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

Friday, July 3, 2015

NJ Senate Passes Workers' Compensation Collective Bargaining Legislation

The NJ Senate passed an historic legislative proposal that will change the way benefits are delivered in work related injuries in NJ. S2447 provides for a collective bargaining arrangement that allows for delivery of benefits without the necessity of formal intervention before the NJ Division of Workers' Compensation, that will however remain an option in the process. 

As amended, this bill permits, but does not require, groups of employers establishing or participating in Taft-Hartley trust funds to purchase workers’ compensation insurance as a group or to apply to the Commissioner of Banking and Insurance for approval to enter into agreements to pool their workers' compensation liabilities for the purpose of qualifying as members of a group plan for self-insurance. A "Taft-Hartley trust fund" is a labor-management, jointly administered fund established by collective bargaining to provide employee benefits such as medical benefits or pensions.

The bill requires the commissioner to recognize as valid a group plan for the payment of workers' compensation by a Taft-Hartley trust fund if the plan is negotiated between the employer group and one or more unions, and it complies with the commissioner's requirements to disclose information and take measures needed to ensure the payment of compensation. 

The commissioner may conduct annual examinations and deny applications or revoke his approval for good cause. 

The bill also permits, but does not require, employers, whether or not they purchase group coverage or establish group self-insurance for workers’ compensation, to negotiate with one or more unions an agreement to better promote workplace safety and the fair, timely, and cost-effective delivery of workers’ compensation benefits by means of any one or more of the following: 

1. The use of networks or lists, mutually agreed upon by the employers and the unions, of providers of medical treatment, medical evaluation and rehabilitation as the exclusive providers of those services, notwithstanding other provisions of the workers’ compensation law regarding the selection of providers; 
2. The coordination and integration of the delivery of workers' compensation with group health benefits and non-occupational temporary disability benefits; 
3. The provision of additional benefits to supplement benefits provided under workers' compensation, non-occupational temporary disability insurance, or both; 
4. The creation of joint labor-management occupational safety and health committees; and 
5. The creation or promotion of light-duty, modified job and return-to-work programs. As amended, the bill prohibits such agreements or group plans from diminishing employee entitlements to workers' compensation or temporary disability benefits or from denying or diminishing employee or employer rights regarding the obtaining or disputing of compensation or benefits, including, but not limited to, all rights of employers or employees to obtain resolution of disputed claims by the Division of Workers’ Compensation, all rights of employees to secure treatment and services refused by an employer, all rights of employers or employees to representation by an attorney at any stage of the resolution of any aspect of a workers' compensation claim, and all rights of employers or employees to have attorney, witness and other fees paid, as provided by the workers’ compensation law. 

The Commissioner of Labor and Workforce Development is required to set standards, monitor, and issue annual reports regarding the agreements. 

COMMITTEE AMENDMENTS: The amendments adopted by the committee clarify that nothing in a collective bargaining agreement entered into under the bill (as well as nothing in an agreement or group plan for self-insurance, or group purchase of insurance, under the bill) is to be construed as permitting any diminishment of any rights provided by the workers’ compensation law to employers (as well as employees), including, but not limited to, all rights to have disputed claims resolved by the Division of Workers’ Compensation, and the right to have, and receive fees for, representation in such claims.

Session Voting:
Sen.    6/25/2015  -  3RDG FINAL PASSAGE   -  Yes {24}  No {12}  Not Voting {4}    -  Roll Call

