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

Monday, October 31, 2011

U.S. Chamber’s Hypocrisy Exposed: Do As I Say, Not As I Sue

New report shows hypocrisy of Institute for Legal Reform’s corporate board members that aggressively litigate while blocking justice for everyday Americans
As the U.S. Chamber’s Institute for Legal Reform (ILR) holds its annual summit – a strategy session on eliminating Americans’ access to the civil justice system – a new report exposes ILR’s corporate board members that hypocritically use the courts for their own gain against competitors, customers and even each other.
In its newest report, Do As I Say, Not As I Sue, the American Association for Justice (AAJ) exposes the hypocrisy of 10 ILR board members that regularly use the legal system to advance their own agendas, while at the same time advocating legislation that would close the courthouse doors to anyone who would hold them accountable for their own wrongdoing.
“These corporations, like all Americans, have a right to seek justice through the legal system,” said AAJ President Gary M. Paul. “What makes their actions shameful and hypocritical is that these companies are members of ILR’s board for the sole purpose of denying American workers and consumers this same right.”
One ILR board member highlighted in the report is Honeywell International, which has regularly taken competitors to court, but would prefer not to be held accountable for distributing defective body armor to law enforcement personnel across the country, or downplaying the dangers of asbestos exposure.
In return for its financial contributions to ILR, Honeywell has received policy and public relations help when its negligence has been uncovered.  Four days after an Illinois jury delivered a multi-million dollar verdict against Honeywell for conspiring to hide the dangers of asbestos, ILR issued a press release stating that the decision “confirms a troubling trend in the State of Illinois where there is a hostile ligation environment.” Additionally, the Madison County Record, an Illinois-based propaganda-as-news outlet fully owned by ILR, featured an article headlined, “McLean County Continues Inching Closer to Becoming a ‘Judicial Hellhole.’”
The irony does not stop with Honeywell – AAJ’s report also highlights the litigation hypocrisy of ILR board members FedEx, Dow Chemical Company, General Motors Corporation, Caterpillar, State Farm, Koch Industries, Abbott Laboratories, Prudential and Johnson & Johnson.
Online ads will run this week on major news sites and blogs to promote the report, Do As I Say, Not As I Sue: Exposing the Lawsuit-Happy Hypocrites of U.S. Chamber’s Institute for Legal Reform, which can be found at www.justice.org/USChamber.

It is All The Same Apple

Another challenge to the Medicare Secondary Payer Act (MSP) has been introduced (H.R. 1063 in Congress. This is yet another attempt to bounce the dead cat on the floor.

The legislation is the third reiteration by insurance companies, and the cottage industry that has emerged to service conditional payment resolution. It is most likely doomed to failure reflecting the quick death of its predecessors and the worsening economic times.

Since the enactment of the  MSP in 1980, there has been a slow, yet pervasive and effective effort by the US government to stop the shifting ofmedical costs from the workers’ compensation system onto the  shoulders of the Medicare system.

Medicare has its own solvency problems, not withstanding cost-shifting by the workers’ compensation system. Medicare is trying to serve a growing constituency as costs soar and the base of available of income to tax dwindles. Medicare costs have become a major target for the “Super Committee” in Congress for cost reduction.

Statistics also reveal that the aging workforce is continuing to fall apart physically and file for Social Security Disability Insurance in lieu of workers' compensation at a greater rate than ever..  Even though more attention is now directed to major diseases such as cardio-vascular, cancer and diabetes, the aging bodies of the senior citizen population continue to need more medical care due to wear and tear alone. The barriers established through so-called reformed efforts have blocked the follow of new occupational disease cases into the workers' compensation system.

The aging workforce looks to Social Security Disability Benefits and Medicare as a more effective remedy, and one that takes precedence over applications for workers’ compensation. Fewer seniors, and those approaching that age, opt for workers’ compensation benefits. This pattern even puts more fiscal strain on the present Social Security and Medicare system. 

Medicare is really not a free-ride for seniors and the government. While workers and their employers have made contributions for a lifetime, the system consume a large portion of the nation's economic wealth. Two major hospitalizations by a beneficiary exhaust all the individual and employer economic contributions completely from the reserves, and the government is stuck covering excess bills for the individual's lifetime.

