Workers' Compensation

The Religious Opt-Out Scheme: A New Approach to Eliminate Workers' Compensation

2012-02-27T20:13:00.000-05:00

Alex Berman

Ed Note:
Over a decade ago Bechtel Corporation initiated an opt-out program that took workers' compensation out of the adversarial system entirely. Shortly thereafter, the concept of universal healthcare emerged as a concept to remove all healthcare delivery and benefits from workers' compensation. Recently Republican presidential candidates have pledged to merge the system into an employee paid for program. Now, legislators in the State of Michigan, where unemployment soared to over 14% in 2009, are suggesting yet another approach to opt-out of workers' compensation based on a religious exemption.
Jon L Gelman

Guest post by
Alex Berman of the Michigan Bar

Representatives Earl Poleski (primary), Matt Lori, Joe Haveman, and Margaret O’Brien have introduced new legislation that would exempt religious organizations from the Michigan workers compensation system.

House Bill No. 5371 provides that: “An individual is not an employee subject to this act if he or she is a member of a religious sect or division that is an adherent of established tenets or teachings by reason of which members are conscientiously opposed to accepting the benefits of any public or private insurance that makes payments in the event of death, disability, old age, or retirement or makes payments toward the cost of, or provides services for, medical bills, including the benefits of any insurance system established by the social security act, 42 USC 301 to 1397mm, and has the practice established for 10 or more years, for members of the sect or division to make reasonable provision for their dependent members. An employer shall retain a copy of the employee’s internal revenue service form 4029 that has been approved by the federal social security administration to assert an exemption under this subdivision.”

This legislation would take away protections that have been in place since the original workers compensation act was passed in 1912. It would allow religious organizations to exempt their employees from the workers compensation system if they are members of the same faith. The idea seems to be that religious groups who are conscientiously opposed to public or private insurance should not be forced to participate in the state workers compensation system.

We believe this legislation is awful and will lead to many unintended consequences. It is also unlikely to survive a constitutional challenge in the courts.
Michigan Workers Compensation Law 101

Workers compensation is a type of insurance that employers are required to purchase under Michigan law. It is intended to protect both employees and employers in the event of a work-related injury.

An employee who suffered a work injury before 1912 used to have to show that their employer was at fault to receive compensation. If the injured worker could prove fault, he or she was entitled to any damages that a jury could award. This included pain and suffering. The problem with this approach was that some employees were overcompensated for their injuries while others received nothing. Employers could also be forced to pay substantial damages for relatively minor injuries.

Michigan adopted its first workers compensation law in 1912. The law was a compromise between employee and employer interests. Employees gave up the right to sue in civil court in exchange for what are essentially no-fault benefits.

Workers compensation now pays wage loss, medical treatment, and vocational rehabilitation. Employers receive protection from civil lawsuits including actions for negligence. The amount of benefits that employers must pay are limited.

Michigan’s workers compensation system has worked for over 100 years and has served as a model for other states. It provides injured workers with fair compensation while protecting employers and business interests.

Unintended consequences

Exempting religious organizations from the workers compensation system creates a slippery slope and sets a bad precedent. Soon other groups will seek to be exempted and the entire system will be put in jeopardy.

Employees gave up their common law rights in exchange for limited workers compensation benefits. If an employer is exempted from the workers compensation system, presumably its employees would be free to file a tort action and seek civil damages. This is exactly what the workers compensation system was designed to prevent in the first place.

Just because someone has a religious belief does not mean they should be exempted from Michigan law. You could give religious organizations total immunity but the last time we checked this was not the middle ages.

Changes to the workers compensation law should not be done hastily

Any changes to Michigan’s workers compensation law should not be done without serious thought and consideration. All stakeholders need to be brought together to ensure continuing viability of the system.

Alex Berman is the founding member of the Law Office of Alex Berman, P.C., of Farmington Hills, Michigan. For over 30 years he has handled workers' compensation claims for employees who had injuries or disabilities and has battled successfully against employers including automobile suppliers. He is a member of the State Bar of Michigan and the Michigan Association for Justice.

Enter Jeb Bush: Gingrich on Work Comp Now an Issue

2012-02-27T06:45:00.001-05:00

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Ann Coulter at the 2004 Republican National Convention

The Republican presidential primary is now moving workers' compensation up on the issue ladder. Today, Ann Coulter, a conservative columnist on the Fox New Channel, attacked Newt Gingrich on his proposal to employ child janitors and opposition to a workers' compensation system and also attacked Jeb Bush on his pro-immigration policy.

Coulter, who is supporting Mitt Romney, remarked that the candidates should stop "appealing to people's fear and emotions." She commented that the nomination of Jeb Bush would be an embarrassment to the Republican party and is pro-amnesty for illegal aliens policy was not conservative enough.

