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

Saturday, December 27, 2008

We are moving....January 1, 2009

Attorney at Law
1700 State Route 23 North Suite 120
Wayne, NJ 07470-7537
Phone:(973) 696-7900
Fax: (973) 696-7988

Directions by Google Maps – Click Here,-74.27011&spn=0.024086,0.038452&z=15

At RT 23/I-80/RT 46 junction proceed north on RT 23 past two traffic lights (3.5) miles. Immediately after the 2nd traffic light, turn right into 1700 Route 23 North (Oak Hill Park), bear left to 1700 building.

1. Proceed past Ratzer Road exit in Wayne. 2. Proceed (0.6 miles south) past Fuddruckers on right and turn right to make a U-turn to go northbound. 3. Stay in right lane and cross straight over Rt 23 into 1700 Route 23 North (Oak Hill Park), bear left to 1700 building.

1 . Exit Route 46 at Route 23 North exit (bear right) just (0.5 miles) past the Fountains of Wayne on right.
2. Proceed north on RT 23 past two traffic lights (3.5) miles. Immediately after the 2nd traffic light, turn right into 1700 Route 23 North (Oak Hill Park), bear left to 1700 building.

Exit just past Willowbrook Mall in Wayne & bear left for State Hwy 23 N toward Butler (0.8 mile). Merge onto RT-23 N (0.8 mile). Then follow directions FROM ROUTE 23 Northbound above.

FROM ROUTE 80 WESTBOUND: EXIT #53, for State Hwy 23 N toward Butler (0.8 mile). Merge onto RT-23 N (0.8 mile). Then follow directions FROM ROUTE 46 Westbound above.

Take Exit 54 for Minnisink Rd toward Totowa/Little Falls. Turn LEFT at Minnisink Road (signs for Totowa) (0.1 miles). Turn left at Vreeland Ave (459 feet). Turn left to merge onto I-80 W (0.8 miles). The follow directions FROM ROUTE 80 Westbound above.

Take Exit 48 toward Lincoln Park (0.2 miles). Turn left at Main Rd/US-202 (1.6 miles). Turn left at Main Rd/US-202/White Hall Rd. Continue to follow Main Rd (1.8 miles). Slight right at Boonton Turnpike/US-202. Continue to follow US-202 (2.5 miles). Take the ramp onto RT-23/US-202 N (2.1 miles). Slight right into 1700 Route 23 North (Oak Hill Park) (495 ft), bear left to 1700 building.

Take exit 159 to merge onto I-80 W. Then follow directions FROM ROUTE 80 Westbound above.

Take exit 153 on the Left onto Rt 3 WEST, which will merge onto RT 46 West. Then follow directions FROM ROUTE 46 Westbound above.

Tuesday, December 23, 2008

CMS Regional Centers for Workers' Compensation Matters

CMS announces publishes State contact list for Workers'  Compensation matters. I its guide CMS has directed contact to 6 regional centers for all states and territories.

The contact list is now available on line.

Seeking a Waiver of CMS/MSP Overpayment Request

A formal process exits to obtain a waiver of an Overpayment Recovery request from The Center for Medicare and Medicaid Services [CMS]. If SSA advises you or your client that it has made an overpayment, ie. Medicare Secondary Payer Act [MSP] recovery request, then a waiver request maybe made. This is not to be confused with a Request for Reconsideration which should be used where the amount is disputed.

If you or your client agrees that the number is correct and the beneficiary is unable to make repayment, then a Request for Waiver of Overpayment Recovery should be filed. The form is 8 pages in length and requires the submission of a reason for the request including no fault of the beneficiary or unfairness of the request.

A financial statement is required to be submitted to CMS which requests information concerning: current rent; mortgage payments; pay stubs; tax returns; utility, medical, charge cards and insurance bills; cancelled checks; spouse and dependent(s) financial information.

Friday, December 19, 2008

CMS Publishes WCMSA Operating Rules

The Centers for Medicare and Medicaid Services (CMS) has now published a copy of its Operating Rules regarding the evaluation of set-aside proposals. CMS cited that distribution of this material may reduce review time by the agency.

The Operating Rules, an 11 page document, highlights the procedures to be utilized by CMS. They instruct CMS on how to respond to telephone quires including specific instructions such as, "Do not give recommended amounts or expected completion dates." The Rules also instruct CMS contractor to consider the Total Settlement Amount (TSA) if the claimant has multiple workers' compensation cases and suggest one Recommended MSA (RMSA). Therefore "apportioning" multiple claims into a series of cases below the threshold level will not avoid CMS scrutiny. Also legal malpractice awards based on the mishandling of the workers' compensation claims are deemed not to be payments of compensation.

