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

Tuesday, July 31, 2012

Why Cases Don't Settle in Washington State


Guest Blog
By Kit Case of Causey Law, Washington


The Size of the Check Points the Way
In Washington State, the majority of workers’ compensation claims are “State Fund” claims managed by the Department of Labor and Industries (Department), with perhaps a third are comprised of “self-insured” claims managed by third-party administration companies under the oversight of the Department. In “State Fund” claims, managed by State employees, benefits are paid from monies received from both workers and employers – - Washington is the only state where workers and employers each pay half of the medical insurance premiums. When a dispute arises in a claim, the aggrieved party can file an appeal to the Board of Industrial Insurance Appeals (Board), another State agency. When an appeal is filed with the Board, the Department is represented by the Office of the Attorney General, yet another State agency.


Since the economic crisis hit Washington, as it has in every other state in the union, the Department of Labor and Industries has become very cautious concerning any expenditures.


Since the economic crisis hit Washington, as it has in every other state in the union, the Department of Labor and Industries has become very cautious concerning any expenditures. After all, audits have found mis-spent money — nothing worthy of headlines, but the media loves a good fraud story as much as they love a government waste story. Fraud investigations and video surveillance have increased dramatically in recent years at great expense to the Department with minimal economic benefit. The Department was recently found to have spent a significant sum on no-show fees to independent medical examination companies without recouping those charges from the claimants who failed to attend the examinations or, in some of the cases, without properly notifying those companies to avoid the charges when a cancellation was known to have occurred. The end result of the Department’s caution is that benefits clearly payable to a claimant are being delayed or denied simply based on the amount of money at stake.


Payments of minor amounts can be made by Department claims managers at their discretion, based on the records on file. Amounts over a few thousand dollars, however, trigger the need for supervisor review and approval before payment can be made. Consequently, we are working much harder to obtain payment administratively because the Department increasingly requires proof of entitlement to benefits “beyond a reasonable doubt” rather than simply based upon the opinion of a treating physician. One doctor’s opinion of a worker’s inability to work seems no longer enough to establish entitlement to benefits. We increasingly face roadblocks to payment in cases where the Department concocts an issue over whether the inability to work is related to the covered injury or condition or is instead due to some pre- or post-existing condition, even if the disabling condition is clearly shown to be related to the original injury or the treatment procedures for that injury. If payment or authorization for treatment for a condition is denied, we are forced to demand an order be issued. We then file an appeal, and off to litigation we go.


In the current economic climate simply the amount of money involved increasingly drives the decision-making process at every administrative level.


The paralegals and attorneys at our firm work diligently to document the benefits we are seeking and the medical support for the claims we are making. In some cases, the monetary benefit at issue is a fairly significant amount. In the current economic climate simply the amount of money involved increasingly drives the decision-making process at every administrative level. Denials are much more common when a significant sum is at stake, regardless of the validity of the claim. We encounter a “make them prove it” attitude, forcing cases to go through time-consuming and expensive litigation rather than being resolved through mediation discussions or agreement between the parties.


Yesterday, I received phone call apology after a denial order had been issued, expressing condolences but the hope that we will be able to prevail on appeal. Today, I was told by an Assistant Attorney General that she would likely not be able to get authority from her client – the Department — to accept our settlement offer due to the amount of money at issue – “the case will just have to be litigated.”


I can accept these denials when there is a genuine dispute over the facts, over whether a claimant is entitled to the benefits or not. I cannot accept it when the answer is simply “it’s too much money.” I would prefer the other side tell me why my argument lacks merit, tell me that I am wrong in my belief that the claimant is entitled to the benefits at issue, tell me where the hole in my case is – anything – but, please, don’t just say that it’s too much money. That is not a reason for a State Agency which, unlike an insurance company, has no inherent profit motive, to deny benefits.


Consider the relatively low values in workers’ compensation claims: 60 – 72% of pre-injury wages as wage-replacement compensation; surprisingly small awards for permanent impairment, with no consideration given to the impact on lifestyle or earnings ability. If there is a significant sum at stake, it is because of YEARS of delay, or years of benefits at issue, not because the claimant is lucky or greedy. The claimant didn’t win the lottery; he or she was simply injured on the job and denied benefits when they were most needed. That required hiring an attorney, and in many cases expended large sums of money in efforts to support their case. The significant sums often at issue in these cases do not make claimants RICH, nor do they make them WHOLE. They only provide the limited measure of compensation that our workers’ compensation system allows.


