Monthly Archives: November 2016

Vinyl Chloride Exposure and Cancer

Vinyl chloride is a colorless gas that is used primarily to make polyvinyl chloride (PVC). PVC is used to make plastic products ranging from pipes to packaging materials.

 

Workers are primarily exposed to vinyl chloride through inhalation in facilities where vinyl chloride is produced or used. Exposure to high levels of vinyl chloride around 10,000 ppm can cause a person to feel dizzy or sleepy. At around 25,000 ppm, a person may pass out. Breathing fresh air will help a person recover from these episodes. However, long-term exposure to vinyl chloride can cause serious health problems including Raynaud’s phenomenon (fingers blanch, numbness and discomfort when exposed to the cold), liver damage, liver cancer (hepatic angiosarcoma), brain and lung cancers, lymphoma, and leukemia.

 

Recovery for workers injured from exposure to vinyl chloride is more successful when the worker has been diagnosed with angiosarcoma of the liver because several studies have shown that it is causally associated with occupational exposure to vinyl chloride. While vinyl chloride exposure has been linked to other types of cancer, recovery may be prevented because it is more difficult to prove causation.

In Complicated Times, Police Who Risk Their Lives Still Need Support

Today’s post comes from guest author Edgar Romano, from Pasternack Tilker Ziegler Walsh Stanton & Romano.

Last week was a very bad one for police officers across the country, starting with the separate police shooting of two unarmed men. These shootings – days apart in different parts of the country – sparked widespread outrage and protests throughout the country. 

While the investigation continues into the circumstances surrounding these civilian shootings, video evidence suggests the outrage over these shootings appears to be justified. The week ended with the assassination of five police officers in Dallas who were providing protection to citizens engaged in a peaceful protest over the shootings of the unarmed men. The gunman indicated he had killed the police officers in retaliation for the shooting deaths. This was the worst loss of life for the police department since September 11, 2001.  Additionally, seven police officers were injured in the attack.

These horrific events highlight the difficult job that police face every day. While not all police officers are perfect (in fact, who amongst us is?), most don’t begin their shifts with the mindset that they are going to kill a civilian. Most see their role as keeping the peace and protecting citizens. They do, however, wonder many times whether they will make it through their shift safely and return home to their loved ones.    Unfortunately, they are not always immune to death and injury.   

As an attorney who has represented many law enforcement officers injured on the job, I know the majority of them receive medical treatment and may have a period of convalescence, but then are able to return to work. However, some sustain serious and career-ending injuries. Most police officers in New York City and Long Island are likely a member of a Civil Service Retirement System. If so, and they become permanently disabled from performing their specific job duties, they may be eligible for a life-long disability pension.

There are many pension systems in the state, all with different applications, rules, procedures, and guidelines. Each disability pension has its own statute of limitations and guidelines for eligibility. There are different pensions available, ranging from one-third to three-quarters. Just because you were injured on the job does not mean you are automatically entitled to the three-quarter pension, which would enable you to receive 75% of your previous year’s earnings. 

Although not always relevant, how police officers are injured on the job can impact whether they are entitled to a three-quarter disability pension. Additionally, just because they were injured while working does not automatically mean they are entitled to a three-quarter disability pension. Factors that get taken into account are issue of causation, medical evidence from the officer’s own doctor, and the retirement system’s medical board. It is not always an easy process for our law enforcement personnel to receive reasonable retirement benefits, but it should be. Day in and day out, they protect the citizens of our cities and our states, putting their own lives at risk simply because they are dressed in blue. 

There is a huge spotlight this week on police, and rightfully so, as there is so much mistrust and anger regarding the recent events. There needs to be an honest, open dialogue where those aggrieved are given the opportunity to be heard without fear of reprisal, just as the police department needs to be given the opportunity to have investigations completed before a rush to judgment. While the majority of police officers are honest and hardworking, those who fail to uphold their oath should be punished.

Police officers are sworn to protect and serve; they run toward trouble when we run away from it. They patrol neighborhoods that are dangerous, riddled with crime, where we are taught to avoid them. They put their lives on the line every day, knowing they might never return to their families. Yes, this has been a very tough week. Let’s hope that future discussions help bridge the gap between our police and the citizens they are sworn to protect.

