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Saturday, May 29, 2010

CMS Claims No Statute of Limitations May Exist in a Recovery Action

The Centers for Medicare and Medicaid Services (CMS) have filed a reply brief in US v Strickler, et al, now pending in the US District Court in Alabama, alleging that the government’s recovery action was valid and filed within the six years Statute of Limitations. “The answer is clear: the United States’ claim, which seeks reimbursement based on a statutory right to recover monies conditionally paid by Medicare, is contractual and implied in law. Therefore, the six-year limitations period applies.”

The government states that the question for the question is whether the recovery action falls within a contract express or implied in law or fact, which subjects the United States to the six-year limitations period in § 2415(a), or in tort where a 3 year statute would apply.

Alternatively the government advances the proposition that if the could determines that none of the above categories apply then no statute of limitations would apply. “As noted in the United States’ Omnibus Response (at 20 n.10), if the Court were to decide that this claim falls into none of these categories, then no limitations period applies. See, e.g., United States v. Palm Beach Gardens, 635 F.2d 337, 341 (5th Cir. 1981) (holding that cause of action under the Hill-Burton Act was neither tort nor contract, and therefore the United States could pursue its cause of action at any time).”

Should the six year statitute apply, this it would accrue when, “…MSP claims accrue when the United States can “demonstrate” that a primary plan, or an entity that received money from a primary plan, was “required or responsible” to make payments under a primary plan. 42 U.S.C.§ 1395y(b)(2)(B)(ii) and (iii); see also Glover v. Liggett Group, Inc., 459 F.3d 1304, 1309 (11th Cir. 2006) (noting that defendants have no obligation to reimburse Medicare until the defendants’ responsibility to pay a beneficiary’s expenses has been demonstrated).”

Breast Cancer Linked to Occupational Exposures

A recent article in Occupational and Environmental Medicine causally links certain occupational exposures to breast cancer. 
"Odds ratios (ORs) were increased for the usual risk factors for breast cancer and, adjusting for these, risks increased with occupational exposure to several agents, and were highest for exposures occurring before age 36 years. Increased ORs were found for each 10-year increment in duration of exposure, before age 36 years (OR<36), to acrylic fibres (OR<36=7.69) and to nylon fibres (OR<36=1.99). For oestrogen-positive and progesterone-negative tumours, the OR doubled or more for each 10-year increase in exposure to monoaromatic hydrocarbons, and to acrylic and rayon fibres. The OR<36 also doubled for exposure to organic solvents that metabolise into reactive oxygen species, and to acrylic fibres. A threefold increase was found for oestrogen- and progesterone-positive tumours, with exposure to polycyclic aromatic hydrocarbons from petroleum sources.
"Certain occupational exposures appear to increase the risk of developing postmenopausal breast cancer, although some findings might be due to chance or to undetected bias. Our findings are consistent with the hypothesis that breast tissue is more sensitive to adverse effects if exposure occurs when breast cells are still proliferating. More refined analyses, adjusting for hormonal receptor subtypes and studies focusing on certain chemical exposures are required to further our understanding of the role of chemicals in the development of breast cancer.

Employer Responsible For Payment of Counsel Fees On Penalty

"... a judge of compensation must award counsel fees in addition to a penalty when an employer fails to make timely payment of temporary disability benefits and the appropriate standard to fashion the reasonable attorneys' fees allowed by statute. We hold that an award of attorneys' fees is mandatory and the judge of compensation is not limited by the statutory formula governing fee awards following an award of benefits. See N.J.S.A. 34:15-64.

"...a petitioner who resorts to section 28.1 to force payment of temporary disability benefits receives not only the 25% penalty but also reasonable legal fees incurred "as a result of and in relation to [the] delay[ ] or refusal[ ]." The fee is not subject to the 20% limitation of section 64, and shall be calculated in accordance with the standard factors for constructing a fee award.

Petitioner was represented by NJ Super Lawyer, David Tykulsker, Esq.

Thursday, May 27, 2010

Amended Complaint Filed in CMS Recovery Action Against Law Firms

The Secretary of Health and Human Services (HHS) [The Centers for Medicare and Medicaid Services (CMS)] has filed a first amended complant Stricker case now pending in the US District Court in Alabama for recovery of Medicare Secondary Payments (MSP). 

