Workers' Compensation

Wednesday, February 16, 2011

Court Holds Parties May Assert A Third Party Lien Against Lump Sum Payment

A NJ Court of Appeals has held that parties may stipulate, as part of a workers' compensation settlement, that a third party lien may be asserted against a lump sum payment. A workers' compensation settlement contracted into by the parties, and approved by a Judge of Compensation, supersedes the statutory prohibition against the assertion of a lien on such proceeds.

Statutorily workers' compensation settlements made pursuant to NJSA 34:15-20 are immune form the assertion of a third party recovery lien made in accordance with a settlement under NJSA 34:15-40. As part of the workers' compensation settlement, the parties stipulated to the assertion of a third party recovery lien, and the Appellate Court held the contractual agreement made between the parties to be valid.

"The resolution of plaintiff's claims, including retention of the Section 40 lien, was negotiated as a material part of the settlement. A settlement agreement between parties in litigation is a contract. Nolan v. Lee Ho, 120 N.J. 465, 472 (1990) (citing Pascarella v. Bruck, 190 N.J.Super. 118, 124- 25 (App.Div.), certif. denied, 94 N.J. 600 (1983)). Accordingly, American Style's right of reimbursement on the $50,000 is contractual rather than statutory.

"Significantly, Calle acknowledged under oath his understanding that a Section 40 lien amount of $50,000 of the money ... [was] reservable by the insurance company as pay back for authorized treatment. This money will come from the part of the case that was handled by [the Law Firm in the Superior Court action] should they have a financial recovery.

"The parties relied upon that understanding when they entered into the settlement agreement. It would be inconsistent with the agreement and unjust to permit Calle to repudiate that understanding after the fact. See Knorr v. Smeal, 178 N.J. 169, 178 (2003) (observing that estoppel "is designed to prevent injustice by not permitting a party to repudiate a course of action on which another party has relied to his detriment").

The effect of this ruling will ultimately dilute, yet again, the value of a workers' compensation award globally. Claimants and their attorneys will be hard pressed to avoid the the inclusion of the stipulated waiver in Section 20 settlements since the alternative route would be the trial of a claim where the statutory lien mandated under NJSA 34:15-40 would be applied.

DANIEL AQUILINO CALVA CALLE Administrator ad prosequendum of the Estate of CHRISTIAN DANIEL CALVA SIGUENA, Deceased and DANIEL AQUILINO CALVA CALLE individually v. HITACHI POWER TOOLS, AMERICAN STYLE CONSTRUCTION, INC HITACHI KOKI, USA , LTD., DOCKET NO. A-1015-09T1--- A.3d ----, 2011 WL 499345 (N.J.Super.A.D.)

Tuesday, February 15, 2011

Straightening Out What is Formaldehyde

The fragrance and cosmetic industry seems to be having a difficult time in straightening out its own product line after being the direct and indirect target of claims from injured workers and consumers. National Public Radio [NPR] reports today that the attempt to remove formaldehyde, a know carcinogen, has been met with new and potentially toxic results.

The Hollywood rage, that is frizz-free hair, has created concern in Washington and in courtrooms as to the toxicity of the beauty products being sold and utilized. A scientist, Sharon Neufeldt, has raised concern the the new products being market maybe no better than the allegedly toxic old products.

Agenda Announced for Public Meeting on Implementation of the Zadroga 9/11 Health and Compensation Act

An agenda for the a public meeting on March 3, 2011 to discuss the implementation of the James Zadroga 9/11 Health and Compensation Act of 2001 has been published by The National Institute for Occupational Safety and Health (NIOSH) of the Centers for Disease Control and Prevention (CDC). The purpose of the meeting is to allow interested parties provide the agency with their perspectives to assist in developing a plan to meet the requirements of the Act.

In December 2010 US Congress passed and President Obama signed, The World Trade Center Health Program, marking yet another advance on the path to federalize the nation's workers' compensation program. The Federally funded and administered program provides for medical evaluation and treatment of occupational medical conditions that have been neglected or ignored by other benefit programs.

