The Toxic Contamination of North Jersey

In a recent report in the The Record it was noted that hundreds of toxic sites were located in North New Jersey, specifically Bergen and Passaic counties. The former geographical location of the Industrial Revolution, the area was the home of many manufacturing facilities and in close proximity of the Great Falls of Paterson NJ. The Society of Useful Manufacturers was established by Alexander Hamilton at the base of the Passaic River in Paterson NJ.

The manufacturing facilities left a legacy of toxic pollution and a lot of that pollution migrated into the Passaic River and flowed downstream to from Passaic County to Bergen County. Toxic sites proliferate the area and an epidemic of industrially produced disease remains from the occupational exposures and the bystander exposures.
For over 3 decades the Law Offices of Jon L. Gelman 1.973.696.7900jon@gelmans.com have been representing injured workers and their families who have suffered work related accident and injuries.

Related Articles:

• Lawsuit Filed Alleging Asbestos Exposed Chemical Worker Suffered Fatal Mesothelioma
• A NJ Woman Looks Back on Her Toxic Past
• Beryllium - Where it Was Used
• Haledon Man Sues Asbestos Plant for Wife's Death Due to Mesothelioma
• OSHA Identifies 585 NJ Workplaces with Highest Injury and Illness Rates
• Former Workers Sue Pantasote for PC Exposure
• Vinyl Chloride Plants in New Jersey
• Industrial Disease: The Quest for Recognition--The Need for Adequate Benefits

NJ Denies an Occupational Workers Compensation For Last Exposure Applying Apportionment Rule

A NJ Appellate Court denied an employee workers' compensation benefits by applying an apportionment rule as well as the manifestation of disease doctrine. The employee worked in two states and spend more than 10 times of his working career in Pennsylvania working n a similar job during which time manifestation occurred.


"We do not suggest that there is a mandatory mathematical formula that judges of compensation should apply in calculating the employment exposure of a petitioner as part of Williams's jurisdictional test. Although we might quibble with Judge LaBoy's description of petitioner's exposure as "de minimis," we nevertheless conclude that the sixteen-month exposure was not sufficiently substantial under the totality of the circumstances to constitute injury-conferring jurisdiction in the Division."


McGlinsey v George H. Buchanan Company, Not Reported in A.3d, 2010 WL 3932983 (N.J.Super.A.D.) Decided September 30, 2010

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 work related accident and injuries.

Cell Phone Safety and Workers Compensation

Workers' Compensation benefits may soon be denied to employees involved in motor vehicle accidents because of the unauthorized use of cell phones while driving within the course of their employment. As the US Department of Transportation (USDOT) continues to educate Americans with overwhelming statistical evidence that distracted driving is a major cause of accident, the denial of benefits to cell phone users may become a major incentive to create a safer work environment.

Meanwhile, the US Department of Transportation is leaning toward banning all use of cell phones by drivers. At the second national USDOT summit on the increased hazards of the use of cell technology  a major campaign was launched to encourage employers to outright  ban the use of cell phones by employees while working.

Employers have become increasingly concerned over employee "cognitive distraction" caused by the use of cell phones in motor vehicles as more data has become available associating driver cell phone use with accidents. Methods of enforcement will include the use of traffic cameras as the system already hss the capability of detecting drivers who are using telephones while driving. Evidentially, telephone billing records produced post accident can be used to corroborate the fact that an employee was using a telephone while working.

The precedent of using the workers compensation acts to make occupational environments safer is already established. The denial of workers' compensation benefits for unsafe actions by employees has previously been incorporated into law and has been an economic incentively for employers to reduce costs. Employees who are under the influence of drugs or alcohol, and those who fail to use employer provided safety devices, have already been denied benefits in some jurisdictions.

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 work related accident and injuries.

Related articles

• The Trend to Exclude Distracted Driving From Workers' Compensation Coverage 
• No Constitutional Right to Bear Cell Phones Exists (speedofcreativity.org)
• USA Considering Complete Ban on Cell Phone Use in Cars (greenvehiclenetwork.com)
• Ban on Driver Cell Phone Use Considered by Transportation Chief (politicsdaily.com)
• Advocates for In-Car Cell Phone Ban Face Setback (blogs.cars.com)
• Talking to death: texts, phones kill 16,000: study (canada.com)
• NIOSH: Backgrounder of Hazards of Distracted Driving

RICO Case Dismissed By Trial Court After US Supreme Court Decision

A Federal District Court in Michigan has dismissed a RICO [Racketeer Influenced and Corrupt Organizations Act] claim against Cassens Transportation Company and several other defendants. This is the third time the case was negatively reviewed by the US District Court in Michigan and follows a landmark decision in the US Supreme Court supporting the RICO action that flowed from an underlying  by a workers' compensation action.

"The Court concludes that Plaintiffs' exclusive remedy for their claim that they were fraudulently denied benefits under the WDCA [Workers' Disability Compensation Act] lies within the exclusive administrative scheme set forth in the WDCA which forcloses their RICO claim."

Brown v Cassens Transportation Company, et al. No. 04-cv-72316, 2010 WL 3842373, Decided Sept. 27, 2010.

Click here to read more about RICO claims and workers' compensation.

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 work related accident and injuries.

Class Action Certification Sought in NCCI et al v AIG Premium Case

Class Action certification is being sought in a claim against AIG brought by NCCI Holdings Inc., Liberty Mutual and Travelers Insurance for underreporting of workers ' compensation premiums. See  AIG tries to block workers comp competitors' class action.

