In an order in lieu of granting leave to appeal, the court reversed the Court of Appeals judgment in a published case (see e-Journal # 46654 in the 8/26/10 edition) and reinstated the WCAC's order. The court held that the Court of Appeals erred in concluding that Aquilina remained valid after the 1985 amendments to the WDCA. The court concluded that in "contrast with the statutory mechanism in place at the time Aquilina was decided, the WCAC is now required to treat as conclusive the factual findings of the magistrate where those findings are ‘supported by competent, material, and substantial evidence on the whole record.'" Since the WCAC now must "give deference to the magistrate's factual determinations, and may no longer engage in de novo fact finding, a WCAC decision does not require a ‘true majority' ‘decision based on stated facts.'"
Justices Cavanagh and M. Kelly concluded that the Court of Appeals "did not clearly err in applying Aquilina under the facts of this case." While the 1985 amendments brought reforms to the WDCA, "as the Court of Appeals recognized, the review function of appellate courts remains the same." Even after the amendments, the court recognized in Holden "the importance of a ‘carefully constructed opinion by the WCAC' in facilitating appellate review." In this case, "as in Aquilina, a commissioner in the majority did not issue a separate opinion but, instead, concurred only in the result reached by the lead opinion." The justices would deny leave to appeal.
Justice Hathaway would grant leave to appeal because she believed the court "would benefit from plenary review of the issues before rendering a decision."
Friday, December 16, 2011
Slip and fall obvious
Holding that the ramp on which the plaintiff fell constituted an open and obvious hazard, and there was also no genuine issue of material fact as to whether special aspects of the ramp created an unreasonably dangerous condition, the court affirmed the trial court's grant of summary disposition to defendants. Plaintiff argued that the trial court incorrectly ruled that the ramp on which she fell constituted an open and obvious hazard. Plaintiff further contended that if the hazard was open and obvious, special aspects made the condition unreasonably dangerous. The court has ruled that handicap ramps generally constitute open and obvious dangers. However, plaintiff cited the affidavit of Z to support her position. According to Z, the ramp did not comply with the MBC. Z specifically asserted that the ramp was steeper than specified by the MBC, the sides were not flared to allow proper drainage, and the whole ramp was painted instead of just the edges which would have made the ramp more noticeable and less slippery when wet. The court has ruled that a code violation is merely evidence of negligence, and "even when a hazardous condition results from a code violation, ‘[t]he critical inquiry is whether there is something unusual about [the alleged hazard] that gives rise to an unreasonable risk of harm.'" Were the court to accept that the ramp did not comply with the MBC, on casual inspection an average user of ordinary intelligence would nonetheless have noticed the alleged danger posed by the handicap ramp. Plaintiff testified that she had already walked up the ramp while on her way into The Salvation Army, so she had already observed the incline. Further, regardless whether water could accumulate on the ramp, plaintiff fell when the weather was clear and she did not testify that there was water on the ground. Thus, an average person, having recently walked on the ramp, would have been aware of the alleged danger it posed - the condition was open and obvious. Plaintiff claimed that, even if open and obvious, the ramp was unreasonably dangerous pursuant to Lugo. On the contrary, the alleged danger posed by the ramp was unlikely to cause a substantial risk of death or severe injury. Further, the ramp was clearly avoidable. Plaintiff admitted that she could have stepped off of the curb instead of walking down the ramp.
Surviving Mold Exposure
Mold Wars - Part 2
As an educator, I read Chapter 8 of Surviving Mold with particular interest (“The Belperons: A Family Adrift in a Sea of Ignorance”). The Belperons faced exposure to multiple toxins both at home and at school. On page 175, there are several important references to water-damage in schools. After a storm, “…carpet and building materials were being thrown out of the second floor…” to waiting dumpsters below. “In the second reference, “Pipes froze and burst, roofs leaked, and waste water holding tanks backed up.” A Nor’easter had torn away “…a portion of the roof flashing, only to reveal that significant sections of rain and ice barrier were never installed.” This is more information than most parents get about water damage. There is an unwritten rule in schools that parents are not to be informed about building issues that could affect the health of children. It is tantamount to treason for a teacher to confide information about an unhealthy building to a parent. Not that school systems actually have anything to worry about. It is my experience that most teachers in a school building are blissfully ignorant about the majority of indoor air quality issues.
The type of ventilation system in a building has a major effect on how widespread the damage will be. Universal ventilation systems in a water-damaged building tend to cause poor indoor air quality in a large area of the building. Without a universal air circulation system to facilitate the spread of spores and airborne bacteria, schools like mine tend to have localized areas of contamination.
As a teacher and an eye-witness, I will record what I have observed about the types of damage caused by water intrusions in my school building and how that damage was handled by the custodial and facilities personnel. As a rule of thumb, water intrusions have multiple points of entry in a water-damaged building. The following areas with water-damage are of particular concern in my building:
1. The main lobby and the gym lobby – sometimes it is hard to tell if ceiling panels are wet because of a hydrostatic leak related to an aging flat roof or a leaky sprinkler system or even pipe condensate. The lobby areas in my building have a combination of the first two. The flat roof is over fifteen years old, and a good storm can saturate a ceiling panel overnight. A gaping hole in the ceiling panel array with a large trash can underneath it is a good indication of a roof leak. We had three large trashcans in the lobby after Hurricane Irene swept through Maryland in August of 2011 (with additional trashcans on the second floor). Replacing a school’s roof is an expensive proposition. Likewise, shutting down and draining the pipes in the heating and sprinkler system is a major time-consuming procedure that can only be done during the sweltering summer months when the school is largely unoccupied. If the pipe joints have asbestos solder, federal AHERA regulations come into effect and that can cause a dramatic increase in the repair’s price tag. The Department of Facilities has provided a reservoir of replacement ceiling panels to “swap out” the damaged ones. When Maryland Governor Martin O’Malley, County Executive Jim Smith and MD State Superintendent Nancy Grasmick visited my school on November 11, 2009, over two-dozen water-damaged ceiling panels in the main lobby and gym lobby were “swapped out” prior to the visit (we even got additional cleaning staff that week!). In August of 2011, the policy of replacing water-damaged ceiling panels ceased. A dozen gaping holes in the ceiling panel array greeted parents during National Education Week, but it probably looked better than wet and water-stained ceiling panels. On November 21, when the parents were safely out of the building, the gaps were filled with new ceiling panels. A stack of unused ceiling panels sits in the abandoned boy’s shower room adjacent to the gymnasium for future swap outs. Needless-to-say, bacterial activity in the lobby has the potential to be a serious health issue for the students and staff.
2. The library and adjacent hallway – there was a major flood in the fall of 2005. A failed pressure test on the new heating system caused an improperly installed cap to blow. The huge photocopier below the pipe was destroyed by hundreds of gallons of water flowing unimpeded from the pipe. The second floor library, the library workroom and the book storage room were all damaged. The art room (119) and two adjoining work storerooms on the floor below had cascades of water flowing down the walls. The library has also had water intrusions caused by two leaky air conditioners. Until they were replaced with new energy efficient models in 2010, the two antiquated air conditioners would get books wet and create large puddles on the floor. The hallway outside the library has had several sprinkler pipe leaks as well. If anything shows signs of visible mold, whether it be a book or a ceiling panel, the evidence is removed from the building by environmental services personnel and disposed of off-site without writing any reports or collecting any scientific data. If the custodial department thinks that no one is looking, they will use subterfuge to deal with the problem in their own unique ways. In one instance in the spring of 2011, mold was scrubbed off a second floor ceiling panel in the hallway near the library by a custodian and the damaged panel was left in place. In other instances, mold-contaminated ceiling panels were quietly disposed of in the school’s dumpster without notifying the school’s environmental team or the Dept. of Environmental Services. In a more brazen instance that I wrote about in Surviving Mold, the mold under a sink unit in the library workroom was scrubbed clean by a custodian even though the school system’s industrial hygienists were en-route to the school to inspect it. You would think that the perpetrator would get in trouble for such a blatant destructive act of environmental evidence. Nope – inspecting the mold was just a formality. It was going to be declared harmless anyway.
3. The first floor custodial room, the Dark Room (the old photography room), the art and foreign language storeroom, and the boys bathroom – this cluster of four adjoining rooms has had a string of bad luck. A clogged drain in the custodial sink (shown below) backed up and overflowed three–times monthly throughout the 2009-2010 school year (and probably in multiple years before that).The water would go through the bottom of the wall and flood the adjoining art and foreign language storeroom and the boy’s bathroom. As if this bathroom did not have enough problems, a clogged pipe was causing a toilet to erupt like a geyser and overflow daily for six weeks in the spring of 2011. Then to add insult to injury that same spring, a roof leak funneled water into the Dark Room and destabilized the asbestos floor tiles. Three of these rooms are less than ten feet from my classroom! With three serious sources of water intrusion in such a compact place, the Department of Facilities had its hands full. Solutions that were done correctly include fixing the place on the roof where the new window construction was allowing water in. Plumbers had some success in 2011 in opening up the two clogged drains. The asbestos tiles were replaced in the Dark Room, a book room and the art/foreign language storage room. Despite these successes, the Custodial Room still has a heavy smell of dirt. My recommendation was that the top plank of the wet wooden shelving at floor level be pulled up to clean out any accumulated dirt (and mold), but that has not happened.