Don’t add insult to injury.
My message to our State: Don’t add insult to injury. Show claimants the respect they deserve and promptly make decisions in their claims based on the merits of their arguments and the evidence presented, without being influenced simply by the amount of the check that may be issued.


More articles about "delay"

Oct 21, 2011
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 ...
Jul 01, 2010
Delay To Reinstate For Tactical Reasons Not Excuseable. The NJ Court of Appeals did not permit reinstatement of a dismissed claim where the claimant's attorney waited more than one year following the entry of a dismissal ...
Sep 27, 2008
Delay has always been a problem when injured workers need medical treatment. Traditionally, insurance companies, especially in hard economic times, have sought to hold onto their money and not distribute benefits.

Aug 08, 2010
A US District Court Judge held that a valid cause of action existed directly against an insurance company for the delay treatment to an injured worker. The court, in denying a motion for summary judgment, held that when an ...
May 27, 2010
The claim of an injured who brought a Federal Court action pro se for “unwarranted delays” of his NJ workers' compensation claim was dismissed by a Federal Court. The action was based on a violation of: The Americans ...


Monday, July 30, 2012

Injured Worker Advocates – To End Like the American Indian?




Empire of the Summer Moonby S.C. Gynne

Guest Blog
By Leonard Jernigan of the North Carolina Bar

In the New York Times bestseller, Empire of the Summer Moon, author S.C. Gynne writes in great detail about the last days of the Comanche Indians, who roamed the great plains from Mexico to North Dakota and who were the last holdouts against the white man’s overwhelming non-stop push for Indian land. The final death blow was the destruction of thirty-three million buffalo between 1868 and 1881. General Phil Sheridan said buffalo hunters in the last few years did “more to settle the vexed Indian question than the entire regular army had done in the last thirty years.” Gynne explained that killing the buffalo was more than an accident of commerce. “It was a deliberate political act.”

As legislatures all over the country constantly erode the rights and benefits of injured workers, the all consuming nature of the quest reminds me of the push for more land and the destruction of those Indians who stood in the way. Advocates for injured people also stand in the way and at every turn attempts are made to steamroll them. 



Texas is a prime example. It is hard to find a workers’ compensation lawyer in that state who has been practicing for twenty years or more. That institutional knowledge has been blown away like tumbleweed in a storm. 

As Shakespeare so famously stated on behalf of a dictator who was about to seize power, “The first thing we do is kill all the lawyers.” Removing access to lawyers is a simple but effective formula for insurance companies and big employers who want to impose their will on the system. Similarly, when Indians stood in the door, blocking westward expansion, the simple solution was to get rid of the Indians. It wasn’t easy but they got the job done, and most people back east weren’t troubled by any of it.

Could the Comanches have done something different to prevent their demise? Obviously, throwing arrows at soldiers with repeating rifles was a doomed strategy and they needed to shift their paradigm. Similarly, throwing coins at politicians while insurance companies and their allies throw millons of dollars isn’t a fair fight. 

What to do? Educate the public. Build coalitions. Utilize social media to explain what can happen if, God forbid, a nice person (like someone reading this blog) should be seriously injured at work and need workers’ compensation benefits to keep afloat and pay medical bills. 

Advocates for injured people need to re-think all approaches to this problem. If not, they will end up like the Indians who were moved to reservations, and who then sat around the campfire talking about the good old days of hunting buffalo and being free.

More about social media
Jan 24, 2012
The explosive use of social media information as a discovery and an investigatory tool in workers' compensation matters may soon be reaching its limits as the European Union is proposing privacy data regulations.
Apr 14, 2011
In this edition of Workers' Comp Matters, host Attorney Alan S. Pierce, welcomes Attorney Jon L. Gelman, to take a look a social networking in the workers' comp world. Alan and Jon discuss privacy and their clients, client ...

Friday, July 27, 2012

EPA to Hold Public Meeting on Plan for the White Chemical Corporation Superfund site in Newark, New Jersey

Environmental Protection Agency Seal
Environmental Protection Agency Seal (Photo credit: DonkeyHotey)


