(c) 2018 Jon L Gelman, All Rights Reserved.

Saturday, August 31, 2013

Cost Shifting vs. Cost Fixing

Cost shifting is a major credibility issue in workers' compensation schemes. Insurance carriers, employers and even employees have been implicated in such conduct. Unless it is resolved it will ultimately jeopardize the entire program. Today's post was shared by WorkCompCentral and comes from

There have always been allegations of cost shifting either to or from workers' compensation and general health. Now Massachusetts is going to study just whether or not this is true, and if so, by how much.

The Massachusetts Department of Public Health is expected to release a report to the state Workers' Compensation Advisory Council in October or November on practices that regulators warned last May may be shifting costs from workers' compensation carriers primarily to MassHealth and to some private health care providers.The alleged problem seems to be three-fold:

  • Employers pressure workers not to report injuries as job-related.
  • Employees use private insurance because of fears they will lose their jobs or suffer some form of retaliation for filing a workers' compensation claim.
  • Some doctors check for secondary insurance and send out bills to all carriers to ensure they get paid.

  • At a meeting of the Advisory Council last May, Massachusetts Department of Industrial Accidents Deputy Director George Noel said the regulatory agency had indications that some workplace injuries are being processed through MassHealth and that community health centers reluctant to accept workers' compensation claims are shifting cases to "other places."Mickey Long, a member of the advisory council and an attorney for the Massachusetts AFL-CIO, said "There are an increasing number of anecdotes going back a decade involving contractors, where a worker is told by the owner of a company to handle...
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    Is Big Sugar the Next Liability Target?

    Today's post was shared by The Health Care Blog and comes from

    By Vik Khanna

    Growing paranoia is the hallmark of the aging process for me.  Although I am a generally affable sort (I know, it doesn’t always seem that way from my writing), I am also a fairly suspicious person.  I am starting to think that all the food industry’s sweet talk about the innocence of sugar is really just icing on a toxic cake and that we’ve all been sold a bill of goods.  In particular, I wonder — and part of me hopes — that Big Sugar might soon replace Big Tobacco as the favorite target of our most underappreciated and misunderstood national resource…the plaintiff’s bar.

     There is no question we eat way too much sugar and that the increase in consumption has coincided nicely with both our rise in obesity and decline in health status even though we are living longer.

    Not that I think the Tobacco Settlement (TS) was great social policy.  You can read my full view here; but, to summarize, as an immigrant and a person of color, a part of me resents the TS because all it did is push the burden of fulfillment of the financial terms into the hearts and lungs of people in Africa, Asia, and Latin America.  The smug satisfaction of tobacco opponents in the US and their glib dismissal of the impact on predominantly poor people of color around the world is first order racism.
    Any analogous move against Big Sugar (BS) could be quite interesting.  There is, of course, the delectable duality of...
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    Second Circuit to consider petition to reassign federal judge in Chevron RICO case

    Today's post was shared by Legal Newsline and comes from

    The U.S. Court of Appeals for the Second Circuit will consider a petition to reassign a federal judge overseeing a case stemming from a $19 billion judgment against oil giant Chevron Corp.

    In a notice filed Aug. 14, the Second Circuit set Sept. 26 for oral argument on the petition to reassign Judge Lewis Kaplan for the U.S. District Court for the Southern District of New York.

    Kaplan is currently presiding over a RICO lawsuit that Chevron filed against a group of Ecuadorians and their lawyers. The fraud case was filed by the company in the New York federal court in 2011.

    New York attorney Steven Donziger and Ecuadorian plaintiffs Javier Piaguaje and Hugo Camacho filed a petition for writ of mandamus with the federal appeals court in June. They want the judge to be removed from the case for his alleged bias.

    In a rare move, the court asked Kaplan for a legal brief in his defense. However, the judge “respectfully declined” the court’s invitation, according to a letter last month.

    The U.S. Chamber of Commerce has filed an amicus brief in the case.

    “The Chamber is concerned that improper resolution of Petitioners’ tactical use of a request for judicial reassignment could set a dangerous precedent with long-standing effects,” former U.S. Attorney General Michael Mukasey wrote in the brief, filed July 29.

    The Chamber’s Institute for Legal Reform owns Legal Newsline.
    This week, Donziger and the Ecuadorian...
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    Defense bar files brief to U.S. SC in support of insurer

    Today's post was shared by Legal Newsline and comes from

    DRI: The Voice of the Defense Bar this week filed an amicus brief with the U.S. Supreme Court, saying the terms of an Employee Retirement Income Security Act-covered plan must be upheld.

