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

Wednesday, August 15, 2012

The Great California Trade Off 2012

Rumors spread like wildfire this week as alleged secret back-room dealing continued in an effort to reform the failing California workers compensation system, yet again. The great trade-off of 2012 appears to be a major move to control and limit medical delivery and disability benefits at all cost.

Of critical importance is the fact that as goes California so goes the nation. Historically, changes made in California will slowly advance across the country and become adopted as a national wave of reform.

What has been leaked to the media, and some stakeholders, by a coalition of Labor and Industry management representatives, is yet another bandaid attempt to to control medical delivery in an effort to reduce both treatment costs, and ultimately reduce the number of cases utilizing the system.

While on the books it looks great that injured workers may get a potential increase of $700 million in increased permanent disability benefits, the trade-off is the imposition of a stringently controlled, speeded-up, and rationed medical benefits.

For employers to truly benefit from a Workers' Compensation program that works, employees need to receive the best medical treatment available to cure and relieve their work related medical conditions, and an adequate program of disability payments.

The proposed reforms limit medical choice, limit medical protocols, take away disability modifiers and impose penalties for out of network medical care in the name of expediency.

The problems facing California are not unique to that state. The entire nation, both within the workers' compensation system, and without, are facing similar issues.

One would hope that California would set a high standard for the nation, such as it attempted to do with heightened requirements for automobile emission testing and safety. However, to eliminate treatment options available to injured workers merely for the purpose reducing costs is a fast track program that ignores the need to achieve the best medical result and provide adequate compensation to injured workers.

Tuesday, August 14, 2012

CMS Rules Out TENS Units for Low Back Pain

"TENS is not reasonable and necessary for the treatment of CLBP under section 1862(a)(1)(A) of the Social Security Act."

The Centers for Medicare and Medicaid (CMS) has issued a ruling that will impact on the payment of proceeds in Workers' Compensation Medicare Set Aside Agreements (WCMSA). CMS has ruled out the use of TENS (Transcutaneous Electrical Nerve Stimulation) units for the treatment of chronic low back pain.


"For those WC [workers' compensation]cases that were not settled prior to June 8, 2012, and where the  WCMSAs proposal includes funding for TENS for CLBP [chronic low back pain] as part of the WCMSA, CMS  will re-review the cases and remove pricing for TENS for CLBP. (Regional Offices shall  obtain from submitters requests for a case re-review, along with a signed statement  indicating a settlement had not occurred prior to June 8, 2012.)"

Case law throughout the country has been divided on whether TENS units should be authorized to cure and relieve low back pain. 

Click here to read: Decision Memo for Transcutaneous Electrical Nerve Stimulation for Chronic Low Back Pain (CAG-00429N)

Click here to read: Impact of the Removal of coverage of Transcutaneous Electrical Nerve 
Stimulation (TENS) Units for Chronic Low Back Pain (CLBP) on Workers’ Compensation Medicare Set-Aide Arrangement (WCMSA) proposals – INFORMATION

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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 occupational accidents and illnesses.

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Monday, August 13, 2012

Employer Not Permitted to Stop Temporary Disability Benefits When Social Security Disability Awarded

An employer cannot stop paying workers' compensation benefits merely because the injured worker was awarded Social Security Disability benefits. In fact, the premature termination of temporary disability benefits was adequate grounds for a NJ compensation court to levy fines and penalties upon the employer.

The NJ Court of Appeals affirmed the trial court ruling of Judge of Compensation George F. Geist who assessed a penalty upon the employer for defying an Order of the Court to pay workers' compensation temporary disability benefits.

The employer' attorney argued that the employer was permitted to unilaterally terminate temporary disability benefits since the Social Security Administration had awarded the the injured worker disability benefits. The employer asserted that by accepting the award from Social Security the claimant had removed himself from the workforce. No supporting law was offered to support that proposition and the compensation court awarded a 25% penalty and simple interest against the employer.

Ferguson v Trenton Board of Education (NJ App. Div. 20112)

Thursday, August 9, 2012

Cell Phone and Brain Malignancies: The Right to Know Radiation Act

English: Mobile phone evolution Русский: Эволю...
(Photo credit: Wikipedia)
As the controversy continues to rage over whether cell phone radiation can be linked to an increased risk of brain cancer, recently introduced legislation in the US Congress would offer the public more information to make educated choices over purchase and use of cell phones.

