Workers' Compensation: June 2011

Thursday, June 30, 2011

Federal Government Launches New Workplace Health Program

The Federal Government has launched a new program to provide for better delivery of medical care in the workplace. As occupational medical conditions become increasingly more difficult to diagnose and treat under workers' compensation systems, this initiative is a bold effort to provide a solution.

The U.S. Department of Health and Human Services announced today the availability of $10 million to establish and evaluate comprehensive workplace health promotion programs across the nation to improve the health of American workers and their families. The initiative, with funds from the Affordable Care Act’s Prevention and Public Health Fund, is aimed at improving workplace environments so that they support healthy lifestyles and reduce risk factors for chronic diseases like heart disease, cancer, stroke, and diabetes.

“Spiraling health care costs and declines in worker productivity due to poor health are eroding the bottom line of American businesses,” said HHS Secretary Kathleen Sebelius. “This new initiative will help companies of all sizes implement strategies to improve employee health and contain health costs driven largely by chronic diseases.”

Funds will be awarded through a competitive contract to an organization with the expertise and capacity to work with groups of employers across the nation to develop and expand workplace health programs in small and large worksites. Participating companies will educate employees about good health practices and establish work environments that promote physical activity and proper nutrition and discourage tobacco use—the key lifestyle behaviors that reduce employees’ risk for chronic disease.

“This is an exciting opportunity to help employers deliver effective workplace health programs on a national scale,” said Dr. Thomas Frieden, director of HHS’ Centers for Disease Control and Prevention, which oversees the initiative. “The promise of this strategy is a win-win: workers will be healthier and more productive, and companies will be more profitable.

Project funds will support evidence-based initiatives to build worksite capacity and improve workplace culture in support of health. Examples of such strategies include establishing tobacco-free campus policies, promoting flextime to allow employees to be more physically active, and offering more healthy food choices in worksite cafeterias and vending machines. A core principle of the initiative is to maximize employee engagement in designing and implementing the programs so they have the greatest chances of success.

The Obama Administration recognizes the importance of a broad approach to addressing the health and well-being of our communities, and June is Prevention & Wellness Month. Other initiatives put forth by the Obama Administration to promote prevention include the President’s Childhood Obesity Task Force and the First Lady’s Let’s Move! initiative aimed at combating childhood obesity, as well as the National Prevention Council, which is charged with designing and implementing a National Prevention and Health Promotion Strategy.

Organizations interested in submitting proposals for the Comprehensive Health Programs to Address Physical Activity, Nutrition, and Tobacco Use in the Workplace can find more information at www.fbo.gov. The application deadline is August 8, 2011. A separate funding opportunity is available for a national evaluation of the initiative and can also be found at www.fbo.gov .

Wednesday, June 29, 2011

Pulmonary Embolism Due to Sedentary Work Held Compensable

Workers' Compensation benefits were awarded for a pulmonary embolism causally related to sedentary work activity. A NJ Appellate Court awarded benefits for the development of a pulmonary embolism precipitated by the inactivity of sitting long hours at a desk job.

This is the second time that the Appellate Division review this matter. Previously it denied benefits for an "occupational exposure" type heart condition. This time the Court declared thst the pulmonary embolism as an ordinary cardiovascular incident triggered by a significant event, that being inactivity.

The reasoned, "The workers' compensation judge followed our instructions on remand and applied Section 7.2 which states that:

"In any claim for compensation for injury or death from a cardiovascular or cerebral vascular causes, the claimant shall prove by a preponderance of the credible evidence that the injury or death was produced by the work effort or strain involving a substantial condition, event or happening in excess of the wear and tear of the claimant's daily living and in reasonable medical probability caused in a material degree the cardiovascular or cerebral vascular injury or death resulting therefrom.
Material degree means an appreciable degree or a degree substantially greater than de minimus.
Thus, the question is whether Cathleen's lack of movement at work was more severe than her lack of movement in her daily living, and whether the inactivity at work caused her pulmonary embolism in a material way."

Renner v AT&T, A-2393-10T3, 2011 WL 2518781 (N.J.Super.A.D.) Decided June 28, 2011

For over 3 decades the Law Offices of Jon L. Gelman 1.973.696.7900 jon@gelmans.com have been representing injured workers and their families who have suffered occupational accidents and illnesses.

New Rules to Govern Federal Employees Compensation Act

The US Labor Department has announced new rules updating procedures for Federal Workers’ Compensation Act claims. These rules mark the first major regulation updates since 1999.