The recovery action is based upon an alleged failure of the attorneys to honor a claim that CMS had filed in an underlying bankruptcy claim filed in 2003. The settlement provided for distributions to be paid from 2004 through 2013 by the defendants.

The initial complaint alleges that the US may initiate a claim for recovery of Medicare conditional payments when it "learns that payment 'has been or could have be made' under a liability insurance policy of plan. 42 C.F.R. Sec 411,24(b)."

The case is now under a briefing schedule for a pending Motion to Dismiss filed by the defendants. Plaintiff's response is due May 27, 2010 and the Defendant's reply is due June 10, 2010.

Federal Challenge to NJ Workers Compensation Delays Unsuccessful

The claim of an injured who brought a Federal Court action pro se for “unwarranted delays” of his NJ workers’ compensation claim was dismissed by a Federal Court. The action was based on a violation of: The Americans with Disabilities Act, the Universal Declaration of Human Rights, the Convention on the Rights of Persons with Disabilities and 42 U.S.C. sec. 1983 for violation of the First, Ninth and Fourteenth Amendments.

The worker suffered an alleged work related accident on January 29, 2008 as an employee of NJ Transit. He alleged that the Judge of Compensation from October 24, 2008 through January 7, 2010, on numerous occasions imposed delays through cancellation or postponement of his hearings.

The Court held that the Younger Abstention Doctrine, that prohibits unwarranted federal interference in an ongoing state judicial proceeding, bars the claims. Younger v. Harris, 401 U.S. 37 (1971). The doctrine is imposed when there is an ongoing state proceeding that involves an important state interest and the state proceedings afford an adequate opportunity to raise any constitutional issues. O’Neill v. City of Philadelphia, 32 F.3d 785 (3rd Cir. Pa. 1944).

The legislative intent of the Workers Compensation Act, originally enacted in 1911, was to provide a summary proceeding through an administration system utilizing the concepts of a no-fault system. The compensation program has been severely challenged over the decades by a growing burden of collateral and complex issues that now need resolution as part of the compensation process. Nationally, the state administered systems have become critically impaired by the growing state economic difficulties that have resulted in the availability of fewer resources to operate a system whose responsibilities and magnitude of demands are constantly increasing.

Townsend v. The Hon. Peter J. Calderone and the Hon. William Lake, in their official capacity as members of Labor and Workforce Development Workers’ Compensation, Civil Action No. 09-3303 (GEB), 2010 WL 19999588 (D.N.J.) Slip Copy, Unpublished Opinion.

To read more about delay and workers' compensation.

Click here for more information on how Jon L Gelman can assist you in a claim for workers' Compensation claim benefits. You may e-mail Jon Gelman or call 1-973-696-7900.

Workers Compensation Beneficiary Challenges to ERISA Setoff Allowed

A US District Court has held that a workers’ compensation claimant is allowed to go forward with his challenge of a delayed setoff of workers’ compensation benefits. The ERISA plan administrator originally, in October 2004 determined that no offset of workers’ compensation benefits would be permitted based upon a specific loss date. In December 2007 the beneficiary was by the plan administrator that the date offset had been changed and that an offset would be required.

The injured worker instituted the action claim that the plan was estopped by the late chance of plan determination of the disability date.

Luppino v. Sedwick Claims Management Services, Inc., et al., Civil Action No. 08-cv-5315 (DMC-MF), 2010 WL 1999316 (D.N.J.), Slip Copy, Unpublished Opinion.

Friday, May 21, 2010

Cell Phone Use and Occupational Cancer: The Jury is Still Out

study by a 13-country team of experts concludes that it is unable to reach a definitive conclusion on the causal relationship between cell phone use and cancer. That is not necessarily a good thing. The experts were able to agree that the interpretation of the data was disputed, and does point to the conclusion that a long-term brain tumor risk may exist.

Cell phone use has disturbingly has become ingrained in the work environment. Distracted driving caused by cell phone use has been identified as major cause of accident.

Unfortunately, if there is further delay in reaching a definitive conclusion on the association of cancer with cell phone use, then any necessary precautions will not be invoked and potential malignancies will continue. 

To read more about cell phone use and occupational accidents.

Click here for more information on how Jon L Gelman can assist you in a claim for workers' Compensation claim benefits. You may e-mail Jon  Gelman or call 1-973-696-7900.

