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

Monday, December 5, 2011

US Labor Department, Colorado Department of Labor and Employment sign agreement to reduce misclassification of employees as independent contractors

Nancy J. Leppink, deputy administrator of the U.S. Department of Labor's Wage and Hour Division, and Ellen Golombek, executive director of the Colorado Department of Labor and Employment, signed a memorandum of understanding Dec. 5 regarding the improper classification of employees as independent contractors. Following the signing, Leppink and Golombek hosted a press teleconference during which they discussed how the U.S. Department of Labor and the Colorado Department of Labor and Employment will embark on new efforts, guided by this memorandum, to protect the rights of employees and level the playing field for responsible employers by reducing the practice conducted by some businesses of misclassifying employees. This partnership is the 11th of its kind for the U.S. Department of Labor.
"This memorandum of understanding helps us send a message: We're standing united to end the practice of misclassifying employees," said Leppink. "This is an important step toward making sure that the American dream is still available for employees and responsible employers alike."
"Misclassification costs everyone," said Golombek. "It destabilizes the business climate by creating an unlevel playing field and causing responsible businesses to suffer unfair competition. The efforts we will be launching with the U.S. Department of Labor will promote accountability that Colorado employers and employees will welcome."
Employee misclassification is a growing problem. In 2010, the Wage and Hour Division collected nearly $4 million in back wages for minimum wage and overtime violations under the Fair Labor Standards Act that resulted from employees being misclassified as independent contractors or otherwise not treated as employees.
Business models that attempt to change, obscure or eliminate the employment relationship are not inherently illegal, unless they are used to evade compliance with federal labor law. The misclassification of employees as something else, such as independent contractors, presents a serious problem, as these employees often are denied access to critical benefits and protections — such as family and medical leave, overtime compensation, minimum wage pay and Unemployment Insurance — to which they are entitled. In addition, misclassification can create economic pressure for law-abiding business owners, who often find it difficult to compete with those who are skirting the law.Employee misclassification also generates substantial losses for state Unemployment Insurance and workers' compensation funds.
Memorandums of understanding with state government agencies arose as part of the U.S. Department of Labor's Misclassification Initiative, which was launched under the auspices of Vice President Biden's Middle Class Task Force with the goal of preventing, detecting and remedying employee misclassification. Connecticut, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, Missouri, Montana, Utah and Washington have signed similar agreements. More information is available on the U.S. Department of Labor's misclassification Web page at http://www.dol.gov/misclassification.

NJ Bill Passes Assembly to Increase Awards for Hand and Feet Injuries

NJ Bill Passes Assembly to Increase Awards for Hand and Feet Injuries
The bill has been sent to Gov. Christie for signature.

NJ is one of the few state that does not follow the AMA Guidelines in determining disability. Disability is scheduled and based on complaints, functional loss and evaluation by the hearing official.


Identical Bill Number: S676    
Last Session Bill Number: S639   (1R) A1581 

     This bill increases the amount of workers' compensation paid in certain cases for the loss of a hand, or thumb and first and second fingers (on one hand) or four fingers (on one hand) or a foot, as follows:
     1.    If a loss of function of a hand is determined to be a 25% or more loss of use, the award of workers’ compensation shall be calculated based on a maximum of 300 weeks of compensation for a 100% loss of function; and
     2.    If a loss of function of a foot is determined to be a 25% or more loss of use, the award of workers’ compensation shall be calculated based on a maximum of 275 weeks of compensation for a 100% loss of function.
     Under current law, the maximum award for the loss of a hand is 245 weeks and the maximum award for the loss of a foot is 230 weeks.
Egan, Joseph V.   as Primary Sponsor
Evans, Elease   as Primary Sponsor
Wisniewski, John S.   as Primary Sponsor
Giblin, Thomas P.   as Primary Sponsor
Spencer, L. Grace   as Co-Sponsor
 
   

9/16/2010 Introduced, Referred to Assembly Labor Committee
11/28/2011 Reported out of Assembly Committee, 2nd Reading
12/5/2011 Substituted by S676

Statement - ALA 11/28/11 - 2 pages PDF Format    HTML Format 
Fiscal Estimate - 12/5/11; as introduced - 3 pages PDF Format    HTML Format 
Introduced - 9 pages PDF Format    HTML Format 

Committee Voting:
ALA  11/28/2011  -  r/favorably  -  Yes {6}  No {2}  Not Voting {0}  Abstains {1}  -  Roll Call

The legislation was previously approved by the NJ Senate.
Identical Bill Number: A3166    
Last Session Bill Number: S639   (1R) A1581 

Sarlo, Paul A.   as Primary Sponsor
Gill, Nia H., Esq.   as Primary Sponsor
Egan, Joseph V.   as Primary Sponsor
Evans, Elease   as Primary Sponsor
Wisniewski, John S.   as Primary Sponsor
Giblin, Thomas P.   as Primary Sponsor
Scutari, Nicholas P.   as Co-Sponsor
Spencer, L. Grace   as Co-Sponsor
 
   

1/12/2010 Introduced in the Senate, Referred to Senate Labor Committee
2/18/2010 Reported from Senate Committee, 2nd Reading
2/22/2010 Passed by the Senate (24-12)
2/25/2010 Received in the Assembly, Referred to Assembly Labor Committee
11/28/2011 Reported out of Assembly Committee, 2nd Reading
12/5/2011 Substituted for A3166
12/5/2011 Passed Assembly (Passed Both Houses) (59-15-4)

