Mar 272019
 

Note from Gerald: I have been privileged to attend a number of webinars with Judge Langham as a very informed guest and attended by numerous doctors and lawyers, all experts in the workers compensation system. Most agree that the grand bargain is no longer a bargain for workers and has not been for quite some time. Several years ago I referred to to the workers compensation systems as being an antiquated system that does not work in the modern world and this verifies what I said years ago. The people we elect for public office are not visionaries that can envision a modern day approach to how the system should work for the benefit of workers and employers. Obviously the biggest problem with the antiquated system is determining causation. When workers compensation was forced onto workers by Government without any checks or balances, compensation was specific to acute injuries which had an obvious causal relation as opposed to hundreds or thousands of diagnosed work related injuries, disease and mental illnesses in the modern world that are denied based on unqualified doctors who provide false and misleading medical opinions that are reviewed by unqualified adjudicators who determine whose medical opinion is more compelling.

Workers compensation has to be the worst disability insurance that a worker would ever be exposed to. This is a system that destroys families, causes suicides.I have yet to talk to any worker that has not said that if they believed if they could get away with it, they would kill the people that ruined their lives. A modern day system would completely eliminate causation and provide disability insurance without establishing a cause being that no one can ascertain what risk factors are present in the work environment. I have yet to review a claim where it did not involve 15-20 doctors or more with none of them being experts as causation is determined by science not by guessing the cause. Unfortunately even medical science is wrong more times than they are right. 

Judge Langham is bang on that our politicians have created a two tier system where firefighters are treated differently than other occupations without any evidence to support that firefighters are any more at risk for cancers and heart attacks than any other occupation. Epidemiological studies determining risk was based on reference to the general population which according to the National Academy of Science is not a valid reference. If an epidemiological study were to take any occupational group and reference that occupational group to the general population many occupational groups would have a much higher risk factor than firefighters for cancer or heart attacks. Assembly line workers for example who perform repetitive high force work have 10 times the risk as a firefighter specific to musculoskeletal disorders, yet there is no legislation providing presumptive status to assembly line workers for musculoskeletal disorders. A recent study has determined that driving heavy machinery such as tractors, combines, large trucks results in vibration that causes back injuries, yet there is no presumptive status for truckers, farm workers for back injuries. Studies have also determined that heavy manual work over the years contributes to degenerative disc disease and yet DDD is not presumed to be contributed to by years of heavy manual work. Farm workers who use pesticides, herbicides and insecticides on a regular basis have a much higher risk than fire fighters especially now that Roundup has been determined to be a dangerous carcinogen. It is about time that our politicians brought in a system that protects workers and stops punishing them for injuries or diseases that they had no control over. 

The modern system I would envision would be a system that would guarantee acceptance of a claim by not including causation which would reduce costs by at least 50% or more especially the medical component that would reduce or totally eliminate doctors who do not have a doctor patient relationship, have no duty of care, have no responsibility for their medical opinion, can be subpoenaed but never are and cannot be sued for providing false and misleading medical opinions.

Source: https://www.workerscompensation.com/news_read.php?id=32030

Workers’ compensation cancer presumptions are not new. This blog has addressed the topic some with Cancer Presumptions for Firefighters (2014), Firefighters Seek to Change Cancer(2016), and Cancer Presumption in Australia (2016).

There is a bill introduced to bring a cancer compensation process to Florida. Senate Bill 426(“SB426”) would define “cancer” to include the specific maladies of “Bladder cancer, Brain cancer, Breast cancer, Cervical cancer, Colon cancer, Esophageal cancer, Invasive skin cancer, Kidney cancer, Large intestinal cancer, Lung cancer, Malignant melanoma, Mesothelioma, Multiple myeloma, Non-Hodgkin’s lymphoma, Oral cavity and pharynx cancer, Ovarian cancer, Prostate cancer, Rectal cancer, Stomach cancer, Testicular cancer, (and) Thyroid cancer.”There are those who are referring to this as a “cancer presumption,” but that may not be an accurate description. This bill does not interact with Florida workers’ compensation, but is instead “an alternative to pursuing workers’ compensation benefits under chapter 440.” It is available if a firefighter (or former firefighter for up to 10 years) is diagnosed with cancer and

“has been employed by his or her employer for at least 5 continuous years, has not used tobacco products for at least the preceding 5 years, and has not been employed in any other position in the preceding 5 years which is proven to create a higher risk for any cancer.”

