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Comp prevents birth defects suit for worker’s son

in Texas, the exclusivity provision bars a suit claiming that injuries to a worker’s child were caused by the worker’s exposure to toxic substances in the workplace.

Case name: Peters v. Texas Instruments Inc., No. 10C-06-043 JRJ (Del. Super. Ct. 09/30/11).

Ruling: Applying Texas law, the Delaware Superior Court dismissed a worker’s suit alleging that his exposure to toxic substances at work injured his reproductive system, causing birth defects to his son.

What it means: In Texas, the exclusivity provision bars a suit claiming that injuries to a worker’s child were caused by the worker’s exposure to toxic substances in the workplace.

Summary: A worker sued his employer, alleging that his son was born with birth defects due to his workplace exposure to hazardous and toxic substances that injured his reproductive system. The son was born with retinoblastoma and had to have his eye removed. The worker claimed that no ventilation system was used to protect workers from inhalation or skin exposure to chemicals and that the protective gear he wore provided no protection. He also claimed that the employer failed to warn workers of the health threats associated with exposure to the chemicals.

The parties agreed that Texas law applied to the suit. The Delaware Superior Court held that the exclusive remedy of workers’ compensation barred the suit.

The worker argued that his son was not an employee of the employer, so his claims could not be barred by the exclusive remedy of workers’ compensation. The court agreed with the employer’s assertions that the worker’s alleged workplace exposure was a compensable injury and that his failure to file a workers’ compensation claim did not prevent the exclusivity bar from applying to the suit.

The court said the son was not directly exposed to harm in the worker’s workplace. The court explained that the employer’s alleged negligence did not cause harm to the son that was separate and apart from the harm caused by the worker. The viability of the son’s claim depended on the validity of the worker’s claim. Therefore, the suit was derivative of the worker’s claim and the exclusivity provision applied.

Read more at the WorkersComp Forum homepage.

 

MTA was worried about rising injury rate on LIRR tunnel project before falling concrete hit a worker

Officials had concerns about the increasing number of injuries on a Long Island Rail Road tunnel construction before a chunk of falling concrete killed a sandhog.

Sandhogs are urban miners who brave the dark, damp conditions far beneath New York City to build tunnels for sewer, water and transportation. Historically, tunnel excavation and construction has been a dangerous job for sandhogs. In recent years, advances in machinery and regulatory oversight have made the job safer.

120 feet below Manhattan on Thursday night, 26-year-old sandhog Michael O’Brien died as he worked on the Metropolitan Transit Authority’s East Side Access project that will connect the Long Island Rail Road’s (LIRR) Main and Port Washington lines in Queens to a new LIRR terminal beneath Grand Central Terminal in Manhattan.

According to The New York Times, a piece of sprayed-on concrete from the ceiling of the tunnel broke off, falling and striking O’Brien as he worked below.

On the job only three weeks, O’Brien was a member of the NYC Sandhogs Local 147 and worked alongside his father in the tunnel. His father Robert O’Brien stood just feet away when the accident occurred and afterwards performed CPR in a desperate attempt to save his son, reports The New York Daily News.

Before O’Brien’s death, officials in the MTA were concerned about the rise of worker injuries. MTA data shows that injuries rose from 2.0 per 200,000 hours worked in January to 2.8 in September. The New York Post reports that President of MTA Capital Construction Michael Horodniceanu told a meeting of the Long Island Rail Road three days before O’Brien’s death, “We are looking at it very carefully.”

Brooklyn cyclists continue to rip through Prospect Park at unsafe speeds despite crackdown

Bike riders and pedestrians in Prospect Park. Daily News reporter used radar to check speed of riders which was between 7-29 mph. The fastest was on the down hill slope. Pedestrians have been hit by cyclists and seriously injured.

Two women were nearly killed in collisions with bicyclists in Prospect Park in the last six months — but that hasn’t slowed down riders, the Daily News has found.

A reporter with a radar gun clocked bikers going as fast as 31 mph — even through a red light at a crosswalk — on the often-crowded drive that loops the Brooklyn park.

The speed limit for cars and bikes in the park is 25 mph, although signs at park entrances incorrectly state that it’s 15 mph.