4. Classrooms – A second floor Spanish classroom had a small leak in the ceiling in the fall of 2010 (probably from a sprinkler pipe). There was no prior history of mold or water intrusions in this room, yet some of the most aggressive toxigenic molds in the school developed visible colonies in this classroom during that ill-fated fall season. Several first floor science classrooms had water stains develop on the ceiling panels in 2010 (probably from overhead pipes). Mold formed on a ceiling panel in an 8th grade science classroom during the summer of 2011. A second floor math room had a huge round trashcan next to the teacher’s desk to catch the water that flowed into the classroom following rainstorms. On back-to-school night, water was coming down into the trashcan even though it had not rained in three days. There must have been a reservoir of water trapped on the flat roof from clogged drains.
5. The Weight Room – This basement room holds the weight-lifting equipment used by the Phys-Ed Department and the local Recreation Center. In September of 2011, it flooded badly during Hurricane Irene and again during Tropical Storm Lee. It had flooded on previous occasions during the 2010-2011. There is a two inch riser with wet unpainted wood at floor level in this room. The Department of Facilities stationed two high powered fans in the room to help dry it out. It did a good job pushing humid air from one part of the room to another. On September 8, 2011, an industrial-sized snake “roto-rootered” the outside drain that was causing the stairwell to fill up like a bathtub and flood the weight room after every storm.
6. The School Kitchen – Mold developed on a wet ceiling panel in the food manager’s office during the summer of 2010. The damaged ceiling panel was surreptitiously disposed of by the school’s custodial staff on or about October 14, 2010. This remediation did not show up in the school system’s report to OCR. I did not learn of the mold contamination until after the event, so I was unable to affect a microscopy study or ERMI. The custodian who removed the panel was ordered not to tell anyone. The following Monday, she came to my room and told me. In fact, the entire night custodial staff was told on December 9 that they were not allowed to talk to me anymore. I know the exact date because three of them came to my room later that evening and told me. Ten months later in October 2011, I saw mold on a water-damaged ceiling panel in the kitchen and I got to it first. The majority of the sample was Aspergillus ustus, but interestingly, there were small amounts of Stachybotrys chartarum and Chaetomium globosum present in the mold sample.
7. Miscellaneous storage rooms and hallways with water-damaged ceiling tiles – There are places on both floors of the school which have water stains on the ceiling panels from leaking sprinkler pipes or the leaky flat roof. As bad as roof damage can be, leaking pipes on the first floor are equally worrisome because they can sustain fungal and bacterial growth throughout the school year. Leaky pipes can nourish a fungal colony even when the heating system lowers the humidity level below 60% for much of the winter. I check these rooms and hallways periodically for signs of mold growth.
This is the water damage that I am aware of and have been able to document since 2005 (additional water damage prior to 2005 is documented in Surviving Mold chapter 20). For all I know, I am only scratching the surface. One thing that I can be sure of – there are schools across the country with descriptions of water damage just like what you read here and in Surviving Mold. By keeping water damage a secret, there are parents of sick kids with environmental-based illnesses running from one doctor to another who are oblivious that there is anything wrong with their neighborhood school.
In an age of ever-shrinking facilities repair budgets, the issue becomes whether or not a school system can successfully deal with the aftermath of water intrusions so that they do not lead to the growth of bacteria and fungi that can be pathogens to human health. Parents expect school systems nationwide to protect the health of the children who have been entrusted into their stewardship. Budgetary and fiscal constraints can make that expectation moot. Should a parent suspect that the building is causing their kid to be sick, principals are armed with reports from facilities personnel noting that the building in question has been thoroughly examined X-number of years ago and it received a clean bill of health. Once a building gets an IAQ clean bill of health, the report is paraded around like it is written in stone and anyone who challenges it is considered a heretic.
One of our environmental personnel once told me and my former principal that our school had not had sustained any serious water-damage that could lead to the growth of toxigenic mold; therefore, there cannot be a mold problem within the building. It is a perverse form of self-serving logic – deny the existence of water damage and that allows you to deny the existence of species of mold, metabolites and bacteria that can be pathogens to human health.
The school system’s health office, however, made its own determination independent of the water-damage debate. It is their job to analyze the attendance in all of the schools on a yearly basis and compare them to each other. They were clearly concerned about the high rate of student absenteeism. According to their statistical analysis, my school was one of the top five sickest schools in the county during the 2009-2010 school year (and that is out of 175 schools and centers). Our road to bacterial and fungal perdition was paved with the absentee notes of our sick student population.
Sources of Water Damage in a Building
by Lee Thomassen
[My school system provided a short report concerning water damage in my school to the Office of Civil Rights in 2011. Said report was obtained in a Freedom of Information Act request in October of 2011. On advice of Counsel, I am noting that it is the opinion of the school system that damage from water intrusions in the building has been minimal and has been dealt with appropriately. Several areas of the school that suffered water damage during the 2010-2011 school year were not reported to OCR. ]
The school that I work in has individual unit ventilators in each classroom with no universal air ventilation system in the overall building. Only the main office area has a forced air system for air conditioning and ventilation that uses duct work and operates throughout the year. Individual classroom unit ventilators handle the air intake and filtration. The units exchange air in the classroom with fresh air from the outside. This allows carbon dioxide to be removed from the classroom. In the old days before the units were installed in 2004, the indoor air environment would be saturated with CO2 by the end of the day. Drowsiness and headaches were the primary result. The units provide heat during the winter from hot water pipes attached to a boiler, but they do not provide air conditioning. The school is a sweltering furnace at the beginning and end of the school year. The custodial staff often works in 100 degree temperatures with 90 percent humidity during the summer months.
As an educator, I read Chapter 8 of Surviving Mold with particular interest (“The Belperons: A Family Adrift in a Sea of Ignorance”). The Belperons faced exposure to multiple toxins both at home and at school. On page 175, there are several important references to water-damage in schools. After a storm, “…carpet and building materials were being thrown out of the second floor…” to waiting dumpsters below. “In the second reference, “Pipes froze and burst, roofs leaked, and waste water holding tanks backed up.” A Nor’easter had torn away “…a portion of the roof flashing, only to reveal that significant sections of rain and ice barrier were never installed.” This is more information than most parents get about water damage. There is an unwritten rule in schools that parents are not to be informed about building issues that could affect the health of children. It is tantamount to treason for a teacher to confide information about an unhealthy building to a parent. Not that school systems actually have anything to worry about. It is my experience that most teachers in a school building are blissfully ignorant about the majority of indoor air quality issues.
The type of ventilation system in a building has a major effect on how widespread the damage will be. Universal ventilation systems in a water-damaged building tend to cause poor indoor air quality in a large area of the building. Without a universal air circulation system to facilitate the spread of spores and airborne bacteria, schools like mine tend to have localized areas of contamination.
As a teacher and an eye-witness, I will record what I have observed about the types of damage caused by water intrusions in my school building and how that damage was handled by the custodial and facilities personnel. As a rule of thumb, water intrusions have multiple points of entry in a water-damaged building. The following areas with water-damage are of particular concern in my building:
1. The main lobby and the gym lobby – sometimes it is hard to tell if ceiling panels are wet because of a hydrostatic leak related to an aging flat roof or a leaky sprinkler system or even pipe condensate. The lobby areas in my building have a combination of the first two. The flat roof is over fifteen years old, and a good storm can saturate a ceiling panel overnight. A gaping hole in the ceiling panel array with a large trash can underneath it is a good indication of a roof leak. We had three large trashcans in the lobby after Hurricane Irene swept through Maryland in August of 2011 (with additional trashcans on the second floor). Replacing a school’s roof is an expensive proposition. Likewise, shutting down and draining the pipes in the heating and sprinkler system is a major time-consuming procedure that can only be done during the sweltering summer months when the school is largely unoccupied. If the pipe joints have asbestos solder, federal AHERA regulations come into effect and that can cause a dramatic increase in the repair’s price tag. The Department of Facilities has provided a reservoir of replacement ceiling panels to “swap out” the damaged ones. When Maryland Governor Martin O’Malley, County Executive Jim Smith and MD State Superintendent Nancy Grasmick visited my school on November 11, 2009, over two-dozen water-damaged ceiling panels in the main lobby and gym lobby were “swapped out” prior to the visit (we even got additional cleaning staff that week!). In August of 2011, the policy of replacing water-damaged ceiling panels ceased. A dozen gaping holes in the ceiling panel array greeted parents during National Education Week, but it probably looked better than wet and water-stained ceiling panels. On November 21, when the parents were safely out of the building, the gaps were filled with new ceiling panels. A stack of unused ceiling panels sits in the abandoned boy’s shower room adjacent to the gymnasium for future swap outs. Needless-to-say, bacterial activity in the lobby has the potential to be a serious health issue for the students and staff.
