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(c) 2014 Jon L Gelman, All Rights Reserved.

Saturday, May 30, 2009

Florida Governor Signs Bill Limiting Counsel Fees

The Governor of Florida has signed yet another law limiting counsel fees in workers' compensation actions. The original law was declared unconstitutional by the Florida Supreme Court.

The new law provides for capped limits as follows:

"(1)  A fee, gratuity, or other consideration may not be
15 paid for a claimant in connection with any proceedings arising
16 under this chapter, unless approved as reasonable by the judge
17 of compensation claims or court having jurisdiction over such
18 proceedings. Any attorney's fee approved by a judge of
19 compensation claims for benefits secured on behalf of a claimant
20 must equal to 20 percent of the first $5,000 of the amount of
21 the benefits secured, 15 percent of the next $5,000 of the
22 amount of the benefits secured, 10 percent of the remaining
23 amount of the benefits secured to be provided during the first
24 10 years after the date the claim is filed, and 5 percent of the
25 benefits secured after 10 years. The judge of compensation
26 claims shall not approve a compensation order, a joint
27 stipulation for lump-sum settlement, a stipulation or agreement
28 between a claimant and his or her attorney, or any other
29 agreement related to benefits under this chapter which that
30 provides for an attorney's fee in excess of the amount permitted
31 by this section. The judge of compensation claims is not
32 required to approve any retainer agreement between the claimant
33 and his or her attorney. The retainer agreement as to fees and
34 costs may not be for compensation in excess of the amount
35 allowed under this subsection or subsection (7) section."

"(3)  If any party should prevail in any proceedings before
63 a judge of compensation claims or court, there shall be taxed
64 against the nonprevailing party the reasonable costs of such
65 proceedings, not to include attorney's fees."

"  (7)  If an attorney's fee is owed under paragraph (3)(a),
107 the judge of compensation claims may approve an alternative
108 attorney's fee not to exceed $1,500 only once per accident,
109 based on a maximum hourly rate of $150 per hour, if the judge of
110 compensation claims expressly finds that the attorney's fee
111 amount provided for in subsection (1), based on benefits
112 secured, fails to fairly compensate the attorney for disputed
113 medical-only claims as provided in paragraph (3)(a) and the
114 circumstances of the particular case warrant such action."

Friday, May 29, 2009

Proposed North Carolina Legislation Caps Benefits for Seniors

Proposed legislation in North Carolina seeks to cap workers compensation benefits for those over the age of 65 years old. HR1022. The legislation specifically states: " Temporary total disability compensation shall continue for a period lasting until the longer of (i) when the injured employee is eligible by age for full benefits under the Social Security Act, 42 U.S.C. § 401, et seq., or (ii) a period of 300 weeks from the date of injury."

If passed, the legislation would be more limiting than "reverse offset" language enacted pre-1980 by several states and would follow a recently enacted legislation in Utah to limit benefits for the aged which was declared unconstitutional.

Opposition Mounts to a National Study Commission

Special interest groups are mounting opposition to the formation of a national study commission on workers' compensation. The PIA (The National Association of Professional Insurance Agents).

“This is a typical Washington D.C. approach: appoint a commission, give it a big budget and create a big new bureaucracy,” said PIA National Government Affairs Committee Chairman Johnny Lee. “The fact is, none of this is necessary. Workers’ compensation programs are regulated by the states, not the federal government. The federal government should not seek to interfere in a state-based and state-regulated system. This is a waste of time and taxpayers dollars.”

Saturday, May 23, 2009

Chrysler Workers' Compensation Fund Challeged by Illinois Attorney General

Illinois Attorney General Lisa Madigan filed an objection to the company's pending sale to Fiat. She indicated that the the Illinois Workers’ Compensation Commission (IWCC) and the Illinois Self-Insurers Advisory Board (ISIAB) were at risk with if the pending sale goes through.

“In filing this motion, we are working to protect the safety net for Chrysler employees and ensure that sufficient funds are available to pay for any potential workers’ compensation claims,” Madigan said.

Thursday, May 21, 2009

Massive Coalition Seeks National Workers' Compensation Health Reform

Workers' Compensation reform is being urged by a large national coalition. The group has launched a new website "www.protectingworkers.org and is seeking a direct and immediate change in the delivery of health benefits for injured workers.