The Operating Rules were previously made available under a Freedom of Information Request in October 2008. The Operating Rules have been posted in redacted form and will be updated periodically by CMS.

Thursday, December 18, 2008

AIG: going, going,......?

AIG, a major workers' compensation carrier and reinsurer, is now facing another major economic loss amounting to $30 Billion, which may critically impact its ability to remain viable. In an exclusive report, Bloomberg, has reported that AIG, previously rescued by the Federal government in a $60 Billion infusion of dollars to offset troubled credit default swaps, is now facing additional losses.

Bloomberg reported, "...Wider losses may cast new doubt on whether the federal funds will be enough to prop up AIG, the biggest U.S. insurer by assets. The U.S. package almost doubled from the $85 billion approved in September to save the company from bankruptcy. Previous miscalculations about the swaps contributed to the ouster of Chief Executive Officer Robert Willumstad and his predecessor, Martin Sullivan. "

The huge insurance carrier, AIG, is considered to be a backbone of the workers' compensation insurance market and its financial instability, including insolvency, could critically shake the national patchwork of State programs. Earlier this year several State's issued statements that their insolvency funds would be a mechanism for relief should AIG fail. Declining State resources may place that solution also in jeopardy.

Wednesday, December 17, 2008

NJ Supreme Court Holds Electronic Insurance Policy Cancellations Invalid

In a sweeping, decision that may have impact on thousands of cases, the NJ Supreme ruled that an electronic cancellations of a workers’ compensation policies was not in compliance with the statute.

The Court ruled that the NJ Compensation, Rating and Insurance Bureau (CRIB) established a protocol called an FTP transfer to cancel policies by insurance carriers that was not in compliance with the law. NJ CRIB, the rate setting agency in NJ for workers’ compensation premiums, has been under investigative attack and legislative review. Recent legislation increased the governance to include some non-insurance affiliated members.

The NJ Supreme Court held, “…[that a] carrier does not satisfy N.J.S.A. 34:15-81 merely by transmitting electronic notice of cancellation of coverage to the Commissioner by way of the FTP. The statute clearly requires that to effectuate the cancellation, carrier also must file a statement certified by an employee that the required notice was provided to the insured.”

“In short, the Appellate Division correctly concluded that the use of the FTP system to transmit data about policy cancellations, without any accompanying certification, cannot be effective in light of the clear and unambiguous demands of N.J.S.A. 34:15-81(b).”

“… we have concluded that Sroczynski and any other party who previously raised the notice issue should be granted relief from the improper cancellations but that those cancellations that were never challenged should stand because the policyholders waived their right to do so.”

Walter Sroczynski v. John Milek (A-68/77-07) December 17, 2008

Tuesday, December 16, 2008

US Supreme Court to Review Manville Asbestos Bankruptcy Order

The US Supreme Court has decided to review a decision interpreting a 1986 Bankruptcy confirmation plan order. The order formed the basis of a settlement by Travelers Insurance Company to resolve claims against it for conspiracy in concealing information about the dangers of asbestos.

In 1986, the U.S. Bankruptcy Court for the Southern District of New York (Lifland,J.) confirmed a landmark plan of reorganization for Johns¬-Manville Corporation that channeled hundreds of thousands of asbestos-related personal injury claims into a special trust fund for the benefit of injured workers and their families. The linchpin of this reorganization was the contribution of tens of millions of dollars Petitioners and other insurers into a trust for payment of asbestos claims in exchange for protection from future claims against the insurers, all of which was intended to provide Petitioners with full and final protection from suits relating to, arising from or in connection with the Petitioners' insurance relationship with Johns¬Manville. The Manville confirmation order was affirmed in a final judgment rendered by the Second Circuit in 1988.

The confirmation order in Manville was subsequently ratified by the U.S. Congress (see 11 U.S.C. 524(h)) and used as a model for Section 524(g) of the Bankruptcy Code. In the decades following the entry of the final judgment affirming the Manville plan of reorganization, and in reliance on the protections enacted by Congress, of billions of dollars have been paid into "524(g) trusts" for the benefit of hundreds of thousands of asbestos claimants. In 2002, Petitioners sought to enforce the court's orders when certain asbestos claimants tried to evade the confirmation order by suing Travelers directly in so-called "direct actions." The suits were enjoined by the bankruptcy court that fashioned the Manville plan of reorganization, which held that they were proscribed by the 1986 confirmation order. The bankruptcy court's decision was affirmed by the District Court, but in February over two decades after the original orders became final, a different panel of the Second Circuit held that the bankruptcy court lacked authority in 1986 to enter confirmation order that extended beyond the "res" of the debtor's estate, i.e., insurance policy proceeds.

