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description=An analysis of trends and developments in Workers Compensation Law throughout the United States.;

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tional illness compensation program the radiation exposure compensation act the september 11th victim compensation fund and the world trade center health program the smallpox emergency personnel protection act the countermeasures injury compensation program and libby care each was enacted in response to a discrete political emergency each has different eligibility rules evidentiary standards administering agencies and appropriations posture each sits alongside fifty plus state workers compensation systems each with its own occupational disease definitions statutes of limitations and burdens of proof that patchwork produces the outcome libby illustrates a worker or household contact with a latency driven disease must first identify which of a dozen programs might apply then litigate compensability then litigate causation then litigate apportionment among pre existing and co existing conditions and only then receive treatment half of lifetime medical cost is incurred in the final year of life the litigation frequently outlives the claimant a universal single payer mechanism coordinated through the centers for medicare medicaid services would invert the sequence care would be delivered on diagnosis rather than on adjudication causation where it mattered for prevention or for cost allocation could be determined epidemiologically and prospectively rather than case by case and retrospectively most consequentially for this practice area it would eliminate the structural necessity of the medicare secondary payer act the msp act 42 u s c 1395y b exists because medicare is a payer of last resort in a system where someone else is supposed to pay first every conditional payment recovery action every section 111 mandatory insurer reporting obligation every workers compensation medicare set aside allocation every cms review threshold and every re review request is administrative overhead generated by the fragmentation itself the pay and chase model consumes resources on both sides and delays settlement and it does not exist in a single payer architecture because there is no secondary payer to chase notably the libby pilot program already anticipated this design section 1395rr 1 authorizes flexible benefits and services outside ordinary medicare coverage innovative reimbursement methodologies and waiver authority in the secretary congress wrote the coordination machinery it simply confined it to one zip code what this means for workers compensation claims practitioners should not read libby as a montana story the mechanisms on display are portable and several are already in motion elsewhere 1 diagnostic infrastructure is now a litigable target the qui tam template used against card applies to any occupational disease clinic screening program union medical fund or specialty practice whose certifications drive federal benefit eligibility expect employers carriers and third party defendants to evaluate fca exposure of the providers who diagnose the claimants suing them providers serving occupational disease populations should assume their certification protocols will be examined for independent confirmation radiologic over read practice and documentation of differential diagnosis 2 latency claims lose their evidentiary front end occupational disease claims turn on medical proof that the claimant usually cannot generate alone asbestosis silicosis chronic beryllium disease coal workers pneumoconiosis and occupational cancers are typically identified through surveillance programs not through symptomatic presentation when surveillance disappears the claims do not disappear they simply arrive later sicker and with weaker proof of causation that shifts cost from the responsible employer to medicare medicaid and the claimant s family which is precisely the cost shifting the msp act was enacted to prevent 3 medical records preservation is now an active file task counsel with pending or prospective claims involving libby amphibole exposure should request complete card records immediately and document the request records survive dissolution under hipaa but custody during a corporate wind up is unstable and the clinic has already described access as limited the same exposure exists wherever a specialty occupational clinic closes do not assume a successor custodian will be identified promptly or at all 4 the independent confirmation attack will migrate into workers compensation forums the card jury found falsity where the certifying physician did not obtain outside confirmation of asbestos related disease that finding is already usable rhetoric for respondents challenging a treating physician s causation opinion an authorized provider s permanency evaluation or a claimant expert s reliance on his own reading of imaging anticipate the argument that a certification unaccompanied by independent