The meeting will begin with a brief introduction by Federal officials, followed by presentations from attendees who register to speak. Each speaker will be limited to five minutes in order to maximize the number of presentations during the meeting. If all registered presentations are made before the end time, there will be an open session to receive comments from anyone who has not signed up on the speaker registration list who may wish to speak. Open session comments will also be limited to five minutes per person. After the last speaker or at 4:45 p.m., whichever occurs first, the meeting will be adjourned.

The meeting is scheduled for Wednesday, March 3, 2011 9 a.m to 4:45 p.m. EDT. The meeting will take place at the Jacob Javits Federal Building, 26 Federal Plaza, Broadway entrance, 6th Floor, Broadway entrance, 6th Floor Conference Room A/B, New York, NY 10278. While the meeting is open to the public, limited only by the space available. It is anticipated that the space can hold only 300 people. The USA toll-free dial-in number is 800–619–8873; pass code 8693287.

The James Zadroga 9/11 Health and Compensation Act of 2010 established a program known as the World Trade Center (WTC) Health Program within the US Department of Health and Human Services (HHS). The Act includes:

1. Medical Monitoring for Responders

2. Initial Health Evaluation for Survivors

3. Follow-up Monitoring and Treatment for WTC-Related Health Conditions for Responders and Survivors

4. Outreach

5. Clinical Data Collection and Analysis

6. Research on Health Conditions

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. Please contact our office if you require assistance in filing a claim under the newly enacted James Zadroga 9/11 Health and Compensation Act.

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Saturday, February 12, 2011

Published: 2011 Workers' Compensation Law Treatise

The 2011 Supplement to Gelman on Workers' Compensation Law has been published and is shipping. Now in its third edition, the 3 volume hard-bound series, provides a comprehensive analysis of workers' compensation law. Published by West Publishing, a business of Thomsom-Reuters, it is totally integrated into the West citation system and Westlaw® research system. The series and updates may be ordered in hardbound, CD-Rom and/or accessed thorough the Westlaw® research system.

What's New

The newly enacted statutory changes to the New Jersey Workers’ Compensation Act and promulgated Rules permitting Emergent Medical Care Motions, new registration requirements for insurers, and new judicial enforcement powers of Judges of Compensation, including sanctions and contempt powers, are contained in this supplemental material. The judicial decision imposing direct liability against an insurance carrier for delay and/or denial of medical treatment is discussed.

An analysis of the newly adopted procedures for the reimbursement of conditional payments established by Medicare and the protocols to co-ordinate workers’ compensation claims with the Centers for Medicare and Medicaid Services is contained in this supplement. The materials also provide the authorizations required to obtain conditional payment information from the Coordinator of Benefits. Debt collection referral to the Department of the Treasury is also reviewed.

The new Community and Worker Right to Know material has been incorporated into this supplement. The current hazardous substance lists and the substances that have been deemed extremely dangerous are provided.

The supplement reviews new case law concerning electronic cancellation of coverage as well as the standard for claims to be considered casually related to the employment.

The judicial interpretation of the Exclusivity Doctrine is discussion in light of the dual capacity status of a household contact / bystander and also former employee. The evidential requirements in latent occupational claims is reviewed.

The mandatory reporting requirements of the SCHIP Extension Act of 2007 are described as well as the appeal procedure under the reimbursement provision of the Medicare Secondary Payer Act.

These pocket parts provide information concerning the requirements for medical monitoring in workers’ compensation claims. It discusses. the Asbestos Fund, which has been established for those entities where workers’ compensation coverage cannot be established. The newly designed forms that need to be utilized in filing for benefits are included. Also, the recently modified Motion for Temporary and Medical Benefits, including a form Certification, is provided and discussed.

The newly revised Judgments for Total and Permanent Disability are provided in this pocket part. The Judgments include new refinements in offsets for pensions and Social Security disability benefits. Reviewed also is the “intentional wrong exception” to the Exclusivity Bar which has been the subject of new workers’ compensation insurance policy language and regulation.

The recently promulgated administrative rules governing the disposition of Temporary Disability Benefits are discussed. The non-duplication of benefits provisions are reviewed including the multiple agency adjudication process. An expansion of benefits available to Federal public safety officers is reviewed in this supplement.

Collateral medical benefit issues are discussed in light of the recent Supreme Court decision concerning this matter. The pocket parts include a Motion to Join the Collateral Health Carrier and provide sample Certifications to be used in support of the application. New pleadings issued by the Division of Workers’ Compensation in the area of medical payment and reimbursement claims are provided and commented upon in these materials.