The U.S. Department of Labor's Office of Workers' Compensation Programs today published a final rule that revises and modernizes the procedures used in administering claims under the Federal Employees' Compensation Act. They were published in the June 28 Federal Register. The Rules modernize procedures to increase fairness and efficiency, updates the regulations to account for recent statutory changes and incorporates advances in technology that preserve administrative resources.

"This is the first substantial change to the FECA regulations since 1999," said OWCP acting Director Gary Steinberg. "The new regulations take advantage of technological and other changes that will improve the fairness and efficiency of the claims process."The rule also clarifies a number of current practices. Updates include acknowledging reorganization within the department and incorporating statutory changes, such as the new FECA death gratuity benefit. Changes also have been made to existing policies to improve the benefit program and lessen burdens on claimants. Additionally, the rule adds the skin as a covered organ retroactive to Sept. 11, 2001, under the act's schedule award provision, providing up to 205 weeks of compensation for burns, cancers and other medical conditions that impair the skin's function. The administrative and procedural changes include requiring employing agencies to file claims electronically by the end of 2012 and allowing for the use of video and teleconferences in hearings, as well as changes to the medical approval and procurement procedures.

The final rule can be viewed here.http://www.dol.gov/owcp/dfec/regs/compliance/FECAFinalRule-pub6-28-2011.pdf

The Office of Workers' Compensation Programs administers several disability benefit programs that cover federal workers, nuclear weapons workers, coal miners, longshore and harbor workers, and civilian contractors of the federal government who work overseas. These programs provide a variety of medical benefits, as well as wage replacement, vocational rehabilitation and other services. Benefits also may be paid to eligible dependents or survivors. For more information, visit http://www.dol.gov/owcp/.

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.

Monday, June 27, 2011

Tonight on HBO: Hot Coffee - How The Industry Suppresses Litigation

The acclaimed documentary, "Hot Coffee," premieres tonight on HBO. The film reveals what really happened to Stella Liebeck, the Albuquerque woman who spilled coffee on herself and sued McDonald’s, while exploring how and why the case garnered so much media attention, who funded the effort and to what end.

The film reveals what tactics are used by Industry to suppress litigation. After seeing this film, you will decide who really profited from spilling hot coffee.

Penalties, Paper and The Injured Worker (workers-compensation.blogspot.com)
US Supreme Court Advances the Rights of Injured (workers-compensation.blogspot.com)
Federal Court Enjoins CMS From MSP Recovery Procedures (workers-compensation.blogspot.com)
Safer Chemical Industry WIll Produce More Jobs (workers-compensation.blogspot.com)
Hot Coffee Premieres at Sundance (hotcoffeethemovie.com)
Must See TV: Hot Coffee Premieres on HBO on Monday 6/27 (lawprofessors.typepad.com)

Friday, June 24, 2011

The Ugly Canadians

Today, Canada blocked the United Nations from banning asbestos. Reuters reported, "Chrysotile asbestos will not be listed as a hazardous industrial chemical that can be banned from import after countries including Canada and Ukraine blocked consensus."

An editorial in the Toronto Star called the action by Canada as hypocritical:

"The hypocrisy is staggering. The federal government has spent millions to clear its own buildings of this noxious material — including taking it out of 24 Sussex Drive to protect the Prime Minister and his family. Canadian companies, schools and homeowners have also removed asbestos from their structures. Yet we happily export it.The asbestos industry in Quebec has been dying for years and employs only about 300 people. There’s no future in these operations. The miners should be given help to find new jobs or a decent pension and the mines left to wither away. This toxic trade needs to end."

"Asbestos kills. The World Health Organization calls it “one of the most serious occupational carcinogens” and notes that it’s a factor in 90,000 deaths each year. But we keep selling more than $100 million of it each year to countries such as India and Indonesia, where it is used in the manufacture of cement and auto parts. We even market it with a Canadian flag logo, leaving the impression it is stamped with government approval."

***

"The asbestos industry in Quebec has been dying for years and employs only about 300 people. There’s no future in these operations. The miners should be given help to find new jobs or a decent pension and the mines left to wither away. This toxic trade needs to end."

As the Canadian Globe and Mail posted today, "We are the Ugly Canadians."

