Too Old to Get Workers Compensation

Washington's Governor, Chris Gregorine has proposed legislation to retire older totally disabled workers from the state's workers' compensation system. About 8% of the state's totally disabled workers would have the option of receiving a lump sum benefit to opt out of the system of periodic benefits. The senior beneficiaries amount to 85% of the present systems' cost and amount to only 8% of the total beneficiaries.


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Congress Told Workers Compensation is a Deteriorating System

The former chair of the 1972 National Commission on Workers' Compensation told Congress that the present system is deteriorating and a new course of action is warranted. Profession Emeritis John F. Burton, Jr., last Wednesday testified before The Subcommittee on Workforce Protections of the Congressional Committee on Education and Labor.

Professor Burton told Congress that during the last 20 years he has observed the "...deterioration in adequacy and equity of state workers' compensation programs..." He reported that "the decline in workers' compensation cash benefits in the states during the 1990's is explained by ....changes in workers' compensation provisions and practice than  is explained by the drop in workplace injuries and disease during the decade."

Burton proposed that Congress consider new legislation to prohibit costs shifting from workers' compensation to Social Security Disability Insurance (SSDI). He advised the Subcommittee that cost shifting was continuing because 15 states were permitted to continue "reverse offset" provisions, the Social Security Administration (SSA) was paying benefits to workers who were not totally disabled under workers compensation acts, and a larger number injured workers were not qualifying for workers' compensation benefits.


As Professor points out, the aging workforce further complicates the burden placed upon the nation's Medicare system. With the erosion of the doctrine that workers' compensation takes the worker as it finds him or her, medical treatment for pre-existing conditions will be a growing cost for Medicare and a cost-shift from the workers' compensation system. The NY Times reported that, "Nearly one-fourth of Medicare beneficiaries have five or more chronic conditions. They account for two-thirds of the program’s spending."

A "reaffirmation" of "Federal standards" as enunciated in the 1972 National Commission report were recommended by Burton.  Additionally, he called upon Congress to enact legislation requiring employers and/or their insurance carriers reimburse Social Security for permanent disability cash benefits paid by Social Security for disability flowing from a work related event or disability.

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Congresswoman Woolsey Calls For A GAO Study of Workers Compensation-Cites Insurance Company Cost Shifting

Below are the prepared remarks of U.S. Rep. Lynn Woolsey (D-CA), chairwoman of the Workforce Protections Subcommittee, for a subcommittee hearing on “Developments in State Workers’ Compensation Systems” 11.17.2010

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Thank you all for attending this hearing on “Developments in State Workers’ Compensation Systems.” Here in Congress, we don’t examine these state compensation programs very often because they are generally under the purview of state legislatures.

However, there have been some disturbing national trends that may compel a comprehensive reexamination of these state programs and their impact on injured workers.

As most of you are aware, workers’ compensation statutes were passed beginning in the early  20th century to establish a no fault system for providing efficient redress for injured workers.

Workers’ compensation was called the ‘grand bargain.’

Workers waived their rights to bring individual suits against their employers and in return receive compensation for work-related injuries regardless of fault.

Every state and the District of Columbia have workers’ compensation programs in place.

Most employers purchase private workers compensation policies, but others self-insure or purchase insurance from a state managed compensation fund.

Beginning in the 1990s, changes in state workers’ compensation laws--brought about by the lobbying efforts of employers and insurance companies---have resulted in stricter eligibility requirements and the reduction in both the amount and duration of benefits—particularly for those workers with permanent partial disabilities.

Unfortunately this ‘grand bargain’ of the 20th century is not so ‘grand’ any more, especially for injured workers.

In addition, there are two other recent developments that merit our attention

The first has to do with the American Medical Association’s (AMA) Guides to Permanent

Impairment.

And the second concerns a cost-shifting trend away from state workers compensation programs, where the employer is responsible for an employee’s injury, to the federal government’s medical and disability programs.

The AMA Guides have been in effect since 1971 and are now in widespread use.

Some states even require workers’ compensation programs to use the latest edition of the Guides.

These Guides were originally designed to be used by physicians in making a scientific assessment of a worker’s level of impairment---or loss of function---due to a work-related injury.