verification is not merely weak but affirmatively unreliable and build the record accordingly 5 third party recovery is narrowing which pushes exposure back onto workers compensation wells extends the common carrier exception to the accumulation of hazardous residue during transport not merely to the act of carriage in take home and community exposure cases the transporter is frequently the only solvent non bankrupt defendant as that avenue closes more of the loss returns to the workers compensation system and to the employer s experience rating and lien and subrogation recoveries that carriers have modeled into reserves will not materialize 6 federal offset assumptions in settlements are unreliable practitioners have been negotiating around the assumption that a libby eligible claimant has medicare through section 1395rr 1 regardless of the workers compensation outcome the deeming provision is intact but the diagnostic pathway that produced eligibility determinations is closed do not draft settlement language that presumes future access to a federal benefit whose administrative front end no longer exists confirm current eligibility status in writing before allocating 7 occupational disease remains substantially uncompensated the underlying arithmetic has not improved since 2010 direct medical costs of occupational illness run into the tens of billions annually and workers compensation absorbs a minority share the rest is borne by medicare medicaid private group health and households underreporting remains endemic every structural failure like this widens that gap 8 asbestos itself is still not banned epa s march 2024 part 1 rule restricting chrysotile asbestos remains under challenge in texas chemistry council v epa no 24 60193 5th cir argued june 1 2026 with a decision pending compliance timelines run to 2029 for the chlor alkali sector and to 2037 for the savannah river site the other five fiber types and legacy asbestos are not covered new exposures continue to accrue while the remedial infrastructure contracts charting a new course again the 2010 post closed by observing that after a century of struggle the united states had embarked on a new course for occupational medical care that was written in good faith about a real statutory innovation the innovation was sound the delivery vehicle was a single nonprofit clinic in a town of three thousand people funded by a renewable grant exposed to hostile qui tam litigation by a party it had every reason to expect would be adverse and dependent on an executive designation that has never been repeated section 1395rr 1 is still on the books any secretary of health and human services could extend it tomorrow to any superfund community with a public health emergency declaration the more durable lesson is that occupational disease will not be solved one town at a time the delivery of medical care to exposed workers belongs in a universal non litigious system coordinated with cms where entitlement does not depend on the employer the chemical the county or the appropriations cycle libby was supposed to be the beginning it turned out to be the whole thing and now it is over recommended citation gelman jon l libby care dies quietly w orkers c ompensation workers compensation blogspot com aug 15 2026 https workers compensation blogspot com 2026 08 libby care dies quietly html available at ssrn https ssrn com abstract 7296238 or https dx doi org 10 2139 ssrn 7296238 sources 1 patient protection and affordable care act 10323 pub l no 111 148 124 stat 119 2010 adding social security act 1881a codified at 42 u s c 1395rr 1 https www law cornell edu uscode text 42 1395rr 1 2 42 u s c 1397h program for early detection of certain medical conditions related to environmental health hazards https www law cornell edu uscode text 42 1397h 3 42 u s c 1395rr 1 u s house office of law revision counsel current through mar 30 2026 https uscode house gov view xhtml req granuleid usc prelim title42 section1395rr 1 num 0 edition prelim 4 noridian healthcare solutions medicare pilot program for asbestos related disease https www noridianmedicare com ard beneficiaries enroll html 5 micah drew libby asbestos clinic abruptly shutters two weeks early daily montanan aug 13 2026 https dailymontanan com briefs libby asbestos clinic abruptly shutters two week early 6 scott shindledecker libby s card clinic shuttered three weeks sooner than expected daily inter lake aug 11 2026 https dailyinterlake com news 2026 aug 11 libbys card clinic shuttered three weeks sooner than expected 7 zoë buhrmaster after generations of asbestos exposure sickened libby residents wonder where to turn for care after clinic closure flathead beacon aug 10 2026 https flatheadbeacon com 2026 08 10 after generations of asbestos exposure sickened libby residents wonder where to turn for care after clinic closure 8 card card expresses gratitude to libby community as it prepares to close patient services pr newswire june 16 2026 https www prnewswire com news releases card expresses gratitude to libby