(c) 2015 Jon L Gelman, All Rights Reserved.

Monday, October 5, 2015

And they didn't see it coming........

Rafael Gonzalez authored a very helpful, and spot on, post today that summarizes the new approach of The Centers for Medicare and Medicaid Services (CMS) to recoup benefits under Medicare Secondary Payer law (42 U.S.C. § 1395y(b)) (MSP) before a final determination is made in the underlying workers' compensation claim.
Rafael Gonzalez

With multiple reporting trigger points CMS is new able to capture data quickly and with the implementation of the expedited US Treasury debt collection procedures, the Digital Accountability and Transparency Act (DATA Act). the process will now  ignore the sluggish/delayed workers' compensation program/adjudication.

CMS has now operationalized a new procedure, "As part of the continuing efforts to improve the Coordination of Benefits & Recovery (COB&R) program and claims payment accuracy in Medicare Secondary Payer (MSP) situations, the Centers for Medicare & Medicaid Services (CMS) will be transitioning a portion of the Non-Group Health Plan (NGHP) recovery workload from the Benefits Coordination & Recovery Center (BCRC) to its CommercialRepayment Center (CRC)."

Ironically, this process cuts through the red tape and cottage industry's interests of the State programs and moves the claims to the goal of Federalization of the entire system based also on a uniformity of processing, coding and determinations at the Federal administrative level. See also, D. Torrey, The Federalization Standards Issue, A Short History Before and After NFIB v. Sebelius (2012), ABA, 2013. "These views speak loudly to the expectation of educated observers that state-based workers’ compensation will endure and that federalization is unlikely."

Additionally, the cottage industries (lawyers, insurance carriers & employers, ie. MARC) who lobbied for The Strengthening Medicare and Repaying Taxpayers (SMART) Act of 2011, never saw the forest from the trees as they tried to stake out their territory.

Perhaps, the very next step may be an effort to follow the liability program models, wherein pre-disposition, alternate resolution, is possible early in the process, ie. the mass tort specialized programs for resolution. 

Of course, workers' compensation (WC) insurers and employers would then need to really expedite WC claims. But then, wasn't that the intent of the now antiquated 1911 system anyway?

Click below to read the post on LinkedIn:
New Process for Primary Payers Resolving Medicare Conditional Payments Begins Today

Wednesday, September 30, 2015

Adult Club Dancer Is An Employee

An adult club dancer was held to be an employee in a recent NJ workers' compensation decision. The Court relied upon both, the Right to Control Test and the Relative Nature of the Work Test in making its determination of employment status.

The Honorable E. Elaine Voyles, Judge of Compensation, held:

"Although the parties were unable to enter into any stipulations, many of the relevant facts are not disputed. The Petitioner was employed as a dancer at the time of her accident. The Respondent, is an adult club wherein Petitioner, and other dancers, entertained patrons. Both parties agreed that Petitioner was required to fill out an application (P1) and audition for her position. Both parties agreed that Petitioner's schedule changed on a weekly basis and that the dancers could set their own schedule. There was further agreement that Petitioner was not paid a salary and that she worked for tips. According to the testimony of both sides, Petitioner did not have to share her tips except for when she performed a "couch dance". The cost for a "couch dance" was $20 of which $15 was given to the dancer and five dollars was retained by the Respondent.
"Petitioner testified that once the weekly schedule was set the dancers were required to appear at their designated times. She further testified that she could not leave the facility between dances and that she was required to finish out her shift.
"In assessing the degree of Respondent's right to exercise control over the Petitioner, the Court must examine the arrangements made between the Petitioner and Respondent.  Despite the fact that Petitioner set her own hours I find the Respondent exercised a substantial degree of control over Petitioner.  Petitioner was required to converse with patrons and perform both pole and couch dances. Petitioner was not free to come and go as she pleased. Once she arrived for her shift she was required to stay until that shift was completed. Dancers were chastised if they were found not to be entertaining the patrons.
"The court further finds that Petitioner was economically dependent upon the Respondent. Petitioner testified that she worked an average of five shifts per week and that the shifts averaged 8- 12 hours in duration. Additionally, Petitioner testified that her only source of income at the time of her assault was the money she earned working for the Respondent. As stated previously the Court found the testimony of the petitioner to be credible.
Decided July 14, 2014 - Posted by NJ DWC September 29, 2015

Friday, September 25, 2015

Employees exposed to dangerous workplace hazards at Pennsauken aluminum
 services plant

A aluminum company fined $308K
 OSHA's investigation found 44 safety violations, including one willful:

Employer name: Aluminum Shapes LLC, 9000 River Road, Delair, New Jersey.