"GOAL 6 – REFORM WORKERS’ COMPENSATION PROGRAMS. 
Workers who are injured or made ill because of conditions at work face barriers to health
care access and receive inadequate benefits under separate state workers’ compensation
healthcare systems. Prevention and treatment of work-related health conditions should be
an integral component of comprehensive healthcare system reform."


Saturday, May 16, 2009

IARC To Review Human Carcinogens-metals, arsenic, dusts & fibers (asbestos)


The International Agency for Research on Cancer (IARC) has met to reassessthe carcinogenicity of metals, arsenic, dusts, and fibres previously classified as “carcinogenic to humans” (Group 1) and to identify additional tumour sites and mechanisms of carcinogenesis. 

It reported that 125 million workers continue to be exposed to asbestos in the workplace. Lancet reports:

"Globally, an estimated 125 million people are still exposed to asbestos in the workplace.2 Although asbestos has been banned or restricted in most of the industrialised world, its use is increasing in parts of Asia, South America, and the former Soviet Union.3Naturally occurring sources of asbestos, its use in brake linings, and deterioration of asbestos-containing products all contribute to environmental exposure worldwide. Exposure may also come from fibres carried home on the clothing of asbestos workers.4
"Epidemiological evidence has increasingly shown an association of all forms of asbestos (chrysotile, crocidolite, amosite, tremolite, actinolite, and anthophyllite) with an increased risk of lung cancer and mesothelioma. Although the potency differences with respect to lung cancer or mesothelioma for fibres of various types and dimensions are debated, the fundamental conclusion is that all forms of asbestos are “carcinogenic to humans” (Group 1). Mineral substances (eg, talc or vermiculite) that contain asbestos should also be regarded as “carcinogenic to humans”.
"Sufficient evidence is now available to show that asbestos also causes cancer of the larynx and of the ovary. A meta-analysis of cohort studies reported a relative risk of cancer of the larynx of 1·4 (95% CI 1·2—1·6) for “any” exposure to asbestos. With different exposure metrics, the relative risk for “high” exposure versus “none” was at least 2·0 (1·6—2·5).5 Cohort studies of women who were heavily exposed to asbestos in the workplace consistently report increased risks of ovarian cancer, as in a study of women in the UK who manufactured gas masks during World War II.6 Studies suggest that asbestos can accumulate in the ovaries of women who are exposed to it.7
"The Working Group classified the evidence for an association between asbestos and colorectal cancer as “limited”, although members were evenly divided as to whetherx the evidence was strong enough to warrant classification as “sufficient”. Further, there is “limited” evidence in humans for cancers of the pharynx and of the stomach.
The Lancet Oncology, Volume 10, Issue 5, Pages 453 - 454, May 2009

Friday, May 15, 2009

A Brokered Marriage: Medicare and Workers’ Compensation

The problems of old age are now worrying are beginning to influence decision makers on what to do with two major delivery system in the United States. Both the Medicare system and the workers’ compensation medical delivery system are now ailing. The fiscal remedy maybe their marriage.

The Medicare Hospital Fund will be insolvent by 2017. The Trustees of the program have indicated that the program has been paying out more than it has collected in taxes and interest over the last two years. This estimated date of insolvency is two years ahead of schedule and the shortfall will necessitate a deposit of $13.4 trillion.

Robert Pear reported in the NY Times this week, “’The financial outlook for the hospital insurance trust fund is significantly less favorable than projected in last year's annual report,’ the trustees said, adding, ‘Actual payroll tax income in 2008 and projected future amounts are significantly lower than previously projected, due to lower levels of average wages and fewer covered workers.’”

The workers’ compensation medical delivery system has been plagued with a set of its own difficulties including: cost shifting to Medicare and reimbursement issues, rising costs that now exceed the indemnity aspect of the program, lack of uniformity and delay in delivery of medical benefits, staggering litigation and administrative costs and uncertainty as to future premiums because of a failing economy.

The voice of change is now being heard in Washington as health care takes the stage front and center on the issues of affordability and choice. David Axelrod has indicated that the Administration is committed to "fix what's broken in the system and preserve what's good."

