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NYC Disputes Some Claims Of Health Problems Tied to 9/11
State Bill Expands Pool of Possible 9/11 Benefit Recipients
The massive waitlist at the Social Security Administration leaves many without care
Upstate NY company charged with workers' comp fraud
New York employers resist worker's comp 'bailout' plan
More Hero's of 9/11 to Receive Additonal Protection Under Workers Compensation
New York Governor Paterson today announced plans to submit legislation to cover additional public workers who risked their health and safety in the rescue, recovery and clean-up efforts at the World Trade Center after the attacks of September 11, 2001. The legislation embraces the unanimous recommendations of the bi-partisan September 11th Worker Protection Task Force
Two Construction Workers Hurt in Bronx Accident
Four Killed in Manhattan Crane Accident
NEWS: The Collapse of Self-Insured Trusts Staggers State!
The collapse of a group of workers' compensation self-insurance trusts run by a Poughkeepsie-based company is the most extreme such breakdown the field has seen in New York, according to state and industry officials.
Construction Worker Dies in 30 Foot Fall From Scaffold
Worker Hospitalized as Race Course Barn Collapses
NYC Steel Worker Critically Injured in Fall
NYC's Mayor Bloomberg Examining Buildings Department After Deaths
NYC Buildings Commissioner Resigns After Criticism
Impairment v. Disability, an Interview on the AMA!
Check the link for a radio interview with Dr. Brigham who is the author behind the restrictive limits on the new AMA guides. It is certainly interesting!
Manhattan Construction Worker Falls to His Death
New York Dept. of Transportation Worker Crushed by Platform
New York Bakery Told to Shut Down Over Workers' Comp Violations
Multiple Self-Insured Workers' Compensation Trusts Shut Down by Workers Compensation Board!
Due to serious underfunding, numerous self-insured trusts (groups of employers pooling money to buy workers compensation coverage!) are being shutdown. The affects on injured workers are unknown but cannot be good.
Social Security Trustees Release 2008 Annual Report
WHY COMPENSATION IS SO IMPORTANT - THE TRIANGLE FACTORY FIRE!
97 YEARS AFTER 146 NEW YORK IMMIGRANTS, MOSTLY YOUNG WOMEN, PERISHED IN THE TRIANGLE SHIRTWAIST FACTORY FIRE, BECAUSE THE EMPLOYER LOCKED THE DOORS AND PROVIDED NO SAFTEY WHATESOEVER, THE NEED FOR APPROPRIATE WORKERS COMPENSATION BENEFITS IS JUST AS IMPORTANT AND APPARENT!
NYC Crane Inspector Arrested for Falsifying Inspection Documents
Worker's Compensation Board Chair Issues Statement on NYC Crane Collapse
WC Reform - Cracking Down on Employer Fraud
The 2007 Workers Compensation Reform allows the WCB to use stop work orders to shut businesses down until they comply with purchasing mandatory workers compensation coverage.
Construction Deaths Even Higher for Immigrant Workers
Guess What? Your Faking it!!!!!
A new test, with the legitimacy stamp of part of the Psychological Community, this test has been found to find most people to be malingerers and fakes, when the really are note. Take a look at this article and the insightful blogs posted on the Wall Street Journal Site.
Another New York Construction Death
Work Resumes at Trump SoHo Tower, Site of January Death
Suffolk Contractor Arrested for Workers' Comp Fraud
Hiring of AMA Guides Editor Sparks N.Y. Debate
Dozens of Employers Misreport and Underpay Workers!
New York Changing Method of Determining Workers' Comp Rates
Voodo Science? Dr. Christopher Brigham and AMA Guidelines Invade New York
NY Workers Compensation Reform has taken a turn for the worse...AMA Guidelines to limit the ability of injured workers to collect benefits!`
NYC Rethinking Laws Following Rash of Skyscraper Deaths
2.7 Million Recieve Wrong Social Security Tax Info
The Social Security Administration is reporting that they mailed the wrong tax document to about 2.7 million Americans last week. The Social Security Benefit Statement, also known as Form SSA-1099, is required for the completion of a federal tax return for all Social Security recipients.

Each January, the SSA mails 53 million Social Security Benefit Statements out. The agency says that this year, a computer programming error caused Medicare Part C and/or Part D premium deductions for 2006 to be mailed in the 2007 reports.

A corrected SSA-1099 is in the process of being sent out.
500 Pound NYPD Officer Denied Pension Increase
A New York judge ruled that a retired 500 pound police officer may not increase his pension check. The 40 year old officer had requested a larger retirement pension, claiming that a fall while on duty prevented him from fully performing his duties as a police officer. The judge agreed with the Police Pension Fund medical board, who had rejected the application on the grounds that the injury was related to obesity, not an on-the-job accident.

Accidental disability retirement would have paid a non-taxable pension of 3/4 of the officer's salary.
Construction Deaths Spike
At least 43 construction workers died on the job in New York in 2006, according to the Federal Bureau of Labor Statistics. That number is up 87% from 23 deaths in 2005.

Construction ranks as the most dangerous occupation nationally, representing one-fifth of the nation's work-related fatalities. In 2006, 1,226 construction workers died on the job site.
Trump Building Socked with Violations After Worker Dies
Trump tower workers were pouring concrete forms atop a 42-story building at the Trump SoHo complex when one or more of the forms collapsed. The crash killed one construction worker and three others were taken to the hospital.

The New York City Department of Buildings has cited the general contractor with at least four violations and issued a stop work order until building inspectors can determine the cause of the incident. The Department had already issued 11 violations, dating back to the beginning of the work in May 2007.

The Department of Buildings says that the Trump Tower is not in any danger of further collapse. Building is scheduled to be complete in May of 2009.
Social Security Administration Announces 2008 Cost-of-Living Adjustments
The Social Security Administration has announced the cost of living adjustments for 2008. Social Security and Supplemental Security Income beneficiaries will recieve a 2.3 cost of living boost this year. This increase is down a full percentage point from the 3.3% adjustment in 2007.
The Next Lung Disease - Food Additives, Buttered Popcorn and Diacetyl!?
Flavoring additive puts professional cooks at risk
A study shows that levels of diacetyl released from many butter-substitute products may pose a significant risk to professional cooks who stand over hot grills for hours and use large amounts of the products.
Our New Website!!!!
Markhoff & Mittman Launches our newly redesigned website
Disability Cases Last Longer as Backlog Rises
Most social security disabilty cases get denied at the initial stage and there is a lengthy delay to get a hearing where most cases are approved.

NYC Disputes Some Claims Of Health Problems Tied to 9/11

Lawyers for New York City claim 30% of those suing in federal court claiming ground zero-related illnesses don't have serious health problems.

The city is fending off claims of approximately 10,800 plaintiffs, who claim to suffer from one or more of 387 different types of injuries. The claims are filed in federal court in Manhattan, where Judge Alvin Hellerstein is overseeing the cases. About half of the claims were filed by city workers, such as NYPD and FDNY personnel.

The case is part of a running argument over how many people were actually sickened by their exposure to toxic debris at dust at the World Trade Center site, and years-old disputes about who should pay for such illnesses.

Lawyers for the city contend that serious illnesses that can be medically documented and tied to ground zero exposure should be paid for by the federal government. But the federal government created a $1 billion captive insurance fund, administered by the city, to handle such claims. Lawyers for the workers say the city should stop fighting the claims and start paying them.

State Bill Expands Pool of Possible 9/11 Benefit Recipients

Even as New York City battles thousands of ground zero workers over their health claims in federal court, New York State is making more workers eligible for health care benefits.

The State Legislature has passed a bill that will make hundreds of public service workers who labored at the World Trade Center site during the nine-month cleanup after the attacks of Sept. 11 eligible for state disability payments.

Aides to Gov. David A. Paterson said on Wednesday that as many as 1,800 such workers who had already been denied disability benefits could now be eligible to receive them.

The measure, passed Monday, also extends the deadline for other ground zero workers to register for state workers’ compensation in case they become sick or disabled in the future as a result of their work at ground zero.

Governor Paterson, who strongly supported the legislation, is expected to sign it shortly.

