The Election Validates A New Approach to Workers Compensation

The recent election results confirm that a new approach to handling the century old workers' compensation is needed and that some definite trends are developing.

Washington State: The insurance industry initiative for privatization was defeated.

New Jersey: The constitutional amendment to prohibit raiding the Second Injury Fund revenue was passed.

California: Jerry Brown was elected governor and the Republican assault on the state compensation system rejected.

Nevada: Harry Reid was re-elected validating the innovated "Libby Health Care" Plan for medical care for occupational illness and the Federalization of the program and the US Senate's initiative.

New York: Andrew Cuomo was elected governor and revision is likely of the administrative assault on workers' rights.

Nationally, the soaring US deficit, and a State system that continues to fail to deliver health care to occupationally injured workers, will eventually need to be addressed by Congress. The 2008 strong Democratic mandate has not evaporated. The Democrats still control the Senate (51-D v 46-R) and downtown at White House. The newly acquired House Republican majority (234-R v 180-D) is instilled with the chaos of an unsettling newly emerging third party, Tea Party, alliance.

The course ahead still remains promising for enacting a unified and coordinate program to help injured workers obtain medical care for occupational diseases on a timely and effective basis without breaking the bank. The vision of a coordinated epidemiological research program to prevent occupational disease and  insure safe working conditions remains hopeful.

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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.

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Asbestos Danger Closes Madison Square Garden

Asbestos falling from the ceiling of Madison Square Garden (MSG) resulted a cautious closing of the arena because of the potential health hazards. On going construction and renovation of the facility resulted in workers dislodging the known cancer producing substance.

In a statement issued by MSG management, caution was stressed:
"Out of an abundance of caution, we are postponing tonight's Knicks v. Magic game. We will be working with the city and independent experts, ATC Associates and GCI Environmental Advisory, to evaluate and determine the most appropriate course of action. As the safety of our customers and employees are our top priority, we will not reopen the Garden until we are absolutely assured the Arena is safe.

Asbestos is a known carcinogen and exposure results in asbestosis, lung cancer and a rare and fatal disease, mesothelioma. There is no minimum safe dose level of exposure to asbestos. The disease manifests decades after the exposure to fiber occurs. The use of asbestos in the past has resulted in an epidemic of illness.

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 asbestos related disease.

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NJ Rejects Broad Medicare Release Language in Judgments

The NJ Division of Workers Compensation has indicated that broad release "language should not be included as part of a settlement order, attached to a settlement order or placed or part of the settlement record."

Specifically the following sample language was rejected, The claimant, , agrees to indemnify defendant, hold harmless the respondent from any action by Medicare seeking payment of past, current or future medical expenses for the claimant. Claimant shall further hold the respondent harmless from any and all adverse consequences in the event the settlement results in the loss of right to Social Security and/ Medicare benefits to the extent claimant would have been entitled to those benefits in the absence of the settlement agreement."

A memo was issued on October 28, 2010, by the Director and Chief Judge, The Honorable Peter J. Calderone.
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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.

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Workers Compensation and Nanotechnology - The New Frontier

NIOSH research has revealed that breathing nanoparticles may result in damaging health effects.

"Nanotechnology has the potential to revolutionize countless products, create computers smaller and faster than once could be imagined, and fight diseases such as cancer. According to the Project on Emerging Nanotechnology, by the summer of 2009 there were 1,015 consumer products using nanotechnology. That represents nearly a 19-fold increase over the 54 products listed in 2005. Nanotechnology involves the manipulation of matter at a near-atomic scale. Nanoparticles measure from 1 to 100 nanometers in size, with 1 billion nanometers forming a meter. For comparison, a billion inches would nearly circle the Earth 2 times."

• A 2004 survey estimatedthat nearly 25,000 U.S. workers were employed at businesses that exclusively produced nanotechnology products.
• Nanoparticles can enter the body through many routes including inhalation, swallowing, ingestion, and absorption through the skin.
• Nanotechnology may present health risks but it can also be used to protect workers. New respirator designs, for instance, use nanotechnology to create more effective filters to block harmful substances.

Authors of Inhalation Versus Aspiration of Single-Walled Carbon Nanotubes in C57BL/6 Mice: Inflammation, Fibrosis, Oxidative Stress, and Mutagenesis—Anna Shvedova, Elena Kisin, Ashley Murray, Victor Johnson, Olga Gorelik, Sivaram Arepalli, Ann Hubbs, Robert Mercer, Phouthone Keohavong, Nancy Sussman, J. Jin, J. Yin, Samuel Stone, The-hsun Chen, Gregory Deye, Andrew Maynard, Vince Castranova, Paul Baron, and Valerian Kagan; Health Effects Laboratory Division; NIOSH—received the 2009 Alice Hamilton Award in the Biological Sciences category.

