(c) 2018 Jon L Gelman, All Rights Reserved.

Wednesday, April 30, 2008

A Constitutional Amendment To Stop The Raiding Of The Second Injury Fund For The General Treasury is Proposed in New Jersey

An amendment has been proposed, which has received bipartisan support, to stop the raiding of the second injury trust funds and their diversion to the general treasury. Senate Majority Leader Stephen Sweeney has proposed a constitutional amendment [SCR-60] requiring contributions collected from assessments on wages to be used for employee benefits and prohibiting use of the contributions for any other purpose.

Over the past years he executive branch has raided the second injury fund trust funds and has diverted the money to the general treasury of the State of New Jersey to cover shortfalls. Second injury fund revenues are collected as a line item surcharge on workers' compensation premiums from all employers of the State of New Jersey. The fund not only supports second injury fund beneficiaries, but it also supports general funding of the New Jersey Division Workers Compensation.

Most states in the United States have eliminated the second injury fund concept. The rationale for elimination of benefits is that the insurance carriers want greater control over the revenue to be paid to beneficiaries involving total disability. Additionally, the second injury fund concept was established in order that employers hire handicapped employees. It is now considered that the Americans With Disabilities Act affords protection to injured workers who have disabilities and the second injury funds are no longer required.

The proposed resolution is receiving bipartisan support and should it be adopted the constitutional question will appear on the ballot as a Constitutional amendment to be voted upon by all citizens of the state of New Jersey.

Saturday, April 19, 2008

ALS Linked to Formaldehyde Exposure

At a recent meeting of the American Academy of Neurology a report was presented demonstrating a 34% higher risk of developing amyotrophic lateral sclerosis (ALS), also known as Lou Gehrig’s disease as a result of exposure to formaldehyde.

“Although this finding could well be a chance observation, it merits further investigation, particularly because people with longer exposure to formaldehyde had a greater risk of developing ALS than those with shorter exposures,” said study author Marc Weisskopf, PhD, of Harvard University in Boston. “People who reported 10 or more years of exposure were almost four times as likely to develop ALS as those with no exposure.”

Formaldehyde is used in particle board and other wood products, permanent press fabrics, glues, and other household products, such as cosmetics and shampoo. It is also used as a preservative in medical laboratories and mortuaries, and as an industrial disinfectant.

Wednesday, April 16, 2008

Do the AMA Guides Have Any Place in the Workers’ Compensation System?

The great debate continues over whether the AMA Guides have any place in the workers’ compensation system. During a recent interview with Dr. Christopher Brigham, Senior contributing editor of the AMA Guides 6th Edition and Todd McFarren, past President of the Work Injury Law and Advocacy Group and president-elect of CAAA, the issues were crystallized.

The AMA Guides measure “impairment” and most if not all workers’ compensation acts provide benefits for “disability.” Additionally there are many other negative changes in Guides including lower values and the elimination of pain as a factor.

There has been a national uproar created over the adoption and use of the AMA Guides 6th Edition. A question has now been raised as to whether they should be relied upon at all in the workers’ compensation area.

Tuesday, April 15, 2008

NJ Workers' Compensation System Termed “completely dysfunctional”

The NJ Star-Ledger newspaper conducted an eight-month survey involving hundreds of thousands of workers compensation claims pending before the New Jersey Division of Workers Compensation. The Star Ledger series ran for three days and exposed huge difficulties in the NJ workers’ compensation system.

The flaws in the $1.8 billion system include:

-Frequent delays for claimants who can least afford them: totally disabled workers with mounting medical needs, no income or insurance.In its review of court
dockets, The tar-Ledger found that hearings were rescheduled on average more than a dozen times.

-Inexperienced judges who, once on the bench, lack any substantial power to enforce their orders. The main qualification for some is friends in high places.

-A Legislature where some of the same lawmakers who approve comp judges and
decide which workers' benefits bills get considered belong to law firms that
earn big money in compensation cases.

-A workers' compensation administration that does a woeful job of tracking its own performance. New Jersey officials acknowledged they could not identify the outcome in more than 10,000 of the most complex cases in the past seven

-More than almost any state, New Jersey lets insurers dictate where, when and for how long injured workers get treated. There are no alternative forms of resolution, no incentives to quickly resolve a claim and weak sanctions against companies slow to act.

Senate Majority Leader Stephen Sweeney (D-Gloucester), vowed Wednesday to overhaul the state's "completely dysfunctional" workers' compensation system. “To fix the $1.8 billion-a-year system, Sweeney said, ‘You've got to go back and completely take it apart and put it back together again so it benefits employers and employees.’" (Star Ledger April 9, 2008)

In an editorial the Start Ledger demanded an “overhaul” of the entire NJ Workers’ Compensation system:

New Jersey's nearly 100-year-old workers' compensation system is in desperate
need of an overhaul.

The picture in "comp court" can verge on the Dickensian: Thousands of cases become bogged down for years, delaying much-needed payments to workers with the most serious injuries or disabilities.

Compensation court judgeships are often treated as patronage plums, with skill
and expertise taking a back seat to political connections.

The insurance companies have responded by requesting more detailed analysis of the present system.