    Heimeshoff v. Hartford Life & Accident Insurance Co. et al. is expected to settle differences among the courts of appeals regarding the extent to which the terms of an ERISA-covered plan can establish the date on which the statute of limitations to file a claims for benefits complaint in federal court will begin to run.

    The Employee Retirement Income Security Act protects the assets of millions of Americans so that funds placed in retirement plans during their working lives will be there when they retire.
    According to the U.S. Department of Labor, ERISA is a federal law that sets minimum standards for pension plans in private industry.

    For example, if an employer maintains a pension plan, ERISA specifies when an employee must be allowed to become a participant, how long they have to work before they have a non-forfeitable interest in their pension, how long a participant can be away from their job before it might affect their benefit, and whether their spouse has a right to part of their pension in the event of their death.
    Most of the provisions of ERISA are effective for plan years beginning on or after Jan. 1, 1975.
    On Aug. 22, 2005, Julie Heimeshoff, a Walmart employee, submitted a claim for long-term disability benefits under the ERISA-covered...
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    AMA President Optimistic About A Fix For Medicare’s Doctor Payment Formula

    Today's post was shared by Kaiser Health News and comes from

    Dr. Ardis Dee Hoven
    Debated and despised, the Medicare physician payment formula may finally be on the way out – at least that’s what AMA President Ardis Hoven believes.

    Known as the “sustainable growth rate” or SGR, the formula routinely threatens double-digit payment reduction to doctors until Congress steps in at the last minute to stop the cuts. Currently a 25 percent cut looms Jan. 1 unless Congress takes action again.

    An admitted optimist, Hoven says she sees plenty of evidence to support her view that Congress is prepared to pass a permanent SGR fix this year. The AMA president points to wide bipartisan support in both chambers.

    She notes that the House Energy and Commerce Committee passed SGR legislation before the August break — well before the usual end-of-the-year scramble that has been the usual path to a short-

    term SGR fix. The House Ways and Means and Senate Finance panels are also actively working on a solution. “This is different. This is palpably different,” Hoven says in an interview.

    According to the Congressional Budget Office, replacing the SGR would cost about $140 billion, down from earlier estimates as high as $300 billion.  But in this era of deficit reduction, it’s unclear where Congress can find that much cash for anything, let alone to pay for the doc fix.

    Expect a big battle if lawmakers, as they have in the past, turn to other Medicare providers, such as hospitals, home health...
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    CDC: Public Health Practices to Include Persons with Disabilities

    Today's post was shared by WCBlog and comes from

    This is another in a series of occasional MMWR reports titled CDC Grand Rounds. These reports are based on grand rounds presentations at CDC on high-profile issues in public health science, practice, and policy. Information about CDC Grand Rounds is available at

    "Persons with disabilities" is a vague designation that might not always be understood.

     Persons with disabilities are persons with limitations in hearing, vision, mobility, or cognition, or with emotional or behavioral disorders. What they have in common is that they all experience a significant limitation in function that can make it harder to engage in some activity of daily living without accommodations or supports.

    According to the World Health Organization, disability has three dimensions: 1) impairment in body function or structure, such as loss of a limb or loss of vision; 2) limitation in activity, such as difficulty seeing, hearing, walking, or problem solving; and 3) restriction in participating in normal daily activities, such as preparing a meal or driving a car. Any of these impairments, limitations, or restrictions is a disability if it is a result of a health condition in interaction with one's environment (6).

    These limitations all relate to health conditions experienced within the environment in which persons live, as well as to other personal factors. Environmental barriers can be physical barriers, such as stairs; communication barriers, such...
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    New Jersey court rules texting a driver creates liability

    Today's post was shared by WCBlog and comes from

    The New Jersey Superior Court [official website] ruled [opinion, PDF] Tuesday that knowingly sending a text message to someone who is behind the wheel creates liability for any causes of action that result from a potential collision. Previously, liability was only assigned to the driver that was texting. Defendant Shannon Colonna was sued for texting a driver who collided with a motorcyle less than 10 seconds after responding to her message.