Additionally, these pocket parts provide information concerning the new Rules of the Division of Workers’ Compensation embodying electronic filing requirements and new procedures involving both formal and informal proceedings, motion practice, post judgment process, and judicial performance. The expanded Medicare secondary reporting requirements and the mandatory coordination of benefits are reviewed in this supplement. The recovery aspects of Medicare conditional payments as well as future medical provisions are updated and discussed. The new Child Support Lien distribution forms, computation worksheets and judgments are provided and explained in depth. The NJ Supreme’ Court ruling and the legislative enactments are discussed concerning same sex couples and the availability of workers’ compensation benefits.

This supplement reviews the newly promulgated Rules concerning the Uninsured Employers’ Fund and audio and video coverage of workers’ compensation proceedings. The horrific tragedy of September 11th, 2001 and the impact it has upon the Workers’ Compensation system is discussed. This supplement reviews the newly enacted Smallpox Emergency Protection Act as well as recent court decisions concerning acts of terrorism. The subsequent legislative changes enacted in response to potential terrorist threats are reviewed, including the Public Safety Officers’ Benefit Act as well as the liberalized legislative enactments involving rescue workers and medical personnel.

The far-reaching ramifications of the newly enacted healthcare reform legislation are reviewed. The new prototype occupational medical care program, encompassing potential occupational exposure claims, is presented in this supplement.

The impact of the newly promulgated Federal rules and regulations concerning medical record privacy and compliance with the Health Insurance Portability and Accountability Act (HIPPA) medical authorization requirements are reviewed in this supplement and model forms are furnished. The recently enacted statutory workers' compensation coverage options available to proprietors and partners are discussed. The supplement reviews the recent court decisions expanding the responsibility of the Second Injury Fund for pre-existing medical conditions in cases in which latent diseases become manifest during retirement. The statutory enactments concerning State Temporary Disability Benefits are reviewed. The recently amended Energy Employees Occupational Illness Compensation Act is explained in detail and forms are furnished and discussed.

The new administration and management of claims arising from insolvent workers’ compensation insurance is covered in this pocket part.

The recent Supreme Court decisions concerning the high judicial threshold for evaluation of scientific evidence are analyzed. The requirements for proof of scientific evidence in complex workers’ compensation cases are discussed including the admissibility of testimony from non-physicians experts. Furthermore, the evolving and expanding issues concerning medical monitoring are reviewed.

This pocket part also discusses recent changes in the application for counsel fees. The supplement includes the newly promulgated administrative directive embodying those changes.

To Order

The series and updates may be ordered in hardbound, CD-Rom and/or accessed thorough the Westlaw® research system.

More Information
Table of Contents Supp. 2011
Index, Supp. 2011
Summary of Contents

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Friday, February 11, 2011

Distracted Driving Workers Compensation Claim Draws Major Public Attention

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 media attention. An effort to hold a hearing, "on the sly with no press," before the Illinois Workers' Compensation Commission is now receiving coverage by news organizations including; the Associated Press, the Belleville News Democrat, the Courthouse News Service, and the ABA Journal.

Accidents caused by distracted driving are creating an emerging challenge for workers' compensation court to adjudicate. The National Institute for Occupational Safety and Health (NIOSH) is following the lead of the US Department of Labor by encouraging employers to ban cell phone use while operating vehicles. An outright prohibition and supporting legislation may lead to the prohibition of workers' compensation benefits in many jurisdictions in the near future unless more global and radical action is taken to re-mediate this dangerous activity.

The state trooper pleaded guilty to two counts of reckless homicide last year. He has since resigned from his job.

The attempt to conceal the hearing of the Illinois troop was the subject of internal e-mails reported by the Belleville News Democrat. Public commenting was removed from the on-line report because of abuses. No hearing date or location has been reported yet for the compensation hearing.

