Copyright

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

Wednesday, August 31, 2011

Surveillance Crosses the Privacy Line

Surveillance in workers compensation matters creates sensitive issues regarding privacy. The bright-line of what is public versus private becomes even more acute as employers and insurance companies investigate fraud concerns. When companies cross the line the consequences can be serious.

Several Montana attorneys have sought relief from a Court for what they call a breach of the privacy of the injured workers whom they represent. The attorneys allege that insurance fraud investigators, on behalf of a Montana insurance fund, have violated the privacy rights of their client by recording surveillance videos  and giving them to examining physicians, in order to facilitate reports that the injured workers are malingering.

The attorneys represent that  in over 800 instances, over the past several years, criminal surveillance tapes were unilaterally provided to defense medical experts to the detriment of their client's right to privacy. Harassment of injured workers creates fear that deters claims to benefit of employers and their insurance carriers. Inured workers have limited resources to fight such unscrupulous behavior. The attorneys in Montana had done a great pro bono and public service to take on Goliath on behalf of David. Hopefully the courts will balance the playing field and protect the rights of the injured worker from such tactics.

Workers' compensation was designed as a simple and equitable system. It was intentionally designed for the benefit of all the parties who participate in it. It is important that when the system becomes unbalanced that all the participants join in the effort equally to both redesign and rebalance the program.

Tuesday, August 30, 2011

Zadroga 9-11 Compensation Fund To Accept Claims October 3rd

The 9/11 Zadrogra Compensation Fund is scheduled to start accepting claims for compensation on October 3, 2011. Announcement of the publication of the Final Rule was just announced.

With the 10-year anniversary of Sept. 11, 2001, approaching, September 11th Victim Compensa­tion Fund (VCF) Special Master Sheila L. Birnbaum today announced the final rule governing the fund. Since issuing the proposed regulations in June 2011, Special Master Birnbaum has reviewed formal comments and met with, and received feedback from, hundreds of New York-area residents, workers and first responders at town hall meetings held in New York and New Jersey.


For more information about The 9/11 Fund claims click here.


For over 3 decades the Law Offices of Jon L. Gelman  1.973.696.7900  jon@gelmans.com have been representing injured workers and their families who have suffered occupational accidents and illnesses.

What Hurricane Relief Volunteers Need to Know About Workers Compensation

Hurricane relief volunteers are entitled to workers compensation benefits for injuries and illnesses that occurred as a result of their participation in relief efforts. In order to claim those benefits injured volunteers need to make sure that they follow some simple steps.

1. Make sure that they establish an employment relationship for the agency or company conducting the relief work. In other words, the volunteer, even if earning no money, must be an employee of the the company conducting the rescue and/or relief effort. The best evidence would be a written agreement that the worker is to be considered an employee of the company. 

2. Report to the report if an accident or injury occurs arising out of and in the course of the employment. This report should be made as quickly as possible following the event or manifestation of illness. This should be followed up immediate with a written communication to the employer advising that an injury or illness occurred and that medical treatment, if necessary, is being sought.

3. Record the names and addresses witnesses to the even or exposure.

4. Seek medical care if required. If it is an emergency and you are unable to first notify your employer, seek medical attention first and then report the event. Most emergency rooms will record your event history and notify your employer, but that is not always the case. Therefore, advise your employer where and when you sought emergency medical care as soon as possible.

5. If you are advised by a medical profession to stay out of work, then obtain that information in writing. Make a copy of the lost time order and give the copy to your employer.

6. See the advice of an attorney at law familiar with workers' compensation matters since volunteer work in emergency situations produced a lot of complication issues. Those issue are inherited from the chaos and complications that occur in the wake of a major natural disaster such as a hurricane.

Volunteering for the hurricane relief effort is a noble gesture. Workers, in the emotional haste to assist, must also insure that they remain insured for workers' compensation benefits.

