Senin, 31 Januari 2011

The FCE in Workers Comp


An FCE is a functional capacity evaluation. Often in a workers compensation case a doctor wants an FCE. It may be through his office or set up at another location. A true FCE may take several hours of testing a person's physical functioning or at least whatever functioning is sought by the doctor. You can consider it almost a tool used by the doctor to define your work related restrictions. Years ago the doctor would simply rely on his own best judgement to set your restrictions but the desire for a more accurate evaluation led to what we now call an FCE. Often it is done through a physical therapist and results in several pages of data which the doctor may or may not accept. Usually the doctor will accept the FCE results but the doctor has the option to form his own opinion. He can therefore totally adopt the FCE or adopt portions of it or only what he believes is appropriate. A claimant may be asked to lift various weights and perform other activities. Sometimes your blood pressure is taken since many in pain from activities can have a spike in their blood pressure. Similarly if you complain about high pain from an FCE activity but without any blood pressure elevation they can question your situation or so goes the theory. My impression is that an FCE can be useful information for the doctor but it does depend on the therapist and the doctor. In other words it is not purely objective. Also I have noticed that those with severe disabilities can have problems with an FCE. My guess is that they are more guarded or do not handle the structure of an FCE. Stamina may be a factor and of any results considered invalid my experience is that those most disabled have the hardest time with the testing. Last in my locale many FCE's include a claimant's range of motion measurements. While separate from an FCE the doctor may want the therapist to do the measurements that help the doctor with his impairment rating.

Jumat, 28 Januari 2011

The RICO Consequences of Managing Health Care in Workers Compensation

It is one thing to provide workers' compensation coverage to injured employers and it is another issue how involved an employer can be in managing  medical care. That right was never addressed by the crafters of the workers' compensation system almost a century ago.

That dilemma is now being addressed by a Federal Judge in Colorado where a class action lawsuit pending against Wal-Mart for micro-managing and restricting medical care to injured workers.  Brooks Magratten, Esq, has addressed these issues in a recently authored article. "Class Action Attacks Wal-Mart Health Care Model." 25 No. 13 WJEMP 1 (Jan. 25, 2011). The landmark action has the potential to expand workers compensation medical care into the umbrella of a national universal medical care system.

The plaintiffs in the pending action, all former and present Wal-Mart employees, are seeking treble damages against the mega-corporation, with an aggregate market value of $108.8 Billion, for interfering with medical care. Judge Robert Blackburn has denied Wal-Mart's motion to dismiss, now setting the stage for a definitive test of the workers' compensation medical system nationally.

Sabtu, 22 Januari 2011

Benefits Available Under the Zadroga 9/11 Victim Compensation Fund


On January 2, 2010, President Barack Obama signed the James Zadroga 9/11 Health and Compensation Act establishing the World Trade Health Program and extends and expands eligibility for compensation under the September 11th Victim Compensation Fund of 2001.

The President remarked, "I was honored to sign the James Zadroga 9/11 Health and Compensation Act to ensure that rescue and recovery workers, residents, students, and others suffering from health consequences related to the World Trade Center disaster have access to the medical monitoring and treatment they need. We will never forget the selfless courage demonstrated by the firefighters, police officers, and first responders who risked their lives to save others. I believe this is a critical step for those who continue to bear the physical scars of those attacks."


Those who were exposed to the toxic dust and fumes of the World Trade Center disaster continue to suffer from latent and progressive medical conditions. The New England Journal of Medicine has reported that a substantial population that was exposed to the toxic residuals of the event are suffering from sever medical conditions. Positive pathological findings reflect the existence of aluminum and magnesium silicates, chrysotile asbestos, calcium phosphate, calcium sulfate, glass, and carbon nanotubes (CNT) were found in specimens of exposed individuals.

Eligibility for benefits under the James Zadroga 9/11 Health and Compensation Act include those who were World Trade Center victims and First Responders. Under the law those who worked, attended school, childcare and adult day care, may be eligible. The program also covers some who were present in the area of the dust cloud or who lived in the the New York City disaster area. Certain cleanup and maintenance workers are included including tele-communications workers such as Verizon, AT&T and other employees.

Like the September 11th Victim Compensation Act of 2001, even if the exposed individuals are living in another state, but were exposed at the NY Disaster Area, the ill individuals may apply for benefits. 

It is probable that cancers resulting from the exposures will be covered under the legislation. Historically, occupational and environmental exposures to carcinogens, such as asbestos, may take many years to progress and manifest into conditions as asbestosis, mesothelioma and lung cancer.

