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Tuesday, May 31, 2011

The Next Wave of Workers Compensation Claims: WHO Calls Cell Phones a Potential Cancer Risk

After years of review, the World Health Organization (WHO) has classified the radio frequencies utilized by cell phones as possibly carcinogenic to human thereby opening the door to potential wave of workers' compensation occupational disease claims for  cancer of the brain. The increase risk has been identified for glioma, a malignant type of brain cancer .

The research has been mounting concern about the possibility of adverse health effects resulting from exposure to radio frequency electromagnetic fields, such as those emitted by wireless phones. The number of mobile phones in use is estimated at 5 billion annually. The Working Group did not quantitate the risk; however, one study of past cell phone use (up to the year 2004), showed a 40% increased risk for gliomas in the highest category of heavy users (reported average: 30 minutes per day over a 10‐year period).

The WHO/International Agency for Research on Cancer (IARC) has been meeting from May 24 through May 31 in Lyon, France to access the potential carcinogenic hazards from exposure to radio frequency electromagnetic fields.

The IARC Monograph Working Group discussed and evaluated the available literature on the following exposure categories involving radiofrequency electromagnetic fields:

  •  occupational exposures to radar and to microwaves; 
  •  environmental exposures associated with transmission of signals for radio, television and wireless telecommunication; and 
  •  personal exposures associated with the use of wireless telephones. 
A report summarizing the main conclusions of the IARC Working Group and the evaluations of the carcinogenic hazard from radiofrequency electromagnetic fields (including the use of mobile telephones) will be published in The Lancet Oncology in its July 1st issue.

Cells phones have emerged as a significant issue in workers' compensation claims since their use has been a major cause of distracted driving resulting in many serious and fatal accidents on the job. The WHO/IARC report has the potential of causing a major new wave of workers' compensation claims for cancer.

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 occupational accidents and illnesses.

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Medicare to Partially Resume Workmens Comp Collection Letters

The Centers for Medicare and Medicaid Services (CMS)  has announced that its recovery of benefits contractor will resume sending Medicare collection letters to attorneys in workmens compensation cases. The practice was suspended recently following the entry of a Federal Court Order enjoining some recovery practices. 

CMS has a statutory obligation to seek recovery of medical benefits that it has paid to beneficiaries in those matters where Medicare is not the primary insurance carrier responsible for medical care. CMS seeks to recovery the money that it has apid from the workers' compensation insurance carrier. The process has evolved where in CMS sends notice to the attorneys in the pending workers' compensation claim seeking reimbursement at the time of resolution of the workers' compensation claim.

The Medicare Secondary Payer Recovery Contractor (MSPRC) is contracted to issue a letter know as the "Review of the Rights and Responsibility Letter" (RAR). The MSPRC has announced that the RAR letters will resume in some format on or about June 10, 2010.

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Friday, May 27, 2011

Top 10 Surgery Center Violations

A recent report reveals that 1 out of 2 surgical centers have serious health safety violations. Workmens comp insurance carriers, as well as others, rely heavily upon these centers for surgery since they are less costly to operate than hospitals.

The New Jersey Health Care Quality Institute, (NJDHQI) reviewed state violations in a program funded by a Federal grant. NJDHQI published a report noting that more than 25% of the surgery centers were cited for "Immediate Jeopardy," which is a violation defined as noncompliance with established rules that has caused, or is likely to cause, serious injury, impairment or death to a patient.

The top violations were:
  • Staff members walked through the sterile operating room in street clothes
  • The surgery center did not have mandated emergency equipment and medicines on site
  • The surgery centers had no system to track controlled and regulated medications on site
  • Physicians and staff did not have current licenses and credentials
  • The patient beds and floors were not sanitized correctly
  • Surgical instruments were not cleaned or sanitized correctly
  • The staff filled out patient charts in advance for convenience
  • Single use items were used more then once on a patient
  • The facility did not maintain an ongoing infection control program
  • The surgery center failed to obtain consent from patients prior to permitting physician residents in an educational program participate in their surgeries.