Monday, August 29, 2011

Pensions, Workers Compensation and Medical Benefits

The State of New Jersey has taken assertive action to guarantee medical benefits to injured workers for their lifetimes even though they are receiving accidental injury pensions. The Director has issued an Administrative Directive requiring language to literally toll the statute of limitations and permit the Division of Workers' Compensation to retain jurisdiction over such matters where the injured worker has accepted the continuing medical benefit option.

"Petitioner has been awarded and accepted an accidental disability pension effective _(date)_. To resolve the workers' compensation case, petitioner and respondent have agreed to provide petitioner with reasonable and necessary medical treatment for injuries related to the _(date)_ accident. This Order for continuing medical benefits shall not be subject to the two year statute of limitations and such medical benefits shall continue for the life of the petitioner or until further order of this court."

By statute, workers' compensation awards are offset by pension awards. The medical issue remains open usually and medical benefits remain the responsibility of the employer. The medical issue becomes a complication when costs are attempted to be shifted to collateral medical carriers or Medicare. The subsequent reimbursement issue then generates medical lien claims that must be litigated. The incorporation of the language will greatly clarify responsibility and expedite medical care and payment.

For over 3 decades the Law Offices of Jon L. Gelman  1.973.696.7900  jon@gelmans.com have been representing injured workers and their families who have suffered occupational accidents and illnesses.


Genetic Pre-Disposition to Mesothelioma


The workers' compensation system has struggled with asbestos related claims for decades. The serious and sometimes fatal occupational malignancies that asbestos exposure has been responsible for have resulted in an unabated epidemic surge of claims for which he system was unable to handle efficiently. The recent findings of a genetic predisposition to mesothelioma is a hopeful beginning that positive research efforts will yield both prevention and cure of asbestos related disease.

Scientists have found that individuals who carry a mutation in a gene called BAP1 are susceptible to developing two forms of cancer – mesothelioma, and melanoma of the eye. Additionally, when these individuals are exposed to asbestos or similar mineral fibers, their risk of developing mesothelioma, an aggressive cancer of the lining of the chest and abdomen, may be markedly increased.

"Because only a small fraction of asbestos-exposed individuals develop malignant mesothelioma1, and because mesothelioma clustering is observed in some families, we searched for genetic predisposing factors. We discovered germline mutations in the gene encoding BRCA1 associated protein-1 (BAP1) in two families with a high incidence of mesothelioma, and we observed somatic alterations affecting BAP1 in familial mesotheliomas, indicating biallelic inactivation. In addition to mesothelioma, some BAP1 mutation carriers developed uveal melanoma. We also found germline BAP1 mutations in 2 of 26 sporadic mesotheliomas; both individuals with mutant BAP1 were previously diagnosed with uveal melanoma. We also observed somatic truncating BAP1mutations and aberrant BAP1 expression in sporadic mesotheliomas without germline mutations. These results identify a BAP1-related cancer syndrome that is characterized by mesothelioma and uveal melanoma. We hypothesize that other cancers may also be involved and that mesothelioma predominates upon asbestos exposure. These findings will help to identify individuals at high risk of mesothelioma who could be targeted for early intervention."

"Germline BAP1 mutations predispose to malignant mesothelioma,
" Nature Genetics (2011) doi:10.1038/ng.912Received 06 May 2011 Accepted 27 July 2011 Published online 28 August 2011


Also see NIH Press Release: NIH-funded researchers discover genetic link to mesothelioma; Identified gene mutation may underlie other cancer types

For over 3 decades the Law Offices of Jon L. Gelman  1.973.696.7900  jon@gelmans.com have been representing injured workers and their families who have suffered occupational accidents and illnesses.

Friday, August 26, 2011

Remembering 9/11



In commemoration of the tenth anniversary of the September 11, 2001 attacks, the International Center of Photography (ICP) is collaborating with the National September 11 Memorial Museum (9/11 Memorial Museum) on an exhibition of photography and video that addresses the issues of memory and recovery from disaster and explores how New Yorkers and volunteers from across the U.S. responded to this inconceivable tragedy. Remembering 9/11 will be on view at the International Center of Photography (1133 Avenue of the Americas at 43rd Street) from September 9, 2011 to January 8, 2012.