On the other hand, she failed to mention that Mitt Romney planned to cut benefits to the disabled. So the choices are pretty poor for injured workers. Whether the Republicans directly or indirectly attack benefits for injured workers, it is quiet apparent that workers' compensation will be a prominent issue for the 2012 presidential campaign.

Workers Compensation: The Next Wave From California

2012-02-23T10:00:00.004-05:00

The California Division of Workers' Compensation has announced a series of public discussions for comments and concerns as it struggles in crafting a potential modification of its system.

Click here to read the California DWC Announcement

Topics of discussion will include:

Provision of appropriate medical treatment without unnecessary delay, the Medical Provider Network (MPN), Utilization Review (UR) or other issues
Enabling injured workers to return to work as quickly as medically feasible
Adequate compensation for permanent disabilities
Reducing the burden of liens on the system
Identification of appropriate fee schedules
Reducing unnecessary litigation costs
Assessing appropriate use of opiates and other care
Any other improvements needed

OSHA Fines: List Industries Inc. Deerfield Beach Florida $56,000

2012-02-18T10:48:00.000-05:00

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US Department of Labor's OSHA cites List Industries Inc.'s Deerfield Beach, Fla., plant with repeat and serious safety violations; fines total $56,000

The U.S. Department of Labor's Occupational Safety and Health Administration has proposed $56,000 in penalties against List Industries Inc. after an inspection of its Deerfield Beach manufacturing plant found amputation hazards that had been previously cited during OSHA inspections in 2007 and 2009.

One repeat violation with a $49,000 penalty has been cited for allowing workers to operate a mechanical power press that lacked machine guards, exposing workers to being pulled into the machinery and suffering possible amputations. A repeat violation exists when an employer previously has been cited for the same or a similar violation of a standard, regulation, rule or order at any other facility in federal enforcement states within the last five years.

One serious violation with a $7,000 penalty also has been issued for exposing workers to amputation hazards by failing to use safety blocks when changing dies or equipment is being repaired. A serious violation occurs when there is substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known.

"OSHA will not tolerate management waiting for a serious injury to occur before correcting violations that expose workers to potential amputation hazards," said Darlene Fossum, the agency's area director in Fort Lauderdale. "Employers must take proactive actions toward workplace safety."

List Industries, a manufacturer of metal shelving and lockers with six locations in the U.S., has 15 business days from receipt of the citations and proposed penalties to comply, request a conference with OSHA's area director or contest the findings before the independent Occupational Safety and Health Review Commission.

Collecting Unpaid Medical Bills in Workers Compensation

2012-02-17T13:57:00.000-05:00

Guest Blog by Jon Rehm of the Nebraska bar

Editorial note:

Medical bills now account for almost 70% of the total of workers' compensation benefits paid, and the collection of those unpaid medical bills has exploded into a cottage business creating enormous procedural and substantive issues. Workers' Compensation courts throughout the country are struggling to establish mechanisms to handle disposition of these issues concerns both justly and effectively.

Recently, the Federal government took action to help resolve the problems of collection and credit agencies and their interaction with injured workers. While the struggle continues to play out, Attorney Jon Rehm of the Nebraska bar has provided an insight as to the concerns and opportunities available to resolve these issues.
Jon L. Gelman

Federal oversight of collection, credit agencies could benefit civil plaintiffs
By Jon Rehm

Consumer Financial Protection Bureau (CFPB) director Richard Cordray announced today that collection agencies could be subject to federal oversight by the newly-created bureau. This is good news for people who have lost their jobs because of a personal injury, a work injury and/or a wrongful termination. Loss of a job goes hand in hand with financial insecurity and mental and emotional distress. Any new federal regulations could give victims of injuries and wrongful terminations a bit more piece of mind if their attorneys are diligent in applying the potential new regulations.

One pro-debtor idea that has been discussed as a regulation would be heightened documentation standards for filing collections suits. This would be a preemption argument. The Roberts Court and the Federal Courts generally favor preemption. Plaintiffs lawyers, especially the class action bar, hates preemption. I think most plaintiff’s lawyers would be wary of federal intervention in state courts. But if the Supreme Court favors preemption it makes sense for attorneys who advocate for debtors to use whatever tools are available.

According to the New York Times article, the oversight will cover the 150 biggest collection firms that comprise about 2/3rds of the market share of the collections industry. But even if an over-aggressive collection agency is not covered by the new regulations, Nebraska lawyers defending collection cases for plaintiff’s in injury and employment cases have other remedies such as the option of removing collection actions from county court into district court in order to seek injunctive relief. Lawyers in other states should also check their jurisdictional statutes to see how they can use equitable remedies in collection defense.