Canada Called A Pariah State

Canada's activities at the UN Rotterdam Convention to prevent the listing of chrysotile asbestos as a carcinogen has been internationally denounced. Despite the knowledge of the deadly effects of asbestos fiber, Canada continues to encourage the mining of the asbestos for its pecuniary gain in Quebec.

Thursday, June 23, 2011

OSHA Proposes New Reporting Rules for Amputations and Fatalities

OSHA's new proposed rule require employers to report to OSHA, within eight hours, all work-related fatalities and all work-related in-patient hospitalizations; and within 24 hours, all work-related amputations. The current regulation requires an employer to report to OSHA, within eight hours, all work-related fatalities and in-patient hospitalizations of three or more employees.

Additionally, OSHA is proposing to update Appendix A to Subpart B of its Injury and Illness Recording and Reporting regulation. Appendix A contains a list of industries that are partially exempt from maintaining records of occupational injuries and illnesses, generally due to their relatively low rates of occupational injury and illness. The current list of industries is based on the Standard Industrial Classification (SIC) system. In 1997, the North American Industry Classification System (NAICS) was introduced to classify establishments by industry. The proposed rule would update Appendix A by replacing it with a list of industries based on NAICS and more recent injury and illness data.

The Rule: http://tinyurl.com/649rtz4

Accidents Caused by Fatiguing Employment Require a Remedy

Employees sometimes are directed to work long and stressful hours and then if they become injured they are left without a remedy. A Court recently held that even though an employee who was killed as a result of fatigue related accident while driving home after working 22 hours straight on "Black Friday" for Wal-Mart was without a remedy.

The Court reasoned that the law barred any recovery. The Workers' Compensation Act is not an available remedy the Court held since the injured occurred off the premises of the employer and not under the employers control. Also a civil action was barred by the deceased's estate against Wal-Mart since the Court reasoned that, "...The imposition of a duty upon an employer for injuries sustained by an employee, arguably arising out of the fatiguing conditions of employment, yet occurring outside of the course of employment would alter the necessary balance struck by the New Jersey legislature when defining the scope of compensable injuries."

Despite the changing economic times, the laws should keep pace with the growing momentum of making the workplace safer. Regressive employment practices are not the solution for a healthier workplace. It is more important than ever that the Legislature revisit working conditions and strike a balance to provide a regulatory response to injuries and accident caused by such adverse situations.

See: Aylward v Wal-Mart Stores Inc., CA No. 10-4799, 2011 WL 2357762 (D.N.J.) Decided June 9, 2011

For over 3 decades the Law Offices of Jon L. Gelman 1.973.696.7900 jon@gelmans.com have been representing injured workers and their families who have suffered occupational accidents and illnesses.

Wednesday, June 22, 2011

Congress Told CMS Must Continue to Stop Work Comp Cost Shifting

At a House Oversight hearing today it was revealed that over the last decade the Centers for Medicare and Medicaid Service (CMS) has obtained over $50 Billion in reimbursement under the Medicare Secondary Payer Act (MSP). CMS has worked diligently to stop cost shifting from workers' compensation insurance carriers to the US taxpayer.

Deborah Taylor, Chief Financial Officer and Director, Office of Financial Management Centers for Medicare and Medicaid Services, stated, "Any restrictions on existing MSP rights or recovery processes would adversely affect savings that would otherwise accrue to the Medicare Trust Funds through MSP recovery activities, as well as the $1 billion per year in cost-avoided savings that CMS is able to track. Proposals that would impose mandatory process changes may affect Medicare’s status as a secondary payer or its priority right of recovery, as well as CMS’ ability to prioritize its own workload. These changes may also have the unintended effect of undercutting the underlying intent of the statute, increasing costs, and reducing existing savings. "

Ms. Taylor concluded by stating that, "...CMS is committed to a transparent MSP process that ensures that beneficiaries receive the care they need, while reducing Medicare payments for claims that are the legal responsibility of a group health plan, NGHP, or other responsible party. We understand that the MSP process can present challenges to all involved in coordination of benefits between Medicare and other payers. We are committed to maintaining a strong line of communication with beneficiaries, insurance and workers’ compensation plans, and other stakeholders on MSP policy in general, as well as the new Section 111 reporting requirements. Additionally, we will look to expand and strengthen our training and education opportunities where possible. CMS looks forward to working with our partners and beneficiaries in the future to preserve the integrity of the Medicare program and secure the Medicare Trust Funds for future generations. We look forward to working with Congress as well on these important goals."