Addiego, Dawn Marie - Not VotingAllen, Diane B. - NoBarnes, Peter J., III - Not Voting
Bateman, Christopher - NoBeach, James - YesBeck, Jennifer - Not Voting
Bucco, Anthony R. - NoCardinale, Gerald - NoCodey, Richard J. - Yes
Connors, Christopher J. - Not VotingCruz-Perez, Nilsa - YesCunningham, Sandra B. - Yes
Doherty, Michael J. - NoGill, Nia H. - YesGordon, Robert M. - Yes
Greenstein, Linda R. - YesHolzapfel, James W. - NoKean, Thomas H., Jr. - No
Kyrillos, Joseph M., Jr. - NoLesniak, Raymond J. - YesMadden, Fred H., Jr. - Yes
O'Toole, Kevin J. - NoOroho, Steven V. - NoPennacchio, Joseph - No
Pou, Nellie - YesRice, Ronald L. - YesRuiz, M. Teresa - Yes
Sacco, Nicholas J. - YesSarlo, Paul A. - YesScutari, Nicholas P. - Yes
Singer, Robert W. - YesSmith, Bob - YesStack, Brian P. - Yes
Sweeney, Stephen M. - YesThompson, Samuel D. - NoTurner, Shirley K. - Yes
Van Drew, Jeff - YesVitale, Joseph F. - YesWeinberg, Loretta - Yes
Whelan, Jim - Yes

Click here for the full text of the Bill.

Thursday, June 25, 2015

The Path to Federalization: US Supreme Court Again Validates the Affordable Care Act

The US Supreme Court again affirmed the validity of The Affordable Care Act. The Obamacare program, as it has been nicknamed, will continue to lead to a medical delivery program than eventually will have major repercussions on the antiquated and ineffective medical care system of the existing patch work of state workers' compensation insurance acts.
"In a democracy, the power to make the law rests with those chosen by the people. Our role is more confined— “to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). That is easier in some cases than in others. But in every case we must respect the role of the Legislature, and take care not to undo what it has done. A fair reading of legislation demands a fair understanding of the legislative plan. Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter. Section 36B can fairly be read consistent with what we see as Congress’s plan, and that is the reading we adopt."Chief Justice John G. Roberts Jr.
The Patient Protection and Affordable Care Act grew out of a long history of failed health insurance reform. In the 1990s, several States sought to expand access to coverage by imposing a pair of insurance market regulations—a “guaranteed issue” requirement, which bars insurers from denying coverage to any person because of his health, and a “community rating” requirement, which bars insurers from charging a person higher premiums for the same reason. 

The reforms achieved the goal of expanding access to coverage, but they also encouraged people to wait until they got sick to buy insurance. The result was an economic “death spiral”: premiums rose, the number of people buying insurance declined, and insurers left the market entirely. In 2006, however, Massachusetts discovered a way to make the guaranteed issue and community rating requirements work—by requiring individuals to buy insurance and by providing tax credits to certain individuals to make insurance more affordable. The combination of these three reforms—insurance market regulations, a coverage mandate, and tax credits—enabled Massachusetts to drastically reduce its uninsured rate. 

The Affordable Care Act adopts a version of the three key reforms that made the Massachusetts system successful. First, the Act adopts the guaranteed issue and community rating requirements. 42 U. S. C. §§300gg, 300gg–1. Second, the Act generally requires individuals to maintain health insurance coverage or make a payment to the IRS, unless the cost of buying insurance would exceed eight percent of that individual’s income. 26 U. S. C. §5000A. And third, the Act seeks to make insurance more affordable by giving refundable tax credits to individuals with household incomes between 100 percent and 400 percent of the federal poverty line. §36B. In addition to those three reforms, the Act requires the creation of an “Exchange” in each State—basically, a marketplace that allows people to compare and purchase insurance plans. 

The Act gives each State the opportunity to establish its own Exchange, but provides that the Federal Government will establish “such Exchange” if the State does not. 42 U. S. C. §§18031, 18041. 

Relatedly, the Act provides that tax credits “shall be allowed” for any “applicable taxpayer,” 26 U. S. C. §36B(a), but only if the taxpayer has enrolled in an insurance plan through “an Exchange established by the State under [42 U. S. C. §18031],” §§36B(b)–(c). An IRS regulation interprets that language as making tax credits available on “an Exchange,” 26 CFR §1.36B–2, “regardless of whether the Exchange is established and operated by a State . . . or by HHS,” 45 CFR §155.20. Petitioners are four individuals who live in Virginia, which has a Federal Exchange. They do not wish to purchase health insurance. In their view, Virginia’s Exchange does not qualify as “an Exchange established by the State under [42 U. S. C. §18031],” so they should not receive any tax credits. 