During a four-hour period last weekend, eight out of about 50 bikers spotted by The News surpassed the higher speed limit. Nearly all ran red lights, though some slowed down.

The NYPD has ticketed just 22 cyclists in the park all year. Most were riding the wrong way; five were cited for “reckless operation.”

After inquiries from The News last week, a team of cops and park police officers on Saturday set up a barricade inside the park and handed cyclists documents outlining the rules. No tickets were issued, sources said.

Those who use the park for pursuits that don’t involve two wheels say that many bicyclists are Spandex-wearing speed demons who travel in packs and treat the drive like a velodrome, intimidating or berating those on foot.

“Move from here! Move from here!” one cyclist clad in racing gear yelled at a reporter who was not even in a bike-only lane.

“The park is a danger zone because of these cyclists,” Jennie Modica, a retired psychologist from Windsor Terrace said as she tried to get across the drive after a power walk. “The cyclists need to control themselves.”

The conflict isn’t limited to Prospect Park.

“They think they own the world,” Roberto Linares of Midwood, Brooklyn, said of cyclists while watching his 3-year-old son ride a tricycle in Central Park. “They’re overconfident.”

A task force to tackle the competition for road space in Prospect Park was launched in June after Brooklyn actress Dana Jacks, 37, was hit by a bicyclist and spent almost a month in the hospital.

Her husband, Forrest Cicogni, said that while much of the debate about safety has revolved around cars in the park, “the culture of racing” is just as big a threat.

“The cars are stopping at stoplights,” he said. “The cyclists are not.”

The couple has sued the city and the cyclist who slammed into her. The biker, who could not be reached for comment, countersued Jacks, claiming she was in the wrong place.

Jacks is recovering from her brain injury. Park volunteer Linda Cohen, 55, however, is still in intensive care, but out of a coma, after a collision with a bicyclist on Nov. 3.

Her close friend, Nancy Moccaldi, said Cohen used to walk 5 miles in the park every day.

“She knows it intimately. She knows when to be safe, when to cross, how to take care of herself. That’s what makes it so shocking,” said Moccaldi.

She would not talk about the extent of Cohen‘s injuries, but said the urban planner “doesn’t understand what happened.”

There have been two more accidents since the crash that injured Cohen — one involvedinvolving a child. The injuries in both cases were minor.

In a statement, the Parks Department said it’s working with other agencies to “implement new safety strategies and enforce bike regulations.”

Orange barrels were put down to narrow a lane and slow speeders. Crosswalks were painted with high-visibility paint, but that doesn’t guarantee cyclists will respect them.

“There’s no silver bullet,” admitted Prospect Park Alliance spokesman Paul Nelson.

The confusing signs that say the speed limit is 15 mph — when the real limit, as set by the Transportation Department, is 25 mph — will be taken down.

The NYPD is also planning “roving enforcement” actions against cyclists who don’t yield to pedestrians, park officials said.

At cyclist hangouts near the park, some riders complained they’re being demonized.

“Pedestrians just go wherever,” said Birgit Reeves, 38, a member of the Finkraft cycling team who trains on a $5,000 Italian bike.

“You don’t see cyclists going into the pedestrian lane,” added the Sunset Park chemist.

Indeed, last weekend, some runners and walkers veered from their designated lane, apparently thinking that when the drive is closed to cars, they can go free-range.

Ronald Goode, 32, strolling with his wife and 6-year-old, admitted he did not know bicyclists were allowed on the main road.

“They still don’t have the right to run into you,” he said, shooting nasty looks at passing cyclists. “Pedestrians have the right of way, even with cars.”

Geoffrey Croft, president of the watchdog group NYC Park Advocates, said “education backed by enforcement is key.”

“There is an attitude with some cyclists that they own the road,” Croft said. “This culture must be changed.”

With Katie Nelson

How practices can make room for mobility

More than 40 million Americans have a disability, and about 24% of them use mobility aids. Experts offer tips to improve care for these patients.

By Christine S. Moyer, amednews staff. Posted Nov. 28, 2011.

Lisa I. Iezzoni, MD, MSc, has not been weighed in nearly two decades. The last measurement was taken when she still could stand — before multiple sclerosis made her rely on a wheelchair.

