The LHWCA covers claims for longshoremen and shipbuilding and repair workers.
Some months ago, I reported about a slowdown in the processing of claims under the Longshore and Harbor Workers’ Compensation Act and allied statutes. The LHWCA was enacted in 1927, and through amendments over the years has been broadened to include injury and disease claims for longshoremen and shipbuilding and repair workers. Expansion of the program in 1941 resulted in the Defense Base Act, covering employees of military contractors working abroad. With our ten-year presence in Afghanistan and Iraq, a large cohort of injured workers has fallen under the DBA in recent years.
Underfunding of ALJ positions within the Department of Labor routinely results in long delays for the hearing and decision making in claims, often meaning claimants are without any coverage for years.
In another segment of its Breathless and Burdened report (subsequent to the one I recently posted about, concerning how black lung victims are routinely having their claims denied as a result of coal company-sponsored evaluations at Johns Hopkins), the Center for Public integrity has now reported on the extreme reduction of the number of administrative law judges within the US Department of Labor who hear and decide claims under the LHWCA and DBA. The center reports that the number of ALJ’s, nationwide, it has fallen to 35, from 41 earlier in 2013 and 53 a decade ago. This has occurred in the context of a 68% rise of new cases before the office of administrative law judges, and 134% increase in pending cases.
Underfunding of ALJ positions within the Department of Labor routinely results in long delays for the hearing and decision making in claims, often meaning claimants are without any coverage for years. Longshore and military contractor employers and their insurance companies, knowing that the adjudicative process in contested claims has become ridiculously long, are emboldened to sit on monies that are clearly owed to injured workers. In addition to the injustice to entitled injured workers resulting from this administrative chaos, to the extent that an injured workers medical benefits and indemnity payments are pushed to other systems, such as Medicare, Social Security, and state disability systems, the costs of the Longshore system are shifted to the federal tax payer and away from the employers and their carriers who should appropriately bear the burden.
Read about the specifics of particular cases in the Center’s report here.
Today’s post was shared by Gelman on Workplace Injuries and comes from dealbook.nytimes.com
Illustration by Stuart Goldenberg
Two months ago, I stepped into a shower in a hotel room in Baton Rouge, La., and felt a slight twinge in my back. I didn’t pay it much mind. I’ve experienced twinges from time to time, but for more than 25 years, I have been essentially free of back pain.
As you’ve probably guessed, that twinge didn’t go away. Instead, it got worse. It lodged in my lower back, and I could feel the sciatica all the way down to my knee. Within a week, I couldn’t walk more than 100 yards without severe pain.
Among other things, I was embarrassed. In 1987, I wrote an article in New York magazine called “Ah, My Non-Aching Back,” about how I’d found relief through a doctor named John E. Sarno.
By the time I saw Dr. Sarno, I had spent a year in relentless pain, visiting orthopedists and chiropractors, osteopaths and acupuncturists, trying yoga, physical therapy and bed rest, all to no avail.
Dr. Sarno’s treatment was essentially a talking cure. His theory, stated simply, is that back pain develops as a way of unconsciously shifting attention away from uncomfortable feelings such as anger and anxiety. With rare exceptions, Dr. Sarno believes, back pain has no structural basis. Rather, it is almost always a consequence of muscle spasm that prompts pain, which leads to fear, and then more spasm, and eventually creates a vicious cycle of pain. He named the condition tension myositis syndrome.
Today’s post comes from guest author Charlie Domer, from The Domer Law Firm.
Came across this post today: “How McDonald’s and Wal-Mart Became Welfare Queens.” News like this has become so commonplace that you almost accept it with a shrug. Yeah, big box stores and fast food chains are paying their workers cruddy wages, forcing them to go on state health insurance and food stamp assistance. Oh well. Move along. Nothing to see here.
But the outrage should exist. These stories make my blood boil. Many of these companies are making massive profits. You’re telling me you can’t pay a living wage? All of us, as taxpayers, are helping pad the the coffers of these companies. By not providing sufficient wages or health care, the actual taxpayers serve as the necessary social safety net for these workers. Is that really how we want our society and country structured?
Admittedly my experience is anectodal, but I see a number of these workers in my practice–from the greeters at Wal-Mart to those flipping burgers at McDonald’s. Many are making a minimum hourly wage of $7.25. No matter how hard they work (and, in my experience, some of these fast food and retail workers are the hardest workers out there, in light of their work condition), they cannot get ahead or make enough to avoid the necessity of seeking food stamp assistance or of searching for the local food pantry.
Corporations simply should not be able to get rich on the public’s back. As taxpayers, we continue to allow this grossly one-sided equation to continue.