That would make the cost of buying insurance more than eight percent of petitioners’ income, exempting them from the Act’s coverage requirement. As a result of the IRS Rule, however, petitioners would receive tax credits. That would make the cost of buying insurance less than eight percent of their income, which would subject them to the Act’s coverage requirement. Petitioners challenged the IRS Rule in Federal District Court. 

The District Court dismissed the suit, holding that the Act unambiguously made tax credits available to individuals enrolled through a Federal Exchange. 

The Court of Appeals for the Fourth Circuit affirmed. The Fourth Circuit viewed the Act as ambiguous, and deferred to the IRS’s interpretation under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837. 

Held: Section 36B’s tax credits are available to individuals in States that have a Federal Exchange. Pp. 7–21. (a) When analyzing an agency’s interpretation of a statute, this Court often applies the two-step framework announced in Chevron, 467 U. S. 837. But Chevron does not provide the appropriate framework here. The tax credits are one of the Act’s key reforms and whether they are available on Federal Exchanges is a question of deep “economic and political significance”; had Congress wished to assign that question to an agency, it surely would have done so expressly. And it is especially unlikely that Congress would have delegated this decision to the IRS, which has no expertise in crafting health insurance policy of this sort. It is instead the Court’s task to determine the correct reading of Cite as: 576 U. S. ____ (2015) 3 Syllabus Section 36B. 

If the statutory language is plain, the Court must enforce it according to its terms. But oftentimes the meaning—or ambiguity—of certain words or phrases may only become evident when placed in context. So when deciding whether the language is plain, the Court must read the words “in their context and with a view to their place in the overall statutory scheme.” FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 133. Pp. 7–9. (b) When read in context, the phrase “an Exchange established by the State under [42 U. S. C. §18031]” is properly viewed as ambiguous. The phrase may be limited in its reach to State Exchanges. But it could also refer to all Exchanges—both State and Federal—for purposes of the tax credits. If a State chooses not to follow the directive in Section 18031 to establish an Exchange, the Act tells the Secretary of Health and Human Services to establish “such Exchange.” §18041. And by using the words “such Exchange,” the Act indicates that State and Federal Exchanges should be the same. 

But State and Federal Exchanges would differ in a fundamental way if tax credits were available only on State Exchanges—one type of Exchange would help make insurance more affordable by providing billions of dollars to the States’ citizens; the other type of Exchange would not. Several other provisions in the Act—e.g., Section 18031(i)(3)(B)’s requirement that all Exchanges create outreach programs to “distribute fair and impartial information concerning . . . the availability of premium tax credits under section 36B”—would make little sense if tax credits were not available on Federal Exchanges. 

The argument that the phrase “established by the State” would be superfluous if Congress meant to extend tax credits to both State and Federal Exchanges is unpersuasive. This Court’s “preference for avoiding surplusage constructions is not absolute.” Lamie v. United States Trustee, 540 U. S. 526, 536. And rigorous application of that canon does not seem a particularly useful guide to a fair construction of the Affordable Care Act, which contains more than a few examples of inartful drafting. The Court nevertheless must do its best, “bearing in mind the ‘fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.’ ” Utility Air Regulatory Group v. EPA, 573 U. S. ___, ___. Pp. 9–15. (c) 

Given that the text is ambiguous, the Court must look to the broader structure of the Act to determine whether one of Section 36B’s “permissible meanings produces a substantive effect that is compatible with the rest of the law.” United Sav. Assn. of Tex. v. Timbers of Inwood Forest Associates, Ltd., 484 U. S. 365, 371. Here, the statutory scheme compels the Court to reject petitioners’ interpretation because it would destabilize the individual insurance market in any State with a Federal Exchange, and likely create the very “death spirals” that Congress designed the Act to avoid. Under petitioners’ reading, the Act would not work in a State with a Federal Exchange. As they see it, one of the Act’s three major reforms—the tax credits—would not apply. And a second major reform—the coverage requirement—would not apply in a meaningful way, because so many individuals would be exempt from the requirement without the tax credits. If petitioners are right, therefore, only one of the Act’s three major reforms would apply in States with a Federal Exchange. 