As the US government continues to mandate stricter reporting and payment procedures the state workers’ compensation programs as the state programs to become further stressed by the Centers for Medicare and Medicar Services (CMS) reimbursement procedures. Both the federal and state systems have the same goal of providing assistance to disabled workers and their families.

As each continue to battle for a resolution of their own economic issues, they are merely shooting each other in the foot and weakening the entire purpose of each of their noble missions. Until a more unified system is established, it is incumbent upon both programs to direct their efforts to designing a more non-contentious system of resolution. 

The mandatory arbitration of the cost medical reimbursement would be an interim step so that the workers’ compensation administrative process could go forward unimpeded. The problem of funding medical costs for the population should be considered one apple, and taking bites at it from every direction will merely result in a total deterioration of the entire process.

Sunday, October 30, 2011

Winter Snowstorm Brings Concerns Over Work Related Accidents

Snowstorms can be dangerous for workers. The picturesque early fall snowstorm pounding the Eastern seaboard brings great concern over the potential for accidents at work.

Some of the hazards associated with working in winter storms include:
  • Driving accidents due to slippery roadways
  • Carbon monoxide poisoning
  • Slips and falls due to slippery walkways
  • Hypothermia and frostbite due to the cold weather exposure
  • Being struck by falling objects such as icicles, tree limbs, and utility poles
  • Electrocution due to downed power lines or downed objects in contact with power lines
  • Falls from heights (e.g. falls from roof or skylights while removing snow)
  • Roof collapse under weight of snow (or melting snow if drains are clogged)
  • Burns from fires caused by energized line contact or equipment failure
  • Exhaustion from working extended shifts
  • Dehydration
  • Back injuries or heart attack while removing snow
Potential hazards from down power lines include:
  • Electrocution by contacting downed energized lines, or contacting objects, such as broken tree limbs, in contact with fallen lines.
  • Falls from heights.
  • Being struck or crushed by falling poles, towers or parts thereof, tree limbs, ice accumulation on lines, towers and poles.
  • Being injured in vehicular accidents when responding to an emergency situation.
  • Burns from fires caused by energized line contact or equipment failure.

Workers are entitle to receive workers' compensation benefits should they get hurt at work. The benefits include: temporary compensation when out of work and under treatment, medical treatment and permanent disability benefits. Workers should consult an attorney at once if they sustain a work-related accident.

For over 4 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.

Wednesday, October 26, 2011

Employee Allowed to Sue Employer for Negligence Resulting From an Occupational Exposure

Guest Blog by John R. Boyd

A Court of Appeals in Missouri has ruled that an employee, who became ill as a result of an occupational exposure to asbestos fiber, may sue his employer for negligence. The Court ruled that the limitations on recovery of the Workers' Compensation Act did not bar a claim where an occupational exposure occurred.

On September 13, 2011, the Court of Appeals for the Western District of Missouri issued a very rare en banc opinion on a writ of prohibition allowing the employee's claim to go forward. The ill worker was exposed to asbestos, a known cancer causing agent, while working for 
KCP&L Greater Missouri Operations Company (KCP&L)  from 1954 to 1988 and was diagnosed with mesothelioma in 2010. Mesothelioma is a rare, but fatal, asbestos related disease.

His claims against his employer, KCP&L,  relied upon premises liability and negligence theories. The employee alleged that KCP&L had a duty to exercise "reasonable care" in preventing an "unreasonable risk of injury."   KCP&L argued that the Missouri Workers' Compensation Act was his exclusive remedy, and sought summary judgment, which was ultimately denied by the trial court.

The Appeals Court held in its 7-2 opinion, that a strict reading of the  Missouri Statutes §287.020.2 and §287.120 defeated KCP&L's argument that the claimant's occupational disease was covered by the Act, and that workers' compensation was the employee's exclusive remedy available. The Court reasoned that the 2005 amendments to the Missouri Workers' Compensation Act required a "strict construction" of the Act. 