The determination of whether a worker is permanently disabled and entitled to workers compensation is based upon his or her impairment rating, which is then applied to the specific case of a given worker.

For example, a worker who loses a hand may not suffer permanent disability if he or she is a teacher, but that same worker would be permanently disabled if he or she works in construction.

In 2007, the AMA published the 6th edition of the Guides, and witnesses today will describe how this new edition has dramatically reduced impairment ratings for many types of conditions, without apparent medical evidence, and transparency.

The 6th edition has become so controversial that many states, including Iowa, Kentucky and Vermont have decided not to adopt them.

It also appears that the 6th edition was developed in near secrecy, without the transparency and consensus which should necessarily accompany the development of standards that will have widespread use by state governments.

In addition, it appears that the physicians who developed this latest edition may have ties to insurance companies, and are making a profit training doctors on the use of the 6th edition, which is complicated and very difficult to apply.

The National Technology Transfer Advancement Act of 1996 sets forth minimum criteria for the development of voluntary consensus standards: openness; balance of interests; due process protections; and consensus.

The process used for developing the 6th edition appears to significantly deviate from these standards and is a focus of testimony before us today.

Workers who are wholly dependent on this ‘grand bargain’ when they are injured on the job, are the ones paying the price.

The subcommittee invited the AMA to testify today, but unfortunately, it declined.

Another troubling policy issue is that as eligibility for workers’ compensation benefits have become more restrictive, there has been a cost shift to Medicare and Social Security Disability (SSDI), placing an additional burden on the taxpayer.

In addition, costs are being shifted to private health insurance that should be borne by workers’ compensation policies and employers.

This is particularly worrisome, especially during a time of record deficits.

Chairman Miller and I believe that this cost-shifting trend warrants further study.

Therefore, we will be asking the Government Accountability Office (GAO) to do a study and issue recommendations.

The testimony today will illuminate these problems facing injured workers and taxpayers, and I look forward to hearing from our witnesses.

Related articles

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$500,000 Verdict Awarded Police Officer Terminated Due to Disability

The Record reports that a police officer, who was unable to work because of blood thinner therapy flowing from a work related injury and a pregnancy, was awarded $500,000 because the employer terminated her because of the disability.

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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 accidents & exposures at work.

Medical Criteria Swamp for WTC First Responders

The threshold question in determining compensability in any program is how to construct a system that will provide immediate and expeditious delivery. The sick first responders to the horrific attack of September 11, 2001, are still struggling to obtain benefits.

The recent plan offered by the WTC Captive Insurance Company, and rejected by the Court, sets forth elaborate eligibility and disability criteria.  The 96 page agreement, and accompanying exhibits, outlining the settlement process provides insight into struggle.

Drawing from far and wide, the proposed agreement tries to cover all potential diseases and schedule them.

"To constitute a Qualifying Injury, an alleged injury must satisfy all three of the following components of the Medical Proof Criteria: (i) it must be one of the “Qualifying Injuries” listed expressly in the tables immediately below; (ii) it must meet the “Diagnostic Criteria” applicable to the Disease Group in which the Qualifying Injury is listed in the tables immediately below; and (iii) it must satisfy the “Impairment Criteria” for the Disease Group in which the Qualifying Injury is listed in the tables..."

The sources include:

"European Respiratory Society/American Thoracic Society COPD Guidelines – 2005; ATS/ERS Criteria for Diagnosis of Idiopathic Pulmonary Disease in Absence of  Surgical Lung Biopsy; Global Initiative for Asthma/World Health Organization; American College of Chest Physicians Consensus Statement; British Society for Allergy and Clinical Immunology guidelines for the  management of rhinosinusitis and nasal polyposis. Scadding GK; Durham SR; Mirakian R;  Jones NS; Drake-Lee AB; Ryan D; Dixon TA; Huber PA; Nasser SM - Clin Exp Allergy.  2008 Feb; 38(2):260-75. Epub 2007 Dec 20.