2. The library and adjacent hallway – there was a major flood in the fall of 2005. A failed pressure test on the new heating system caused an improperly installed cap to blow. The huge photocopier below the pipe was destroyed by hundreds of gallons of water flowing unimpeded from the pipe. The second floor library, the library workroom and the book storage room were all damaged. The art room (119) and two adjoining work storerooms on the floor below had cascades of water flowing down the walls. The library has also had water intrusions caused by two leaky air conditioners. Until they were replaced with new energy efficient models in 2010, the two antiquated air conditioners would get books wet and create large puddles on the floor. The hallway outside the library has had several sprinkler pipe leaks as well. If anything shows signs of visible mold, whether it be a book or a ceiling panel, the evidence is removed from the building by environmental services personnel and disposed of off-site without writing any reports or collecting any scientific data. If the custodial department thinks that no one is looking, they will use subterfuge to deal with the problem in their own unique ways. In one instance in the spring of 2011, mold was scrubbed off a second floor ceiling panel in the hallway near the library by a custodian and the damaged panel was left in place. In other instances, mold-contaminated ceiling panels were quietly disposed of in the school’s dumpster without notifying the school’s environmental team or the Dept. of Environmental Services. In a more brazen instance that I wrote about in Surviving Mold, the mold under a sink unit in the library workroom was scrubbed clean by a custodian even though the school system’s industrial hygienists were en-route to the school to inspect it. You would think that the perpetrator would get in trouble for such a blatant destructive act of environmental evidence. Nope – inspecting the mold was just a formality. It was going to be declared harmless anyway.
3. The first floor custodial room, the Dark Room (the old photography room), the art and foreign language storeroom, and the boys bathroom – this cluster of four adjoining rooms has had a string of bad luck. A clogged drain in the custodial sink (shown below) backed up and overflowed three–times monthly throughout the 2009-2010 school year (and probably in multiple years before that).The water would go through the bottom of the wall and flood the adjoining art and foreign language storeroom and the boy’s bathroom. As if this bathroom did not have enough problems, a clogged pipe was causing a toilet to erupt like a geyser and overflow daily for six weeks in the spring of 2011. Then to add insult to injury that same spring, a roof leak funneled water into the Dark Room and destabilized the asbestos floor tiles. Three of these rooms are less than ten feet from my classroom! With three serious sources of water intrusion in such a compact place, the Department of Facilities had its hands full. Solutions that were done correctly include fixing the place on the roof where the new window construction was allowing water in. Plumbers had some success in 2011 in opening up the two clogged drains. The asbestos tiles were replaced in the Dark Room, a book room and the art/foreign language storage room. Despite these successes, the Custodial Room still has a heavy smell of dirt. My recommendation was that the top plank of the wet wooden shelving at floor level be pulled up to clean out any accumulated dirt (and mold), but that has not happened.
4. Classrooms – A second floor Spanish classroom had a small leak in the ceiling in the fall of 2010 (probably from a sprinkler pipe). There was no prior history of mold or water intrusions in this room, yet some of the most aggressive toxigenic molds in the school developed visible colonies in this classroom during that ill-fated fall season. Several first floor science classrooms had water stains develop on the ceiling panels in 2010 (probably from overhead pipes). Mold formed on a ceiling panel in an 8th grade science classroom during the summer of 2011. A second floor math room had a huge round trashcan next to the teacher’s desk to catch the water that flowed into the classroom following rainstorms. On back-to-school night, water was coming down into the trashcan even though it had not rained in three days. There must have been a reservoir of water trapped on the flat roof from clogged drains.
5. The Weight Room – This basement room holds the weight-lifting equipment used by the Phys-Ed Department and the local Recreation Center. In September of 2011, it flooded badly during Hurricane Irene and again during Tropical Storm Lee. It had flooded on previous occasions during the 2010-2011. There is a two inch riser with wet unpainted wood at floor level in this room. The Department of Facilities stationed two high powered fans in the room to help dry it out. It did a good job pushing humid air from one part of the room to another. On September 8, 2011, an industrial-sized snake “roto-rootered” the outside drain that was causing the stairwell to fill up like a bathtub and flood the weight room after every storm.
6. The School Kitchen – Mold developed on a wet ceiling panel in the food manager’s office during the summer of 2010. The damaged ceiling panel was surreptitiously disposed of by the school’s custodial staff on or about October 14, 2010. This remediation did not show up in the school system’s report to OCR. I did not learn of the mold contamination until after the event, so I was unable to affect a microscopy study or ERMI. The custodian who removed the panel was ordered not to tell anyone. The following Monday, she came to my room and told me. In fact, the entire night custodial staff was told on December 9 that they were not allowed to talk to me anymore. I know the exact date because three of them came to my room later that evening and told me. Ten months later in October 2011, I saw mold on a water-damaged ceiling panel in the kitchen and I got to it first. The majority of the sample was Aspergillus ustus, but interestingly, there were small amounts of Stachybotrys chartarum and Chaetomium globosum present in the mold sample.
7. Miscellaneous storage rooms and hallways with water-damaged ceiling tiles – There are places on both floors of the school which have water stains on the ceiling panels from leaking sprinkler pipes or the leaky flat roof. As bad as roof damage can be, leaking pipes on the first floor are equally worrisome because they can sustain fungal and bacterial growth throughout the school year. Leaky pipes can nourish a fungal colony even when the heating system lowers the humidity level below 60% for much of the winter. I check these rooms and hallways periodically for signs of mold growth.
This is the water damage that I am aware of and have been able to document since 2005 (additional water damage prior to 2005 is documented in Surviving Mold chapter 20). For all I know, I am only scratching the surface. One thing that I can be sure of – there are schools across the country with descriptions of water damage just like what you read here and in Surviving Mold. By keeping water damage a secret, there are parents of sick kids with environmental-based illnesses running from one doctor to another who are oblivious that there is anything wrong with their neighborhood school.
In an age of ever-shrinking facilities repair budgets, the issue becomes whether or not a school system can successfully deal with the aftermath of water intrusions so that they do not lead to the growth of bacteria and fungi that can be pathogens to human health. Parents expect school systems nationwide to protect the health of the children who have been entrusted into their stewardship. Budgetary and fiscal constraints can make that expectation moot. Should a parent suspect that the building is causing their kid to be sick, principals are armed with reports from facilities personnel noting that the building in question has been thoroughly examined X-number of years ago and it received a clean bill of health. Once a building gets an IAQ clean bill of health, the report is paraded around like it is written in stone and anyone who challenges it is considered a heretic.
One of our environmental personnel once told me and my former principal that our school had not had sustained any serious water-damage that could lead to the growth of toxigenic mold; therefore, there cannot be a mold problem within the building. It is a perverse form of self-serving logic – deny the existence of water damage and that allows you to deny the existence of species of mold, metabolites and bacteria that can be pathogens to human health.
The school system’s health office, however, made its own determination independent of the water-damage debate. It is their job to analyze the attendance in all of the schools on a yearly basis and compare them to each other. They were clearly concerned about the high rate of student absenteeism. According to their statistical analysis, my school was one of the top five sickest schools in the county during the 2009-2010 school year (and that is out of 175 schools and centers). Our road to bacterial and fungal perdition was paved with the absentee notes of our sick student population.