The exposure at work was deemed not to be a specific accident, but rather a continuous occupational exposure over 34 years. The Appeals Court differentiated the occupational exposure to asbestos from a specific accident that is defined as "an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift."

The Court's ruling opened the door for this worker and others who have been exposed in such a fashion to pursue a lawsuit against his or her employer directly, and not be constrained by the limited economic bounds of the Workers' Compensation Act.

This change in the law came about as a result of previous aggressive actions by business and industry to modify the Missouri Workers' Compensation Act in an to attempt to eliminate claims. The ultimate lesson to be learned is that when a pro-business Legislature deforms the law, and attempts to carve-out certain types of injuries from being compensable, they force such cases into the civil arena. Be careful what you ask for----you just might get what you deserve.

Following the Appeals Court's  ruling, an Application for Transfer to the Missouri Supreme Court was filed by counsel for the appellant's on 9/27/11. No ruling on the transfer request has been made by the Missouri Supreme Court.

State ex rel KCP&L Greater Missouri Operations Company v. Hon. Jacqueline Cook WD73642 2011 WL 4031146 (Mo.App. W.D.) (September 13, 2011)


John R. Boyd  is President of the Workers' Injury Law and Advocacy Group (WILG). He is the managing partner of Boyd & Kenter, P.C., Kansas City, MO, and is licensed to practice in Missouri, the United States Court of Appeals for the Eighth Circuit; and the United States District Court for the Western District of Missouri. He is currently a member of the Missouri Bar Association, the Kansas City Metropolitan Bar Association (Chairman of the Workers' Compensation Committee 2000-2001), the Missouri Association of Trial Attorneys (MATA), and the American Association for Justice. 

Sense of Injustice, Occupy Wall Street & A Tornado Survivor From Joplin

In a dramatic turn of events based upon pubic outrage, a insurance company has reversed its decision and now decided to provide workers' compensation benefits to a first responder who was injured while providing assistance to tornado victims in Joplin, Missouri.


Mark Lindquist saved 3 development disabled adults in Joplin following the tornado that devastated that community. Caught in the he 200 mile an hour tornado, Lindquist lost all of his teeth, was in a coma for several months and ran up medical bills amounting to $2.5 Million. The insurance company initial had denied the claim and recent news reports and public outrage resulted in a reversal by the insurance company on the issue of compensability.


The same outrage against Corporate America and an imbalance in the socio-economic system is now being reflected in the Occupy Wall Street movement. Recently Amy Goodman commented about the growing recognition of injustice on the Charlie Rose show. 

Related articles

Florida Deems NCCI Rate Request Flawed

Florida ruled that the rate request from NCCI (National Council on Compensation Insurance, Inc.) was based on a flawed calculation. Nevertheless, the State of Florida did rule that the workers' compensation rates would increase 8.9% effective January 1, 2012.

"Commissioner McCarty’s Order is technically a denial of NCCI's rate filing. The Office did not accept NCCI’s methodology for input parameters including policyholder dividends, the loading for these dividends, and investment yields. The Office also did not accept specific rate changes for certain classes, specifically the "F" classes for workers covered by the Federal Acts, classification code 5551 (roofers), and classification code 7705 (Ambulance and EMS providers). The Office also disapproved the proposed increase in minimum premiums."

The Sunshine State has take a very serious economic downturn following the collapse of the real estate market over the past few years. When one drives through southern Florida you can detect that the only industry that is booming is the signage companies that print the "For Lease" and "For Rent" signs that have proliferated throughout the region.

NCCI provides rate information for the majority of States where workers' compensation is written. The availability of rating data is somewhat restricted. 

The news of increased workers' compensation rates, compounded by recent real estate taxes increases, is not good news for the staggering Florida economy that by luck this year missed the impact of severe hurricane season. Should that change in 2012, the increased to be assessed in 2012 may produce a defining moment for the  entire workers' compensation program in that state.

Monday, October 24, 2011

Insurance Agent Charged With Theft of $255,000 of Work Comp Premiums

Agents from the Pennsylvania Attorney General's Insurance Fraud Section have filed criminal charges against a Berks County man accused of the theft of more than $255,000 in workers' compensation insurance premiums.