Related Articles:

NIOSH Supports Efforts to Ban Distracted Driving
Cell Phone Safety and Workers Compensation
The Trend to Exclude Distracted Driving from Workers Compensation Coverage
Put it Down - Friday April 30th
Driving While Distracted Compared to DUI
Are Driving Distractions Within the Course of Employment?
Employee Cell Phone Chat Results in $5.2 Million Payment to Widow by Employer

Thursday, February 10, 2011

AIG Reaches For Its Wallet to Cover $4.1 Billion in Work Comp Claims and Asbestos Liabilities

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The American International Group (AIG), the huge insurance company that the US Government bailed out financially, is still hard pressed to raise funds to cover on going claims. AIG has announced that it will need to raise another $4.1 Billion dollars to cover such costs as primary and excess workers' compensation claims and asbestos liability claims.

AIG's long and troubled history was the subject of investigative reporting in the Academy Award nominated film, Inside Job. The Many factors have impact on an insurance company's solvency including the ability to collect premiums in a down economic cycle, the investment of the premiums collected and colateral bad investments the have a massive economic impact of the financial worth of the company in general.

Workers' compensation claims continue despite a low employment cycle. Latent diseases, such as asbestos related lung cancer, asbestosis and mesothelioma, may be dormant for decades before manifesting into a chronic and terminal medical condition.

The industry continues to struggle on how workers' compensation should be employed to insure industries and employers from these condition. Originally the workers' compensation acts did not cover occupational conditions such as silicosis or asbestosis. In the 1950s acts were amended, at industries insistence to bring these occupational conditions under the umbrella of coverage and shield employers from civil lawsuits. With the expansion of products liability claims, based on the intentional concealment of information of the hazards of these conditions, as well as low economic recoveries from struggling workers' compensation systems put the boat back into the bottle, "the longest running tort", asbestos litigation, was born.

Industry continues to try to put the genie back into the bottle, which is reflected in the latest attempt in Missouri to bar liability claims against employers and co-workers. One of the incentives of a workers' compensation program is to prevent industrial accidents, but the system continues to struggle both economically and procedurally in achieving that objective.

The need for AIG to raise additional cash to pay claims raises a concern as to whether premium dollars to pay claims are being adequately protected in the first place, and whether those premiums ared being directed to injured workers and victims of occupational illness. Instead of trying to figure how to further restrict the payment of benefits, perhaps more attention should be paid to making a safer workplace by banning asbestos use, and providing more convenience access through universal medical care.

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Public Meeting on Implementation of the Zadroga 9/11 Health and Compensation Act

The National Institute for Occupational Safety and Health (NIOSH) will host a public meeting on March 3 in New York City to receive comments from the public on implementing the provisions of the James Zadroga 9/11 Health and Compensation Act of 2010 (Public Law 111-347).

NIOSH will convene the public meeting in response to a request by Reps. Carolyn B. Maloney (D-NY), Jerrold Nadler (D-NY), and Peter T. King (R-NY), the primary sponsors of the James Zadroga 9/11 Health and Compensation Act of 2010 in the U.S. House of Representatives. The meeting will be held from 9:00 a.m. to 4:45 p.m., Eastern Time, at the Jacob K. Javits Federal Building, 26 Federal Plaza, Broadway entrance, 6th Floor, Conference Room A/B, New York, N.Y. 10278.

The meeting is open to the public, limited by the space available. The meeting space accommodates approximately 300 people, and will be available on a first-come-first-served basis. In addition, there will be an audio conference setup for those who cannot attend in person. The toll-free call-in number is 1-800-619-8873; pass code 8693287.

The James Zadroga 9/11 Health and Compensation Act of 2010 established the World Trade Center Health Program within the U.S. Department of Health and Human Services, of which NIOSH is part. Comments from the public will help the Federal government in developing a plan to implement the Act by gaining perspectives from interested parties on ways to meet the Act's requirements.

The Act's requirements include:

Medical monitoring for responders who were likely to have been exposed to airborne toxins that were released, or to other hazards, as a result of the September 11, 2001, terrorist attacks.
Initial health evaluation for survivors.
Follow-up monitoring and treatment for responders and survivors related to World Trade Center-related health conditions.
Education and outreach to potentially eligible individuals.
Clinical data collection and analysis.
Research on health conditions.

A copy of the full Act is available at www.cdc.gov/niosh/topics/wtc/hr847.html. A notice of the public meeting with further information on attendance and registration is scheduled to be posted in the Federal Register on Feb. 10.

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