Introduced - 9 pages PDF Format    HTML Format 
Technical Review Of Prefiled Bill - 8 pages PDF Format    HTML Format 
Statement - SLA 2/18/10 - 1 pages PDF Format    HTML Format 
Fiscal Estimate - 3/1/10; as introduced - 2 pages PDF Format    HTML Format 
Statement - ALA 11/28/11 - 2 pages PDF Format    HTML Format 

Committee Voting:
SLA  2/18/2010  -  r/favorably  -  Yes {4}  No {2}  Not Voting {0}  Abstains {0}  -  Roll Call
ALA  11/28/2011  -  r/favorably  -  Yes {6}  No {2}  Not Voting {0}  Abstains {1}  -  Roll Call

Session Voting:
Sen.    2/22/2010  -  3RDG FINAL PASSAGE   -  Yes {24}  No {12}  Not Voting {4}    -  Roll Call

Workers Compensation on Drugs - Tenn Supreme Court Allows Fatal Case to Proceed

A major complaint of the failure of medicine is that sick people are sent to the pharmacy for pain relief without adequate evaluation instead of sent to the the physician's office for more costly medical treatment. The Tennessee Supreme Court has permitted a death claim to go forward against his employer where the employee died following an overdose of pain killers.

Click here to read Kilburn v Granite State (Tenn 2011)
".... the medical records show that on August 31, 2009, and November 2, 2009, Dr. Schwarz, the surgeon, found that Mr. Kilburn was plagued with lower extremity pain and lower back pain for which he recommended L4-S1 fusion surgery, but Employer denied treatment. " read more
...........

US Supreme Court Maybe Asked to Rule on CMS Issue: "The Doctrine of Equitable Allocation"

The 6th Circuit Court of Appeals has ruled that The Center for Medicare and Medicaid Services (CMS) is entitled 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.


I reported on this case last week:
The Doctrine of Equitable Allocation Not Applicable in a Medicare Secondary Payment Reimbursement Claim



A recent news report indicates that appeal maybe sought to the US Supreme Court.

Medicare payment ruling may hinder workers comp settlements

"A federal appeals court decision that allows Medicare to claim nearly half of a man's liability settlement could hinder insurers' ability to settle such claims and may be an issue that reaches the U.S. Supreme Court."





Friday, December 2, 2011

NJ Legislation Seeks To Increase Counsel Fees

Practicing workers' compensation law is difficult work, and not usually economically rewarding. Most lawyers who handle claimant's work have a passion to help people. In most, if not many cases, the time and effort that an attorney puts into the case usually just doesn't offset fee paid in the case.

Gone are the days when scores of cases were adjudicated on a daily basis in most jurisdictions. Many factors have caused the system to shift from high gear to what seems like reverse. The manufacturing workforce has dwindled, conditions have become safer, a good thing, and reforms to the system have thrown in hurtles that appear insurmountable to obtain benefits. The tightening of recovery procedures by collateral sources have changed the flow, from a tidal wave of dispositions, to a dribble through the funnel.

Fewer and fewer attorneys now participate in workers' compensation claims, even though other areas of the legal economy have gone into the tank. Those who are remaining are attempting to be even more selective in what representation they undertake. With limited assets to invest there needs to be a an economic certainty for recovery more than ever.

Legislation has been introduced in NJ to expand the recovery of counsel fees. The Senate Labor Committee will meet on Thursday, December 8, 2011 at 10:00 AM in Committee Room 6, First Floor, State House Annex, Trenton, New Jersey discuss a pending bill to increase the base for benefits. S2446 Concerns attorney fees for workers' compensation awards.

"This bill requires that in cases in which a workers’ compensation  petitioner has received compensation from an insurance company  prior to any judgment or award, the reasonable allowance for attorney fees will be based upon the sum of the amount of compensation already received by the petitioner, and the amount of the judgment or award in excess of the amount of compensation  already received by the petitioner. Currently, in cases in which a  petitioner has received compensation prior to a judgment or award, a reasonable attorney fee is based upon only that part of the judgment or award that is in excess of the amount of compensation already received by the petitioner."

Penalties for Insurance Companies Who Fail to Pay Enough for Medical Care

The quality of medical care for workers' compensation beneficiaries has always been a major issue. Injured workers just don't want to go to an employer selected physician.They want to go to a doctor who provides good quality medical care and one they have confidence in. It makes good medical sense. While one concept to adjust the issue is to compel insurance carriers to pay for outcome driven results. If the doctor cures you, then the doctor should be paid in full for the reasonable value of his or her services. If the opposite, well then maybe the doctor should get paid less.

Another approach, enacted by the federal government is to compel insurance carriers to pay a certain percentage of premiums collected for medical care, instead of paying large sums for administration expenses. That could be applied to workers' compensation carriers. Instead of paying 80% of the premium to fight the claim, workers' compensation insurance companies should be compelled to pay 80% to cure the medical condition.

Read more about this concept:
HHS Unveils Medical Loss Ratio Rule (Kaiser Health Breaking News)
"The Department of Health and Human Services today released its final medical loss ratio rule. According to an HHS press release, the rule will ensure that health insurance companies spend at least 80 percent of consumers' health insurance premiums on medical care rather than on income, overhead and marketing expenses. "If your insurance company doesn't spend enough of your premium dollars on medical care or quality improvement this year, they'll have to give you rebates next year," said CMS Acting Administrator Marilyn Tavenner, in the release . "This will bring costs down and give insurance companies the incentive to focus on what matters for patients – high quality health care."
...
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.

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