“On the occasion of this important anniversary of the events of 9/11, ICP is pleased to partner with the 9/11 Memorial Museum on an exhibition that honors those who were lost and celebrates the sacrifices of many to recover from those violent acts,” said Willis E. Hartshorn, ICP Ehrenkranz Director. “Photography is, in this case, both a documentary tool to record this process of regeneration and a medium of memorialization and healing.”

Focusing on how firefighters, transit workers, police officers, construction workers, artists, photographers, and World Trade Center (WTC) neighbors worked together in the aftermath of the attacks, the exhibition will include five parts: Memory Remains: 9/11 Artifacts at Hangar 17, a major installation by Francesc Torres; photographs from Eugene Richards’ Stepping Through the Ashes; a five-channel video installation, cedarliberty, by Elena del Rivero and Leslie McCleave; Above Ground Zero, photographs and proof sheets by Gregg Brown; and excerpts from here is new york: a democracy of photographs.

“The work in Remembering 9/11 documents a wealth of different experiences and offers various perspectives on the tragedy and its aftermath. It is the first time some of the work will be exhibited and accessible to the public. Only a handful of Gregg Brown’s extraordinary aerial views of the WTC site, which were commissioned by government agencies right after the attacks, has been seen by general viewers. And Francesc Torres’ installation will be a unique opportunity to see the WTC artifacts that were housed in Hangar 17,” said ICP Curator Carol Squiers, who co-organized the exhibition.

“For years, Hangar 17 has been a repository for stories of loss, courage, heroism, and resiliency that have been told through the recovered WTC steel beams and damaged vehicles,” said Joe Daniels, President and CEO, National September 11 Memorial & Museum. “A year from this year’s opening of the 9/11 Memorial, the world will be able to experience these historic artifacts in the 9/11 Memorial Museum. Our collaboration with ICP offers a window onto the Museum exhibitions we are planning.”

Memory Remains: 9/11 Artifacts at Hangar 17

Francesc Torres’ Memory Remains: 9/11 Artifacts at Hangar 17 is a digital projection installation of 140 photographs taken of the more than 1,500 artifacts removed from the WTC site and preserved inside Hangar 17 at JFK Airport. In Hanger 17, the items were cleaned, catalogued, and arranged in the 80,000 square-foot space, with only a limited number of visitors seeing the collection over the years, including military and police officials and family members of the victims. In April 2009, Torres photographed the collection that had taken shape inside the hangar, including twisted steel beams, crushed emergency and civilian vehicles, the remains of an Alexander Calder sculpture, store merchandise and displays, ID badges, and huge objects dubbed “composites”— compressed fused pieces of building materials, some measuring as much as eight feet on a side and weighing an estimated 25,000 to 30,000 pounds.

“Torres spent five weeks at Hangar 17 in 2009, daily confronting the legacy of terror and the ghosts of Ground Zero,” said Alice M. Greenwald, Director, 9/11 Memorial Museum. “Through Torres’ eyes, we can see the potential for resilience, and the triumph of the human spirit over adversity.”

The Torres work was commissioned for the 9/11 Memorial Museum in 2009. Many of the artifacts from Hangar 17 will be shown at the 9/11 Memorial Museum when it opens in September 2012.




Thursday, August 25, 2011

Census of Fatal Occupational Injuries Summary, 2010

A preliminary total of 4,547 fatal work injuries were recorded in the United States in 2010, about the same as the final count of 4,551 fatal work injuries in 2009, according to results from the Census of Fatal Occupational Injuries (CFOI) program conducted by the U.S. Bureau of Labor Statistics. The rate of fatal work injury for U.S. workers in 2010 was 3.5 per 100,000 full-time equivalent (FTE) workers, the same as the final rate for 2009. Over the last 3 years, increases in the published counts based on information received after the release of preliminary data have averaged 174 fatalities per year or about 3 percent of the revised totals. Final 2010 CFOI data will be released in Spring 2012. 