Today’s post comes from guest author Thomas Domer, from The Domer Law Firm.
Workers often fear retaliation if they report a safety violation or work injury related to a violation. Concerns about being fired or other forms of retaliation by employers permeate the process of worker’s comp claims filing. Studies have indicated that retaliatory fear prompts many workers not to file either OSHA or workers’ comp claims. Workers also don’t want to be perceived as careless or complaining. In a Government Accounting Office (GAO) study of OSHA reporting, occupational health providers often reported to workers’ fear of retaliation as a reason for underreporting. Fully 2/3 of health providers “reported observing worker fear of disciplinary action for reporting an injury or illness.”
Pressure from co-workers also prompts failure to report safety violations and comp claims. Safety incentive programs (sometimes called “safety bingo” ) create incentives not to report, since non-reporting leads to a reward for a work group. If one worker reports his injury, the entire crew may pay the price. The GAO survey found this peer pressure to be a troubling factor contributing to underreporting to OSHA. (Anecdotally, I remember a worker who cut off his finger on a Friday, wrapped it in a hankie and put it in his pocket , rather than report the injury and disappoint his fellow employees looking forward to a case of beer reward for “100 consecutive safe work days”).
In 2005, Alaska Airlines fired nearly five hundred union baggage handlers in Seattle and replaced them with contractors. The old workers earned about thirteen dollars an hour; the new ones made around nine. The restructuring was a common episode in America’s recent experience of inequality. In the decade after 2000, Seattle’s median household income rose by a third, lifted by the stock-vested, Tumi-toting travellers of its tech economy. But at the bottom of the wage scale earnings flattened.
Sea-Tac, the airport serving the Seattle-Tacoma area, lies within SeaTac, a city flecked by poverty. Its population of twenty-seven thousand includes Latino, Somali, and South Asian immigrants. Earlier this year, residents, aided by outside labor organizers, put forward a ballot initiative, Proposition 1, to raise the local minimum wage for some airport and hotel workers, including baggage handlers. The reformers did not aim incrementally: they proposed fifteen dollars an hour, which would be the highest minimum wage in the country, by almost fifty per cent. A ballot initiative so audacious would normally have little chance of becoming law, but Proposition 1 polled well, and by the summer it had turned SeaTac into a carnival of electoral competition. Business groups and labor activists spent almost two million dollars on television ads, mailings, and door knocking—about three hundred dollars per eventual voter. (Alaska Airlines…
Today’s post comes from workerscompensation.com, one of the blogs that I follow. I am taking Bob’s advice and sharing his article with our network. His concepts are spot-on.
I wish I had thought of the two concepts reflected in the title of this article. Alas, I did not. I did, however, once again take two dynamite ideas, combine them into one cohesive concept, thereby saving the universe while still managing to create an enticing, killer headline in the process.
I swear, sometimes it’s exhausting being me.
I now serve on the Disability Management & Return to Work Committee of the International Association of Industrial Accident Boards and Commissions (IAIABC). We met Tuesday during the associations 99th Annual Convention in San Diego, CA. Committee Chair Peter Federko tasked the group with defining a working strategy that would encourage and promote successful disability management and return to work programs for both the industry and injured workers. This prompted what I can best describe as a passionate discussion among the members, each with their own take and view on where barriers exist, and what segments should be targeted in any RTW effort.
Federko, who by day is CEO of the Saskatchewan Workers’ Compensation Board, did a masterful job of keeping the conversation focused as we rambled about with our various opinions. Personally I believe that there are many “moving parts” within workers’ compensation that all must be aligned and engaged to effectively deploy any respectable RTW program. It requires a team effort from all players. Unfortunately, our current trend in claims management is taking us towards a dehumanization of the process, and this is not conducive for the development of such initiatives.
Two members of this group gave what I believe to be stunning insight, and not just because they dovetail nicely with my beliefs (ok, mostly because they dovetail nicely with my beliefs). Joachim (pronounced Yoke-em) Breuer, with the German workers’ comp system and Chair of the ISSA Technical Commission on Accident Insurance, provided tremendous insight when he stated that Return to Work was not a program, but rather a philosophy; a philosophy that needed to be ingrained throughout the workers’ compensation system. He was followed in short order by Ken Eichler, Director of Government & Insurance Services, Guidelines Division, for Reed Group. Eichler, who is also Committee Vice Chair, talked of suspicion and resistance on the side of the injured worker. He suggested that, to allay fears that RTW was merely a cleverly disguised cost control scheme, the committee instead develop criteria for a “Return to Function” program. He correctly pointed out that “function” is at the core of all life necessities, and that if we can focus on improving that for injured workers, return to work would be a natural extension of any successful effort.