The combination of no tax credits and an ineffective coverage requirement could well push a State’s individual insurance market into a death spiral. It is implausible that Congress meant the Act to operate in this manner. Congress made the guaranteed issue and community rating requirements applicable in every State in the Nation, but those requirements only work when combined with the coverage requirement and tax credits. 

It thus stands to reason that Congress meant for those provisions to apply in every State as well. Pp. 15–19. (d) The structure of Section 36B itself also suggests that tax credits are not limited to State Exchanges. Together, Section 36B(a), which allows tax credits for any “applicable taxpayer,” and Section 36B(c)(1), which defines that term as someone with a household income between 100 percent and 400 percent of the federal poverty line, appear to make anyone in the specified income range eligible for a tax credit. 

According to petitioners, however, those provisions are an empty promise in States with a Federal Exchange. In their view, an applicable taxpayer in such a State would be eligible for a tax credit, but the amount of that tax credit would always be zero because of two provisions buried deep within the Tax Code. That argument fails because Congress “does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions.” Whitman v. American Trucking Assns., Inc., 531 U. S. 457. Pp. 19– 20. (e) 

Petitioners’ plain-meaning arguments are strong, but the Act’s context and structure compel the conclusion that Section 36B allows tax credits for insurance purchased on any Exchange created under the Act. Those credits are necessary for the Federal Exchanges to function like their State Exchange counterparts, and to avoid the type of calamitous result that Congress plainly meant to avoid. Pp. 20–21. 759 F. 3d 358, affirmed. 

ROBERTS, C. J., delivered the opinion of the Court, in which KEN- Cite as: 576 U. S. ____ (2015) NEDY, GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. SCALIA, J., filed a dissenting opinion, in which THOMAS and ALITO, JJ., joined. 

No. 14–114. Argued March 4, 2015—Decided June 25, 2015

Read more about The Path to Federalization and workers' compensation:
Oct 17, 2014
Yesterday the US Congress passed and sent to the President, The World Trade Center Health Program, marking yet another advance on the path to federalize the nation's workers' compensation program. The Federally .

May 17, 2013
and will put greater control and more choice in the hands of individuals and small businesses." Read more about "Federalization" and workers' compensation: Path to Federalization: A National Workers Compensation System.

Jul 05, 2012
United States Supreme Court has taken a giant leap forward to facilitate the Federalization of the entire nation's workers' compensation system. By it's recent decision, upholding the mandate for insurance care under the ...

Jun 14, 2012
Yesterday the US Congress passed and sent to the President, The World Trade Center Health Program, marking yet another advance on the path to federalize the nation's workers' compensation program. The Federally .

Mar 16, 2011
Historically The Federal government's role has been to rise to the occasion and walk further down a path to federalization. On a smaller scale than the potential consequences of the Japanesse debacle, the US was first in line ...

Mar 05, 2011
Nationally, advocates to improve the delivery of medical benefits to injured workers have urged federalization of the medical delivery system into a single payer approach through universal health care. ... Compensation Claim Draws Major Public Attention (; Vermont Governor Sets Out to Lead U.S. to True Universal Coverage (; The World Trade Center Health Program Expands The Path to Federalization ...

Feb 15, 2011
In December 2010 US Congress passed and President Obama signed, The World Trade Center Health Program, marking yet another advance on the path to federalize the nation's workers' compensation program.

