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| (Photo credit: Wikipedia) |
Click here to read "Facebook’s New “Organ Donor” Feature: Many Applaud It, but Some Raise Possible Concerns About Protecting Private Health Information"
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Monday, May 7, 2012
Facebook, Organ Donations and Medical Privacy of Workers' Compensation
Click here to read "Facebook’s New “Organ Donor” Feature: Many Applaud It, but Some Raise Possible Concerns About Protecting Private Health Information"
Friday, May 4, 2012
Federal Court Rules That Bankruptcy Court May Transfer Insurance Assets to Trust
The Third Circuit Court of Appeals has ruled that a Bankruptcy Court is permitted to transfer insurance assets to a trust despite policy prohibitions.
"Federal–Mogul Global and its affiliates filed for Chapter 11 bankruptcy and sought to resolve asbestos-related liability through the creation of a personal-injury trust under 11 U.S.C. § 524(g). As part of its reorganization plan, it sought to transfer rights under insurance liability policies to the trust. Appellants Insurers had provided liability policies to the debtors prior to bankruptcy and objected that the transfer violated the policies' anti-assignment provisions. Federal–Mogul contended that 11 U.S.C. § 1123(a)(5)(B) preempts those provisions, and the bankruptcy and district courts agreed. We will affirm."
"In sum, section 524 trusts are the only national statutory scheme extant to resolve asbestos litigation through a quasi-administrative process. In function, the trusts are similar to workers' compensation or other administrative remedies that employ valuation grids to compensate injuries, subject to individualized and judicial review. Unlike those schemes, the trusts place the authority to adjudicate claims in private rather than public hands, a difference that has at times given us and other observers pause, since it endows potentially interested parties with considerable authority."
In re Federal-Mogul Global
--- F.3d ----, 2012 WL 1511773
C.A.3 (Del.),2012.
May 01, 2012
"Federal–Mogul Global and its affiliates filed for Chapter 11 bankruptcy and sought to resolve asbestos-related liability through the creation of a personal-injury trust under 11 U.S.C. § 524(g). As part of its reorganization plan, it sought to transfer rights under insurance liability policies to the trust. Appellants Insurers had provided liability policies to the debtors prior to bankruptcy and objected that the transfer violated the policies' anti-assignment provisions. Federal–Mogul contended that 11 U.S.C. § 1123(a)(5)(B) preempts those provisions, and the bankruptcy and district courts agreed. We will affirm."
"In sum, section 524 trusts are the only national statutory scheme extant to resolve asbestos litigation through a quasi-administrative process. In function, the trusts are similar to workers' compensation or other administrative remedies that employ valuation grids to compensate injuries, subject to individualized and judicial review. Unlike those schemes, the trusts place the authority to adjudicate claims in private rather than public hands, a difference that has at times given us and other observers pause, since it endows potentially interested parties with considerable authority."
In re Federal-Mogul Global
--- F.3d ----, 2012 WL 1511773
C.A.3 (Del.),2012.
May 01, 2012
Sidetracked By Drugs
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| New York Mayor, Michael R. Bloomberg. (Photo credit: Wikipedia) |
The focus of major employer and insurance initiatives of so-called reform legislation in multiple jurisdictions has been to reduce the delivery of prescriptive pain relief. Actually, that is an enforcement issue only that globally exists in the health care industry. New York's Mayor Michael Bloomberg, is working diligently to identify and database the few prescribers and physicians involved. A national effort modeled after the New York process would go a long way to curtain excessive and unorthodox prescriptions.
To use the prescription drug abuse issue to attack workers' compensation generally is merely sidetracking the real problem with the medical delivery system which is the global denial of compensability of workers' compensation claims by employers and insurance carriers merely to delay and avoid payment of medical benefits.
The recent decision in Federal Court recognizing RICO violations by an insurance carrier, the employer medical expert, and the employer itself, puts the real focus on the problem. That decision demonstrates the need to get the workers' compensation train back on the tracks and redirect the system so that it pays benefits to injured workers in an efficient and timely basis.
Tuesday, May 1, 2012
US Department of Labor recovers $4.83 million in back wages, damages for more than 4,500 Wal-Mart workers
Misapplied exemption resulted in pay violations; nearly $464,000 assessed in penalties
Wal-Mart Stores Inc., headquartered in Bentonville, Ark., has agreed to pay $4,828,442 in back wages and damages to more than 4,500 employees nationwide following an investigation by the U.S. Department of Labor's Wage and Hour Division that found violations of the federal Fair Labor Standards Act's overtime provisions. Additionally, Wal-Mart will pay $463,815 in civil money penalties.
The violations affected current and former vision center managers and asset protection coordinators at Wal-Mart Discount Stores, Wal-Mart Supercenters, Neighborhood Markets and Sam's Club warehouses. Wal-Mart failed to compensate these employees with overtime pay, considering them to be exempt from the FLSA's overtime requirements. The Labor Department's investigation found that the employees are nonexempt and consequently due overtime pay for any hours worked beyond 40 in a week.