Brilliant observations from both of them. Federko immediately instructed each to take an extra thousand out of petty cash for their input (not really – I made that up. Ever the cost control maven, Federko wouldn’t even open the committee liquor cabinet). Still, this theory was not quite complete. We haven’t quite finished mixing all ingredients for our RTW stew. We still have one more to add.
As you may notice, both suggestions by Eichler and Breuer fit quite nicely with my (as yet unsuccessful) effort to reposition and rebrand the workers’ compensation industry into the Workers’ Recovery industry. We will therefore include that as a third element in the recipe. This concoction produces the following final scrumptious result:
Successful Return to Function must be driven as an overriding philosophy ingrained throughout the Workers’ Recovery system.
There. Not too shabby if I do say so myself.
The philosophy maintains that we must return as many people as possible to functional capacity for as normal a life as possible. Severely injured workers almost without exception wish to have some normalcy in their life. They have children or grandchildren they hope to hold. They want to dress, walk or go to the bathroom without assistance. They want to be able to do their own shopping, and they literally would like to be able to take a moment, bend over, and smell the roses. An entire system that embraces that knowledge, from employers, TPA’s, brokers, carriers, doctors, regulators and the workers themselves, can improve both outcomes and individual lives. With that return to function we offer a return to normalcy, a return to life, and indeed, a return to work.
I cannot speak for the committee nor do I even wish to reveal the path we ultimately chose. Suffice it to say we’re on the right track, and have an amazing amount of work ahead of us. But it will be worth it, as it needs to happen. The current trends are not sustainable. Disability rates are on a dramatic rise, being completely dependent on others is becoming socially normalized, and as workers we are getting older by the day. Our knees are wearing out. Our backs are starting to fail. Many of us have no appreciable skills beyond our current jobs. It is a recipe for disaster if we don’t act, and act quickly.
Restoring life and viability by returning to function via the process of workers’ recovery must be the wave of the future. The choice is simple. Embrace the philosophy today or pay for the reality tomorrow.
Workers’ compensation claimants and their attorneys routinely confront the so-called “usual suspect” medical examiners — those doctors whose practices chiefly involve examining multiple claimants per day, several days per week or month, always for an insurance carrier or governmental agency administering workers’ compensation, and who can reliably be counted on to find no diagnosis related to injury, little or no permanent impairment related to accepted conditions, and no requirement for further treatment nor any limitations applicable to work activity. In a litigation setting, it can often be shown that these doctors have little or no active medical practice and derive the bulk of their income from these forensic examinations, calling into question their lack of objectivity and probable bias. Most of the physicians who engage in this work are not necessarily leading figures in their practice areas, and are not well-regarded academicians in their field – – their principal credential is that they have simply been in the practice a long time. In a litigated case the testimony of such physicians can often be overcome by the testimony of an attending physician who has treated the claimant for a long period of time or another examining physician with an equally or more plausible opinion that supports the injured or diseased worker.
Consider, then, the threat to justice for injured workers when a long-established cohort of extremely well-credentialed defense medical experts, operating under the cover of one of the world’s most prestigious medical schools, has been engaged by the coal industry to defend against claims by miners crippled by black lung disease, and finds in the vast majority of cases no industrially-related disease. These cases arise in the context of the federal black lung system, where cases mostly involve dueling medical opinions and judges rely heavily on the credentials of physicians to determine outcomes. In a blockbuster report entitled Breathless and Burdened, the Center for Public Integrity has unveiled seeming massive corruption of medical opinion from corporate influence at Johns Hopkins Medical Institutions, where Peabody Energy and other coal companies direct workers with black lung claims to be evaluated.
For over 40 years, a small unit of radiologists at Johns Hopkins Medical School and hospital has generated fees from coal company evaluations that have enriched the institution and supported its work. These physicians read x-rays as a part of their regular duties, but coal companies will pay a premium of up to ten times what a regular x-ray reading would cost. And because of the longevity of these practitioners, with their credentials burnished by the iconic reputation of Johns Hopkins, their opinions in the processes of claim adjudication have become nearly unassailable. Judges rely heavily on these opinions and regularly find that they swamp the evidence brought by miners from doctors not similarly credentialed.
The Center’s report found that one particular physician – a 78 year-old radiologist named Paul Wheeler – in reviewing x-rays in 1500 cases since 2000 never found one instance of severe disease, whereas other doctors looking at the same x-rays found it in 390 cases, and that subsequent biopsies and autopsies of diseased workers frequently clearly proved Wheeler wrong. Furthermore, the criteria this examiner used in determining the presence of black lung was contrary to that of government research agencies, textbooks, peer-reviewed scientific literature, and the opinions of many credentialed physicians outside Johns Hopkins, including the American College of Radiology’s task force on black lung disease.