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 occupational accidents and illnesses.

Occupational Safety Recognized as One of the Top Ten Great Health Achievements

During the 20th century, life expectancy at birth among U.S. residents increased by 62%, from 47.3 years in 1900 to 76.8 in 2000, and unprecedented improvements in population health status were observed at every stage of life (1). In 1999, MMWR published a series of reports highlighting 10 public health achievements that contributed to those improvements. This report assesses advances in public health during the first 10 years of the 21st century. Public health scientists at CDC were asked to nominate noteworthy public health achievements that occurred in the United States during 2001--2010.

Occupational Safety

Significant progress was made in improving working conditions and reducing the risk for workplace-associated injuries. For example, patient lifting has been a substantial cause of low back injuries among the 1.8 million U.S. health-care workers in nursing care and residential facilities. In the late 1990s, an evaluation of a best practices patient-handling program that included the use of mechanical patient-lifting equipment demonstrated reductions of 66% in the rates of workers' compensation injury claims and lost workdays and documented that the investment in lifting equipment can be recovered in less than 3 years (45). Following widespread dissemination and adoption of these best practices by the nursing home industry, Bureau of Labor Statistics data showed a 35% decline in low back injuries in residential and nursing care employees between 2003 and 2009.

The annual cost of farm-associated injuries among youth has been estimated at $1 billion annually (46). A comprehensive childhood agricultural injury prevention initiative was established to address this problem. Among its interventions was the development by the National Children's Center for Rural Agricultural Health and Safety of guidelines for parents to match chores with their child's development and physical capabilities. Follow-up data have demonstrated a 56% decline in youth farm injury rates from 1998 to 2009 (National Institute for Occupational Safety and Health, unpublished data, 2011).

In the mid-1990s, crab fishing in the Bering Sea was associated with a rate of 770 deaths per 100,000 full-time fishers. Most fatalities occurred when vessels overturned because of heavy loads. In 1999, the U.S. Coast Guard implemented Dockside Stability and Safety Checks to correct stability hazards. Since then, one vessel has been lost and the fatality rate among crab fishermen has declined to 260 deaths per 100,000 full-time fishers.

Reported by: Domestic Public Health Achievements Team, CDC. Corresponding contributor: Ram Koppaka, MD, PhD, Epidemiology and Analysis Program Office, Office of Surveillance, Epidemiology, and Laboratory Services, CDC;, 347-396-2847.

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 occupational accidents and illnesses.

Thursday, May 26, 2011

Driving Home From A Conference Held to Be Compensable

The employee's travel which resulted in his fatal injuries while he was driving from home in a vehicle furnished by his employer to an overnight conference outside his normal work area at the employer's request, was held to be compensable for workers' compensation purposes. The travels originated in, and furthered, the business of his employer and, thus, occurred "in course of employment." Even though the accident occurred on the way to pick up a coworker who had the same job as the employee and was also required to attend the same conference, death benefits were payable.

"As previously noted, an employee's travel between home and work furthers the affairs of the employer (the second element of the course and scope definition) because it makes employment possible. Thus, the propriety of summary judgment hinges on the definition's first element—whether the travel originated in the employer's business. There is no bright-line rule for determining whether employee travel originated in the employer's business. Rather, each situation is necessarily dependent on the facts. As a general rule, an employee's travel originates in his employer's business if the travel was pursuant to the express or implied requirements of the employment contract. This reflects the underlying policy goal of allocating to the employer and insurance carrier the risks inherent in an employee's job while leaving to the employee risks that are “shared by society as a whole and do not arise as a result of the work of the employer.” When the employer requires the employee to travel as part of its business—i.e., pursuant to the contract of employment—the risk of traveling stems from that business and properly can be said to arise as a result of the employer's business." [Cites omitted]

Zurich American Ins. Co. v McVey, No. 03–09–00666–CV, 2011 WL 1238657 )Tex. App. - Austin, 2011) Decided March 30, 2011.