The massive waitlist at the Social Security Administration leaves many without care

The Social Security Administration is tremendously backlogged, with about 750,000 cases waiting for a hearing, according to figures from the agency’s website. The agency cites the average wait time for a hearing with an administrative law judge — which you reach after being denied benefits twice and appealing — as 512 days. Their track record, according to their own statistics, is to initially deny about two out of every three claims filed. This is not altogether different from a modern American medical insurance company.

The agency is aware of the problems with backlogged cases. In 2007, the SSA announced it was hiring 175 additional administrative law judges. But in February, the agency announced a moderate pullback: It would offer positions to 144 new judges.

Upstate NY company charged with workers' comp fraud

An upstate trucking company is accused of underreporting its payroll by $2.2 million, costing the state Insurance Fund more than $300,000 in lost workers' compensation premiums.

The state Insurance Department says Eagle River Inc., based in the Albany suburb of Colonie, was arraigned last week on charges of falsifying business records and committing a fraudulent practice.

According to the agency, Eagle River falsified its payroll between November 2003 and November 2006 by underreporting wages, one of the factors used in determining workers' compensation premiums.

Officials say the underreporting was discovered in an audit of the company's payroll.

New York employers resist worker's comp 'bailout' plan

As soon as this fall, dozens of employers in the Capital Region will face hefty bills from the state Workers' Compensation Board. They'll be asked to make up for years of underpayment into so-called self-insured trusts that provided their coverage for on-the-job injuries.

Those trusts have failed, and their administrator has agreed to give up its license.

In the meantime, however, healthy self-insured trusts are being asked to cover the failed trusts' costs, and that has triggered a legal battle.

Attorney Richard Honen of the Albany law firm Phillips Lytle LLP calls it a "bailout ... unique even for New York."

Honen, representing a group of 13 trusts -- basically employers that formed pools to self-insure against workers' compensation claims -- says they've seen their combined annual assessments to the board climb from ,000 a year to $12 million this year. The assessments typically pay for the operation of the board, including regulatory oversight of the trusts.

More Hero's of 9/11 to Receive Additonal Protection Under Workers Compensation

As the seventh Anniversary of the horrific attack on The World Trade Center draws near, the news media has been filled with reports of continued medical and financial problems suffered by those affected on that day, particularly those First Responders and others who rushed to the World Trade Center site with only one purpose, to help their fellow Americans, their neighbors, friends and strangers.

Governor David Paterson of New York has taken an additional step today of calling for protection of these workers by expanding the category of those covered under what has been calld a "presumptive accidental disability retirement benefit"

Additional first responders covered under this bill include: (i) state and county corrections officers and deputy sheriffs ; (ii) the non-uniformed first responders who were not required to undergo a pre-employment physical examination; (iii) 911 dispatchers; (iv) first responders who worked for any period of time within the first 48 hours after the first plane hit the World Trade Center; (v) emergency vehicle radio repair mechanics; (vi) vested members of a public pension system who terminated their employment prior to filing a claim; and (vii) workers who became disabled more than two years after 9/11 but before an extension was granted in the Workers Compensation Law which would have covered them.

Read Expanded Health Care Benefits for 9/11 Workers

Two Construction Workers Hurt in Bronx Accident

Two construction workers in the Bronx were injured Friday, May 23, 2008, when they fell 15 feet from scaffolding. The men were washing the front of P.S. 18 in the Bronx. Officials with the Department of Buildings said that a piece of equipment designed to extend the scaffolding closer to the building failed.

The Department of Buildings has issued a stop work order and plans to issue a violation to the general contractor for failing to properly maintain the scaffolding. The general contractor was New York Stone.

The workers were treated for their injuries at Lincoln Memorial Hospital.

Four Killed in Manhattan Crane Accident

Four construction workers were killed and ten others were injured when a giant crane crashed into a residential building. Mayor Bloomberg says that the crane "basically just flattened" the four-story townhome and caused collateral damage to three other buildings. There probably would have been far greater injuries, but luckily, the bar on the bottom floor of the building was closed at the time of the accident.

Eyewitnesses report that the 15-20 story crane "literally split in half," and fell like a house of cards. The crane broke during a routine operation to extend its height by inserting a section in the middle and raising the top part of the crane. The top part of the crane flipped over, however, causing damage to several buildings on the way to the ground.

NEWS: The Collapse of Self-Insured Trusts Staggers State!

Construction Worker Dies in 30 Foot Fall From Scaffold

A man working on a scaffold on the Triborough Bridge in Queens fell to his death on Tuesday, May 6, 2008. After being lifted to the metal scaffolding by a crane bucket, the worker appeared to lose his footing. Eyewitnesses report seeing one leg fly up as the worker fell to the pavement below.

The man was taken to Elmhurst Hospital Center, where he was pronounced dead after a few hours.

The worker was employed by Koch Skanska, the construction firm chosen to do $275 million worth of repairs to the bridge. When the accident occurred, the company was in the process of replacing the 720 bearings that had been originally installed over 70 years ago.

No harness or rope was found on the ground with the victim and OSHA is inspecting the scene.

Worker Hospitalized as Race Course Barn Collapses

Firefighters in Saratoga Springs, N.Y., had to pull a man from under a barn at the Saratoga Race Course on May 1, 2008. The race course's Barn No. 50 was undergoing renovatoin when it collapsed. Track carpenters were working to lift the barn on jacks when its weight shifted, causing the barn to fall on its side.

Luckily, no one was killed in the accident. One of the workers suffered a broken arm and had to be hospitalized, but the other five suffered only minor scrapes and cuts.

The renovation was part of an ongoing process to restore the 144-year old race track. Many of the barns being restored or rebuilt are more than 100 years old. Barn No. 50 is located at the Oklahoma Training Track, across the street from the main thoroughbred racetrack. Track officials plan to begin rebuilting the barn in six to eight weeks.

NYC Steel Worker Critically Injured in Fall

The day after thousands of workers gathered to mourn the loss of the 13 workers killed in NYC construction accidents this year, another worker was critically injured. This time, a steel worker fell 25 feet from a building in Manhattan. The man, 28, was trying to move a 20-foot I-beam into place when he slipped and fell from the buildling's second story. The cause of the accident is unclear, but other workers are saying that the early morning rain was making the steel slippery.

The worker was wearing a safety helmet, which was fractured in the fall, and was transported to Bellevue Hospital where he underwent three hours of emergency surgery.

NYC's Mayor Bloomberg Examining Buildings Department After Deaths

Following the 13th construction death of the year, New York City Mayor Michael Bloomberg has publicly stated his discontent with the city's Department of Buildings. The 13 deaths this year is already more than half of the total for all of 2007.

"I don't think anyone should be fully satisfied with the Department of Buildings," Bloomberg told reporters, "whether they've done everything they can or not is something I'm looking at."

The Department of Buildings has made some strides, however. When Bloomberg took office earlier this year, there were a mere 277 inspectors working for the Department. The Department has already hired over 130 more inspectors.

Most importantly, Bloomberg said that "Simply shrugging your shoulders and saying, 'Well, after all, construction work is a dangerous occupation,'" won't cut it anymore.

NYC Buildings Commissioner Resigns After Criticism

New York City Buildings Commissioner Patricia J. Lancaster resigned today amid criticism from NYC Mayor Michael Bloomberg. Noting that her Department has come "a long way forward by fighting corruption, strengthening inspections and oversight, increasing the public's access to information, and bringing increased levels of professionalism and integrity to all levels," Lancaster stepped down after six years.

Her resignation came after Mayor Bloomberg noted that the 13 deaths that have occurred on construction sites this year bears investigation. There is no indication from the Mayor's office yet who her replacement will be.

Impairment v. Disability, an Interview on the AMA!

Check the link for a radio interview with Dr. Brigham who is the author behind the restrictive limits on the new AMA guides. It is certainly interesting! There is a continuous struggle between disability and impairment and the proper use of guidelines, whether AMA or otherwise. He certainly provides a "rational" sounding basis for the guides, but it does pose severe problems as noted in past blogs and news items, listen carefully since these are arguments the insurance carriers will use to to reduce benefits! Radio Show. See also Jon Gelman's excellent blogs in this area.

Manhattan Construction Worker Falls to His Death

A construction worker on the East Side of Manhattan fell to his death on Monday, April 14, 2008, when a safety strap system failed. The 25 year old man was installing windows on a condominium tower when he fell 9 floors from the 23rd to a 14th floor balcony. The New York Department of Buildings is inspecting the death, but acknowledge that the "failure of the safety strap connecting the worker to the concrete ceiling played a role."

