Copyright

(c) 2010-2024 Jon L Gelman, All Rights Reserved.

Tuesday, November 22, 2011

CMS Sets Telephone Conference Call to Discuss Workers' Compensation Medicare Set-aside Portal

The Centers for Medicare & Medicaid Services (CMS) has completed its Pilot Testing of the Workers' Compensation Medicare Set-aside Portal (WCMSAP). The CMS will be conducting a Town Hall conference call on November 29, 2011 from 1:00 to 3:00 pm (EST), to introduce this initiative to submitters of proposed Workers' Compensation Medicare Set-Aside Arrangement (WCMSAs) amounts, and to answer questions regarding the WCMSAP. After the Town Hall conference call, CMS will post the links of the WCMSAP application, and the WCMSAP Computer Base Training (CBT) Modules, on the Workers' Compensation Medicare Set-aside Portal (WCMSAP) section page "Related Links Outside CMS."

Please Note: The call in information for the WCMSAP Town Hall teleconference is:
Call in time: 1pm to 3pm
Call In Line: 1-(800) 603-1774
*Conference ID: 29840615
*Participants must use the Conference ID number to be allowed into the call.

The Doctrine of Equitable Allocation Not Applicable in a Medicare Secondary Payment Reimbursement Claim


The 6th Circuit Court of Appeals has ruled that The Center for Medicare and Medicaid Services (CMS) is entitle to complete reimbursement of Medicare payments under the Medicare Secondary Payer Act (MSP) from a liability claim even though the beneficiary claimed that the settlement required allocation due to the law allocating liability.

"We address only one of them here: specifically, under § 1395y(b)(2)(B)(ii) as amended, if a beneficiary makes a “claim against [a] primary plan[,]” and later receives a “payment” from the plan in return for a “release” as to that claim, then the plan is deemed “responsib [le]” for payment of the “items or services included in” the claim. Id. Consequently, the scope of the plan's “responsibility” for the beneficiary's medical expenses—and thus of his own obligation to reimburse Medicare-is ultimately defined by the scope of his own claim against the third party. That is true even if the beneficiary later “compromise[s]” as to the amount owed on the claim, and even if the third party never admits liability. And thus a beneficiary cannot tell a third party that it is responsible for all of his medical expenses, on the one hand, and later tell Medicare that the same party was responsible for only 10% of them, on the other."


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 occupational accidents and illnesses.

Monday, November 21, 2011

Who Is An Independent Contractor: Deciding In a Multi-District Litigation Consolidation

The 7th Circuit Court of Appeals ruled that the Transferee Court designated by the Judicial Pannel on Mutli-District Litigation (JPMDL) has the discretion to make a decision on "independent contractor" status. The Circuit Court of Appeals denied a mandamus action and affirmed the decision of the JPMDL. 

"This petition for the extraordinary writ of mandamus presents an important question concerning the management of appeals in multidistrict litigation under 28 U.S.C. § 1407 when portions of some cases must be returned to their original transferor courts. In this case, the Judicial Panel on Multidistrict Litigation (JPML) chose one of two alternative courses. The JPML chose to ensure that each case produces one appeal of all issues in that case, rather than using partial final judgments under Federal Rule of Civil Procedure 54(b) to ensure that all related appeals would go to the same circuit. As we explain below, we agree with the JPML that there are strong arguments for both sides of this procedural dispute, and we defer to the JPML's exercise of its discretion in this matter. In terms of the standards for issuing writs of mandamus, we find that the petitioner has failed to show that it has a clear and indisputable right to issuance of the writ, so its petition is denied."

"Delivery drivers for petitioner FedEx Ground Package System, Inc. filed numerous class actions against FedEx alleging that the company improperly classified them as independent contractors rather than employees. Although the cases in federal courts alleged violations of many different state laws, they presented many common questions of fact. Under the authority of 28 U.S.C. § 1407, the JPML consolidated more than 70 of the cases in MDL No. 1700 and transferred those cases to the Northern District of Indiana in 2005 for consolidated pretrial proceedings under the supervision of Judge Robert L. Miller, Jr., a veteran district judge with long experience both as a transferee judge managing MDL cases and as a member of the JPML itself. Judge Miller supervised the cases through several years of discovery and motions practice.

