Compensating Sick Workers at Home with H1N1 Flu

While the United States has established a national protocol to meet the medical challenges H1N1 flu pandemic, there remains a void on how to pay workers who are ill and have been encouraged by the government to stay home.  The litigious workers' compensation adversarial system may provide benefits ultimately for those who can demonstrate that their illness "arose out of and occurred in the course of the employment," after months, if not years, of delay. 


Some states have temporary disability programs, fraught with bureaucratic delay and red tape, while the issues of denial in the workers' compensation claims become identified. If held to be compensable, reimbursement is then sought by the temperate disability plan, public or private, 


The issues of a lack of an efficient wage replacement system for those workers affected by the H1N1 flu will be addressed by Congress shortly. The chorus of advocacy is increasing as this debate advances. The following is a recent post from the occupational-environmental mailing list setting forth a pretty persuading argument to establish a plan to pay sick workers with H1N1 flu.

Sick At Work

When the first cases of the H1N1 virus (swine flu) were confirmed in America back in April, the Centers for Disease Control and Prevention advised that sick individuals stay home from work or school. "Influenza is thought to spread mainly person-to-person through coughing or sneezing of infected people," the CDC said."If you get sick, CDC recommends that you stay home from work or school and limit contact with others to keep from infecting them." However, for many Americans, staying home from work due to illness -- or to care for a sick child -- is an impossibility because of a lack of job-protected paid sick days. In response to the threat posed by H1N1, Rep. George Miller (D-CA) has proposed legislation that would "guarantee five paid sick days to employees at businesses with 15 or more workers who are directed to stay home by management." However, Miller's plan sunsets in two years and gives employers, not employees, the right to decide when leave is taken. Plus, under Miller's plan, employees cannot use leave time to care for a sick child. The Healthy Families Act (HFA), which is also before Congress, would guarantee seven paid sick days per year to all workers at firms with 15 or more employees. "Paid sick days has always been a good, common sense idea, but, in light of the recent H1N1 epidemic, it has also become a necessary one," said Rep. Rosa DeLauro (D-CT), an HFA sponsor. "Right when more and more workers are feeling economically vulnerable and afraid to even miss one workday, we face an extraordinarily serious health risk that spreads much more quickly if the sick do not stay at home." Last week, the Obama administration officially agreed, and endorsed the HFA.

LOW-INCOME WORKERS HIT THE HARDEST: The U.S. is currently the only developed nation that does not require some paid sick leave for workers. Nearly 40 percent of private sector workers have no paid sick leave, including 78 percent of hotel workers and 85 percent of food service workers. A survey last year by the National Opinion Research Center at the University of Chicago found that "68 percent of those not eligible for paid sick days said they had gone to work with a contagious illness like the flu." As CAP Senior Fellow Ann O'Leary and Karen Kornbluh, U.S. Representative to the Organisation for Economic Co-operation and Development, pointed out in The Shriver Report: A Women's Nation Changes Everything, "too often, most low- and many moderate-wage workers cannot access even the minimum benefits provided to more highly paid workers." And this is true of paid sick leave, as 88 percent of workers in the top 10 percent of wage earners have it, compared to just 22 percent of workers in the bottom 10. "Hopefully, employers are doing the right thing and not disciplining workers who are out sick as a result of the flu," wrote Center for American Progress Senior Economist Heather Boushey. "But there's no penalty for employers who choose not to pay workers in this situation, or who refuse workers any time off at all."

A BETTER BUSINESS MODEL: Big business organizations have panned the notion of required sick leave, with the Chamber of Commerce saying that "the problem is not nearly as great as some people say," and the National Association of Manufacturers warning that the HFA "would impose an inflexible government mandate on employers, making it more difficult for manufacturers to preserve and create jobs." However, lost productivity due to sick workers attending work and infecting others costs the U.S. economy $180 billion annually. For employers, the cost averages $255 per employee per year and "exceeds the cost of absenteeismand medical and disability benefits." The National Partnership for Women and Families actually found that "while a paid sick days policy would impose modest costs, the estimated business savings total $11.69 per week per worker from lower turnover, improved productivity and reduced spread of illness." The Center for Economic and Policy Research has also concluded that "there is no significant relationship between national unemployment rates and legally-mandated access to paid sick days." "When businesses take care of their workers, they are better able to retain them, and when workers have the security of paid time off, their commitment, productivity and morale increases, and employers reap the benefits of lower turnover and training costs," said National Partnership President Debra Ness.