Attorney General Linda Kelly identified the defendant as Joseph A. Maurer, 58, of 2558 Welsh Road, Mohnton. Maurer owned and operated Commonwealth Professional Group, a former insurance agency located in Reading, Berks County.

According to the criminal complaint, Maurer is accused of taking more than $188,000 in premiums paid by four municipal governments, including Bally Borough and South Heidelberg Township, located in Berks County, along with Salisbury Township in Lehigh County and Earl Township in Lancaster County. The money allegedly paid to Maurer by all four municipalities was supposed to be forwarded to Pennprime Insurance Trust, of Harrisburg, as payment for workers compensation coverage.

Additionally, Maurer allegedly misdirected premium payments for at least five other policies purchased through his agency, totaling in excess of $67,000 that was supposed to be forwarded to Travelers Insurance and ACE American Insurance Company on behalf of various clients.

Maurer is charged with three counts of theft by failure to make required disposition of funds received, all third-degree felonies which are each punishable by up to seven years in prison and $15,000 fines.

Maurer was preliminarily arraigned on October 12th before Reading Magisterial District Judge Phyllis J. Kowalski and released on $850,000 unsecured bail. He was also ordered to surrender his passport.

A preliminary hearing for Maurer is scheduled for November 9th, at 1:30 p.m., before Magisterial District Judge Kowalski.

The case will be prosecuted in Berks County by Deputy Attorney General John T. Dickinson of the Pennsylvania Attorney General's Insurance Fraud Section.

Saturday, October 22, 2011

A Proposal To Make The Workplace Safer

Jason Bent, Professor at Stetson University, has published an incentive-based proposal to regulate workplace chemicals through the nation's workers' compensation system. 

Abstract: 
"Our system for regulating employee exposures to hazardous chemicals is broken. There is a recognized market failure in the market for workplace safety regarding exposures to potentially hazardous chemicals. Information asymmetries, long disease latency periods, and other characteristics of chemical exposures allow employers and chemical manufacturers to externalize much of the expected cost of workplace exposure. The current U.S. regulatory system, including both Occupational Safety and Health Administration regulations and state workers’ compensation programs, is failing to correct the market failure. The result is a level of chemical exposure risk that is systematically too high, and a level of precaution that is systematically too low.

"The proposed reforms offered to date in the employment and environmental law literature are lacking, primarily because they do not sufficiently address the underlying financial incentives of the true least-cost information providers and least-cost risk avoiders: chemical manufacturers and employers. This article takes the search for a solution to the workplace disease problem in a new direction by capitalizing on the incentives of chemical manufacturers and employers. My proposal would amend state workers’ compensation laws in two ways: (1) shift the default burden of proof on the element of causation onto the respondents, in cases where there is no regulatory exposure limit governing the substance in question, and (2) allow employers to include chemical manufacturers as respondents in workers’ compensation claims for purposes of apportioning liability. These amendments could be implemented by convening a new National Commission on State Workers’ Compensation Laws. By focusing on the financial incentives of chemical manufacturers and employers, this proposal will spur the production of chemical toxicity information
 and lead to adequate compensation for employees who suffer exposure-related illnesses and diseases.



Click here to read the entire report.

Government Appeals Case Involving MSP Statute of Limitations

A Notice of Appeal has been filed by the United States in a case where a Federal District Court held that the statute of limitations in a Medicare Secondary Payer Act recovery action was limited to only 6 years. The government contented in the matter that the statute of limitations for it to assert recovery/reimbursement was extended under the "implied contract theory."

The case was tried in the U.S. District Court, Northern District of Alabama (Eastern) before Judge Karon O. Bowdre and involved a contract reimbursement claim under the Medicare Act, specifically 425 USC 1395 (HHS). A Final Order was entered on September 13, 2011 the the United States filed a Notice of Appeal on October 11, 2011.