No. 11-243 Decided November 17, 2011 (&th Cir CT Appeals), 

EU Restricts US Airport Scanners As Health Hazard

The European Commission has adopted today a proposal for an European Union legal framework on security scanners. This legislation allows airports and Member States that wish to use security scanners for the screening of passengers to do so under strict operational and technical conditions.
Member States have been trialling or testing security scanners, since a terrorist attempted on 25 December 2009 to blow up a plane flying from Amsterdam to Detroit with plastic explosives he had hidden in his underwear. Until now the use of security scanners has been done under a patchwork of different national operational procedures and standards and in a limited way. As a common EU-wide framework, the new legislation legally allows Member States and airports to replace current security systems with security scanners. It also ensures the uniform application of security rules at all airports and provides strict and mandatory safeguards to ensure compliance with fundamental rights and the protection of health.
Member States and airports do not have an obligation to deploy security scanners, but if they decide to use them, they will have to comply with the operational conditions and performance standards set at European level.
Vice-President Siim Kallas, Commissioner responsible for transport, said: "Security scanners are not a panacea but they do offer a real possibility to reinforce passenger security. Security scanners are a valuable alternative to existing screening methods and are very efficient in detecting both metallic and non-metallic objects. It is still for each Member State or airport to decide whether or not to deploy security scanners, but these new rules ensure that where this new technology is used it will be covered by EU wide standards on detection capability as well as strict safeguards to protect health and fundamental rights. Experience to date shows that passengers and staff generally see security scanners as a convenient method of screening."
Security scanners are an effective method of screening passengers as they are capable of detecting both metallic and non-metallic items carried on a person. The scanner technology is developing rapidly and has the potential to significantly reduce the need for manual searches ("pat-downs") applied to passengers, crews and airport staff.
Under the new EU legislation the use of security scanners is only allowed in accordance with minimum conditions such as for example that: security scanners shall not store, retain, copy, print or retrieve images; any unauthorized access and use of the image is prohibited and shall be prevented; the human reviewer analyzing the image shall be in a separate location and the image shall not be linked to the screened person and others. Passengers must be informed about conditions under which the security scanner control takes place. In addition, passengers are given the right to opt out from a control with scanners and be subject to an alternative method of screening.
By laying down specific operational conditions and by providing passengers with the possibility of opting out, the legislation safeguards fundamental rights and the principles recognized in particular by the Charter of Fundamental Rights of the European Union.
In order not to risk jeopardizing citizens' health and safety, only security scanners which do not use X-ray technology are added to the list of authorized methods for passenger screening at EU airports. All other technologies, such as that used for mobiles phones and others, can be used provided that they comply with EU security standards.

WHO Concludes Occupation Exposure to Bitumens Can Cause Cancer

The World Health Organization (WHO)/International Agency for Research on Cancer’s Monographs programme re-evaluated various occupations that entail exposures to bitumens and bitumen emissions, including road paving, roofing, and application of mastic asphalt.

After an 8-day comprehensive review, the Working Group concluded that:

• occupational exposures to oxidized bitumens and their emissions during roofing are ‘probably carcinogenic to humans’ (Group 2A);

• occupational exposures to hard bitumens and their emissions during mastic asphalt work are ‘possibly carcinogenic to humans’ (Group 2B); and

• occupational exposures to straight-run bitumens and their emissions during road paving are ‘possibly  carcinogenic to humans’ (Group 2B).

Bitumens are produced by distillation of crude oil during petroleum refining, and also occur naturally. Bitumens can be  divided into broad classes according to their physical properties and specifications required for the different uses. The  major use of bitumens is in asphalt for road paving; other uses include roofing, waterproofing, and sealing and  painting.  Application of bitumens may generate hazardous emissions.

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 occupational accidents and illnesses.