Additionally, various respiratory and digestive diseases are being reported including:
1. Interstitial lung diseases.
2. Chronic respiratory disorder--fumes/vapors.
3. Asthma.
4. Reactive airways dysfunction syndrome (RADS).
5. WTC-exacerbated chronic obstructive pulmonary disease (COPD).
6. Chronic cough syndrome.
7. Upper airway hyperreactivity.
8. Chronic rhinosinusitis.
9. Chronic nasopharyngitis.
10. Chronic laryngitis.
11. Gastroesophageal reflux disorder (GERD).


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 asbestos related disease. Please contact our office if you require assistance in filing a claim under the newly enacted James Zadroga 9/11 Health and Compensation Act.

California Applicants' Attorneys Association Affiliates With Labor

Teamsters and Workers’ Compensation Attorneys Affiliate To Strengthen Political Action Team


SACRAMENTO, CA - The International Brotherhood of Teamsters (IBT), AFLCIO, and the California Applicants’ Attorneys Association (CAAA) today announced a new Affiliation Agreement. CAAA has affiliated with the IBT’s Joint Councils No. 7 and 42, and its California Teamsters Public Affairs Council. The two organizations have agreed to coordinate their activities and pursue mutual interests relating to policy and politics.

“The Affiliation Agreement between the Teamsters and the California Applicants’ Attorneys Association helps both improve our abilities to meet the needs of our respective memberships,” said Randy Cammack, International Vice President of the IBT and Co-Chair of the California Teamsters Public Affairs Council. “The Teamsters will benefit from CAAA’s expertise in advising us on workers’ compensation policy and workplace safety issues. CAAA will benefit from our presence throughout the state at the local level, and our expertise in working for improved public policy relating to working people,” added Rome Aloise, IBT Vice President and the other Co-Chair of the California Teamsters Public Affairs Council.

“Our members represent tens of thousands of working Californians, and we have always worked closely with organized labor on behalf of those injured on the job. Our Affiliation with the Teamsters will provide our members and their clients with an even more powerful voice on their behalf,” said Barry Hinden, president of CAAA. “This Affiliation will harness the power of our two organizations to focus
on state and federal issues that jointly affect our members, including legislation, public policy and political action.”

“Our organization of professionals will remain autonomous and self-governing,” said Hinden. “We are excited to join with others who share our goals and objectives and look forward to an even closer relationship with all of organized labor. This is an opportunity to become even stronger advocates for Californians injured on the job.”

Cammack, Aloise, and Hinden said the partnership between CAAA and the IBT is part of an effort by both organizations to build bridges and form new alliances. The Teamsters, for example, have organized or affiliated airline pilots and other whitecollar professionals. CAAA has embarked on a new initiative to build bridges to like-minded organizations in organized labor, and the civil rights and consumer advocacy communities.

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Out of State Medical Treatment Allowed By Workers Compensation Court

An employer is required to provide medical care, including surgery and followup care, to an employee even if the employee leaves the state within two days of an initial surgical intervention. Chubb Insurance was ordered to pay for medical care, including subsequent surgery, when an employee was required to leave the state for a family emergency.


The court held that the failure of the employer/insurance carrier to provide medical care for out-of-state treatment, even though requested by the employee, was deemed a refusal of the employer to provide adequate medical care to cure and relieve the worker of the work related injury. The employer/insurance company was ordered to pay for out-of-state medical care.


Ham v. Anchor Glass Container Corporation, Docket No. A-1797-09T3, Decided January 20, 2011 Not Reported in A.3d, 2011 WL 166206 (N.J.Super.A.D.)

Jumat, 21 Januari 2011

Workers Compensation Blog Marks Over 100,000 Views

The Workers' Compensation Blog has now logged over 100,000 views since its inception on July 27, 2007. It continues as an academic experiment to identify and disseminate information about developments and trends in workplace injury law, and hopefully encouraging a safer work environment for future generations. With almost 700 posts on line, and a readership that reaches 7 continents, the experiment has far exceeded my expectations.

As the United States approaches its Workers' Compensation Act centennial celebrations,  and history looks back upon the catalytic events, ie. the tragic Triangle Shirtwaist factory fire, that generated the model acts of 1911, it is hoped that experiments such as this blog will  inspiring a new focus on critical issues such as workplace safety, the environment  and international commerce that will embrace the system for the next 100 years.

Repeal of Healthcare Effort and Medicare


By now we all know of the effort to repeal what some call Obamacare. It cannot pass Congress and withstand a veto but the effort is being made anyway. The Medicare Rights Center has put out a press release which brings home the point that repeal will harm those on Medicare and also increase the federal deficit. They go into detail and alert us with real life stories. Sometimes in pursuit of an agenda many overlook the truth because it conflicts with their beliefs. Healthcare is so controversial that it makes for an adversarial situation which is obvious in today's political climate. We all lose when the problem is not addressed and solved.