LOCAL EFFORTS: Two major cities -- San Francisco and Washington, D.C. -- have implemented mandatory paid sick leave policies, while a third -- Milwaukee -- has passed the requirement, only to see it tied up in court. In addition, 15 states have proposed mandatory sick leave laws. "We are all being advised by our doctors to stay home if we're sick, but that is a cruel piece of advice if you don't have paid sick time," Maine Senate President Elizabeth Mitchell said. New York City is also looking at mandatory leave, which Mayor Michael Bloomberg has expressed support for, at least for the city's large employers. New York's proposed requirement would also allow workers to stay home in the event their child's school was closed for public health reasons. "Many working parents suffered this past spring because their children's schools were closed even though their children were not sick," said Donna Dolan, chairwoman of the New York State Paid Family Leave Coalition.

To read more about flu and workers' compensation click here.

NIOSH Reports on the Safety of Nanotechnology

The emerging area of nanotechnology has brought with it concerns over worker safety. NIOSH has now released a progress report concerning this technology. NIOSH's goals are:

1. Determine whether nanoparticles and nanomaterials pose risks of work-related injuries and illnesses.
2. Conduct research to prevent work-related injuries and illnesses by ap- plying nanotechnology products.
3. Promote healthy workplaces through interventions, recommendations, and capacity building.
4. Enhance global workplace safety and health through national and international collaborations on nanotechnology research and guidance.

"To date, NIOSH/OEP has committed about $5.3 million dollars to research on applications and implications of nanotechnology. Summaries of the projects funded by NIOSH/OEP are included in Appendix B. NIOSH/OEP plans to continue collaborative efforts with EPA/NCER, NSF, NIH/NIEHS, and other international agencies to support nanotechnology research with occupational safety and health implications. OEP will continue to confer with the NIOSH Nanotechnology Research Center regarding issues, gaps, and future directions.

To read more about nanotechnology click here.

WC Attorney Liable for $359M+ in Legal Malpractice Claim

A NJ workers' compensation attorney who failed to pursue a medical malpractice claim and allowed it to be dismissed was held liable for legal malpractice. The client was injured when a physician punctured the workers' kidney while administering an epidural injection.


To complicate the claim further, the attorney also failed to report the legal malpractice claim to his insurance carrier on a timely basis. In a separate action the legal malpractice insurance carrier was held not liable for the attorney's malpractice.


The workers' compensation claim was settled for $30,000. The liability claim resulted in a judgment, which was entered following a proof hearing, included an award of damages in the amount of $275,000, plus prejudgment interest of $31,453.20, and counsel fees and costs totaling $52,582.17.


Braime v Popovich DOCKET NO. A-3077-07T23077-07T2 NJ App Div Decided 11.6.09 unpublished.


For more about workers' compensation click here.

Sick Leave Pay Law For H1N1 Advances

US Senator Chris Dodd (D-CT) has announced that he is preparing legislation to pay sick workers 7 days of sick leave for H1N1 flu. While workers' compensation benefits may be paid to disabled H1N1 flu workers, the threat of delay and denial has created an emergency that Senator Dodd indicates requires immediate Congressional attention. 


“This isn’t just a workers’ rights issue – it’s a public health emergency. Families shouldn’t have to choose between staying healthy and making ends meet,” said Dodd. “But if staying home means you don’t get paid, that’s an impossibility, especially for families struggling to make ends meet in this tough economy.”

“Workers should have paid sick leave as a matter of basic fairness,” Dodd continued. “But now sick leave is a matter of keeping Americans safe from this pandemic – and from the next one, whatever it may be.”

To read more about influenza and workers' compensation, click here.

He said, "It’s a matter of fairness for workers. It’s a matter of safety."

The CDC reports that H1N1 flu is now widespread in 48 states and may have infected as many as 5.7 million Americans. Fatalities amount to 672 Americans, which includes 129 children.

APHA Calls for US Asbestos Ban

The American Public Heath Association (APA) has called for a ban by Congress on the manufacture, sale, export, or import of asbestos containing products including products in which asbestos is a contaminant. Asbestos claims 10,000 American lives each year.

“As early as 1898, the British government factory inspectors recognized adverse health effects associated with exposure to asbestos fibers. By the 1930’s the scientific evidence was well established of the association between asbestos exposure and nonmalignant respiratory disease, and with the publication of Dr. Irving Selikoff’s study of insulation workers in 1964, the evidence of carcinogenicity was incontrovertible as well.”

“Despite the concerns of asbestos exporting countries and business interests of the mining industry, the scientific consensus today is that all types of asbestos fibers, including chrysotile, cause asbestosis, lung and other cancers, specifically mesothelioma. The magnitude of the public health problem presented by asbestos and its ubiquitous use during the last 50 years is revealed by death certificate data analyzed by the National Institute for Occupational Safety and Health (NIOSH). NIOSH identified 2,485 deaths in the U.S. in 1999 in which malignant mesothelioma was listed as an underlying or contributing cause of death; and that during 1968--2005, asbestosis was identified as the underlying cause of death for 9,024 decedents, 13% of these were aged 25-64 years. These data undoubtedly underestimate the situation as asbestos-related disease can take 10 to 50 years to present. The estimated portion of lung cancer deaths attributed to asbestos exposure is 2-3 percent.”