Similar to those in many doctor’s offices, the scale where Dr. Iezzoni sees her primary care physician is not wheelchair-accessible.

As a patient and an expert on disabilities, she understands the challenges that people with mobility impairments face when trying to access medical care. She said each obstacle, no matter how small, can send patients with mobility limitations a hurtful message. “It tells people with disabilities, ‘You are not welcome here. I do not give the same quality of care to people with disabilities,’ ” said Dr. Iezzoni, a professor of medicine at Harvard Medical School.

More than 40 million Americans are living with a disability, according to an Institute of Medicine report on disability in the U.S., published in 2007. Other agencies, such as the U.S. Census Bureau, estimate the figure to be as high as 54 million. The disparity is due, in part, to varying definitions of disability and limited research on this population, experts say.

Among those with an impairment, about 13 million people 15 and older have a mobility limitation that necessitates the use of adaptive equipment such as crutches, a walker or wheelchair, according to Census Bureau data.

The prevalence of all disabilities is expected to grow substantially in the next 30 years, as baby boomers age and people continue to live longer, the IOM said. Also expected to contribute to the uptick are increases in childhood health conditions such as asthma and obesity, which can cause complications later in life.

As the number of patients with impairments grows, so, too, will primary care physicians’ role in treating these patients, largely because preventive health care is critical for this population, disability specialists say.

People with an impairment are more likely than others to report being in poor health, to be overweight or obese, to have chronic conditions and to participate in high-risk behaviors, such as smoking, according to the Centers for Disease Control and Prevention. Their sedentary lifestyle also increases the risk of developing chronic ailments, particularly in patients with mobility limitations.

Yet data show that people with a disability are less likely to get the preventive care they need — such as information about smoking cessation and safe sex — than other patients.

Women with movement difficulty have lower rates of mammography and Pap smears compared with other females, said a report written by Dr. Iezzoni in the October Health Affairs.

“Clinically, it doesn’t make sense. These patients have so many risk factors” for health conditions, said Dr. Iezzoni, director of the Mongan Institute for Health Policy at Massachusetts General Hospital in Boston.

There is a lack of training for primary care physicians in how to care for patients with mobility disabilities and insufficient time to manage their health issues properly, said Lex Frieden, a professor of health informatics and physical medicine and rehabilitation at the University of Texas Health Science Center. Frieden, who uses a wheelchair because of a spinal cord injury, helped write the Americans with Disabilities Act, which was signed into law in 1990 and protects people with physical or mental disabilities from discrimination.

Contributing to the health care disparity of patients with mobility limitations is the high cost of equipment needed to accommodate them, doctors’ concern about insufficient payment for time spent treating these patients and, in some instances, physician bias, Frieden said.

He said most doctors apply the same standard of care to patients who are disabled. But, he added, “I’ve heard of cases where people with disabilities are not offered preventive treatment simply because of the doctor’s assumption that they’re already disabled, and being more disabled is likely to occur through nature and aging.

“I hate to believe that it happens very often, but these are the kinds of things we’re concerned about.”

Unmet health needs

Though patients with disabilities largely are satisfied with their medical care, they report higher levels of unmet health needs than people without an impairment, according to a study of 5,183 U.S. adults published in Disability and Health Journal in 2008. The adults participated in the Joint Canada/United States Survey of Health between November 2002 and June 2003.

Thirty percent of insured participants with a severe disability reported having unmet health care needs, compared with 8% of people without an impairment, the study showed. Severe disability was defined as having one or more functional limitations and restrictions in daily activities or being unable to work.

Discontent was higher for individuals without health insurance, according to the study. Among uninsured patients with a severe disability, nearly three in four had unmet health care needs. But only one in four uninsured patients with no disabilities reported unmet health needs.

Many people with a disability have public health insurance, such as Medicaid, or no coverage at all, because they tend to have a lower income than other individuals, said Lisa Thornton, MD, a pediatric rehabilitation specialist in Chicago.

The 2010 U.S. Census shows that more than one in four people with a severe disability fell below the poverty rate, compared with 9% of those without impairment. That factor adds to the challenges primary care physicians face in caring for this population, Dr. Thornton said.