      The State of New Jersey has an immense  toxic legacy that has plagued Workers' Compensation system with an epidemic volume of claims for decades. The State was home of 20% of the asbestos industry in the United States, and over 50% of the petrochemical facilities. 
      New Jersey geographically situated as a transportation hub, with its close proximity to harbors and access to rail and land transportation, continues to struggle with toxic substances still remaining in the geographical area.
      The U.S. Environmental Protection Agency is proposing a plan to clean up contaminated ground water beneath the White Chemical Corporation Superfund site in Newark, New Jersey. The ground water was contaminated with volatile organic compounds by past industrial activities at the site. Volatile organic compounds can cause serious damage to people’s health and the environment. The proposed plan calls for the injection of chemicals into the ground water that will break down the contamination. The ground water will be monitored and its use will be restricted. The EPA will hold a public meeting on August 2, 2012 to explain the proposed plan and is encouraging public comments. The meeting will be held at 7:00 p.m. at the Newark City Hall Council Chambers, 920 Broad Street, Newark. Comments will be accepted until August 21, 2012.
      The former White Chemical Corporation site, which covers 4.4 acres, is located at 660 Frelinghuysen Avenue in Newark, and is surrounded by many residential, commercial and industrial properties. Beginning in the 1930s, portions of the site were used by multiple businesses for industrial activities including the manufacture of acid chlorides and fire retardants. The White Chemical Corporation operated a chemical manufacturing facility at the site from 1983 to 1990 and was cited by the New Jersey Department of Environmental Protection for multiple environmental violations before the company abandoned the facility. Thousands of drums were left behind, with many of them leaking hazardous chemicals. The site was added to the federal Superfund list of the country’s most hazardous waste sites in 1991. 

      Because of the nature and complexity of the contamination at the site, the investigations and cleanups have been divided into three phases. The proposed plan announced today is for the third phase of the long-term cleanup. 

      The first phase of the work alleviated immediate threats to the surrounding community. The work was complex and dangerous and included removing drums of potentially explosive chemicals, addressing leaking chemicals throughout the site and decontaminating some buildings. In all, the EPA supervised the removal of about 9,000 drums, 12,500 chemical containers, 50,000 gallons of liquid contained in process tanks and addressed many other hazards at the facility. Some of the hazardous materials were treated on-site to neutralize the contamination. Others were removed for re-use or disposed of at off-site facilities with permits to receive them. 

      Under phase two of the cleanup, the EPA focused on ongoing sources of harmful vapors that could impact the surrounding area, including contaminated buildings and soil and abandoned storage tanks. In this phase, the EPA excavated and removed 23,000 cubic yards of contaminated soil from the site, demolished nine buildings and removed an above ground storage tank. The EPA then placed clean soil over the contaminated areas and placed a stone cover over the entire property to prevent erosion. 

      The third phase and final phase of the cleanup announced today addresses the contaminated ground water. After extensive study, the EPA has concluded that it is not technically feasible to pump out and treat the contaminated ground water because of the complex rock formations underlying the site. The depth, nature and variety of the rock formations would present extreme technical challenges. 

      Instead, the proposed plan calls for bioremediation, the injection of chemicals into the ground water to promote the breakdown of the pollutants. The specific process to be used to inject the chemical additive will be determined by the EPA as part of the design of the cleanup. Once the process has begun, the EPA will collect samples to confirm that the bioremediation is effective. The EPA is proposing to install additional monitoring wells to monitor the ground water and to put into place restrictions that will prevent its use as a source of drinking water in the future. 

      The EPA is requiring periodic collection and analysis of ground water samples to verify that the level and extent of contaminants are declining and that people’s health and the environment are protected. 

      To date, the EPA has spent about $20 million on the cleanup of the White Chemical site. The estimated cost of the proposed final phase of the cleanup is $25 million. 

      Written comments may be mailed or emailed to: 
      Ray Klimcsak, Remedial Project Manager
      U.S. Environmental Protection Agency – Region 2
      290 Broadway - 19th Floor
      New York, N.Y. 10007-1866
      (212) 637-3916
      klimcsak.raymond@epa.gov

      For more information on the White Chemical Superfund site, please visit:http://www.epa.gov/region02/superfund/npl/whitechem.

Duration of Temporary Disability Payments Increasing

NCCI Holdings Inc. reports the duration of the average payment of workers' compensation temporary disability benefits is increasing.


When a worker is temporarily disabled as a result of a work-related injury so that he or she is unable to perform his job, the worker is entitled to temporary compensation benefits. If an employee is not absent from work, temporary compensation benefits are not payable.  An employee may be entitled to multiple periods of temporary disability benefits as a result of a particular injury. When there is a dispute with regard to the payment of temporary disability benefits and the respondent-employer has contested their payment either from the date of the accident or following the termination of medical care, the employee may look to the State or to a private temporary disability carrier for payment.