 

Catherine M. Stanton is a senior partner in the law firm of Pasternack Tilker Ziegler Walsh Stanton & Romano, LLP. She focuses on the area of Workers’ Compensation, having helped thousands of injured workers navigate a highly complex system and obtain all the benefits to which they were entitled. Ms. Stanton has been honored as a New York Super Lawyer, is the past president of the New York Workers’ Compensation Bar Association, the immediate past president of the Workers’ Injury Law and Advocacy  Group, and is an officer in several organizations dedicated to injured workers and their families. She can be reached at 800.692.3717.

Trumponomics: Impact on Injured Workers and the Middle Class

Today’s post comes from guest author Kit Case, from Causey Law Firm.

Paul Krugman’s July 4 New York Times Op-Ed column, “Trump, Trade and Workers”, picked apart the economic plans posed by Donald Trump in a campaign speech the prior week.  Mr. Krugman examined “the general thrust of the speech: the candidate’s claim to be on the side of American workers.”  All of the points Mr. Kruman raised are valid.  I wish to add a bit of  perspective, though, from the world of representing injured and disabled workers: an effective safety net is also necessary for a strong middle class.  

Krugman: “What’s important is that voters not mistake tough talk on trade for a pro-worker agenda. No matter what we do on trade, America is going to be mainly a service economy for the foreseeable future. If we want to be a middle-class nation, we need policies that give service-sector workers the essentials of a middle-class life. This means guaranteed health insurance — Obamacare brought insurance to 20 million Americans, but Republicans want to repeal it and also take Medicare away from millions. It means the right of workers to organize and bargain for better wages — which all Republicans oppose. It means adequate support in retirement from Social Security — which Democrats want to expand, but Republicans want to cut and privatize.”

Access to Social Security disability benefits has become difficult to obtain, particularly for younger, middle-aged applicants.  Approval rates for applications for Social Security benefits are down across the country but are staggeringly low in some metropolitan areas, such as Seattle.  State’s have been under enormous pressure to reduce costs in their workers’ compensation systems, as well.

In Washington State, changes put into place including a major “deform” movement in 2011, have saved money, granted, but nearly all of the savings were taken out of the pockets of injured workers through reductions in benefits.  

Implementation of a required Medical Provider Network with increased cost and hassle for physicians has significantly limited access to the best care for Washington’s injured workers.  We went from one of the best states in the union for high-quality workers’ compensation insurance to a place where many workers avoid filing claims and seek care under private insurance to get the care they need, quickly.  

Without sufficient benefit levels and access to quality medical care, families suffer. An injured worker receiving temporary total disability benefits receives compensation while unable to work, typically between 60 – 70% of the pre-injury wage rate although higher wage earners may receive a far smaller percentage if they bump into the cap on benefit levels.  For example, a highly skilled tradesperson, particularly if in a union, may receive compensation at 40 – 50% of pre-injury levels.  It’s hard to maintain a middle-class lifestyle on half of your pay, and even harder if it takes months to get authorization for surgery – the road to recovery can be quite long and bumpy.

Washington’s Retro Group program, where employers can reduce premium costs by opting to pay claim costs dollar-for-dollar and can receive refunds of premiums paid if their costs are lower, have inserted a profit motive into what used to be a strong system where all workers and employers shared the cost of all injuries, spreading the burden out and providing predictable coverage expenses.  With the Retro Program, employers have a vested interest in denying coverage, reducing benefits, denying treatment – every penny saved goes right back into their pocket.  It’s a whole new contentious game.  Note that the workers, who in Washington pay ½ of the premiums charged to employers, never get a refund if claim costs are low.  It is unfair, lopsided and the fights that ensue between workers and employers over coverage are handled by State agencies, State  employees, adding to the State’s expense of running the overall workers’ compensation system and eating into the “savings” gained by the reform efforts.

Workers’ compensation is intended to provide protections to those injured on the job for the purpose of ensuring a speedy recovery and return to employment, hopefully with limited financial impact to the worker and their family.  When done right, the protections can save an injured worker from financial ruin.  Implemented poorly, the system can add to the physical, emotional and financial pain after an injury.