Congressman Dennis Kucinich (D-OH) has introduced H.R. 6358, the Cell Phone Right to Know Act, a bill to grant a consumer’s right-to-know by providing for warning labels on cell phones. It would also create a new national research program to study cell phones and health and require the Environmental Protection Agency to update the outdated Specific Absorption Rate (SAR). A federal appeals court in San Francisco is expected to consider a local right-to-know ordinance this week.

“Consumers have a right to know the radiation levels of cell phones and whether they are buying the phone with the lowest – or the highest – level of exposure to cell phone radiation. They also deserve to have up-to-date exposure standards that are put together by health professionals without conflicts of interest,” said Kucinich.

When Kucinich first called a hearing on the issue as Chair of the Domestic Policy Subcommittee on September 25, 2008, Dr. Ronald Herberman, then Director of the University of Pittsburgh Cancer Institute, testified to the Subcommittee, “I cannot tell this committee that cell phones are dangerous, but I certainly can't tell you they are safe.”

Last year, the World Health Organization finished its assessment of the evidence about the links between exposure to radiation from cell phones and health problems. They concluded that there was enough evidence of a link to classify it as “possibly carcinogenic to humans,” placing it in the same category as lead and mercury.

The long-awaited Interphone study, a major inquiry into the potential links between cell phone use and tumors, concluded that when taken as a whole, there was not a link. However, when the data was broken down, more risk was found and the picture became clearer. Those using their cell phones typically only 30 minutes per day or more were found to have a 40% increased risk of a type of brain tumor called glioma, when compared to someone who had not used a cell phone. If the phone is used mostly on one side of the head, the risk is 96% more than someone unexposed to cell phone radiation.

“It took decades for scientists to be able to say for sure that smoking caused cancer. During those decades, the false impression created by industry supporters was that there was no connection between smoking and cancer, a deception which cost many lives. While we wait for scientists to sort out the health effects of cell phone radiation, we must allow consumers to have enough information to choose a phone with less radiation,” said Kucinich. “As long as cell phone users may be at increased risk of cancer or reproductive problems, Americans must have the right to know the radiation levels of cell phones.”

The warning labels required by H.R. 6358 would show the RF radiation emissions from the phone, legal limits and health-based goals for safe exposure. According to the Federal Communications Commission (FCC) the SAR is “the amount of radio frequency energy absorbed by the body when using a mobile phone.” The current SAR sets a maximum level of radiation emission at 1.6 watts per kilogram. The current SAR does not take into account vulnerable populations like kids or pregnant women. It also assumes a person’s only exposure is from the phone in use, but with WiFi, “smart phones,” and Bluetooth technologies, exposure to only one wireless device is increasingly rare, especially in urban environments. A Government Accountability Office report on cell phones and health is expected to be released soon.

More articles about the issue of cell phone radiation
May 31, 2011
After years of review, the World Health Organization (WHO) has classified the radio frequencies utilized by cell phones as possibly carcinogenic to human thereby opening the door to potential wave of workers' compensation...
May 31, 2011
After years of review, the World Health Organization (WHO) has classified the radio frequencies utilized by cell phones as possibly carcinogenic to human thereby opening the door to potential wave of workers' compensation...
May 31, 2011
After years of review, the World Health Organization (WHO) has classified the radio frequencies utilized by cell phones as possibly carcinogenic to human thereby opening the door to potential wave of workers' compensation...

May 31, 2011
After years of review, the World Health Organization (WHO) has classified the radio frequencies utilized by cell phones as possibly carcinogenic to human thereby opening the door to potential wave of workers' compensation...
May 23, 2012
A recent survey reflects increase employer concern over cell phone use while driving. Such written policies may encourage courts to bar employees who engage in such activity from recovery under workers' compensation ...
Jul 07, 2011
National Cell Phone Ban Proposed by Congress. Cell phone abuse while driving has been proposed by Congresswoman Carolyn McCarthy (D-NY4). Distracted driving accidents are soaring and are now emerging as a major ...
Nov 29, 2011
The Federal Motor Carrier Safety Administration (FMCSA) proposes to restrict the use of hand-held mobile telephones, including hand-held cell phones, by drivers of commercial motor vehicles (CMVs) while operating in ...
Mar 27, 2012
Cell phone injuries have been linked medically by published studies. "The authors warn users of cell phones to look out for ear symptoms such as ear warmth, ear fullness, and ringing in the ears (tinnitus) as early warning ...