The CFPB also announced a proposal of credit reporting agencies. I heard a speaker at the recent AAJ Winter Convention in Phoenix mention that insurers will run credit checks of plaintiff’s firms during litigation in order to gain more leverage in settlement negotiations. If that is true it would stand to reason that insurers and employers would run credit checks on the plaintiffs themselves. Such a tactic would likely run afoul of the Fair Credit Reporting Act and possibly create another cause of action. One practice pointer to counter such tactics would be to include questions about credit checks in written discovery.

County judge orders work comp collections case removed to District Court
by Jon Rehm

This afternoon a County Court judge sustained my motion to transfer a collections case from a workers comp related medical bill to District Court in order for me to ask for injunctive relief. You can read the reasoning behind my motion and why it helps debtors by reading my post from yesterday. In short, District and County Court’s have concurrent jurisdiction in civil cases under $45,000 in Nebraska. County courts do not have general equitable jurisdiction but District Courts do. In a previous hearing, the County Court determined I didn’t have a statutory or case law basis to dispute the right for a provider to collect on medical bills in a disputed workers compensation case. Since I had no legal remedy, I asked for the right to transfer to District Court to pursue an injunction against collecting the unpaid medical bill. Since equitable relief is not available in County Court, the court has no choice but to remove the case to District Court under Neb. Rev. Stat. 25-2706. I also argued that denying my client the chance to pursue available equitable relief would be a due process violation. In granting the motion, the Judge commented that moving the case to District Court would not prejudice the creditor because they still had the right to a trial in District Court.

The threat of injunctive relief in a work comp related collections case gives injured workers more leverage in their negotiations with bill collectors. Hopefully more advocates for injured workers will use this tool to protect their clients.

Jon Rehm practices in Lincoln, Nebraska (Rehm, Bennett & Moore, PC, LLO). He concentrates his practice on representing injured workers and their families. He hold a degree in journalism from Northwestern University(B.S.) and a law degree from Nebraska College of Law(J.D.). Jon is a member of the Nebraska State Bar Association, the Nebraska Association of Trial Attorneys and the Workplace Injury Law Advocacy Group.Related articles

NIOSH Acts To Prevent Lifting Injuries For Home Healthcare Workers

2012-02-17T08:26:00.000-05:00

The National Institute for Occupational Health and Safety (NIOSH) has published educational information to prevent musculoskeletal injuries at work. Injuries caused by ergonomic factors have been a major issue of the Federal government for decades and have been the basis for repetitive trauma motion claims for workers' compensation benefits. While the Clinton-Democratic administration had advocated strongly for ergonomic regulations, the Bush-Republican administration took action to reject the reporting of ergonomic injuries to OSHA.

A work-related musculoskeletal disorder is an injury of the muscles, tendons, ligaments, nerves, joints, cartilage, bones, or blood vessels in the arms, legs, head, neck, or back that is caused or aggravated by work tasks such as lifting, pushing, and pulling. Symptoms include pain, stiffness, swelling, numbness, and tingling.

Lifting and moving clients create a high risk for back injury and other musculoskeletal disorders for home healthcare workers.

Click here to read: How to Prevent Musculoskeletal Disorders (PDF - 802 KB)

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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.

Distracted Driving: Federal Guidelines Proposed For Automakers

2012-02-16T17:28:00.000-05:00

After years of accidents in the workplace caused by the use of mobile devices in vehicles, the Federal Government today proposed universal universal guidelines to encourage automobile manufacturers to electronically disable these devices when a vehicle is in operation. The enforcement of this safety-first proposal may establish a legal standard universally to bar the use of such devices in vehicles and encourage employees to have a safer working environment.

See: U.S. Department of Transportation Proposes ‘Distraction’ Guidelines for Automakers
"Issued by the Department’s National Highway Traffic Safety Administration (NHTSA), the guidelines would establish specific recommended criteria for electronic devices installed in vehicles at the time they are manufactured that require visual or manual operation by drivers. The announcement of the guidelines comes just days after President Obama’s FY 2013 budget request, which includes $330 million over six years for distracted driving programs that increase awareness of the issue and encourage stakeholders to take action. "

Healthcare Budget Double Talk and the Walker Recall

2012-02-16T10:00:00.000-05:00

Guest Blog by Thomas M. Domer
of the Wisconsin Bar

I ordered my “I Recalled Walker” bumper sticker today. I’m proud to be part of a grassroots campaign to elect a new governor, one who will be more attuned to the needs of Wisconsin workers. And as delighted as I am that over a million concerned Wisconsin citizens have signed a recall petition, I am also reminded daily of the need to fight against the Koch brothers who are backed by corporate cash.

Injured workers call our office every day indicating they have been denied worker’s compensation benefits, asking about how they can obtain necessary medical treatment. Now, Governor Walker, in a misguided attempt to balance the budget, wants to cut an additional 50,000 adults from the State’s health care rolls.