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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.

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A New Wave of Disease - Cleaners Asthma

Workers exposed to chlorine agents have been diagnosed with respiratory impairments. A recent study has reported that "suggest that bleach inhalation at a concentration of 0.4 ppm—a concentration below 8-hr permissible occupational exposure level—brings about a substantial decrease in FEV1 in subjects."

"Included in the study were thirteen cleaning employees with work-related asthma-like symptoms, three asthmatic controls and three atopic subjects without bronchial hyperresponsiveness (BHR) who had no exposure to cleaning products. The study protocol consisted of a methacholine test, sputum induction and fraction of exhaled nitric oxide measurement (FENO) both at baseline and 24 hr after a 1-hr inhalation challenge with either placebo or bleach at a concentration of 0.4 ppm of chlorine."

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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.

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Working Overtime Results in Compensation Heart Attack

Working overtime that resulted in a heart attack was deemed to be a compensable dependency claim.

"The compensation judge held that Anthony's overtime work contributed in a material way to his heart attack. In reaching that conclusion, the judge found that the work effort was more intense than the normal wear and tear of Anthony's daily living."

"The parties agree that the overtime work was more strenuous for Anthony than daily living tasks. Glen Gery required Anthony to change heavy paddles or blades that churned the water and shale. To access the blades, he was required to use a jackhammer to remove hardened material, each chunk weighing between thirty and forty pounds. Once the hardened material was removed, certain blades had to be replaced. To replace the blades, a shaft weighing approximately 200 pounds had to be lifted off the ground by at least two workers who were required to push, lift and pull until each new blade was secured. Anthony worked that day performing intense manual labor in a hot and dusty environment."

"Dr. Malcolm Hermele, petitioner's expert, opined that the heart attack occurred on the day Anthony worked overtime, and that his work effort contributed materially to it. Hermele pointed to the results of tests performed the day after Anthony worked overtime to prove when the heart attack occurred. A creatine kinase (CK) enzyme test showed a reading of 1453. A normal reading would be zero. He explained that the CK enzyme is released into the blood stream when there is damage to the heart. Anthony's troponim levels and the result of his brain natriuretic peptide test show that he was experiencing a heart attack. Hermele concluded that a 1453 reading was evidence that Anthony's heart attack occurred within a day or two of the test, during which Anthony performed the overtime maintenance work."

Reading v. Glen Gery Shale and Brick Company, Not Reported in A.3d, 2010 WL 4137298 (N.J.Super.A.D.)Decided October 21, 2010
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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.

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No Social Security COLA for 2011

Like so many state workers' compensation programs, Social Security and Supplemental Security Income (SSI) benefits for more than 58 million Americans will not automatically increase in 2011, the Social Security Administration announced.


The Social Security Act provides for an automatic increase in Social Security and SSI benefits if there is an increase in the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W) from the third quarter of the last year a cost-of-living adjustment (COLA) was determined to the third quarter of the current year.  As determined by the Bureau of Labor Statistics, there is no increase in the CPI-W from the third quarter of 2008, the last year a COLA was determined, to the third quarter of 2010, therefore, under existing law, there can be no COLA in 2011.

Other changes that would normally take effect based on changes in the national average wage index also will not take effect in January 2011.  Since there is no COLA, the statute also prohibits a change in the maximum amount of earnings subject to the Social Security tax as well as the retirement earnings test exempt amounts.  These amounts will remain unchanged in 2011.  The released agency fact sheet provides more information on 2011 Social Security and SSI changes.

Information about Medicare changes for 2011, when available, will be found at www.Medicare.gov.  The Department of Health and Human Services has not yet announced if there will be any Medicare premium changes for 2011.  Should there be an increase in the Medicare Part B premium, the law contains a “hold harmless” provision that protects more than 70 percent of Social Security beneficiaries from paying a higher Part B premium, in order to avoid reducing their net Social Security benefit.  Those not protected include higher income beneficiaries subject to an income-adjusted Part B premium and beneficiaries newly entitled to Part B in 2011.  In addition, almost 20 percent of beneficiaries have their Medicare Part B premiums paid by state medical assistance programs and thus will see no change in their Social Security benefit.  The state will be required to pay any Medicare Part B premium increase.

For additional information about the 2011 COLA, go to www.socialsecurity.gov/cola.

For additional information about changes in the national average wage index, go to www.socialsecurity.gov/OACT/COLA/AWI.html.
.....For over 3 decades the Law Offices of Jon L. Gelman 1.973.696.7900 jon@gelmans.com have been representing injured workers who have sought Social Security Disability Insurance (SSDI) Benefits.

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