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

Thursday, December 24, 2009

NJ Aims to Speed up Uninsured Penalties

The NJ Legislature is considering speeding up the processing of penalties and assessments against uninsured employers. Bills are pending before both houses of the legislature.

"This bill amends the workers’ compensation law to require that the Director of Workers’ Compensation shall, in any case in which an award of compensation payable by an uninsured employer or an assessment has been ordered by the director, file with the Clerk of the Superior Court a statement of the findings and judgment of the workers’ compensation judge or a certified copy of the director's order.  Upon that filing, the statement or order, as the case may be, shall have the same effect and may be collected and docketed in the same manner as judgments rendered in causes tried in the Superior Court.

"Under current law, the director is not permitted to make the filing until 45 days after payment is due and 10 days after the uninsured employer fails to comply with any demand to deposit with the director the estimated value of the compensation, and 20 days after orders by the director to pay any assessments for failure to pay.  The bill requires, rather than permits, the director to make the filing, and requires that the filing be made without the delays currently imposed.

Identical Bill Number: S2495   

Quijano, Annette   as Primary Sponsor
Barnes, Peter J., III   as Primary Sponsor
Moriarty, Paul D.   as Primary Sponsor
Egan, Joseph V.   as Co-Sponsor
Diegnan, Patrick J., Jr.   as Co-Sponsor
Vas, Joseph   as Co-Sponsor


1/15/2009 Introduced, Referred to Assembly Labor Committee
1/26/2009 Reported out of Assembly Committee, 2nd Reading
5/21/2009 Passed by the Assembly (76-0-0)
5/21/2009 Received in the Senate without Reference, 2nd Reading

Statement - ALA 1/26/09 - 1 pages
PDF Format    HTML Format
Introduced - 3 pages
PDF Format    HTML Format

Committee Voting:
ALA  1/26/2009  -  r/favorably  -  Yes {9}  No {0}  Not Voting {0}  Abstains {0}  -  
Roll Call

Session Voting:
Asm.  5/21/2009  -  3RDG FINAL PASSAGE   -  Yes {76}  No {0}  Not Voting {4}  Abstains {0}  -  
Roll Call

Click here to read more about uninsured  employers and workers' compensation.

Monday, December 21, 2009

Good Medicine for an Ailing Compensation System

An historic shift in the delivery of medical care for those injured by occupational exposures has been signaled by the US Senate. Following decades of debate, the proposed emerging health care legislation, amended at the last minute by the Majority Leader's manager amendments, shifts Libby, Montana's asbestos disease claims to Medicare as a primary payor.

The stage was set last June 17th, when the US Environmental Protection Agency (EPA) declared Libby, Montana, a Public Health  Emergency, because of asbestos present at the site. The geographical location was the site of a W.R. Grace vermiculite mine.

The legislative provision was "buried" deep in the legislation at the last moment, reported Robert Pear of the NY Times. The amendment was made Senator Max Baucus of Montana, who lead the Senate legislative committee crafting the legislation. The convoluted political bartering over the last few days reflects a sentinel change in how injured workers may be receiving medical care in the years ahead. It is anticipated that major changes will be offered over the years ahead to modify and expand the coverage.

Occupational diseases have always been problematic to the State workers' compensation systems. They have been subject to serious and costly proof issues. They were "tag along" claims for a compensation system that initially was enacted in 1911 to cover only traumatic claims. The proposed legislation is a first major step to move occupationally induced illnesses into a universal health medical care system and will provide a pilot project for addressing the long awaited need to furnish medical care without serious and costly delays.

By allowing Medicare to become the primary payor and furnish medical care, those without a collateral safety net of insurance will be able to obtain medical care effectively and expeditiously. While cost shifting from workers' compensation to Medicare has been an historically systemic problem in the compensation arena, this legislation maybe a first major step to legitimatize the process. The legislation may allow for great accountability and expansion of the Medicare Secondary Payment Act (MSP) to end cost shifting that has become epidemic in proportion. It is good medicine for an ailing workers' compensation system.

Click here to read more about workers' compensation and universal health care.