In a remarkable display of political doublespeak, Walker’s administration– which in its fundraising efforts have proudly extolled successful efforts at balancing the budget– quietly indicated to the federal government in December that the State had in fact, a deficit.

Why this duplicity? Because federal law allows Wisconsin to drop medical coverage for adults to save money on health care costs if the State can show it has a deficit.

Dropping over 50,000 adults would obviously but shortsightedly save the State money. Walker’s administration used a “cash accounting” method in its promotional materials indicating that it will have a balanced budget, but when it reported to the federal government the administration used more generally accepted accounting principles showing debts that include promises to pay in the future.

The net result is that over 50,000 Wisconsinites may now be dropped from State health coverage because Walker’s administration duplicitously told the feds that it had a “budget deficit”.

On behalf of Wisconsin’s injured workers: shame on you, Governor Walker.

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 Blog.

Counsel Fees Awarded Against An Employer Who Failed to Pay Timely

2012-02-16T09:30:00.001-05:00

A NJ Appellate Court has ordered that an employer must pay counsel fees to an injured worker's attorney, on an hourly basis, when the employer is penalized. The employer failed to timely pay an award for compensation benefits to the injured worker. The Appellate Court ruled that the workers' attorney was entitled, in additional to the standard contingency fee, and counsel fees awarded for the appeal of the matter, to an award for services rendered to enforce the Order of the court.

The Appellate Court, presented with the issue three times on appeal, exercised its original jurisdiction, and held "....that an award of attorney's fees is mandatory and the judge of compensation is not limited by the statutory formula governing fee awards following an award of benefits. Quereshi v. Cintas Corp. (Quereshi I), 413 N.J. Super. 492, 503 (App. Div. 2010)."

In its decision the Appellate Court opined, "...the judge of compensation misinterpreted our original opinion"....and that "the alternative interpretation of the judge's action -- willful defiance of our mandate --is completely unacceptable behavior."

Qureshi v. Cintas Corporation, A-2703-10T2 (NJ App Div 2012) Decided Feb 15, 2012 (Quereshi III), Unpublished Decision. 2012 WL 469726 (N.J.Super.A.D.

Related articles

NIOSH Alerts Home Healthcare Workers About Latex Allergies

2012-02-15T09:04:00.000-05:00

NIOSH (The National Institute for Occupational Health and Safety) has published a booklet to educate Home Healthcare Workers about preventing latex allergies. Latex products are made from natural rubber, and sensitivity can develop after repeated exposure. Limiting exposure to latex can help prevent allergic reactions for both home healthcare workers and their clients.

Once Natural Rubber Latex (NRL) sensitivity occurs, allergic individuals continue to experience symptoms, which have included life-threatening reactions, not only on exposure to NRL in the workplace but also upon receiving or accompanying a family member receiving healthcare services at inpatient as well as office-based settings.

In September of 1997, the Food and Drug Administration (FDA) issued a final rule requiring cautionary statements in the labeling of all medical devices that contain natural rubber likely to come in contact with humans. The rule provides that such products must contain the following cautionary statement in bold print: "Caution: This product contains natural rubber latex which may cause allergic reactions." Additionally, the FDA issued a final ruling that the labeling of medical devices that contain natural rubber, likely to come in contact with humans, shall not contain the term "hypoallergenic".

Over the last few years, there has been a significant increase in the number of workers' compensation claims filed against employers on behalf of individuals who have suffered latex allergic reactions. Scientists and government officials estimate that about 950,000 U.S. health care workers have developed an allergic sensitivity to latex.
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Related articles

Subscribe to Workers Compensation on Google Currents

2012-02-14T10:05:00.002-05:00

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Monsanto guilty of chemical poisoning in France

2012-02-14T07:45:00.000-05:00

Consistent with an enforcement trend by the EU to reduce agricultural pesticides used by 50% between 2008-2018, a French court on Monday declared U.S. biotech giant Monsanto guilty of chemical poisoning of a French farmer, a judgment that could lend weight to other health claims against pesticides.

See: Thomson Reuters News & Insight
"It is a historic decision in so far as it is the first time that a (pesticide) maker is found guilty of such a poisoning," François Lafforgue, Francois's lawyer, told Reuters.

Pair sentenced to 16 years in Italy asbestos trial

2012-02-13T10:34:00.000-05:00

Pair sentenced to 16 years in Italy asbestos trial - Telegraph:

Prosecutor Raffaele Guariniello is surrounded by media at the Turin courthouse, Italy

Stephan Schmidheiny, the former owner of a company making Eternit fibre cement, and Jean-Louis Marie Ghislain de Cartier de Marchienne, a major shareholder, were sentenced in absentia after being found guilty of causing an environmental disaster and failing to comply with safety regulations.