 Economic factors continue to play a role in the fatal work injury counts. Total hours worked were up slightly in 2010 in contrast to the declines recorded in both 2008 and 2009, but some historically high-risk industries continued to experience declines or slow growth in total hours worked. Key preliminary findings of the 2010 Census of Fatal Occupational Injuries: - The number of fatal work injuries among the self-employed declined by 6 percent to 999 fatalities, more than the decline in their hours worked. 

Wednesday, August 24, 2011

What to Do During an Earthquake

Workers' Compensation provides for benefits for workers who suffer injuries, physical and emotional, from natural disasters such as earthquakes, floods, storms. The recent earthquake in the northeast US highlights that workers become aware of what to do in case a hurricane strikes.

Stay as safe as possible during an earthquake. Be aware that some earthquakes are actually foreshocks and a larger earthquake might occur. Minimize your movements to a few steps to a nearby safe place and if you are indoors, stay there until the shaking has stopped and you are sure exiting is safe.
If indoors

DROP to the ground; take COVER by getting under a sturdy table or other piece of furniture; and HOLD ON until the shaking stops. If there isn’t a table or desk near you, cover your face and head with your arms and crouch in an inside corner of the building.

Stay away from glass, windows, outside doors and walls, and anything that could fall, such as lighting fixtures or furniture.

Stay in bed if you are there when the earthquake strikes. Hold on and protect your head with a pillow, unless you are under a heavy light fixture that could fall. In that case, move to the nearest safe place.

Use a doorway for shelter only if it is in close proximity to you and if you know it is a strongly supported, loadbearing doorway.

Stay inside until the shaking stops and it is safe to go outside. Research has shown that most injuries occur when people inside buildings attempt to move to a different location inside the building or try to leave.

Be aware that the electricity may go out or the sprinkler systems or fire alarms may turn on.

DO NOT use the elevators.

If outdoors

Stay there.

Move away from buildings, streetlights, and utility wires.

Once in the open, stay there until the shaking stops. The greatest danger exists directly outside buildings, at exits and alongside exterior walls. Many of the 120 fatalities from the 1933 Long Beach earthquake occurred when people ran outside of buildings only to be killed by falling debris from collapsing walls. Ground movement during an earthquake is seldom the direct cause of death or injury. Most earthquake-related casualties result from collapsing walls, flying glass, and falling objects.

If trapped under debris

Do not light a match.

Do not move about or kick up dust.

Cover your mouth with a handkerchief or clothing.

Tap on a pipe or wall so rescuers can locate you. Use a whistle if one is available. Shout only as a last resort. Shouting can cause you to inhale dangerous amounts of dust.

Following the earthquake, if you have suffered an injury, physical and emotional, seek medical attention and provide a report to your employer that you have been injured and seek workers' compensation benefits.

For over 3 decades the Law Offices of Jon L. Gelman  1.973.696.7900  jon@gelmans.com have been representing injured workers and their families who have suffered occupational accidents and illnesses.

Tuesday, August 23, 2011

Major California Medical Record Privacy Breach Disclosed

The lack privacy of medical records in workers' compensation claims has perpetually been a huge concern for workers since Congress ignored requests to protect their dissemination. A recent disclosure in California that the medical records of 300,000 injured workers were available online to the public through a mere Google search further demonstrates that the system is failing workers.

"Identity Finder, LLC (www.identityfinder.com), a global leader in identity theft prevention and data loss protection (DLP), discovered that a website exposed documents containing hundreds of individuals health information and database files containing approximately 300,000 names and social security numbers of California residents who applied for workers' compensation benefits. Identity Finder notified the websites owners, Southern California Medical-Legal Consultants, Inc. (SCMLC), of the breach on May 11, 2011 and SCMLC restricted access to all files within minutes of notification."

Over the last two decades the erosion of the privacy of injured workers medical records has continued unabated. Workers who are injured on the job should not have their medical records published without restriction or limitation. Injured workers should not be subject to public humiliation and embarrassment through disclosure of their medical records. It is time for Congress to revisit the issue.