During the 1950’s and 1960’s Dr Selikoff would testify in the NJ Division of Workers’ Compensation as a medical expert for injured workers. I had the privilege of knowing him and observing his efforts to assist injured workers and spread his scientific discoveries on the harmful effects of asbestos products.

It is shocking that in 2009 the US permits the use, manufacturing and distribution of asbestos containing products. It is certainly well passed the time to ban asbestos in the US.

To read more about asbestos and workers’ compensation click here.

To read more about asbestos litigation click here.

Federal OSHA to Review State Safety Plans

In recent testimony before Congress, Jordan Barab, acting assistant secretary for the U.S. Department of Labor's Occupational Safety and Health Administration (OSHA), reported that OSHA will be reviewing State safety programs.


"To improve oversight immediately, I sent interim guidance to OSHA regional administrators about the monitoring tools available to them and encouraged more in-depth investigation of potential problems," said Barab. "To ensure that deficiencies similar to those found in Nevada do not exist in any of the other state plans, OSHA will conduct a baseline evaluation, similar to what we conducted in Nevada, for every state that administers its own program. These evaluations will lead to better program performance and consistency throughout all state plans."

"We want to work together with the states and provide assistance before a state's program becomes deficient and causes worker deaths, injuries and illness," said Barab. "We are not trying to change the nature of our relationship between federal and state OSHA, but we need to speak with one voice and assure American workers they will receive adequate protection regardless of the state in which they work."
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The read more about OSHA and workers' compensation click here.

The Jungle Called Workers’ Comp

Almost a century ago Upton Sinclair authored The Jungle. It is the story of the dangerous work of the meatpacking industry. In a very comprehensive report, “The Speed Kills You,” published by Nebraska Appleseed 2009, the stark realities of the failures of the workers’ compensation system are exposed.

Nebraska Appleseed (Appleseed) is a nonprofit, nonpartisan, public interest law project.  Their principles: “core values, common ground, and equal justice,” guide their mission. Appleseed recruited many scholars, professionals, and community leaders, to assist in the production of the report.

The failings described by the report, while targeted to Nebraska’s meatpacking industry, have universal application and the consequences dramatically reveal the domino effect of an imploding system that has been run off the road and been flung into the ditch.

Appleseed reports that in Nebraska, where 20% of the US meat is processed, the workplace remains a jungle.  After conducting an extensive survey, with input from both employers, employees, academicians and practitioners, the non-profit group reported that deadly speed on the meat packaging line has resulted in an increase in the amount of injuries that go unreported because of employees’ fear of harassment by employers.

The meatpackers, many undocumented workers, suffer from repetitive motion injures caused by working in awkward positions all day.  Their language barrier, lack of knowledge of legal remedies, unfamiliarity with workers’ compensation benefit procedures, further complicate their ability to seek redress.

The noble goals envisioned by the national workers’ compensation system were to provide a summary and remedial benefit to injured workers. The cost of benefits was to be passed onto to the consumer. Safety was not addressed. Unfortunately, it is not a punitive system geared to make the workplace safer. Since its inception in 1911, it has lacked the necessary elements to create an economic incentive for employers to increase safety in the workplace.

The issues identified by the Nebraska study are mirrored throughout the country. Employees lack adequate information about the workers’ compensation, they continue to be subjected to poor ergonomic conditions, inspections by OSHA have been few and far between, and discrimination against employees and a challenge to their dignity continues. There are few penalties imposed against employers for delay and denial of claims. The system has become convoluted, dilatory, and litigious in nature. It now forces an employee to battle a system that blames them for getting hurt.

The workers’ compensation jungle described by the Appleseed report must finally be tamed. Employees should no longer be treated merely as beasts of burden. Injured workers should have their dignity restored. The Appleseed recommendations should be addressed and the entire system, including medical benefit delivery, be improved. To make the workplace jungle safer, employers must be held accountable for the unreasonable actions taken only for their pecuniary gain.
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To read more about medical benefits & workers' compensation click here.

Integration of Benefits Anticipated to Save Money

A recent report indicates substantial economic savings if health insurance (a date based system) was merged with workers’ compensation (an event based system) coverage. The report, authored by a study group headed by Frank Neuhauser, and funded by the California Healthcare Foundation, predicts substantial money savings as well as system efficiency would occur upon integration of benefits.

“Integrating occupational medical care into the more efficient group health model would reduce administration to approximately 12% to 13%. We extend these findings to the US and estimate that the 10- year (2011- 2020) savings of integrating coverage would be between $490 billion and $560 billion, sufficient to pay for between 26% and 78% of the incremental cost of universal coverage.”

