Economic subjects | Human resource management » MHE 510 Module 4 Case Assignment Workers Compensation

Source: http://www.doksinet MHE 510 Module 4 Case Assignment pg 1 MHE 510 Module 4 Case Assignments MHE 510 Module 4 Case Assignment Workers Compensation Earl Lawrence Marion Trident University International Winter 2012 Source: http://www.doksinet MHE 510 Module 4 Case Assignment pg 2 A former asbestos worker has developed lung cancer. He wishes to know whether or not he can submit a claim for workers compensation for treatment of his disease connecting health and safety concerns covered by law. What is your position? Discuss the relevant issues and challenges in establishing lung cancer as attributable to workplace. Be sure to include the definition of workers compensation and examples in your response. What is Employers Position to Employees Claim of Asbestos and Lung Cancer? “As a former employee the employer should have given the employee a termination of employment examinations according to according to OSHA 1910.1001 The employer shall provide, or make available, a

termination of employment medical examination for any employee who has been exposed to airborne concentrations of fibers of asbestos at or above the TWA and/or excursion limit”. “The medical examination shall be in accordance with the requirements of the periodic examinations stipulated in the OSHA regulation, and shall be given within 30 calendar days before or after the date of termination of employment. Any recent examinations of the employee will also be examined No medical examination is required of any employee, if adequate records show that the employee has been examined in accordance with the OSHA standards within the past 1 year period. A pre employment medical examination which was required as a condition of employment by the employer, may not be used by that employer to meet the requirements of OSHa, unless the cost of such examination is borne by the employer”. “The employer shall establish and maintain an accurate record for each employee subject to medical

surveillance by this section, in accordance with 29 CFR 1910.1020 The employer, upon written request, shall make all records required to be maintained by this section available to the Assistant Secretary and the Director for examination and copying. The employer, upon request shall make any exposure records required by this section available for examination and copying to affected employees, former employees, designated representatives and the Assistant Secretary, in accordance with 29 CFR 1910.1020(a) through (e) and (g) through (I) The Source: http://www.doksinet MHE 510 Module 4 Case Assignment pg 3 What is Employers Position to Employees Claim of Asbestos and Lung Cancer? (contd) employer, upon request, shall make employee medical records required by paragraph (m)(3) of this section available for examination and copying to the subject employee, to anyone having the specific written consent of the subject employee, and the Assistant Secretary, in accordance with 29 CFR

1910.1020” (Asbestos, 2011) Clinical Evidence of Adverse Effects of Asbestos Exposure “Clinical evidence of the adverse effects associated with exposure to asbestos is present in the form of several well-conducted epidemiological studies of occupationally exposed workers, family contacts of workers, and persons living near asbestos mines. These studies have shown a definite association between exposure to asbestos and an increased incidence of lung cancer, pleural and peritoneal mesothelioma, gastrointestinal cancer, and asbestosis. The latter is a disabling fibrotic lung disease that is caused only by exposure to asbestos. Exposure to asbestos has also been associated with an increased incidence of esophageal, kidney, laryngeal, pharyngeal, and buccal cavity cancer”. “As with other known chronic occupational diseases, disease associated with asbestos generally appears about 20 years following the first occurrence of exposure: there are no known acute effects associated with

exposure to asbestos. Epidemiological studies indicate that the risk of lung cancer among exposed workers who smoke cigarettes is greatly increased over the risk of lung cancer among non-exposed smokers or exposed nonsmokers. These studies suggest that cessation of smoking will reduce the risk of lung cancer for a person exposed to asbestos but will not reduce it to the same level of risk as that existing for an exposed worker who has never smoked”. (Medical Surveillance Guidelines for Asbestos – Non-Mandatory, 1994) Signs and Symptoms of Exposure-Related Disease “According to OSHA, the signs and symptoms of lung cancer or gastrointestinal cancer induced by exposure to asbestos are not unique, except that a chest x-ray of an exposed patient with lung cancer Source: http://www.doksinet MHE 510 Module 4 Case Assignment pg 4 Signs and Symptoms of Exposure-Related Disease (contd) may show pleural plaques, pleural calcification, or pleural fibrosis. Lung cancer causes no symptoms