NIOSH To Review Underreporting of Occupartional Injuries and Illnesses by Workers

2012-02-13T10:00:00.002-05:00

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National Institute for Occupational Safety and Health (NIOSH), Centers for Disease Control and Prevention (CDC) has proposed a project to review the Underreporting of Occupational Injuries and Illnesses by Workers.

"In 2008, the Congressional Committee on Education and Labor released the report, “Hidden Tragedy: Underreporting of Workplace Injuries and Illnesses,” indicating “that work-related injuries and illnesses in the United States are chronically and even grossly underreported.” Based in part on the report's results, Congress allocated funds for NIOSH to conduct a follow-up study using NIOSH's occupational supplement to the National Electronic Injury Surveillance System (NEISS-Work) to estimate underreporting among individuals who seek care at an emergency department (ED) for an occupational illness, injury, or exposure.

"Objectives for this project are to (1) assess the reporting behavior of workers that are injured, ill, or exposed to a harmful substance at work; (2) characterize the chronic aspects of work-related injuries or illnesses; and (3) estimate the prevalence of work-related chronic injuries and illnesses among United States workers treated in EDs. Particular attention will be paid to self-employed workers, workers with work-related illnesses, and workers with chronic health problems.

"Data collection for the telephone interview survey will be done via a questionnaire containing questions about the respondent's injury, illness, or exposure that sent them to the ED; the characteristics of the job they were working when they were injured, became ill, or were exposed; their experiences reporting their injury, illness, or exposure to the ED and their employer (if applicable); the presence of an underlying chronic condition that was associated with their ED visit; and the nature of any other work-related chronic conditions they have experienced. The questionnaire was designed to take 30 minutes to complete and includes a brief series of questions to screen out individuals who were not seen in the ED for a work-related injury, illness, or exposure; who are younger than age 20 or older than age 64; who do not speak English or Spanish; or who were working as volunteers or day laborers when the injury, illness, or exposure occurred or was made worse.

77 FR 6803 2/9/2012

Santorum: Selling Health Care the Apple Way

2012-02-12T11:12:00.002-05:00

Source: NY Times

As the Republican presidential primary keeps rolling along, it is becoming more apparent that under the Republican platform injured workers are going to get stuck under the wheels of the bus for health care.

In Woodland Park, Colorado, at a campaign stop Rick Sanatorium policy The National Journal reported:

"A young boy asked the former U.S. senator from Pennsylvania what he would do to keep prescription drugs affordable. Another woman in the audience chimed in that she couldn't afford her $900-a-month prescription.

"Santorum compared the costs to buying an iPad. "People have no problem going out and buying an iPad for $900,” he said. “But paying $200 for a drug they have a problem with -- that keeps you alive. Why? Because you've been conditioned in thinking health care is something you should get and not have to pay for."

This conservative dogma ironically conflicts with the social, economic and moral philosophy of the majority of Americans. It is one thing to reduce benefits due to austerity measures, it is quite another thing to just eliminate them outright because of a conservative doctrine.

The path toward federalization will not be an easy one. There will be those who argue for elimination based on ideology, religion and cost. Workers' Compensation programs initially were met with such challenges, and those issues were surmounted.

Comparing the purchase of life-saving drugs to the purchase of an iPad, is just wrong. Those living in abject poverty don't buy iPads monthly. They need their prescription drugs to live. The companies that exposed workers to toxins, and then deny them workers' compensation benefits when they become ill, should not then pull the medical safety-net from under them. It is immoral to deny poverty-stricken ill workers medical care.

Selling the "option" of health and safety to American workers goes against the basic tenants of the century old system of workers' compensation. Healthcare, including, infections and diseases, impact all Americans. Much more creatively needs to be expressed rather just proposing cost shifting to those who obviously can't pay the cost.

See The New York Times report: Even Critics of Safety Net Increasingly Depend on It
"Dozens of benefits programs provided an average of $6,583 for each man, woman and child in the county in 2009, a 69 percent increase from 2000 after adjusting for inflation. In Chicago, and across the nation, the government now provides almost $1 in benefits for every $4 in other income."

US Labor Department announces comprehensive final rule on H-2B foreign labor certification program

2012-02-11T05:11:00.001-05:00

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Secretary of Labor Hilda L. Solis

The U.S. Department of Labor's Employment and Training Administration and its Wage and Hour Division today announced a final rule to improve the H-2B temporary nonagricultural worker program. The rule, to be published in the Feb. 21 edition of the Federal Register, includes changes to several aspects of the program to ensure that U.S. workers receive greater access to jobs and strengthens worker protections.

The H-2B program allows the entry of foreign workers into the United States on a temporary basis when qualified U.S. workers are not available, and the employment of those foreign workers will not adversely affect the wages and working conditions of U.S. workers. The H-2B program is limited by law to a cap of 66,000 visas per year.