Citations issued: On Sept. 21, 2015, the Occupational Safety and Health Administration cited the company for one willful, three repeat, 35 serious, and five other-than-serious violations.
Investigation findings: OSHA launched an investigation April 16, 2015, after being notified that an employee suffered a broken leg on March 24 while operating a crane and was hospitalized. The company failed to report the incident to the agency within 24 hours, as required.

The willful citation involved electrical equipment with damaged parts that could adversely affect the safe operation or mechanical strength of the equipment. In addition, pendant control boxes for a crane were damaged, malfunctioning and not clearly marked; damaged slings were not removed from service; and metal saws were not guarded to prevent employee exposure, resulting in the repeat citations. Unguarded floor openings, lack of machine guarding and confined space training were among the serious violations.

The other-than-serious violations included the employer's failure to report the hospitalization and an inadequate hazard communication program.

Proposed Penalties: $308,000

Quote: "The number of safety violations found at Aluminum Shapes' plant is completely unacceptable. This employer blatantly ignored known safety requirements, causing a preventable worker injury," said Robert Kulick, OSHA's regional administrator in New York. "This company is now paying a hefty price for its negligence. The hazards identified in the investigation should be immediately addressed to prevent future incidents and ensure worker safety."

View the citations:


A preliminary total of 4,679 fatal work injuries were recorded in the United States in 2014, an increase of 2 percent over the revised count of 4,585 fatal work injuries in 2013, according to results from the Census of Fatal Occupational Injuries (CFOI) conducted by the U.S. Bureau of Labor Statistics. The preliminary rate of fatal work injury for U.S. workers in 2014 was 3.3 per 100,000 full-time equivalent (FTE) workers; the revised rate for 2013 was also 3.3. Revised 2014 data from CFOI will be released in the late spring of 2016. Over the last 5 years, net increases to the preliminary count have averaged 173 cases, ranging from a low of 84 in 2011 (up 2 percent) to a high of 245 in 2012 (up 6 percent).

Key preliminary findings of the 2014 Census of Fatal Occupational Injuries:

 The number of fatal work injuries in private goods-producing industries in 2014 was 9 percent
higher than the revised 2013 count but slightly lower in private service-providing industries. Fatal
injuries were higher in mining (up 17 percent), agriculture (up 14 percent), manufacturing (up
9 percent), and construction (up 6 percent). Fatal work injuries for government workers were
lower (down 12 percent).

 Falls, slips, and trips increased 10 percent to 793 in 2014 from 724 in 2013. This was driven
largely by an increase in falls to a lower level to 647 in 2014 from 595 in 2013.

 Fatal work injuries involving workers 55 years of age and over rose 9 percent to 1,621 in 2014 up
from 1,490 in 2013. The preliminary 2014 count for workers 55 and over is the highest total ever
reported by CFOI.

 After a sharp decline in 2013, fatal work injuries among self-employed workers increased
10 percent in 2014 from 950 in 2013 to 1,047 in 2014.

 Women incurred 13 percent more fatal work injuries in 2014 than in 2013. Even with this
increase, women accounted for only 8 percent of all fatal occupational injuries in 2014.

 Fatal work injuries among Hispanic or Latino workers were lower in 2014, while fatal injuries
among non-Hispanic white, black or African-American, and Asian workers were all higher.

 In 2014, 797 decedents were identified as contracted workers, 6 percent higher than the
749 fatally-injured contracted workers reported in 2013. Workers who were contracted at the time
of their fatal injury accounted for 17 percent of all fatal work injury cases in 2014.

 The number of fatal work injuries among police officers and police supervisors was higher in
2014, rising from 88 in 2013 to 103 in 2014, an increase of 17 percent.

