gov/MandatoryInsRep and www.cms.gov/COBGeneralInformation.

3) An ALERT related to Qualified Settlement Funds, under Section 468B of the Internal Revenue Code, is now posted at www.cms.gov/MandatoryInsRep.

4) A policy memorandum, for liability insurance (including self-insurance), on the acceptance of the treating physician's certification, and its impact on the issue of protecting Medicare's interests with respect to future medicals is now posted at www.cms.gov/COBGeneralInformation.

In addition, on September 30, 2011, the MSPRC will implement a self-service information feature to its customer service line. This feature gives callers the ability to get the most up-to-date Demand/Conditional Payment amounts, and the dates that those letters were issued, without having to speak to a customer service representative. The self-service feature will be available for extended hours, and callers will have the option of requesting information on multiple cases during one phone call.

Beginning in October 2011, CMS will implement an option to pay a fixed percentage of certain physical trauma-based liability cases with settlement amounts of $5000 or less. Detailed information on this option will be posted as an ALERT, on or before October 21, 2011, on the MSPRC website at www.MSPRC.info.

Upcoming improvements to the MSP program, expected within the next 3-9 months, include the following:

• The implementation of a MSPRC portal, where the beneficiary/representative can obtain information about Medicare's claim payments, demand letters, etc., and input information related to a settlement, disputed claims, etc.

• The implementation of an option that allows for an immediate payment to Medicare for future medical costs that are claimed/released/effectively released in a settlement.

• The implementation of a process that provides Medicare's conditional payment amount, prior to settlement in certain situations.

How To Determine If A Substance Causes Cancer at Work

The National Institute for Occupational Safety and Health (NIOSH) is seeking public input to determine what substances cause cancer and at what level of occupational exposure.

"The National Institute for Occupational Safety and Health (NIOSH) of the Centers for Disease Control and Prevention (CDC) intends to review its approach to classifying carcinogens and establishing recommended exposure limits (RELs) for occupational exposures to hazards associated with cancer. As part of this effort, NIOSH is requesting initial input on these issues (including answers to the 5 questions in the following section), to be submitted to the NIOSH Docket number 240, for a comment period lasting through September 22, 2011. This information will be taken under consideration and used to inform NIOSH efforts to assess and document its carcinogen policy and REL policy regarding occupational hazards associated with cancer. NIOSH has also created a new NIOSH Cancer and REL Policy Web Topic Page [see http://www.cdc.gov/niosh/topics/cancer/policy.html] to provide additional details about this effort and progress updates."


"NIOSH is announcing a Request for Information on key issues identified and associated with the NIOSH Carcinogen and REL policies. Special emphasis will be placed on consideration of technical and scientific issues with the current NIOSH Cancer and REL Policies that require further examination including the following:Show citation box

(1) Should there explicitly be a carcinogen policy as opposed to a broader policy on toxicant identification and classification (e.g.carcinogens, reproductive hazards, neurotoxic agents)?Show citation box

(2) What evidence should form the basis for determining that substances are carcinogens? How should these criteria correspond to nomenclature and categorizations (e.g., known, reasonably anticipated,etc.)?Show citation box

(3) Should 1 in 1,000 working lifetime risk (for persons occupationally exposed) be the target level for a recommended exposure limit (REL) for carcinogens or should lower targets be considered?Show citation box

(4) In establishing NIOSH RELs, how should the phrase “to the extent feasible” (defined in the 1995 NIOSH Recommended Exposure Limit Policy) be interpreted and applied?Show citation box

(5) In the absence of data, what uncertainties or assumptions areappropriate for use in the development of RELs? What is the utility of a standard ”action level” (i.e., an exposure limit set below the REL typically used to trigger risk management actions) and how should it be set? How should NIOSH address worker exposure to complex mixtures?

Public Comment Period: Comments must be received by September 22, 2011.

The concept of a compensable industrial disease has developed only recently and its acceptance has lagged far behind that of industrial accidents. The original Workers' Compensation Acts, as promulgated from the year 1911 forward by many of the states, did not provide for the recognition of occupational illness and disease as compensable events. As demands have been placed upon the medical system to treat and to prevent occupational illness, the legal system, under social, economic, and political pressure, has sought to provide a remedy for the thousands of injured workers who have suffered and who are continuing to suffer from occupational illness and disease. 