Sunday, November 20, 2011

Bullying Shouldn't Be Taught in Schools

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 ahead of victims by reinstating football players

Wayne Hills coach Chris Olsen speaks during the Wayne Board of Education last night. About 60 Wayne Hills players were in attendance to support their coach and teammates.
The Record
Wayne Hills varsity football coach Chris Olsen, proving that winning games is more important to him than teaching life lessons, defended nine players charged in the brutal beating of two Wayne Valley students.
Actually, Olsen went further than that. He painted the accused rampaging juvenile delinquents as victims.
At last night’s board of education meeting, Olsen told the crowd that the accused players -- who cops say left one kid bloody and unconscious in the street -- “are guilty of playing football at Wayne Hills.”
In other words, the bullies are the victims.
That’s rich.
Let’s remind ourselves of the odds: Nine football players against two students.
And the charges: Aggravated assault.
Another point: Not once last night were the words “We’re sorry” uttered by Olsen.
And believe it or not, the spineless and morally bankrupt board of education fell for Olsen’s twisted sense of reality, and decided to reinstate the players, who had been banned by the superintendent from tonight’s playoff game against Paramus.
Olsen said the past 10 days, since the charges have come to light, have been a “nightmare.”
(Let’s pause here for a moment of silence for Olsen.)
He said his wife has been called bad names. He said e-mails have suggested that Olsen’s kid, who plays on he team, might have been involved in the beating, although Olsen says he wasn’t.
We don’t condone dragging Olsen’s wife and son into this mess, but Olsen misses the point: Times are a lot tougher for the victims. A mother of one of the victims says her son suffers from real nightmares, not the figurative one that Olsen, with a ridiculous sense of literary license, conjured last night
Why the nightmares? Because the victim recalls being kicked repeatedly as he lay on the ground.
Olsen’s next move should be to ask for a pay raise, because he is more than just a football coach. He’s now an investigator who is insisting there is evidence to indicate that some of the players charged might not have been involved
He’s a protest organizer, who paraded his players, dressed in their jerseys, into the meeting as props.
He’s a defense attorney, too. In his best Johnnie Cochran, Olsen called the process a “rush to justice.”
“Let’s say some of the boys, or all of them are found not guilty,” Olsen said. “What do we say to them? ‘We’re sorry’?”
Actually, yes. That’s exactly what we say.
We say, “We’re sorry, but there was enough evidence for police to charge you with a serious and violent crime, and to protect the integrity of the school, and to show that this issue is far more important than a football game or football season, we decided to make you sit out until the courts decided your guilt or innocence.”
The police chief says his investigators are meeting resistance because witnesses are afraid to talk. School officials should implore witnesses to come forth.
Olsen says the ordeal has made him question whether to continue coaching. With the lesson he is teaching his players here, we question it, too. He should bench the players.
Because if he doesn’t, any championship banner Wayne Hills might hang will be stained with blood.

Friday, November 18, 2011

Claim Permitted Against Employer For Concealment of Chemical Dangers

A Federal Court permitted a claim a claim by the estate of a former worker to advance against an his employer despite the exclusivity bar of the workers compensation act. The employer had not warned the employee of the potential deadly side effects of pesticides.


In satisfying the two prong (conduct and context) NJ test for an intentional tort against an employer, the employee's estate set forth that the employer had intentionally and fraudulently concealed information of the hazardous nature of the chemicals and substances that the employee worked with as an exterminator.


The employee, who applied pesticides for 11 years, was not furnished with adequate safety equipment and was not provided with warning materials available to the employer.


The court held that employer's conduct was substantially certain to cause injury or death. The estate filed a certification substantiating the events surrounding the exposure and death; material Safety Data Sheets; and expert reports. Where the conduct of the employer is actively misleading and illness and death were substantially certain to occur the employ can be held liable.


Where the conduct of the employer in not protecting the employee is more than a fact of industrial life and is "plainly beyond anything the Legislature intended the Workers' Compensation Act to immune," the compensation act is not an exclusive remedy against the employer.


The Court held that the employer "understood the hazardous nature of the chemicals but failed to provide the decedent with the equipment necessary to ensure his safety. ".... the employer turned a "blind eye to the risks inherent chemical in the use of the chemicals" and went as far as hiding those risks so that the employee was not aware of their existence. "Concealment is hardly an expected fact of life in industrial
employment."

Click Here For Complete Decision: Blackshear v. Syngenta Crop Protection, Inc., Civ. Action No. 10-3585 (KSH) (USDCT - NJ 2011)


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 occupational accidents and illnesses.