New Jersey standards for temporary disability benefits:
Temporary Disability
  • When out of work and under authorized medical care for more than 7 days (retroactive), you are entitled to receive temporary disability benefits not to exceed 70% of the State Average Weekly Wage (SAWW).
  • Authorization to return to “light duty” is interpreted by the Courts as a return to full time employment and temporary disability benefits will stop. If you remain under medical care and if your employer does not have “light duty” work available you may be entitled to continued temporary disability benefits.

....
For over 3 decades the Law Offices of Jon L. Gelman1.973.696.7900 jon@gelmans.com have been representing injured workers and their families who have suffered work related accident and injuries.



Related Articles on Temporary Disability Benefits

Jan 29, 2012
Universally workers' compensation temporary disability benefits are set calculating wages at the time of the accident. If an employer miscalculates an employee's wages then the payment of temporary disability benefits paid...
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This amount, not the $400 basic wage, should be used to compute for his benefits, thus yielding an additional $50 per week in Temporary Total Disability benefits. Additional items of value are also included as part of the...
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Temporary disability plans and major medical plans act as coverage for loss time and treatment. Employee are willing to fore go permanent disability inorder to get certain and immediate medical care and lost time benefits.

Physicians Petition to Limit Opioid Abuse

Pharmaceutical reform has been a major topic of interest and reform efforts nationally in the workers' compensation arena. More particularly the alledged abuse of opioids have received particular attention. Several physicians have petitioned the FDA to change labeling requirements for such products.



"SPECIFIC ACTIONS REQUESTED FOR CHANGES TO OPIOID ANALGESIC LABELS:
1. Strike the term “moderate” from the indication for non-cancer pain.
2. Add a maximum daily dose, equivalent to 100 milligrams of morphine for non-cancer pain.
3. Add a maximum duration of 90-days for continuous (daily) use for non-cancer pain."


This effort appears to be yet another step in targeting distribution. It remains to be seen what will ultimately be the beneficial resolution to balance all stakeholders interests. The issue is indeed complicated. The efforts to reform pharmacuetical use is a tough balancing act. The ulterior motive of cost savings and profits generates sensationalism, but what makes good medical sense and what benefits the patient should not go unnoticed. 


Related Articles on Opiods

May 24, 2012
A recent Texas case holding an employer liable holding an employed liable for a fatal opioid overdose arising out of work-related event highlights again that, the workers' compensation medical delivery system just isn't ...

International Business Expands Profits of Liberty Mutual



 Liberty Mutual Holding Company Inc. and its subsidiaries (collectively “LMHC” or the “Company”) today reported net income of $139 million and $598 million for the three and six months ended June 30, 2012, increases of $318 million and $413 million over the same periods in 2011. 
“Second quarter premium growth of 8% was driven by continued momentum in U.S. personal lines, rate increases in U.S. commercial lines, and robust international results despite significant strengthening of the dollar,” said David H. Long, President and CEO of Liberty Mutual Insurance. “Additionally our profitability improved significantly in the quarter despite catastrophe losses continuing to run at an elevated level. The quarter was a busy one, including a significant debt restructuring, the sale of our Argentina workers compensation company, assimilation of KIT in Russia, and gaining approval to begin writing business in India.” 

And continues to argue for increased higher US rates:
"Liberty Mutual’s chief executive left no doubt on where he believes the blame lies for inadequate workers’ compensation rate levels, criticizing states—New York and Massachusetts in particular—for not approving steeper increases."
Read the complete article:
Liberty’s Long Faults States on Workers’ Comp Rates; Q2 Profit Positive (Property Casualty 360)


More articles about Liberty Mutual
May 06, 2009
Liberty Mutual reported that its 1st Quarter profits fell 92%. The company sustained loss of net income. This it reported $28 Million and the same quarter last year it had reported $360 Million in income. Liberty Mutual sustained ...
Sep 29, 2008
Standard and Poor's has announced that Liberty Mutual's rating has been lowered from A to A-. This happened as another rating agency, Fitch, placed Liberty Mutual Inter-company Pool (on "Rating Watch Evolving" status.
Sep 30, 2009
In an amended complaint filed last week in the Federal Court in Chicago (USDCT N.D. Ill.), AIG alleged that Liberty Mutual and Hartford/ACE entered into a conspiracy to underreport their premiums. Premium calculations ...
Dec 13, 2008
Liberty Mutual was permitted to "pierce the corporate veil." The Court declared, "...To do otherwise would be to condone a ... LIBERTY MUTUAL INSURANCE COMPANY v. CIPRIANO. Decided Dec. 10, 2008. Posted by Jon L.


