Mar 072019
 

By Gerald

Interesting law suit going on across the border specific to presumption. In the U.S. all State workers compensation systems determine claims based on an adversarial system meaning the burden of proof is on the worker, yet most States enacted laws providing presumptive status for firefighters and extended presumptive status to other first responders, prison guards and nurses. Obviously this is discrimination when certain individuals are treat differently than other individuals and the Federal Government is now fighting the State Government. Presumptive status has opened up a can of worms all throughout North America. Question is, how can a State provide presumptive status to firefighters, first responders, prison guards and nurses and not provide presumptive status for workers employed at a nuclear weapons facility who would have far higher the risk of cancers than any firefighter. 

In Canada, we are supposed to adjudicate claims based on an inquiry system where the burden of proof is on the “Board”. The “Board” must not only determine if there were hazards in the work place, they must also prove that a worker was exposed to a hazard outside of the workplace and the time and place that the worker was exposed to the hazard. Because a worker always receives the benefit of doubt and if WCB cannot prove contrary, the claim must be accepted.  

Rather than providing special treatment for firefighters, first responders and continuing to add mote workers to the list of preferential treatment, why not simply enact legislation giving all workers presumptive status and force the “Board” to prove an injury or disease happened outside of the workplace which would make more sense than to having workers having the burden of proof without the medical and financial ability to provide evidence to support their claims. 

Gerry Miller  

DOL Files Suit Against Benefits For Ill Hanford Workers; State Considers Amending Law



Hanford, WA (WorkersCompensation.com) – The federal government is worried that a new law in Washington state would give workers at the Hanford nuclear reservation easier access to workers’ compensation than other employees in that state. Meanwhile, state legislators are contemplating an amendment to the law that could increase the number of workers eligible for benefits.

Last week, the Department of Justice laid out its case against the new state law, claiming that the 100,000 past and current workers at the nuclear weapons facility would have an easier time getting workers’ compensation, at a much greater cost to tax payers.

As previously reported in WorkersCompensation.com, the law, passed last year, makes the presumption that exposure to chemicals at Hanford caused illnesses in the employees there, up to and including cancer.

Hanford is considered one of the “most radioactive waste sites” in America covering 200 square miles of contaminated groundwater and including 53 million gallons of liquid waste, 25 million cubic feet of solid waste. The site was a facility for enriching plutonium during World War II and the Cold War, and is where more than 60,000 nuclear warheads were made. The facility closed in 1987.

The Department of Energy, which is responsible for the country’s nuclear facilities, is a self-insured entity and has contracts to cover six current contractors and seven subcontractors that employ workers at Hanford, as well as 61 former Hanford contractors and subcontractors, with workers’ compensation benefits.

The new law would increase the illnesses covered and could be so loosely defined that workers could be compensated for common illnesses, according to the federal government’s documents. The new law could be interpreted to cover illnesses like asthma, chronic bronchitis, Parkinson‘s disease, Alzheimer’s disease and strokes, the DOJ said.

For other workers in the state, a clear link between the illness and their work would have to be shown. Under the new law, work at the nuclear facility would be presumed to be the cause.

Also, the new law allows for claims that had been denied to be reviewed under the new and easier requirements.

The government did not object as the state legislature debated the law which went into effect in June 2018. But in December, the federal government asked a judge to overturn the law as a violation of the Supremacy Clause of the US Constitution – which prohibits states from regulating the federal government.

In its initial suit, the federal government also said the law puts the burden on the federal government to prove that the workers’ illnesses were NOT caused by their work at Hanford, and that the law discriminates against the federal government.

In filings on Friday, March 1, the federal government asked Judge Stanley Bastian to rule on the case prior to its going to trial. The state of Washington is expected to answer the suit and ask that the federal government’s claim be dismissed by March 22.

According to the lawsuit, prior to the law taking effect, the DOE received 5 or fewer claims per year for cancer, court documents said. Since the law took effect, the DOE has received 50 claims for cancer. The department said that 92 claims had been filed under the new law, and most of them would have been denied prior to the new law.

Penser North America, the administrator for the DOE’s workers’ compensation program, said it had referred 41 claims to the state’s Department of Labor and Industries. Of those, 31 were recommended for approval, while 10 were not. Of those 10, eight were approved by the DLI, Penser said in the court filings.

While the DOE can object to those cases, the level of proof to deny them was high, Penser said in court documents.

“DOE must obtain expert witnesses at a significant cost, and must search for, review and organize large volumes of medical documentation,” it said.

Advocates for nuclear workers said the government’s case may not apply

“The suggestion that the supremacy clause of the constitution should prevent the implementation of this program is certainly suspect as the federal government has chosen to employ private contractors at these facilities,” said R. Hugh Stephens, an attorney who specializes in workers’ compensation for former federal employees who worked at nuclear facilities. “These are not typically federal employees and federal employees are not qualified for this compensation, if I am not mistaken, but must apply for federal workers compensation through the US Department of Labor (DOL).”

Stephens also told WorkersCompensation.com he objected to the government’s burden of proof.

“While the government would suggest that its burden is too great, it is useful to remember that many of these workers were exposed to radiation and other hazardous substances without their knowledge or consent,” he said. “This is an ultra-hazardous activity to which different rules should apply. Most of these workers did not become injured after lifting a heavy box or lose their hearing because they were posted near a loud machine. These workers cannot breath because of exposure to beryllium (a dangerous metal), or have cancer caused by exposure to radiation, and those with hearing loss suffer from nerve damage due to exposure to toxic solvents. The shoe is certainly now on the other foot as workers used to struggle to prove their claims in the face of records lost by the DOE or its contractors.”