"The H-2B program is designed to help businesses when there is a temporary shortage of U.S. workers," said Secretary of Labor Hilda L. Solis. "The rule announced today will ensure that the program is used as intended by making these jobs more accessible to U.S. workers and providing stronger protections for every worker."

The department responded to comments received from employers and worker advocates in drafting the final rule, providing employers with greater flexibility and certainty throughout the application and recruitment processes as well as improving U.S. workers' access to jobs. The final rule creates a national registry for all H-2B job postings and increases the amount of time during which U.S. workers must be recruited. The rule also requires the rehiring of former employees when available.

In addition, H-2B program benefits such as transportation costs and wages will be extended to U.S. workers performing substantially the same work as H-2B workers. Worker protections also will be strengthened by enhanced transparency throughout the employment process.

The rule will be effective on April 23. It can be viewed at http://s.dol.gov/MZ. Materials, including fact sheets, are available athttp://www.foreignlaborcert.doleta.gov/h-2b.cfm and http://www.dol.gov/whd/immigration/H2BFinalRule/index.htm.

Stephen Levin MD - Dies of Cancer

2012-02-09T16:18:00.002-05:00

It is with sadness that I report of the passing of Dr. Stephen Levin. Dr. Levin began an occupational disease evaluation practice in the office of Jack Sall, MD of Paterson NJ over 3 decades ago. He advanced to the Environmental Sciences Laboratory at the Mt. Sinai School of Medicine under the leadership of the late Irving J. Selikoff, MD, a pioneer in occupational disease research and more specifically asbestos related illnesses.

After the passing of Dr. Selikoff, Dr. Levin chaired the Environmental Sciences Department and maintained the archives of Dr. Selikoff. Dr. Levin was a leader and advocate for occupational disease research and treatment. His research work in post World Trade Center airborne toxins and disease build the foundation for the passage of the Zadroga 9-11 Health Benefits legislation enacted by Congress 14 months ago.

Joel Shufro, Executive Director of NYCOSH and Bill Henny, NYCOSH Board Chair, made the following statement, "He understood that the health of working people was directly tied to the health of the labor movement - that being organized into union or any other formation - was the first and most important step workers could take to protect their safety and health."

Stephen Levin championed the cause for helping victims of environmental and occupational disease. Ironically, like his predecessor, Dr. Selikoff, he also succumbed to cancer, the disease that they both battled against for others. Dr. Levin's will be sadly missed but his legacy will on.

See also:
Dr. Stephen Levin dead of cancer NY Daily News
"As the medical director of Mount Sinai Medical Center’s Irving J. Selikoff Center for Occupational and Environmental Medicine, Dr. Stephen Levin had long known how damaging airborne toxins were to unprotected lungs."
A memorial service will take place Tuesday, February 21, 2012 at 4 p.m. at the Mount Sinai School of Medicine's Stern Auditorium, 1468 Madison Avenue (@ E. 100th Street, New York, NY 10029.

Workers Compensation: A Cash Cow For Medical Providers

2012-02-09T11:12:00.001-05:00

Guest Blog

by Julius Young of the California Bar

Are medical treatment recommendations sometimes driven by profit motive?

In my whole career I've met very few injured workers who expressed concern that the treatment recommendations of their doctor were influenced by physician income considerations.

Americans tend to trust their doctors. Some of us grew up watching Dr. Kildare, Ben Casey, or the MASH doctors. Others cut their teeth on ER or General Hospital.

Nothing pisses off an injured worker as much as having an outside, non-examining utilization reviewer doctor challenge the recommendations of their doctor.

But the reality is that sometimes medicine and economics are intertwined. Just as insurers want to limit costs, there are some doctors who are happy to push procedures and tests for profit.

In a prior post, "Upcoding", I noted recent investigative reporting by California Watch that documented unusually high rates of billings for "cardiac failure" in some California hospitals:
http://workerscompzone.com/index.php?m=11&y=11

So it was no surprise to see today's article in the Wall Street Journal which documents high rates of spinal surgery procedures in some California hospitals. The article, "In Small California Hospitals, the Marketing of Back Surgery", was written by John Carreyrou, Tom McGinty and Joel Millman.

The article focuses on spinal surgery at Tri-City Regional Medical Center in the city of Hawaiian Gardens which is in southeast Los Angeles County near Long Beach.

According to the Wall Street Journal investigative reporters:

"For an operation known as spinal fusion, which joins two or more vertebrae, the small hospital billed workers' compensation insurers $65 million in 2010, up from less than $3 million three years earlier, state hospital discharge data show.Helping spur the business was Paul Richard Randall, a consultant to whom Tri-City has paid millions of dollars in marketing fees. According to people familiar with his role, it was twofold: bringing surgery cases to the hospital by recruiting surgeons to operate there, and supplying metal implants for the surgeries through distributorships he owned."