Photo credit: George Eastman House via RemodelHunt / No known copyright restrictions

Workers’ Compensation Medicare Set-Aside (MSA) Not a “Countable Resource” for North Carolina Medicare Eligibility

Earlier this week, the North Carolina Court of Appeals issued an opinion that will improve the lives of many injured workers who need Medicaid assistance after sustaining a work-related injury. 

In the case of Phoebe Williford v. N.C. Dep’t of Health and Human Services and N.C. Division of Medical Assistance, the Court held that assets placed in a workers’ compensation Medicare Set-Aside account should not be considered a “countable resource” for purposes of determining a petitioner’s eligibility for North Carolina Medicaid. This opens the door for many injured workers to now apply (or re-apply) for Medicaid assistance even if they have a separate bank account containing thousands of dollars earmarked for future medical treatment. 

A workers’ compensation MSA is not a piggy bank that an injured worker can use for anything s/he wants. “The purpose of a MSA is to allocate a portion of workers’ compensation award to pay potential future medical expenses resulting from the work-related injury so that Medicare does not have to pay.” The injured worker must keep the funds separate from his/her other accounts, must maintain an accounting, and must only use the funds for future medical treatment related to his/her injuries. MSA accounts are regulated and injured workers must report to Medicare. CMS recently published a toolkit to help injured workers manage their MSAs. As you see, there are specific restrictions and requirements on how the money is used.

In the Williford case, the petitioner originally did not qualify for Medicaid because she had more than $2,000 in liquid assets (i.e. her MSA account). The issue before the Court was whether the petitioner’s MSA account, containing approximately $46,000, should be counted as a “financial resource for purposes of determining the petitioner’s eligibility for Medicaid.” 

The Court concluded that the WC MSA was not a countable resource because “…federal standards clearly establish that, in order for a given asset to be a countable resource, the asset must be legally available to the applicant without legal restriction on the applicant’s authority to use the resource for support and maintenance.” Because there are requirements governing the WC MSA, the funds were not “legally available” “without legal restriction” and not a “countable resource.” 

That said, when settling a workers’ compensation claim any other portion of the settlement (i.e. lump sum cash) would likely be considered “legally available” funds. If appropriate, a special needs trust should be considered in certain cases to avoid these funds from disqualifying a person from Medicaid.

Night Shift Work Causally Linked to an Increase in Breast Cancer

Today’s post comes from guest author , from Jon L Gelman LLC.

Working at night increases the risk of breast cancer according to a recent study.

Objectives The potential mechanisms that link night-shift work with breast cancer have been extensively discussed. Exposure to light at night (LAN) depletes melatonin that has oncostatic and anti-estrogenic properties and may lead to a modified expression of estrogen receptor (ER) α. Here, we explored the association between shift work and breast cancer in subgroups of patients with ER-positive and -negative tumors.

Methods GENICA (Gene–ENvironment Interaction and breast CAncer) is a population-based case–control study on breast cancer with detailed information on shift work from 857 breast cancer cases and 892 controls. ER status was assessed by immunohistochemical staining. Associations between night-shift work and ER-positive and -negative breast cancer were analyzed with conditional logistic regression models, adjusted for potential confounders.

Results ER status was assessed for 827 cases and was positive in 653 and negative in 174 breast tumors. Overall, 49 cases and 54 controls were “ever employed” in shift work including night shifts for ≥1 year. In total, “ever shift work” and “ever night work” were not associated with an elevated risk of ER-positive or -negative breast tumors. Night work for ≥20 years was associated with a significantly elevated risk of ER-negative breast cancer [odds ratio (OR) 4.73, 95% confidence interval (95% CI) 1.22–18.36].