Thursday, December 15, 2011
Worker Compensation coordination update
On remand from the Supreme Court, the court affirmed the WCAC's decision, which affirmed a magistrate's decision holding that the defendant-SIF may not reduce its reimbursement to the defendant-Township (employer) to reflect the Township's unexercised right to coordinate benefits. The court held that Rahman supported the WCAC's conclusion, and there was no principled reason for distinguishing it. Plaintiff was employed full-time by GM and part-time as a Township firefighter. He was injured while working as a firefighter for the Township and temporarily unable to work at either job. The Township paid weekly wage-loss benefits to plaintiff at the maximum rate. Plaintiff also received benefits from a "sickness and accident" policy purchased by the Township. The Township did not reduce its payment of worker's compensation benefits to plaintiff pursuant to MCL 418.354(1). The Township deliberately chose not to coordinate the benefits for its own policy reasons. After paying the weekly wage-loss benefits to plaintiff, the Township sought reimbursement from the SIF pursuant to the procedure in MCL 418.372(1)(b). The SIF agreed to pay an amount it contended it would have owed if the Township had coordinated the sickness and accident benefits and thus reduced the weekly benefit that was apportioned between the Township and the SIF. The Township filed a petition to recoup the benefits it claimed the SIF owed. Relying on Rahman, the magistrate rejected the SIF's argument as to coordination and granted the Township's petition. The WCAC unanimously affirmed the magistrate's decision. The SIF argued on appeal that the WCAC erred in directing the SIF to reimburse the Township on the basis of the uncoordinated amount that the Township voluntarily paid. The "dual employment" provision of the WDCA governs the payment of weekly wage-loss benefits to an employee with dual employers. When the employee is injured while performing a job that pays 80% or less of his total average weekly wage, § 372(1)(b) provides a formula and procedure for the payment of the weekly wage benefits. The WDCA's provision governing the coordination of benefits was implicated in this case because of the benefits that plaintiff received from a "sickness and accident" policy the Township purchased. The SIF maintained that "the apportionment of liability in § 372(1)(b) should occur after the employee's weekly benefit amount is reduced through the coordination of benefits pursuant to § 354(1)." The court held that position was not consistent with Rahman, in which the SIF argued "that the amount it is required to reimburse the board [the injury-employer] should be calculated after plaintiff's pension is deducted from the total amount of weekly benefits due to the plaintiff on the basis of his employment with the board and the city." In rejecting that argument, the court focused on the plain language of § 354(1). While the SIF argued that Rahman was wrongly decided, the court was bound to follow that decision. Further, the court concluded that Rahman is consistent with the statutory language, and the SIF's position is not. The SIF argued that Rahman is distinguishable because it concerned coordination of a different type of benefit - pension benefits rather than benefits from a disability insurance policy. "But, both types of benefits are governed by § 354(1), and the statute
Medical malpractice expert musrt support all claims
The court held, inter alia, that the trial court erred by denying the defendants' motion for partial summary disposition as to the plaintiff's allegations of malpractice occurring before 10/11/05, the 23 broadly-stated allegations of malpractice in her complaint that lacked expert support, and her allegations related to a lack of informed consent for the fat injection procedure. Genuine issues of material fact existed as to her claims concerning the exteriorization of the Becker port and failure to more quickly remove the Becker implant, and the trial court properly denied defendants' motion as to those claims. Plaintiff's claim that defendant-Smith improperly placed the implant at the time of the 7/06 surgery also remained a matter for jury determination. Plaintiff began treating with Smith, a plastic and reconstructive surgeon, on 5/26/04. According to the complaint, Smith diagnosed her with mammary hypoplasia and recommended bilateral augmentation mammoplasty. He did the surgery on 7/26/04. At the follow-up visit, he noted that there was a displacement of the right infra-mammary crease and applied Elastoplast tape to the area. Plaintiff underwent a second surgery on 3/4/05. Smith repositioned the right implant and increased the volume bilaterally. Then, "additional complications arose including the appearance of the right implant being higher than the left implant and the development of some abnormality, described variously in the records." An abscess also developed. On 4/12/05, Smith performed an incision and debridement in his office and prescribed an antibiotic for an infection in the breast. Because the infection persisted, Smith conducted surgery on 5/9/05, removing the right implant. After several follow-up visits and various "post-operative difficulties" plaintiff underwent another surgery. Smith placed a Becker implant in the right breast on 9/16/05. After the surgery, plaintiff again "developed complications including what appeared to be a discoloration on an area of the breast, erythema, and infection." On 9/22/05, she was admitted to the hospital for treatment with IV antibiotics. Smith tried to treat the infection "by opening an incision site near or about the Becker port, and by attempting to aspirate through the body of the breast." The parties agreed that on 10/11/05, Smith exteriorized the Becker port to allow for drainage. On 11/28/05, he conducted surgery to remove the right implant. Plaintiff recovered well after the removal and they agreed to wait several months before placing another implant. On 5/19/06, Smith decided it would be better to do a "fat injection," rather than install a new implant. Plaintiff signed a consent form authorizing Smith to inject fat into the right breast. She underwent another surgery of 7/14/06, where Smith placed a new implant in her right breast. Her last visit to Smith was on 7/18/06. Photographs after the final surgery showed significant "migration" of the right implant. Later, plaintiff saw another plastic surgeon. On 3/18/09, she was seen by Dr. I, a plastic and reconstructive surgeon. He performed corrective surgery on 4/14/09. According to plaintiff's expert, W, the surgery was "partially successful," meaning the appearance of the breast was improved and plaintiff was happier. But there was still a depression and some unevenness. Dr. W suggested further corrections for the appearance of the breast. She sued defendants on 9/18/07 alleging medical negligence. The court noted that plaintiff did not provide expert testimony for her allegations of malpractice pre-10/11/05 and some of her other claims lacked expert support, and held, inter alia, that the trial court should have granted defendants' motion as to those claims. Thus, the court affirmed in part, reversed in part, and remanded.
Divorce penalty for filing twice
Since at a minimum, the plaintiff-wife and her attorney (appellant) were aware of the UK proceedings and reasonable inquiry into the state of those proceedings would have revealed that a divorce decree had already been issued by the UK court, the court held that the trial court did not clearly err in determining that sanctions were warranted under MCR 2.114 and MCL 600.2591. Further, given the itemized billing statement, the undisputed hourly rates, and the trial court's finding, the court found no abuse of discretion that defendant-husband reasonably incurred costs and expenses in the amount of $10,044.25 for defending this frivolous action. Plaintiff's divorce complaint was filed in the trial court on 4/19/10. On $/21/10 she obtained ex parte orders for parenting time and a restraining order as to the disposition of assets. However, defendant had filed for divorce in the UK, where the parties previously lived, on 2/15/09, and was awarded custody of their two children by order of the UK court on 6/10/09. An interim divorce was entered in the UK, which became absolute within six weeks. The complaint filed in the trial court was clearly frivolous because divorce proceedings had already taken place in the UK. The court noted that it was incumbent on plaintiff to verify the status of the UK proceedings before filing the complaint. Thus, the trial court did not err in determining that sanctions were warranted. Plaintiff did not dispute the reasonableness or the hourly rate of legal fees, rather she argued that defendant should have advised her of the resolution of the UK divorce and should have filed a motion to dismiss, rather then taking plaintiff's deposition and then filing a motion to dismiss. The court concluded that the record supported the trial court's finding that the attorney fees and costs incurred by defendant were reasonable. On 5/21/10, the trial court dismissed the divorce case in its entirety for lack of jurisdiction. Affirmed.
Insurance what you don't know
Concluding, inter alia, that knowledge was not a prerequisite of the actual language of the insurance policy contract, the court affirmed the trial court's order granting the defendant-insurer summary disposition in this dispute as to coverage under a homeowner's insurance policy. The plaintiff-insured purchased homeowner's insurance from defendant for a rental property. He leased the property and later discovered that his tenants had moved out but continued to use the home to house at least 18 animals, primarily dogs. "The animals had urinated and defecated throughout the home, resulting in considerable damage." Plaintiff filed a property loss notice with defendant seeking coverage under the policy. Defendant sent him correspondence indicating that his policy precluded coverage based on an animal exclusion provision. Plaintiff sued. The trial court ruled for defendant based on the exclusionary policy language relating to animals. The policy provided that it did "not cover loss resulting directly or indirectly from . . . wear and tear, marring, scratching or deterioration . . . animals owned or kept by an insured or tenant[.]" Plaintiff argued on appeal, inter alia, that the animal exclusion provision required a landlord have actual knowledge that a tenant was retaining animals on the property. He contended that he was unaware the tenants kept animals at the house, contrary to their lease, and that the exclusion was unenforceable. The court concluded that while plaintiff argued that the term "kept" necessarily implies knowledge, this interpretation was "strained. While a definition of ‘kept' implies possession, it does not necessarily infer knowledge as the language of the exclusion encompasses ‘animals owned or kept by any insured or tenant.'" Plaintiff also argued that the exclusion did not apply because the property damage was attributable to the tenants' failure "to clean up the animal urine and feces over an extended period of time rather than the actual voiding by the animals in the residence." However, the court held that this argument was "insupportable based on the language of the exclusion," which precluded a claim for loss resulting "directly or indirectly" from "animals owned or kept by any insured or tenant."
Wednesday, December 14, 2011
no-fault insurance debate in Michigan
Motorists who are seriously injured in accidents might face bankruptcy and not receive the medical care they need if the Michigan legislature passes a bill to eliminate no-fault auto insurance, say defenders of the no-fault policy.
However, a spokesman for the insurance industry said the unlimited medical coverage provided under no-fault insurance since 1973 is unaffordable, noting there’s a $1 billion deficit in a fund managed by the Michigan Catastrophic Claims Association. The $145 each vehicle owner pays under no fault coverage is allocated to the fund to cover medical costs for those permanently injured in crashes.