The proposed system is yet another attempt to quantify disability and adds another set of elaborate medical criteria and complexity to the insurance company playbook. The loquaciousness of the authors of the proposal is mind boggling. This level of sophistication can only compound the delivery of benefits. This proposal is yet another example of the compelling need for one universal national program that can provide benefits to injured workers without the need of hip  high boots to navigate the swamp.

Click here to read more about 911 WTC claims.

Hot Coffee- Is Justice Being Served

Everyone has heard of the case against McDonald for spilled hot coffee that resulted in a large verdict.  Susan Saladoff has undertaken an effort to undo the effects of the "brainwashing" campaign of the insurance industry designed to demonstrate  the triviality of the claim.

Last week I had the opportunity to watch a screening the movie and the actual and horrendous bodily damage caused by the scalding hot coffee. The movie depicted the callouss behavior of McDonald's in its disregard of the on going complaints concerning its beverage.

Ms. Saladoff has undertaken a mission to right a wrong and reverse the effort of the insurance industry to limit all types of lawsuits under the guise of reform. The movie in its final stages of production. The producers are making an incredible effort to serve justice.

Click here to read more about "The Starbucks Doctrine" and workers' compensation.

Commercial Driver Fatigue Questioned as a Pre-exisiting Condition?

Falling asleep at the wheel is a common cause of accidents for commercial drivers. The Federal Motor Carrier Safety Administration  (FMCSA) of the U.S. Department of Transportation is exploring  the issue that such conditions as excessive  daytime sleepiness should be evaluated by medical examination in an effort to predict future probabilities of having a bad day at the wheel and potential crashes at the wheel because of sleepiness. 

If a sleep disorder can be identified and documented, that condition maybe determined to be a pre-exisiting medical condition. Apart from the third party liability that could be imposed upon an employer for identification and non-identification of the medical condition, the issue of an allocation for a pre-exisitng medical conditions (prior-functional credit) may exist in a workers' compensation claim as well as an event that can be attributed to a risk in the course of employment.

The term "prior functional credit" refers to the credit given to the employer, or to the employer's insurance carrier, for the loss of function of any part of the body which an employee had sustained before a subsequent injury or occupational disease for which the employer in question is responsible.  Over the years there have been dramatic changes enacted by the Legislature accompanied by varying interpretations by the courts with regard to the law addressing credits to be afforded to the employer for both non-work and work connected injuries.

The employer no longer takes an employee as they find them. Belth v. Anthony Ferrante & Son, Inc., 47 N.J. 38, 219 A.2d 168 (1966). An individual suffered from asbestosis and bronchitis, and medical testimony was presented by the petitioner's expert apportioning a percentage of the functional loss to cigarette smoking.  The employer was awarded a credit for the previous loss of function which could be attributed to the employee's cigarette smoking, since the legislatively enacted amendments permitted the employer to receive credit for an employee's prior loss of function involving the same body part affected by the compensable occupational disease regardless of whether compensation was received for the earlier injury.  In effect, the employer no longer takes employees as it finds them.  The court stated that the credit to employers for previous loss of function, whether work-related or not, was an incentive to encourage employers to hire workers with pre-existing disabilities.  Field v. Johns-Manville Sales Corp., 209 N.J.Super. 528, 507 A.2d 1209 (App.Div.1986), certif. denied 105 N.J. 531, 523 A.2d 172 (1986); Dafler v. Raymark Industries, Inc., 259 N.J.Super. 17, 611 A.2d 136 (App.Div.1992).

Additional questions may arise as to whether the risk is actually associated with the employment. The Court may also evaluate the risk associated with the employment task in evaluating compensability.  Where the risk was not enhanced by the business interests of the employer, and there was no exercise of control by the employer over the employee, the event is usually deemed to be non-compensable. If the risk in indeed removed from the course of employment then the employer may be denied the exclusivity bar and liability on the employer could be imposed in a civil action. 

The FMCSA commented, "....measuring an individual’s sleepiness today is not going to predict how sleepy the person will be 6 weeks from now. Several factors influence sleepiness, including prior sleep time, medications, and time of day, so it is a very difficult thing to assess."


Click here to read more about "pre-exisiitng conditions" and workers' compensation.

Workers Compensation Countable as Income Despite Special Needs Trust

An injured worker was denied food stamps in NJ because money from a workers' compensation  award was countable as income despite the existence of a special needs trust.