     The trial court dismissed [Bloomberg report] the plaintiff's theory of proximate cause, aiding and abetting illegal activity and joint liability against Colonna in a summary judgment. However, the plaintiffs appealed and the appellate court validated all of the theories of liability against her as trial-worthy arguments. However, the court found that the plaintiffs did not procure enough evidence to indicate that Colonna knew or had special reason to know that the recipient of her message was driving, and thus again dismissed the case for her liability:
    [W]e also reject defendant's argument that a sender of text messages never has a duty to avoid texting to a person driving a vehicle. We conclude that a person sending text messages has a duty not to text someone who is driving if the texter knows, or has special reason to know, the recipient will view the text while driving.
    In response to this crash and several others, the New Jersey legislature enacted the Kulesh, Kubert, and Bolis Law [press release] to increase penalties...
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    Lung screening looks for lasting health effects from Hurricane Sandy

    Today's post was shared by WCBlog and comes from

    Denise Hansen says that ever since Hurricane Sandy struck 10 months ago, she’s always tired, has had a lung infection and contracted a cough she never had before.

    Exposed to mold for 7½ months even while she was displaced from her storm-ravaged home in Ortley Beach, Hansen wonders whether she’s developed what some are calling "Sandy Lung," from breathing in all kinds of unknown irritants unleashed by the storm.

    So Hansen, along with more than 100 others, showed up at Toms River High School East yesterday to participate in an extensive screening for potential respiratory problems suspected of being brought on or exacerbated by Sandy.

    "What also makes me nervous is they’re knocking homes down around me. I wonder what’s in the air," said Hansen, who was assured her lungs are clear. "Ten years from now, who knows? That’s what’s scary."

    Because thousands of people like Hansen who are rebuilding post-Sandy may have been exposed to mold, asbestos and other potential toxins, the Deborah Heart and Lung Center — with a $625,000 grant from the Robin Hood Relief Fund — has been conducting free respiratory screenings in Ocean County to try to head off serious illness in the future.

    After filling out a questionnaire, participants were directed to one of two folding tables where staff waited to take their blood pressure and slip a device on their index finger that uses light waves to measure the level of oxygen in their...
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    Jon L. Gelman of Wayne NJ is the author NJ Workers’ Compensation Law (West-Thompson) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson). For over 4 decades the Law Offices of Jon L Gelman  1.973.696.7900  have been representing injured workers and their families who have suffered occupational accidents and illnesses.

    Workers’ Compensation No Longer The Exclusive Remedy: RICO On The Radar

    Today's post was shared by WCBlog and comes from

    It appears that the exclusive remedy provision for workers' compensation will no longer serve to prevent costly civil litigation.

    Workers' Compensation origins can be traced to the late Middle Ages and Renaissance times in the Unholy Trinity of Defenses, the doctrine that first outlined that work-related injuries were compensable. 

    This doctrine began in Europe and made its way to America with the Industrial Revolution.  There were so many restrictions with it that changes occurred and led to the doctrine of Contributory Negligence which outlines that employers are not at fault for work-related injuries.

    This principle was established in the United States with the case Martin vs. The U.S. Railroad. In this case, faulty equipment caused the injuries, but the employee did not receive compensation, as it was deemed that inspection of equipment was part of his job duties.

    Additionally, the case Farnwell vs. The Boston Worchester Railroad Company led to the "Fellow Servant Rule" where employees did not receive compensation if their injuries were in any way related to negligence from a co-worker.

    For a while, in the United States, we had the Assumption of Risk Doctrine that held employers were not liable for injuries because employees knew of job hazards when they signed their work contracts. By agreeing to work, they assumed all risks. These...
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    Jon L. Gelman of Wayne NJ is the author NJ Workers’ Compensation Law (West-Thompson) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson). For over 4 decades the Law Offices of Jon L Gelman  1.973.696.7900  have been representing injured workers and their families who have suffered occupational accidents and illnesses.

    Friday, August 30, 2013

    Texting a Message to A Driver Imposes Liability for an Accident

    In an unanimous decision a NJ Appellate Court held a texter potentially liable for causing a motor vehicle accident:

    "The issue before us is not directly addressed by these
    statutes or any case law that has been brought to our attention.
    "We must determine as a matter of civil common law whether one
    who is texting from a location remote from the driver of a motor
    vehicle can be liable to persons injured because the driver was
    distracted by the text. We hold that the sender of a text
    message can potentially be liable if an accident is caused by
    texting, but only if the sender knew or had special reason to
    know that the recipient would view the text while driving and
    thus be distracted.