Sunday, September 25, 2011

SeaWorld killer whale attacks expose incomplete incident reporting

Guest Blog By Edgar Romano*

This week a trial began in Florida between SeaWorld theme parks and the Occupational Safety and Health Administration(OSHA). The trial is over several citations and a fine stemming from incidents in which killer whales (also known as orcas) killed or injured trainers at SeaWorld water parks. Most recently, on February 24, 2010, a giant killer whale named Tilikum gruesomely killed trainer Dawn Brancheau by grabbing her ponytail and pulling her under the water in front of a horrified audience.

In August of 2011, SeaWorld was fined $75,000 by OSHA for three safety violations, including one in connection with Brancheau’s death. The agency’s investigation “revealed that SeaWorld trainers had an extensive history of unexpected and potentially dangerous incidents involving killer whales at its various facilities,” the OSHA statement said.

Prior to Brancheau’s death, California OSHA had issued a citation against SeaWorld, coming to the conclusion that if procedures at the parks didn’t change, eventually somebody was going to die. SeaWorld used political lobbying to have the citation withdrawn. Just a few years later Dawn Brancheau was killed.

In yesterday’s hearing, OSHA asserted that, although SeaWorld does walk each trainer through all recorded dangerous incidents between whales and humans (98 incidents since 1988), there are many dangerous incidents that just don’t make it into the incident reports.

This brings up an important point that all employers would be smart to take note of: without comprehensive reporting, working conditions will remain unsafe.

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".  He blogs regularly atWorkers' Law Watch where this posted appeared originally on September 23, 2011.

Friday, September 23, 2011

Bad Cases Make Bad Law

Guest Blog by Thomas M. Domer  

The Illinois legislature just passed a law in response to a notorious claim in which a Sheriff Deputy, driving more than 100 miles per hour while using his cell phone, crossed a median and slammed into a car, killing two teenage sisters.

The claim drew regional and national attention and ultimately resulted in a revision in Illinois’ workers' compensation claims that would prevent any State employee hurt at work from being eligible for workers' compensation if the injury happened during a forcible felony, an aggravated DUI, or reckless homicide, if any of those crimes killed or injured another person.

The law is much more restrictive than the initial media summaries blaring “State law bars State employees injured while committing crimes from receiving worker’s comp.”

This is another example of bad cases creating bad law. The Sheriff filed a workers' compensation claim for his injuries but an arbitrator concluded that his high speed and cell phone use was a “substantial and unjustifiable risk resulting in gross deviation” barring his claim. The Illinois legislature reacted to the media and public outcry.

In other states, notably Wisconsin, an advisory council meets annually to deal with such perceived excesses, and to change the law accordingly.

A few years ago I represented a worker who, despite his employer’s offer to re-employ him with his disability, chose instead to obtain vocational rehabilitation, which was ordered by a judge and the Commission. His claim seemed to run afoul of the express purpose of worker’s compensation in Wisconsin and other states, which is to restore the injured worker to a job.

After the case was reported, the employer and insurance carrier representatives on Wisconsin’s Advisory Council recommended (appropriately) this perceived loophole be closed, and the new law barred the employer’s liability for vocational rehabilitation benefits if the employer offered a job to the injured worker which was refused.

Since the early days of workers' compensation in Wisconsin the courts have liberally construed “in the course of employment.” Absent evidence of abandonment of employment, it is presumed employment continues, except if a deviation can be proved.

Poor judgment or negligence is not synonymous with deviation and an employee must willfully abandon job duties to be excluded. If an employee is injured while engaging in an activity and disobedience of an order of the employer solely for the employee’s own benefit, workers' compensation benefits will be denied. However, if the disobedient actions were in furtherance of the employer’s interest rather than the employee’s, compensation is granted.

As one workers' compensation veteran judge has noted, “even bad employees get compensation.” The no-fault nature of workers' compensation sometimes produces hard-to-swallow results.

Thomas M. Domer practices in Milwaukee, Wisconsin (www.domerlaw.com). He has authored and edited several publications including the legal treatise Wisconsin Workers' Compensation Law (West) and he is the Editor of the national publication, Workers' First Watch. Tom is past chair of the Workers' Compensation Section of the American Association for Justice. He is a charter Fellow in the College of Workers' Compensation Lawyers. He co-authors the nationally recognized Wisconsin Workers' Compensation Experts.

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/].