in the early stages, even though it may be seen on chest X-ray. In fact, by the time the cancer does cause symptoms it is usually far advanced. Symptoms from lung cancer can include shortness of breath, coughing up blood, and chest pain. (If lung cancer has spread outside the chest it can cause other symptoms, depending on location)”. (Medical Surveillance Guidelines for Asbestos – NonMandatory, 1994) Mesothelioma “Symptoms characteristic of mesothelioma include shortness of breath, pain in the walls of the chest, or abdominal pain. Mesothelioma has a much longer latency period compared with lung cancer (40 years versus 15 to 20 years), and mesothelioma is therefore more likely to be found among workers who were first exposed to asbestos at an early age. Mesothelioma is always fatal” (Medical Surveillance Guidelines for Asbestos – Non- Mandatory, 1994) Asbestosis “Asbestosis is pulmonary fibrosis caused by the accumulation of asbestos fibers in the lungs. Symptoms include

shortness of breath, coughing fatigue, and vague feelings of sickness. When the fibrosis worsens, shortness of breath occurs even at rest. The diagnosis of asbestosis is based on a history of exposure to asbestos, the presence of characteristic radiologic changes, end-inspiratory crackles (rales), and other clinical features of fibrosing lung disease. Pleural plaques and thickening are observed on x-rays taken during the early stages of the disease. Asbestosis is often a progressive disease even in the absence of continued exposure, although this appears to be a highly individualized characteristic. In severe cases, death may be caused by respiratory or cardiac failure” (Medical Surveillance Guidelines for Asbestos – Non-Mandatory, 1994) Source: http://www.doksinet MHE 510 Module 4 Case Assignment pg 5 Other Health Hazards Associated with Asbestos Exposure “Exposure to asbestos has been linked to an increased risk of lung cancer, mesothelioma, gastrointestinal cancer, and

asbestosis among occupationally exposed workers. Adequate screening tests to determine an employees potential for developing serious chronic diseases, such as cancer, from exposure to asbestos do not presently exist. Some tests, particularly chest x-rays and pulmonary function tests, may indicate that an employee has been overexposed to asbestos, increasing their risk of developing exposure-related chronic diseases. It is important for a physician to become familiar with the operating conditions in which occupational exposure to asbestos is likely to occur. This is particularly important for evaluating medical and work histories and in conducting physical examinations”. “When an active employee has been identified as having been overexposed to asbestos measures should be taken by the employer to eliminate or mitigate further exposure, which should also lower the risk of serious long-term consequences. Airborne levels of asbestos are never to exceed legal worker exposure limits.

Where the exposure does, employers are required to further protect workers by establishing regulated areas, controlling certain work practices and instituting engineering controls to reduce the airborne levels. The employer is required to ensure exposure is reduced by using administrative controls and provide for the wearing of personal protective equipment. Medical monitoring of workers is also required when legal limits and exposure times are exceeded”. (Medical Surveillance Guidelines for Asbestos – Non-Mandatory, 1994) Asbestos Regulations “In the United States, there are two main agencies that have the duty of making and enforcing regulations regarding asbestos. The federal agency that is responsible for regulating air pollutants is the Environmental Protection Agency (EPA). Under the Clean Air Act, the EPA must provide guidelines about emission rates. The EPA is also responsible for regulations covering asbestos in schools. The other agency that is responsible for asbestos

regulation is OSHA or the Occupational Source: http://www.doksinet MHE 510 Module 4 Case Assignment pg 6 Asbestos Regulations (contd) Safety and Health Administration. OSHA is responsible for protection and safety of workers OSHA is concerned with the protection of workers that may have been/are exposed to asbestos in the course of their professional duties or in their work environment”. “The notion that asbestos was an important cause of human disease was suspected in the late 19th Century and documents show asbestos companies knew of the health hazards in the early and mid 20th Century; but asbestos was not regulated to any significant degree in the United States until the 1970s. Originally the asbestos fiber exposure limits were set at 5 fibers per cubic centimeter in 1971. In 1994, this limit was revised to 0.1 asbestos fibers per cubic centimeter In 1989, the EPA banned all new uses of asbestos in the United States. The EPA and OSHA can be requested to make case by case