Wednesday, May 19, 2010

Libby Care Program Begins Enrollment Process

The new Federal healthcare program for those exposed to asbestos in Libby MT has now begun registration of citizens. The new program will provide Medicare benefits to those who were exposed to asbestos, a known carcinogen.

The occupational healthcare program embodied in the recently enacted legislation has the potential for being the most extensive, effective and innovated system ever enacted for delivering medical care to injured workers. 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 injured workers and their families who have become victims of the failed workers’ compensation occupational disease medical care system.

Heart Disease Associated With Overtime Work

New studies just published establish the causal relationship of overtime work with an increased risk of heart disease resulting in a greater risk of cardiovascular death, nonfatal myocardial infarction and angina. Workers who put in just one or two extra hours a day did not appear to have an elevated risk of heart disease events, the researchers reported online in the European Heart Journal.

The study concludes that overtime work is related to increased risk of incident CHD independently of conventional risk factors. These findings suggest that overtime work adversely affects coronary health.

A major step towards liberalizing the Workers' Compensation Act relating to cardiovascular claims occurred in 1962 in the matter of Dwyer v. Ford Motor Co., 36 N.J. 487 (NJ 1962). Gerald E. Dwyer was 41 years of age and was employed at the Ford Motor Company for a period of seven (7) years doing factory laboring work. After several incidents of chest pain and numbness in his left hand requiring hospitalization, lost time, and medication, he returned to work to perform activities similar to those he had previously engaged in, including the movement of materials. In awarding Workers' Compensation benefits, the court indicated that the effort need not be a single incident, but may be a series of efforts which in combination, if related to the employment, result in a compensable event. The fact that the heart was seriously diseased prior to the fatal attack did not preclude the awarding of benefits because of the premise that the employer takes the employee as he is, with no standard of health required.

In Fiore v. Consolidated Freightways, Inc. 140 N.J. 452 (NJ 1995), the Supreme Court unanimously recognized that an occupational heart condition is compensable under the Workers' Compensation Act.  While recognizing that diseases are complex and their causes multi-factoral, the court realized that experts can disagree on the relative roles of an occupational exposure and personal-risk factors in causing a coronary condition. 

In an editorial title, "Overtime is Bad for the Heart," the European Heart Journal declares that the study will have major implication on employers who will have to reconsider the risks of overtime and compensable heart disease.

Monday, May 17, 2010

Getting Tattoos Evidences Total Disability

An injured worker, who obtained tattoos to camouflage surgical scars of 6 surgical interventions, was held to be totally and permanently disabled. The evidence, presented at the time of trial, was found by the Judge of Compensation to provide a basis for an increase in the worker’s psychiatric disability that rendered the employee unable to work.

The worker testified that the side effects of a laundry list of medications that manifested low stamina and dry eyes. The drugs included:

• Buspar, an anti-anxiety medication, three times a day
• Nortiptyline, and anti-pain and antidepressant medication, three times a day
• Oxycontin, a pain medication, four times a day
• Topomax, a seizure medication used for pain relief, twice a day
• Methodone, a pain medication, four times a day
• Wellbutrin, an antidepressant, two to three times a day
• Bethanechol, a medication for dry mouth
• Prevacid, a stomach medication

The appellate forum affirmed the decision of the trial judge, Stephen Tuber, who in an extensive written decision  rejected the opinions of the respondent’s medical experts, Drs. Galina and Effron in favor of that of the petitioner’s expert, Dr. Peter Crain.

Dr. Crain testified that the reason why the injured worker obtained the tattoos made “psychological sense.” The reviewing form held that “…She explained that she obtained tattoos to help her deal with her "suicidal ideation" and to camouflage the scars she bore from the multiple operations.”

Kiessling v. Prudential Insurance Company, NO. A-3051-08T23051-08T2,  2010 WL 1928711 (Decided May 10, 2010)

To read more about psychiatric disability and workers' compensation click here.

Click here for more information on how Jon L Gelman can assist you in a claim for workers' Compensation claim benefits.

Delays Continue to Soar for Social Security Disability Determinations

The number of pending Social Security disability claims continues to increase. Congressman Rob Filner  of California has introduced legislation to federalize the State Disability Determination Services (DDS).

Filner, at a recent joint hearing of the Ways and Means Committee  testified the backlog of Social Security Disability claims is continuing to mount. In California alone, 40,000 cases were involved in the backlog and 1,000 new cases were being added each month. State imposed furloughs have complicated the process even further.