Thursday, August 18, 2011

NIOSH to Propose New Criteria for Diacetyl Exposure

The National Institute for Occupational Safety and Health (NIOSH) invites public comment on a draft document, "Criteria for a Recommended Standard: Occupational Exposure to Diacetyl and 2,3-pentanedione.”


For public review and comment, the draft document summarizes current scientific knowledge about the occupational safety and health implications of the food flavorings diacetyl and 2,3-pentanedione, and recommends occupational exposure limits and measures for controlling work related exposures to diacetyl and 2,3-pentanedione, based on the current state of knowledge.


The draft document is available athttp://www.cdc.gov/niosh/docket/review/docket245/default.html for written public comment until Oct. 14, 2011. NIOSH will also hold a public meeting to discuss and obtain comments on Aug. 26, 2011, in Washington D.C.


"Occupational exposure to diacetyl has been associated with severe obstructive lung disease, bronchiolitis obliterans, and decrease in lung function," said NIOSH Director John Howard, M.D. "NIOSH has provided over a decade of research and leadership in this important scientific area. In addition to the recommended exposure limits (RELs), this draft document provides for public comment a comprehensive review of scientific literature, a quantitative risk assessment, and valuable guidance to reduce occupational exposures to diacetyl and 2,3-pentanedione. We invite public comment on the draft Criteria Document to help us develop final recommendations."

The draft document includes, for comment:
For Diacetyl, a recommended exposure limit (REL) of 5 parts per billion (ppb) as an eight-hour, time-weighted average, (TWA) during a 40-hour work week. To further protect against effects of short-term exposures, NIOSH recommends in the draft document a short-term exposure limit (STEL) for diacetyl of 25 ppb for a 15-minute time period.


For 2,3-pentanedione, a recommended exposure limit (REL) of 9.3 parts per billion (ppb) as an eight-hour, time-weighted average, (TWA) during a 40-hour work week. The REL for 2,3-pentanedione in the draft document is based upon the lowest level at which the substance reliably can be detected using the existing analytical method, and should not be misconstrued to imply that 2,3-pentanedione is of lower toxicity than diacetyl. Further, NIOSH recommends a STEL of 31 ppb to limit peak exposures for 2,3-pentanedione on the same basis of analytic method limitation.

State Acts to Restrict Medical Care

The State of NJ has proposed sweeping regulations to limit the payment of medical care under automobile insurance policies, and this action is seen as yet another signal that workers' compensation medical delivery may become even further restricted. In an effort to reduce insurance premiums, the NJ Department of Banking and Insurance, has proposed massive changes in the manner and method that doctors may bill for medical treatment and diagnostic procedures and has restructured the process for appealing a denied claim.

The State claims that medical delivery costs are soaring. It has been reported that for every premium dollar that insurance companies receive, they end up spending $1.23 on medical benefits. The regulations are designed to reduce medical services and produce a profitable insurance product.

Furthermore, the purpose of the regulations are to limit legal costs. The sate reported that in one instance a contested medical  resulted in the payment of $375 in medical benefits, but the legal costs awarded for that recovery were $3,380.

The regulations prohibit the use of innovative radiological diagnostic testing. "X-ray digitization or computer aided radiographic mensuration reported under CPT 76499 or any other code are not reimburseable under PIP."

The comment period for the new rules runs thorough early September 2011. The impact of the regulations is to reduce medical care and diagnostic procedures that will impact resulting workers' compensation benefits. Ironically providing the best medical benefits available would seemingly comply with the intent of the compensation act and ultimately economically benefit the employer by producing a healthy workforce, The process of cost cutting will only ultimately degrade the medical delivery component of workers' compensation even further.

Related articles

Scientific Evidence: What Literature to Rely Upon

The admission of scientific evidence to support causal relationship is critical in workers' compensation cases. Generally, the courts have held that reliable evidence is necessary to support the scientific propositions asserted. Now a recent article challenges the validity of peer reviewed publications, especially in the wake of the flood of papers being published.

"The differences between the scientific and legal processes lead to misunderstandings on both sides, and this editorial reflects our recent frustrations over the way publications have been used. The differences have surfaced in the understanding of peer review but probably lie deeper."