David J. Socolow, Commissioner of the New Jersey Department of Labor and Workforce Development, appeared before the Senate Budget Committee April 9, 2008 and testified that the system was working well.

A series of bills introduced by NJ Assemblyman Neil Cohen are presently pending for reform of the present NJ Workers’ Compensation system including a bill to establish a review commission, reimbursement of medical liens, increases certain workers’ compensation benefits, and to ban the sale of asbestos products.

Tuesday, April 8, 2008

W.G. Grace to Settle Asbestos Claims for $3 Billion

W.R. Grace and Co. has announced that it will fund a trust for resolving all current and future asbestos-related personal-injury claims. The company entered bankruptcy 7 years ago with 135,000 asbestos claims pending. Grace had set aside $1.7 Billion in 2004 to pay its asbestos liabilities and will probably finance another $1.5 Billion to provide additional contribution to the financial package for asbestos claim resolution.

In March 2008 Grace agreed to reimburse the U.S. Superfund program for the cleanup costs associated with its Libby, Montana, asbestos facility

Sunday, April 6, 2008

Iowa Joins Other States Not Adopting the AMA Guides 6th Edition

The State of Iowa joins many other States who will not implement the 6th Edition of the AMA Guides. This follows mounting criticism against the use of the 6th Ed. of the AMA Guides to determine workers’ compensation disability.

Under emergency rule making authority The Iowa Commission promulgated the following rule.
“AMA GUIDES – Rule 876—2.4 has been amended as follows:
876—2.4(85,86) Guides to evaluation of permanent impairment. The Guides to the Evaluation of Permanent Impairment, Fifth Edition, published by the American Medical Association are adopted as a guide for determining permanent partial disabilities under Iowa Code section 85.34(2)“a” to “s.” The extent of loss or percentage of permanent impairment may be determined by use of this guide the Fifth Edition of the guides and payment of weekly compensation for permanent partial scheduled injuries made accordingly. Payment so made shall be recognized by the workers’ compensation commissioner as a prima facie showing of compliance by the employer or insurance carrier with the foregoing sections of the Iowa workers’ compensation Act. Nothing in this rule shall be construed to prevent the presentations of other medical opinions or guides or other material evidence for the purpose of establishing that the degree of permanent disability to which the claimant would be entitled would be more or less than the entitlement indicated in the Fifth Edition of the AMA guide guides.”

Thursday, April 3, 2008

Robbing The People of Justice

On Tuesday the voters of Wisconsin changed the configuration of the State’s Supreme Court from liberal to conservative in a referendum vote to oust Justice Louis Butler. In a highly contested election, divided heavily between conservative business interest groups and public interest organizations, by a mere 20,000 votes, a liberal Democratic was removed from office and the Court will now have a 4-3 conservative majority.

The fiercely fought and costly ($4 million) election brings to light, once again, the issues involved in conducting judicial elections. Last year over $3.1 million dollars was spent by special interest groups to challenge yet another judicial election in Wisconsin. Elections of judiciary are the case in 39 States who elect some, if not all, of their appellate Judges.

The Wisconsin Supreme Court, in nationally recognized opinions: has recognized manufacturers’ liability in latex glove litigation; guarded patients from medical malpractice; and protected children from the problems associated with lead paint. The Court defined the standard for “enterprise liability” in an effort to guard the public from hazardous and toxic substances.

Private financing of judicial elections are problematic and bring to the forefront a need for review of the entire process to maintain the integrity of the judicial system. As Justice Butler remarked in his concession speech, "We cannot continue to see elections like last year 's and this year 's, and expect people to maintain their faith in our judicial system, " Butler said. "If we rob people of their faith in that system, we've robbed them of justice. "

Tuesday, April 1, 2008

National Asbestos Awareness Week

Senate Resolution 462 designates the first week of April 2008 as National Asbestos Awareness Week. The proclamation urges public awareness about the prevalence of asbestos-related diseases and the dangers of asbestos exposure.

Asbestos, a know carcinogen, is still used in the US and has not been banned. "Asbestos" is a generic name given to a fibrous variety of six naturally occurring minerals that have been used for decades in the development of thousands of commercial products. The term "asbestos" is not a mineralogical definition but a commercial name given to a group of minerals that possess high tensile strength, flexibility, resistance to chemical and thermal degradation, and electrical resistance. These minerals have been used in many products, including insulation and fireproofing materials, automotive brakes and textile products, and cement and wallboard materials. It has recently been found in toys.

Asbestos exposure affects both workers and their families. The legacy of asbestos related disease continues: mesothelioma, lung cancer and asbestos medical conditions continue to be diagnosed. Litigation continues against the asbestos manufaturers, distributors and health research groups. Ill conceived legislation by the insurance industry failed to survive Congressional debate.

The Workers’ Compensation system continue to fail in delivering benefits to asbestos exposed workers due to latency and coverage issues complicated by bureaucratic nightmares. Hopefully, public awareness will draw attention to crafting a better system to deliver benefits to injured asbestos workers than the present workers’ compensation system crafted in 1911, decades before the disease become recognized as an occupational disease.