"A special needs trust that effectively exempts assets or income from inclusion in Medicaid eligibility calculation can be established for the benefit of an individual deemed disabled pursuant to 42 U.S.C.A. § 1382c(a)(3). 42 U.S.C.A. § 1396p(d)(4)(A). The disability determination, however, can only be made by the Social Security Administration or the state disability review team, and only based on the definition set forth in the federal statute. See N.J.A.C. 10:71-3.10 to -3.12(a). Hence, the workers' compensation court judgment as to petitioner's disability, issued by a judge in the workers' compensation context, is not dispositive of whether she is "disabled" pursuant to the federal definition. See N.J.A.C. 10:71-3.10. As the Director of DMHS stated, unless and until petitioner is found to be disabled by the Social Security Administration or the state disability review team, she is not entitled to protect her assets through the use of a special needs trust. See Determining Disability and Blindness, 20 C.F.R. § 404.1504 (2009); Determining Disability and Blindness, 20 C.F.R. § 416.904 (2009)."

J.C. v. Division of Medical Assistance and Health Services, et al., Docket No.: a5632-07 Decided: 2010-02-08 
http://lawlibrary.rutgers.edu/courts/appellate/a5632-07.opn.html


Note: N.J.A.C. 10:71-3.10 Disability and Blindness Factors
For purposes of determining medical eligibility for the Medicaid Only program, the disability and blindness standards shall be the same as for the Supplemental Security Income program under Title XVI of the Social Security Act, as amended by Public Law 92-603. 42 N.J. Reg. No. 4.

To read more about workers' compensation law click here.

Revised NJ TDB Application Published

The NJ Department of Labor and Industry has released a revised application for temporary disability benefits that is both HIPPA (Federal Health Information Portability & Accountability Act) compliant and computer friendly. The application can now be downloaded in PDF format and the completed form may be submitted via fax. The medical certification has been expanded to obtain additional information concerning the claimant's medical condition.

An application for NJ TDB must be filed within 30 days of the beginning of disability. Claimants are now advised that Social Security Disability benefits may be available should the disabling medical condition last more than 1 year.

Click here to read more about temporary disability benefits.

Montana Cuts Off Benefits For Retirees

The Montana Supreme Court reiterated that the right to receive Workers' Compensation benefits is not a fundamental right and it could be terminated at retirement age.  The Court rationalized that the receipt of permanent partial disability [PPD] benefits was conditioned upon the ability to return to work. Therefore, an individual should not receive workers' compensation partial disability benefits if the worker retires due to age.


"PTD [permanent partial disability] benefits are not meant to supplement a claimant’s wages rather they are intended to assist the worker who will never be able to return to work."

"It is well established that the control of workers’ compensation costs is a legitimate government interest that may constitutionally be pursued by the legislature."

Satterlee v. Lumberman's Mutual Casualty Company, et al. AL 08-03037

Court Holds Traumatic Claims Subject to Apportionment

The NJ Appellate Division ruled that apportionment of responsibility was required in a traumatic claim. They rationalized that in a traumatic, claim where various employments contributed in a material degree to the ultimate disability, apportionment was mandated.

The Court reasoned that traumatic claims did not involve the existence of a disease that was undisclosed and unknown over a long period of time and a retrospective analysis could establish a "triggering date" to fix an onset date.

Matters requiring implementation of the doctrine of last injurious rule involved claims where there was "an insidious etiology" and manifestation occurred over a protracted period of time.

PETER T. NOLAN - v. KLEINKNECHT ELECTRIC CO., INC. Decided April 17, 2009 Unpublished 2009 WL 1011174 (NJ App. Div 2009)

Petition Filed to Re-Consider California AMA Guide Decision

The California Workers' Compensation Appeals Board (CAWCAB) has decided to review its prior decision of February 27, 2009, challenging the AMA Guidelines. The CAWCAB has issued an Order granting reconsideration and inviting mucus briefs to be filed.

"We also will give any interested person or entity until 5pm on Friday, May 1, 2009 to file an amicus curiae brief and to serve that brief on all counsel in both the Almaraz and Guzman cases."