The study also indicates substantial savings in the costs of medical care would occur through integration of benefits.

“The savings would result from the much greater efficiency with which health insurance delivers care compared to workers’ compensation insurance. A minority of health insurance premiums (12%-14%) go to cover administration and profit. Workers’ compensation turns this ratio on its head, spending the majority (50%-60%) of premiums on these same overhead costs.”

“If near universal coverage becomes a reality, the medical portion of several types of property casualty insurance could be delivered in a much more efficient manner. Absent  near universal coverage, we will likely have to continue relying on the more costly, but  important role of other insurance models.”
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To read more about workers' compensation and medical benefits click here.

California the Epicenter of Workers Compensation Faces Political Gloom

Workers’ Compensation reform was the central political theme that brought Republican Governor Arnold Schwarzenegger into power. After dramatically deforming that system by reducing access and benefits, compounded by other economic woes, California now faces major political upheaval in the upcoming elections.

A poll, reported in Politico, shows that major political change maybe forthcoming.

“Only a third of all voters approved of voters approved of Republican Gov. Arnold Schwarzenegger’s job leading the state, and 45 percent of voters expressed ‘disappointment’ in him, while another 25 percent felt ‘anger’ or ‘anxiety.’
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To read more about workers' compensation and California click here.

High Unemployment Rates & The Future of Workers Compensation

Soaring unemployment rates will continue to have a critical impact upon the nation's workers' compensation system. The US Bureau of Labor Statistics released numbers revealing that The unemployment rate rose from 9.8 to 10.2 percent in October.

"In October, the number of unemployed persons increased by 558,000 to 15.7 million. The unemployment rate rose by 0.4 percentage point to 10.2 percent, the highest rate since April 1983. Since the start of the recession in December 2007, the number of unemployed persons has risen by 8.2 million, and the unemployment rate has grown by 5.3 percentage points."

"Among the marginally attached, there were 808,000 discouraged workers in October, up from 484,000 a year earlier. (The data are not seasonally adjusted.) Discouraged workers are persons not currently looking for work because they believe no jobs are available for them. The other 1.6 million persons marginally attached to the labor force in October had not searched for work in the 4 weeks preceding the survey for reasons such as school attendance or family responsibilities."

While currently disabled workers may continue to collect benefits in most jurisdictions , even if unemployed, lower payrolls will result in lower premium revenues for insurance companies and lower contributions to State workers' copensation funds. The advocacy system will continue to implode with the resulting less revenue to maintain present and generate new infrastructure.

The numbers show a pattern that the "aging workforce", complicated by younger discouraged workers, may have difficulty finding employment in the new market post-recession. While the practice of workers' compensation law may rebound somewhat on the future, it will cetainly take a different path.
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To read more about the the furture of workers' compensation click here.

The Workers' Compensation Beauty Pageant

The chore of ranking state workers' compensation systems is tougher than judging a national beauty pageant.  Peter Rousamiere made an excellent attempt this week in Risk and Insurance. The real answer is in the eyes of the users of the system and not merely on the commercial factors that industry relies upon to judge value.

Workers' compensation is social, remedial legislation. It is supposed to be a summary proceeding that delivers benefits expeditiously and efficiently to injured workers. The promise made in 1911 was a system removed of fault,  contributory negligence and assumption of the risk. Society has reneged on that agreement and now apportions and allocates disability on pre-existing conditions, prior functional credits and individual habits of workers. Ironically, it is Industry itself that markets items that results in obesity, smoking addiction and many other allegedly non-compensable factors.

The quality of a system is not only factored on rate of benefits, cost of insurance and lost time frequency. It is a system that should be evaluated on the human factors of injured workers' access to benefits and the time required to achieve the result. Justice delayed is indeed justice denied.

Yes, California, Alaska, New Jersey, New York and Montana may all share the bottom of the tank on the Risk and Insurance rating scale. However, horror stories are heard from Massachusetts (#1) concerning "opt-out programs," and in Nevada (#2) from OSHA, concerning the failure to abide by safety regulations. These dismal problems seem to be universal and embrace the entire program as it now exists.

Like the Miss America Pageant, it is time to take a good hard look at how the system presently functions and why it is not meeting expectations, both financial and socially.  Congress should commission an undertaking to figure out how to put the workers back into workers' comp.

To read more about a Congressional Commission click here.

BP fined by OSHA a record $87M for Texas City Explosion

Four years follow a massive explosion in Texas City, OSHA fined BP a record $87 million dollars.


The Financial Times reports:


"Jordan Barab, acting assistant secretary of the labour department’s Occupational Safety and Health Administration, said that in spite of Lord Browne being replaced as BP chief executive after the blast, BP continued to violate US safety regulations under the leadership of Tony Hayward.