The question presented, therefore, is: Whether the court of appeals erred in categorically holding that bankruptcy courts do not have jurisdiction to enter confirmation orders that extend beyond the "res" of a debtor's estate, despite this Court's recent ruling that "[t]he Framers would have understood that laws 'on the subject of Bankruptcies' included laws providing, in certain respects, for more than simple adjudications of rights in the res," Central Virginia Community College v. Katz, 546 U.S. 356, 370 (2006), and whether the court of appeals compounded error by:

(a) failing to apply as written a federal statute (11 USC §§ 524(g) and (h)), by limiting the scope of relief in a manner that is contrary to the express terms andpurposes of that statute;

(b) failing to give effect to the Supremacy Clause and holdings of this Court that federal bankruptcy relief cannot be overridden by rights alleged to have beencreated under state law; and

(c) failing to respect important principles of finality and repose, and the express provisions of § 524(g), by failing to approve a federal court's enforcement of a confirmation order that was affirmed over two decades ago on direct appeal.


Saturday, December 13, 2008

Federal Appeals Court Upholds Constitutional Challenge Against CMS Memo

In a significant decision the 10th Circuit Federal Court of Appeals ruled that a constitutional challenge against the CMS 2005 CMS memo on future medical benefits in workers' compensation claims may proceed. The Court reversed the decision of the trial court and remanded the case for further proceedings.

"This suit arose after CMS clearly rejected such use of § 411.47, declaring that it applies only to medical expenses incurred before the workers' compensation settlement. In a memorandum issued on July 11, 2005 (the 2005 Memo), it said.

Q11. Compromising of Future Medical Expenses-Does CMS compromise or reduce future medical expenses related to a [workers' compensation] injury?

A11. No. Some submitters have argued that 42 C.F.R. § 411.47 justifies reduction to the amount [set aside for Medicare in a workers' compensation settlement]. The compromise language in this regulation only addresses conditional (past) Medicare payments. The CMS does not allow the compromise of future medical expenses related to a [workers' compensation] injury."
The Court ruled:

"In light of this precedent, we conclude that Protocols has suffered an actual injury. It admits that it has arranged settlements that are contrary to what CMS has declared to be required. As a result, CMS may sometime in the future demand that Protocols reimburse Medicare for Protocols' portion of settlement proceeds. And according to affidavits submitted by Protocols, this potential liability has a present impact on its business-that is, the contingent liability has created an actual and imminent injury."

07-1175 - Protocols, LLC v. Leavitt (12/11/2008)

Parent Corporation Has 3rd Party Lien Rights

A NJ Appellate Court ruled that a workers' compensation carrier is permitted to enforce its right reimbursement against the third party recovery from a parent company of the employer.  Liberty Mutual was permitted to "pierce the corporate veil." The Court declared, "...To do otherwise would be to condone a situation in which an injured employee collects workers' compensation benefits and thereafter receives monetary damages in a third-party liability action with no obligation to reimburse the workers' compensation insurer."

Washington Supreme Court Restricts Asbestos Claims

The Washington Supreme Court has taken a step back in time and rendered two significant decisions limiting he rights of asbestos victims to gain recovery. The Court ruled that if a company did not make asbestos products or manufacture them there was no duty to war. Speaking for the minority, Justice Debra Stephens wrote, "no duty to warn of a serious hazard it knew or should have known was involved in the use of its product ignores logic, common sense, and justice." 

Dec. 11, 200880251-3-Braaten v. Saberhagen Holdings
Dec. 11, 200880251-3-Braaten v. Saberhagen Holdings (Dissent)
ec. 11, 200880076-6-Simonetta v. Viad Corp.
Dec. 11, 200880076-6-Simonetta v. Viad Corp. (Dissent)

Friday, December 12, 2008

Asbestos Continues to Reduce Potential Years of Life

Asbestos exposure continues to have high rates of death in the US. Potential years of lost life continue to be at epidemic proportions. The US CDC reports that premature mortality as a result of asbestos related disease continues to be at all time highs. Asbestos is still not banned in the US

Thursday, December 11, 2008

CMS to Mandate Use of WCIO Reporting Codes

In a telephone conference on December 12, 2008, CMS indicated that it will require the Workers Compensation Insurance Organizations reporting codes under the mandatory reporting procedures.

An explanation of the codes is available at on the WICO website.

