Need Joint Replacement and on Medicare? Better Not Be Sick.

Having a lung ailment may make it more difficult to obtain coverage for joint replacement.

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

A new Medicare rule that took effect April 1, 2016 retools Medicare payments for hip and knee replacements.  Patients with serious medical conditions such as heart disease, obesity, diabetes, and lung ailments may not be able to find an orthopaedic surgeon willing to perform the joint replacement because hospitals face financial incentives to avoid patients with a high risk of complications. 

Hospitals will be given a “target price” for total joint replacements for the patient’s entire care from the hospital stay to outpatient rehabilitation through 90 days after discharge, according to a new rule from the Center for Medicare Services.  If the reimbursement is less than the target price, the hospital may receive an additional payment from Medicare as an incentive for good outcomes.  On the other hand, the hospital may be required to pay back part of their reimbursement that goes above the target.  The rule is intended to control costs on the $7 Billion Medicare spends for hospital care and for almost one-half million beneficiaries who receive a hip or knee replacement each year.  However, since Medicare will pay only one “bundled payment” for the patient’s entire care after total joint replacement surgery, the hospital will be accountable for the quality of care through the incentives and penalties.  The surgeon shares responsibility when a patient is re-admitted to the hospital and receives a “black mark” even when the re-admission has nothing to do with the joint replacement.  An unintended consequence of this payment model may be “cherry picking” of low risk patients.  Patients claiming a work-related connection to joint replacement surgery who have been denied by Medicare may face additional hurdles in obtaining their surgery. 

Stay tuned…

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Cutting Corners Costs Lives: Non-Union Work Sites Twice As Dangerous As Union Sites

This large inflatable rat is a common sight at protests of non-union worksites in New York City.

As an attorney who practices in the metropolitan area, I often find myself traveling into New York City. I am amazed at the amount of construction that I see; the cityscape is changing and evolving rapidly. This construction boom means more business, a steady paycheck for workers, and more money for the city and state. Unfortunately, with the rise in construction also comes a rise in safety violations, injuries, and fatalities.

The New York Committee for Occupational Safety and Health (NYCOSH) recently issued a report called Deadly Skyline regarding construction fatalities in New York State. A summary of their findings notes that from 2006 through the end of 2015, 464 construction workers died while on the job, with falls as the leading cause of death. When a fatality occurred, safety violations were inherent in more than 90 percent of the sites inspected by the Occupational Safety and Health Administration (OSHA). The report pointed out that non-union work sites had twice the safety violations of union sites, and in 2015, 74 percent of the fatalities occurred on non-union projects with the majority of the fatalities involving Latinos.       

It is painfully obvious that shortcuts and cost-saving measures result in injury and death. Many employers use misclassification as a means to save money. Misclassification occurs when an employee is labeled as an “independent contractor” so that a business owner doesn’t need to pay Workers’ Compensation insurance, Social Security, Medicare, or unemployment taxes. Some even resort to paying employees off the books as well in an effort to save money. This may not seem troublesome until you realize that this is a one-sided deal that really only benefits the employer. According to the NYCOSH report, misclassification of workers allows an employer to skirt the safe workplace requirement as OSHA does not cover independent contractors.

Employers must provide Workers’ Compensation insurance for their employees, and typically must notify their Workers’ Comp carrier as to the number of employees they have and the type of work they do. A risk analysis is performed and then employers are assigned a premium to pay in order to cover their workers in case of injuries. If injuries occur, premiums may be increased accordingly. Obviously employers in high-risk businesses must pay more for their premiums than those with employees involved in low-risk jobs. As injuries on misclassified workers do not add to an employer’s bottom line, there is less incentive to provide safety measures if it cuts into profits.

To make construction sites safe, NYCOSH recommends adequate education and training as well as legislation to punish those whose willful negligence causes a death. They also recommend passage of the NYS Elevator Safety bill that requires the licensing of persons engaged in the design, construction, operation, inspection, maintenance, alteration, and repair of elevators. It would also preserve Section 240 of the New York Labor Law, commonly referred to as the “scaffold law,” which governs the use of scaffolding and other devices for the use of employees. Weakening the Scaffold Law would shift safety responsibility from owners and general contractors who control the site, to workers who do not control the site and are in a subordinate position.

It is a true tragedy when someone is maimed or killed in an accident that could have been prevented. Not every employer engages in these tactics, and most workplaces are generally safe spaces for workers. However, even one death is too many. 

 

 

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.

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The Dangers of Working with Vibrating Tools

Today’s post comes from guest author Anthony L. Lucas, from The Jernigan Law Firm.