When the Social Security system was initial enacted, the country faced similar economic troubles. Employee medical coverage was not a consideration of the original program. The geriatric nature of both the Social Security system and the multiple workers’ compensation programs are now evidencing the problems of old age. A marriage of convenience maybe just what the future holds.

Thursday, May 14, 2009

Budget Crisis Triggers NJ DWC Closing

The NJ Division of Workers' Compensation will be closed on May 22, 2009. This closing is the result of a State mandated furlough because of the lack of revenue in the NJ State Treasury.

Wednesday, May 13, 2009

Hyper Technical Procedure Rejected

The NJ Appellate Division, while ruling against an injured worker in a claim where the worker exhibited "egregious conduct" in failing to keep numerous medical exams, in dicta, declared that hyper technical rules should not be enforced in workers' compensation. The Appellate forum declared that even though a notice of motion was "less than perfect," that alone should not be the basis for an adverse ruling.

Williams v, Family Choice, at al., Docket No. A-4474-07T3 (Decided May 2008) 2009 WL 1286895

Tuesday, May 12, 2009

RICO Case Goes to the US Supreme Court

A Petition for Certiorari has been filed in Brown v. Cassens Transport Co., 546 F.3d 347 (6th Cir. Oct 23, 2008) (NO. 05-2089), following the rehearing and rehearing en banc denied (Jan 05, 2009). The Petition was filed on May 6, 2009. In a landmark decision of immense national significance, the US Sixth Circuit Court of Appeals ruled that a RICO claim brought by injured workers against their employer, insurance carrier and employer medical expert could proceed.

The application states:

"The Sixth Circuit's ruling that the WDCA does not involve the business of insurance is hardly a model of clarity, but it plainly rests on two central and essential elements. First, the court held that workers' compensation categorically is not insurance because, in the Sixth Circuit's view, workers' compensation does not involve a “contractual insurance relationship.” App., infra, 20a. Second, the court regarded as irrelevant Michigan's regulation of the nature of the workers' compensation benefits that must be provided by employers - including requirements imposed identically on employers who self-insure their workers' compensation risks and on those who purchase insurance of those risks - because Cassens self-insures and the court believed that self-insurance does not involve the business of insurance under the McCarran-Ferguson Act. Id. at 22a-24a. But both aspects of this analysis are wrong. They depart from this Court's precedent, will lead to inconsistent treatment of identically situated businesses, and will frustrate state policy regarding both insurance and workers' compensation."

"The issues presented here are ones of enormous practical importance: the court of appeals' holding reads significant limits into the McCarran-Ferguson Act, threatening to interfere with state insurance regulation and overturn the balance struck by States *31 in their workers' compensation systems. Most obviously, by categorically holding that state regulation of employers who self-insure their workers' compensation liability is outside the scope of the McCarran-Ferguson Act, the holding below invites a proliferation of RICO strike suits brought by aggrieved workers' compensation claimants. The attractiveness of RICO's remedies - including treble damages and attorney's fees, e.g., 18 U.S.C. § 1964(c) - and the extraordinarily burdensome nature of RICO discovery assures that an ever-increasing volume of workers' compensation litigation will find its way to federal court for decision under federal law. See, e.g., Cristin Schmitz, Employers Face RICO Claims For Workers Comp Denials, Inside Counsel (Feb. 1, 2009) (RICO permits “wide-open” discovery; plaintiffs' counsel states that if case goes to trial, “I am going to discover every single comp claim that ever existed in the past four years *** so it's going to open a real can of worms”). To the extent that settlements are not compelled in such suits, federal courts will have to pass on the merits of the underlying workers' compensation claims, creating the potential for overlapping (and possibly conflicting) adjudication of eligibility for workers' compensation benefits."

Citation:
2009 WL 1265298 (U.S.) (Appellate Petition, Motion and Filing)
Supreme Court of the United States.
CASSENS TRANSPORT COMPANY, Crawford & Company, and Dr. Saul Margules, Petitioners,
v.
Paul BROWN, William Fanaly, Charles Thomas, Gary Riggs, Robert Orlikowski, and Scott Way, Respondents.
No. 08-1375.
May 6, 2009.