The building site had been cited by city inspectors for 25 code violations during the last year, according to city officials.

This is the tenth death at a New York high-rise construction site since January.

New York Dept. of Transportation Worker Crushed by Platform

A Department of Transportation worker was severely injured Thursday morning when a wooden platform fell on him. The 42-year old worker was repairing overpasses and bridges at I-690 and I-81. As he mixed cement on the ground, the platform broke and landed on top of him.

One side of his body has been severely injured and he was taken to University Hospital for treatment.

New York Bakery Told to Shut Down Over Workers' Comp Violations

New York State has shut down the Arthur Avenue Bakery, famous in the Bronx for their cannoli and bread, because of widespread wage, overtime, and workers' compensation law violations.

The State Workers' Compensation Board issued a stop-work order Monday night after discovering that the bakery has not carried workers' compensation insurance for their employees in over a year.

In addition to putting their workers at risk by failing to purchase coverage, the bakery was paying its employees about $3/hr. less than New York's $7.15 minimum wage and requiring 12 hour days without overtime pay.

The bakery may reopen when they have repaid the $140,000 in back pay and $37,500 in workers' compensation penalties.

Multiple Self-Insured Workers' Compensation Trusts Shut Down by Workers Compensation Board!

Due to serious underfunding, numerous self-insured trusts (groups of employers pooling money to buy workers compensation coverage!) are being shutdown. The affects on injured workers are unknown but cannot be good.

N.Y. Regulators Shutting Down Five More CRM Trusts

New York -- N.Y. Regulators Shutting Down Five More CRM Trusts: Top [04/02/08]

The New York State Workers' Compensation Board (SWCB) has ordered the termination of five group selfinsured workers' compensation trusts administered by Compensation Risk Management (CRM) since the beginning of the year and warned that 22 more trusts operating in the state are underfunded.

In a spreadsheet updating the status of the trusts issued last Friday, SWCB reported that it terminated Real Estate Management Trust of New York, Trade Industry Workers' Compensation for Manufacturers, and Transportation Industry Workers' Compensation Trust on Jan. 31.

The board is scheduled to terminate the New York State Cemeteries Trust on March 31 and the Wholesale & Retail Workers' Compensation Trust of New York on April 29. All five are managed by CRM based in Poughkeepsie, N.Y., with additional operations in California. CRM is part of Bermuda-based CRM Holdings, a publicly traded workers' compensation services company.

The only remaining CRM-administered trust in New York, Elite Contractors Trust, is listed as one of the 22 other trusts that are underfunded – meaning their assets don't total at least 90% of their liabilities.

Board spokesman Brian Keegan said the agency is working to ensure that claims filed by injured workers covered by the trusts are paid. But he said he could not immediately provide further comment on the problems with the industry late Tuesday afternoon. Last Aug. 17, the board released what it called the most dismal financial report on self-insured trusts in years.

Mary Beth Woods, chief of licensing for the board, said at the time the downturn reflected the impact of stringent new rate-setting rules for trusts. But she said the numbers were solid for the majority of group trusts, which account for more than $15 billion in annual payrolls.

Woods was unavailable for comment Tuesday.

In last August's report, the board listed 57 group trusts in New York and classified 29 of them as underfunded. "Once the trust is terminated, people have to get their own coverage," Keegan said. "What we will do is to make sure that the claims outstanding will get paid."

Jonathan Pierce, a spokesman for CRM, also said details of the specific trusts identified as terminated or underfunded by the board last week were not immediately available. "We are working with the board and the members to ensure everyone has proper coverage," Pierce said.

Independent Insurance Agents & Brokers of New York (IIABNY) posted an alert detailing trust eliminations on its website Tuesday afternoon and provided a link to the board's summary findings at http://www.iiaba.net/NY/02_News/01_DailyNews/NAV_NEWSDailyNews?ContentPreference=NY&ActiveState=NY&ActiveTab=STATE&ContentLevel1=NEWS&ContentLevel2=NEWSDAILY.

Tim Dodge, director of research and external communications, said IIABNY is concerned about CRM's trusts but doesn’t believe the administrator's problems are reflective of all self-insured trusts in New York. He also discounted complaints from one trust representative that part of the problem was triggered by former Gov. Eliot Spitzer's sweeping 2007 workers' compensation reform package.

"I think there are problems with certain trusts, but I don't think it's industry wide," Dodge said. "At this point I don't think we're going to know the full impact for a few years yet." Under New York law, all of the group self-insured trusts are liable for the claims left by the failure of a single trust. Keegan said unpaid claims would be transferred to a self-insured pool into which the trusts are required to post collateral.

Warning that more failures were to come, SWCB Chairman Zach Weiss requested authority in January to issue $59.5 million in bonds to cover liabilities created by fund defaults. The board shut down seven selfinsured groups in 2006 and 2007.

The bonds would be paid off by assessments to employer-members of the failed trusts. IIABNY said the board "fully expects to collect the assessments and has already begun collection efforts in conjunction with the state Attorney General's office."

Spitzer's reforms were signed into law in March 2007. Based on the reforms, New York Insurance Superintendent Eric Dinallo ordered a 20% rate cut effective Oct. 1.

Critics of the board say it has traditionally allowed its self-insurance groups to operate without adequate funding – a problem complicated by economic troubles in upstate New York and the nation's economic slump.

In a letter dated June 21, 2007, CRM Holdings Chief Executive Officer Daniel G. Hickey Jr. warned of further shutdowns and attributed the troubles to the state's shifting regulatory climate.

--By Michael Whiteley, WorkCompCentral Eastern Bureau Chief

mike@workcompcentral.com

Social Security Trustees Release 2008 Annual Report

"Social Security is at a crossroads," recognizes Micheal J. Astrue, Commissioner of Social Security. The 2008 Annual Report to Congress is a key example of that. Without change, Social Security is sure to run out of money.

Tax revenues will fall below program costs by 2017
Trust funds will become exhausted by 2041
Over a 75 year period, the Trust Funds would need to require an additional $4.3 trillion to pay all scheduled benefits

Astrue is continuing to work with President Bush and Congress to develop policy solutions.

WHY COMPENSATION IS SO IMPORTANT - THE TRIANGLE FACTORY FIRE!

On March 25, 1911, just one day after the New York Court of Appeals struck down the recently enacted Workers Compensation Law as unconstitutional, 146 young immigrants, mostly young women and mothers, perished in the horrific Triangle Shirtwaist Factory fire in Lower Manhattan. The owners had locked the doors so that these workers could not take breaks or sneak out. The ladders for the New York City Fire Department did not reach high enough. This sweat shop was one of the only major employers who had resisted the recent unionization of the needle trade in New York.

The surviving families received practically nothing for the death and suffering of their loved ones. Shortly after this tragedy, the unionization of the needle trades and other enterprises took off. Within a few short years, the Constitution of New York was amended to constitutionalize the Workers' Compensation law. In 1914, three long years after the needles tragedy of the Triangle Shirtwaist Factory fire, New York passed its Workers' Compensation Law.

Today, ninety-four years later, we continue to struggle with providing proper benefits to those most in need, injured workers' and their families. The Injured Workers' Bar Association helps protect those rights by bringing together those attorneys around the Empire State who have dedicated their lives to assisting injured workers. Further, the Workers' Compensation Alliance promotes and attempts to enforce the rights of workers before the New York State Legislature and Executive Branch. Finally, six years ago a group of concerned participants, including attorneys from the claimant and defense bar, doctors, judges, union members and others formed the Triangle Shirtwaist Factory Fire Memorial. This group raises money for scholarships for children of workers killed or severely injured on the job. Something to help in their time of need. To date, the TSFFM has provided over $138,000.00 in scholarships. Please help if you can as well by clicking on the link!

For more information on any of these issues, please feel free to contact me, Brian Mittman, at bmittman@markhofflaw.com.

NYC Crane Inspector Arrested for Falsifying Inspection Documents

Edward Marquette, a New York City inspector, has been charged with lying about checking the construction crane that collapsed on March 9, 2008, killing seven people. Mr. Marquette has been responsible for checking some 500 job sites in the last six months in his job as an inspector in the Department of Building's division of cranes and derricks.