Related articles

• Judge Refuses to Dismiss AIG Class - Action Lawsuit (nytimes.com)
• Judge refuses to dismiss AIG lawsuit (reuters.com)
• AIG Declines on Questionable Workers Compensation Reserves
• AIG CLaims Conspiracy by Liberty and Hartford
• AIG Workers' Compensation Under Investigation Again

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 work related accident and injuries.

CMS Has 6 Year Statute of Limitations-Court Dismisses MSP Recovery Claim

A Federal District Court in Alabama has declared that the Centers for Medicare and Medicare Services (CMS) is limited to a 6 year statute of limitations in asserting as recovery / reimbursement claims under the Medicare Secondary Payer Act (MSP).

The case stems from a toxic-tort claim against Monsanto Company alleging harms flowing from the use of PCBs. A global, nationally publicized, settlement was reached in the amount of $300 Million in 2003 involving more than 20,500 people. More than 14 years after the settlement CMS initiated a recovery action under the MSP.

"Because the MSPA is silent as to a deadline for filing a claim for recovery, the parties agree
that the relevant statute of limitations for the Government’s claims, if any, is governed by the Federal Claims Collection Act (“FCCA”). 28 U.S.C. § 2415 (2008); see also In re Dow Corning, 250 B.R. 298, 350-51 (Bktrpcy. E.D. Mich. 2000) (stating the universal recognition of FCCA’s applicability to the Government’s MSPA claims). The parties disagree, however, as to whether the FCAA’s six year or three-year statute of limitations applies."

The Court rejected the Government's "implied-at-law contract theory as applicable to the Corporate Defendants," because "it stretches too far beyond the bounds of logic and reason to adopt absent precedent." The Court held that the claim was based in tort and applied a 3 year statute of limitations and determined that Government had filed its claim against the Corporate Defendants "too late."

As to the Attorney Defendants, the Court held was based on contract law.

"Logic suggests that the Attorney Defendants who represented the tort plaintiffs in the
Abernathy case, the alleged Medicare beneficiaries in the instant case, essentially acted as agents pursuant to the contractual relationship between the Government and the Medicare beneficiaries. More specifically, the Attorney Defendants’ obligation to pay their clients any monies allegedly owed to the Government for Medicare reimbursement, unlike that of the Corporate Defendants, arose not from any tortious conduct on behalf of the Attorney Defendants themselves but from an express contractual relationship with the Medicare beneficiaries—namely, any fee agreement or attorney client agreement between them. From that perspective, the Attorney Defendants’ MSPA obligation is essentially founded upon a contractual obligation."

"For these reasons, the grounds for statute of limitations determination as applied to the
Attorney Defendants is more reasonably founded upon contract rather than tort. The contractual nexus is clearer in this instance than as alleged against the Corporate Defendants, whose MSPA obligations ultimately arose from, and cannot be divorced from, allegations of tortious conduct. The court, therefore, concurs that the six-year statute of limitations applies as to the Attorney Defendants."

The accural of the Government's MSP action was held to be different for the two groups of defendants. As to the Corporate Defendants the action arise no later than the point of execution and court approval of the settlement. As to the Attorney Defendants the cause of action arose when payment was made.

The Court noted the the Government could have intervened in the underlying action but chose not to do so. Perhaps the Government will now seek to intervene in all underlying claims. Additionally the Court rejected a statute tolling argument based a fraudulent concealment.

United States of America v James J. Stricker, et al., CV 09-BE-2423-E (USDCT ND Alabama) Filed September 30, 2010 3:59pm.

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 work related accident and injuries.

Related Articles:

Medicare Denied Reimbursement From Claim Of Survivor: Held Separate & Distinct

CMS/MSP Statute Tolling Case Set for Hearing by Federal Court

CMS Claims No Statute of Limitations May Exist in a Recovery Action

Case Advances Challenging MSP Reimbursement Procedures

Medicare Denied Reimbursement From Claim Of Survivor: Held Separate & Distinct

The 11th Circuit Court of Appeals has held that Medicare is not entitled to reimbursement under the Medicare Secondary Payer Act (MSP) when the the surviving children's allocated share of proceed is the result of a wrongful death claim. The Court reasoned that under Florida law, any claim of the estate is separate and distinct from the claim of a survivor. Under Florida law, child's loss of parental companionship claim is a property right belonging to the child.

Medicare through the Secretary of Health and Human Services (HHS) did not participate in the Florida probate action. HHS had refused to recognize the validity of that decision of allocation of the Florida Probate action.

"Counsel for the survivors and the estate acted sensibly, in a cost-effective manner. The nursing home neglect claim was settled for the full value of the available insurance. Clearly, if the language of the field manual applied, in practice, it would lead to an absurd Catch-22 result. Forcing counsel to file a lawsuit would incur additional costs, further diminishing the already paltry sum available for settlement. This flies in the face of judicial and public policy.

"The Secretary's position would have a chilling effect on settlement. The Secretary's position compels plaintiffs to force their tort claims to trial, burdening the court system. It is a financial disincentive to accept otherwise reasonable settlement offers. It would allow tortfeasors to escape responsibility.

"Without citing any statutory authority, regulatory authority, or case law authority, the Secretary and the district court's reliance upon language in a field manual is unpersuasive. The Secretary is not entitled to any share of the Burke surviving children's loss of parental companionship claims.

The decision may have a sweeping national impact on workers' compensation dependency claims, as they are also separate and distinct actions against an employer.

Bradley v, Sebelius, 621 F. 3d 1330, 2010 WL 3769132 (C.A. 11 Fla. 2010)

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 work related accident and injuries.

Related Articles:

CMS/MSP Statute Tolling Case Set for Hearing by Federal Court

CMS Claims No Statute of Limitations May Exist in a Recovery Action

Case Advances Challenging MSP Reimbursement Procedures