NJ Supplemental Benefits Bill Goes to The Governor

Identical Bill Number: A1908    (2R)
Last Session Bill Number: A4514   S613 (1R) 

Sweeney, Stephen M.   as Primary Sponsor
Madden, Fred H., Jr.   as Primary Sponsor
Burzichelli, John J.   as Primary Sponsor
Riley, Celeste M.   as Primary Sponsor
Moriarty, Paul D.   as Primary Sponsor

1/16/2014 Introduced in the Senate, Referred to Senate Labor Committee
3/17/2014 Reported from Senate Committee, 2nd Reading
3/17/2014 Referred to Senate Budget and Appropriations Committee
6/5/2014 Reported from Senate Committee, 2nd Reading
6/12/2014 Passed by the Senate (21-15)
6/12/2014 Received in the Assembly, Referred to Assembly Labor Committee
10/27/2014 Reported and Referred to Assembly Appropriations Committee
3/16/2015 Reported out of Assembly Comm. with Amendments, 2nd Reading
6/25/2015 Substituted for A1908 (2R)
6/25/2015 Passed by the Assembly (43-31-2)
6/25/2015 Received in the Senate, 2nd Reading on Concurrence
9/24/2015 Passed Senate (Passed Both Houses) (24-12)

Introduced - 5 pages PDF Format    HTML Format 
Statement - SLA 3/17/14 - 3 pages PDF Format    HTML Format 
Fiscal Estimate - 3/26/14; as introduced - 8 pages PDF Format    HTML Format 
Statement - SBA 6/5/14 - 4 pages PDF Format    HTML Format 
Statement - ALA 10/27/14 - 4 pages PDF Format    HTML Format 
Statement - AAP 3/16/2015 - 3 pages PDF Format    HTML Format 
Fiscal Estimate - 4/8/15; 1R - 8 pages PDF Format    HTML Format 
Reprint - 3 pages PDF Format    HTML Format 

Committee Voting:
SLA  3/17/2014  -  r/favorably  -  Yes {3}  No {1}  Not Voting {0}  Abstains {1}  -  Roll Call
SBA  6/5/2014  -  r/favorably  -  Yes {8}  No {2}  Not Voting {2}  Abstains {1}  -  Roll Call
ALA  10/27/2014  -  r/favorably  -  Yes {6}  No {2}  Not Voting {0}  Abstains {1}  -  Roll Call
AAP  3/16/2015  -  r/Aca  -  Yes {6}  No {1}  Not Voting {1}  Abstains {1}  -  Roll Call

Session Voting:
Sen.    6/12/2014  -  3RDG FINAL PASSAGE   -  Yes {21}  No {15}  Not Voting {4}    -  Roll Call
Asm.  6/25/2015  -  SUBSTITUTE FOR A1908 Aca   -  Yes {0}  No {0}  Not Voting {80}  Abstains {0}  -  Voice Vote Passed
Asm.  6/25/2015  -  3RDG FINAL PASSAGE   -  Yes {43}  No {31}  Not Voting {4}  Abstains {2}  -  Roll Call

Symposium: Celebrating Dr. Irving J. Selikoff

Friday, October 16, 2015, 8:00 AM - 12:30 PM
Location: Davis Auditorium, Hess Building, 1470 Madison Ave (between 101st and 102nd Sts)

Program Overview
: This symposium will examine the lasting impact of the legacy of Dr. Irving J. Selikoff (January 15, 1915-May 20, 1992) on occupational health and safety in the United States. Considered the father of occupational medicine, he is remembered for his seminal research on asbestos-related illnesses, his tireless advocacy for worker safety and health protections, and his contributions to the establishment of federal asbestos regulations. 

Photo Exhibit
  In conjunction with the symposium, there will be an exhibit by photographer Earl Dotter on display titled Badges: A Memorial Tribute to Asbestos Workers. Guggenheim Pavilion Atrium, 1468 Madison Avenue.

Who should attend?
 This symposium is open to the public and intended for faculty, residents, students, and members of the occupational health and safety community.

Mount Sinai Organizing Committee  
Madelynn Azar-Cavanagh, MD; Philip J. Landrigan, MD, MSc; Roberto Lucchini, MD; John D. Meyer, MD, MPH; Barbara J. Niss; Robert O. Wright, MD, MPH

 There is no fee to attend this event. Click here to register for this event or email Please note that space is limited and early registration is encouraged. 