recommendations as to whether asbestos should be removed or secured”. (Asbestos as a Cause of Lung Cancer, nd) Who is at risk for asbestos-related disease? “Asbestos is part of most communities, so we are all exposed to it in minute quantities. However, to develop disease one must have substantial exposure to friable asbestos. Usually, such exposure requires working with the friable product over a long period of time. At risk are workers in various occupations that exposed them to friable asbestos, in most cases, over many years. Examples of workers at risk are: miners of asbestos; shipyard workers; power plant workers; brake lining workers; pipe fitters; insulators; boiler makers and repairers; maintenance workers (sometimes called millwrights) who worked in areas of the factory where friable asbestos was present; workers in the production of fire bricks, fire-retardant paints, asbestos cement, and other asbestos-containing products. It should be noted that, while asbestos

exposure occurs almost exclusively in the work place, it also may occur outside the workplace, such as in neighborhoods near asbestos mines. There are also several instances of workers wives developing asbestos disease because they cleaned their husbands asbestos-covered work clothes”. (Asbestos as a Cause of Lung Cancer, nd) Source: http://www.doksinet MHE 510 Module 4 Case Assignment pg 7 How is asbestos lung disease diagnosed? “There must be a history of substantial exposure to friable asbestos and a lung condition that could be related to asbestos exposure and no evidence for another cause. For example, a positive exposure history plus interstitial lung disease on chest x-ray plus the absence of any other cause, would be a presumptive diagnosis of asbestosis. However, a history of asbestos exposure, without a documented lung condition related to asbestos exposure may indicate no diagnosis of asbestos-related disease”. “A 65-year-old man with a history of asbestos

exposure and a previously clear chest x-ray that suddenly develops pulmonary edema (water in the lungs); his pulmonary condition is not one related to asbestos exposure. No history of asbestos exposure, with a condition that could otherwise be due to inhaled asbestos may also indicate no diagnosis of asbestos-related disease. A 45-year-old woman with no history of asbestos exposure that develops malignant mesothelioma. This pulmonary condition is commonly linked to asbestos exposure, but absent such history the cause in her case remains unknown. The vast majority of asbestos lung diseases occur from remote exposure at the workplace. Given a documented history of asbestos exposure, there are three ways to diagnose asbestos lung disease: A chest x-ray or chest CT scan (more detailed than a regular chest x-ray) diagnostic of or consistent with an asbestos-related condition”. “A lung biopsy diagnostic of an asbestos-related condition An autopsy diagnostic of an asbestos-related

condition. Well over 95% of cases can be diagnosed with just the history of friable asbestos exposure and an abnormal chest x-ray or chest CT scan. It is rare to make the diagnosis using lung tissue or autopsy, because these exams are rarely obtained, so there should be medical exams for the employee that can help physicians, the employer, and workers compensation claims administrators to begin to determine workplace related or non workplace related cause of the employees lung cancer”. (Medical Surveillance Guidelines for Asbestos – Non-Mandatory, nd) Issues and Challenges in Establishing Lung Cancer as Attributable to Workplace “For many years the hazards of asbestos were known by companies involved in its mining and Source: http://www.doksinet MHE 510 Module 4 Case Assignment pg 8 Issues and Challenges in Establishing Lung Cancer as Attributable to Workplace (contd) manufacture, but proper safeguards were not taken to protect workers”. “For this reason many worker who

later developed an asbestos-related condition can make a claim against the miner/manufacturer. In other words, the worker can claim that he was exposed unnecessarily to an unsafe product, and that the product caused disease. Asbestos-related conditions have a long latency period, often two decades or more after first exposure before a condition becomes manifest. Because many companies once in the asbestos business have merged or gone out of business, it is often difficult to even identify the responsible company years later, when a claim is filed. Company X may be sued, but argue that it was really company Y that supplied the asbestos 30 years earlier. Or, several companies may have supplied the asbestos, and end up litigating over who supplied what proportion for which factory process”. “Even when the responsible company is known, the worker still must prove he was exposed to friable asbestos in the workplace, and in sufficient amounts to have caused the condition. Yet job