Experts are questioning whether Marquette's failure to check the crane actually contributed to the accident, however, since the building site was again inspected the day before the six ton collar used to support the crane came loose from the building.

Worker's Compensation Board Chair Issues Statement on NYC Crane Collapse

Zachary Weiss, Chairman of the Worker's Compensation Board has issued a statement regarding the recent NYC crane collapse. Weiss said, "after the tragic crane collapse in New York City, I activated the New York State Workers' Compensation Board's rapid response team. Since then, we have been working to advance the claims of deceased and injured workers to offer their families some level of comfort during this difficult time."

WC Reform - Cracking Down on Employer Fraud

One of the beneficial aspects of the 2007 New York Workers' Compensation Reform is that it empowers the Workers Compensation Board to issue stop work orders against busineses that fail to properly carry workers compensation insurance. A very hefty stick to force recalcitrant employers to live up to their side of the bargain and have insurance in place to assist workers injured during the course of employment! As noted below, these efforts are working in favor of injured workers and businesses who do follow the rules!

Reform boosts workers' comp

State board sees more compliance from use of stop-work orders By RICK KARLIN, Capitol bureau
Click byline for more stories by writer.
First published: Thursday, March 6, 2008

ALBANY -- Comedian and Minnesota Senate candidate Al Franken isn't the only one to feel the sting of a crackdown by the New York Workers' Compensation Board.

So have Paul's Cleaners in Albany and the Ocean Blue Fish Fry in Clifton Park.

While Franken faces a legal judgment to pay about $25,000 in fines for failing to carry workers' compensation insurance for a business he had in New York City, state authorities since last summer have also moved to temporarily shut down businesses like Paul's and Ocean Blue for the same reason.

Both received stop-work orders from the Workers' Compensation Board, which can shutter businesses that lack coverage.

A person who answered the phone at Paul's declined to comment. A woman at Ocean Blue said only the owner could comment, but that the owner was in the hospital. Both reopened after a day, when they agreed to acquire insurance and pay associated fines, said board spokesman Brian Keegan.

The ability to issue stop-work orders stemmed from last year's reform of New York's workers' compensation laws, Keegan noted.

"We want compliance," he said. "We want people to carry coverage."

Judgments, such as that against Alan Franken Inc., have been the usual way of going after nonpayers. Last year, 17,884 such judgments were issued, Keegan said.

By contrast, 63 stop-work orders have been issued since last summer. Most lasted just a day or two, after which the owners typically obtained coverage.

The Franken fine was actually levied in August 2006 for failure to carry the insurance from June 2002 to March 2005.

Keegan said Franken was sent multiple notices, but Franken's spokesman, Andy Barr, said the comedian/politician was unaware of the fine until Tuesday, after it was publicized by Minnesota Democrats Exposed, a Web site sympathetic to Republican Sen. Norm Coleman, whom Franken is seeking to unseat in November.

"If there's a mistake by the Frankens, it was an inadvertent mistake as opposed to trying to evade the law," Barr said. Franken set up the corporation to receive payments for speeches, TV and movie royalty checks, and other income, he said. It had, at most, one or two part- or full-time employees at any one time, Barr said.

Other Capital Region businesses that received the orders were the Corner Well Pub in Albany and LF&G of Latham Inc.

Rick Karlin can be reached at 454-5758 or by e-mail at rkarlin@timesunion.com. The Associated Press contributed to this story

Construction Deaths Even Higher for Immigrant Workers

We all know that construction is one of America's most dangerous industries. But what you may not know is that the construction site is even more dangerous for immigrant workers who are unable to speak fluent English or read certain warnings.

Complicating matters is the fear of disclosure or deporation that can occur when an immigrant worker speaks up about his rights. ABC News has a great article today about this problem.

Guess What? Your Faking it!!!!!

A new test, with the legitimacy stamp of part of the Psychological Community, this test has been found to find most people to be malingerers and fakes, when the really are not. Take a look at this article and the insightful blogs posted on the Wall Street Journal Site. How do you protect yourself and your clients when you really have a problem...show this to your doctors and practicioners.

Another New York Construction Death

One construction worker is dead and another was seriously injured in Brooklyn, New York, when their scaffold collapsed on a rooftop. The dead worker, Jose Palacios, fell about 13 stories. The second worker landed on a ledge.

The accident occurred at 525 Clinton Ave. in Fort Greene. According to the New York City Buildings Department preliminary report, high winds may have caused this tragic accident. However, investigators are looking into whether the building's scaffolding was adequately secured to the side of the condo.

Work Resumes at Trump SoHo Tower, Site of January Death

The New York City Department of Buildings is allowing Bovis Lend Lease to resume work on the Donald Trump high rise where a construction worker fell 40 stories to his death in January. The contractor will be allowed to work on the first 23 floors of the 42 story building. However, the work that has begun does not involve the use of any cranes or concrete.

The January 14, 2008, death that shut down the construction site involved a worker on the 40th floor helping to pour concrete.

Bovis Lend Lease has added a full-time safety manager to the job site since the death.

Suffolk Contractor Arrested for Workers' Comp Fraud

A Port Jefferson, New York, construction contractor who was previously convicted of tax evasion now faces two additional felonies after an arrest for workers' compensation fraud.

Gary Woltmann, president of Woltmann Associates, has allegedly used a payroll scheme to avoid paying over $150,000 in workers' compensation premiums to his insurer. He also defrauded New York out of more than $36,000 in payroll taxes.

The workers' compensation charge is the more egregious one, because Woltmann was not only breaking the law, but putting his employees at risk. "Protecting employees with workers' compensation insurance is not optional in New York," says Chair Zacharay Weiss, "when employers avoid that insurance, they're jeopardizing their workers, and counting on honest businesspeoplee to bail them out."

Hiring of AMA Guides Editor Sparks N.Y. Debate

New York -- Hiring of AMA Guides Editor Sparks N.Y. Debate: Top [02/13/08]

The New York Insurance Department, igniting cries of betrayal by labor advocates who negotiated last year's reform bill, has hired the senior contributing editor for the Sixth Edition of the American Medical Association (AMA) impairment guides to correlate differences between two editions of the guides and the state's own 1996 guidelines for rating impairment as a function of wage loss.

The state approved a $162,500 contract with Dr. Christopher Brigham on Dec. 20, said Bruce Topman, executive director of the Workers' Compensation Reform Task Force. Brigham will rate a sample of workers' compensation injuries for impairment based on the Fifth and Sixth editions of the AMA Guides for the Evaluation of Permanent Impairment and correlate those with existing New York law.

Topman said the project's first phase, due for completion at the end of March, calls for developing the correlation to produce a set of New York-specific multipliers that could then be drawn from ratings in the Fifth or Sixth editions to produce an "AMA-like" set of guides for future awards based on wage loss.

The second phase of Brigham's contract calls for creating a "mapping" system for use of the ratings as a factor in a broader context to determine loss of wages.

"This is not an effort to implement AMA guidelines," Topman said. "We're trying to see what relationship the ratings have to the New York ratings we've used in the past. If you assume the AMA rating is lower than the New York rating, the question would be what multiplier would be required to make them equivalent to the New York number. That's the idea."

(Brigham has also recently entered into a business relationship with WorkCompSchool, a division of WorkCompCentral Inc., to provide instruction on the use of AMA guides.)

News of Brigham's contract with New York state leaked out at an International Association of Industrial Accident Boards and Commissions (IAIABC) conference on the new AMA guides in Orlando Feb. 7 and 8. Brigham was the featured speaker.

The news sparked allegations of betrayal from the New York Workers' Compensation Alliance, a group of claimants' attorneys and other workers' advocates that insisted the promise that AMA guides would never be used in New York was a key concession in a deal that also capped the length of the permanent partial disability awards for the first time in the state's history.

The closed-door negotiations in January and February of 2007 were held primarily between the Business Council of New York State and the AFL-CIO of New York.

Art Wilcox, a key negotiator for the AFL-CIO, said Tuesday the union did agree to the use of objective guidelines as a tool to determine wage loss. But he said AMA impairment ratings were never part of the deal.

"This whole thing seems like Pearl Harbor to us," Wilcox said. "This is a wage-loss state. We have to come up with objective guidelines that measure wage loss. AMA doesn't fit into that."