Read the prior posting: CMS Has 6 Year Statute of Limitations-Court Dismisses MSP Recovery Claim 10.1.2010

United States of America v James J. Stricker, et al., CV 09-BE-2423-E (USDCT ND Alabama)

Fracking: US EPA To Develop Natural Gas Waterwaste Standards

The U.S. Environmental Protection Agency (EPA) is announcing a schedule to develop standards for wastewater discharges produced by natural gas extraction from underground coalbed and shale formations. No comprehensive set of national standards exists at this time for the disposal of wastewater discharged from natural gas extraction activities, and over the coming months EPA will begin the process of developing a proposed standard with the input of stakeholders – including industry and public health groups. Today’s announcement is in line with the priorities identified in the president’s Blueprint for a Secure Energy Future, and is consistent with the Secretary of Energy Advisory Board recommendations on steps to support the safe development of natural gas resources. 

"The president has made clear that natural gas has a central role to play in our energy economy. That is why we are taking steps -- in coordination with our federal partners and informed by the input of industry experts, states and public health organizations -- to make sure the needs of our energy future are met safely and responsibly,” said EPA Administrator Lisa P. Jackson. "We can protect the health of American families and communities at the same time we ensure access to all of the important resources that make up our energy economy. The American people expect and deserve nothing less."

Recent technology and operational improvements in extracting natural gas resources, particularly shale gas, have increased gas drilling activities across the country. Production from shale formations has grown from a negligible amount just a few years ago to almost 15 percent of total U.S. natural gas production and this share is expected to triple in the coming decades. The sharp rise in domestic production has improved U.S. energy security and created jobs, and as with any resource the administration is committed to ensuring that we continue to leverage these resources safely and responsibly, including understanding any potential impact on water resources.

Shale Gas Standards:
Currently, wastewater associated with shale gas extraction is prohibited from being directly discharged to waterways and other waters of the U.S. While some of the wastewater from shale gas extraction is reused or re-injected, a significant amount still requires disposal. As a result, some shale gas wastewater is transported to treatment plants, many of which are not properly equipped to treat this type of wastewater. EPA will consider standards based on demonstrated, economically achievable technologies, for shale gas wastewater that must be met before going to a treatment facility.

Coalbed Methane Standards:
Wastewater associated with coalbed methane extraction is not currently subject to national standards for being directly discharged into waterways and for pre-treatment standards. Its regulation is left to individual states. For coalbed methane, EPA will be considering uniform national standards based on economically achievable technologies.

Information reviewed by EPA, including state supplied wastewater sampling data, have documented elevated levels of pollutants entering surface waters as a result of inadequate treatment at facilities. To ensure that these wastewaters receive proper treatment and can be properly handled by treatment plants, EPA will gather data, consult with stakeholders, including ongoing consultation with industry, and solicit public comment on a proposed rule for coalbed methane in 2013 and a proposed rule for shale gas in 2014.


The schedule for coalbed methane is shorter because EPA has already gathered extensive data and information in this area, EPA will take the additional time to gather comparable data on shale gas. In particular, EPA will be looking at the potential for cost-effective steps for pretreatment of this wastewater based on practices and technologies that are already available and being deployed or tested by industry to reduce pollutants in these discharges.


This announcement is part of the effluent guidelines program, which sets national standards for industrial wastewater discharges based on best available technologies that are economically achievable. EPA is required to publish a biennial outline of all industrial wastewater discharge rulemakings underway. EPA has issued national technology-based regulations for 57 industries since 1972. These regulations have prevented the discharge of more than 1.2 billion pounds of toxic pollutants each year into US waters.


Supporting Documents
More Information

Friday, October 21, 2011

Deadly Delay: The Chemical Industry's Game Play


The Toxic Substances Control Act (TSCA) is in desperate need of reform. Its weaknesses have allowed chemical companies to exploit the act by thwarting the EPA's attempts to finalize health assessments and delaying regulation of chemicals -- sometimes for decades. The chemical industry's roadblocks often follow predictable patterns:
  • Attack early drafts of health assessments
  • Force new reviews
  • Hold workshops populated with industry-funded panelists
  • Introduce new industry-funded studies when assessments are close to final
  • Force more reviews
  • Enlist elected officials to assist with political interference
  • Attack new assessment drafts
Using these tactics, the chemical industry has effectively prevented the EPA from achieving its mission to protect human health.
This report details how the U.S. legal system and TSCA itself have helped the chemical industry to be effective in its efforts to delay regulations. Congress needs to reform TSCA to make it a more effective regulatory tool. The chemical industry should not be able to endlessly postpone regulatory decisions while profiting from unregulated chemical sales until all scientific controversies and uncertainties, large and small, have been eliminated. With good public policy, the EPA should be empowered to make the best decisions it can on a timely basis using existing information, and apply new science to update its evaluations as it becomes available.
Full Report: The Chemical Industry Delay Game : How the Chemical Industry Ducks Regulation of the Most Toxic Substances. By Jennifer Sass. October 2011