    "In this appeal, we must also decide whether plaintiffs have
    shown sufficient evidence to defeat summary judgment in favor of
    the remote texter. We conclude they have not. We affirm the
    trial court's order dismissing plaintiffs' complaint against the
    sender of the text messages, but we do not adopt the trial
    court's reasoning that a remote texter does not have a legal
    duty to avoid sending text messages to one who is driving.

    "We conclude that a person sending text messages has a 
    duty not to text someone who is driving if the texter knows, or 
    has special reason to know, the recipient will view the text 
    while driving. But we also conclude that plaintiffs have not 
    presented sufficient evidence to prove that Colonna had such 
    knowledge when she texted Best immediately before the accident.


    DOCKET NO. A-1128-12T4
    August 27, 2013

    Jon L. Gelman of Wayne NJ is the author NJ Workers’ Compensation Law (West-Thompson) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson). For over 4 decades the Law Offices of Jon L Gelman  1.973.696.7900  have been representing injured workers and their families who have suffered occupational accidents and illnesses.

    Read more about "texting" and workers' compensation:
    Jul 31, 2009
    New technology encroaching upon the workplace has been both a help and a hindrance. Recent studies add to the growing volumes of data reporting that the use of cell phones while driving provides a significant distraction ...
    Feb 11, 2011
    A workers compensation claim filed by a state trooper for injuries he sustained while texting and speeding 126 miles per hour that resulting in a fatal accident with oncoming teenagers, a driver and a passenger, has drawn ...
    Apr 29, 2011
    CDC urged employers to prohibit texting while driving. A safety initiative by employers will go along way to reducing workers' compensation costs. "What is already known on this topic? Highway transportation crashes are the ...
    Apr 18, 2011
    Following the policy announced by President Obama in his Executive Order banning texting while driving, OSHA is calling upon all employers to ban texting while driving. It is the intention of OSHA to provide education and ...

    Social Media Passwords Off Limits to Employers

    NJ Governor Chris Christie signed legislation that prohibits requirement to disclose user name, password, or other means for accessing account or service through electronic communications device by employers.

    See A2878

    Read more about "social media" and workers' compensation:
    Aug 15, 2013
    Social media accounts, typically Facebook, are currently a hot-button issue for plaintiff ESI production in civil litigation. Most courts (but not all!) require a threshold showing that the public account has relevant information that ...
    Apr 14, 2011
    Social networking has become a popular topic within the workers' comp community. In this edition of Workers' Comp Matters, host Attorney Alan S. Pierce, welcomes Attorney Jon L. Gelman, to take a look a social networking ...
    Jul 02, 2012
    The Workers' Compensation and Workplace Injury Section, invites you to the 2012 AAJ (American Association for Justice) Annual Convention in Chicago. A goal of the Section is to provide for our members the best ...
    Dec 03, 2012
    Recently, it seems as though everyone is connected through social networking sites such as Facebook and Twitter. These tools have become a great way to keep in touch with friends and family scattered all over the world.

    Recommended Reading for Back to School: APHA Publishes New Book on Bullying Prevention

    Bullying `in the workplace leads to both emotional and traumatic residuals. Recently some high school athletic coaches and instructors were charged with such activity. Today's post was shared by RWJF PublicHealth and comes from, a service and information website aimed at getting teens involved in their communities, has some startling statistics on bullying:
    • About 160,000 teens skip school each year because of bullying
    • More than 3.2 million students are victims of bullying each year
    • 1 in 7 students in grades K-12 are either a bully or a victim of bullying
    • 71 percent of students report incidents of bullying as a problem at their school
    Which is why a new book on bullying prevention, "A Public Health Approach to Bullying Prevention" from the American Public Health Association (APHA), is a welcome addition as the school year starts back up. The new book is intended as a resource for both parents and educators to help stem the problem of bullying at school.

    “With its public health perspective and approach, this book can lead us steps closer to eliminating the physical and mental anguish that bullying has on our nation’s children and communities,” said Georges Benjamin, MD, executive director of the APHA. “The book’s collection of various perspectives offers a comprehensive tool for parents and professionals to ensure healthy and safe schools.”

    The book includes successful bullying prevention efforts implemented in southwestern Pennsylvania schools and essays by professionals working to develop approaches that might implement similar success in other U.S. school communities. Authors include psychologists, educators, social workers and public health program...