Friday, May 8, 2009

NCCI Issues a “Guarded” Report of Health of Workers’ Compensation

A report that the short term was “guarded” and the long term “cautionary” was issued this week by NCCI Holdings, Inc. Medical care continues to lead the list of concerns as the costs continue to out pace wages. Medical continues to be problematic as CMS (The Centers for Medicare and Medicaid Services) continue to become more involved in the workers’ compensation process that the Sec. 111 Mandatory Registration process and the recovery efforts and monitoring of future care plans, ie. Workers’ compensation Medicare set aside arrangement.

Lead is Still Breaking the Learning Cycle

The book, "Lead Babies Breaking the Cycle of Learning Disabilities, Declining IQ, ADHD, Behavior Problems, and Autism" by Joanna Cerazy, MEd and Sandra Cottingham, PhD addresses this issue.

"This groundbreaking study reveals the continuing danger that lead contamination presents to health—particularly in the earliest stages of life. Disclosure about the lead content in house paint, gasoline, canned food, and tap water revolutionized the manufacturing of those products a generation ago, but lead-based products are still produced and pose a health hazard as lead remains in the environment years after its initial use."

Asbestos MDL Goal To Remand Cases To US District Courts

Asbestos cases pending in the Multi District Court Litigation (MDL 875) may be remanded to the US District Courts throughout the country. As of January 1, 2009, the inventory of cases pending amounted to 58,625 cases encompassing 3.3 milllion claims.

In an Order entered on April 30, 2009, Judge Eduardo C. Roberto stated that, "remanding cases to the transferor court at an early date remains as important administrative goal of the Court." The Court set up a procedure permitting the Plaintiffs to a file a motion requesting the entry of a "suggestion of remand." by the Court.

Construction Industry Independent Contractor Act

The misclassification of workers is a major problem in the workers' compensation market. Some legislatures, like New Jersey, have enacted laws prohibiting the misclassification of workers.

"The Legislature finds that employers in the construction industry who improperly classify employees as independent contractors deprive these workers of proper Social Security benefits and other benefits, while reducing the employers' State and federal tax withholdings and related obligations. Moreover, this practice puts businesses that bear higher costs for complying with the law at a competitive disadvantage." NJAC 12:65

Thursday, May 7, 2009

Automatic Stay Invoked in Chrysler Bankrutcy in MDL Action

On April 30, 2009 Chrysler LLC and certain domestic subsidiaries filed a voluntary petition for bankruptcy in the US Bankruptcy Court for the Southern District of NY under chapter 11 of title 11 of the USC. An automatic stay imposed under section 362 of the Bankruptcy Code has been invoked. A suggestion of Bankruptcy has been filed in MDL No, 875 (asbestos).

OSHA Head Announces Strategy To Protect American Workers From Flu Pandemic

Testifying before the US Congress, Jordan Barab, Acting Assistant Secretary for Occupational Safety and Health (OSHA), declared that the agency had a strategy for protecting American workers. He declared that, "The full range of OSHA’s training, education, enforcement, and public outreach programs will be used to help employers and workers protect themselves at work."


Barab further stated, " ....addressing an influenza pandemic that threatens the workplaces of this nation, we are confronting an unprecedented hazard. In OSHA’s 38-year history, America has never experienced a flu pandemic. However, I would characterize this situation for the workforce just as the President has described it for the nation: “Cause for deep concern, but not panic.” I am very confident in the expertise of OSHA’s medical, scientific, compliance assistance and enforcement personnel. OSHA is prepared to address this threat and we will protect our workforce. I will keep you informed about OSHA efforts to protect America’s working men and women from pandemic flu exposure."

Wednesday, May 6, 2009

US Congress to Hold Hearing on Helping Schools and Workplaces Prepare For Flu Virus

Taking urgent actions in light of the threat of a pandemic, The Hon. George Miller, Chairman of the Committee on Education and Labor has scheduled a hearing this week.

On Thursday, May 7, the Committee will hold a hearing to examine how federal agencies can help child care, schools, colleges and workplaces prepare for the H1N1 flu virus and future pandemics. The hearing will also provide an update on how schools and workplaces are being affected by and responding to the current outbreak.