Vibration White Finger (VWF) or “Dead Finger,” now known as Hand-Arm Vibration Syndrome (HAVS), is a chronic, progressive disorder caused by regular and prolonged use of vibrating hand tools that can progress to loss of effective hand function and necrosis of the fingers. In its advanced stages, the obvious symptom is finger blanching (losing color). Other symptoms include numbness, pain, and tingling in the fingers, as well as a weakened grip.

It is estimated that as many as 50 percent of the estimated 2 million U.S. workers exposed to hand-arm vibration will develop HAVS. Some common industries and the tools associated with HAVS are listed below:

  • Agriculture & Forestry – Chainsaws
  • Automotive – Impact Wrenches, Riveting Guns
  • Construction – Jackhammers
  • Foundries – Chippers, Grinders
  • Metal Working – Buffers, Sanders
  • Mining – Jack-Leg Drills, Stoper Drills

The time between a worker’s first exposure to hand-arm vibration to the development of HAVS symptoms can range from a few months to several years. Prevention is critical because while the early stages of HAVS are usually reversible if vibration exposure is reduced or eliminated, treatment is usually ineffective after the fingers blanch. 

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NPR: Coffee Workers’ Concerns Brew Over Chemical’s Link To Lung Disease

Today’s post comes from guest author Kristen Wolf, from Causey Law Firm.

Heard on Morning Edition, April 15, 2016.

Step into Mike Moon’s Madison, Wis., coffee roasting plant and the aroma of beans — from Brazil to Laos — immediately washes over you.

Moon says he aims to run an efficient and safe plant — and that starts the minute beans spill out of the roaster. He points to a cooling can that is “designed to draw air from the room over the beans and exhausts that air out of the facility. So it is really grabbing a lot of all of the gases coming off the coffee,” he explains.

Why are these gases so worrisome? Because they contain a chemical called diacetyl — a natural byproduct of the coffee roasting process that, in large concentrations, can infiltrate the lungs and cause a severe form of lung disease.

You might remember hearing about diacetyl several years ago, when a synthetic version of the chemical, which is used to give a buttery flavor to certain snack foods, was implicated in causing severe lung problems among workers at a microwave popcorn facility.

Now it looks like that chemical could affect the coffee world as well. People at home grinding or brewing up a pot need not worry, but the chemical could pose a danger to people working in commercial coffee roasting plants.

Read the rest of the story here…

 

Photo credit: Nic Taylor Photography viaFoter.com / CC BY-NC-ND

 

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Tips on Your Workers’ Compensation Claim

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

I just returned from New Orleans where I made a presentation to about 150 workers’ compensation lawyers (both for workers and for employers) on “Case and Client Evaluation In Workers’ Compensation”.

Since many in the audience represented insurance companies and employers, I paid particular attention to their response to my presentation. As one would expect, their best chance to win a case on behalf of the employer and insurance carrier occurs when several items come into play:

  1. When there is no actual report of the injury. [Worker’s Tip: No matter how small the work injury, make sure it is reported in some fashion – cell phone, voice recording, or Accident Report and the worker keeps a copy (BEST).]
  2. Failure to report that a work injury occurred to the first treating practitioner (whether Emergency Room, employer-directed medical facility, hospital, or primary care physician). The single most difficult hurdle in a workers’ compensation claim involving a traumatic injury occurs when no report of the injury is found in the initial medical record.
  3. In “Occupational Exposure” cases, no discussion with the doctor about work duties or prior incidents. (In Wisconsin, a worker can recover for workers’ compensation in one of two ways: 
    1. A traumatic injury where a single incident has caused the disability (lifting a box, falling, etc.)
    2. Occupational Exposure, where the wear and tear of a worker’s job causes the disability over time. In this latter category, workers routinely do not indicate with any kind of specificity the type of work they perform when they see the doctor.

These three tips can help us as workers’ compensation lawyers win claims, more so than any “Clarence Darrow” court room techniques or strategies.

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Medical Records Important for Workers’ Compensation Claim

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

Medical records are necessary to substantiate an injured worker’s claim. At a minimum, injured workers and attorneys need the records from doctors and hospitals to show the diagnoses the workers have and the treatment that they have received. This includes records from physical therapy, MRI, pain management, orthopedic, etc.  

Every injured worker has a right to receive her or his medical records, and by law should be able to obtain those records promptly at a fair cost.

Federal law is clear: a patient has the “right to obtain from [their health care providers] a copy of [their medical records] in an electronic format,” 42 USC § 17935(e)(1), and that health care providers may bill “only the cost of … copying, including the cost of supplies for and labor of copying,” 45 CFR 164.524(c)(4)(i). This is all part of the Health Information Technology for Economic and Clinical Health Act (HITECH Act).