The proposed legislation will end lifetime medical coverage and allow motorists to buy additional coverage of $500,000 to $5 million. Beyond that, medical costs would be shifted to Medicaid. Proponents said eliminating no fault would cut Michigan auto insurance rates from 15 to 50 percent.
One patient, Milissa Louwaert, 40, of Dryden, said it would be wrong to eliminate no fault.
Without the extensive medical treatment she received, “there is no way I’d be at the functional level I am at now,” she said.
At age 24, she incurred a fractured skull and was in a coma for 17 days when the pickup she was riding in on I-75 at Caniff Avenue in Detroit was hit by a semi-trailer carrying 37 tons of steel. Her friend, the driver, had a concussion and fractured pelvis.
Both were taken to Detroit’s Receiving Hospital for treatment.
“If we had been any farther from the hospital, I would not have made it,” said Louwaert, a registered nurse who is married with two children.
Her head was split open six inches from behind her left ear, exposing her brain, she said. “I was in surgery with a neurosurgeon within an hour.”
Four days after the initial Nov. 2, 1995 accident, she suffered a “major hemorrhagic stroke” on the right side of her brain.
A second brain surgery was necessary to save her life.
Louwaert said if it wasn’t for Michigan’s no-fault auto insurance and a mandatory lifelong insurance pool to care for those with devastating injuries she wouldn’t have had a normal life.
Pete Kunmeunch, who is with the Insurance Institute of Michigan, says, “ ... I think what we need to do is try to responsibly address the system that we have. It’s been a great system for our consumers, but in the long term it needs some repair.”
Under the state’s current mandatory auto no-fault insurance, an injured motorist or passenger is covered up to $500,000 in medical bills. Then, the backstop is using money from the catastrophic claims fund for medical care.
The Dryden woman said if her friend didn’t have no-fault coverage “we would have gone bankrupt.” After being released from Receiving Hospital, she received treatment at a Beaumont Hospital rehab facility in Birmingham. She had physical, occupational, recreational and academic therapy for months afterwards.
As a result of the crash, her left arm and hand are paralyzed but she still works part-time as a nurse. She also has several adaptive devices at her home so she can make cakes and mashed potatoes with bowl holders and an opener under her cabinet for bottles.
“The way I am set up, whatever Blue Cross doesn’t pay, no-fault does,” she said.
“Just my two neurosurgeries after the accident cost $125,000,” she said.“This coverage helped me to get back into nursing school and return to being functional,” said Louwaert, who graduated from nursing school at Oakland University.
She said medications for lingering spasticity on her left side from the accident do not work. She must have continuing therapy to retain her mobility and strength.
The state’s Insurance Commissioner Kevin Clinton doesn’t think there’s any problem with how the catastrophic claims association is managing the injury fund.
“... I believe the actuaries for the MCCA are doing an outstanding job of trying to estimate these costs in a process that has a great deal of uncertainty,” he said.
“And the (cost) uncertainty exists because of the length of time benefits are paid and because of the unlimited nature of the benefits. Imagine trying to estimate what healthcare costs will be decades from now.”
A spokesman for Beaumont Hospital said it favors leaving no fault insurance in place because the catastrophic coverage guarantees that severely injured patients receive the care they need.
However, a spokesman for the insurance industry said the unlimited medical coverage provided under no-fault insurance since 1973 is unaffordable, noting there’s a $1 billion deficit in a fund managed by the Michigan Catastrophic Claims Association. The $145 each vehicle owner pays under no fault coverage is allocated to the fund to cover medical costs for those permanently injured in crashes.
The proposed legislation will end lifetime medical coverage and allow motorists to buy additional coverage of $500,000 to $5 million. Beyond that, medical costs would be shifted to Medicaid. Proponents said eliminating no fault would cut Michigan auto insurance rates from 15 to 50 percent.
One patient, Milissa Louwaert, 40, of Dryden, said it would be wrong to eliminate no fault.
Without the extensive medical treatment she received, “there is no way I’d be at the functional level I am at now,” she said.
At age 24, she incurred a fractured skull and was in a coma for 17 days when the pickup she was riding in on I-75 at Caniff Avenue in Detroit was hit by a semi-trailer carrying 37 tons of steel. Her friend, the driver, had a concussion and fractured pelvis.
Both were taken to Detroit’s Receiving Hospital for treatment.
“If we had been any farther from the hospital, I would not have made it,” said Louwaert, a registered nurse who is married with two children.
Her head was split open six inches from behind her left ear, exposing her brain, she said. “I was in surgery with a neurosurgeon within an hour.”
Four days after the initial Nov. 2, 1995 accident, she suffered a “major hemorrhagic stroke” on the right side of her brain.
A second brain surgery was necessary to save her life.
Louwaert said if it wasn’t for Michigan’s no-fault auto insurance and a mandatory lifelong insurance pool to care for those with devastating injuries she wouldn’t have had a normal life.
Pete Kunmeunch, who is with the Insurance Institute of Michigan, says, “ ... I think what we need to do is try to responsibly address the system that we have. It’s been a great system for our consumers, but in the long term it needs some repair.”
Under the state’s current mandatory auto no-fault insurance, an injured motorist or passenger is covered up to $500,000 in medical bills. Then, the backstop is using money from the catastrophic claims fund for medical care.
The Dryden woman said if her friend didn’t have no-fault coverage “we would have gone bankrupt.” After being released from Receiving Hospital, she received treatment at a Beaumont Hospital rehab facility in Birmingham. She had physical, occupational, recreational and academic therapy for months afterwards.
As a result of the crash, her left arm and hand are paralyzed but she still works part-time as a nurse. She also has several adaptive devices at her home so she can make cakes and mashed potatoes with bowl holders and an opener under her cabinet for bottles.
“The way I am set up, whatever Blue Cross doesn’t pay, no-fault does,” she said.
“Just my two neurosurgeries after the accident cost $125,000,” she said.“This coverage helped me to get back into nursing school and return to being functional,” said Louwaert, who graduated from nursing school at Oakland University.
She said medications for lingering spasticity on her left side from the accident do not work. She must have continuing therapy to retain her mobility and strength.
The state’s Insurance Commissioner Kevin Clinton doesn’t think there’s any problem with how the catastrophic claims association is managing the injury fund.
“... I believe the actuaries for the MCCA are doing an outstanding job of trying to estimate these costs in a process that has a great deal of uncertainty,” he said.
“And the (cost) uncertainty exists because of the length of time benefits are paid and because of the unlimited nature of the benefits. Imagine trying to estimate what healthcare costs will be decades from now.”
A spokesman for Beaumont Hospital said it favors leaving no fault insurance in place because the catastrophic coverage guarantees that severely injured patients receive the care they need.
Tuesday, December 13, 2011
Mold exposure is deadly serious
The eight-foot tall Godzilla-like black fungus that had been growing on the wall of the custodial room ten feet from my classroom was gone! Hallelujah!!! As of May 2010, there would be no more contamination from this alpha colony of Aspergillus fumigatus in my school!
In late August of 2010, I began my 22nd school year as a middle school teacher. I had high hopes that after years of bacterial and fungal torture, I would have a chance to go into recovery mode for the first time in over a decade. We had a new principal in the building and no one had reprimanded me in ten months! Things were looking up!
There is, however, no reprieve from the bacterial and fungal hazards in a water-damaged building. One of the most toxigenic molds known to medical science was expanding its area of influence in my school. It loved the cellulose in water-damaged ceiling panels and the paper in books, both of which abound in schools. It is one of the most toxigenic molds known to medical science and the bane of many water-damaged buildings – Chaetomium globosum.
Hi – my name is Lee Thomassen. If you read Dr. Shoemaker’s book Surviving Mold, you might recognize me as the author of chapter 20 (“Teaching in a Water-Damaged School – Fighting for Our Lives”). It is now September of 2011. Being out of the building for seven weeks over the summer did wonders for my “brain fog.” My first experience with VIP (Vasoactive Intestinal Polypeptide) replacement therapy brought all but one of my abnormal blood counts down to normal. I have used this window of opportunity to write with a clear memory a historical account of what I experienced during the 2010-2011 school year.
I wrote chapter 20 in June of 2010 and the roller-coaster ride since then has not abated. All across this country, there are employees, students, renters and home owners who have suffered the ravages of Chronic Inflammatory Response Syndrome. It is a shared experience that we hold in common. What makes this story unique is that I witnessed something truly remarkable – in the fall of 2010, my employer had to sign a Voluntary Resolution Agreement with the Office for Civil Rights, US Department of Education, for violating my rights under Section 504 of the Rehabilitation Act of 1973 for discriminating against me after I filed for accommodations relating to my inflammatory response illness. Then in the spring of 2011, a 2nd major Maryland public school system was impacted by Section 504 – it granted disability retirement to a teacher after coming to the conclusion that it could not meet the accommodation requirements contained in her application for accommodations in the water-damaged building where she worked.