Sunday, December 20, 2009

Join Us on Facebook: Injured Workers Law & Advocacy Group

The Injured Workers Law & Advocacy Group is an open and free Facebook group that provides news and open discussions concerning national workers' compensation trends. 
The group is maintained for academic purposes to facilitate national policy discussions. Multiple news feeds and discussion postings are available free of charge.
Click here to join now.

BP Workers in Texas Awarded $100 Million By Jury

Ten workers who were exposed to chemicals at a BP plant in Texas have been awarded $100 Million by a jury. The workers were exposed to a toxic substance at the chemical factory in 2007. At least 133 more cases are pending.

The workers were exposed while repairing equipment at the refinery which is the 3rd largest in the US. Pre-trial negotiations were stalled before trial when the workers demanded $5,000 each in damages and BP had offered $500.

Earlier this year The Occupational Safety and Health Administration (OSHA) fined BO $21.4 Million for 2005 safety violation. The  company was also charged with $87,4 million in fines for failing to comply with the 2005 agreement to clean up safety violations at the plant. For that incident BP had paid more than $2 Billion to settle hundreds of pending law suits and a fine of $50 Million.

To read more about BP click here.

Friday, December 18, 2009

Chemical Exposure in Iraq Claims Soldier

The death of an Indian National Guard member has been alleged to have been caused by a chemical exposure at an Iraq worksite. 

The terminal cancer of Lt. Colonel Jim Gentry, age 52,  has been attributed to an exposure to sodium dichloride. His unit was assigned to guard American contractors who were restoring the oil fields. The contractor, KBR, has been blamed for the negligent release of the chemical and exposures in the Qarmat Ali Water Treatment plant. Litigation is ongoing.

The US military is presently reviewing the extent of the chemical release and the consequences. The US Senate recently held hearings concerning the safety and health of soldiers deployed to Iraq who may have been exposed to hazardous chemicals at contractor worksites.

The Cost of Work Related Deaths

The National Institute for Occupational Safety and Health (NIOSH) has transposed the gloomy statistics of the fatalities of work related accident into a grim economic figure of a "societal cost" of $43 Billion. The data reviewed was from 1992 through 2001 and consisted of 51,864 fatalities. Costs were expressed in 2001 dollars.

"The burden that fatal occupational injury imposes upon society is severe and multidimensional. In addition to the human costs associated with the loss of a family member, an employee, and a coworker, there are costs that are economic in nature. No single metric can capture all the dimensions of loss, either personal or economic; it is extraordinarily difficult to measure the contribution of a family member or that of an active member of a community or group. To understand the dimensions of loss more fully, it is necessary to measure the aspects of fatal occupational injury that can be captured. Demographic data on fatal workplace injury was captured in the National Traumatic Occupational Fatality Surveillance system, maintained by the National Institute for Occupational Safety and Health (NIOSH).

"The current document is an attempt to build upon the surveillance data by adding an economic component; the data in this monograph provide a measure of the economic loss to society from the premature deaths of workers in various economic sectors, by states, to society as a whole, over time, by cause of death, and by demographic characteristics. The findings are compelling: over the period studied, 1992–2001, the estimated costs from these premature deaths exceeded $43 billion. "

Counting Failure is No Longer an Option

Yearly the US Bureau of Labor Statistics publishes an annual report on workplace accidents, injuries and fatalities. The media has reported that the statical analysis is flawed due to worker hesitation to report events. 

Many injured workers report that they fear that they will be threatened or humiliated by their employers if they report events at work. Worker safety is critical and when it is lacking the injured worker, the employer and the Nation suffers.

David Michaels, The Assistant Secretary of Labor for the Occupational Safety and Health Administration (OSHA)  has set the tone and vision of the New OSHA at a recent speech at a National Institute for Occupational Safety and Health Program, "Going Green.'"Michael's  said: 

"As you may be aware, numerous studies and Congressional hearings have cast serious doubt on the accuracy of workplace injury and illness reporting.

"A recent Government Accountability Office study confirmed those problems, but also noted serious concerns about incentive and disciplinary programs that discourage workers from reporting injuries and illnesses.