"Misclassification of employees as exempt from FLSA coverage is a costly problem with adverse consequences for employees and corporations," said Secretary of Labor Hilda L. Solis. "Let this be a signal to other companies that when violations are found, the Labor Department will take appropriate action to ensure that workers receive the wages they have earned."
Under the terms of the settlement, Wal-Mart has agreed to pay all back wages the department determined are owed for the violations plus an equal amount in liquidated damages to the employees. The FLSA provides that employers who violate the law are, as a general rule, liable to employees for back wages and an equal amount in liquidated damages. The civil money penalties assessed stem from the repeat nature of the violations. Wal-Mart, which operates more than 3,900 establishments in the United States, corrected its classification practices for these workers in 2007, and negotiation over the back pay issues has been ongoing since that time. A third-party administrator will disburse the payments to the affected employees.
"Our department has been working with Wal-Mart for a long time to reach this agreement," said Nancy J. Leppink, deputy administrator of the Wage and Hour Division. "I am very pleased that staff in our Southwest region persevered, ensured these employees will be paid the back wages they are owed and brought this case to conclusion. Thanks to this resolution, thousands of employees will see money put back into their pockets that should have been there all along. The damages and penalties assessed in this case should put other employers on notice that they cannot avoid their obligations to their employees by inappropriately classifying their workers as exempt."
The FLSA provides an exemption from both minimum wage and overtime pay requirements for individuals employed in bona fide executive, administrative, professional and outside sales positions, as well as certain computer employees. To qualify for exemption, employees generally must meet certain tests regarding their job duties and be paid on a salary basis at not less than $455 per week. Job titles do not determine exempt status. In order for an exemption to apply, an employee's specific job duties and salary must meet all the requirements of the department's regulations.
The FLSA requires that covered, nonexempt employees be paid at least the federal minimum wage of $7.25 for all hours worked, plus time and one-half their regular rates, including commissions, bonuses and incentive pay, for hours worked beyond 40 per week. Employers also are required to maintain accurate time and payroll records.
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Delay By Worker Does Not Give Rise To Legal Malpractice
A Court has held that if an injured worker fails to act in a timely fashion and retain counsel, the law firm ultimately retained cannot be held responsible for not filing a claim in a timely fashion. While a law firm has several responsibilities including: careful investigation of a claim, formulation of a legal strategy, filing of the appropriate papers, and maintenance of communication with a client, the firm cannot be held responsible for the delay incurred by the injured worker.
Millar v Del Sardo, et al., Docket No. A-4386-10T1 (NJ App Div 2012)
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Millar v Del Sardo, et al., Docket No. A-4386-10T1 (NJ App Div 2012)
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Monday, April 30, 2012
Privacy: Why Injured Workers Are Stalked With Junk Mail and Nuisance Calls
Data sharing is a major problem and its effect on injured workers is becoming more acute. When injured workers contact providers for "more information" or sign onto what appears as so called "helpful" websites, their information is gathered and disseminated to other vendors and they become targets for advertising.
As more and more people seek "help" on the Internet or in response to advertisements, the data that they provide is shared and sold in many instances. While the Obama Administration is seeking to remedy the situation through education, that might not be enough to limit on onslaught of junk mail and nuisance call solicitations.
Click here to read more: Following the Breadcrumbs on the Data-Sharing Trail (NY Times)
As more and more people seek "help" on the Internet or in response to advertisements, the data that they provide is shared and sold in many instances. While the Obama Administration is seeking to remedy the situation through education, that might not be enough to limit on onslaught of junk mail and nuisance call solicitations.
Click here to read more: Following the Breadcrumbs on the Data-Sharing Trail (NY Times)
"If you have ever felt inundated by such solicitations, by e-mail or by snail mail, you may have wondered what you did to deserve it."
Friday, April 27, 2012
Fatal Occupational Injuries and Workers’ Memorial Day
In 2010, a total of 4,690 workers died from injuries they suffered at work. That works out to one U.S. worker dying every 2 hours from a work-related injury.
The Bureau of Labor Statistics Census of Fatal Occupational Injuries (CFOI) program released its final data for the 2010 reference year on April 25, 2012—just 3 days before Workers’ Memorial Day. Recognized each year on April 28, Workers’ Memorial Day is a day to remember workers who were killed, injured, or made ill at work and to highlight the hazards in the workplace.
The Occupational Safety and Health Administration (OSHA), National Institute for Occupational Safety and Health (NIOSH), and other federal agencies use CFOI data to identify ways to prevent worker deaths and injuries.
This fact sheet provides an overview of fatal occupational injuries in the United States. For more data on fatal occupational injuries from CFOI, see the CFOI homepage. For information on nonfatal injuries and illnesses in the workplace, see the BLS Injuries, Illnesses, and Fatalities (IIF) page.
....on
On Workers' Memorial Day, let us not forget the additional 50,000-60,000 lives lost from occupational diseases every year in our country.
Pat
Patrice Woeppel, Ed.D.
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