Workers' Compensation hearing officials have become the gatekeepers to evaluate what is reliable evidence for admission. Their dual role of both gatekeeper and fact-finder complicates the even handiness of the judicial process further as the Daubert issues are adjudicated.

The dilatory process invoked to sort this material strains judicial economy, and creates yet another level of delay to what was envisioned as a summary and remedial process. This only further the highlights the need to review the entire workers' compensation system and determine if it can at all function as intended by its crafters a century ago.


Related articles

Tuesday, August 16, 2011

The Faces of Ground Zero - Ten Years Later



Ten years ago, on September 11, 2001, world renown photographer, Joe McNally, created an exhibition to memorialize the events of that day. Nikon, who sponsored the exhibition is again sponsoring another Joe McNally exhibition to commemorate the 10 year anniversary of that horrific event.

Nikon Inc. is the exclusive photographic equipment sponsor of the “Faces of Ground Zero – 10 Years Later” exhibit at the Time Warner Center in New York. The free exhibit, marking the 10th Anniversary of 9/11, will take place from August 24 to September 12, 2011. The exhibit features more than fifty images and videos by internationally acclaimed photographer, Joe McNally, that bring to life some of the extraordinary individuals personally impacted by the events of 9/11.

Based on McNally’s renowned “Faces of Ground Zero, Portraits of the Heroes of September 11, 2001,” this updated special exhibition will feature original life-size portraits, along with new digital images and exclusive video interviews shot with the latest Nikon cameras, revealing where the subjects are today and how 9/11 indelibly affected their lives.

“Nikon is proud to be a sponsor of the ‘Faces of Ground Zero – 10 Years Later’ exhibition,” said Bo Kajiwara, Director of Marketing, Nikon Inc. “The still images and videos shot by Joe McNally document in compelling detail a very significant event in recent history and are vivid, powerful reminders of the human spirit.”

The exhibition includes portraits and video of everyday people such as firefighters and other uniformed rescuers, families of victims, survivors, caregivers, politicians and students from nearby schools. Some of the individuals honored in this exhibition include Firefighter Louie Cacchioli, Josephine Harris and Ladder 6 and Chef Michael Lomonaco as well as former New York City Mayor Rudolph Giuliani.

“It’s been a truly amazing experience to recreate this exhibition,” said McNally. “It’s an honor to be able to visually tell the ongoing stories of the incredible people I first met 10 years ago that continue to be an inspiration every day.”

Joe McNally is one of the most widely acclaimed photographers in the world and has been a Nikon shooter throughout his career. He is globally recognized as one of the most accomplished masters of light and color and has inspired a world of photographers with Nikon’s Creative Lighting System. McNally’s international photography career includes time as a staff photographer for LIFE Magazine and a contributor to National Geographic for over 23 years. He has also shot cover stories for TIME, Newsweek, Fortune, New York, Entertainment Weekly, The New York Times Sunday Magazine, Sports Illustrated, LIFE and Men’s Journal.

McNally’s 2002 tour, “Faces of Ground Zero,” was seen by an estimated one million people. The collection and sales of related books helped raise more than $2 million for 9/11 relief efforts.

Joe McNally’s “Faces of Ground Zero – 10 Years Later” exhibition will be held at the Time Warner Center in New York City from August 24 to September 12, 2011. The exhibition is open from 10:00 a.m. to 9:00 p.m. Monday – Saturday and from 11:00 a.m. to 7:00 p.m. on Sunday. Admission is free and open to the public.

Wednesday, August 10, 2011

Qui Tam Action for MSP Results in Costs to Plaintiff

Federal court ruled that a plaintiff acted with an improper purpose and in bad faith by filing seven different putative qui tam actions against various health care providers under the Medicare Secondary payer Act (MSP). The Federal Court imposed sanctions against plaintiff pursuant to court's inherent power.

The Court reasoned that there was no legal support for plaintiff's claim that MSP was a qui tam statute, Court of Appeals had previously determined that plaintiff's claims were “utterly frivolous” and “unreasonable and vexatious,” and plaintiff had already filed dozens of almost identical cases across the country with similar results.