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    Read more about "bullying" and workers' compensation:
    Jan 17, 2013
    Bullying isn't limited to the schoolyard. Bullying in the workplace is also a hot topic among employment lawyers and human-resource professionals. One study states that 35 percent of employees are bullied at work. In general ...
    Nov 20, 2011
    Schools systems are an essential source of education for our nation's future workforce. They become a farce when bullying is taught. The following is an editorial from the Star Ledger newspaper: Wayne Hills puts bullies ...
    Apr 03, 2013
    Bullying isn't limited to the schoolyard. Bullying in the workplace is also a hot topic among employment lawyers and human-resource professionals. One study states that 35 percent of employees are bullied at work. In general ...

    Why Are Fast Food Workers Walking Out Again?

    Today's post was shared by Mother Jones and comes from

    On Thursday, fast food workers around the country will walk off their jobs in what is expected to be the largest strike the $200 billion industry has ever seen.

    Workers at McDonald's, Burger King, Wendy's, and KFC will strike in 50 cities—from Boston to Denver to Los Angeles—demanding a wage increase to $15 an hour. They will be joined by retail workers at stores like Macy’s, Victoria’s Secret, and Walgreens, and members of the Congressional Progressive Caucus.
    The strikes follow a massive walkout by fast-food workers in July, and are the latest in an escalating series of strikes hitting the industry.

    As we noted last month:

    Many fast-food workers are paid at, or just above, the minimum wage. The federal minimum wage is $7.25, though it's higher in 18 states and the District of Columbia. Fast-food wages have fallen 36 cents an hour since 2010, even as the industry has raked in record profits.

    This is part of an economy-wide problem; the bottom 20 percent of American workers—some 28 million employees—earn less than $9.89 an hour, or $20,570 a year for a full-time employee. Their income fell five percent between 2006 and 2012. Meanwhile, average pay for chief executives at the country's top corporations leaped 16 percent last year, averaging $15.1 million...

    The mobilization of fast-food workers is a pretty new thing, because the industry has traditionally had high turnover. But the slow economic recovery, which has been...

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    Two California Firms and Owner Agree to Settle Clean Air Act Violations Stemming From Illegal Import of Vehicles

    Today's post was shared by US EPA News and comes from

    Two Los Angeles-based consulting firms, MotorScience Inc., and MotorScience Enterprise Inc., (MotorScience) and their owner, Chi Zheng, have agreed to settle alleged Clean Air Act (CAA) violations stemming from the illegal import of 24,478 all-terrain, recreational vehicles into the U.S. from China without testing to ensure emissions would meet applicable limits on harmful air pollution, announced the Department of Justice, the U.S. Environmental Protection Agency (EPA) and the California Air Resources Board (ARB).

    MotorScience and Zheng have agreed to have a stipulated judgment entered against them for a $3.55 million civil penalty and to pay an additional $60,000 civil penalty within six months. The United States will receive 80 percent of collected penalties, and California will receive the remaining 20 percent.

    “This illegal importation of over 20,000 vehicles evaded federal emission standards, jeopardizing human health,” said Cynthia Giles, assistant administrator for EPA’s Office of Enforcement and Compliance Assurance. “Engines operating without proper emissions controls can emit excess carbon monoxide, hydrocarbons and oxides of nitrogen which can cause respiratory illnesses, aggravate asthma and contribute to the formation of ground level ozone or smog.”

    “Vehicles and engines that are...
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    Fast Food Strikes Go Viral: Workers Expected to Protest Low Wages in 35 Cities Thursday

    Today's post was shared by Steven Greenhouse and comes from

    People gather outside of a Wendy's restaurant as part of a one day strike calling for higher wages for fast food workers in New York, July 29, 2013.

    A growing movement among fast food workers to demand higher wages is expected to gain momentum this Thursday as strikes and protests against the country’s biggest restaurant chains spread to the South and the West Coast.

    Low-wage workers at fast food restaurants like McDonald’s and retailers such as Macy’s are gearing up for a nationwide strike just before Labor Day weekend. The striking workers are demanding the right to unionize and at least $15 an hour in pay, more than double the current national minimum wage of $7.25. Organizers say Thursday’s strikes could touch as many as 35 cities.

    “These companies that own these fast food restaurants, they make way too much money off the backs of the employees,” says Dearius Merritt, a 24-year-old worker at Church’s Chicken in Memphis who earns $13 an hour and plans to take part in his first strike Thursday. “I’m in the store every day with these workers that make $7.25…If I’m 30 years old and this is what I have to do to survive, then I deserve a living wage off of it.”

    The rumblings against the long-standing economics of fast food began last November in New York, when about 200 restaurant workers went on strike in a one-day protest. By July the movement had ballooned to include thousands of...

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