Thursday, July 26, 2012

Who Thought That This Would Be The Last Generation to Retire?

If  retirement is going to become history in the US, state legislatures may need to consider the age cap to workers' compensation benefits that is becoming an all too trendy reform concept. The employment landscape in the US is rapidly changing, and  retirement maybe going by the boards, but workers' compensation planners may have inadvertently designed reforms that terminate benefits pre-maturely.


The Alliance for Retired Americans has now initiated a campaign to alert workers throughout the nation that benefits maybe the target of a takeback effort by the U.S. Congress as the year and budget process wraps up.


Some anticipated revisions that are expected to be offered in lieu of statutory cuts are  the following:




  • Raising the Social Security age to 70
  • Reducing the Cost of Living Adjustments (COLA)
  • Raising the Medicare eligibility age to 67
  • Cutting the Medicaid funding that helps seniors afford long-term care
  • Taking away traditional Medicare benefits, leaving seniors at the mercy of insurance companies.
  • Related Blogs on the Aging Workforce and Retirement

    Jul 07, 2012
    As some jurisdictions cut off workers' compensation benefits based on age, the burden of providing elder care will even increase more significantly in the years ahead. Click here to read the article: "New Numbers on Elder ...
    Jun 19, 2012
    Section 440.15(1)(b), Florida Statutes (2003), classifies the entitlement to PTD benefits by age of the claimant, providing:. . . If the accident occurred on or after the employee reaches age 70, benefits shall be payable during ...
    Jan 20, 2011
    Susan M. Collins (R-Maine) has asked for an investigation by the Government Accounting Office to determine if too many Federal employees of retirement age are receiving workers' compensation benefits. She stated, ""I am ...
    Apr 22, 2009
    "Effective immediately [April 21, 2009] , submitted rated ages that do not conform to CMS' standards for acceptable proof of Rated Age, which includes being independent, on the letterhead of an insurance carrier or settlement ...

    Wednesday, July 25, 2012

    Nurse Case Managers: Friend Or Foe?


    By Charlie Domer* of the Wisconsin Bar


    A nurse case manager is hired by the insurance company.


    Know your rights when it comes to nurse case managers in a worker’s compensation case. Nurse case managers are hired by worker’s compensation insurance companies and routinely attend actual doctor visits with the injured worker. Most workers—who are unfamiliar with a worker’s compensation injury and process—simply accept the insurance company nurse’s presence. These nurses generally pitch their services as easier navigation of medical care for the worker and facilitating communication with the insurance company. While many nurse case managers are helpful for workers not familiar with medical treatment and providers, not all have the worker’s best interests at heart.


    An injured worker always should remember who pays the check. A nurse case manager is hired by the insurance company. The insurance company wants to avoid payment of claims. Thus, there is an incentive for a nurse case manager to push an early return to work or to question the severity of a doctor’s limitations. Over the years, I have heard from countless clients who tell me about how an aggressive nurse case manager was pushing for a premature return to work while the client was still recovering from an injury. My clients also have seen nurse case managers argue with the treating doctor about<!–more–> “loosening” restrictions or about lessening the percentage of disability. These stories are not an indictment of nurse case managers as a whole, but injured workers must be aware of the proverbial “wolf in sheep’s clothing.”


    More importantly, injured workers need to know their rights. There is no Wisconsin legal authority for an insurance nurse case manager to have contact with an injured worker at all—especially at their doctor’s visits. Most clients are shocked when they understand this information. Also, anything a worker tells the nurse case manager can be shared with the worker’s compensation insurance adjuster. Even if the nurse acts as their best friend, potentially confidential information will be passed to the insurance company, with negative consequences on a worker’s claim and medical care.


    I generally tell my clients that if they believe the nurse case manager is helpful, they can maintain communication. However, if the worker (as a responsible adult) can manage their own medical care, my advice is to politely tell the nurse case manager to have no further contact. Consultation with an experienced worker’s compensation attorney can help navigate any issues with nurse case managers.


    *Attorney Charles F. Domer exclusively practices Wisconsin worker's compensation law, representing only injured workers. His advocacy earned him recognition in Best Lawyers in America and on the 2008-2011 Rising Stars list in Wisconsin Super Lawyers. He is co-author of West's treatise Wisconsin Workers' Compensation Law.


    More Article on Nurses

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    With at least 4 deaths of nurses being reported in the media, NIOSH has stepped up its efforts to gather and analyze the prevalence of illness and fatalities among health workers. "Healthcare personnel are at increased risk of ...