Alvaraz v. Environmental Recovery Services, et al.

Administration in California Requests Judges to Vacate Their Decision Against AMA Guides

California Administration officials have written to the California Appellate Judges and requested that they vacate their decision setting aside the AMA Guides.  The letter, an unprecedented action, has not yet received a response from the California Workers' Compensation Appellate Court.

However, Todd McFarren, a California attorney and President of the California Applicants Attorneys Association, has remarked that the the Judges, will “...still be handcuffed by the administration’s inadequate permanent disability schedule.”  “The administration has not addressed the fundamental flaws in its disability rating schedule. We’ve been waiting more than a year for the governor to approve his own administration’s proposal to restore a small percentage of the permanent disability compensation he cut by 50% to 70%.”

AMA Guides Tossed Aside in California

The California Workers Compensation Appeals Board has ruled that the 2005 version of the AMA Guides to Impairment need not be followed. The Court ruled:

(1) the AMA Guides portion of the 2005 Schedule is rebuttable;
(2) the AMA Guides portion of the 2005 Schedule is rebutted by showing that an impairment rating based on the AMA Guides would result in a permanent disability award that would be inequitable, disproportionate, and not a fair and accurate measure of the employee’s permanent disability; and
(3) when an impairment rating based on the AMA Guides has been rebutted, the WCAB may make an impairment determination that considers medical opinions that are not based or are only partially based on the AMA Guides.

Almarz v Environmental Recovery, et al
Case No. ADJ1078163 (BAK 0145426) Decided Feb. 3, 2009

The Odd Lot Doctrine Springs New Life

In 1921 Justice Cardoza while sitting on the Court of Appeals of the State of New York introduced The Odd Lot Doctrine into workers’ Compensation. The Doctrine has been brought to life again in New Jersey.

The “Odd Lot Doctrine” had its genesis in England where a claimant's search for work was fruitless since his physical defects in combination with his lack of skills made him an unmarketable unit. Various States, including New Jersey, have embodied the concept statutorily. In New Jersey where at least 75% of total disability can be attributed to medical reasons, then the other personal handicaps may be considered in combination with the medical conditions in reaching a determination of unemployability.

The Appellate Division remanded a total disability award for failure of the petitioner to provide adequate notice of the assertion of the Odd Lot Doctrine. 06T14598-06T1 JOYCE R. RAMBOUGH, Respondent, v. C.V. HILL REFRIGERATION "Under the ["odd-lot"] doctrine, the worker is viewed in the [context] of the competitive market place, where his inability to sell his labor may be traceable to his [personal] background superimposed upon his physical disability." Id. at 540; see Barbato v. Alsan Masonry, 64 N.J. 514, 526-28 (1974)

See also: "The pretrial memorandum should specify that total permanent disability under the odd-lot doctrine is an issue in the claim so that the respondent can be prepared to meet it at the time of trial. In addition, the ability to perform limited service in one's own enterprise, or a family enterprise, may not of itself be sufficient to negate industrial employability for workers' compensation purposes; the question in such a case is the worker's ability to sell his services in a competitive job market. Germain v. Cool-Rite Corporation, 70 N.J. 1, 355 A.2d 642 (1976)." 38 NJ Practice Sec. 12.12

Opposition Continues to Swell Against Utilization of the AMA Guides 6th ed

Resistance continues to mount against adoption of the AMA Guides to Impairment 6th edition. Joining the growing chorus of opposition are John Burton, a leading expert in workers' compensation, and the Attorney General of Tennessee who issued an opinion against adoption of the 6th Edition.

Workers’ compensation expert, John Burton, at a presentation to the NY State Workers’ Compensation Board expressed his disfavor in adoption to the AMA Guides 6h edition to determine disability. He recommended that all 40 US State jurisdictions and Canada abandon the AMA Guides altogether.

Burton said, "My concern about the AMA guide ... is that it's simply not evidence-based. It's ignoring the evidence that's available to do it right," "I think the AMA has now shown it's incapable of doing it right and this thing ought to be referred to the Institute of Medicine to look at this issue and figure out how to do a decent rating system."