descriptions are often sketchy or non-existent decades later. Many times the claimant is deceased, and the lawsuit is brought by the widow or the estate; in those situations co-worker affidavits are often used to establish work place exposure for the deceased. Companies often dispute the exposure history” “Since World War II many people have worked in factories where asbestos was present, but it was not necessarily friable asbestos. For example many plants had, and continue to have, pipes covered with asbestos but wrapped so that no friable asbestos is released. If the workers job was to cut, repair and replace these pipes all day long, chances are good they would be exposed to much friable asbestos during their career. Now suppose another worker drove a tow motor in the same plant and was never exposed to the pipes except in their intact state, any lung condition that the first worker developed would have to be closely examined for an asbestos cause, any lung condition that the

second worker developed would be unlikely related to asbestos. The fact is that, in many cases we dont know exactly what, or to what extent, workers were exposed to decades ago. In places like Canada and Montana, where there are Source: http://www.doksinet MHE 510 Module 4 Case Assignment pg 9 Issues and Challenges in Establishing Lung Cancer as Attributable to Workplace (contd) asbestos mines, exposure history is often more apparent than in most American factories”. “Lung cancer is almost always due to smoking, and virtually every ex-asbestos worker with lung cancer is a smoker or ex-smoker. All experts believe that asbestos is contributory when there is definite asbestos scarring (asbestosis) along with the lung cancer. Many researchers feel that one must demonstrate radiologic or histologic (on lung tissue) asbestosis to link asbestos exposure as a cause of lung cancer (the Browne Hypothesis). Other researchers disagree, and this point is often the subject of debate - and a

reason for litigation - in lung cancer claims. Even when a patients lung cancer was due to both asbestos and smoking, different courts treat this information differently. Some award maximum damages if asbestos was any percentage of the cause; others only award compensation based on the percentage attributed to asbestos, a percentage which is subject to wide interpretation.” “Pleural plaques are almost never associated with any physical impairment. Controversy has arisen over whether they are associated with increased risk of developing lung cancer. Mesothelioma has been linked to asbestos only if exposure can be documented. When cause and effect are clearly established, attorneys for patients usually seek jury trial to maximize the award. The American Thoracic Society formulated standard criteria for the diagnosis of asbestosis, which were published in the mid 1980s. Many physicians feel they are too restrictive and will argue a more liberal diagnosis in court. Claims based only on

the chest x-ray are the most common type of claim today. Since these cases were solicited by plaintiffs attorneys from union rolls, the sued companies often hire their own physicians to examine the claimants. The companies experts often disagree with physicians hired by plaintiffs attorneys”. (Asbestos Exposure and Cancer Risk, 2009) How are claims based only on the chest x-ray? “To understand this situation, it must be first understood that, medical diagnosis of many conditions is often imprecise, or is based on imprecise tools. Asbestosis is defined as lung tissue scarring from Source: http://www.doksinet MHE 510 Module 4 Case Assignment pg 10 How are claims based only on the chest x-ray? (contd) inhaled asbestos. Pleural plaques/fibrosis is scarring of the lining of the lungs These definitions seem straight forward, but how do doctors actually diagnose the scarring? Direct examination of lung tissue for evidence of asbestos scarring (lung biopsy and/or autopsy) is rarely

performed. Instead, the vast majority of cases are diagnosed by "shadows" seen on the ordinary chest x-ray or chest CT scan (performed much less commonly than the chest x-ray). In this sense the diagnosis is usually inferential”. “Inferential diagnosis is accepted when you have a classic presentation - unequivocal exposure history, unequivocal chest x-ray. But the vast majority of the unequivocal patients were long ago diagnosed and compensated. What is left now are tens of thousands of workers and ex-workers whose exposure history and chest x-ray are far from unequivocal. Their cases are, in fact, very equivocal. And when you start with equivocal abnormalities on a chest x-ray, you are entering the realm of subjective interpretation, of inherent biases, of one doctors opinion vs. anothers (it is only physicians who are trained to interpret chest x-rays). For this reason, in most current claims there is often significant disagreement over chest x-ray interpretation and,