Section 504 of the Rehabilitation Act can be a powerful tool in the battle against employers who refuse to deal with illnesses related to the indoor air environment. Teachers are the largest group of employees in the nation that are exposed to harmful toxins, bacteria and microbes in water-damaged buildings. Children have benefited from these proceedings for decades – now it is time for employees to use Section 504 for their own benefit. According to federal law, any person who works for an organization that receives federal financial assistance can apply for 504 accommodations (just like students can), and that probably applies to every employee involved in public education. Other groups that would be covered include the military, the FAA, WIC, Social Security workers and Postal employees. The list of organizations in the United States that are recipients of federal financial assistance, both inside and outside the federal government, is huge.
In the fall of 2010, my employer suddenly awakened to the threat of what it could mean to be the first school system in the country to have the federal government force them to grant accommodations for disabilities caused by toxigenic mold exposure (and all of the harmful metabolites, cell fragments, actinomycetes and mycobacteria that go hand-in-hand with exposures in water-damaged buildings). They mobilized their enormous resources as the 26th largest school system in the nation. This included their attorneys in the school system’s “Law Cottage” (yes – my school system has a building just for its lawyers – our property tax dollars well spent). They brought together their highly paid engineers and industrial hygienists at the Department of Facilities and the Department of Environmental Services. Our Environmental Services personnel are careful to leave no paper trail with regards to my school (despite the documentation requirements of MOSH, Maryland’s subsidiary of OSHA) and they do no sampling that could produce a lab report that might contradict their position that the building I work in does not have water-intrusion and indoor air quality issues.
The 2010-2011 school year was a David vs. Goliath struggle. I did not have a building full of lawyers, two industrial hygienists and a bunch of building engineers to help me. But I did have weapons that proved to be very powerful.
It is my hope that my on-going historical account of what happened during the 2010-2011 school year may prove useful to those who have to fight the same battles in their schools and water-damaged buildings. In this series of blogs, I will narrate the events that pick-up where Chapter 20 in Surviving Mold left off.
In late August of 2010, I began my 22nd school year as a middle school teacher. I had high hopes that after years of bacterial and fungal torture, I would have a chance to go into recovery mode for the first time in over a decade. We had a new principal in the building and no one had reprimanded me in ten months! Things were looking up!
There is, however, no reprieve from the bacterial and fungal hazards in a water-damaged building. One of the most toxigenic molds known to medical science was expanding its area of influence in my school. It loved the cellulose in water-damaged ceiling panels and the paper in books, both of which abound in schools. It is one of the most toxigenic molds known to medical science and the bane of many water-damaged buildings – Chaetomium globosum.
Hi – my name is Lee Thomassen. If you read Dr. Shoemaker’s book Surviving Mold, you might recognize me as the author of chapter 20 (“Teaching in a Water-Damaged School – Fighting for Our Lives”). It is now September of 2011. Being out of the building for seven weeks over the summer did wonders for my “brain fog.” My first experience with VIP (Vasoactive Intestinal Polypeptide) replacement therapy brought all but one of my abnormal blood counts down to normal. I have used this window of opportunity to write with a clear memory a historical account of what I experienced during the 2010-2011 school year.
I wrote chapter 20 in June of 2010 and the roller-coaster ride since then has not abated. All across this country, there are employees, students, renters and home owners who have suffered the ravages of Chronic Inflammatory Response Syndrome. It is a shared experience that we hold in common. What makes this story unique is that I witnessed something truly remarkable – in the fall of 2010, my employer had to sign a Voluntary Resolution Agreement with the Office for Civil Rights, US Department of Education, for violating my rights under Section 504 of the Rehabilitation Act of 1973 for discriminating against me after I filed for accommodations relating to my inflammatory response illness. Then in the spring of 2011, a 2nd major Maryland public school system was impacted by Section 504 – it granted disability retirement to a teacher after coming to the conclusion that it could not meet the accommodation requirements contained in her application for accommodations in the water-damaged building where she worked.
Section 504 of the Rehabilitation Act can be a powerful tool in the battle against employers who refuse to deal with illnesses related to the indoor air environment. Teachers are the largest group of employees in the nation that are exposed to harmful toxins, bacteria and microbes in water-damaged buildings. Children have benefited from these proceedings for decades – now it is time for employees to use Section 504 for their own benefit. According to federal law, any person who works for an organization that receives federal financial assistance can apply for 504 accommodations (just like students can), and that probably applies to every employee involved in public education. Other groups that would be covered include the military, the FAA, WIC, Social Security workers and Postal employees. The list of organizations in the United States that are recipients of federal financial assistance, both inside and outside the federal government, is huge.
In the fall of 2010, my employer suddenly awakened to the threat of what it could mean to be the first school system in the country to have the federal government force them to grant accommodations for disabilities caused by toxigenic mold exposure (and all of the harmful metabolites, cell fragments, actinomycetes and mycobacteria that go hand-in-hand with exposures in water-damaged buildings). They mobilized their enormous resources as the 26th largest school system in the nation. This included their attorneys in the school system’s “Law Cottage” (yes – my school system has a building just for its lawyers – our property tax dollars well spent). They brought together their highly paid engineers and industrial hygienists at the Department of Facilities and the Department of Environmental Services. Our Environmental Services personnel are careful to leave no paper trail with regards to my school (despite the documentation requirements of MOSH, Maryland’s subsidiary of OSHA) and they do no sampling that could produce a lab report that might contradict their position that the building I work in does not have water-intrusion and indoor air quality issues.
The 2010-2011 school year was a David vs. Goliath struggle. I did not have a building full of lawyers, two industrial hygienists and a bunch of building engineers to help me. But I did have weapons that proved to be very powerful.
It is my hope that my on-going historical account of what happened during the 2010-2011 school year may prove useful to those who have to fight the same battles in their schools and water-damaged buildings. In this series of blogs, I will narrate the events that pick-up where Chapter 20 in Surviving Mold left off.
Car accident drunk backing
Holding that there were no material factual issues as to whether the defendant-driver intentionally harmed the plaintiff or whether the incident caused plaintiff's alleged serious impairment, the court affirmed the trial court's order granting defendant summary disposition. Plaintiff and defendant both consumed alcohol at a party, and defendant had an altercation with plaintiff's girlfriend. After plaintiff and his girlfriend left the party, defendant drove to plaintiff's home, where the altercation reignited. "Plaintiff attempted to separate the two women and demanded that defendant leave. Defendant got into her car, floored the accelerator with the car in reverse, and backed into plaintiff, catching his leg between her car and a parked car." Plaintiff went to the ER, reporting significant pain in his lower left leg. Medical personnel found no broken bones and told him to use crutches and follow up with his personal physician. He continued to have leg pain during the next year. "The central factual issue for analysis" as to the § 3135(3)(a) claim was whether defendant intended to cause harm. The record contained two reports relevant to this determination - the ER report and the police report. Both contained statements in which plaintiff and his girlfriend declared that defendant deliberately struck plaintiff with her car. However, the court did not have to decide whether the reports were admissible because plaintiff's sworn deposition testimony neutralized any questions of fact created by the reports. "Plaintiff expressly testified in deposition that he did not know whether defendant intentionally struck him." In light of his sworn deposition testimony, the court concluded that his prior unsworn statements were insufficient to create a question of fact as to defendant's intent. Plaintiff argued that the trial court should have inferred defendant's intent based on her conduct, citing Wardlaw. However, in Wardlaw witnesses testified that the defendant drove a truck onto a lawn and aimed for the victim. There was no testimony here that defendant aimed her car at plaintiff. The court also rejected plaintiff's claim that genuine factual issues precluded summary disposition on his serious impairment of body function claim. Defendant produced medical records showing that before the incident, plaintiff sustained two significant injuries that caused back and leg pain. The medical records indicated that his current condition was related to his prior injuries. "Once defendant presented these records, plaintiff was required under MCR 2.116(G)(4) to present evidence to create a question of fact" as to whether defendant's conduct caused his alleged serious impairment. He "presented no admissible evidence to establish that his current condition resulted from the incident at issue."