According to the DOE, if the judge ruled in its favor, sick workers and their survivors would be covered by the Energy Employees Occupational Illness Compensation Act (EEOICA) program administered by the US Department of Labor.

Stephens, whose clients fight sometimes years to get compensation through the program, said the government’s record should discourage a judge from ruling in the DOE’s favor.

“There is a long history of the DOE opposing rightful claims by hard working residents of Washington State. These issues are described at length in the EEOICA. While the Washington State legislature appears to have the upper hand in this dispute with Washington, DC, the federal government and its history of poor treatment of these workers severely undermine its position in this dispute.”

Amendment Considered

Legislation being considered in the state legislature would modify the law. “The presumption established for cancer is amended to also apply to any active or former USDOE Hanford site worker who has cancer that develops or manifests itself and who was not given a qualifying medical examination because a qualifying medical examination was not required,” stated an analysis of HB 1490. The bill was passed in the state House and is now before the Senate Labor & Commerce Committee.

Feb 282019
 

By Gerry

Here we go again. This time it is 911 Operators who will be receiving presumptive status. This idea in politicians heads that they have to keep adding more and more occupational groups to the list questions the mentality of people. Simply give all workers presumptive status and let WCB  prove contrary which is the way that workers compensation was first meant to be since 1908. It must be remembered that in the U.S. they adjudicate claims on an adversarial system as opposed in Canada which is supposed to be an inquiry system with the burden of proof on the “Board” both for and against but at some time over the course of a hundred years, the inquiry system become an adversarial system which placed the burden of proof on workers with WCB representing the interests of employers during the appeals process and on Judicial Review.

Few states include 911 operators in first responder presumption cover

Angela ChildersFebruary 27, 2019  REPRINTS

RegulationWorkers Comp CoverageWorkplace Safety

PTSD 911 first responders

A bill adopted by the Idaho Senate on Feb. 12 to allow post-traumatic stress disorder benefits for first responders under the state’s workers compensation system is drawing on a trend in presumption laws related to mental injuries, but is fairly unique because the proposed legislation includes 911 operators among those who can seek PTSD coverage.

Idaho’s move is in line with the more than 12 states with laws in the books for first responders who are diagnosed with PTSD, and is in line with the emerging trend of presumption laws that do not require that a mental injury be associated with one event. Minnesota, Florida and Washington passed such laws for first responders in 2018.

Most laws provide details on who is eligible — naming “peace officers,” “law enforcement officers” or “firefighters.” Less common is the inclusion of those who answer emergency calls, such as 911 dispatchers. Minnesota’s new law lists “public safety dispatcher” among those eligible while Florida’s law is less specific, requiring that the employees “witness” tragedy and later lists “hearing” an event —but never names dispatchers.

Brian Fontes, the CEO of Alexandria, Virginia-based National Emergency Number Association, said he applauds legislation that includes 911 dispatchers because it “reflects the reality of the job. These folks, like police and fire, are subject to the effects of PTSD and by having it in the law, it allows them, in essence, the same remedies,” he said.

A Northern Illinois University study published in the Journal of Traumatic Stress in 2012 found that the rate of PTSD among 800 surveyed emergency telecommunicators was between 18% and 24%.

Dr. Joel Fay, a retired police officer and psychologist and co-founder of the First Responders Support Network in Napa County, California, said he doesn’t see why 911 dispatchers would be excluded from this type of legislation.

“While their lives might not specifically be in danger … they have a great deal of exposure to trauma,” he said. “Most of it might be vicarious, but some is really direct when you hear what’s going on and can’t do anything to stop it.”

May 142018
 

By Gerald

Enacting legislation providing presumptive status for firefighters, paramedics, police has opened up a Pandora’s Box by the idiots who enacted legislation and regulations which has resulted in providing differential treatment to these people without any scientific evidence to  support the legislation which presumes only firefighters will get cancer when exposed to carcinogens such as benzene despite the fact that any one exposed to a carcinogen in the work place on a balance of probabilities has a greater risk than the general public who are comprised mainly of children and numerous seniors who are not in the work force which is the reference epidemiologists use when providing statistical information. Click on the following link for a follow up story: http://www.standard-freeholder.com/2018/05/13/long-sault-man-wins-landmark-case

The following editorial also questions the validity and mentality of the elected clowns who provide preferential treatment to public servants whose jobs are far less dangerous then other jobs when it concerns heart attacks, PTSD, cancer than firefighters, police, paramedics, corrections officers and yet Nurses jobs based on factual evidence is far more apt to cause PTSD than a firefighter, policeman, prison guards, paramedic. Click on the following link: http://www.timescolonist.com/opinion/editorials/editorial-ptsd-rules-need-more-work-1.23300119

Questionably, how and when did the burden of proof shift from the “Board” to the worker when according to the WCA, no one other than the “Board” has any jurisdiction to investigate claims which in all cases are based on causation. According to Justice Bruce Millar in a Judicial Review that involved myself and my client, the workers compensation system is based on an inquiry system and workers have no burden of proof whatsoever. He was only echoing Dr. Terrance Ison’s expert explanation of how the system is supposed to work when adjudicating claims. In the present situation involving claims, workers are portrayed as the plaintiff in a civil suit against WCB and the Appeals Commission who represent the employer as the defendant who rarely if ever gets involved in a claim rather than a victim of an accident that more than likely was caused by the employer who cannot be sued for gross negligence or the Crown making no attempt to charge the employer under the criminal code and facing a lengthy term in prison.

Looking back on Bill 30, the whole thing is a farce and is nothing more than window dressing to appear to make the NDP look better than the previous Conservative Government who did more damage to workers than assist them to receive justice from a corrupt and uncaring workers compensation board whose only interest is protecting the accident fund to keep premiums lower than other provinces for economic reasons.