"Most upsetting was a GAO finding that a high percentage of health care providers reported being pressured by employers to under-diagnose and under-treat workers and otherwise manipulate information to avoid reporting injuries and illnesses on the OSHA log. This is irresponsible and unacceptable.

"To ensure the accuracy of injury and illness numbers, OSHA has launched a focused National Emphasis Program. We'll also take a hard look at incentive and disciplinary programs to ensure that they do not discourage workers from reporting.

"Ultimately, of course, counting injuries, illnesses and fatalities is counting failure. The more we design safety into the workplace the less we'll have to worry about injury and illness statistics."

Click here to read more about OSHA and workers' compensation.

Wednesday, December 16, 2009

Social Security at a Critical Crossroads

The last safety net for injured workers, Social Security, is now facing severe economic challenges ahead. At a recent hearing before the US House Ways and Means Committee testimony was presented that the system is now at a critical crossroad because of a surge in disability applications complicated by an increasing administrative backlog.

Beth Bates, testified on behalf of the Consortium for Citizens with Disabilities, “...The wave of new claims is having a very significant impact at the state Disability Determination Services (DDSs) that will eventually affect the hearing level.  At the DDS levels (initial and reconsideration), the number of new applications, applications waiting for a decision, and processing times are all on the rise.  In fiscal year (FY) 2009, SSA received 385,000 new claims, an increase of nearly 15% since the end of FY 2008.  Even more worrisome is the growing backlog of pending initial claims at the DDSs, i.e., those waiting for a decision, up nearly 40% since the end of FY 2008.”

Tuesday, December 15, 2009

California Comp is OK, But Just Don't Get Sick

The RAND Corporation published yet another report evaluating the troubled California workers' compensation system. The report, in its esoteric evaluation, reflects on the poor financial judgment of the industry to meet the needs of the injured workers.

The study misses the focus and humanization of what workers' compensation is all about. The concept of providing a remedial and expeditious remedy to injured workers seems to have been left outside in the company parking lot.

The California problems are not isolated, they are nationally systemic. The system fails to deliver and fails to encourage a safer worker environment. More of the same old thing, as RAND recommends, ie. more business should be covered, and more premiums should be collected, just isn't going to cut it any longer.

Workers' compensation is fine, as long as a worker doesn't get sick. Dormant and latent conditions for the most part remain untreated by the present system. Preventive medical care is non-existent. Medical monitoring is a major struggle to secure.

Occupational disease cases have perpetually lingered through delay and denial tactics, and now the condition needs critical care that a bandaid will not cure. As the NY Times reports in results of a recent poll, the safety net has failed.

Nationally the system needs to re-worked. Injured workers need to receive medical care through an effective and efficient process and not left out in the streets to suffer. Congress needs to act to provide coverage through an expansion of the proposed national health care agenda.

Click here to read more about medical benefits and workers' compensation.

Genetics and Workers' Compensation Claims

Genetic predisposition to occupational illness and disease presents a complex issue in workers’ compensation claims and health technology assessment. New methods now permit the identification of individuals who have risk factors establishing a greater propensity for disabling medical conditions.

The challenge of how to use this evidence in the workplace, to create both a safer work environment, while maintaining the privacy of the existence of the workers’ genetic propensity is an on going challenge. Additionally, genetic evidence becomes increasingly important to establish pre-existing and co-existing medical conditions that might reduce or bar recovery in claims for benefits under workers’ compensation acts.

Testimony offered at trial has effective defeated claims.  Evidence has been effective presented to defeat occupational claims, A defense expert testified,"....that studies show almost conclusively that no occupation causes a degenerative disc. It's familial. It's genetic. It has to do with how the DNA forms the disc in embryonic development.’” Allgood v. Parsons Trucking Co., 148 N. C.App. 405 (N.C.App. (2002).

A delicate balance exists between, the ethical, moral and legal use of this evidence. The appropriate use of this information by an employers in assessing risks and benefits in the workplace is challenging. Many tasks at work now include risk factors of a  carcinogenic, mutagenic, and/or genotoxic nature.