Dec 23, 2010
Yesterday the US Congress passed and sent to the President, The World Trade Center Health Program, marking yet another advance on the path to federalize the nation's workers' compensation program. The Federally …

Jul 13, 2010
As The Path To Federalization expands, this debate will expand. A recent study by the Center for American Progress addresses these concerns. "Health threats from the oil spill may linger unseen, perhaps for more than a 

Jul 05, 2010
The trend toward Federalization of workers' compensation benefits took a giant step forward by recent Presidential action creating the British Petroleum Oil Compensation Fund. While the details remain vague, the broad and ...

May 19, 2010
The “Libby Care” provisions, and its envisioned prodigies, will embrace more exposed workers, diseases and geographical locations, than any other program of the past. Potential pilot programs will now be available to ...

Apr 03, 2010

The recent health care reform legislation provided for the Libby Care which will provide universal medical care for victims of asbestos related disease. The plan is a pilot program for occupational disease medical care fully ...

Wednesday, June 24, 2015

NJ Supreme Court to Review Ethics of Defense Firm Facebook Investigation

The NJ Supreme will review the ethical propriety of the actions of a defense law firm whose attorney instructed a paralegal to "friend" the adverse party on Facebook for discovery purposes without disclosing the paralegal's relationship with the defense firm.

A-62-14  John J. Robertelli v. New Jersey Office of Attorney Ethics (075584)
Does the Director of the Office of Attorney Ethics have the authority to proceed with a grievance after a District Ethics Committee Secretary (with concurrence by a designated public member) has declined a grievance, pursuant to Rule 1:20-3(e)(3)?
Certification granted: 6/19/15
Posted: 6/19/15

Click here to read the decision below.

Read more about "social media" and "Workers' Compensation"
Jul 03, 2012
An injured worker was denied benefits when an Arkansas Court admitted into evidence Facebook pictures that were posted on line showing him drinking and partying. The worker had alleged that as a result of a hernia, ...
Sep 15, 2010
Social networking sites, such as Facebook, have now become informational sources that workers' compensation lawyers are now utilizing for evidentiary purposes. The question that remains unanswered is how information ...
Jun 27, 2014
The Manhattan district attorney has won a legal battle against Facebook Inc. with a New York judge's ruling that the social network was required to turn over user information in a fraud investigation. When workers who filed for ...
Apr 13, 2012
Facebook's new announcement today creates even a greater problem for workers' compensation claimants. Providing even greater historical information about an unsophisticated Facebook user puts even more information, ...

US EPA Report Calls For Better Regulation of Demolition of Asbestos Containing Buldings

The Inspector General of the US Environmental Protection Agency released a report calling for safer demotion of buildings containing asbestos fiber. Asbestos is a known cancer producing substance causing asbestosis, lung cancer and mesothelioma.

"The AACM experiments show that under the EPA’s Asbestos NESHAP standard, the demolition of buildings that are structurally unsound and in imminent danger of collapse, and constructed with an asbestos-containing joint compound or Transite, can release significant amounts of asbestos into runoff wastewater. The untreated discharge of runoff wastewater can contaminate the soil at the site or the water into which it is discharged.

"The AACM experiments demonstrate that the amount of asbestos released into runoff wastewater can often exceed the legally reportable quantity for asbestos, which is 1 pound in a 24-hour period. As a result, the Asbestos NESHAP demolitions under the Code of Federal Regulations (CFR) at 40 CFR § 61.145(a)(3) could require notification to the National Response Center in compliance with the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) § 103 if a reportable quantity is released into the environment. Upon a CERCLA § 103 notification, the EPA is tasked with determining the seriousness of the release and the need for an immediate response or cleanup.

"To be consistent with the CERCLA process where reportable quantity releases are occurring during Asbestos NESHAP demolitions, the EPA needs to assess the potential public health risk posed by these releases.

Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thompson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson-Reuters). For over 4 decades the Law Offices of Jon L Gelman  1.973.696.7900  have been representing injured workers and their families who have suffered occupational accidents and illnesses.

Tuesday, June 23, 2015

Workers' Exposure to Low Dose Radiation Linked to Leukemia and Lymphoma

Workers exposed to low doses of radiation have been reported to experience an increased risk to Leukemia and Lymphoma.