Stalley ex rel. U.S. v. Mountain States Health Alliance, 644 F.3d 349, C.A.6 (Tenn.), 2011, decided July 08, 2011

Related articles

Employee Penalized For Not Following Safety Rules

An employee's workers' compensation award maybe be reduced for failing to follow an employer's safety rules. A Missouri Court ruled that reducing an injured employee's award by 25% to 50% for failing to follow an employer's safety rules was not unconstitutional.

This ruling may have widespread application in many situations including distracted driving claims, where an employee sustains an accident while using a cell phone in violation of an employer's cell phone policy. The employer woud still remain responsible for the reduced award and, of course, subject to a 3rd part law suit by a potential 3rd party.

The reduction rule actually places fault back into the workers' compensation system which both violates the intent of the Act . Such a policy does not compensate for the reduced values (awards) anticipated and prescribed under the workers' compensation act. While the the logic seems to rational, the application further emasculates the intent of workers' compensation. It would be far more logical to put the cart before the horse, and work to prevent the unsafe work condition in the first place. Shifting responsibility to the injured worker is not consistent with the act's intent.

Thompson v. ICI American Holding, 2011 WL 3444008 (Mo.App. W.D.) Decided, August 9, 2011
For over 3 decades the Law Offices of Jon L. Gelman  1.973.696.7900  jon@gelmans.com have been representing injured workers and their families who have suffered occupational accidents and illnesses.


Medical Providers Barred From Lawsuits Against Employers for Benefits

A NJ Appellate Court, in an unreported decision, ruled that medical providers are barred from filing a civil action against an employer for medical services provided to an injured worker. The medical provider must bring the claim before the Division of Workers' Compensation which has exclusive jurisdiction over benefits.

This decision, while permitting contractual issues to be decided in a civil action, is consistent with a prior NJ Supreme Court ruling barring a collection action outside of workers' compensation directly against an injured worker for medical treatment.

The Valley Hospital v L.Q. Management, 2011 WL 3425591 (N.J.Super.A.D.) Decided August 8, 2011. (Not Approved for Publication)

For over 3 decades the Law Offices of Jon L. Gelman  1.973.696.7900  jon@gelmans.com have been representing injured workers and their families who have suffered occupational accidents and illnesses.

Related articles

Monday, August 8, 2011

Workers' Compensation Medicare Set-Aside Web Portal (WCMSAP) Webinar


Please read below an invitation to Submitters to attend a CMS Workers' Compensation Medicare Set-Aside Web Portal (WCMSAP) Webinar.

WCMSAP Submitters Webinar - August 10, 2011

Event Description: This Webinar will review the Workers' Compensation Medicare Set-Aside Portal (WCMSAP), a new web-based application that allows for the electronic submission and tracking of WCMSA proposals submitted to CMS for review. This Webinar will also review the current WCMSA proposal submission process, the new submission process on the WCMSAP and the WCMSAP screens that will be used to enter and submit a proposal.

Enrollment Information: To receive your Webinar access information simply send an email to Techi@nhassociates.net and include the following information. To ensure that you receive webinar access information, future notifications and announcements regarding the Webinar, please add this e-mail address (Techi@nhassociates.net) to your "Safe Sender" list in your e-mail client.

Note: Due to limited seating we will need to hold attendance to an 85 user maximum. So please reserve
your seat as soon as possible, we apologize for any inconvenience.

Information Required for WCMSAP Webinar Registration:

Name (first and last):
Email Address:
Company Name:
Tel. Number:
Receipt of invitation which reserves space in Outlook Calendar (i.e. an iCal) (Yes/No):

Saturday, August 6, 2011

Text To Join Our Mailing List - Workers Compensation Law

Stay up to date on current developments in workers' compensation benefit programs. Join our monthly newsletter Workers' Compensation Law mailing list today. Text WORKCOMP to 22828.