Topman, who joined the administration of New York Insurance Superintendent Eric Dinallo, said he wasn't involved in the negotiations that produced bill A 6163, the sweeping reform package Spitzer signed into law last March 13.

"My understanding (of the negotiations) was that the guidelines would be AMA-like," Topman said. "Whether you like the AMA guides and the numbers they produce, the system is designed to provide some fairness to all injured workers, so that one worker with the same injury is treated the same as all other workers."

Topman said coming up with percentages of impairment for comparison among workers who may have sustained injuries to different parts of their bodies helps ensure there is "no disparity and no discrimination."

"That's the advantage of an across-the-board system," he said.

Troy Rosasco, co-chairman of the Workers' Compensation Alliance, said regardless of the terms regulators used to describe the project, the level of betrayal to the deal reached by Spitzer's negotiators is the same.

"We find no difference between AMA guides and supposed AMA-like guides," he said. "It's all Insurance Department semantics to cover up what they said they wouldn't do during the negotiations."

Rosasco said his group has filed a public records request for Brigham's contract and all related documents and is exploring whether the selection meets state legal requirements for soliciting professional services.

"We'll get the documents and determine what, if any, legal avenues we have to contest the hiring of Dr. Brigham," Rosasco said.

The debate mirrors the political feud in South Carolina, where Gov. Mark Sanford has landed in state and federal court over his 2007 executive orders mandating the strict application of the AMA guides in determining disability.

The South Carolina Workers' Compensation Commission has refused to follow the orders, saying they routinely consider AMA guides as a factor. But the commission said it also is required by state law to consider occupation, age and other factors in translating the level of impairment affecting individual employee's ability to reenter the workforce.

Brigham confirmed Tuesday that he has been hired by the New York Insurance Department to conduct a research project similar to studies he did for the states of California and Colorado, which involved comparing various approaches to assessing impairment.

"The AMA Guides are used by the majority of workers' compensation jurisdictions to define permanent impairment and by some as an initial determinate of permanent disability," Brigham said in a statement released to WorkCompCentral. "Jurisdictions vary in how they utilize the impairment ratings, with some, such as the State of California, making a series of adjustments to calculate a permanent disability rating."

He said "our understanding of impairment and disability has evolved" with the development of each new edition of the guides.

Brigham also is editor of the Guides Newsletter and the Guides Casebook and has performed several thousand independent medical and impairment evaluations, according to his resume. He is a founding director of the American Board of Independent Medical Examiners.

Rosasco argued that independent medical examinations (IMEs) are normally paid for by carriers and represent the defense side in a workers' claims dispute.

He said New York workers' compensation judges have traditionally used impairment as a starting point and made distinctions for occupation. He said wage loss based on a back injury would differ dramatically between an office worker and a brick layer.

Rosasco said the idea of mapping the total effect of the injury in a graphical representation first surfaced in a presentation by New York State Workers' Compensation Board Chairman Zachary Weiss last week.

"The idea of mapping is going to take the discretion out of the hands of workers' compensation law judges and essentially turn our system into a…chart, which then leads to a set equation for determining the amount of lost-wage benefits an injured worker gets."

The controversy emerged as Spitzer's task force on medical treatment best practices is preparing to release its report on how to apply a new set of treatment guidelines it approved last year.

Those guidelines mix some New York-specific treatment guidelines with some sections taken from the American College of Occupational and Environmental Medicine (ACOEM).

Topman said the treatment guidelines have no relationship to the impairment guides Brigham is reviewing. He said the study is "just one approach" regulators are considering in the new mapping strategy.

The Alliance said on its website the debate over Brigham's hiring will be aired at a Task Force meeting scheduled for Friday morning.

--By Michael Whiteley, WorkCompCentral Eastern Bureau Chief
mike@workcompcentral.com

Dozens of Employers Misreport and Underpay Workers!

Dozens of companies in New York State have been penalized for misreporting and misclassifying workers. When a company improperly classifies a worker (i.e. calling them an independent contractor instead of an employee) that company avoids paying unemployment taxes and improperly pays lower workers' compensation premiums.

These actions hurt the worker who is underpaid or does not receive workers' compensation; they hurt other employers who must compete with these unscrupulous employers; they deny proper payments into the Sociial Security System (which can affect disability) and they hurt all New Yorkers!

New York Changing Method of Determining Workers' Comp Rates

Gov. Spitzer has signed a new law that establishes a loss-cost system to determine New York's workers' compensation rates. Under the old system, workers' compensation payouts came from recommendate rate manuals issued by the New York Compensation Rating Board.

The new system will be better organized to more accurately meet the amount lost by each individual who is hurt on the job. It is also believed that the new system will spur competition between insurance companies, driving down costs for employers.

Voodo Science? Dr. Christopher Brigham and AMA Guidelines Invade New York

Click the link below to go to the NY Workers' Comensation Alliance website to see the latest on the issue of AMA and NY State. The "hired gun" of the State is going to influence and change the rights and abilities of injured workers to collect meaningful benefits for true impairments and disabilities. What tweleve years under the Pataki administration could not accomplish, it seems something worse may be happening under the Spitzer administration. Take a look and decide for yourself!!!

Voodoo Science? Dr. Christopher Brigham and AMA Guidelines Invade New York

Dr. Christopher Brigham, left

Injured workers in New York are about to be betrayed by Governor Eliot Spitzer for a second time. First, when he was running for Governor our organization raised over $10,000 and hosted a reception on his behalf in April 2006. At the time, the Governor stated that he was not in favor of "caps" on permanent partial disabilities. Well, we all know he flip-flopped on that issue.

Second, during the recent workers' compensation reform negotiations, all the negotiators from the Governor's office, Speaker Silver's office and Senate Majority Leader Bruno's office promised that "AMA Guidelines will never come to NY!". Well, word on the street is that the Governor's man heading the Medical Guidelines Task Force just hired Dr. Christopher Brigham, the insurance and defense industry's best friend, to implement the AMA guidelines in New York. With more flip-flops like this, Governor Spitzer may morph into Mitt Romney - and we all know where good 'ol Mitt is now.

A little about Dr. Christopher R. Brigham. He is an entrepreneur with numerous sophisticated websites selling his IME services, click here, here, here for a few of the "classier" ones. He hangs out in Hawaii and peddles his new "Sixth Edition of the AMA Guidelines to Evaluation of Permanent Impairment" in a nice little cottage industry he has carved out for himself and his family (Mindy Brigham is "Director of Marketing"). Go to his website - you can fill up your "Cart"! Somehow, he duped the AMA into buying into his biased opinions on "impairment ratings", much to the embarrassment of the AMA. The fact is that he is an injured worker's "worst nightmare IME" (insurance company medical examiner). He is the proud author of "Symptom Magnification, Deception and Malingering", the bible for all insurance company doctors out to hurt injured workers.

Dr. Brigham still performs insurance company medical exams in Hawaii (nice work if you can get it, assuming you are willing to make a deal with the Devil). Check out this "sample Brigham IME report" of his regarding an injured worker who had surgery for "cubital tunnel syndrome" on his dominant left arm. Despite a 10 centimeter scar on the worker's right elbow, insurance company fave Dr. Brigham opines that the worker has a " 2 percent impairment to the Hand!" . I kid you not!

Under the current objective New York Workers' Compensation Guidelines of 1996, this serious injury would appropriately translate into at least a 15-20% schedule loss of use to the "Arm". This tells you everything you need to know about the AMA Guides and Dr. Brigham - it all about reducing compensation monetary to injured workers awards! See this press release from Dr. Brigham about insurance companies saving money using his methods. See his article from "For The Defense" (a pro-worker publication...) here.

Dr. Christopher Brigham is one sharp expert witness. His tape, "How to Be An Effective Medical Witness" (see below) teaches insurance company doctors to "properly state your opinion using 'magic' legal words", "humanize your testimony", "deal with trick questions and trial tactics of attorneys", "answer questions about your fee" and "deal with an abusive attorney". I hope none of us "abusive attorneys" run across the good doctor while strolling the white sands of Hawaii - he knows how to "deal with us"!