When doctors search for a nearby specialist to help manage a patient’s care, they often can’t find one who will accept people with public insurance or no coverage, she said. Many times, patients either travel several hours to see a specialist who will accept them, or the primary care physician takes on the full responsibility of treatment.

30% of insured Americans with severe disabilities have unmet health needs.

“The risks are that patients are not getting optimal health care,” said Dr. Thornton, medical director of pediatric and adolescent rehabilitation at LaRabida Children’s Hospital in Chicago.

The consequences of that for children can be permanent deformities, said Ruby Roy, MD, a chronic disease pediatrician at LaRabida. She also co-directs the hospital’s Cerebral Palsy Medical Home Pilot Project with Dr. Thornton.

She said there often is an opportunity for children with mobility impairment to improve if physicians and disability specialists address their medical conditions properly. For children with cerebral palsy, regular therapy and primary care can help prevent complications such as chronic pain, contractures and dislocations.

“But if doctors treat them as if they’re immobile, they will become an immobile adult,” Dr. Roy said.

Improving care

To help primary care physicians better care for patients with impairment, Dr. Thornton recommends that they learn about the disabilities they see in their practices. She also recommends that doctors reserve two time slots for office visits involving a patient with disability so they have sufficient time to address the individual’s health issues.

Physicians should talk to patients who have mobility impairment about alcohol and tobacco use and the importance of safe sexual practices and cancer screening, said Charles Drum, PhD, director of the Institute on Disability at the University of New Hampshire. The fact that some doctors do not “talk about preventive services [with these patients] is a significant concern,” he said.

Doctors can make small physical modifications to their offices to help patients with mobility limitations, said Dr. Iezzoni, of Harvard. She suggested starting in the waiting room, where physicians should make sure there is space for wheelchairs and a place at the registration counter for patients who are unable to stand.

Accessing a bathroom in practices that are in older buildings is a common challenge for people with mobility issues, said Frieden of the University of Texas. In fact, he cannot use the restroom in his doctor’s office, because the stall doors are not wide enough for his wheelchair.

To resolve the issue, he recommends that physicians post signs in waiting rooms to direct patients to the nearest bathroom on that floor that can accommodate them. He also encourages doctors to use the practice’s largest exam room for people with mobility limitations so they can move comfortably.

“Physicians need to understand that the Americans with Disabilities Act includes a provision of reasonable accommodation. An old clinical building with small spaces does not need to be remodeled, but there should be available a space large enough” to comfortably fit a patient who uses mobility aids, Frieden said.

Dr. Iezzoni recommends that all practices have at least one power exam table that can be lowered so that patients with mobility limitations can ease themselves onto the table rather than having to be lifted by medical staff or examined in their wheelchair.

She said such tables are expensive (some cost more than $9,000), but tax credits and deductions are available to offset expenses incurred when complying with the Americans with Disabilities Act. If physicians choose not to purchase the equipment, Dr. Thornton suggests that they teach staff members the proper way to lift a person with a mobility impairment onto an exam table.

Wheelchair accessible scales also are available. In offices that don’t have one, physicians can refer patients to a nearby disability specialist to be weighed.

“The medical needs of people with a disability are complex,” Dr. Thornton said, “and for primary care physicians, a failure to be able to meet all those needs is not something they should feel inadequate about.”

But doctors should give the same level of care to all patients, she added. Even if that takes a little more time.

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 ADDITIONAL INFORMATION:

Caring for patients with mobility disabilities

More than 40 million Americans have a disability. Among these people, about 24% use a wheelchair or a different mobility aid. Here are the federal government’s responses to commonly asked questions about caring for patients with a mobility impairment.

Question: Is it OK to examine a patient in his or her wheelchair?

Answer: Generally, no. An exam in a wheelchair usually is less thorough than one on an exam table. A good option is to use an adjustable exam table that lowers to the level of a wheelchair.

Q: Can I tell a patient that I cannot treat him or her because I don’t have accessible medical equipment?

A: Generally, no. You cannot deny service to a patient because he or she has a disability.

Q: Must every exam room have an accessible exam table?

A: Probably not. The number of accessible exam tables needed depends on the size of the practice and the patient population.

Q: Is it OK to tell a patient with a disability to bring along someone who can help at the exam?