The Center’s review of thousands of cases evaluated at Johns Hopkins established that since 2000, miners lost more than 800 cases where at least one doctor found black lung on x-ray but Dr. Wheeler read it as negative. It calculated that Wheeler found black lung in about 2% of the cases evaluated, and that in 80% of the films he read as positive, he saw only early stage of the disease, whereas other physicians found severe form of the disease in more than 750 films. Despite all of this, Wheeler continues to lead the cohort of radiologists who toil in the Pneumoconiosis Section of Johns Hopkins amidst piles of files and paperwork bearing the letterhead of prominent corporate defense law firms and coal companies, churning out evaluations of miners, under the imprimatur of a prestigious institution, that are clearly resulting in the denial of many legitimate claims.
Today’s post comes from guest author Jon Gelman, from Jon L Gelman LLC.
This is a fascinating study, with potentially far-reaching implications for women and their families.
The scientific study linking the causal relationship of breast cancer to the occupational exposure of endocrine disrupters has been awarded the Anerican Public Health Association Scientific Award. It is anticipated that this sentinal studiy will provide additional scientific evidence in the courtroom to support the compensability of breast cancer as an occupational illness. Today’s post is shared from biomedcentral.com .
Every year the American Public Health Association honours the achievements of scientific researchers for efforts towards improving public health. This year the winners of the APHA Scientific Award, announced today in Boston, USA, are James Brophy and Andrew Watterson from the University of Stirling, UK, and colleagues, for two outstanding research articles on environmental factors contributing to breast cancer risk. Both articles were published last year; one in New Solutions and one in Environmental Health, the latter titled ‘Breast cancer risk in relation to occupations with exposure to carcinogens and endocrine disruptors: a Canadian case control study’.
“As researchers and public health advocates we are delighted with this recognition from what is the oldest and most noteworthy public health association in the world”, said Brophy. “This Award will encourage a closer examination of the breast cancer risks faced by countless women employed in a host of chemical-laden industries and will advance the development of precautionary strategies.”
In their study in Environmental Health, Brophy and colleagues analysed over 1000 cases of breast cancer and over 1000 controls in Southern Ontario, Canada, each with detailed occupational and reproductive histories. Their findings revealed that across all occupational sectors, from farming and plastics manufacturing to food canning and gambling/bars, women with potentially high exposures to endocrine disrupters and carcinogens for a period of ten years showed an increased risk for breast cancer.
Since the publication of their articles, further studies have continued to explore how breast cancer risk is impacted by a variety of factors, as Watterson recounts: “The research has been followed in the last year with scientific papers discussing breast cancer and shift/night work, and breast cancer and its links with cadmium exposures, endocrine disruptors and pesticide applications. Additional research on chemicals used in the plastics industry linked to breast cancer has revolved around endocrine disruptors and there is much going on with regard to risk assessments, for example, of BPA.”
Hammurabi, ruler of Babylon, was responsible for the Code of Hammurabi, part of which bears resemblance to today’s workers’ compensation laws.
c460-c377, BC
Hippocrates, the father of contemporary medicine, established .a link between the respiratory problems of Greek stonecutters and the rock dust surrounding them.
1667
The Great Fire of London (September 2-7, 1666) caused the first English fire insurance laws to be enacted.
1880
William Gladstone pushes Employers’ Liability Act in Britain
1864
The Pennsylvania Mine Safety Act (PMSA) was passed into law.
1871
Otto Eduard Leopold, Prince of Bismarck, Duke of Lauenburg, (known as Otto von Bismarck, a Prussian statesman) enacts the Employers’ Liability Act.
1877
The state of Massachusetts passed a law requiring guarding for dangerous machinery, and took authority for enforcement of factory inspection programs.
1878
The first recorded call by a labor organization for a federal occupational safety and health law is heard.
1884
Otto von Bismarck enacts Workers’ Accident Insurance
1902
The state of Maryland passed the first workers’ compensation law.
1911
Industrial Insurance laws enacted in Washington State.
1911 – 1915
During this period, 30 states passed workers’ compensation laws.
1968
President Lyndon Johnson called for a federal occupational safety and health law.
1970
President Richard Nixon signed into law the Occupational Safety and Health Act (OSHA), thus creating the OSH Administration and the National Institute for Occupational Safety and Health (NIOSH).
1972
Self-Insurance for Workers’ Compensation allowed for individual businesses in Washington State.
2012
Compromise and Release Structured Settlement Agreements allowed for certain Washington State workers’ compensation claims that meet basic criteria.