community as it prepares to close patient services at end of august 302801686 html 9 scott shindledecker libby s card clinic to close after federal grant is not renewed daily inter lake june 17 2026 https dailyinterlake com news 2026 jun 17 card clinic closing its doors at end of august dai 10 wells v bnsf railway co no 24 4802 9th cir feb 24 2026 slip op https cdn ca9 uscourts gov datastore opinions 2026 02 24 24 4802 pdf 11 wells v bnsf railway co no 24 4802 9th cir 2026 justia https law justia com cases federal appellate courts ca9 24 4802 24 4802 2026 02 24 html 12 bnsf railway co v asbestos claims court 2020 mt 59 399 mont 180 459 p 3d 857 justia https law justia com cases montana supreme court 2020 op 19 0085 html 13 bnsf railway co v center for asbestos related disease inc no cv 19 40 m dlc d mont order on motions in limine https www govinfo gov content pkg uscourts mtd 9_19 cv 00040 pdf uscourts mtd 9_19 cv 00040 8 pdf 14 bnsf railway co v center for asbestos related disease inc no 9 25 cv 00067 d mont docket courtlistener https www courtlistener com docket 70239608 parties bnsf railway company v the center for asbestos related disease inc 15 montana health clinic must pay nearly 6 million over false asbestos claims judge rules pbs news july 2023 https www pbs org newshour health montana health clinic must pay nearly 6 million over false asbestos claims judge rules 16 matthew brown asbestos clinic in libby forced to close montana free press ap may 9 2025 https montanafreepress org 2025 05 09 asbestos clinic forced to close in montana town where thousands have been sickened by dust 17 kff health news npr with property seized and federal funding uncertain montana asbestos clinic fights for its life 2025 https kffhealthnews org news article libby montana superfund asbestos vermiculite bnsf lawsuit federal grant doj card 18 in re w r grace co expansion of preliminary injunction to bnsf courtlistener https www courtlistener com opinion 1542211 in re wr grace co 19 united states v grace 526 f 3d 499 9th cir 2008 courtlistener https www courtlistener com opinion 1190218 united states v grace 20 united states v w r grace 9th cir courtlistener https www courtlistener com opinion 1428239 united states v wr grace 21 adao fifth circuit to decide fate of limited epa ban on chrysotile asbestos may 27 2026 https www asbestosdiseaseawareness org newsroom blogs release 5th circuit arguments 22 jon l gelman the health reform act charts a new course for occupational health care workers compensation apr 12 2010 https workers compensation blogspot com 2010 04 health reform act charts new course for html about the author jon l gelman of wayne nj is the author of nj workers compensation law west thomson reuters and co author of the national treatise modern workers compensation law west thomson reuters blog workers compensation linkedin jongelman linkedin group injured workers law advocacy group author workers compensation law west thomson reuters blue sky jongelman bsky social substack https jongelman substack com 2026 jon l gelman all rights reserved attorney advertising prior results do not guarantee a similar outcome disclaimer download adobe reader posted by jon l gelman at sunday august 16 2026 no comments email this blogthis share to x share to facebook share to pinterest labels asbetsos cms msp act federalization path to federalization single payer health care universal medical care saturday august 15 2026 credibility beats credentials a costco worker quit wrote personal reasons on the form and still collected temporary disability benefits the appellate division affirmed on august 12 2026 the new jersey appellate division has affirmed an award of open temporary total disability benefits and court ordered medical treatment to a part time costco employee who resigned his job almost a year after his authorized surgeon discharged him at maximum medical improvement the decision munoz v costco docket no a 3829 24 decided august 12 2026 is unpublished and is not precedential under rule 1 36 3 its practical reach however is considerable because it turns entirely on two things that decide most contested new jersey compensation cases which doctor the judge believes and whether the employer papered the file the facts ricardo munoz injured his right knee in january 2022 while helping a customer lift a generator into a pickup truck he reported the injury immediately he was diagnosed with a right knee medial meniscal tear and extensive chondromalacia of the patellofemoral trochlear groove dr daniel richmond the authorized surgeon performed an arthroscopic medial meniscectomy on may 19 2022 cleared munoz for light duty on june 2 and returned him to full duty effective july 12 2022 full duty did not hold on july 15 munoz reported that his knee swelled after a couple of hours of work on august 2 he reported persistent swelling and worsening symptoms after five hours both times dr richmond recommended that he continue working full duty and he was discharged from care on september 29 2022 munoz resigned t...