A: No. A patient with a disability can come to an appointment alone, and the physician must provide reasonable assistance that enables the person to get appropriate medical care.

Q: If the patient brings an assistant, do I talk to the patient or the companion?

A: Always address the patient directly. Before beginning the examination or health discussion, the physician should ask the patient if he or she wants the assistant to remain in the room.

Q: Are there tax breaks for making accessibility changes to my medical office?

A: Yes. Federal tax credits and deductions are available to private businesses to offset expenses incurred when complying with the Americans with Disabilities Act. Information about the tax credits is online (www.irs.gov/pub/irs-pdf/f8826.pdf). Information about the tax deductions also is online (www.irs.gov/publications/p535/index.html).

Source: “Americans with Disabilities Act: Access to Medical Care for Individuals with Mobility Disabilities,” U.S. Dept. of Justice, July 2010 (www.ada.gov/medcare_mobility_ta/medcare_ta.htm)

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Making disabled patients feel welcome

People with a disability are more likely to be overweight, smoke cigarettes and have chronic conditions than those without an impairment, according to the Centers for Disease Control and Prevention. Data also show that people with a disability are less likely than other patients to get the preventive care they need. Disability experts offer tips to help physicians better care for patients with an impairment and ensure that they feel welcome in their doctor’s practice.

Do:

  • Ask “How can I assist you?” when seeing a patient who needs help getting onto an exam table or other equipment and getting situated.
  • Use terms such as “disability” and “functional impairment” when discussing the patient’s limitations.
  • Learn about the patient’s lifestyle.

Don’t:

  • Make grand prognoses for children with mobility limitation, such as, “He or she will never walk.”
  • Call people who have a mobility disability “handicapped.”
  • Use the phrase “wheelchair bound.”
  • Assume that all people who have a mobility disability have the same lifestyle and health issues.

Workers’ comp carriers ask for hike

After rocketing up the ranks of the states where workers’ compensation insurance costs the most, Connecticut’s rates could climb higher in 2012.

The National Council on Compensation Insurance Inc. (NCCI), which represents workers’ compensation carriers, petitioned to hike a key formula used to determine rates by 4.5 percent next year in Connecticut on average for standard policies; and 2.9 percent on rates assigned for employers in a high-risk pool that are unable to get coverage through regular channels.

Under Connecticut’s workers’ compensation laws, employees receive 75 percent of their after-tax wages while recovering from a work injury.

Connecticut employers spent $606 million on workers’ compensation premiums in 2010, 606, according to NCCI, up 2.7 percent from 2009 but otherwise the lowest amount since 2002.

Still, the state leapfrogged over several Northeast neighbors to claim the sixth slot in a biennial survey of workers’ compensation premium rates, published by the Oregon Department of Consumer and Business Services. Connecticut finished just ahead of New Jersey, Maine and Rhode Island on the survey, while New York ranked 13th.

In the Northeast, increases are not etched in stone despite overall upward trends in several key areas – Maine companies are set to see an average 3.2 percent drop in overall rates next year, and Vermont likewise reined in rates in 2010.

The Connecticut request comes as new data showed the first increase in at least seven years for workers’ compensation claims covering lost time following a workplace injury. That occurred despite a higher rate of unemployment, particularly in a few hazardous sectors like construction – and as the Connecticut Workers’ Compensation Commission reporting a 1.2 percent drop in workplace injuries and illnesses recorded in its databases for the fiscal year ending in June 2010, to just over 64,100 for the 12-month period.

And despite ongoing inflation for health insurance, which carriers blame on higher medical costs, the average medical costs covered by workers’ compensation in Connecticut dropped a second straight year, though still remain well above their levels from the first half of the last decade.

Of the four major industries detailed by NCCI, manufacturers would see the biggest increase on average at 6 percent in the loss-cost column, followed by contractors at 5.3 percent. Carriers would hike the formula 3.4 percent on goods and services companies and 3 percent on office workplaces.

Carriers would be allowed to apply increases between 23 percent and 26 percent for specific policyholders, as well as for a catchall miscellaneous category that would see an average 6.2 percent rise in its loss-cost formula.

That formula is driven by claims history, mostly from between 2008 and 2010, as well as medical costs, indemnity payments and other expenses.

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