WHAT: Hearing on “Ensuring Preparedness Against the Flu Virus at School and Work"

WHO:
Jordan Barab, Acting Assistant Secretary, Occupational Safety and Health Administration, Washington, DC

Ann Brockhaus, Occupational Safety and Health Consultant, ORC Worldwide, Washington, DC

Jack O'Connell, Superintendent of Public Instruction, California Department of Education, Sacramento, CA

Miguel Garcia, Registered Nurse and member, American Federation of State, County and Municipal Employees, Los Angeles, CA

Bill Modzeleski, Associate Assistant Deputy Secretary, Office of Safe and Drug-Free Schools, Department of Education, Washington, DC

Dr. Anne Schuchat, Deputy Director for Science and Program (Interim), Centers for Disease Control, Atlanta, GA

WHEN: Thursday, May 7, 2009 10:00 a.m. ET
Please check the Committee schedule for potential updates »

WHERE: House Education and Labor Committee Hearing Room 2175 Rayburn House Office Building Washington, D.C.

California Workers Compensation Fund Alerts Employers and Employees as to Flu

The California Workers' Compensation Fund has taken the initiative of alerting employers and employees as to preventative measures that should be taken to prevent the spread of Swine Flu. 

"To protect California workers and businesses, State Fund advises employers to educate their employees about swine flu facts, symptoms, and preventative measures and to prepare their business operations should a pandemic outbreak significantly reduce their workforce or disrupt their business operation. "

As of today there are 403 reported cases and one death according to the CDC. Numbers are expected to rise as testing has now been shifted from the CDC to the States. California has 49 reported cases.

The novel influenza outbreak (H1N1) has given rise to concern on the impact what a pandemic would cause. The Department of Homeland Security has posted information that workers' compensation programs would probably become involved in responding to the emergency. NIOSH has issued an alert concerning the impact upon psychological and social workers comparing a potential pandemic to the 911 tragedy.




OMB Launches Updated Right To Know Website

OMB Watch launched a redesigned and expanded website for the Right-to-Know Network (RTK NET) at www.rtknet.org. The website serves as a source for information about environmental and public health threats and opportunities for public engagement with environmental policy, and it offers news, data, and analysis of environmental right-to-know issues.

Liberty Mutual Suffers 92% Loss In First Quarter Profits

Liberty Mutual reported that its 1st Quarter profits fell 92%.  The company sustained loss of net income. This it reported $28 Million and the same quarter last year it had reported $360 Million in income. Liberty Mutual sustained a private equity loss of $373 Million in the first quarter.

Tuesday, May 5, 2009

Advocates Lobby to Eliminate the Death Penalty in Workers' Compensation

Compensating dependents in the workers' compensation has always been problematic. The issue is that the system just can't make complex issues simple and hope that they just go away. 

Dependents are again advocating for the elimination of what appears as "the death penalty in workers' compensation". Workers' Compensation is a scheduled system of payments usually based on wages in effect at the of death capped by wages in effect at the time of employment. For the most part, this is ALWAYS lower than the wages paid to the worker when living. The problem is that in some jurisdictions as NJ, they never increased benefits due to inflation or with cost of living adjustments. Those dependents (post 12/31/1979) are caught in such a trap.

The Sweeney-Madden Bill would correct this injustice in New Jersey. The bill, S-785 would enact an increase effective July 1, 2011. As for the years gone bye and the failure to pay retroactive benefits, they will remain as a monument to an injustice.

Saturday, May 2, 2009

FL Legislature Moves to Cap Attorney's Fees

In an action reseversing a prior court decision, the Florida legislature has passed legislation capping counsel fees in FL workers' compensation matters.

Friday, May 1, 2009

CDC Issues A Safety Alert For Laboratory Workers

The safety of laboratory workers involved in testing for the Swine Flu Virus (H1N1 Influenza Virus) is the subject of a alert issued by the US Centers for Disease Control (CDC). The guidance is aimed at laboratory workers who may be processing or performing diagnostic testing on clinical specimens from patients with suspected H1N1 influenza virus infection, or performing viral isolation.