To read more about social security disability click here.

Click here for more information on how our office can assist you in a Social Security disability application/appeal.

Thursday, May 13, 2010

NIOSH Monitoring Work-Related Cancer

The National Institute for Occupational Safety and Health through The National Occupational Research Agenda (NORA) continues to monitor and report data for work-related cancers by industry and States. 

"Past estimates indicate that about 4% of cancer deaths in the U.S. are caused by occupational exposures; currently this is thought to underestimate the true burden of occupational cancer.1 Many of the studies that reported on the health effects of carcinogens were conducted in manufacturing. These assessments have resulted in the monitoring of and reduction in workplace exposures to carcinogens worldwide, in some cases through the development of protective standards. Exposures to carcinogens in the workplace may not result in cancer until 15-40 years later. Prevention of exposure to newly identified carcinogens is critical in order to achieve reductions in workplace attributable cancer. Based on the National Occupational Mortality Surveillance System (NOMS) (, U.S. manufacturing workers have increased proportionate mortality to cancer before age 65. To reduce cancer in workers, preventive strategies should be used in manufacturing processes where known and potential carcinogens are used."

To read more about cancer and workers' compensation click here.
To read more about workers' compensation claims click here.

Wednesday, May 12, 2010

Lawsuit Filed for Genetic Discrimination

A lawsuit was filed under the recently enacted Genetic Information Discrimination Act of 2008 (GINA) on behalf of a woman who underwent a prophylactic double mastectomy after testing positive for breast cancer. GINA took effect on November 21, 2009 and made it illegal to discriminate against employees or applicants because of genetic information.

GINA prohibits an employer from using genetic information to make an employment decision. It is enforced by the U.S. Equal Employment Opportunity Commission (EEOC). 

The use of genetic information and the correlation with occupational illness and disease has been raised in the past as a major issue for employees as to both privacy and discrimination in the workplace. The workers' compensation arena is a fertile ground for conflicting interests over genetic testing and dissemination of genetic information.

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.

Click here to read more about occupational illness and genetics.

Tuesday, May 11, 2010

The Declining Euro and US Workers Compensation

This past week has been hectic on the news front. Internationally, the financial riots in Greece, and the British election results have sounded an alarm that the Euro is going south. The impact on the world’s financial  markets on Thursday reverberated across the globe. On the home front, Saturday night last, a car bomb was parked in Times Square as news media merely focused instead for 3 desperate hours on Presidential humor at the White House Correspondents' Dinner. Even the US workers’ compensation system generated gloomy news as the NCCI reported dismal findings and a lack of a positive direction for the patchwork of State systems. NY State has joined the ranks of closing down 20% of its workers’ compensation agency. Unemployment rates in the US continue to grow and the rebound of the past is unlikely and the nation’s workers’ compensation continues to struggle.

One should not loose sight of the fact that the US workers' compensation system had its birth in Europe at the turn of the 1900’s. It was imported into the United States and the program flourished in tandem for decades with the late industrial revolution.

The international economic system now is challenged. The unemployment rate fails to rebound. Thomas L. Friedman  (NY Times)  brings into question, how to adapt the workers' compensation system to fit in the world market. He points out that, under Greek law workers in “hazardous jobs” can retire on full pension at age 50 for women and 55 for men. In Britain everyone over the age of 60 can ride the bus for free.

Everyone knows that a “free ride” just doesn’t exist any longer. Some commentators place doubt even on the $1 Trillion European bailout package as merely “kicking the can down the road,” and not a definitive solution.

The pension and benefit program in Europe is just one element of the failed workers’ compensation system. A larger question will be the adaptation of a medical benefit delivery system that works efficiently and is sustainable. As Friedman points out, "The Tooth Fairy is Dead." New concepts and ideas are desperately needed. Those looking to the past for solutions, now need to look to the future and be prepared to adapt to the future. It is necessary to grasp a vision of the horizon and beyond. The change going forward may be an entirely different approach to a present troubled workers’ compensation system.


Saturday, May 8, 2010

NCCI Reports Gloomy Outlook for Workers Compensation

Declining workers compensation revenues and increased medical costs were reported by NCCI Holdings, Inc. (NCCI). NCCI is the major national workers' compensation rating agency. The report highlighted that medical costs continued to soar even in a declining economic market.