ultimately, diagnosis”. (Asbestos Exposure and Cancer Risk, 2009) Principal Disputes in Asbestos-Related Claims “The principal disputes in asbestos-related claims are from an individual or his estate: that is claiming the employee was exposed to asbestos, and has (or had, if deceased) a condition or disease arising from such exposure, an is demanding another party pay him (or his estate) money for the disease or condition. The demand could be against a company, a state workers compensation board or a bankruptcy court. Most asbestos claims are disputed because of disagreement over one or more of the following: the claimants asbestos exposure history; the responsible company or companies; or the diagnosis. The first and second disputes dont involves physicians, since they are based on employment records, job descriptions, co-worker affidavits, plant documents, previous court documents, etc. The Source: http://www.doksinet MHE 510 Module 4 Case Assignment pg 11 Principal Disputes

in Asbestos-Related Claims (contd) third dispute always involves physicians, one way or another, because lawyers need physicians to read the chest x-rays and state the medical diagnosis. (Asbestos: Health Effects, 2008) Workers Compensation “Workers compensation is insurance that provides cash benefits and/or medical care for workers who are injured or become ill as a direct result of their job. Employers pay for this insurance, and shall not require the employee to contribute to the cost of compensation. Weekly cash benefits and medical care are paid by the employers insurance carrier, as directed by the Workers Compensation Board. The Workers compensation Board is a state agency that processes the claims. If Board intervention is necessary, it will determine whether the insurer will reimburse for cash benefits and/or medical care, and the amounts payable”. “If an employee has one event at work, such as hurting their back in a fall, getting burned by a chemical that splashes on

their skin or getting hurt in a car accident while making deliveries, or repeated exposures at work, such as hurting their wrist from doing some motion over and over or losing their hearing because of constant loud noise, or exposure to asbestos while working with asbestos. In a workers compensation case, no one party is determined to be at fault. The amount that a claimant receives is not decreased by their carelessness, nor increased by an employers fault. However, a worker loses their right to workers compensation if the injury results solely from their intoxication from drugs or alcohol, or from the intent to injure themselves or someone else”. “A claim is paid if the employer or insurance carrier agrees that the injury or illness is work-related. If the employer or insurance carrier disputes the claim, no cash benefits are paid until the workers compensation judge decides who is right. If a worker is not receiving benefits because the employer or insurance carrier are arguing

that the injury is not job-related, they may be eligible for disability benefits in the meantime. Any payments made under the Disability Program, however,will be subtracted from future workers compensation awards”. (Division of Workers Compensation, 2012) Source: http://www.doksinet MHE 510 Module 4 Case Assignment pg 12 Workers Compensation (contd) “If an employee gets hurt or sick because of work, the employer is required by law to pay for workers compensation benefits. Workers compensation insurance provides six basic benefits: medical care; temporary disability benefits; permanent disability benefits; supplemental job displacement benefits or vocational rehabilitation and death benefits. Employees are entitled to receive prompt, effective medical treatment for on-the-job injuries no matter who was at fault, and in return, are prevented from suing their employers over those injuries. Sometime a disagreement can arise between the employee and the claims administrator over

issues such as whether the injury was sustained on-thejob or how much in benefits the employee is entitled to receive. When a dispute like this arises, the Division of Workers Compensation can help solve it through its Information and Assistance Unit or by going before a judge at one of the local offices”. (Division of Workers Compensation, 2012) Report Injury to Employer “The employee must tell their supervisor right away of their illness or injury. If their injury or illness developed gradually (like tendinitis, hearing loss, or lung cancer from asbestos handling), report it as soon as they learn or believe it was caused by their job. If it is a medical emergency, the employee should go to an emergency room right away. The employer will tell the employee where to go for treatment. Tell the health care provider who treats them that their injury or illness is jobrelated if it is so Then the employer will give or mail the employee a claim form within one working day after learning

about the injury or illness, so the employee can request workers compensation benefits. The employee should get good medical care to help them recover They should be treated by a doctor who understands their particular type of injury or illness. The employee should tell the doctor about their symptoms and the events at work that they believe caused their illness. Also they should describe their job and their work environment”. (Division of Workers Compensation, 2012) Source: http://www.doksinet MHE 510 Module 4 Case Assignment pg 13 Surveillance and Preventive Considerations “An employer is required to institute a medical surveillance program for all employees who are or will be exposed to asbestos at or above the permissible exposure limit (0.1 fiber per cubic centimeter of air). All examinations and procedures must be performed by or under the supervision of a licensed physician, at a reasonable time and place, and at no cost to the employee”. “Although broad latitude is