Slip and fall negligence
Holding, inter alia, that the slushy condition of the foyer floor that caused the plaintiff-tenant's fall was open and obvious, the court affirmed the trial court's order granting the defendant-landlord summary disposition. Plaintiff lived in an apartment building owned and operated by defendant. On 1/18/09, as she was descending a stairway and stepping into the tiled foyer of the building, plaintiff slipped and fell, sustaining injuries. She asserted that her slip and fall was the direct result of defendant's negligence in, inter alia, allowing ice, slush, snow, and water to accumulate on the tile and failing to remove or warn of the hazard. She also alleged that defendant breached its statutory obligations as a lessor. The court noted that plaintiff was walking down a stairway directly behind another person (S) and, as she stepped from the first step onto the foyer floor, she immediately fell. S had come to plaintiff's apartment to pick her up and had traversed the foyer, without incident, minutes before. S testified that when he first entered the foyer, he immediately noticed that the rug covering part of the floor had snow all over it. S also testified "that slush on the foyer floor beyond the rug was present and obvious, but that he had no problem walking through the slushy area to access the stairs to plaintiff's apartment." S testified that he went up the stairs (which were wet) to plaintiff's apartment and remained there for about five minutes. S and plaintiff then both came down the stairs, with S carrying a laundry basket and walking in front of plaintiff. S stepped off the bottom step and into the foyer without incident. Plaintiff, who had nothing in her hands, stepped behind S off the bottom stair and onto the foyer floor, immediately falling. She admitted that once she had fallen, she was able to observe the slushy condition of the floor. She also admitted "that once she stood in the foyer after her fall, the condition was readily apparent." The court noted that there was no allegation that the foyer layout, the lighting, or any other extraneous factor worked to conceal the condition. The only thing that prevented plaintiff from seeing the condition of the foyer was S's body in front of her. This was a factor beyond defendant's reach, "transitory in nature and arguably not a specific factor that could be specifically predicted in time or placement, nor controlled or prevented by the premises owner." The court also rejected plaintiff's claim that a question of fact existed as to whether defendant breached its statutory duty to maintain the common area in a manner fit for its intended purpose.
Nursing home negligence
The stench of human waste hit her as she walked into her new job.
Denise Hubbard hadn't officially begun as nursing director at St. James Nursing Center in Detroit. But her phone rang on a Sunday, a day before her start date: Midnight shift nurses had left, and dayside was short-staffed.
Could she come in?
In a series of court documents, Hubbard described her first day -- Jan. 14, 2001 -- in graphic detail: sickly, malnourished residents; overworked staff, and equipment "completely plugged with hard, dried green mucous."
"Dried salt like tear stains" streaked the face of resident Shirley Jackson as she rocked in bed, struggling to breathe. Jackson's lips and tongue were dry and turning blue. At 68 pounds, bones protruded through her skin.
Jackson was hospitalized, Hubbard said, and died weeks later. The home paid $265,000 to settle a lawsuit filed by her sister. Earlier this month, owner Ciena Healthcare Management issued a statement saying that, despite setbacks, it is making "progress towards better and sustained compliance" with health regulations.
In 2003, Hubbard filed a whistleblower suit against Ciena, spawning a legal battle that ended with a court-ordered plan to improve care in the chain's 36 homes, mostly in Michigan. Ciena paid $1.25 million but admitted no wrongdoing.
More than 10 years after Jackson's death, the 150-bed Detroit nursing home remains one of the state's lowest performing, federal ratings show. So are two other Ciena homes, Omni Continuing Care in Detroit and Brittany Manor in Midland, even as Ciena also owns highly ranked homes.
The story of St. James, from its enduring problems to its continued operation, shows the glacial pace of nursing home reform in Michigan -- where a substandard home can linger for years, racking up violations, but staying open for business.
Rich homes, poor homes -- all with same owner
Ciena Healthcare Management, a nursing home chain with nearly three dozen Michigan facilities, is a study in extremes.
At its newest home, Regency at Waterford, the smell of fresh paint and new carpet lingers. There are private rooms and showers, wide-open meeting spaces, courtyards and an executive chef.
While the Waterford home glimmers, Ciena also owns two Detroit homes that are among the state's most poorly rated: Omni Continuing Care and St. James Nursing Center. Both have been cited again and again by state inspectors for serious lapses in patient care, as has Brittany Manor, a Ciena facility in Midland.
Although these homes are near the bottom in serious violations, they are not alone. More than three-quarters of Michigan homes received at least one serious violation in the last three years.
At Omni in 2009, a diabetic man died after he didn't eat dinner or a snack and was not given a supplement or insulin. A lab technician found his body, cold and stiff. Staff had trouble rousing a sleeping nurse as they called 911.
Inspectors also cited Omni for failing to report several incidents, including one in which a 60-year-old man died after pulling out a tube connected to his trachea.
At St. James, along seven-lane Gratiot Avenue, a resident with a history of confusion slipped outside in 48-degree weather for hours, dressed only in pajamas. Surveillance tapes showed that he passed two staff members in the parking lot -- one who said, "Good morning," she later recalled -- yet no one questioned him.
It wasn't until the man's girlfriend reported him missing two hours later that staff searched for him. He was located two blocks away, sitting on a porch.
In 2009, inspectors reviewing a death at St. James discovered that a nurse caring for a dying woman was actually an impostor. Deanna Smith-Eddington had worked there for nearly a month, dispensing medications and caring for residents.
St. James was cited for, among other things, failing to adequately screen Smith-Eddington's background.
Ciena told the Free Press that St. James reported the impostor nurse to the state. She remains in prison.
There were lower-level citations, too.
At St. James last year, an inspector watched for 20 minutes as one resident stood covered in her own waste, asking for help that never came. One staffer observed what was happening, picked up breakfast trays nearby and left.
Yet the Ciena chain of nursing homes also boasts facilities that have performed well on federal ratings, with few violations, including Christian Park Healthcare Center and Christian Park Village, both in Escanaba.
Ciena "is such a mixture of poor performing homes and lovely places which are well staffed and (have) state-of-the-art equipment," said Sarah Slocum, Michigan's Long Term Care Ombudsman, a state office.
The poorest-performing, she noted, are in some of the most troubled neighborhoods.
Slocum said her concerns are not limited to Ciena, but extend to any chain that has an extreme mix of affluent and poorly financed homes, yet is expanding. "If those resources are being spent on opening the new places, they're not being spent on the old, struggling places," she said.
Southfield-based Ciena now operates under a five-year, court-ordered federal agreement that requires tighter federal oversight. The order came after St. James nursing director Denise Hubbard quit her post in 2001 and filed a whistleblower's suit alleging residents lived in filth, missed meals and medications and, in at least two cases, were malnourished or severely dehydrated.
Monday, December 5, 2011
Discovery sanctions should be commensurate with damage to other side
Concluding that the trial court's sanction of barring defendant-ACIA from presenting any evidence due to its violation of discovery orders was "unjust and disproportionate," the court vacated the judgment for the plaintiff in this no-fault case and remanded for a new trial. Further, the court held that "evidence of agency rates constitutes a material and probative measure of the general value of attendant care services," including family-provided services. Thus, the trial court properly rejected ACIA's attempt to exclude evidence of the rates charged by healthcare agencies for attendant care services. However, the court concluded that the trial court should have presented one of ACIA's proposed special jury instructions because the instruction accurately reflected "that many factors are relevant to the reasonable rate issue" and it was consistent with Sokolek and Sharp. The jury found ACIA liable to plaintiff for family-provided attendant care services at a rate of $28/hour. The only dispute in the case was the "reasonable charge" for his parents' attendant care services. The court determined that the trial court abused its discretion in selecting the sanction imposed. The trial court "specifically concluded that ACIA's conduct did not merit the drastic sanction of default." While the trial court labeled its order as "a lesser sanction," the court concluded that the trial court "actually imposed a sanction more severe and limiting than a default judgment would have been." If the trial court granted plaintiff's motion for a default, ACIA would have been allowed to present evidence as to damages. The trial court's "actual sanction went further and precluded ACIA from presenting any evidence, even on the damages issue." While the trial court correctly found that ACIA violated its discovery orders, it clearly erred in finding that the discovery violations severely prejudiced plaintiff. Since the sanction was disproportionate and affected the whole trial, the court vacated and remanded for a new trial. This reopened the parties' debate on the valuation of family-provided attendant care services. ACIA argued that the rates charged by healthcare agencies for these services were irrelevant to establishing the reasonable rate for unlicensed, family-provided services. While ACIA relied extensively on Bonkowski, the court in that case "expressly acknowledged that its analysis of this issue was pure dicta" and the court disagreed with the suggestion that agency rates are irrelevant to establish family-care rates. The rates an agency charges for attendant care services "are not dispositive of the reasonable rate chargeable by a relative caregiver. However, this does not detract from the relevance of such evidence." As to other relevant evidence, the court concluded that evidence of the "overhead" incurred (or not incurred) by plaintiff's parents would be relevant in calculating a "reasonable charge," and a "parent who personally provides attendant care services also certainly bears an ‘opportunity cost.'" The court determined that ACIA's "Alternative B" proposed jury instruction recognized "the multi-faceted nature of the required calculation" to establish a "reasonable charge" for services and allowed "the jury to consider a broad spectrum of relevant evidence."
Friday, December 2, 2011
no-fault insurance reforms ignore patient needs
GRAND RAPIDS - It was Valentine’s Day 2001 when the vehicle then-16-year-old Emily Blauw was driving hit a patch of black ice and spun out of control and hit a tree in Ottawa County.