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 occupational accidents and illnesses.

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Wednesday, May 25, 2011

Halted: Medicare Secondary Payer Recovery Contractor Demand Letters

The Medicare Recovery Contractor (MSPRC) has now posted a notice on its web site that, "...Issuance of the Rights and Responsibilities (“RAR”) and Demand letters has been temporarily suspended while these letters are under review. The MSPRC is still working cases, and the RAR and Demand letters will be mailed out once appropriate revisions have been made."

This follows a recent US District Court ruling enjoining CMS's collection procedures. Haro v. Sebelius, (A. Ariz.) CV 09-134 TUC DCB

Employers Face a Triple Legal Threat for Distracted Driving Claims

Employers usually make an "after the fact" reaction to cell phone use that the result in distracted driving accidents. The mounting liability for employers, a triple economic threat, may soon change their attitude to adopt an improved cell phone safety culture.

Employers who have no policy in-place or enforcement protocol, passive or active, seem to be in the majority according to a recently released survey conducted by ZoomSafer Inc. The company offers several products to actively stop cellphone use while driving. Their survey of over 500 business managers reveals that 32% of companies have knowledge or evidence of vehicle cashes that have occurred as a result of distractions stemming from employee use of cell phone while driving.  Of  the 54% of the companies with a defined cell phone policy, more than half, 27.3%, created that policy only after an incident occurred.

Employers are now faced with a triple threat of legal actions including: workers' compensation claims from their employees, liability law suits from the innocent individual who was injured, and now an OSHA fine. It is anticipated that these economic  factors will have a major impact in creating an improved cellphone safety culture.

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 occupational accidents and illnesses.

NJ Pension System Not Permitted to Deduct Counsel Fee From Workers Compensation Recovery

The NJ State Police Retirement System is not permitted to deduct the workers' compensation counsel fee allocation from the worker's accidental disability retirement allowance.

"We are persuaded that the Board cannot offset petitioner's accidental disability retirement allowance under N.J.S.A. 53:5A-38.1(b) by the amount of the attorney's fee payment credit to petitioner because that payment does not constitute a compensation benefit under our workers' compensation law. The fact that petitioner may have received the attorney's fee payment from his employer in the form of a credit does not change the legal status and convert that payment into a periodic benefit subject to triggering the application of N.J.S.A. 53:5A-38.1(b)."

Baracia v. Board of Trustees of the State Police Retirement System, A-3611-09T2, 2011 WL 1885937 (NJ Super AD 2011)  Decided May 13, 2011.

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 occupational accidents and illnesses.

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Tuesday, May 24, 2011

IARC To Issue Report on Cell Phones

The World Health Organization (WHO) is expected to release a decision by June 1st as to whether the radiation emitted from cellphones causes cancer. Scientists at the WHO’s International Agency for Research on Cancer will take part in an eight-day meeting in Lyons, France starting May 24, 2011. 

The use of cell phones in the course of employment is a major concern as it results in distracted driving accidents. The new report will determine if employer mandated cell phone use can be causally connected to occupational cancer claims.

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 occupational accidents and illnesses.

Court Permits Deduction of Procurement Costs From Medicare Set-Aside in Liability Claim

Following the guidelines of the CMS Management Memo entitled "Medicare Secondary Payer - Workers Compensation (WC) Information" dated May 7, 2004, and the interpretation of 42 CFR 411.37, a NJ Court granted an attorney the deduction of procurement costs from a Medicare Set-Aside Trust.

"This court's decision to apply 42 C.F.R. § 411.37 to funds obtained in a civil action and placed in a Medicare set aside is also in line with general principles of equity. Where a plaintiff is, or will within a short time become, a Medicare recipient, the plaintiff's attorney also works on behalf of Medicare to secure funds to pay future medical expenses Medicare would otherwise pay. To allow Medicare to avoid paying an equitable share of the procurement fees for a judgment or settlement amount, forcing the plaintiff to cover all the fees, would be unfair to plaintiffs. In some situations, a plaintiff may end up getting nothing after creating the set aside and paying attorneys' fees or may even have to pay money out of pocket to his attorney after a lengthy trial. Such a result would not only be inequitable, it would deter persons on Medicare who are injured by the tortious acts of others from bringing claims."