NIOSH ‘s recently published report,  Genetics in the Workplace: Implications for Occupational Safety and Health, addresses balancing some of aspects of these issues while focussing on the paramount issue of safety in the workplace. The use of genetic information in occupational safety and health research requires careful attention because of the real or perceived opportunities for the misuse of genetic information. Society in general and workers in particular have concerns that discrimination and lack of opportunity will result from the inappropriate use of genetic information [MacDonald and Williams-Jones 2002; Maltby 2000]. While only sparse or anecdotal information supports this contention, a wide range of workers, legislators, scientists, and public health researchers have concern that such discrimination could occur. Thus, GINA and other regulations were passed to prevent the potential misuse and abuse of genetic information in the workplace. Examples of safeguards include rules and practices for maintaining privacy and confidentiality, prohibition of discrimination, and support of a worker’s right of self- determination (autonomy) with regard to genetic information.”

Click here to read more about occupational illness and genetics.

Sunday, December 13, 2009

Teacher Acting as School Chaperone Wins Benefits for Skiing Accident

Massachusetts has expanded the recreational activity doctrine to include volunteer recreational activity as compensable. The Supreme Court permitted a schoolteacher, who acted as a school chaperone on a ski trip, to recover benefits as a result of a ski accident necessitating two surgeries and physical therapy.

Alan Pierce, attorney for the injured workers said, “It sends a message to municipalities and teachers that the work they do on either side of the classroom bell is valued.’’

Karen Sikorski’s Case, SJC-10481 Decided Oct. 5, 2009

Tuesday, December 8, 2009

NJ Assembly Passes Bill to Stop Raid on Second Injury Fund

The NJ Assembly approved legislation to halt raids on the NJ workers' compensation Second Injury Fund (SIF). The vote to approve passage of SCR60 was unanimous. In the past $95 million was diverted from the SIF to the State's general treasury.

Click here to read more about the Second Injury Fund.

Monday, December 7, 2009

US Supreme Court Turns Down RICO Appeal- Good News for Injured Workers

Good news was message to injured workers' from the US Supreme Court today. The Court upheld a favorable RICO decision of the Court of Appeals that permits injured workers to institute federal Racketeer Influenced and Corrupt Organizations Act(RICO) claims against employers, insurance carriers and defense medical experts. It upheld the 6th Cir. decision that Michigan's Workers' Compensation Disability Act (WDCA) did not reverse preempt, under the federal McCarran-Ferguson Act by engaging in predicate acts of mail fraud and wire fraud, in order to deny the injured employees' valid claims for workers' compensation benefits.

The motion of MI Self-Insurers Association for leave to file
a brief as amicus curiae is granted. The motion of American
Trucking Associations, Inc. for leave to file a brief as amicus
curiae is granted. The motion of DRI - The Voice of the Defense
Bar for leave to file a brief as amicus curiae is granted. The
motion of National Council of Self-Insurers, et al. for leave to
file a brief as amici curiae is granted.
The petition for a
writ of certiorari is denied."

Cassens Transport Co. v. Brown, --- S.Ct. ----, 2009 WL 1269080, 77 USLW 3635, 78 USLW 3011 (U.S. Dec 07, 2009) (NO. 08-1375)

Click here to see the Workers' Compensation Blog for additional articles on RICO matters and workers' compensation.

Click here to read more about the late Judge Harold Ackerman who sat below on the 6th Cir.  By Designation. That decision was affirmed by the US Supreme Court. Judge Ackerman was a former NJ Workers' Compensation Judge(1955-1965), the Federal Judge who managed the entire, original,  asbestos litigation docket in the 1980's (ie.  Austin v. Johns-Manville Products Corp., 672 F.2d 902 (C.A.3 (N.J.) 1981)). Judge Ackerman passed away last week at age 81. 

Saturday, December 5, 2009

Workplace Safety, the Aging Workforce & The Logical Step

Safety in the workplace is now a growing concern as US aging workforce expands. It has been frequently reported that the expansion of this dimension of the labor sector has generated an increase in serious accidents and illness at work.