While claims continued to decline medical costs continued to grow at a fast rate. In 2009 costs increased 5.0% while the medical CPI (Consumer Price Index) rose only 3.2%.

Medical costs and the efficient and delivery of medical benefits continue to be a major issue in the functioning of the workers' compensation system nationally. National Health Care reform may provide an opportunity to address this issue in a meaningful fashion through transfer of occupational disease medical costs to Medicare.

To read more about health care and workers' compensation click here.

Exposure to Noise and Lead at Firing Ranges

The National Institute for Occupational Safety and Health (NIOSH) continues to report on safety measures for excessive noise and lead exposure at firing ranges. Exposure to excessive noise in the workplace has been recognized as a major health hazard, one that can impair not only a person's hearing, but also his physical and mental well-being. In general noise in the workplace first affects the ability to hear high-frequency or high-pitched sounds.  Workers suffering from noise-induced hearing loss may also experience continual ringing in the ears, called "tinnitus".  In addition, workers who are exposed to noise sometimes complain of nervousness, sleeplessness and fatigue.

Lead exposure continues to be problematic in the workplace. The worker becomes exposed to lead when dust and fumes are inhaled and when lead is ingested through contamination on hands, water, food and clothing.  When lead enters the respiratory and digestive tracts of the human body it is released to the blood and distributed throughout the system.  More than 90% of the body's lead is accumulated in the bones where it is stored for many years.  The bones then release the lead back into the blood stream and re-expose the system long after the original occupational exposure has ceased.

NIOSH now reports in a new publication,  that "...Workers and users of indoor firing ranges may be exposed to hazardous levels of lead and noise. The National Institute for Occupational Safety and Health (NIOSH) recommends steps for workers and employers to reduce exposures."

"According to the Bureau of Justice Statistics, more than 1 million Federal, State, and local law enforcement officers work in the United States [DOJ 2004]. They are required to train regularly in the use of firearms. Indoor firing ranges are often used because of their controlled conditions (see Figure 1). In addition to workers, more than 20 million active target shooters practice at indoor firing ranges. Law enforcement officers may be exposed to high levels of lead and noise at indoor firing ranges. NIOSH estimates that 16,000 to 18,000 firing ranges operate in the United States."

"Several studies of firing ranges have shown that exposure to lead and noise can cause health problems associated with lead exposure and hearing loss, particularly among employees and instructors. Lead exposure occurs mainly through inhalation of lead fumes or ingestion (e.g., eating or drinking with contaminated hands)."

Click here to read more about occupational exposures and claims for workers' compensation benefits. For over 3 decades the Law Offices of Jon L. Gelman1.973.696.7900  have been representing injured workers and their families who have suffered from occupational and bystander exposures.

Monday, May 3, 2010

Workers Comp While Stripping

A Pennsylvania woman has been charged with fraud for collecting temporary workers' compensation benefits while continuing to work as a stripper. The Associated Press reports that the injured worker suffered a back injury allegedly limiting her ability to stand and move about in certain positions. A complaint filed charged her with working as a stripper at C.R. Fanny's Gentlemen's Club and Sports Bar while collecting $22,000 in temporary disability benefits.

Saturday, May 1, 2010

$208.8 Million Awarded in California Asbestos Case

A Los Angles jury awarded $208.8 Million in what has been recognized as the largest asbestos verdict ($200 Million punitive damages) in the State of California.  The case involved a household contact exposure to asbestos fiber. The wife of the asbestos worker was exposed to asbestos fiber on the clothes of her husband that he brought home and that she cleaned.

Liability was apportioned 70% against CertainTeed Corp and 30% against the Los Angles Department of Water and Power.

Asbestos is a known carcinogen and knowledge of the relationship of human exposure to asbestos fiber and mesothelioma, a rare malignancy, has been known since the 1920's. Cases for household contact exposure to asbestos fiber are common.

In Paterson NJ the Union Asbestos and Rubber Company Plant (UNARCO) was the subject of a sentinel study by the late Irving J. Selikoff, MD, who found that of the 933 workers who were employed during the war years, over 300 had died by 1976 of asbestos related disease, and that household contact illness and disease was very prevalent.

Click here to read more about asbestos related disease and claims for benefits. For over 3 decades the Law Offices of Jon L. Gelman 1.973.696.7900  have been representing injured workers and their families who have suffered asbestos related illnesses.