Hinsinger v. Showboat Atlantic City, L-3460-07, 2011 WL 1885980 (NJ Super Law Division 2011), decided May 19, 2011.

Monday, May 23, 2011

CMS Announces Review is Only a Recommended Process for Set-Aside Agreements

The Centers for Medicare and Medicaid Services (CMS) has just announced a clarification of its prior memos concerning the review of Workers Compensation proposed Set Aside Agreements and also indicates that submission is an elective process.

"Submission of a WCMSA proposal to CMS for review and approval is a recommended process. There are no statutory or regulatory provisions requiring that a WCMSA proposal be submitted to CMS for review. However, if an entity chooses to use the WCMSA review process, CMS requests that it comply with the established policies and procedures referenced on its Web site. Claimants, employers, carriers, and their representatives should be encouraged regularly to monitor this dedicated workers’ compensation Web site for changes in policies and procedures."

CMS indicated that, "A WCMSA should not be submitted to CMS when the resolution of the workers’ compensation claim results in the medical portion of the claim is being left open." In the memo, CMS reiterates the threshold levels and eligibility for review criteria.

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Latest Workers Compensation Data Reviewed by Professor John Burton

The Workers' Compensation Resources Research Report (Issue) has just been published. The report is edited by Professor Emeritus John F. Burton, Jr

This issue of the Workers’ Compensation Resources Research Report(WCRRR) examines the employers’ costs of workers’ compensation based on the latest data from the Bureau of Labor Statistics. Part I provides information on the national costs of workers’ compensation from 1986 to 2010. For employers in the private sector, costs dropped for the fifth year in a row and were 1.95 percentage of payroll in 2010. For all non-federal government employees, the employers’ costs of workers’ compensation were 1.87 percent of payroll, continuing a five-year trend of declining costs. Part II of the WCRRR provides data on the differences in the employers’ costs of workers’ compensation due to factors such as geographical location, industry, union status, and occupations of the firm’s employees. The variations of workers’ compensation costs among industries were significant, ranging from 5.75 percent of payroll in construction to 0.63 percent of payroll in the financial industry.

For more information and to order a copy click here.

North Carolina Proposes to Reduce Worker Benefits and Abolished Privacy Rights

Guest Blog by Leonard T. Jernigan, Jr. 

Leonard T. Jernigan, Esq.
There are two bills in the legislature (HB 709 and SB 544) that will reduce workers' compensation benefits to injured workers, abolish their rights to physician-patient privacy and make it easier for insurance companies to cut off benefits. Although there is a possibility that representatives for employers and those for employees will reach a compromise in the near future, in order to understand the significance of these changes it is helpful to understand some history and how the Workers' Compensation Act works.

I teach workers' compensation law at N.C. Central University, and on the first day of class we always discuss the March 26, 1911 Triangle Shirtwaist Company fire in New York City in which 146 young women died because the fire doors were locked. Many of them jumped to their deaths from the 11th floor, as horrified spectators watched from below. No compensation was paid for their deaths.

After this event, New York passed one of the first workers' compensation acts in the United States. Many states followed, and North Carolina eventually passed a law in 1929. The theory behind it remains the same: In exchange for quick but limited benefits to the injured worker, the employer got immunity from civil liability for the full extent of the injury.

In determining limited benefits, the act provides that the injured individual get two-thirds of the weekly wage earned prior to the injury as long as disability continues, all reasonable medical bills related to the injury are paid and if a body part has been permanently injured, additional payments can be made. The wear and tear of the human body is like the wear and tear of a machine. Each body part is assigned a certain number of weeks of compensation if permanently damaged.