Kamis, 20 Januari 2011

Brown Bagging It on ICAP cases


Once a month an administrative law judge has a brown bag lunch where he reviews cases of interest to those in the Colorado workers comp field. These cases are not readily available to the public although most attorneys in the field have access to the decisions. The Industrial Claim Appeals Office handles a great many appeals from hearings held at the local level. Many such cases never get appealed further and the next stage is to the Colorado Court of Appeals. Judge Eley is well liked and respected by most attorneys in this field and his free Brown Bag Lunch Seminar is well attended. Even if you cannot make it he emails you the materials and an audio of his presentation. Today is the January lunch and from the materials I have already received I note two cases that are exceptionally interesting to me and perhaps to most readers. The first can be called the Wheeler case. The claimant was admittedly permanently and totally disabled and thus entitled to PTD benefits. The issue was how to compute those benefits where they are paid out every two weeks perhaps for life. So the case involved AWW which is average weekly wage. The claimant when hurt at work was earning a very low figure if you look at her actual average wage. Respondents said it was under $75 a week. However vocational evidence was provided which helped show that the rate would be much higher then her actual wage at the time of the accident. While this must all relate to the date of the injury a Judge does have discretion to depart from your actual wage and consider loss of earning capacity. Here the difference was enormous though any calculations still are based upon the law as of the injury date. The judge applied the law as of the date of maximum improvement which was a mistake. The claimant still won big here.
The second case involved a fall at work. Caselaw tells us that not all falls at work are really work injuries entitled to benefits. The claimant in Landes was determined to have a work related tramatic brain injury injury which arose from work activities despite the fact he had amnesia and remembered nothing about the fall. Often Respondents will assert it is the claimants burden to prove his case and falls can come for many reasons. No change in the law from this ICAP decision favorable to the claimant so it is up to the hearing judge to decide on the evidence presented. There was a dissent that essentially said the evidence was speculative either way making the fall unexplained and not compensable.

Federal Push to Cap Workers' Compensation Based on Age

Sen. Susan M. Collins (R-Maine) has asked for an investigation by the Government Accounting Office to determine if too many Federal employees of retirement age are receiving workers' compensation benefits.

She stated, ""I am increasingly concerned that individuals with no intention of returning to work continue to receive these benefits," said Senator Collins. "At the U.S. Postal Service, for example, 1,000 employees currently receiving federal workers' compensation benefits are 80 years or older. Incredibly, 132 of these individuals are 90 and older and there are three who are 98. This abuse may extend across the government where the Department of Labor regularly pays benefits to employees in their 70s, 80s, 90s, and even 100s. The lack of benefit caps and requirements for regular third-party certifications of continued need further expose the FECA program to possible fraud. If recipients are gaming this crucial benefit at taxpayers' expense, they must be exposed and the underlying program must be reformed.""

Kamis, 13 Januari 2011

New Drug May Be Effective Against Mesothelioma

Recent research by Japanese scientists have been reported effective against malignant pleural mesothelioma [MPM], a rare cancer associated with asbestos exposure. The drug, named S-1, has been developed as a novel oral antineoplastic agent "based on the modulation of 5-fluorouracil (5-FU) bioactivity."

The scientists used three human MPM cell lines, Y-MESO-14, NCI-H290 and MSTO-211H. In vitro proliferation of human MPM cells was determined by MTT assay. Human MPM cells were orthotopically implanted into thoracic cavity of SCID mice. Tumor-bearing mice were treated with S-1 or vehicle.

"The combination of 5-FU and 5-chloro-2,4-dihydroxypyridine (CDHP) was more effective than 5-FU alone in inhibiting MPM cell proliferation in vitro. This combination was most effective in Y-MESO-14 cells, which co-expressed high protein level of dihydropyrimidine dehydrogenase (DPD) and thymidine phosphorylase (TP). In vivo data showed that treatment with S-1 significantly reduced thoracic tumors and pleural effusion produced by Y-MESO-14 cells. Moreover, treatment with S-1 prolonged the survival of Y-MESO-14 cell-bearing SCID mice."

They concluded, "We demonstrated that S-1 was effective for inhibiting the proliferation of MPM cells, particularly with both DPD and TP expressions, suggesting that S-1 might be therapeutically effective for control of MPM."