Medicare Secondary Payer Mandatory Reporting

Section 111 of the Medicare, Medicaid, and SCHIP Extension Act of 2007 (MMSEA) (P.L. 110-173), adds new mandatory reporting requirements for group health plan (GHP) arrangements and for liability insurance (including self-insurance), no-fault insurance, and workers' compensation.  See 42 U.S.C. 1395y(b)(7) & (8). 

Medical Costs Soar in Workers' Compensation

The cost of medical care has increased tremendously according to a recently issued  report. The NCCI (National Council on Compensation Insurance Inc.) reports an increase in medical costs from 40% in the early 1980s to almost 60% currently.

NCCI reports that the increase appears to be national, "....Furthermore, although there are differences in the medical share by state, the change in the relative mix of states has had very little impact on the estimated countrywide share of medical and indemnity benefits."

The national workers' compensation medical delivery system has now become a focus of attention in light of the prospects of an overhaul of national health care system as medical costs continue to put American businesses at a economic disadvantage with foreign competitors. James Kvaal, in his article, "The Economic Imperative for Health Reform," highlights that "...ever rising medical costs are threatening to drive an unsustainable explosion in the national debt." Higher insurance premiums result in lower wages or lack of medical coverage all together and the loss of preventive care.

The costly and inadequate workers' compensation medical delivery system provides a fragmented approach to medical care. The system's focus should treat current medical conditions and provide for preventive care. The administrative costs savings in providing global coverage will translate into reduced delivery costs and a healthier work force. Some of the extra savings could be well spent on much needed medical research to avoid the need for costly medical care.

Friday, December 5, 2008

Putting Workers First - A Proposed Agenda for the Obama Administration

The Center for American Progress will host a program  on Tuesday, December 8, 2008 to discuss how the Obama Administration may immediately improve upon the Bush's administration's poor track record for the ordinary American worker.

9:00 - 10:30 a.m.

Panel I: Enforcing Change: Strategies for the Obama Administration to Enforce Workers' Rights at the Department of Labor
Jordan Barab, Senior Labor Policy Advisor, Committee on Education and Labor, U.S. House of Representatives
Kim Bobo, Founder and Executive Director, Interfaith Worker Justice 
Thomas E. Perez, Secretary, Maryland Department of Labor, Licensing and Regulation 
Catherine K. Ruckelshaus, Litigation Director, National Employment Law Project
Karla Walter, Policy Analyst, American Worker Project, Center for American Progress Action Fund

Moderated by:
David Madland, Director, American Worker Project, Center for American Progress Action Fund

10:30 - 11:00 a.m.
Keynote Address:
Governor Jon Corzine (D-NJ)

11:00 - 12:00
Panel II: Making Federal Contracting Work for the United States
Scott Amey, General Counsel, Project on Government Oversight
Margaret Daum, Counsel, House Oversight and Government Reform Committee
Richard C. Loeb, University of Baltimore School of Law
David Madland, Director, American Worker Project, Center for American Progress Action Fund

Moderated by:
Scott Lilly, Senior Fellow, Center for American Progress Action Fund

Dry Cleaning Agent 1-BP Causing Neurological Illness

The Centers for Disease Control (CDC) has reported that 1-Bromopropane (1-BP) (n-propyl bromide),  a solvent increasingly used as a substitute for ozone-depleting chloro-fluorocarbons and similar regulated compounds, has been reported to cause neurological illness. 1-BP is used in vapor and immersion degreasing operations and other manufacturing processes, and as a solvent in industries using aerosol-applied adhesives.

Two cases of illness occurring in New Jersey and Pennsylvania have been reported, In NJ a worker in a cleaning facility, following the use of 1-BP, reported "...unusual fatigue and headaches and developed arthralgias, visual disturbances (difficulty focusing), paresthesias, and muscular twitching."

NIOSH had previously reported that some workers developed adverse problems in use of this product. In 2006 it made suggestions to reduce exposure.

The CDC has made the following recommendation, "....Clinicians and public health officials should be alert to potential adverse health effects from exposures to 1-BP in industries where such use might increase, such as the dry cleaning industry, and in workplaces where 1-BP use might be more established. A thorough occupational history always should be part of the clinical evaluation of persons who have unexplained or onset of nonspecific neurologic symptoms. Exposure to electronics cleaning solvents or dry cleaning solvents should prompt a more through inquiry concerning exposure to 1-BP. In the evaluation of a worker with occupational exposure to 1-BP and neurologic abnormalities, diagnosis of 1-BP poisoning is suggested by an elevated urinary or serum bromide concentration and a negative serum anion gap. Findings of potential 1-BP poisoning in a potentially exposed worker should prompt removal of the worker from the exposure while an evaluation of workplace exposures is conducted by a qualified professional"