Under this system, what would be the payment if your left ring finger were amputated in a machine? You would get 25 weeks of benefits ($9,615.75 for a 20-year-old earning $30,000 per year). That is not much for having a physical deformity for the next 60 years or so and for not being able to wear a wedding ring on that finger. Total loss of the hand is 200 weeks. Total loss of the foot is 144 weeks, etc.

This system applies equally to young and old alike. Also, there is no compensation for physical pain or emotional suffering. One lady had her hair caught in a machine and a portion of her scalp was ripped from her head. She got disability benefits but nothing for pain.

If you are totally disabled from work, weekly benefits are fixed on the date of injury and never increase. Twenty years after the injury, you will still be getting the exact same weekly benefit. To appreciate the economic effect of that fixed amount, think about the price of gasoline or the price of a movie ticket 20 years ago.

What about immunity for the employer? How does that work?

In 2010, a 17-year-old boy was working on a large machine that would shred pallets to make mulch. He became entangled in the machine and was drawn through the crushing chamber, and his remains were found on the discharge side of the shredder. A safety bar had been removed, and the employer was cited with 11 violations, including the failure to properly train the employee.

Because of workers' compensation immunity, the family of this young man was prohibited from bringing a civil claim against the employer. At the end of the day, the employer got immunity, and the family got limited benefits of 400 weeks of compensation, plus funeral expenses of $3,500.

The bill pending in the legislature allows disability benefits to stop after 500 weeks (approximately 9.5 years), even if the employee is still disabled. There are some exceptions (for those paralyzed or for those who have brain injuries, etc.), but, otherwise, after 500 weeks, benefits simply stop.

What happens to the individual who is still disabled? Will he or she magically become employable? Think about a highly skilled nurse, age 45, making $25 an hour who falls while lifting a patient and has had multiple surgeries, without success, and now has chronic pain and significant lifting and standing restrictions. At age 55, will she be able to find employment? Not likely.

If her benefits are cut off, will she starve? Probably not. She will no doubt fall into a taxpayer-funded safety net called Medicaid, Medicare or Social Security Disability. It is a classic case of cost-shifting from the insurance industry to the taxpayer.

Why would the legislature shift the burden for some of the most seriously injured individuals away from the insurance industry and make the public pay that debt? If a compromise cannot be reached, you may want to ask your state representative or your state senator that question.

This editorial appeared in the

Leonard T. Jernigan, Jr. practices in Raleigh, North Carolina (The Jernigan Law Firm). Mr. Jernigan is the author of North Carolina Practice, Workers Compensation Law and Practice 4th ed. He has been recognized by Best Lawyers in Americaand Super Lawyers. Leonard T. Jernigan, Jr. is an Adjunct Professor of Workers Compensation Law at North Central University School of Law. He is one of only 48 workers' compensation attorneys in the United States authorized by the National Football League Players Association (NFLPA) to represent its members. He is also authorized to represent players in the National Hockey League (NHL) and the Professional Hockey Players Association (PHPA) as well as other professional athletes.

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Click It or Ticket Campaign --- May 23--June 5, 2011

In 2009, motor vehicle crashes resulted in approximately 23,000 deaths to passenger vehicle occupants (excluding motorcyclists), and 2.6 million occupants were treated for injuries in emergency departments in the United States. Many motor vehicle accidents occur in the course of employment and are the subject of workers' compensation claims. Although seat belt use in the United States is now estimated at 85%, millions of persons continue to travel unrestrained. Using a seat belt is one of the most effective means of preventing serious injury or death in the event of a crash. Seat belts saved an estimated 12,713 lives in 2009, but almost 4,000 additional lives could have been saved if every occupant had been buckled up.