CANCER CHEMOTHERAPY AND PHARMACOLOGY DOI: 10.1007/s00280-010-1503-x

Rabu, 12 Januari 2011

Workers Compensation Benefits Awarded for Breast Cancer

The Nevada Supreme Court has awarded workers' compensation benefits to a firefighter who alleged that her occupational exposure at work to toxic substances caused her breast cancer. The court held that there was substantial evidence that supported the finding that her exposure to known carcinogens was causally related to her breast cancer.

The injured worker was employed for the City of Las Vegas in 1992 and was diagnosed with breast cancer in 1997. She under whet treatment and lost 8 to 9 months of work. In 2004 she suffered a recurrence of the breast cancer and under when a double mastectomy and chemotherapy.

The Nevada statute defines what  a "carcinogen" is based upon the definition of the International Agency for Research on Cancer [IARC] or the National Toxicology Program [NTP]. The former firefighter alleged that she was exposed to benzene, a know carcinogen. One of her expert witnesses, Dr. James Melius, testified that, "Several studies have found occupational exposure to benzene to be associated with breast cancer risk in both males and females."

Also her treating physician causally related her medical condition to her occupational exposure to carcinogens. He advised her to cease work as a firefighter.

City of Las Vegas v. Lawson, No. 53900, 126 Nev. Adv. Op. 52, 2010 WL 542282 (Nev. 2010) Decided December 30, 2010.

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Too Old to Get Workers Compensation

Washington's Governor, Chris Gregorine has proposed legislation to retire older totally disabled workers from the state's workers' compensation system. About 8% of the state's totally disabled workers would have the option of receiving a lump sum benefit to opt out of the system of periodic benefits. The senior beneficiaries amount to 85% of the present systems' cost and amount to only 8% of the total beneficiaries.


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Kamis, 06 Januari 2011

Pinnacol Golf Junket for Executives in 2010 Hits News Again


Channel 9 News and other media in Denver are reporting today on last years golf trip by Pinnacol executives. Pinnacol was required by a court order to disclose this information and as might be expected it is raising eyebrows. Some are saying the chief executive should resign. It does seem outrageous especially when you realize Pinnacol is meant to be nonprofit. Things like pink golf balls for the ladies, lavender pedicures, and even over $400 spent at the airport lounge and over $7000 in room charges for the chief executive. The total? Over $300000.00 for this Pebble Beach Golf trip. It is also reported that state auditors criticized Pinnacol for its lavish spending history in September. Pinnacol fought to prevent release of this information but had to do so. Now many are very upset at Pinnacol. Since Pinnacol is a mix of public and private the disclosure could not be kept a secret as can be the case with private companies. I imagine that compared to others such as the financial bank companies this is not that horrible or lavish but tell that to the injured worker of even the small business that is pinching pennies in these hard times.

EPA Urged to Shut Down Dangerous Asbestos Removal Method

The U.S. Environmental Protection Agency's Inspector General has just signed an "Early Warning Report" that will shut down a dangerous and unapproved asbestos removal method that two EPA offices have been testing for the past seven years.

The report supports what Public Justice has been arguing -- that the method both endangers public health and doesn't work.

The approved method requires all asbestos to be removed from a building by trained specialists wearing protective gear before it is demolished. Under the unapproved method, called the "Alternative Asbestos Control Method," or AACM, most of the asbestos-containing materials are left in place during demolition. Water with added surfactants is sprayed on the building to try to suppress asbestos release and contamination.

Read more about the EPA Asbestos Report:
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. 

Rabu, 05 Januari 2011

NIOSH Proposes New Digital Classification for Pneumoconiosis

Monitoring the health of individuals involved in dusty work is intended to provide assurance to the worker that ongoing exposure controls are adequate. Recognition of minor health abnormalities serves as an early warning to both workers and managers when there is need for more effective measures to prevent work-related impairment and disability. Since 1970, NIOSH and other organizations have successfully applied traditional film screen chest radiography, interpreted using the ILO International Classification of Radiographs of Pneumoconiosis, toward these objectives. 

Imaging of interstitial lung diseases such as the pneumoconiosis represents one of the most difficult challenges in diagnostic radiology, and comprehensive attention to technological, methodological, and human factors is required to assure that the image quality and interpretation are satisfactory for achieving early disease detection. 

This NIOSH Guideline is based upon accepted contemporary professional recommendations, and provides technical and operational guidance for radiographic facilities and physician readers who obtain digital chest radiographs for the evaluation of pneumoconiosis. The intent is to assure that the recognition of pneumoconiosis using digitally-acquired chest radiographs is at least as safe and effective as traditional film screen radiography. The Guideline should not be considered a mandate for medical practice; however participating practitioners and facilities who deviate from the specifications should have a sound medical rationale for alternative approaches.