Conclusions Our case–control study suggests that long-term night-shift work is associated with an increased risk of ER-negative breast cancers. Further studies on histological subtypes and the analysis of other potentially relevant factors are crucial for discovering putative mechanisms

The report:  Rabstein SHarth VPesch BPallapies DLotz AJustenhoven CBaisch C,Schiffermann MHaas SFischer H-PHeinze EPierl CBrauch HHamann UKo Y,Brüning T, “Night work and breast cancer estrogen receptor status – results from the German GENICA study”, Scand J Work Environ Health 2013;39(5):448-455 doi:10.5271/sjweh.3360,  2010;36(2):163-179 2010;36(2):134-141
 
Read more ablout “breast cancer” and workers’ compensation:
Jul 02, 2013
Objectives Long-term night work has been suggested as a risk factor for breast cancer; however, additional studies with more comprehensive methods of exposure assessment to capture the diversity of shift patterns are …
 
Dec 15, 2012
A semiconductor plant worker, who had been exposed to solvents and radiation while working 5 years at a semiconductor factory in South Korea has been held to have suffered an compensable disease related to her …
 
Mar 18, 2011
Fire fighters in Canada are supporting legislation that would establish a legal presumption that breast cancer is an occupationally related illness. The legislation also creates a presumption that 3 other cancers (skin, prostate …
 
Dec 05, 2012
Breast Cancer and the Environment: A Life Course Approach – Institute of Medicine: “With more than 230,000 new cases of breast cancer expected to be diagnosed in the United States in 2011, many wonder about the role …
 

The High Cost of Fat

Today’s post comes from guest author Thomas Domer, from The Domer Law Firm.

We have reported regularly on the impact of obesity on workers’ compensation (see WFW October 2005 “Diabetes and Work Injuries” Alan B. King, M.D. and WFW Winter 2009 “The Rising Impact of Obesity on Workers’ Compensation” book review).

A recent study in the Journal of Occupational and Environmental Medicine, the official publication of the American College of Occupational and Environmental Medicine, in September 2016 reported that obese and overweight workers are more likely to result in higher costs related to workers’ compensation claims, especially for major injuries.

In a study analyzing 2,300 workers in Louisiana, Dr. Edward Bernacki of the University of Texas—Austin found that workers’ compensation costs and outcomes for obese workers (defined as a Body Mass Index of 30 or higher) incurred higher costs related to their workers’ compensation claim. This study noted that after three years about 10% of claims for significant injuries were still open, meaning the worker had not yet returned to work. Obesity and overweight did not play a role in the delayed return to work. However, for workers with major injuries, overweight was associated with higher workers’ compensation costs. In the group with the higher Body Mass Index, costs averaged about $470,000 for obese workers, $270,000 for overweight workers compared to $180,000 for normal weight workers (with a Body Mass Index between 25 and 30). The study made adjustments for other factors including the high cost of spinal surgeries and injections and, after making the adjustment for these factors, obese or overweight workers with major injuries were twice as likely to incur costs of $100,000 or more. Significantly, Body Mass Index had no effect at all on costs for closed claims or less severe injuries.

Previous studies (including a study in the Journal of Occupational and Environmental Medicine in 2015 linked obesity to a higher rate of workplace injuries and a longer time off. However, the cost effects were not studied until this recent assessment. The new results indicate obesity is a significant risk factor for higher costs in major workers’ compensation injuries.

One significant finding in the study was that more than three-fourths of the workers’ compensation claimants were overweight or obese. Further studies are planned. Previous studies include those from the National Council on Compensation Insurance, Inc. (NCCI) “How Obesity Increases the Risk of Disabling Workplace InjuriesEditor’s Note:  According to most studies, there is a strong correlation between Body Mass Index and injuries such as ankle fracture severity and increase risk of osteoarthritis. For workers’ compensation practitioners, one wonders whether these studies are a prelude to an assault on the “as is” doctrine. Each of us in our own practice can recognize some of the wide-ranging effects in costs of obesity, from special procedures for hospital treatment of obese patients such as open MRIs and more extensive surgical procedures to a reduced fuel economy in commercial vehicles due to fat drivers. Additionally, the cost of treatment for obese patients with work-related injuries increases the work-related injury potential to medical staff (lifting, transferring, etc.). Increasing admissions of severely obese patients leads to a corresponding increase in medical workplace injuries related to lifting and maneuvering obese patients. Workers’ compensation practitioners may see obesity as yet another “pre-existing condition” to surmount in future causation and extent of disability battles.

Keep Ag Worker Safety in Mind this Harvest Season

Today’s post comes from guest author Rod Rehm, from Rehm, Bennett & Moore.

As harvest kicks off on the Great Plains, please take the time to be safe and make sure you understand the safety policies of your business, whether you’re a worker, a supervisor, or the employer.