The article notes that Randall has been the subject of a federal investigation although charges have apparently not been filed nor have illegal acts been proven.

According to the Journal, many small hospitals are doing lots of workers' comp spinal surgeries, noting that "California employers paid $7.1 billion in insurance premiums to cover their workers' compensation liability in 2010. Spinal-fusion surgery is a growing part of the care these premiums pay for. It accounted for 40% of inpatient hospital charges to the state workers' compensation system in 2010, up from 30% in 2001, a Journal analysis of hospital discharge data shows."

Hospitals that did a large amount of spinal surgeries included university-based hospitals such as UCSF, well known treatment centers such as Cedars Sinai and Scripps La Jolla but also a number of small hospitals around the state.

While it would be unfair to assume that some of the hospitals mentioned in the article are encouraging spinal surgery cases as a "cash cow", the article raises a number of questions worthy of further looks by policymakers.

Spinal hardware costs have already been addressed in a RAND study prepared for CHSWC, "Payment for Hardware Used in Complex Spinal Procedures Under California's Official Medical Fee Schedule", by Barbara O. Wynn and Giacomo Bergamo:
http://www.dir.ca.gov/chswc/Hardware_comp9.pdf

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Julius Young is a partner at Boxer & Gerson LLC and has practiced workers' compensation and social security disability law since 1979 advocating for injured workers and their families.. He is the founder, writer, and editor of an award winning blog on workers’ compensation and wider more far ranging and always engaging political issues, http://www.workerscompzone.com/. The blog has twice been selected as winner or co-winner of the top workers’ comp blog in the US by Lexis/Nexis. He was a Board member of the California State Bar Executive Committee in Workers' Compensation from 2007 to 2010. Julius has acted as a training consultant for the US Hastings Employment Law Center Workers’ Compensation Clinic, has acted as an advisor to Worksafe on workers’ compensation and safety issues, and is currently serving on an Advisory Committee re Rand Institute studies at the request of the California Commission on Health, Safety, and Workers’ Compensation.

NJ Public Employees Make Loose Sick-Leave Payouts

2012-02-09T09:32:00.000-05:00

Public employees in NJ have been the subject of a 14 month legislative impasse that may soon ened along with the payment of unused sick-leave time to retirees. Senate President Stephen Sweeney introduced a bill to end payouts for new employees and end additional payouts for current public employees.

Click here to read: Bill to end sick leave payouts for public employees is proposed by Senate President Stephen Sweeney

"Last year, The Star-Ledger reviewed eight cities that borrowed to make their payments or made layoffs that drew attention: Newark, Atlantic City, Camden, Jersey City, Trenton, South Brunswick, East Orange and Hackensack. They paid more than $39 million to over 700 employees who cashed in unused sick days and vacation time, about $54,000 for each employee."

Zadroga Benefits Should Cover Cancer Claims for 9-11 Victims

2012-02-08T21:20:00.000-05:00

Jon Stewart advocates for the Zadroga 9-11 Bill to cover cancer claims. The legislation enacted over a year ago provides benefits for those who were in the vicinity of the World Trade Center on September 11, 2001.

OSHA cites Clara Construction in Jersey City, NJ, for exposing workers to fall hazards

2012-02-07T18:06:00.000-05:00

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The U.S. Department of Labor's Occupational Safety and Health Administration has cited Clara Construction LLC for one repeat and 10 serious safety violations at a Jersey City work site. These carry total proposed penalties of $46,200. OSHA initiated an inspection as part of a local emphasis program for fall hazards.

"Falls remain one of the leading causes of fatalities on construction sites," said Kris Hoffman, director of OSHA's Parsippany Area Office. "Employers are responsible for providing workers with basic fall protection to prevent potential injuries."

The repeat violation, with a $9,240 penalty, is failing to protect workers from fall hazards. A repeat violation exists when an employer previously has been cited for the same or a similar violation of a standard, regulation, rule or order at any other facility in federal enforcement states within the last five years. The company was cited for the same violation in 2010.

The serious violations, with $36,960 in penalties, include failing to protect workers from fall and impalement hazards, ensure scaffold platforms were laid correctly, provide proper ladder rung construction, make sure guardrails were at sufficient heights and makeshift devices were not created to increase platform height, inspect scaffolds, provide proper scaffold training, provide guardrails near wall holes and provide protection around surface holes. A serious violation occurs when there is substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known.

For detailed information on fall protection standards, visit OSHA's website at http://www.osha.gov/SLTC/fallprotection/index.html.