EPA to Demolish Contaminated Building at Toxic Superfund Site in Garfield, N.J

U.S. Environmental Protection Agency Regional Administrator Judith A. Enck was joined today by New Jersey Senator Frank R. Lautenberg, Senator Robert Menendez and Congressmember Bill Pascrell, Jr. as she announced that the EPA will safely demolish the E.C. Electroplating building at the Garfield Superfund site in Garfield, New Jersey. The building, located at 125 Clark Street, is contaminated with hexavalent chromium that is reaching the basements of some area residences and businesses through the ground water. Hexavalent chromium is extremely toxic, may cause cancer and can cause nervous system damage. The Regional Administrator and members of Congress were joined by Garfield Mayor Joseph Delaney, local officials and community members to review progress and discuss the ongoing Superfund cleanup at the former electroplating facility.

“The EPA has done a great deal of work since 2002 to reduce the health risks to the people who live and work in the area of Garfield affected by chromium contaminated ground water,” said EPA Regional Administrator Judith A. Enck. “Today we’re pleased to announce that we’re ready to take a step forward in the long-term cleanup of the Garfield Superfund site.”

Preliminary sampling shows that parts of the E.C. Electroplating building, its two basements and the soil located under the structure are contaminated with the chemical hexavalent chromium. The structure needs to be demolished in order to properly dispose of the contaminated sections of the building and to remove the contaminated soil underneath. The EPA tested the industrial materials left at the former E.C. Electroplating and will safely remove and properly disposed of them at licensed facilities.

The EPA is currently preparing the building for demolition by removing over 220 drums and cleaning the building surface. The agency will work closely with local officials to determine the best time to do the demolition and will hold a community meeting before demolition begins to inform area residents and building owners about the work. Strict procedures will be followed to control dust during the demolition, with special attention paid to the Garfield No.7 School and to a daycare center located near the site. The EPA will establish an air monitoring network to ensure that contamination is contained during the demolition work. The air monitoring plan will be shared with the public before work begins. The demolition work is presently scheduled to take place in October.

Ground water underlying the site is also contaminated with the hexavalent chromium and is seeping into basements in some Garfield homes and businesses. Drinking water for Garfield comes from the Garfield Municipal Water Supply, which is not contaminated and is routinely tested to ensure that it meets federal and state drinking water standards, which it does.

The Garfield Superfund site, which is located in a mixed commercial and residential neighborhood, is bordered by Van Winkle Avenue to the north, Monroe Street to the south, Sherman Place to the east, and the Passaic River to the West. Historically, industrial facilities in Garfield were located in close proximity to residential areas, including a tannery, a chemical plant and two electroplating companies. Some of these facilities used hexavalent chromium in their processes and the nearby ground water is now contaminated with the chemical. In June 1993, water containing hexavalent chromium and dried crystals of chromium was discovered in the basement of Garfield Fire House #3. In 2002, at the request of the New Jersey Department of Environmental Protection, the EPA began its investigation of ground water contamination in Garfield.

In September 2010, the federal Agency for Toxic Substances and Disease Registry issued a health advisory recommending that the EPA continue to take steps to minimize people’s exposure to the contamination and that it expedite a long-term cleanup. The site was added to the federal Superfund list in 2011.

The EPA used its Superfund’s emergency response authority in Garfield to address the immediate health threats in properties where ground water had carried hexavalent chromium into basements. Over 500 homes and businesses have been inspected for hexavalent chromium contamination and over 2,000 samples have been analyzed. The EPA has found about 15 properties that require cleanups to protect occupants from unacceptable levels of chromium that have seeped into their basements. The EPA has an ongoing inspection and assessment program to assist any concerned residents within the impacted area.

The EPA has established a network of ground water monitoring wells to determine the extent of chromium contamination in the ground water. This in-depth investigation will allow the EPA to determine how best to clean up chromium contaminated ground water.