Special Needs
The Icahn School of Medicine at Mount Sinai is in full compliance with provisions of the Americans with Disabilities Act (ADA) and is accessible for individuals with special needs. If you would like to attend this conference and require any special needs or accommodations, please contact



8:00 AM 
Breakfast and Check-in

9:00 AM 
Welcome Remarks

Robert O. Wright, MD, Chair, Dept. of Preventive Medicine, Icahn School of Medicine at Mount Sinai

Philip J. Landrigan, MD, Dean for Global Health, Icahn School of Medicine at Mount Sinai

David Michaels, PhD, MPH, Assistant Secretary of Labor for Occupational Safety and Health and Director, Occupational Safety and Health Administration (OSHA)

John Howard, MD, MPH, LLM, Director, National Institute for Occupational Safety and Health

Program Moderator

Roberto Lucchini, MD, Director, Division of Occupational and Environmental Medicine, Department of Preventive Medicine, Icahn School of Medicine at Mount Sinai

9:30 AM
 Irving J. Selikoff in History

Albert Miller, MD, Director of the Pulmonary Function Laboratory, Albert Einstein College of Medicine and Emeritus Clinical Professor of Medicine, Icahn School of Medicine at Mount Sinai 

9:50 AM
 Asbestos and Selikoff’s role in the Reconception of Responsibility for Chronic Disease in a pre-OSHA era

David K. Rosner, PhD, MPH, Ronald H. Lauterstein Professor of Sociomedical Sciences and Professor of History, Graduate School of Arts and Sciences, Columbia University Mailman School of Public Health

10:10 AM 

10:25 AM
 Update of the Selikoff’s Insulators’ Asbestos Cohort

Steven Markowitz, MD, DrPH, Barry Commoner Center for Health and the Environment, Queens College and Graduate Center, City University of New York

10:45 AM
 Pneumoconiosis and Autoimmune Disease from an Historical Perspective

Paul D. Blanc, MD, MSPH, Professor of Medicine and Endowed Chair, Occupational and Environmental Medicine, University of California San Francisco

11:05 AM 
Perspectives on Dr. Selikoff’s Contributions to Public Health and Safety Laws

Neil T. Leifer, Esq., Neil T Leifer, LLC, Auburndale, MA

11:25 AM
 Trends Today: Global Spread of Asbestos to Developing World

Barry I. Castleman, ScD, Author of Asbestos: Medical and Legal Aspects

11:45 AM 

12:05 PM 
Introduction of Photo Exhibit

 Linda Reinstein, President/CEO, Asbestos Disease Awareness Organization 

12:10 PM
 Closing Remarks

Madelynn Azar-Cavanagh, MD, Medical Director, Mount Sinai Selikoff Centers for Occupational Health

Symposium: Celebrating Dr. Irving J. Selikoff
Sponsored by the Selikoff Centers for Occupational Health, Division of Occupational and Environmental Medicine, Dept. of Preventive Medicine, Icahn School of Medicine at Mount Sinai

Thursday, September 10, 2015

John Burton Reports Private Sector Costs Down For 9th Year

Professor Emeritus, John F. Burton, Jr., reports in the Workers' Compensation Research Report that for the ninth consecutive year there have been declining costs.

Issue 10 of the Workers’ Compensation Resources Research Report (WCRRR) examines the employers’ costs of workers’ compensation. Part I relies on data from the Bureau of Labor Statistics (BLS) to examine national trends from 1986 to 2014. For private-sector employers, costs dropped for the ninth consecutive year and represented 1.77 percent of payroll in 2014, the lowest figure since 1986. For all non-federal employers, which includes state and local government employers in addition to private sector employers, employers’ costs of workers’ compensation were 1.76 percent of payroll in 2014, which was the ninth consecutive year of declining costs and the lowest figure since the data series began in 1991.

The National Academy of Social Insurance (NASI) also publishes estimates of the employers’ costs of workers’ compensation for all non-federal employers. The results of the two estimates diverge after 2010, with the NASI data showing three years of increases in employers’ costs from 2011 to 2013 (the latest year with NASI data) while the BLS data show nine years of declines through 2014.

Part II provides information based on the BLS data on the variations among employers’ costs of workers’ compensation in 2014 depending on the employers’ region, industry, the occupations of the firms’ employees, firm size, and union status. The variations among industries were significant, ranging from 4.71 percent of payroll in construction to 0.57 percent of payroll in the financial industry.

Download WCRRR Issue 10 Order Form