A study published in The Lancet reports strong evidence of positive associations between protracted low-dose radiation exposure and leukemia.

Evidence before this study:
Ionising radiation causes leukaemia. The primary quantitative basis for radiation protection standards comes from studies of populations exposed to acute, high doses of ionising radiation. Although previous studies of nuclear workers addressed leukaemia radiogenicity, questions remain about the size of the risk from protracted radiation exposure in occupational settings.

Diacetyl Emerges Again As A Serious Threat to Worker Health

Emerging again in the workplace are serious and health threatening exposures to Diacetyl. The Journal Sentinel has reported:

"Most coffee roasters have never heard of the chemical compound diacetyl. Those who have, associate it solely with its devastating effects on microwave popcorn workers and those in the flavoring industry. They don't suspect that it could be wreaking the same havoc on their own lungs.

"We don't make flavored coffee, many in the roasting business say. It's not a problem for us.

"But air sampling by the Milwaukee Journal Sentinel shows reason to worry.

"Tests at two midsized Wisconsin roasteries that agreed to let the news organization analyze the air in their production areas found diacetyl levels from unflavored roasted coffee that exceeded safety standards proposed by the U.S. Centers for Disease Control and Prevention.

"In some areas, by nearly four times the concentration.

"Workers exposed to similar levels at popcorn plants suffered serious, incurable lung disease.

Click here to read the entire article "Coffee roasters' health at risk from chemical compound, air samples suggest--But most workers don't realize their lungs may be in danger from exposure to diacetyl"

Read more about Diacetyl and workers' compensation:
NIOSH to Propose New Criteria for Diacetyl Exposure
Aug 18, 2011
The National Institute for Occupational Safety and Health (NIOSH) invites public comment on a draft document, "Criteria for a Recommended Standard: Occupational Exposure to Diacetyl and 2,3-pentanedione.” For public ...

Workers' Compensation: Flavoring 2,3-pentanedione ...
Aug 20, 2012
2,3-pentanedione should be added to that list. "Flavorings-related lung disease is a potentially disabling disease of food industry workers associated with exposure to the α-diketone butter flavoring, diacetyl (2,3-butanedione).

Workers' Compensation: Legislation to Protect Food ...
Sep 27, 2007
The legislation would force the U.S. Occupational Safety and Health Administration to issue rules limiting workers' exposure to diacetyl, a chemical used in artificial food flavoring for microwave popcorn and other foods.

Flavoring Workers At Higher Risk for Alzheimers
Aug 04, 2012
It found evidence that the ingredient, diacetyl (DA), intensifies the damaging effects of an abnormal brain protein linked to Alzheimer's disease. The study appears in ACS' journal Chemical Research in Toxicology.

Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thompson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson-Reuters). For over 4 decades the Law Offices of Jon L Gelman  1.973.696.7900  have been representing injured workers and their families who have suffered occupational accidents and illnesses.

Wednesday, June 17, 2015

Surprising Trends in the Compensability of Occupational Diseases

Issue 9 of the Workers’ Compensation Resources Research Report authored by Professor John F. Burton Jr. contains the first of a series of issues that provide an Overview of Workers’ Compensation. Part I discusses the origins of workers’ compensation programs in the U.S. early in the 20th century, the objectives of a modern workers’ compensation program, and a description of the current programs. As shown in Figure 1, in recent years both benefits and costs as a percent of payroll have been near their low points for the period since 1980.

Part II examines the coverage of employees and employers by current workers’ compensation programs. About 90 percent of the employed U.S. workforce are in firms who are legally required to provide coverage. Actual coverage is less in many jurisdictions, however.

Part II also examines which injuries and diseases are compensable. The four traditional tests to establish legal causation for injuries have been tightened in many jurisdictions. The traditional tests to establish legal causation for diseases have also become even more restrictive in many states. As a result, a substantial portion of work-related injuries and diseases do not receive workers’ compensation benefits.