For over 3 decades the Law Offices of Jon L. Gelman  1.973.696.7900  jon@gelmans.com have been representing injured workers and their families who have suffered occupational accidents and illnesses.

An Employer Is Responsible To Compensate For Pain

A NJ Appellate Court, in a dramatic reversal of a compensation judge's dismissal of a case, held that "an employer is responsible to compensate" an injured worker for pain.  The reviewing court held that, "...the judge misapplied some standards bearing upon this case."

The trial judge's conduct, in baring the treating physician from testifying, was also cited as "a discretionary lapse." The trial judge's ruling was reversed and the case remanded for a hearing.

The case involved a long standing injury that required prolonged treatment for a chronic medical condition. The injury occurred in June of 1989 and was the subject of an Order Approving Settlement in January 2004 for 20% of partial total. That award was entered by another trial judge.

Even thought an Order had been entered by the prior trial judge for continued medical treatment and medication, the insurance company unilaterally terminated provision of those benefits without a court order. The claimant's attorney, George Goceljak, was required to file two motions for continued medical treatment and medication benefits. The trial court dismissed the case for lack of prosecution and then subsequently restored the matter for trial and then marked it "not moved" when a minimal one-cycle (3 week) adjournment was requested. Customarily, NJ workers' compensation cases are tried in piecemeal, every 3 to 6 weeks.

The trial judge then mandated that the trial should begin immediately on January 15, 2010, commenting that she was, "...not going to wait" any longer for the the claimant to proceed with his case. She denied a reconsideration of the application of the injured worker to allow the treating physician to testify, and then proceeded in a 5 month stagnated trial ultimately dismissing the case.

The NJ Appellate Division found, "the judge erred is using, out of its context, the simple thought that 'an employer is not required to compensate and employee for pain,' as a basis for denying this petitioner's application. The larger principle...is that, to the extent that a petitioner experiences continuing pain as a result of his work-connected injury, the employer for whom he worked at the time of the injury remains responsible.'"

Noto v. Staples, Inc.,  Docket No. A-0237-10T1, 2011 WL 3273921 (NJ App. Div. 2011) Decided August 2, 2010 

Friday, August 5, 2011

Bad Faith Claims Maybe Going to the Jury

The NJ Supreme is going to review the procedure to bring bad faith claims against employers and insurance companies in workers' compensation actions. The Court accepted for review a case holding that workers' compensation bad faith claims are within the exclusive jurisdiction of the workers' compensation hearing official.

The case involves an injured worker who filed a civil action against his employer's workers' compensation insurance company for failing to comply with the Division of Workers' Compensation Order that medical treatment should proceed. The employee alleged that the delay and denial of medical care caused harm. The lower court had rejected the case and dismissed it holding that the jurisdiction for bad faith is exclusively within the purview of the Division of Workers' Compensation. Stancil v. ACE USA, 418 N.J. Super. 79, 12 A. 3rd 223 (App. Div. 2011), ___A.3d___, 2011 WL 3342730 (NJ). Decided June 7, 2011.

In another decision, the NJ Supreme Court held that bad faith, in a negligence action,  was a contractual issue giving rise to a factual question that could only be decided by a jury.

"We conclude that a Rova Farms claim that an insurer in bad faith failed to settle a claim within the policy limits, thereby in fact exposing its insured to liability for any excess, represents a traditional contract claim that the insurer breached the implied covenant of good faith and fair dealing and to which the right to trial by jury attaches." Wood v. New Jersey Manufacturers Insurance Company, 21 A.3d 1131, 2011 WL 2314954 (NJ), Decided June 14, 2011.

The Stancil
case highlights one of the most serious and costly issues in Workers' Compensation, both in NJ and the nation, the adequate and efficient delivery of medical care. While the courts are struggling with this issue that is compounded by arguments over reimbursement  and treatment paths, the compensation system continues to be bogged down and unresponsive to the urgency of the need to delivery medical care to injured workers.

For over 3 decades the Law Offices of Jon L. Gelman  1.973.696.7900  jon@gelmans.com have been representing injured workers and their families who have suffered occupational accidents and illnesses.