given to the physician in prescribing specific tests to be included in the medical surveillance program, OSHA requires inclusion of the following elements in the routine examination: medical and work histories with special emphasis directed to symptoms of the respiratory system, cardiovascular system, and digestive tract; completion of the respiratory disease questionnaire contained in Appendix D of the Occupational Safety and Health Standards 1910.1001 App H; a physical examination including a chest roentgenogram and pulmonary function test that includes measurement of the employees forced vital capacity (FVC) and forced expiratory volume at one second (FEV) (1)); any laboratory or other test that the examining physician deems sound medical practice to be necessary. The employer is required to make the prescribed tests available at least annually to those employees covered; more often than specified if recommended by the examining physician; and upon termination of employment. The

employer is required to provide the physician with a copy of the Occupational Safety and Health Standards 1910.1001 App H; a description of the employees duties as they relate to asbestos exposure; the employees representative level of exposure to asbestos; a description of any personal protective and respiratory equipment used; and information from previous medical examinations of the affected employee that is not otherwise available to the physician”. “Making this information available to the physician will aid in the evaluation of the employees health in relation to assigned duties and fitness to wear personal protective equipment, if required. The employer is required to obtain a written opinion from the examining physician containing the results of the medical examination; the physician’s opinion as Source: http://www.doksinet MHE 510 Module 4 Case Assignment pg 14 Surveillance and Preventive Considerations (contd) to whether the employee has any detected medical

conditions that would place the employee at an increased risk of exposure-related disease; any recommended limitations on the employee or on the use of personal protective equipment; and a statement that the employee has been informed by the physician of the results of the medical examination and of any medical conditions related to asbestos exposure that require further explanation or treatment. This written opinion must not reveal specific findings or diagnoses unrelated to exposure to asbestos, and a copy of the opinion must be provided to the affected employee”. (Medical Surveillance Guidelines for Asbestos-Non-Mandatory, 1994) Medical Treatment “Doctors in most state workers compensation systems are required to provide evidence-based medical treatment. That means they must choose treatments specifically proven to cure or relieve work-related injuries and illnesses. Those treatments are laid out in a set of guidelines that provide details on which treatments are effective for

certain injuries, as well as how often the treatment should be given (frequency), the extent of the treatment (intensity), and for how long (duration), among other medical services needed”. “The employer will assist the employee to file a claim for workers compensation benefits, and if there are medical records showing that the employee did have physical examinations during his employment, these examinations and chest x-rays will be examined by the physician and workers compensation board examiners for indications of workplace exposure to hazardous effects of asbestos or asbestos residue in the employees body. The employee should be given a new physical and x-ray to help in diagnosing any injury or illness related to working with asbestos. Because the employee is a former employee the employer should assist the employee to obtain temporary disability benefits that are available while waiting for the decision of the workers compensation board”. (Division of Workers Compensation,

2012) Source: http://www.doksinet MHE 510 Module 4 Case Assignment pg 15 References Bibliography “Asbestos as a Cause of Lung Cancer” (n.d), The David Law Firm P C http://www.lung-cancercom/asbestoshtml “Asbestos Exposure and Cancer Risk” (2009), National Cancer Institute, National Institutes of Health, http://www.cancergov/cancertopics/factsheet/Risk/asbestos “Asbestos: Health Effects” (2008), ATSDR, Agency for Toxic Substances and Disease Registry, http://www.atsdrcdcgov/asbestos/asbestos/health effects/ “Division of Workers Compensation: Answers to Frequently Asked Questions About Workers Compensation for Employees” (2012), Department of Industrial Relations, State of California http://www.dircagov/dwc/WCFaglWhtml#6 “Medical Surveillance Guidelines for Asbestos – Non-Mandatory” (1994), Occupational Safety and Health Standards, 1910.1001 App H, Occupational Safety and Health Administration, U S Department of Labor, Wash., D C

http://www.oshagov/pls/oshaweb/owadispshow document?p table=STANDARDS&p id=10003