Related Resources

Medicare Secondary Payer: Process for Situations Involving Non-Group Health Plans, US GAO Study James C. Cosgrove, Director, Health Care - 6.22.11

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Tuesday, June 21, 2011

World Trade Center (Zadroga) Compensation Fund Rules Announced

Special Master Sheila L. Birnbaum has announced the publication of proposed rules to govern The Zadroga Act Health Claim Fund and the payment of $2.775 Billion of benefits over the next 6 years. The Special Master pledged a process: that is fair, transparent and easy to navigate; procedures that will not dilute the fund; and a full investigation of the response, clean-up and debris removal activities necessitated by the attacks and those injured.

"The James Zadroga 9/11 Health and Compensation Act of 2010 reopens the September 11th Victim Compensation Fund of 2001 to provide compensation to those who were physically injured or who died in the immediate aftermath of the terrorist attacks of September 11, 2001, including those who were injured during the clean-up and debris removal operations at a 9/11 crash site." This extension recognizes the considerable efforts of and effects on those engaged in or in the immediate vicinity of the response, recovery, and clean-up operations. The intent of the extension of the Fund is to provide fair and consistent compensation for those who are eligible and to do so in an efficient and timely manner.

"The regulations reiterate the expanded definition of the "9/11 Crash Site" to include both the crash site and contiguous areas of impact of the aircraft or subsequent fire, explosions, or building collapses. The Special Master will consider scientific evidence regarding the risks of physical harm resulting from the crashes. The routes of debris removal will be considered.

The Special master will "...maintain and publish a list of presumptively covered conditions that resulted from the air crashes or debris removal, and that this list shall consist of the physical injuries and conditions that are found, under the WTC Health Program, to be WTC-related health conditions."

Click Here to View Proposed Rules.

 For over 3 decades the Law Offices of Jon L. Gelman  1.973.696.7900  jon@gelmans.com have been representing injured workers and their families who have suffered occupational accidents and illnesses.

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Sun Exposure, Prevention and Workers Compensation

The first day of summer brings attention to working outside, sun exposure and the risk of skin cancer. Workers Compensation coverage offers a unique opportunity to provide affirmative action to prevent, detect and treat high risk workers before the disease takes a fatal course.

While working outside has the connotation of working in a clean air and healthy environment, the reality is quite the opposite. With a reduction of the world's ozone layer, workers exposed to the sun are at an increase risk of developing skin cancer at an even shorter exposure time.

The US Food and Drug Administration (FDA) just published recommendations for sunscreens. This initial first step will most likely expand the government's roll in getting skin cancer under control. In the meantime, exposed and diagnosed workers must rely upon the workers' compensation programs for treatment and benefits as a result of occupational induced skin cancer resulting from the occupational exposure to the the sun.

Workers' Compensation insurance companies and employers would do well to heed the government's recommendations and take affirmative action to protect employees and provide medical evaluations for medical monitoring and surveillance. That action may include: avoiding exposure to the sun, seek regulation medical monitoring and mandating the use of sunscreens in the workplace. The risk of sun exposure is well known and employers should be encourage to protect workers from such obvious and deadly common place exposures.

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.

Monday, June 20, 2011

CMS Recovery Contractor Publishes New Rights and Responsibilities Letter

The Centers for Medicare and Medicaid Services (CMS) has now posted its newly revised Rights and Responsibilities letter. The letter complies with the Court's Order in Haro v. Sebelius which restrict the application of interest while an appeal is pending. The letter no longer demands that an attorney withhold settlement proceeds from a case.

CMS employs outside contractors to collect conditional payments that Medicare has paid and for which it is only secondarily responsible

"The Medicare Secondary Payer Recovery Contractor (MSPRC) protects the Medicare trust fund by recovering payments Medicare made when another entity had primary payment responsibility. The MSPRC accomplishes these goals under the authority of the Medicare Secondary Payer (MSP) Act. The MSPRC identifies and recovers Medicare payments that should have been paid by another entity as the primary payer either under a Group Health Plan (GHP) or as part of a Non-Group Health Plan (NGHP) claim which includes, but is not limited to Liability Insurance (including Self-Insurance), No-Fault Insurance, and Workers' Compensation. The MSPRC does not pursue supplier, physician, or other provider recovery'."

For over 3 decades the Law Offices of Jon L. Gelman 1.973.696.7900 jon@gelmans.com have been representing injured workers and their families who have suffered occupational accidents and illnesses.

