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October 01, 1999 9:55 AM

The battlefield for the assault on state workers’ compensation programs has shifted from the state capitals to the halls of Congress. Industry and their insurers are now shifting gears from an attempt at tinkering with individual systems to a more generalized approach, where assets and energies can be concentrated uniformly through Federal modification of globalized issues that will place into jeopardy the rights of workers and significantly hamper the efforts of their attorneys in seeking recovery under state workers’ compensation systems. 

Three specific areas appear to be targeted at this time which include: the privacy of medical records of injured workers; Federal ergonomic standards; and the establishment of a national system of compensation for the victims of asbestos disease. In 1996, Congress passed the Health Insurance Portability and Accountability Act (PL104-191). That Act mandated that Congress was to enact legislation governing the privacy of medical records by August 21, 1999. 

If Congress failed to act by that date, then the Department of Health and Human Services (HHS) would be given six months to implement its own regulations concerning the privacy of medical records. Unfortunately, the Senate became deadlocked on the issue this summer and was unable to release any bill from a Senate committee concerning the privacy of any medical records. Likewise, the House of Representatives, concerned with the privacy of electronic transfer of commercial records, was unable to modify its legislation to encompass the privacy of medical records, and HR10 was passed without embracing that issue. 

Subsequently, the Department of Health and Human Services Department of Health and Human Services was directed by the President to commence the drafting of regulations to protect the privacy of medical records. Donna Shalayla, Secretary of HHS, recognizing the limited powers of that agency to meet the broad mandate set forth by Congress and the President, has again requested Congressional intervention on this issue. 

Insurance and employer advocates have lobbied during the summer, with great success, to exclude workers’ compensation records from any of the draft legislation concerning privacy. In the background, there are strong and powerful economic interests at stake for those companies that may reap pecuniary gain from the sale and distribution of records as an ongoing business. 

On the other hand, the AFL-CIO has taken up the gauntlet and has expressed strong concern that the unrestricted use and dissemination of medical records may prejudice employees in such diverse areas as promotions, credit advancement, and overall discrimination in the workplace not only against themselves but also against their families. Workers’ compensation attorneys are greatly concerned, since the threat of the acquisition and use of these records outside the workers’ compensation forum would potentially act as a penalty for filing a workers’ compensation claim and would discourage claimants from seeking workers’ compensation benefits in a formal setting. 

For over eight years the Occupational Safety & Health Administration has attempted to establish an ergonomic standard for workers throughout the United States that would reduce injuries caused by the performance of repetitive tasks under improper working conditions. It is estimated that there are some 647,000 musculoskeletal disorders that result in lost time at present, and if OSHA standards concerning ergonomics are not implemented, another one million cases could be reported. Employers have lobbied the Small Business Administration to report the study that would demonstrate that the proposed OSHA standards would create economic hardship on small employers. 

Republicans have been successful in blocking OSHA from implementing the ergonomics standards since 1985, and last year required the National Academy of Sciences to conduct an 18-month study on the issue to further delay implementation. During the summer, employers convinced the House to pass legislation (HR987) that would prevent OSHA from issuing ergonomic rules until the National Academy of Sciences (NAS) actually completes its study. The Senate, however, rejected the effort that would have delayed implementation of any standard, regulation or guideline regarding ergonomics until September 30, 2000. Workers’ Compensation advocates and organized labor worked relentlessly during the summer and early fall and successfully prevented the delay of these standards. Repetitive stress disorders amount to a significant portion of the occupational disease claims now presented before workers’ compensation forums throughout the United States. The standards proposed by OSHA recognize the medical conditions caused by repetitive stress and require that injured employees receive medical care and removal from the damaging occupational environment. 

Finally, a disgruntled asbestos manufacturing corporation, which has exhausted its insurance assets, has attempted to establish a federalized program for the payment of compensation benefits to asbestos victims in the United States. And, as a vicious attack upon personal injury lawyers, the corporation has offered a legislative package to Congress, supported by a very active lobbying campaign. The proposed legislation would establish significant hurdles for injured workers to overcome in order to enter a federalized program which would remove the adjudication of these claims from the adversarial civil justice system. 

The proponents of this draconian legislation have convinced the Chairmen of both the House and Senate Judiciary Committees to sponsor and introduce legislation and to go forward with legislative hearings denouncing the civil justice system as inadequate to handle the number of cases while focusing on the profit made by attorneys working relentlessly for the victims who have been seriously injured as a result of their exposure to asbestos in the occupational setting. The future course of this legislation remains uncertain. How far-reaching it will become in its universal approach to dismantling the adversarial system and individuals’ access to the civil justice system, replacing it with a mathematical formula requiring little if any representation while creating insurmountable and unsubstantiated hurdles for victims of asbestos to overcome remains in the hands of the Congress. 

As we embark upon the new millennium, it is incumbent upon the workers’ compensation attorneys throughout the United States to recognize that there are common threads uniting all the state workers’ compensation systems which are now becoming the focus of attack for modification by industry and insurance carriers actively at work in the nation’s capitol. It is more urgent than ever that organizations such as The Workplace Injury Litigation Group (WILG) become stronger both in numbers and in dollars in an effort to maintain a national voice to protect the injured workers throughout this country. 

By Jon L. Gelman, Attorney at Law  www.gelmans.com

Reprinted From The National Workplace Injury Litigator (5NWIL7)October/November 1999

[1] The author, who practices in Wayne, NJ , wrote Workers’ Compensation Law, Volumes 38 and 39, New Jersey Practice (West Group). He can be reached electronically at: mailto:jon@gelmans.com. Internet: www.gelmans.com; Wayne, NJ, Tel: (973) 696-7900; Fax: (973) 696-7988. COPYRIGHT © 1999, Jon L. Gelman.

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