Blauw suffered a debilitating spinal cord injury and to this day her legs and hands are paralyzed. She spent nearly five months after the crash in rehabilitation at Mary Free Bed in Grand Rapids.
Now, as a therapist at that hospital, the wheelchair-bound Blauw is one of many fighting to preserve the decades-old Michigan no-fault insurance law she credits with giving her a mostly independent life.
The movement to reform Michigan’s no-fault law, which guarantees lifetime medical care to automobile crash victims regardless of who caused the accident, recently has gained traction in the Legislature.
The matter was brought to the forefront by insurance groups and other proponents who argue the current system is unsustainable because of increasing medical costs.
State lawmakers have spent weeks considering different proposals, including capping the lifetime payout to new crash victims. Such discussions have no-fault advocates crying foul and trying to put a human face on the policy.
”This is just short-sighted and could possibly be interpreted as politically expedient,” said David Blauw, Emily’s father and a representative from spiritual care services at Holland Hospital. “It’s not going to help people like Emily.”
Emily and David Blauw attended a meeting of nearly 30 people Thursday night of the Coalition Protecting Auto No-fault, or CPAN, at Allendale Township Library.
CPAN comprises health and other professionals from across the state, including local institutions such as Mary Free Bed, Spectrum Health System and Hope Network.
Proposals by the insurance industry would allow people to choose their level of care, which has been advertised as allowing people to choose their level of payment, said Margaret Kroese, vice president of Hope Network Rehabilitation Services.
But under the legislation, the maximum cap would be $5 million. Such a plan, Kroese said, would not cover all lifetime costs and likely would be avoided by most as too expensive.
“Clearly people are concerned about the changes,” Kroese said. “I think there’s definitely the energy. I’m optimistic that we won’t see changes as drastic (as current proposals).”
No-fault proponents acknowledged the system is imperfect and might need tweaking, but insisted it serves as a national model for patient care.
Mary Rigo-Burdo, brain injury program manager at Mary Free Bed, said most patients her division sees are children whose age would be adversely impacted by a lifetime payout cap.
No-fault typically covers charges associated with recovery after critical injury in an accident, including necessary home improvements for the handicapped or round-the-clock assisted living care.
”We’re preparing (patients) to be discharged back home or into the community, they’re not going to have the resources that people have now,” Rigo-Burdo said.
Rigo-Burdo was flanked by a handful of Mary Free Bed therapists, including Kris Fowler, a registered occupational therapist in the brain injury program.
”We want the best care for them and it would grieve us to not be able to do everything we can for that person,” Fowler said. “If we were not to have no-fault...it would be depressing to have to go to work and only be able to do so much and not everything you could for a person. I can’t imagine.”
For her part, Emily Blauw said Michigan’s no-fault law helped her achieve what could have been the unthinkable.
She went on to graduate high school, obtained degrees from Hope College and Western Michigan University and is gainfully employed helping people who endured trauma she knows all too well.
Emily Blauw is able to drive again, and because no-fault is funded through auto insurance premiums, she’s paying back into the system that helped her once again become “a productive member of society.”
”I was able to go to college like any other college student. If I had had the added expenses...I may not have been able to go to school, and I think on a huge level (no-fault) really took a lot of the burden away,” she said. “It has allowed me to function as a person and as an individual.”
Dr Shoemaker fights for truth and health
Instead, I seek to know why T regulatory cells that are induced by high levels of TGF beta-1 can change in tissue affected by high IL-6 and IL-17 to become pathogenic T cells, ones that add to the burden of humoral inflammatory mediators. I get to see the very worst chronic fatiguers regain health when they have their non-existent vasoactive intestinal polypeptide (VIP) replenished. And I get to write the IRB applications that let me do such work. Some days, I feel invigorated by such excitement, but face it, there are the days when people aren’t getting better and the defense counsel in the big case in Georgia just produced an affidavit from a guy who has never treated anyone with illness from a water-damaged building that attacks me viciously. Those days are fewer now that the research group I work with has published a lot of good studies, yet they will occur predictably in the future. If one wants to avoid being bitten by snakes, a good idea is to not step into snake pits.
Dr Shoemaker makes a difference for us all
“My illnesses” are contentious enough: mold, Post-Lyme, ciguatera, fibromyalgia and Chronic Fatigue Syndrome is the short list. No wonder there are so many attorneys (personal injury and disability alike) wanting something from my office. Just 10 years ago though, who could show the mechanisms of inflammation these illnesses all have? Now we can. And now that the mechanisms by which abnormalities in innate immunity develop in these patients are defined, and they are all chronic inflammatory response syndromes (CIRS), successful therapies follow. Seeing someone injured by exposure to a moldy building, for example, return to productive life after 10 years of functional disability brings a sense of joy different from the professional pleasures from my earlier medical life. I used to treasure the feeling that came from helping a three year old survive ear infections, mono, marriage and then parenthood. I still do. The two phases of my medical career have reinforced my belief that physicians can truly make a difference in society.
Thursday, December 1, 2011
Scurrilous men and women steal with lies
Watching the shameful spectacle in our nation's capital masquerading as a national government, I cannot help but be reminded of George Washington's dire warning about political parties.
In his farewell address to the nation, Washington forcefully warned the country that "political parties serve to organize faction, to give it an artificial and extraordinary force; to put, in the place of the delegated will of the nation the will of a party, often a small but artful and enterprising minority of the community (resulting in) ill-concerted and incongruous projects . . . they are likely . . . to become potent engines, by which cunning, ambitious, and unprincipled men will be enabled to subvert the power of the people and to usurp for themselves the reins of government."
I cannot imagine a more prescient description of our nation's sorry state of affairs.
What makes the situation more infuriating is that 70 to 80 percent of Americans think the federal deficit should be reduced by cutting expenses a lot and raising taxes a little.
Why is it, then, that Congress continues to defy the will of the American people? It's actually pretty simple. The minority who believe the deficit should be solved either by solely cutting expenses or raising taxes are the voters who dominate the primaries of the Democratic and Republican parties. It is these voters who give us nothing but ideologues, incapable of compromise.
For meaningful change, we're going to have to return to the Founders' view of political parties. Instead of being proud to be associated with a political party, it should be an embarrassment. After the debacle with the supercommittee, that sentiment should not be much of a stretch.
Wayne County rotten with cronyism
I once asked a retiring labor leader what he intended to do after leaving the union. "If nothing else turns up," he replied, "I'll see what Bob Ficano has for me."
Wayne County is the employer of last resort for washed-up Democratic politicians, labor bosses looking for a second career, the friends and family of the well-connected and anyone else who can soothe a key constituency.
It is more a fraternal society than a government. Once you gain membership, you're set up. Having the county on your resume opens the vault to public contracts that are making millionaires of ex-staffers.
As The Detroit News reported this week, County Executive Ficano has more discretionary appointees than any other elected official in Michigan, and he uses them to build a political machine that keeps him in office and its members in the clover.
Many of the 187 Ficano appointees have six-figure paychecks and extraordinarily fat benefit packages. And while Ficano contends they're all cracker-jack workers who serve the taxpayers well, some of the positions and their salaries are impossible to justify, especially considering the county's $160 million budget gap.
An example: Ficano has two former Redford Township supervisors on his staff: Miles Handy, who handles "labor issues" and Kevin Kelley, responsible for "senior services."
Neither position would seem critical in a nearly broke county, except in helping Ficano keep his job.
Ficano also has in his deck a number of executive assistant spots — re: clerk — to pass out to the relatives of his in-crowd, including one for his girlfriend's sister. They get paid $60,000 to $70,000, or about twice what the private sector pays clerks.
It adds up to a county government that serves a cabal of the connected at taxpayers' expense. And it isn't just Ficano.
Sheriff Benny Napoleon pays two pals, including one who hired his brother, $75,000 a year to stand in for him when he's too busy to attend community events. He's spinning like a top the contract for services other sheriffs do without. Give it up, Benny. There's no excuse for a county on the fast track to insolvency to be wasting money on a pair of well-placed glad-handers.
Ficano rightly contends that he's a piker compared to former County Executive Edward McNamara, who maintained nearly 400 appointees. Many of the McNamara gang are now with former Deputy County Executive Mike Duggan at the Detroit Medical Center, proving again the lasting benefits of club membership.
Yes, McNamara had 400. But L. Brooks Patterson has only 19 in Oakland County, and not one of them is there as a political pay-off.
"I couldn't hire someone for political reasons if I wanted to," Patterson says. "My appointees have to clear the corporation counsel and the county commission."
That's the difference between good government that delivers a dollar's worth of value for every dollar it collects from taxpayers, and one rotten with cronyism.
Wayne County voters enable the abuse of their tax money by rubber stamping whoever the Democratic Party anoints for office. If it's ever going to change, the voters will have to be the ones who change it.
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