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Thursday, June 16, 2011

US Supreme Court Advances the Rights of Injured

Workers who become ill from defective medications prescribed to treat occupational conditions will now be afforded the opportunity to seek compensation by way of State class action lawsuits against pharmaceutical companies who manufacturer drugs that make them sicker. The Court expanded the rights of the injured today when it held that State class action law suits were not prohibited even though a Federal Court denied class certification in a pending similar case.

Workers' Compensation benefits are notoriously inadequate to compensation ill workers adequately from the harms resulting from the adverse effects of defective medications. Third party actions by the employees against the ultimate wrongdoers, in this case the pharmaceutical manufactures, have become a vehicle to receive supplemental benefits.

The Supreme Court's decision afford the workers an opportunity to proceed with a class action in a State Court even though a similar clase may have not received class action certification in Federal Court.

"Respondent (Bayer) moved in Federal District Court for an injunction ordering a West Virginia state court not to consider a motion for class certification filed by petitioners (Smith), who were plaintiffs in the state-court action. Bayer thought such an injunction warranted because, in a separate case, Bayer had persuaded the same Federal District Court to deny a similar class-certification motion that had been filed against Bayer by a different plaintiff, George McCollins. The District Court had denied McCollins’ certification motion under Fed. Rule Civ. Proc. 23.

"The District Court’s injunction was independently improper because Smith was not a party to the federal suit and was not covered by any exception to the rule against nonparty preclusion. Generally, a party “is ‘[o]ne by or against whom a lawsuit is brought,’ ” United States ex rel. Eisenstein v. City of New York , 556 U. S. ___, ___, or who “become[s] a party by intervention, substitution, or third-party practice,” Karcher v. May , 484 U. S. 72 . The definition of “party” cannot be stretched so far as to cover a person like Smith, whom McCollins was denied leave to represent. The only exception to the rule against nonparty preclusion potentially relevant here is the exception that binds non-named members of “properly conducted class actions” to judgments entered in such proceedings. Taylor v. Sturgell , 553 U. S. 880 . But McCollins’ suit was not a proper class action. Indeed, the very ruling that Bayer argues should have preclusive effect is the District Court’s decision not to certify a class. Absent certification of a class under Federal Rule 23, the precondition for binding Smith was not met. Neither a proposed, nor a rejected, class action may bind nonparties. See id., at 901. Bayer claims that this Court’s approach to class actions would permit class counsel to try repeatedly to certify the same class simply by changing plaintiffs. But principles of stare decisis and comity among courts generally suffice to mitigate the sometimes substantial costs of similar litigation brought by different plaintiffs. The right approach does not lie in binding nonparties to a judgment. And to the extent class actions raise special relitigation problems, the federal Class Action Fairness Act of 2005 provides a remedy that does not involve departing from the usual preclusion rules.

Amith v Bayer, No. 09-1205 (Decided June 16, 2011)

Blowing the Whistle on Unsafe Workplace Conditions Gets a Boost

The New Jersey Supreme Court gave a boost to whistleblowers who challenge employers. The Court in a 4 to 2 decision held that an employee who becomes the victim of employer retaliation for engaging in protected whistle-blowing activities, can file a wage-loss claim without proving constructive discharge.

An employee at DuPont Chambers Works for thirty years reported that phosgene gas, a highly toxic and reactive substance, was being handled in a dangerous fashion. The employee, who reported the unsafe workplace condition to the headquaters of DuPont buut became a target of employer harassment and suffered the residuals of psychological disability

Justice Albin, delivering the opinon of the Court stated: "If an employer engages in unlawful retaliation, then it is accountable for the damages proximately caused to the employee."

Donelson v. DuPont Chambers Works, A-112-09, Decided June 9, 2011 (NJ 2011)

Wednesday, June 15, 2011

Health Reform Coverage for Asbestos Victims Expands

The Federal health reform medical coverage for asbestos victims is expanding in Libby Montana. The announcement was made by Senator Baucus who sponsored the innovated unified Federal healthcare legislation that is a national pilot program for the treatment of occupational illness and diseases..

"Libby Care" is an innovated plan under which the Federal government provides medical care to those who were exposed to asbestos fiber in the geographical area of the Libby asbestos mines. The mines were operated by WR Grace. The program is a pilot plan providing for free coverage to asbestos victims and is administered by Medicare. The pilot program may expand the Federal government's future role in providing medical coverage for all occupational exposure claims and thus avoid the litigious and burdened workers' compensation medical treatment system.