“There are some serious systemic safety problems within the corporation,” Mr Barab said.


“That there are so many life-threatening safety problems at this plant means there is still a systemic problem.


To read more about OSHA click here.

NIOSH: H1N1 Flu Is A Serious Risk to Healthcare Workers

The National Institute for Occupational Safety and Health (NIOSH) has declared that 2009 H1N1 Influenza poses a serious risk for healthcare personnel. With at least 4 deaths of nurses being reported in the media, NIOSH has stepped up its efforts to gather and analyze the prevalence of illness and fatalities among health workers.

"Healthcare personnel are at increased risk of occupational exposure to the 2009 H1N1 virus based on their likelihood for encountering patients with 2009 H1N1 illness. In contrast to seasonal influenza virus, 2009 H1N1 influenza virus has caused a greater relative burden of disease in younger people, which includes those in the age range of most healthcare personnel. For some healthcare personnel, this higher risk of exposure and illness may be compounded by the presence of underlying illness which places them at higher risk of serious flu complications, such as asthma, diabetes, or neuromuscular disease. Of particular concern to the healthcare workforce, which is largely female, is the fact that pregnant women are among those groups considered to be at higher risk of severe infection from 2009 H1N1."

For more articles on Workers' Compensation and the Flu Pandemic click here. 

Congressional Hearing to Examine OSHA's Review of Nevada Program

The U.S. House Education and Labor Committee will hold a hearing on Thursday, October 29 to examine the federal Occupational Safety and Health Administration’s critical review of Nevada’s workplace health and safety program. OSHA reviewed Nevada’s health and safety program between January 2008 and June 2009 and found a number of deficiencies with the plan. A spate of accidents drew national attention during the city’s building boom that killed 12 construction workers on the Las Vegas strip over an 18-month period between 2006 and 2008. 


Full Committee Hearing
10:00 AM, October 29, 2009
2175 Rayburn H.O.B
Washington, DC
Watch live testimony click here.

Witnesses:

• U.S. Sen. Harry ReidNevada
• Jordan BarabActing Assistant Secretary of LaborFederal Occupational Safety and Health Administration
• Debi Koehler-FergenMother of worker killed at the Orleans Hotel and Casino in Las Vegas
• Don JayneAdministrator
  Nevada Division of Industrial RelationsDepartment of Business and Industry
• Franklin MirerProfessor of environmental and occupational healthHunter College of the CityUniversity of New York

Additional witnesses to be announced

To read more about OSHA and workers' compensation click here.

Latex Allergy Adverse Reaction Caused by Swine Flu Shot

Just as health care workers and first responders have started to line up for H1N1 flu shots, an adverse reaction to latex has been reported. This development adds further to to the compensable risks resulting from adverse reactions to the vaccine.


Latex allergy claims have long been held compensable in workers' compensation courts throughout the country. The original claims arose out of exposure to latex protein in gloves that came into use as a result of the AIDS epidemic.


A case of latex allergy reaction has been reported in Australia during a vaccination program. While the vaccine and the vial are supposedly latex free, the packing material may not be, and that may have trigger the reaction.  One in 100 people are thought to have an allergy to latex. 


Reactions to latex may be mild or transitory or may be a permanent sensitization causing hives, shortness of breath, total disability and possible death.


For more articles on Workers' Compensation and the Flu Pandemic click here. 


To read more about compensable latex allergy claims click here.

Workers Compensation Insurance Company and PBMs Liability for Drug Abuse

The Wall Street Journal reports today about a claim against  pharmacies as a result of customer drug abuse. In the State of Nevada a case is pending that may confer liability upon a drugstore for the consequences of an accident caused by patient drug abuse. A pharmacy dispensed narcotic painkillers to a Patricia Copening, 35 year old doctor's office receptionist, who killed a 21 year old man in a fatal Las Vegas accident. 


A case is pending against the seven pharmacies (Wal-Mart, Longs Drugs, Walgreen Co., CVS Pharmacy, Rite-Aid, Sav-On and Lam’s Pharmacy) that dispensed 4,800 tablets of the drug for Copening in the 13 months prior to the fatal accident. 


The Nevada Prescription Controlled Substance Abuse Task Force had notified the pharmacies that Copening was “taking an unusual amount of these narcotics.” The vehicle causing the accident was commercially owned by a physician who was involved in a relationship with the driver.


The Nevada Supreme Court will be deciding whether the pharmacies, previously dismissed by the trial court, are liable because they dispense enormous amounts of drugs to Copening that resulted in drug abuse and resulting the fatal accident. 


Where the perimeter of liability may end is unknown. Workers' Compensation insurance companies and their integrated pharmacy benefit managers (PBMs) dispense many narcotics, on an ongoing basis, for pain relief, to injured workers.  The courts may ultimately deem them unprotected by the "exclusivity rule," and they, as ultimate wrongdoers, may become targets for these tragic yet foreseeable events.