Click It or Ticket, a national campaign coordinated annually by the National Highway Traffic Safety Administration (NHTSA) to increase the proper use of seat belts, takes place May 23--June 5, 2011. Law enforcement agencies across the nation will participate by conducting intensive, high-visibility enforcement of seat belt laws. Campaign activities will focus on young adult men (aged 18--34 years) and on nighttime travel. Additional information regarding Click It or Ticket activities is available from NHTSA at Additional information on preventing motor vehicle crash injuries is available from CDC at

National Highway Traffic Safety Administration. Traffic safety facts 2009: early edition. Washington, DC: US Department of Transportation; 2010. DOT-HS-811-402. Available at . Accessed May 12, 2011.
CDC. WISQARS (Web-based Injury Statistics Query and Reporting System). Available at Accessed May 12, 2011.
Beck LF, West BA. Nonfatal, motor vehicle--occupant injuries (2009) and seat belt use (2008) among adults---United States. MMWR 2001;59:1681--6.
National Highway Traffic Safety Administration. Lives saved in 2009 by restraint use and minimum-drinking-age laws. Washington, DC: US Department of Transportation; 2010. DOT-HS-811-383. Available at . Accessed May 12, 2011.

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 occupational accidents and illnesses.

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Safer Chemical Industry WIll Produce More Jobs

A new economic study shows that that by shifting a fifth of the plastic production to bioplastics the industry would be safer and the action would result in creating more than 100,000 new jobs. Creating new markets in sustainable chemistry would enable the US chemical industry to remain competitive in the global economy and would result in a cleaner and more productive industry. Therefore there would be fewer workers' compensation claims caused by occupational exposures to hazards of the chemical industry.

The study released today shows, for the first time, that federal chemical policy reform can support job creation in the U.S. chemical industry while protecting public health and the environment. The study, produced by the Political Economy Research Institute (PERI) and commissioned by the BlueGreen Alliance, shows that innovation in sustainable chemistry can reverse the industry's job shedding trend in a market that increasingly requires cleaner, safer production.

The new report - The Economic Benefits of a Green Chemical Industry in the United States: Renewing Manufacturing Jobs While Protecting Health and the Environment - demonstrates that the U.S. chemical industry shed 300,000 jobs since 1992, despite production increasing by 4 percent per year. Under the current scenario, the industry stands to lose approximately 230,000 jobs in the next 20 years. But contrary to arguments that chemical policy reform will cost jobs and stifle innovation, the report demonstrates that innovation in sustainable chemistry presents new opportunities to reverse the job shedding trend. For example, if 20 percent of current production were to shift from petrochemical-based plastics to bio-based plastics, 104,000 additional jobs could be created in the U.S. economy.

"This report charts a different course to update and revitalize an industry so important to our security," said Leo W. Gerard, International President of the United Steelworkers (USW), which represents some 30,000 chemical workers in North America. "Instead of our members losing quality jobs in the chemical industry and accepting the myth that policy reform will somehow cost more jobs, TSCA reform will create sustainable, good-paying jobs while protecting the health of workers and the environment by encouraging investment in education, technology and research."

The Economic Benefits of a Green Chemical Industry argues that the U.S. chemical industry has relied on cost cutting to remain profitable, which has eliminated American jobs, while under-investing in innovation. The industry spends just 1.5 percent of sales on research and development, compared to 3.4 percent for the manufacturing sector as a whole. By taking clear steps toward sustainable production, spurred by chemical policy reform like the Safe Chemicals Act of 2011, the U.S. chemical industry will become more competitive by: lowering costs for the industry and downstream users, ensuring access to important global markets, reducing waste by using inputs more efficiently, curtailing future cost pressures from non-renewable fossil-fuel inputs, meeting demands from consumers for safer products, protecting shareholder value, and encouraging research and development of innovative products.

"This study shows that an effective regulatory environment will support the chemical industry's ability to take advantage of new markets in sustainable chemistry," said James Heintz, Associate Director of the Political Economy Research Institute. "Either we can continue with weak and ineffective regulation - continuing to produce potentially hazardous chemicals while manufacturing jobs disappear - or we can move toward disclosure, regulation, and sustainability; encourage innovation; create stability for businesses and investors; and build new markets for safe and sustainable chemicals."