The information and resources below are a sometimes-stark reminder of the need for safety all year when it comes to agricultural jobs, especially at harvest, when long hours and the urgency of the time available all affect a person’s decision-making abilities.

First, here’s a summary of a news release from the Occupational Safety and Health Administration investigation that was the result of an elevator supervisor’s death in a soybean bin in March of this year. Sympathies go to the “41-year-old elevator superintendent’s” loved ones. This person’s death is especially tragic because Cooperative Producers Inc. has been cited seven times since 2011 for grain handling safety violations. This most recent violation resulted in a proposed fine of $411,540 and also earned the Hastings, Nebraska-based company a spot in OSHA’s Severe Violator Enforcement Program.

In this most recent incident, the worker was with two others in a soybean bin, and he “suffocated when his lifeline tangled in an unguarded and rotating auger,” according to the news release.

“OSHA investigators determined three workers, including the elevator superintendent, had been standing over the unguarded auger using a pole in an attempt to dislodge soybean debris in a grain bin that contained more than 50,000 bushels of soybeans sloped 12 to 20 feet up its walls.

“During its investigation, the agency found CPI failed to:

  • Disconnect a subfloor auger before allowing workers to enter.
  • Test atmospheric conditions in grain bins before allowing workers to enter.
  • Implement procedures to prevent sudden machine start-up or unintentional operation, a process known as lockout/tagout.
  • Install adequate machine guarding to avoid contact with moving parts.”

The Nebraska State Patrol on Twitter at @NEStatePatrol recently shared a news release that focused on being even more careful and aware of other vehicles than usual, which was the other motivation for today’s blog post.

Harvest is really ramping up just in time for the days to get shorter and machinery operators to be traveling to and from the fields at hard-to-see hours, especially dawn, dusk and at night. In addition, with the school year starting recently, more inexperienced drivers are driving with school permits on rural roads and might not be able to react as quickly as other drivers would anticipate.

“Combines, grain carts, tractors, and other agricultural implements typically travel at slower speeds,” according to the patrol’s news release. “Due to their dimensions and loads, operator visibility is often reduced. Motorists are reminded to be aware and utilize caution when approaching, following or passing farm vehicles.

“‘Harvest time means tall crops and often limited visibility at rural intersections,’” said Colonel Brad Rice, superintendent of the Nebraska State Patrol in the news release. “‘Motorists should also be aware of the possibility of wildlife moving around due to the increased activity in the fields.’”

Here are some of the firm’s previous blog posts with additional resources about agricultural jobs and workers’ compensation, grain-handling safety, and harvest.

Please take the time during harvest, and all of the time, to know and follow safety policies and procedures in agricultural jobs. If you’re an employer or manager, it is essential that workers are trained in and implement safety efforts, regardless of the hustle and bustle of the season, harvest or otherwise.

Make sure to contact an experienced workers’ compensation lawyer if you or a loved one has questions about a work-related incident or injury.

I Can’t Do My Old Job, So I Qualify for Disability, Right?

Today’s post comes from guest author Roger Moore, from Rehm, Bennett & Moore.

It’s not uncommon for workers to expect to qualify for disability when they are unable to work in a job that they have held for years. The question becomes does that mean they are disabled under Social Security Administration rules? As in most cases in dealing with the law, the answer is maybe!

For workers under the age of 50, applicants must prove that they are also unable to obtain any work in the general economy, even if they can’t do their typical jobs. This includes unskilled work, and the SSA makes no distinction for what type of pay cut a worker must accept to remain gainfully employed. For instance, let’s assume a worker was earning $20 an hour as an electrician, but could no longer handle the rigors of that employment. If that person can do a minimum-wage job full time or at the level of substantial gainful employment as set by the SSA, then a person is not considered disabled under the SSA rules. Many people are surprised that the SSA would require this. Even if jobs don’t exist within the current labor market, the SSA would require a worker to move herself to a larger market to continue to be employed.

For individuals over the age of 50, the primary question is did they acquire skills from prior employment that would enable them to transition into other employment areas. If those skills would allow the worker to transition to alternate employment, then they are not considered disabled. If those skills are too specialized and don’t easily transition to alternate employment, the worker may very may well be disabled, according to SSA rules.