Superfund is the federal cleanup program established by Congress in 1980 to investigate and clean up the country’s most hazardous waste sites. When sites are placed on the Superfund list, the EPA looks for parties responsible for the pollution and requires them to pay for the cleanups. In this instance, the EPA has identified E.C. Electroplating as a company that may be liable for the cleanup. The company, however, alleges it lacks funds to conduct any cleanup. To date, the EPA’s cleanup costs for this site exceed four* *million dollars. The EPA is continuing its search for other parties responsible for the contamination at the site.

For more information about the Garfield site, visit: http://www.epa.gov/region2/superfund/removal/garfield.

Follow EPA Region 2 on Twitter at http://www.twitter.com/eparegion2 and visit our Facebook page, http://www.facebook.com/eparegion2.

Articles About Chromium
The Time for a Hexavalent Chromium Safety Standard Is Now
Nov 23, 2010
EPA announced the release of the Toxicological Review of Hexavalent Chromium in the September 30, 2010, Federal Register. This draft assessment is provided for public viewing and comment. Public comments received on ...
Jun 09, 2009
Soldiers Exposed to Chromium in Iraq File Suit. Soldiers who have been exposed to hexavalent chromium, a carcinogen, have filed suit against a government contractor. The present and former soldiers have brought a claims ...
Oct 03, 2009
Chromium exposure has been associated with lung cancer. Breathing high levels of hexavalent chromium can irritate or damage the nose, throat, and lungs. Irritation or damage to the eyes and skin can occur if hexavalent ...
Jan 14, 2010
"Hexavalent chromium is a powerful lung carcinogen and exposure to this chemical must be minimized," said Assistant Secretary of Labor for OSHA David Michaels. "OSHA provides guidance on its standards to ensure that ...

Wednesday, August 8, 2012

Citizen Groups Urgently Request Court to Stop Body Scans by TSA

English: Poster prepared by the Transportation...
English: Poster prepared by the Transportation Security Administration summarizing the operation of the Millimeter Wave (MMW) whole body imaging scanner. (Photo credit: Wikipedia)
Whole Body Imaging (WBI) at US airports by The Transportation Safety Administration (TSA) has raised urgent health concerns over causing increased rates of cancer among airport workers and passengers. Parties have requested the US Court of Appeals for the District of Columbia to address the Court's mandate of one year ago that TSA propose formal rule making authority to address the health issues raised before the continued use of the TSA WBI scanners that are used in US airports.

More articles about scanner and health concerns
Jan 04, 2012
How much radiation is just too much and an additional risk for cancer is the question now posed by scientists concerned about TSA scanners. The scanners emit radiation in one form or another that is where the issues gets ...
Nov 21, 2011
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 ...
Mar 22, 2011
At a US Senate hearing last week, Senator Susan Collins (R-Maine) revealed that TSA had made reporting errors in the statistics it has compiled in defense of the use of body scanners. "That is completely unacceptable when ...

Tuesday, August 7, 2012

Today Marks the 34th Anniversary of the Love Canal Tragedy

Superfund Sites and located throughout the United States. Today marks the 34th anniversary of the "Love Canal Tragedy." Workers have been exposed to toxic substances and many have had little recourse in finding medical treatment and preventative care since most occupational disease claims are routinely denied by employers and workers' compensation insurance companies. Now delays are further hampering the cleanups.

Read more about Superfund sites


Jul 27, 2012
The U.S. Environmental Protection Agency is proposing a plan to clean up contaminated ground water beneath the White Chemical Corporation Superfund site in Newark, New Jersey. The ground water was contaminated...
Jun 09, 2012
The U.S. Environmental Protection Agency has proposed a plan to clean up contaminated ground water at the Evor Phillips Leasing Company Superfund site. The six-acre vacant site is in an industrial area of Old Bridge ...
Jun 21, 2012
Superfund is the federal cleanup program established in 1980 to investigate and clean up the country's most hazardous waste sites. The Superfund program operates on the principle that polluters should pay for the cleanups,...
Aug 20, 2010
The U.S. Environmental Protection Agency (EPA) has successfully completed cleanup work at the Asbestos Dump Superfund site in Long Hill Township and Harding Township, Morris County, New Jersey and has deleted the ...


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