Thursday, October 20, 2011

World Trade Center Health Program Scientific/Technical Advisory Committee To Meet

World Trade Center Health Program Scientific/Technical Advisory Committee (WTCHP STAC or Advisory Committee), National Institute for Occupational Safety and Health (NIOSH) In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention (CDC), announces the following meeting of the aforementioned committee:

Committee Public Meeting Times and Dates: (All times are Eastern Standard Time) 
  • 8:15 a.m.-5 p.m., November 9, 2011, 
  • 8 a.m.-12 p.m., November 10, 2011. 
Public Comment Times and Dates: (All times are Eastern Standard Time) 
  • 3:15 p.m.-4:15 p.m., November 9, 2011,
  • 8:15 a.m.-9:15 a.m., November 10, 2011.
Place: Jacob K. Javits Federal Building, 26 Federal Plaza, New York, New York, 10278.

Background: The Advisory Committee was established by Public Law
111-347 (The James Zadroga 9/11 Health and Compensation Act of 2010, Title XXXIII of the Public Health Service Act), enacted on January 2, 2011 and codified at 42 U.S.C. 300mm-300mm-61.
Purpose: The purpose of the Advisory Committee is to review scientific and medical evidence and to make recommendations to the World Trade Center (WTC) Program Administrator regarding additional WTC Health Program eligibility criteria and potential additions to the list of covered WTC-related health conditions. Title XXXIII of the Public Health Service Act established within the Department of Health and Human Services (HHS), the World Trade Center (WTC) Health Program, to be administered by the WTC Program Administrator. The WTC Health Program provides: 

(1) Medical monitoring and treatment benefits to eligible emergency responders and recovery and cleanup workers (including those who are Federal employees) who responded to the September 11, 2011, terrorist attacks, and 

(2) initial health evaluation, monitoring, and treatment benefits to residents and other building occupants and area workers in New York City, who were directly impacted and adversely affected by such attacks (``survivors'').

Matters to be Discussed: The agenda for the Advisory Committee meeting includes: WTC Health Program Overview; Panel Presentations from WTC Responders and Survivors; Presentations from WTC Health Program Medical Monitoring and Treatment Programs and Health Registry; and discussion regarding ways and means of accomplishing the committee's work.

Occupational Injuries Reported at Lowest Level Since 2003

US BLS: (10/20/11) The total recordable cases nonfatal occupational injury and illness incidence rate among private industry employers declined in 2010 to 3.5 cases per 100 workers--its lowest level since 2003 when NAICS-based estimates from the Survey of Occupational Injuries and Illnesses were first published.


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Trench Safety a Focus of NIOSH

Working in a trench is a dangerous occupation, especially when working with old structures. NIOSH has refocussed on this concern this week and published Preventing Worker Death From Trench Cave-ins.

I was in New York City this week and watched two workers as they attempted to excavate on the street near Lincoln Center (see photo). One worker was digging shovel-by-shovel below ground as the worker above ground kept pounding the tops of large boards into the earth with the end of his shovel to act as walls to restrain the side from falling in. Pipes in NYC under the ground are old and many contain asbestos fiber. There were absolutely no pulmonary precautions being observed. 

Recently NJ Courts have held that trench accidents were not a mere fact of industrial life and were beyond intent of Act's immunity provision. A claim was permitted directly against the employer in addition to the workers' compensation action. Van Dunk v. Reckson Associates Realty Corp., 415 N.J.Super. 490 (N.J.Super.A.D. Aug 30, 2010), Certification Granted by 205 N.J. 81 (N.J. Jan 27, 2011).