Additionally, the automatic adoption of the AMA Guides 6th Ed. is unconstitutional states Attorney General of the State of Tennessee. “While there is not any controlling authority in Tennessee on this issue, and while Tenn. Code Ann. § 50-6-102(2) is defensible, this provision is vulnerable to attack as an unconstitutional delegation of legislative authority in violation of Tenn. Const. art. II, § 3, because by making the “most recent” edition of the AMA Guides that is in effect on the date of the employee’s compensable injury the applicable edition, § 50-6-102(2) may be construed as incorporating future changes of the AMA Guides to Tennessee’s statutory scheme.”

As the debate continues concerning the adoption of the AMA Guides to Impairment 6th Ed. the issue continues to focus on whether the AMA Guides to Impairment should be utilized at all to determine disability in at all in a workers’ compensation claim.

Governmental Opposition Swells Against Implementation of the 6th Edition of the AMA Guides

State governments throughout the United States are now delaying implementation of the 6th Edition of the AMA guides as a standard to determine permanent disability. The governmental officials are heeding warnings that the guides do not carry out the legislative intent of the workers’ compensation acts which is to provide a remedial social insurance benefit to injured workers.

In 1911 workers bargained away the right to seek redress in the civil litigation system for a more limited benefit structure called workers’ compensation. Workers’ compensation was the original “no fault system” that was to provide limited benefits in a summary and efficient fashion to disabled workers.

Soon there was an attempt by Industry to modify the system in the 1970’s to create a standardized system of measuring disability and reduce even the meager benenfits offered. The AMA guides were drafted and adopted in several state to measure permanent disability. Presently many jurisdictions utilize the 5th Edition to determine disability.

The 6th edition were published in late 2007s under the guidance of Christopher R. Brigham M. D. whose company, Brigham and Associates conducts medical evaluations. Dr. Brigham contends that only 40% of those totally disabled are really unable to perform meaningful work. It has been reported that if the new guides are adopted then permanent disability will no longer be recognized in 70% of the present claims.

At a recent meeting of the IAIABC (The International Association of Industrial Accident Boards and Commissions) , an organization composed of industrial boards and commissions throughout the United States, but open to membership from dues paying members, which include many of the workers’ compensation insurance carriers in the United States, there was “a lively discussion” concerning use of the new Guides.

"Dr. Russell Travis, Medical Director for the Kentucky Office of Workers’ Claims, suggested the 6th Edition makes improvements in guiding impairment rating, particularly in consistency of ratings across organ systems. However, Dr. Travis highlighted some of the perceived weaknesses he found in the AMA Guides; his presentation pointed to issues of apportionment, pain, and the qualifications required to perform a rating as still unresolved. The strong debate among the rating physicians demonstrated the lack of consensus on techniques for impairment rating and the role of the AMA Guides."

Within the last few weeks, several states have paid attention to warnings and taken action to resist immediate implementation of the 6th Edition of the AMA Guides. Kentucky legislatively voted to adopt the prior 5th Edition of the AMA guides to permanent impairment rather than the current 6th edition. Vermont issued an administrative directive barring use of the new 6th Edition. Iowa has joined the growing chorus of those who will not follow the adoption of the 6th Edition. Opposition to implementation in New York is at a fever pitch.

Joining the chorus of growing opposition is The Workplace Injury Law And Advocacy Group. In an article authored by Todd McFarrin, the President-Elect of CAAA, he cautions that:

“By using impairment ratings from the Guides, essentially as a proxy for disability, permanent disability benefits are being slashed. The use of impairment and the eclipse of disability as the relevant permanent consequence of an injury in workers’ compensation is a dangerous trend for injured workers. The latest [6th] edition of the Guides accelerates this decline.”

How to determine permanent disability has always been an agonizing proposition to all who participate in the system. While State legislatures and the Federal government would be pleased to adopt an objective standard, such a goal is illusionary. One cannot be substituted for subjective nature of pain and restrictions of movement in the human environment.

While the economy may be struggling, it is anticipate that the outrage of Labor to the implementation of the restrictive 6th Edition to determine permanent disability will only increase. The objections will become louder and stronger as Industry tries to renege on its 1911 bargain called workers’ compensation.