Over the past decade the work force has demographically changed. The number of those who are working past age 55 has grown. This increase mirrors an increase in accidents at work. It well known that those age 55 and older have a higher propensity for illness and disease resulting in complex of medical conditions.

The workers' compensation claims for this age group have become more serious and eventually evolve into Social Security Disability Claims. Besides the administrative complexity of navigating a fragile and dysfunction workers' compensation, these workers are require more emergent medical care for exigent conditions.

The National Institute for Occupational Safety and Health (NIOSH) has recognized this issue and is attempting to put SAFETY back into the equation.

"A report of conference presentations and discussions among participants from the National Academies of Science, universities and research institutions, and representatives of professional associations, industry and labor, recommends attention to workplace environments to maintain “work ability” as workers age, along with legislative fixes and research to fill in knowledge gaps for keeping workers healthy and productive."

As Social Security studies these issues, and more reliable data becomes available through NIOSH's efforts, a redesign of the approach to mandate safety, and deliver medical benefits universally and in a more efficient fashion, appears to be the next logical step.

Click here to read more about safety and workers' compensation.

Friday, December 4, 2009

US Supreme Court About to Rule on RICO Case

The US  Supreme Court has placed Cassens Transport Co., et al., Petitioners v,  Paul Brown, et al.,  No. 08-1375 on its conference agenda for December 4, 2009. At that time the Justices will review the Petition for Certiorari.

Pending before the US Supreme Court is a petition for a writ of certiorari to review a decision where: the employer, insurance company and their experts were found to have conducted themselves in violation of the RICO Act.

In this reverse preemption case, Public Citizen filed a brief which crystallizes the issues before the Court.

 Deepak Gupta and Allison Zieve of Public Citizen are co-counsel for the respondent.

"Respondent’s Brief in Opposition to the Petition for Certiorari.

The McCarran-Ferguson Act, 15 U.S.C. § 1012(b), “precludes application of a federal statute” that would “invalidate, impair, or supersede” a state law “enacted * * * for the purpose of regulating the business of insurance.” The questions presented in this case are:

1. Whether a state workers’ compensation law that transfers the risk of workplace injuries to employers, and requires that employers secure their ability to assume those risks either by purchasing of insurance or by self insuring, regulates the “business of insurance” within the meaning of the McCarran-Ferguson Act.

2. Whether a State’s exclusive, administrative remedial scheme for handling contested workers’ compensation benefit determinations is impaired within the meaning of the McCarran-Ferguson Act by the availability of suits under the federal Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq., contesting the denial of worker’s compensation claims."

Click here to see the Workers' Compensation Blog for additional articles on RICO matters and workers' compensation.

Tuesday, December 1, 2009

AIG Declines on Questionable Workers Compensation Reserves

A CNBC analyst has estimated that AIG's workers' compensation reserves may fall short this year contributing to an $11 Billion loss for the company. Shares of AIG were down 12% on the news of the possible deficiet.

To read more about AIG and workers' compensation click here.

The Gift That Keeps Giving: The SSA Reverse Offset

Social Security (SSA) has been subsidizing a select group of States since 1981. The workers' compensation insurance carriers in only those select States are permitted to take a credit against SSA payments. 

The  US Congress legislated that if a State had a recognized Social Security Offset Plan in effect on February 18, 1981, then the SSA would not offset workers' compensation benefits to those injured workers. In those jurisdictions, the offset is taken by the workers' compensation insurance carrier, who gains the advantage.

It was recently estimated that that over 583,923 individuals were receiving Social Security Disability Benefits. Of those, 156,096 were eligible for an offset to be taken by SSA. But, of those, 44,748 or 28.7%, were eligible for a reverse offset to be taken instead by the workers' compensation insurance companies.

To read more about Social Security and workers' compensation click here.

Those States that have been designated as "reverse offset"States, and are permitted have  the workers' compensation carrier to take the credit are: California, Colorado, Florida, Louisiana, Minnesota, Montana, Nevada, New Jersey, New York, North Dakota, Ohio, Oregon, Washington and Wisconsin.