Montana's senior U.S. Senator Max Baucus today announced additional asbestos-related health services to be included under the health care coverage he secured for Lincoln County asbestos victims in the Affordable Care Act.

"The people of Libby and Lincoln County suffered a horrendous injustice in the name of greed, and we have a responsibility to help them heal however we can. We secured a Public Health Emergency Declaration in Libby to make sure these folks had access to all the tools they needed. Providing Libby victims with the consistent, reliable, health care they are entitled to under the law is the least we can do to help right this outrageous wrong," Baucus said.

Dr. Brad Black, Medical Director of the Center for Asbestos Related Disease in Libby said, "CARD, our patients, and the Libby community greatly appreciates Senator Baucus' work to secure legislation to provide long-term asbestos health benefits and screening. Medicare benefits, the Medicare Pilot Program for Asbestos Related Disease and ongoing asbestos screening are critical services for the affected population of today and tomorrow."

CARD is a community based non-profit organization established in 2000 that is committed to providing asbestos screening and healthcare related to the Libby asbestos exposure.

"While some in Congress are trying to end Medicare as we know it for Montanans, we strengthened it and improved access to better health care for folks in places like Libby," said U.S. Senator Jon Tester. "Today the people of Libby have better access to the health care services they need and deserve. It's a powerful investment in Montana's people."

The Centers for Medicare and Medicaid Services (CMS) said today the agency would begin covering the additional benefits July 1, 2011 under a permanent pilot program Baucus included in the Affordable Care Act to ensure Libby victims received the full range of services needed to treat asbestos diseases. Benefits cover services not already included under Medicare coverage Libby asbestos victims now receive under the law, including:

Special home care services;
Special medical equipment;
Help with travel to get care;
Special counseling, for example, help quitting smoking;
Nutritional supplements; and
Prescription drugs not covered by Medicare drug plans (Participants in the Pilot Program must be in a Medicare drug plan to receive this benefit.)

According to CMS, individuals participating in the Pilot Program will also be able to work with a nurse case manager to coordinate their health benefits and receive individualized care planning.

Today's news is the third step in Baucus' provisions to secure health care coverage for Libby under the Affordable care Act. In Spring 2010, as part of Baucus' provisions, victims of asbestos exposure in Lincoln County began getting care under Medicare. In March of 2011, Baucus announced a grant program to help Lincoln County health care providers screen for asbestos-related diseases. Before the new program announced today, Libby asbestos victims relied on temporary and uncertain grants programs to receive the additional care they needed.

Individuals can call 1-888-469-9464 to enroll in the pilot by phone or visit the websitewww.noridianmedicare.com/ard beginning June 14.

Earlier this year Baucus was announced as the 2011 Tribute of Hope Award recipient by the Asbestos Disease Awareness Organization (ADAO) for his tireless efforts fighting on behalf of residents of Libby, Lincoln County and Asbestos victims everywhere. In March, the Senate unanimously passed Baucus' resolution to designate the first week of April 2011 as "Asbestos Awareness Week," and call attention to Libby and other victims of asbestos-related disease.

Additional background on Baucus' longstanding efforts to secure declaration of a Public Health Emergency in Libby:

Baucus has been a long-time champion of asbestos awareness in his efforts to declare the mining tragedy in Lincoln County a public health emergency and make sure folks there have access to the clean-up tools and health care they need.

Since news reports first linked widespread deaths and illness to exposure to deadly asbestos fibers at the defunct W.R Grace and Co. mine, Baucus has visited Libby more than 20 times, secured millions for healthcare and cleanup, brought numerous White House cabinet secretaries to the town, helped save the CARD clinic, and has dogged the EPA to keep cleanup efforts moving forward.

The mine near Libby, Montana, was the source of over 70 percent of all vermiculite sold in the U.S. from 1919 to 1990. There was also a deposit of asbestos at that mine, so the vermiculite from Libby was contaminated with asbestos. Vermiculite from Libby was used in the majority of vermiculite insulation in the U.S. and was often sold under the brand name Zonolite.

As far back as 1999, Baucus wrote a letter to then Secretary of Health and Human Services Donna Shalala requesting immediate medical help and assistance to the area. He further lambasted the EPA's decision to not declare a Public Health Emergency, calling it an "outrage."