To read more about drugs and workers' compensation click here.

HIPPA Privacy Modifications Under Presidential Emergency H1N1 Flu Order

Under the emergency declaration for H1N1 flu signed by President Obama on October 24, 2009, the HIPPA Privacy rule is not waived according to Federal HHS interpretation; however, "the Secretary of HHS may waive certain provisions of the Rule under the Project Bioshield Act of 2004 (PL 108-276) and section 1135(b)(7) of the Social Security Act."
 
Those modifications are:
 
"If the President declares an emergency or disaster and the Secretary declares a public health emergency, the Secretary may waive sanctions and penalties against a covered hospital that does not comply with certain provisions of the HIPAA Privacy Rule:

•  the requirements to obtain a patient's agreement to speak with family members or friends involved in the patient’s care (45 CFR 164.510(b)) 
• the requirement to honor a request to opt out of the facility directory (45 CFR 164.510(a)) 
• the requirement to distribute a notice of privacy practices (45 CFR 164.520) 
• the patient's right to request privacy restrictions (45 CFR 164.522(a)) 
• the patient's right to request confidential communications (45 CFR 164.522(b)) 

"If the Secretary issues such a waiver, it only applies:

1. In the emergency area and for the emergency period identified in the public health emergency declaration.

   2. To hospitals that have instituted a disaster protocol.  The waiver would apply to all patients at such hospitals.

   3. For up to 72 hours from the time the hospital implements its disaster protocol.

"When the Presidential or Secretarial declaration terminates, a hospital must then comply with all the requirements of the Privacy Rule for any patient still under its care, even if 72 hours has not elapsed since implementation of its disaster protocol. 

"Regardless of the activation of an emergency waiver, the HIPAA Privacy Rule permits disclosures for treatment purposes and certain disclosures to disaster relief organizations. For instance, the Privacy Rule allows covered entities to share patient information with the American Red Cross so it can notify family members of the patient’s location.  See 45 CFR 164.510(b)(4)."

Similar rule modifications were invoked during the Katrina disaster.

To read more about medical record privacy and workers' compensation, click here.

Denial Rates: An Insurance Company Tactic That Compounds the Health Care Delivery Problem

As Congress considers changes in the nation’s health care program, US health insurance companies continue to be scrutinized. The methodologies of how insurance companies deny claims are being investigated.

A certified nurse assistant, Amelia Mendoza, age 52, of West Covina, California, was attacked twice in the same week by a patient while working at Huntington Hospital in Pasadena earlier this year. Amelia suffered injuries that resulted in her suffering a stroke in April, falling into a vegetative state and contracting pneumonia. The hospital insurance carrier cut off medical care for her, forcing her from the hospital, and leaving her family responsible for medical care for Amelia’s work-related injury that is the hospital’s responsibility.

Her husband, Ralph Mendoza, who met with reporters and supporters outside the hospital, commented, “I am shocked and extremely disappointed that Huntington Hospital would treat Amelia this way. Amelia gave her all to her job for more than six years, and she deserves better….Amelia was injured doing her job, and the hospital has avoided its responsibility for months. I watch my wonderful wife, a mother of four children, slip away in a vegetative state and I wonder whether she would be healthy today if the hospital had met its responsibility. I want the medical care that my wife deserves.”

After an attack by a violent patient, Amelia was examined in the hospital’s Emergency Room and told to return to work. After a second attack just two days later, Amelia went to the Emergency Room and was told to go to Huntington Hospital’s in-house workers’ compensation clinic. The hospital was aware that Amelia’s blood pressure was dangerously high after the attack, and that the patient had infectious diseases. The hospital even called Amelia and her husband to warn of the health dangers Amelia faced. Yet the hospital’s clinic turned Amelia away, saying they were too busy to see her. Amelia suffered a stroke less than three hours later. The attacks had caused bleeding in her brain.

“The workers’ compensation carrier, Sedgwick, has denied liability for Amelia’s medical care, claiming that their investigation did not support a claim of injury and no medical evidence supports the claim either,” said Amelia’s attorney, Chelsea Glauber of the Glauber/Berenson Law Firm. “Medical evidence does in fact exist which states in no uncertain terms that Amelia’s condition was caused by these attacks at work. Amelia is trapped in a horrible hell, between two insurance companies trying to avoid responsibility. So Huntington Hospital let Amelia go home, in a vegetative state, to be taken care of by her husband, who no matter how loving and well intentioned, is not qualified to provide the critical care that Amelia needs and deserves. What does it say about these insurance companies and a hospital that they would treat a hard-working human being in this awful manner?”