Rehm, Bennett & Moore employs the HITECH Act on behalf of injured clients to represent them in an efficient and cost-effective manner.

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Countertop Workers Face Silicosis Risk from Engineered Stone Countertops

Today’s post comes from guest author Leonard Jernigan, from The Jernigan Law Firm.

Engineered stone countertops, a popular fixture in today’s homes, pose a health risk to workers who cut and finish them. The danger stems from the material the countertops are made from, processed quartz, which contains silica levels up to 90 percent. Silica is linked to a debilitating and potentially deadly lung disease known as silicosis, as well as lung cancer and kidney disease.

While the countertops do not pose a risk to consumers in their homes, they do pose a risk to the workers who cut and finish them before they are installed. When the countertops are cut, silica particles are released into the air, which when breathed in by the workers can start processes leading to silicosis. Manufacturers of the engineered stone countertops assert that worker hazards can be reduced through the use of protective respirators and equipment designed to trap silica dust. Despite this assertion, many safety precautions taken by employers are often inadequate.

The first documented case of silicosis among countertop workers in the United States was reported two years ago. In countries such as Israel and Spain, where engineered stone products gained their popularity, many more countertop workers have been diagnosed with silicosis and have had to undergo lung transplants. The danger of silicosis in the construction industry led OSHA to recently issue new rules requiring construction workers’ silica exposure to be reduced by 80 percent beginning on June 23, 2017.

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With Beautiful Snow Comes Dangerous Conditions

The New York metropolitan area recently got its first significant snow of the season and while it is not unusual to see snow in January, it is significant as it was part of a system that impacted much of the country. Winter Storm Helena started out pounding the western portion of the United States before heading  south and barreling up the east coast. There were a number of fatalities and injuries as a result of this intense storm.

Locally, some areas of Queens and Long Island received up to a foot of snow. While the snow can be beautiful and peaceful when it is falling, it cannot stay on the streets and on the sidewalks once it stops.  Cities, towns, and other municipalities are responsible for snow removal in public areas and roadways, but it is up to home- and business-owners to make sure it is removed from the sidewalks in front of their properties. That means getting out the shovels or snow blowers.  

Unfortunately for many people, this activity can result in serious injury. In 2011, the American Journal of Emergency Medicine published the results of a study that found on average 11,000 people were hospitalized per year as a result of injuries caused by shoveling snow. The most common injuries are back injures caused by lifting the heavy snow, heart issues caused by overexertion, and slip-and-fall injuries. Shoveling snow can be very strenuous depending upon the amount and type of snow. Many people try to shovel as quickly as possible in order to get out of the cold. Unfortunately, this attempt at shortcutting can have serious consequences.

According to experts, you can alleviate some of the stress on your back by using a good shovel and picking up smaller loads of snow. Use your legs instead of your back when lifting, and avoid twisting at your waist to reduce the chance of an injury. Shovel straight ahead to minimize excessive movements, and don’t throw the snow over your shoulder unless you are training for a fitness magazine cover. Take frequent breaks to hydrate and to get warm. Slipping and falling on ice and snow can result in broken bones and other serious injuries. It goes without saying that slip-resistant footwear is a necessity.

Shoveling snow is an aerobic activity that raises your heart rate. Combined with the cold temperatures, it can lead to deadly heart problems. While only 7% of snow injuries were related to heart problems, the majority of the fatalities were heart-related. If you have a heart condition, heed your doctor’s advice regarding strenuous activity. Death can occur to those tasked with the responsibility of shoveling snow while on the job as well. Some employees are directed to remove snow not just on the sidewalks, but on roofs and other structures. In 2012, the Occupational Health and Safety Administration (OSHA) issued a hazard alert as a result of 16 preventable workplace fatalities that occurred in a span of 10 years. The majority of these deaths were as a result of falls from heights.   

Needless to say, precautions need to be taken for both home owners as well as workers. However, if you are on the job, there are steps you need to take if you are the unfortunate victim of an injury. First, seek immediate medical treatment. Make sure you notify your employer within 30 days and file a claim with the New York State Worker’s Compensation board within two years. Your employer has Workers’ Compensation insurance for wage replacement and medical treatment so you should not pay anything either out of pocket or through your own private insurance. The winter season can be fun but it can also be dangerous for you and your friends and co-workers. Help out your elderly neighbor, invest in a good shovel, wear appropriate clothing, and be careful out there. Snow is beautiful, but it can also be dangerous.

 

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.

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