In 2008, Baucus released a report detailing a 2002 attempt by the EPA to declare a Public Health Emergency in Libby that was thwarted by the previous Administration's Office of Management and Budget. And on June 17, 2009, due in large part to Baucus' efforts, the EPA declared its first ever public health emergency in Libby, Montana.

After securing the declaration, Baucus fought hard, as a key author of the Affordable Care Act, to make sure the law included a mechanism for residents of Libby and Lincoln County to access the health care they were entitled to as victims of a public health emergency. As a result, Libby residents began receiving coverage under Medicare in Spring 2010.

Tuesday, June 14, 2011

Penalties, Paper and The Injured Worker

A penalty of $140,000.00 against an employer for reporting a work-related accident one day late seems a litte much. As David Depaolo points out in his recent post, the world of workers' compensation is drowning in complexity. The days of "simple" have past. The legislative intent of a remedial and summary system has gone by the boards.

Besides being a collection agency with no operating funds, the workers' compensation litigation arena is now being suffocated in litigation detail. In more ways than one, workers' compensation now has the complexity of sophisticated product liability litigation. We have transformed workers' compensation into "A Federal Case."

In this process, when the efficiency suffers so does the injured worker. The compensation system has matured into this level of complexity not because of the intent or design of the parties. It got there because the system just wasn't build to handle the load.

Like a burdened electric grid, the system will have to shed load. The question is how. Are benefits to be eliminated or does the system need to be redesigned to fullfil the needs of today's complex world? Legislatures are struggling across the country to find a solution. The bottom line is that we shouldn't throw out the baby with the bathwater. The solution must incorporate the needs on the injured worker. One must remember, as a tour through Ellis Island memorializes, that this country was build on the backs of immigrant labor. As the redesign goes forward, as it must, the injured worker must not become a helpless pawn in the system.

Saturday, June 11, 2011

Formaldehyde Is A Cancer Causing Agent Reports US Government

The U.S. Department of Health and Human Services announced today that eight substances have been added to its Report on Carcinogens, a science-based document that identifies chemicals and biological agents that may put people at increased risk for cancer. Formaldehyde has been reportedly used in hair straightening products causing potential danger to hair salon workers and users of the products.

The industrial chemical formaldehyde and a botanical known as aristolochic acids are listed as known human carcinogens. Six other substances — captafol, cobalt-tungsten carbide (in powder or hard metal form), certain inhalable glass wool fibers, o-nitrotoluene, riddelliine, and styrene — are added as substances that are reasonably anticipated to be human carcinogens. With these additions, the 12th Report on Carcinogens now includes 240 listings. It is available at http://ntp.niehs.nih.gov/go/roc12.

"Reducing exposure to cancer-causing agents is something we all want, and the Report on Carcinogens provides important information on substances that pose a cancer risk," said Linda Birnbaum, Ph.D., director of both the National Institute of Environmental Health Sciences (NIEHS) and the National Toxicology Program (NTP). "The NTP is pleased to be able to compile this report."

John Bucher, Ph.D., associate director of the NTP added, "This report underscores the critical connection between our nation's health and what's in our environment."

The Report on Carcinogens is a congressionally mandated document that is prepared for the HHS Secretary by the NTP. The report identifies agents, substances, mixtures, or exposures in two categories: known to be a human carcinogen and reasonably anticipated to be a human carcinogen. A listing in the Report on Carcinogens does not by itself mean that a substance will cause cancer. Many factors, including the amount and duration of exposure, and an individual's susceptibility to a substance, affect whether a person will develop cancer.

Once a substance is nominated by the public or private sector and selected for consideration, it undergoes an extensive evaluation with numerous opportunities for scientific and public input. There were at least six opportunities for public input on each substance. The NTP used established criteria to evaluate the scientific evidence on each candidate substance under review. The NTP drew upon the scientific expertise of several federal agencies, including the National Institutes of Health, Centers for Disease Control and Prevention, Agency for Toxic Substances and Disease Registry, U.S. Food and Drug Administration, U.S. Environmental Protection Agency, U.S. Consumer Product Safety Commission, and Occupational Safety and Health Administration.

"The strength of this report lies in the rigorous scientific review process," said Ruth Lunn, Dr.P.H., director of the NTP Office of the Report on Carcinogens. "We could not have completed this report without the significant input we received from the public, industry, academia, and other government agencies."

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