A recent report on insurance companies denial rates reveals that, “When it comes to claim denials, insurers may be putting profits ahead of patients’ best interests. Most major insurance companies have reassigned their medical directors—the doctors who approve or deny claims for medical reasons—to report to their business managers, whose main responsibility is to boost profits.”


An inefficient system is not helpful to anyone, including injured workers, insurance companies, and employers. Wasteful administration should be curbed. The U.S. healthcare system wastes between $505 billion and $850 billion every year, recently reported Robert Kelley, vice president of healthcare analytics at Thomson Reuters.

Lawmakers must concentrate the U.S. health debate on how the delivery of medical care can be more efficient and effective. Delays and denials presently occurring in the workers’ compensation system continue to highlight the fact that injured workers need a universal health care system.

To read more about "health care" and "workers' compensation" click here.

"Workers' Compensation" Selected As LexisNexis Top 25 Blogs for 2009

Workers' Compensation blog has been selected as a LexisNexis Top 25 Blogs for Workers’ Compensation and Workplace Issues - 2009, in the Best Individual Bloggers category. 

Selections were made by the LexisNexis Workers’ Compensation Law Center staff using feedback from community members and Larson’s National Workers’ Compensation Advisory Board members.

The Top 25 Blogs contain some of the best writing out there on workers' compensation and workplace issues in general. They contain a wealth of information for the workers' compensation community with timely news items, practical information, expert analysis, practice tips, frequent postings, and helpful links to other sites. These blogsites also show us how workplace issues interact with politics and culture. Moreover, they demonstrate how bloggers can impact the world of workers' compensation and workplace issues.



Workers’ Compensation
http://workers-compensation.blogspot.com/
Published by Jon L. Gelman
"This prolific and widely respected blog analyzes trends and developments in workers’ compensation law nationwide. Workers’ Compensation blog provides both a bird’s-eye view of the national scene and the low down on what’s happening on the ground level in each state."

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A Call for Suggestions: Top Blog of the Year - 2009

The  next step will be to determine which of the 25 honorees will receive Top Blog of the Year 2009. The LexisNexis Workers’ Compensation Law Center looks forward to hearing the comments of our community members. Deadline for comments is November 11, 2009. The LexisNexis Workers’ Compensation Law Center Staff will review all comments and then select the #1 blog of the year.  Register - click here.


To visit the Workers' Compensation Blog click here.

Medicare to Issue Interim Conditional Payment Letters for Medicare Secondary Payer Mandatory Reporting Compliance

Effective October 1, 2009, the MSP Recovery Contractor [MSPRC] will issue information concerning interim conditional payment amounts automatically (that is, without receiving a request for such information) as soon as an interim conditional payment amount is available. If you have an outstanding request for a conditional payment letter (CPL) for a case established prior to October 1, 2009, the request will be processed in the order received. For all new cases, the Medicare beneficiary and any authorized individuals will receive the CPL within 65 days of the issuance of the “Rights and Responsibilities Letter.” 


A form "Cover Letter" will be provided to facilitate communications with MSPRC once a case has been established. "This cover sheet is for your use when mailing or faxing in correspondence to the MSPRC. Please retain a COPY of this cover sheet for any future correspondence. The information above will ensure accuracy when handling your case documentation."


The NEW Rights and Responsibilities Brochure is now available on line.


The NEW "Proof of Representation Letter" and "Consent to Release" are also available on line.


For more information about the Medicare Secondary Payer Act and workers' compensation click here.

US Supreme Court Allows More Time in RICO Case

Review of a  Petition for Certiorari has been delayed by the US Supreme Court. Time has been extended by the Court until November 2, 2009 to file responsive papers to the Petition. 


Pending before the US Supreme Court is a petition for a writ of certiorari to review a decision where: the employer, insurance company and their experts were found to have conducted themselves in violation of the RICO Act.

Cassens Transport Co., et al., Petitioners v,  Paul Brown, et al.,  No. 08-1375.

Click here to see the Workers' Compensation Blog for additional articles on RICO matters.

Compensating Adverse Flu Vaccine Reaction Victims

As the US flu vaccination program rolls out, the numbers are also growing for those who have reported adverse consequences from the H1N1 vaccine. The victims and their families are also lining up for benefits available in the workers’ compensation system as well as the Federal program. The existence of these programs have received little publicity and may be difficult for the public to navigate without adequate representation. 

The US Centers for Disease Control and Prevention (CDC) announced this week that pandemic activity has now increased in the US. Tom Frieden, MD, director of the CDC, said, "We have had up until now many millions of cases of pandemic influenza in the U.S. And the numbers continue to increase." President Obama signed an Executive Order declaring the Swine Fu as a national emergency. Hospitalization and death rates have increased, yet again. Over 60 million have been immunized early for seasonal flu, so that providers would be available to administer  H1N1 vaccine when it becomes available. . 