Clara Construction LLC, which employs 14 workers, has 15 business days from receipt of the citations to comply, ask for an informal conference with OSHA's area director or contest the citations and proposed penalties before the independent Occupational Safety and Health Review Commission.

To ask questions, obtain compliance assistance, file a complaint or report workplace hospitalizations, fatalities or situations posing imminent danger to workers, the public should call OSHA's toll-free hotline at 800-321-OSHA (6742) or the agency's Parsippany office at 973-263-1003.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA's role is to ensure these conditions for America's working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit http://www.osha.gov.

Compensation Blog Launched To Help Iowa Workers

2012-02-06T10:00:00.003-05:00

A new blog has been launched in Iowa to help injured workers and their families to learn more about the workers' compensation system and understand what benefits are available. The Iowa Workers' Compensation Blog, published by the Law Firm of Paul McAndrew offers up to date information and friendly tips to assist those disabled at work.

Paul announced that "...Workers’ Compensation has traditionally been a primary remedy for injured workers throughout Iowa. My firm has proudly participated in assisting injured workers’ and their families in obtaining benefits following industrial accidents and occupational exposures. This blog, as well as our newly launched, and client friendly, social media network is yet another effort to provide modern quality service to our clients and the community that we serve. We hope that you take the opportunity to participate in our new adventure in provide helpful and important information."

Paul J. McAndrew, Jr. is the founder of the Paul McAndrew Law Firm, focused on Iowa workers' compensation law as well as social security disability and employment law. Paul is an Iowanative and double degree graduate of Iowa University. Having practiced law for over 25 years, Paul is annually recognized by Best Lawyers in America. He is presiding President of the Workers Injury Law & Advocacy Group, a national organization of workers' compensation attorneys dedicated to protecting the rights of injured workers. Paul is also a frequently published author and educator on the topic of workers' compensation.

Court Holds That Social Security Decision Does Not Terminate An Order for Temporary Disability Payments

2012-02-06T07:35:00.001-05:00

A NJ Appellate Court upheld that a trial judge's ruling that a decision of the Social Security Administration awarding total disability beenfits did not terminate a workers' compensation order for temporary disability payments. Furthermore, the the court upheld Workers' Compensation Judge George Geist's ruling imposing a penalty against the employer for prematurely terminating benefits.

Judge Geist had reasoned at trial:

"First of all, I want to remind you we are in New Jersey. “An injured employee is entitled to temporary disability benefits from the date of his injury in the course of his employment to the earliest of several dates set by various physicians as the time when such disability ceased.”There is no cessation. There is a continuation of treatment. Every one of the reports shows only continuation of treatment.... The words “[has reached] maximum medical improvement” are nonexistent...."

"Next, the judge rejected BOE's assertion that Ferguson's receipt of SSD benefits entitled BOE to refuse to pay workers' compensation benefits. He reasoned that BOE lacked the authority to disregard a court order, but had done so nonetheless."

Ferguson v. Trenton Board of Education, 2012 WL 330935 (N.J.Super.A.D.), Decided Feb. 3, 2012.

Stand Up To Cancer - World Cancer Day is Saturday, February 4, 2012

2012-02-03T16:41:00.001-05:00

Stand Up to Cancer (SU2C) is a non-profit organization dedicated to curing the world of this devastating disease. SU2C hastens the pace of groundbreaking cancer research by funding and uniting scientists through Dream Teams and Innovative Research Grants. Learn more at www.standup2cancer.org.

Merit-Based Workers Compensation: The Romney-Gingrich Plan

2012-02-01T21:32:00.002-05:00

The Republican presidential primary battle has inadequately defined the debate guidelines for the future of workers' compensation in the US. While both leading Republican candidates are throwing darts at each other on many points, the basic philosophy of both Mitt Romney and Newt Gingrich is to extinguish the so-called "entitlement society." They claim Barack Obama, "the food stamp president," has accelerated the problem.

Of course, missing from the debate is that fact that the US has changed, in tandem, with the rest of the world. The nation's manufacturing sector left the auditorium, and with it went jobs and premiums for supporting a viable workers' compensation system. What it left was a legacy of industrial illness and disease that is fatally affecting the nation's medical delivery system and burdening the taxpayers of our nation.

If the political debate is to become credible, the medical treatment delivery system must be addressed rather than just throwing around meaningless political rhetoric. While the safety net is slowing deteriorating, there remains still an opportunity to re-design and advance a credible workers' compensation system. If the debate continues along the present path, the opportunity will be lost and the nation will loose.

See The Republican Myth Of Obama’s “Entitlement Society” By Robert Reich
"But they have cause and effect backwards. The reason for the rise in food stamps, unemployment insurance, and other safety-net programs is Americans got clobbered in 2008 with the worst economic catastrophe since the Great Depression. They and their families have needed whatever helping hands they could get."

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