The report makes three recommendations to build a stronger chemicals industry. First, it recommends reforming TSCA to create an effective new regulatory environment that reduces hazards and supports innovation and competitiveness. The second recommendation is to implement complementary policies to promote innovation, commercialization, and the development of human resources to create a greener and safer chemical industry. Finally, it recommends disseminating environmental and health-related information on the chemical industry as widely as possible to improve the choices available to consumers, workers, downstream users, and investors and to mobilize investment in emerging opportunities.

"The prevalence of toxic chemicals in our everyday lives threatens public health and the environment," said Frances Beinecke, President of the Natural Resources Defense Council, a partner in the BlueGreen Alliance. "Chemical policy reform will ensure that the Environmental Protection Agency has the power to protect people from dangerous chemicals."

"The United States is searching for answers to our unemployment crisis and this report - demonstrating the job-creating potential of chemical policy reform - shows that embracing sustainable chemistry provides just the opportunity our economy needs, while protecting the health of our people and our environment," said BlueGreen Alliance Executive Director David Foster.

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 occupational accidents and illnesses.

Saturday, May 21, 2011

Illinois Workers Compensation - It is time for a "Do Not Resuscitate" Order

It is ironic that one of the leading states in workers' compensation, Illinois, is about to watch the system implode. It was a predictable event. Employers created and manipulated the system for their own interests for years by taking away more and more of the rights of injured workers. 

Industry has literally chopped the system to death through their reform efforts. Now they want to put fault into a system whose foundation was built upon none. Employers can no longer shield themselves from the medical expenses of the big-ticket items like the costs of medical expenses for the last year of life, especially in occupational disease situations. The Centers for Medicare and Medicaid Service (CMS) has caught them with their pants down by the legislatively invoked mandatory reporting statute under the Medicare Secondary Payer Act (MSP). The occupational disease claims that the insurance companies have played hide and seek with for years now are haunting them. 

The great Ponzi scheme, workers' compensation, that Industry created to handle occupational injuries in an assembly-line process, is now crashing. There is no economic base upon which to support workers' compensation programs into the future. Like Elvis, the Industrial sector has "left the building." Unemployment has continued in such high numbers, for so long, that union welfare funds are totally depleted as their members sit idle in union halls hungry for work and go bare for health insurance coverage. US corporations have moved both their operations and headquarters to greener pastures, overseas, leaving this country with a legacy of industrial waste, both environmental and human. 

The next step will be what is already in the works. Both liberals and conservatives have endorsed a national health plan. Prototypes are emerging on both the State and Federal levels. The question will be how to fund them. Such plans will cover medical care for injured workers without delay and costly administrative issues. Giving employees access to the civil justice system, and allowing recoveries against employers who fail to maintain safe industrial environments will ultimately solve the need for adequate compensation. A real economic incentive will then be established for employers to make the workplace safer instead of merely ignoring safety rules and regulations and looking for cover under a low cost workers' compensation insurance policy. 

The remaining crumbs of the workers' compensation systems that remain in the country are now being exploited by a cottage industry of economic vultures that are attempting to abuse and game the system for their own benefit. The third party vendors that hawk medical programs and pharmaceuticals for insurance carriers, and lien/claim resolution companies, are the only ones who are going to benefit from what remains. They are hacking up the system like the New England whalers of the Northeast who hunted down and decimated sperm whales, and sliced up their corpses to extract the oil for industrial lubricants and fuel, and then rendered the chopped up blubber for oil products. 

What is happening in Illinois to the workers' compensation system, is that the system is being slashed to death and rendered inoperable. It is a national issue. Those who realize that it is too late to save the system have invoked a "Do Not Resuscitate" (DNR) order. It is time to come to the realization that the workers' compensation program no longer has a quality of life to maintain the noble aspirations of its crafters. May it rest in peace.

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