Even though the supply has been tardy for the H1NI vaccine, the companies that supply the product have promised an additional flow of supply to meet the demand. The European pharmaceutical companies, Novartis’s Focetria, GlaxoSmithKline’s (GSK’s) Pandemrix, and Baxter’s Celvapan are under contract to supply a huge volume of vaccine to the US. Novartis alone has a $979 million contract to supply H1N1 vaccine to the US Department of Health and Human Services (HHS) which amount to 251 million does and the total 35% projected US supply. It is anticipated that the US supply may not arrive until the first quarter of 2010.

A recent Washington Post-ABC News Poll reflects that Americans are more worried than ever about the H1N1 flu. In a matter of weeks, from August 2009 to October 2009 those reportedly worried about getting the H1N1 flu increased from39% to 52%.  The CDC has been reluctant to advertise the need to about the vaccine because the supply has been limited and they were attempting to avoid public panic. Their program will pick up as the supply becomes increasingly available.

Adverse effects from the flu vaccine already are being reported. Deaths have been reported associated with the deaths of at least four nurses with 2009 H1N1The Vaccine Adverse Event Reporting System (VAERS) is a national vaccine safety surveillance program co-sponsored by the Centers for Disease Control and Prevention (CDC) and the Food and Drug Administration (FDA). VAERS is a post-marketing safety surveillance program, collecting information about adverse events (possible side effects) that occur after the administration of vaccines licensed for use in the United States. The data is publically available through the CDC WONDER on-line database.

Workers’ Compensation programs have provided compensation benefits in the past resulting from adverse reactions to vaccines. In many jurisdictions, vaccinations afforded to employees resulting in a benefit to the employer against possible disastrous business consequences, have been considered to be “a mutual benefit.” Therefore, any disease arising from such vaccination has been deemed compensable.

Additionally, a Federal program has been established to shield the vaccine producers from liability claims. On October 1, 1988, the National Childhood Vaccine Injury Act of 1986 (Public Law 99-660) created the National Vaccine Injury Compensation Program (VICP). The VICP was established to ensure an adequate supply of vaccines, stabilize vaccine costs, and establish and maintain an accessible and efficient forum for individuals found to be injured by certain vaccines. The VICP is a no-fault alternative to the traditional tort system for resolving vaccine injury claims that provides compensation to people found to be injured by certain vaccines. The U. S. Court of Federal Claims hears the claims.

As of July 1, 2005, trivalent influenza vaccines have been added to the Table under this Category. Trivalent influenza vaccines are given annually during the flu season either by needle and syringe or in a nasal spray.  All influenza vaccines routinely administered in the U.S. are trivalent vaccines covered under this Category.  

The criteria for filing a claim under the VICP are the following:

• You may file a claim if you received a vaccine covered by the VICP and believe that you have been injured by this vaccine.
• You may also file a claim if you are a parent or legal guardian of a child or disabled adult who received a vaccine covered by the VICP and believe that the person was injured by this vaccine.
• You may file a claim if you are the legal representative of the estate of a deceased person who received a vaccine covered by the VICP and believe that the person’s death resulted from the vaccine injury.
• You may file a claim if you are not a United States citizen.
• Some people who receive vaccines outside of the U.S. may be eligible for compensation. The vaccines must have been covered by the VICP and given in the following circumstances:
• the injured person must have received a vaccine in the U.S. trust territories; or
• if the vaccine was administered outside of the U.S. or its trust territories:
1. the injured person must have been a U.S. citizen serving in the military or a U.S. government employee, or have been a dependent of such a citizen; or
2. the injured person must have received a vaccine manufactured by a vaccine company located in the U.S. and returned to the U.S. within 6 months after the date of vaccination.
• In addition, to be eligible to file a claim, the effects of the person’s injury must have:

1. lasted for more than 6 months after the vaccine was given; or
2. resulted in a hospital stay and surgery; or
3. resulted in death.

The VICP program has paid over $1.8 billion dollars from 1989 through 2009. Over 2,300 families have been paid to date with over 2,200 attorneys representing clients in such matters. "Compensated" are claims that have been paid as a result of a settlement between parties or a decision made by the U.S. Court of Federal Claims (Court). Approximately 18% of the benefits were paid to adults who received vaccines during the existence of the program. Since the program was expanded to adults who received vaccinations, the proportion of benefits to adults under the program has  increased proportionally. Nearly 52% of program awards in 2007 and 2008 went to adult vaccine recipients.

As the H1N1 vaccination program unfolds, those who suffer adverse reactions will be seeking benefits from both, the State workers’ compensation programs, as well as the VICP. Adequate dissemination of information concerning eligibility and procedural access to the programs will be of great benefit to the victims and their families.

For more articles on Workers' Compensation and the Flu Pandemic click here.