In a recent Internet radio interview, Dr. Brigham stated that the new "6th Edition of the AMA Guides" would lower impairment ratings from prior editions of the Guides. He gave an example of his own "partial medial menistectomy" knee surgery. Quite generously, Dr. Brigham gave himself a "one percent impairment" to the lower extremity. Again, under current New York Medical Guidelines, such an injury would result in at least a 15% loss of use. Using Dr. Brigham's specious methods, an injured worker in New York would lose tens of thousands of dollars. But, then again, remember that the AMA Guidelines as written By Dr. Brigham are all about saving insurance companies money - not about credible medicine.

The best example of this is the startling fact that the purported "big accomplishment" of the "Sixth Edition" is that they will no longer use "range of motion" in determining impairment! Are they serious? Tell that to the treating orthopedic surgeons and chiropractors in New York - Brigham will be laughed all the way back to Hawaii.

Bottom Line - AMA Guidelines in New York is a non-starter. The Governor's team is too smart to bring in an obvious hatchet man like Dr. Brigham to mess with the New York Workers' Compensation Medical Guidelines. It would be another drivers' license-like albatross for the Governor Spitzer. Just look at what recently happened in South Carolina when the Governor there tried to implement AMA Guidelines. The medical profession and labor movement in New York would crush Dr. Brigham and his co-horts, and find allies in both the NY Assembly and the Senate in doing so. The WCA suggests that the good doctor remain in his Hawaiian bungalow counting his numerous coconuts. Stay tuned...

NYC Rethinking Laws Following Rash of Skyscraper Deaths

As fatalities in high rise construction projects increased from 1 to 6 last year and injuries increased by 63%, New York City's buildings commissioner is calling for new laws that would require the registration of concrete contractors. The legislation would also require all projects to hire a safety manager.

The new legislation would only affect projects that are more than 10 stories, but there were also seven low-rise fatalities in NYC last year.

2.7 Million Recieve Wrong Social Security Tax Info

500 Pound NYPD Officer Denied Pension Increase

Construction Deaths Spike

Trump Building Socked with Violations After Worker Dies

Social Security Administration Announces 2008 Cost-of-Living Adjustments

The Next Lung Disease - Food Additives, Buttered Popcorn and Diacetyl!?

Flavoring additive puts professional cooks at risk

By ANDREW SCHNEIDER
P-I SENIOR CORRESPONDENT

America's favorite breakfast is bacon and eggs -- and often it is cooked in a product that contains the same chemical that has damaged and destroyed the lungs of hundreds of popcorn and food-flavoring plant workers.

A study commissioned by the Seattle P-I shows that top-selling butter substitutes, when heated, release vapor from a chemical additive called diacetyl. When inhaled, this vapor has been linked to a rare, sometimes fatal respiratory disease called bronchiolitis obliterans.

The diacetyl vapors from some of the products are released in such volume that they could pose a significant risk to professional cooks who stand over hot grills or skillets for hours and use large amounts of these butter substitutes, according to the analysis.

DIACETYL TESTING

- View a graphic illustrating the testing of 22 products for diacetyl emissions.

About 21 million eggs are cracked open every morning and become the stars of the high-speed breakfast ballet performed in diners, greasy spoons, classy restaurants and quick food purveyors in about every community in the country.

Some cook in pure butter. Many spoon out a soft or liquid margarine. Others slather their grills and skillets with a buttery soy, corn, vegetable or canola oil. Most of them likely aren't aware of the potential risks from diacetyl in these products.

The P-I's study may be the first to examine how much diacetyl could be rising from those skillets and grills.

The newspaper commissioned a lab to test the amount of professional cooking oil needed to fry or scramble a dozen eggs or grill two hefty orders of hash browns -- a bit less than 4 ounces. Now, consider the diacetyl in 30 times that amount, the oil that the average short-order cook would use to prepare the 720 eggs that some Seattle eateries serve during a four-hour breakfast shift.

"Without a comprehensive evaluation it's impossible to assess the actual risk, but there is no doubt that this group of workers should be studied," Dr. Richard Kanwal said.

He's a medical officer with the National Institute for Occupational Safety and Health, the research arm for worker health and safety for the national Centers for Disease Control and Prevention.

"It is possible that the amount of diacetyl being released in commercial kitchens where these butter-flavored products are being used could equal or perhaps exceed what was found in the popcorn plants," Kanwal said.

The newspaper's tests did find the potential for exposures that could match hazardous workplace levels. In one test, for example, the amount of diacetyl in what's known as "pan and grill" oil was measured at 234 parts per million as it left the test skillet. It is estimated that diacetyl levels of 2 or 6 ppm entered the worker's "breathing zone" above the skillet.

As low as these "breathing zone" estimates appeared to be, the amount of artificial butter flavoring released could result in exposures for professional cooks at levels that are as high or higher than some severely ill workers at a Jasper, Mo., popcorn plant were exposed to in their eight-hour shift.

Where are the sick cooks?

There are about 3.7 million cooks of all types and another 2.5 million other kitchen workers in food preparation, according to the Bureau of Labor Statistics.

So, if the inhalation of large amounts of diacetyl is dangerous and products containing it are so prevalent, where are all the sick cooks?

Physicians are familiar with only two cases of cooks being injured by inhaling vapor from cooking products. One goes back to 1985. The more recent surfaced in the mid-1990s and was presented in a conference at Denver's National Jewish Medical Center. Dr. Talmadge King briefly discussed a young short-order cook with severe lung disease who used PAM cooking spray on the job.

"It was an enigma," said Dr. Kathleen Kreiss, chief of the Respiratory Disease Field Studies Branch of NIOSH, who attended the talk. "That's why it was presented. Nobody knew why this woman had terrible lung disease. It was known that she used PAM in her cooking but then no one thought to link it to diacetyl."


		ANDREW SCHNEIDER
	At LabCor, a Seattle analytical laboratory, analyst Eryn Knaack heats cooking oils and butter substitutes to see how much diacetyl is released.

(Butter-flavored PAM, which is used by many cooks, was one of the 22 products analyzed for the P-I. A two-second spray into a heated test pan released a high level of diacetyl in laboratory tests. During interviews this week, Jim Astwood, ConAgra's vice president of scientific and regulatory affairs, said that the corporation "plans to have all PAM products containing diacetyl off store shelves by next month.")

Kreiss said she and her colleagues have been concerned about a possible hazard from diacetyl to kitchen workers since three peer-reviewed studies reported that workers in food production professions have an unexplained high prevalence of obstructive lung disease. That is what breathing diacetyl vapors can cause.

The studies were done in Europe, New Zealand and the United States.

"I have been suggesting for several years now that this (use of flavorings and food production and service workers) needs to be examined," Kreiss said.

One problem in determining the extent of the problem, according to union health officers, is that kitchen workers often are underinsured or uninsured and frequently conceal health problems because they don't want to anger their employers. The pressures on the line cook or the line chef are significant and the turnover rate is high, making occupational disease hard to identify.

Dr. Allen Parmet, a Kansas City occupational medicine physician who first identified the disease among popcorn plant workers, calls it "the healthy worker effect."

"People work until they're too sick to continue work, and they come in with their cough, because they can't breathe, and they think it's because they were smoking while they were cooking," Parmet said. "They have no reason to suspect they're being made sick because of the products they're using."

Dr. Phil Harber, chief of UCLA's division of occupational and environmental medicine, said, "The obvious answer may be that nobody is looking.We cannot conclude that the absence of cases means the absence of disease." Harber has diagnosed several cases of bronchiolitis obliterans among workers in flavoring plants in Southern California.

The testing

Hundreds of brands of cooking oils, butter substitutes and sprays use diacetyl to provide or enhance the flavor of butter. Oils marketed by Cargill, Archer Daniels Midland and Ventura were among the most frequent brands spotted in commercial kitchens and mentioned by cooks and food managers questioned in the Pacific Northwest.

The laboratory hired by the P-I examined 22 of the more popular cooking products. LabCor, a Seattle-based certified analytical laboratory frequently used by the Environmental Protection Agency, found diacetyl in air samples captured from a heated skillet in which the products were tested.

In this type of testing, the concentration of the chemical present is measured in parts per million. The analysis found:

Two real butters were analyzed and diacetyl was found in a range of 7 ppm to almost 16 ppm.

In all the margarine and shortening products, levels of 7 ppm to almost 180 ppm were present.