This is not an entirely new subject. Several states have workers’ compensation firefighter cancer presumption laws. According to Pennsylvania Judge David Torrey, thirty-three states have addressed firefighter cancer in some way.Meanwhile, officials in Ontario, Canada are analyzing work cancer claims in a more holistic and inclusive manner. The “director of the Occupational Cancer Research Centre at Cancer Care Ontario” has undertaken to study “workplace-related cancer for the Ministry of Labour.” TheRecord.com suggests that cancer claims are “a contentious issue today.” It notes that more “than a century ago” workers compensation laws were enacted, and their effect is a prohibition on employee lawsuits against their employers.The Research Centre Director contends that workers’ compensation was not designed for the modern world. He claims that it is structured based upon knowledge founded “in an era long before occupational disease was understood.” Therefore, he advocates that workers’ compensation needs to “to adapt to the hazards” to which people are exposed at work. He opines that the various jurisdictions’ systems have not evolved in parallel with medical science.TheRecord.com sees an example of this in “former rubber workers.” It notes that some of these have unsuccessfully sought workers’ compensation benefits “for cancer and other diseases,” only to suffer “long delays, road blocks and frustration.” The Director contends that compensation for such disease “should not be an adversarial situation.” Instead, compensation “should be a right to people.” TheRecord.com says that the research the Director is performing will be used by province officials to reconsider rubber workers’ claims for occupational disease between 2002 and 2017.In some cases, the evidence around specific workplace carcinogens isn’t new at all, but the compensation system has still struggled to adequately respond to the problems it causes for workers, he said. He contends that “our knowledge of what causes cancer at work improves every year,” and that this body of evidence to which he refers might be used to support claims for cancer or other occupational disease.The Director “believes the majority of occupational diseases are never reported.” Despite that, the story says that in an eleven year period, the province workers’ compensation system “allowed about 125,000 occupational disease claims which totaled more than $950 million in benefit costs.” Thus, almost a billion dollars (presumably Canadian dollars, which would convert to about $717 billion U.S.). But TheRecord says “that’s just scratching the surface of the problem.”The publication and the Director seem to be advocating for physician education in order that such allegedly work-related conditions are diagnosed as being work-related. Secondarily, there seems to be advocacy of a claims process that is geared toward compensating more such claims after they are “assessed based on the latest science.” There is no description provided of what this science is, however. Perhaps that will all become more clear after the next year of the Canadian study. A recent Canada British Columbia news story draws comparisons between firefighters and other employees.In the mean time, Florida will not be alone in a legislative discussion of cancer this year. WorkCompCentral reported recently that Montana is considering a sweeping presumption bill for firefighters. It reportedly “lists a dozen conditions that would be presumed compensable when diagnosed after a specific period of employment.” This bill also addresses cardiovascular disease.The same day, WorkCompCentral reported that Maryland is considering a bill to expand its firefighter cancer presumption. This would “add bladder, kidney or renal cell cancer to the list of diseases presumed to be compensable for firefighters.” The article notes Maryland presumptions already “include throat and lung (cancer) because of the smoke conditions.”And, Texas is reportedly considering legislation to clarify its firefighter presumption law. WorkCompCentral reports that the law is considered “murky.” According to the story, “insurers say (the law) limits firefighters to just three types of malignancies, but fire workers say already includes most types of cancer.” Employees are seeking better enforcement of compensability decisions, and employers are seeking clarity of the law’s scope.Recently, a California jury awarded $29 million to a woman for cancer it related to the use of baby powder. The American Cancer Society notes that some talcum powder contains asbestos, and warns that inhaling asbestos-laced powder can cause cancer. Its’ website is more circumspect regarding talcum powder and cancer: “The evidence about asbestos-free talc is less clear.” Thus, there seems some potential for debate regarding this causative link.The Environmental Protection Agency has recently banned the sale of Methylene Chloride, according to WebMD. It notes that this chemical compound can cause carbon monoxide poisoning, and “over the long term it increases the risk of cancer.” Despite those warnings, the EPA ban only affects consumer purchasing. The chemical will still be obtainable for commercial applications. It is estimated that some “32,000 workers use methylene chloride at work. New Jersey attorney Jon Gelman has addressed this substance in his blog.Back in California, The Telegraph reports Bayer (which purchased Monsanto in 2015) was found responsible by a jury that concluded “glyphosate-based weed killer Roundup caused non-Hodgkin’s lymphoma.” Notably, the plaintiff had “sprayed the herbicide on his property for decades.” According to the Chicago Tribune, there is disagreement about glyphosphate. On one hand “Monsanto says studies have established that Roundup’s active ingredient, glyphosate, is safe,” and “many government regulators have rejected a link between cancer and glyphosate.”

The manufacturer claims that “hundreds of studies have established that the chemical is safe.” However, the jury concluded otherwise, finding “using Roundup was a significant factor in his cancer.” The recent trial there was in federal court, suggesting that the science that was presented by both plaintiff and defense was subject to the Daubert standard discussed in Dissing DaubertDaubert Better Explained, and Daubert, We Barely Knew Ye.Thus, there are questions about what does and does not cause cancer, causation issues. There may be issues as to how long after some exposure cancer will appear, latency issues. There may be occupations in which exposure to various chemicals and compounds is more or less likely. There may be variables such as the degree of exposure, intensity of exposure, use of safety equipment, and more. In total, there may be more questions about cancer than answers.The legislative efforts seem focused only upon firefighters, and yet a great many questions appear unanswered. Is there justification in tiered recovery systems that treat some workers differently than others? Is there recent science, as suggested by the Ontario Director, that antiquates existing workers’ compensation decision making? If so, where is that science? So many questions.