"Workers who dig or excavate trenches are at risk of death if they enter an unprotected trench and the walls collapse. However, hazards associated with trench work and excavation are well defined and preventable. The OSHA standard for excavation and trenching, known as 29 CFR* 1926 Subpart P, describes the precautions needed for safe excavation work."


Social Security 2012: The Good News and The Bad News

The good news is the announcement by Social Security that the rate of payment will increase 3.6% The bad news that Part B Medicare premiums will offset the payment.

Monthly Social Security and Supplemental Security Income (SSI) benefits for more than 60 million Americans will increase 3.6 percent in 2012.

The 3.6 percent cost-of-living adjustment (COLA) will begin with benefits that nearly 55 million Social Security beneficiaries receive in January 2012. Increased payments to more than 8 million SSI beneficiaries will begin on December 30, 2011.

The Social Security Administration also noted that for some beneficiaries, the increase in Social Security benefits next year “may be partially or completely offset by increases in Medicare premiums.”

For an in depth analysis read the NY Times article.



Click here for PBS News Hour coverage.

Wednesday, October 19, 2011

The Culture of Workers Compensation Needs to Change

Workers' Compensation has become a "scapegoat" for a failing American economy. As David J. DePaolo points out in his recent blog, industry has raised the banner of reform in an effort to save dollars rather than to save workers' and their lives.

The financial reports this week from the business rating agencies reflect a deepening crisis of the economic integrity of the entire workers' compensation system nationally. The financial downturn has resulted in an estimated 11% predicted falloff in the collection of premiums. Workers' Compensation should not be turned into a great Ponzi scheme where it cannot meet its obligations and collapses.

Meanwhile as the system fails to be funded, medical delivery expenses and pharmaceutical expenditures soar with the advent of  more individualized medical treatment protocols based on genetic targets as better science becomes available. Likewise, the withdrawal of medical treatment under the claim of saving dollars has de-railed the system even further. NCCI reports that workers' compensation is on drugs. Pain medical expenditures have soared as the program fails to provide treatment necessary to cure conditions. Workers have become expendable as cheap and unskilled labor is now plentiful  around the world.

Safety is considered an unnecessary expense as evidenced by the homebuilders, who decry OSHA safety regulations. Workers' compensation numbers have become a statistic, reporting the failure of safety in the workplace rather than a factor in protecting workers and saving lives.

The social movement, "Occupy Wall Street," mirrors the 99% who labored to build American. They are outraged.

The century old experiment of workers' compensation should not be a culture based upon dollars alone. Americans are creative and industrious. The country can have both, safe jobs and a robust economy. The workers' compensation system's culture must change if the century old  promised agreement between Labor and Industry is to survive.

Saturday, October 15, 2011

Scientific Evidence and The Court

Last week the Third Edition of The Reference Manual on Scientific Evidence (2011) was published by The National Research Council and The Federal Judicial Center.


"The Reference Manual on Scientific Evidence, Third Edition, assists judges in managing cases involving complex scientific and technical evidence by describing the basic tenets of key scientific fields from which legal evidence is typically derived and by providing examples of cases in which that evidence has been used.
"First published in 1994 by the Federal Judicial Center, the Reference Manual on Scientific Evidence has been relied upon in the legal and academic communities and is often cited by various courts and others. Judges faced with disputes over the admissibility of scientific and technical evidence refer to the manual to help them better understand and evaluate the relevance, reliability and usefulness of the evidence being proffered. The manual is not intended to tell judges what is good science and what is not. Instead, it serves to help judges identify issues on which experts are likely to differ and to guide the inquiry of the court in seeking an informed resolution of the conflict.
"The core of the manual consists of a series of chapters (reference guides) on various scientific topics, each authored by an expert in that field. The topics have been chosen by an oversight committee because of their complexity and frequency in litigation. Each chapter is intended to provide a general overview of the topic in lay terms, identifying issues that will be useful to judges and others in the legal profession. They are written for a non-technical audience and are not intended as exhaustive presentations of the topic. Rather, the chapters seek to provide judges with the basic information in an area of science, to allow them to have an informed conversation with the experts and attorneys.