A butter-flavored cooking spray released more than 164 ppm of diacetyl.

Butter-flavored cooking oils used by professional cooks ranged from 23 ppm to 234 ppm.

Two brands of oil for popping corn came in at 1,062 ppm and 1,125 ppm.

The test results were surprising not only because some of the levels of diacetyl were so high, but also that diacetyl, beyond what exists naturally in all dairy products, was found to have been added to the pure sweet butter that was tested as a baseline.

"Diacetyl is added to all but salted butter throughout the industry," said Mark Wustenberg at the Oregon-based Tillamook Creamery. "If you don't salt it, you have to add something to keep it from spoiling, and lactic acid and diacetyl is a way of stabilizing it."

In Seattle, at Darigold headquarters, Randy Eronimous, director of marketing, agreed. Both men said the levels of diacetyl they add to their butters shouldn't pose health problems.

Measuring the risk

Occupational health specialists have said that repeated exposure to diacetyl has led to the deaths of at least three workers, destruction of the lungs of scores more and sickened hundreds of others who worked in plants that produce flavorings, microwave popcorn, candy, beverages, oils and other products.

Interviews with several victims of the disease show many similarities. Most were young, non-smokers, healthy and active. But as their disease worsened, their damaged lungs imprisoned them in an oxygen-starved world where any activity led to the sensation of strangulation, where tussling with their kids is an impossibility and even talking is interrupted for gasps of air.

DIACETYL EFFECTS

- View a graphic illustrating theeffects of diacetyl on the lungs.

It is impossible to equate the amount of diacetyl released in the P-I's testing to a degree of risk faced by those who cook with the products because of other variables.

When measuring the danger of exposure to a substance, toxicologists consider the toxicity of the material and how long and to what amount of that chemical has a person been exposed.

Good ventilation can reduce the exposure. But observations made while researching this story found that many commercial cooks reduced or even shut off the ventilators above their grills because of the noise.

In some restaurants, oil, butters or sprays are used in skillets lined along the edge of the stoves or grills quickly sautéing the shrimp, chicken breasts or vegetables. In some kitchens the pans were not under the ventilating hoods.

"It is very important to protect cooks from exposure to diacetyl as (bronchiolitis obliterans) is a very serious lung problem that cannot be reversed," said Dr. Robert Harrison, professor of occupational medicine at the University of California-San Francisco.

"If there are safer alternatives for cooking oils, the prudent step would be to eliminate the use of any products that contain diacetyl," Harrison said.

As master chef Julia Child fervently espoused, butter is better. But it costs more than oil and it burns or breaks down at a lower temperature (butter smokes at 304 degrees, Canola oil at 460 degrees and corn oil at 459 degrees).

In a high-volume, fast-moving restaurant, these are important differences. Many of the cooks interviewed almost wistfully said they'd rather use only butter but almost all said that the butter-flavored oils and margarines came "close" in taste.

Government approved?

Without exception, statements issued by the manufacturers of the products tested for the P-I said the Food and Drug Administration has ruled that diacetyl is safe.

"Our customers can rest assured that we only use ingredients in our products that have been approved by the FDA," said Liz Feldman, a spokeswoman for Nucoa and Smart Balance.

"Diacetyl has been used as a flavor ingredient for many years in many products and is approved for this use by the FDA," said Anita Larsen, director of media relations for Unilever USA, which makes I Can't Believe It's Not Butter, Brummel and Brown, Country Crock, Promise and Imperial.

"The amounts of added diacetyl found in Unilever food products pose no threat to public health," she added.

"The FDA classifies diacetyl as 'Generally Recognized As Safe' for consumption," said Lori Fligge, media relations director for Cargill, which made the pan and grill oil that released 234 ppm of the chemical when heated.

ConAgra makes Parkay, Fleischmann's, Blue Bonnet, PAM, and Act II and Orville Redenbacher corn popping oils.

"ConAgra sees no risk to cooks using any of its margarines and oils" and this is based not only on the FDA designation but also on in-house testing, said corporate spokeswoman Stephanie Childs. On Wednesday, Childs told the P-I that the corporation was taking diacetyl out of its popcorn oil.

Safeway's spokeswoman Teena Massingill said that Safeway brand Butterlicious has a "small amount" of diacetyl added but its "Lucerne Spreadable Butter contains none."

"Our in-house research has shown that there is no risk from diacetyl in using these products," Massingill added.

The J.M. Smucker Co. markets Crisco. Maribeth Badertscher, director of corporate communications, said, "The FDA considers diacetyl to be safe for food products and has indicated that there is no need for consumers to avoid products with the ingredient." However, she told the P-I that efforts were under way to remove diacetyl from butter-flavored Crisco.

But the studies to which all refer were done for FDA more than a half century ago and again in the 1980s to attain the "Generally Regarded as Safe" designation for diacetyl. That means the chemical combination could be added to food without undergoing the far more extensive and costly premarket safety testing. The tests that were done examined only the hazard from eating diacetyl, not inhaling its vapor.

"GRAS is an imaginary regulatory mechanism that gives the appearance of real protection," said Dr. David Egilman, a professor at Brown University and the head of Never Again Consulting, a research group that has investigated many worker safety issues, including diacetyl. "Companies do not have to do any testing to label a substance added to food as GRAS.

"Diacetyl is just one of scores of substances that shouldn't be allowed to carry what is in effect a government-sanctioned anti-warning giving the false impression that untested food additives are safe," said Egilman, who has testified on behalf of many popcorn workers injured by exposure to the butter flavoring agent.

The problem in discussing the hazard from exposure to diacetyl is that beyond a handful of animal studies, little research has been done to quantify how much of the chemical it takes to harm humans.

Governmental indifference to the possible threat posed by breathing diacetyl is epidemic. The Consumer Product Safety Board repeatedly has said it's not its problem. For at least three years the FDA has been ignoring the question and only now, almost eight years after the first solid links between diacetyl and workers, has the Occupational Safety and Health Administration said it will attempt to set standards for worker exposure, and this only after repeated hammering by unions and Congress.

Risks at home unclear

Manufacturers of these products insist that home users face no risk, and they could be correct. Home cooks are exposed, but the duration of their exposure is much shorter and they use lesser amounts of the diacetyl-releasing items. However, no one knows what the risks are because the government has never conducted tests.

"Many people don't use the hood over their home stove in the interest of energy conservation or noise reduction. Without air testing and the knowledge of what exposure levels are harmful, we don't know whether there is a risk," NIOSH's Kreiss said.

Her colleague Kanwal added: "Any health risk always boils down to how it's used. It's not just the agent, it's how people handle it or are exposed to it. If you have somebody at home who cooks for large families or groups at home, maybe they're getting a lot of exposure."

Dr. Greg Kullman, a senior industrial hygienist with the group at NIOSH that has been doing most of the diacetyl investigations, says the information just isn't there to say one way or the other if there is consumer risk and how much of a risk it is.

"You could downplay it but that could be wrong," Kullman said. "The whole consumer use risk is an unknown. If some of these products have substantial releases of a chemical we know is bad, it is something that the public health community should examine."

LEARN MORE

From the National Institute for Occupational Safety and Health:

cdc.gov/niosh/topics/flavorings/

Our New Website!!!!

The Markhoff & Mittman family is please to introduce our newly redesigned website! Starting today and working into the future we will be providing you with far more than just a "regualr" website. There will be news, news items, the latest in workers' compensation, social security disability and accident related matters. A Blog, an extensive library with important decisions, changes in the law and other important factors to you, our clients and the informed public. Markhoff & Mittman is here to provide you with information so that you can better understand the multitude of issues facing injured workers, their families and whomever else needs information. Thank you for looking at our site and we would love to hear from you! Brian Mittman, Senior Partner.

Disability Cases Last Longer as Backlog Rises

RALEIGH, N.C. — Steadily lengthening delays in the resolution of Social Security disability claims have left hundreds of thousands of people in a kind of purgatory, now waiting as long as three years for a decision.

Jeremy M. Lange for The New York Times
Thomas Airington, 48, was told his appeal, filed last spring, would be expedited when he showed officials an eviction notice. In the meantime he lost his house.