Aug 072012
 

 

Click on the following link http://www.stalbertgazette.com/article/20120606/SAG0801/306069972/workers-compensation-bill-draws-union-criticism

Other occupations seek better access to WCB coverage for PTSD

By: Megan Sarrazin | Posted: Wednesday, Jun 06, 2012 06:00 am

A government bill aimed at making it easier for first responders to claim post-traumatic stress disorder (PTSD) is facing criticism for failing to acknowledge other vulnerable workers.

The proposed Workers Compensation Amendment Act introduced last week by Dave Hancock, Minister of Employment and Immigration, makes PTSD a ‘presumptive’ illness for first responders including firefighters, police officers and paramedics.

“When you name particular [jobs], you automatically eliminate thousands of others,” said Guy Smith, president of the Alberta Union of Provincial Employees (AUPE). “Restricting it to certain jobs is the wrong way to go about it.”

Although the amendments are a “good first step,” he said they fail to recognize that the illness is present in a variety of occupations dependent more so on the working conditions.

“Anybody potentially can experience a traumatic situation,” he said. “There’s environments all over the place where workers are exposed to traumatic events and situations.”

Current rules require employees to prove that their illness is a result of job-related duties before a claim is accepted by the Workers Compensation Board (WCB).

Shawn Friedenberger, communications advisor at WCB, said the process is the same as any other claim, requiring individuals to tell their employer, doctor and WCB.

“In the case of PTSD, the most challenging component is confirming the diagnosis as doctors follow a pretty precise diagnostic process,” he said via email. “Once the diagnosis has been confirmed … we make sure the trigger that caused the PTSD was work-related and pay any benefits needed.”

This process would remain in place for all occupations excluding first responders, who would not have to prove the trigger was work-related.

WCB records indicate that there were 22 approved claims of PTSD since the beginning of 2010 — only six of which were claimed by first responders.

The remaining cases were claimed by workers in a variety of fields, including transit operators, social workers and accommodation services managers.

Kevin Grabowsky, regional president for the Union of Canadian Correctional Officers, said he is concerned that correctional officers weren’t included in the amendment.

“If you look at everyone that they’re putting into this act – firefighters, EMTs, police officers, peace officers and sheriffs – well, we’re all of that in one job,” he said. “We’re the first responders to everything that happens inside those penitentiaries.”

Grabowsky spent 33 years working in correctional institutions and said there is no reason correctional officers should be excluded.

“We walk the meanest streets in Canada because everybody is a bad guy,” he said. “We play certainly a big part in public safety and we see a lot and deal with a lot of bad things.”

He said the Union of Canadian Correctional Officers is looking at the next step to advocate for correctional officers and have them included in the amendment.

Social workers are another vulnerable occupation that would like to be included in the Workers Compensation Amendment Act.

“[Social workers are] going into situations that are quite volatile and violence is possible, so I think it makes sense to put our profession on the bill,” said Lori Sigurdson, representative with the Alberta College of Social Workers (ACSW).

She said many social workers have a large caseload, which puts an increased demand on already scarce resources.

The government’s move towards zero-based budgeting threatens this demand further, she said, adding it will put further stress on social workers.

Sigurdson said the ACSW has discussed the amendment and is working with several other groups to obtain better access to PTSD coverage.

Smith said individuals who are not listed in the bill and are experiencing a similar situation to first responders could potentially make a claim that the legislation is discriminatory.

Debate on Bill 1 will continue when the legislative session is resumed in the fall.

 

 

Any one with half a brain could have predicted that this would happen. Only a moron would introduce a bill providing discriminatory presumptions to a specific group of workers which includes only first responders and excludes all other workers. This moronic legislation began when an MLA by the name of Richard Magnus introduced a private members bill giving presumptive status to firefighters for certain cancers, followed by presumptive status for firefighters specific to heart attacks while excluding all other workers who had much higher risks than firefighters for cancers and heart attacks. The problem with exclusion by designating a specific occupational group to receive special benefits while excluding all other occupational groups results in discrimination. To combat the insanity of exclusion, a private members bill has to provide presumption for all workers which was the original intent of the Meredith Principles and placing the entire burden of proof to the contrary on the “Board” who has the financial means of acquiring the knowledge specific to causation. Placing the burden of proof on a worker is a breach of the agreement between workers and employers that formed the basis of the Meredith Principles when they went from a civil system to an administrative system that was supposed to place the entire burden of proof onto the “Board” . Instead of having claims adjudicated under administrative law, claims are adjudicated under civil law where the worker becomes a plaintiff rather than a victim with the “Board” being the defendant and the employer being represented by the “Board” who pays bonuses to Case Managers to have claims denied based on the deliberate false medical opinions of the “Boards” network of dishonest medical advisors who the Alberta Government protect by legislation specifically Section 34(4) of the Alberta WCA where a doctor’s opinion even if they admit they lied, cannot be sued unless it can be proven that the medical opinion was based on malice rather than financial gain.

Introduction of Section 34(4) of the Alberta WCA does indicate that the Alberta Government is complicit in protecting WCB’s network of doctors who are not held accountable or responsible for providing knowingly false medical opinions for financial gain.

 

Gerry Miller