Multimedia

The Clogged-Up Disability System

Jeremy M. Lange for The New York Times
Belinda Virgil, of Fayetteville, N.C., waited three years for an answer to her appeal after her initial application was turned down. Ms. Virgil finally got a hearing in November and is awaiting the outcome. She uses an oxygen tank 24 hours a day because of emphysema and life-threatening sleep apnea.

Two-thirds of those who appeal an initial rejection eventually win their cases.

But in the meantime, more and more people have lost their homes, declared bankruptcy or even died while awaiting an appeals hearing, say lawyers representing claimants and officials of the Social Security Administration, which administers disability benefits for those judged unable to work or who face terminal illness.

The agency’s new plan to hire at least 150 new appeals judges to whittle down the backlog, which has soared to 755,000 from 311,000 in 2000, will require $100 million more than the president requested this year and still more in the future. The plan has been delayed by the standoff between Congress and the White House over domestic appropriations.

There are 1,025 judges currently at work, and the wait for an appeals hearing averages more than 500 days, compared with 258 in 2000. Without new hirings, federal officials predict even longer waits and more of the personal tragedies that can result from years of painful uncertainty.

Progress against the backlog, if it happens, cannot undo the three years that Belinda Virgil of Fayetteville, N.C., has worried about her future since her initial application was turned down.

Tethered to an oxygen tank 24 hours a day because of emphysema and life-threatening sleep apnea, Ms. Virgil lost her apartment and has alternated between a sofa in her daughter’s crowded house and a friend’s place as she waits for an answer to her appeal.

“It’s been hell,” said Ms. Virgil, 44, who finally got her hearing in November and is awaiting the outcome. “I’ve got no money for Christmas, I move from house to house, and I’m getting really depressed.”

The disability process is complex, and the standard for approval has, from the inception of the program in the 1950s, been intentionally strict to prevent malingering and drains on the treasury. But it is also inevitably subjective in some cases, like those involving mental illness or pain that cannot be tested.

In a standard tougher than those of most private plans, recipients must prove that because of physical or mental disabilities they are unable to do “any kind of substantial work” for at least 12 months — if an engineer could not do his job but could work as a clerk, he would not qualify — or prove that an illness is expected “to result in death.”

In a recent interview, the commissioner of Social Security, Michael J. Astrue, said that outright fraud was rare but that many cases on appeal were borderline. In addition, widely publicized charges in the 1970s that money had been wasted on recipients whose conditions improved led to tighter scrutiny.

Of the roughly 2.5 million disability applicants each year now, about two-thirds are turned down initially by state agencies, which make decisions with federal oversight based on paper records but no face-to-face interview. Most of those who are refused give up at that point or after a failed request for local reconsideration.

But of the more than 575,000 who go on to file appeals — putting them in the vast line for a hearing before a special federal judge — two-thirds eventually win a reversal.

Mr. Astrue and other officials attribute the high number of reversals to several causes. Those who file appeals tend to be those with stronger cases and lawyers who help them gather persuasive medical data. During the extended waiting period, a person’s condition may worsen, strengthening the case. The judges see applicants in person and have more discretion to grant benefits in borderline cases.

Requiring face-to-face interviews at the initial stage could reduce the number of appeals, Mr. Astrue said, “but given the huge volume of cases coming through, it would be incredibly costly, and the Congress is not willing to fund that.”

The growing delays in the appeal process over the last decade resulted in part from litigation and financing shortages that prevented the hiring of new administrative law judges. In addition, the number of applications is rising as baby boomers reach their 50s and 60s.

“Once the system got overloaded, it fell farther and farther behind,” said Rick Warsinsky, legislative director of the National Council of Social Security Management Associations, which represents managers from the agency.

If approved, those who have paid into Social Security receive income comparable to retirement benefits, averaging more than $1,000 a month and potentially more. The poor, and severely disabled children, receive Supplemental Security Income checks that will be $637 a month in 2008.

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The Clogged-Up Disability System

Charles T. Hall’s law firm in Raleigh has the state’s largest disability practice, with six lawyers representing some 2,500 clients, usually working on contingency and collecting 25 percent of back payments, to a limit of $5,300. Mr. Hall said that about one client a month died while awaiting a hearing. Far more clients, he said, run out of money and are evicted from rental units or lose their homes.

In the past, said Walter Patterson, a disability lawyer in Charlotte, N.C., clients who received a foreclosure warning were pushed up the waiting list for quicker hearings. But as the hearing offices have become overwhelmed, he said, they now expedite cases only after seeing an actual eviction notice — usually too late to help.

Thomas Airington, 48, who formerly ran a car-emissions testing business, was told his appeal, filed last spring, would be expedited when he showed officials an eviction notice. In the meantime he lost the house, which his parents had bequeathed him. A hearing date has still not been set.

“If I’d been approved in time, I could have saved my house,” said Mr. Airington, who is staying with a brother near Raleigh.

Mr. Airington has pins in his spine from a car accident in 1992, shattered a knee when he fell 30 feet in 2005, has nerve damage in his feet and chronic arthritis and depression. The rejection letter he is appealing said, “We have determined that the condition is not severe enough to preclude work.”

Mr. Airington said he tried a desk job but found he could not sit for long, and tried working as a stocker in a grocery store but could not reach for shelves. Whatever the outcome, he, like many applicants, is in limbo while he waits.

The extended delays can also mean extra burdens for state welfare agencies. In New York State, about half the 38,000 people now waiting on disability appeals, for an average of 21 months, are receiving cash assistance from the state, said Michael Hayes, spokesman for the Office of Temporary and Disability Assistance.

Mr. Astrue, the latest of several Social Security commissioners to promise speedier decisions, said the agency had already taken steps to ensure quicker initial approval for those most clearly eligible and was holding more hearings by video.

But by all accounts, a major increase in money, judges and support staff will be needed to have a significant impact.

Mr. Astrue said that if the budget impasse continued for too long, leaving the agency budget at its current level, “not only will we not do any hiring, we’re looking at furloughs.”

A first step of raising the number of judges to 1,200 will require at least $100 million extra for the agency beyond the $9.6 billion that President Bush has proposed for the 2008 fiscal year, Mr. Astrue said. Within a wide-ranging, $151 billion health, education and labor bill passed in November, the Democratic-controlled Congress voted for a $275 million increase for the agency. But Mr. Bush vetoed the bill, calling it profligate.

If the stalemate continues, the government will probably operate on the basis of continuing resolutions, which will keep agency spending at last year’s level and doom the plan to add judges.

Richard and Vicki Wild and their adult son Mark, of Hillsborough, N.C., were mystified that Mark’s case would ever require a judge.

Hospitalized with increasing frequency since his severe diabetes was discovered at age 19, when he was found unconscious in a bus station, Mark Wild was eager to work as a chef. But over 15 years, he tried and lost jobs as a waiter and a cook. He had to drop out of culinary school because he was hospitalized so often, his parents said.

“We had 10 years’ worth of hospital records and unanimous opinions from the doctors,” said Richard Wild, 62, who until recently was a computer analyst. But his son’s initial application was turned down in 2003.

The family had sunk into debt because of medical bills, nearly losing their house of 30 years, but found a lawyer to file an appeal. The son, by then in his mid-30s, had to wait two more years to get a hearing scheduled, with no income and little life outside his parents’ home and the hospital.

As his hearing date in October 2006 approached, Mark Wild told his parents that he feared another rejection. “It was his last chance at any dignity, and he said if they turned him down it would be too much to take,” recalled Mrs. Wild, a nurse.

On Tuesday, Oct. 17, 2006, just a few days before the hearing, Mrs. Wild woke up to find her son gone. On his desk lay his watch, his ring and a bullet.

On that Thursday, Mrs. Wild, 55, got a call at work from their lawyer. “I just wanted to give you the good news,” she said he told her. “Somehow the judge has already approved the disability, it’s a done deal, Mark’s got it.”

Two hours later, a deputy sheriff and a chaplain arrived to say that hunters had found Mark Wild’s body in the woods, dead of a self-inflicted gunshot wound.

“No one can say for sure, but we’re convinced that his despondency and fear about the disability decision contributed to his death,” said Mrs. Wild, who wears a pinch of her son’s ashes in a small tube on a necklace.

Mr. Wild has tried to go back to work, but says he is so depressed he cannot do his job. He is applying for disability, but knows that he cannot expect an answer anytime soon.

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