The US National Institute for Environmental Health Sciences [NIH} has just published a final report linking cell phone radiation exposure to the production of tumors in mice. This animal study that confirms the causal relationship between radio frequency radiation of cell phones and cancer in animals is a significant step forward to establishing a causal relationship in humans.
Showing posts with label compensability. Show all posts
Showing posts with label compensability. Show all posts
Friday, November 2, 2018
Monday, March 19, 2018
Judicial Limitations in Workers’ Compensation Cases
Frequently a workers’ compensation hearing officer divides a litigated matter into two phases, compensability and damages so litigation can be conducted in a more efficient manner. The procedure is designated as bifurcation and the limitations imposed by the procedure must have carefully adhered to while the adjudicating the claim.
A New Jersey appellate court recently ruled, in an unpublished opinion[1], that a judge of compensation committed reversible error by exceeding the constraints of the bifurcation process. The hearing officer decided the compensability of a denied accident and then went further by awarding damages by way of granting an award for the temporary disability.
An injured worker claimed that he suffered an accident during his employment because of carrying a heavy package at the employer’s place of business. The accident was reported by “text message” and voice message” after he had left the place of employment and returned home. The court assessed the witnesses’ credibility while testifying and determined the injured worker to be credible.
At the time of the trial, the employer relied on a written note from the injured worker’s doctor that stated, the worker “was shoveling snow and developed severe low back pain with right leg radiation.” The attorney for the employer failed to call the doctor as a witness during the trial. The appellate court held that the judge of compensation could give the written note whatever weight it wished to do so, and upheld the finding of the workers’ compensation hearing officials ruling that the matter was compensable and then, despite the bifurcation of the trial, entered an award for temporary disability benefits.
In a collateral issue raised on appeal, prior to making the determination, the judge of compensation, on her own volition sought and relied on additional factual information from the State of New Jersey. She “contacted the State and was advised” that the injured worker had been paid temporary disability benefits” for a certain period. The reviewing appellate tribunal rule that “Judges should not conduct their own factual investigation, let alone do so without notice and an opportunity for the parties to be heard. See Lazovitz v. Bd. of Adjustment, Berkeley Heights, 213 N.J. Super. 376, 381-82 (App. Div. 1986); Amadeo v. Amadeo, 64 N.J. Super. 417, 424 (App. Div. 1960).” and deemed such action as inappropriate, but vacated the Order for other reasons.
Interestingly, whether a Judge could take “judicial notice” of temporary disability payments was not discussed. “Judicial notice” is a rule of law in evidence that allows a fact to be introduced into evidence if the truth is so authoritatively attested that it cannot be reasonably contested. The NJ Division of Workers’ Compensation normally cross-matches payment information of State temporary disability benefits to efficiently satisfy statutorily imposed liens and eliminate duplicate recoveries. "Administrative procedures are in place for avoiding duplication of benefits in cases where claimants have pursued temporary disability benefits under both the Temporary Disability Benefits Law (TDBL) and the New Jersey Workers' Compensation Act (WCA)." Gelman, Jon L, Workers Compensation Law, 38 NJPRAC 17.10.50. Temporary disability liens–non–duplication of benefits (Thomson-Reuters 2018).
The award of temporary disability benefits was reversed by the appellate division and the matter was remanded to the Division of Workers’ Compensation for further hearing on that issue. The court held, “Despite bifurcation, the judge found that Moran was entitled to temporary disability benefits and appears to have made other findings of the nature of the injury. These other issues were decided without warning and deprived Cosmetic of an opportunity to present evidence or to confront the evidence upon which the judge relied. Because the judge mistakenly exceeded the limits of the bifurcation agreement, we vacate those parts of the order under review that granted temporary disability benefits and other relief to Moran, and we remand those proceedings that would naturally have followed the determination that Moran sustained a work-related injury.”
While bifurcation allows for judicial efficiency, the constraints imposed by procedure need to be strictly followed.
Moran v. Cosmetic Essence, LLC, Docket No. A-2588-1671 (N.J. App. Div. 2018) Decided March 14, 2018. 2018 WL 1308857 Only the Westlaw citation is currently available.
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Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thomson-Reuters).
[1] NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
Saturday, December 16, 2017
Verbal Notice to Supervisor Satisfies Notice Requirement - Unpublished Decision
A police officer who provided verbal notices to an injury to his supervisor the evening of the accident was held to ratify the notice requirement under the Workers’ Compensation statute and deem the accident compensable. In an unpublished shed decision*, the NJ Appellate division ruled that the employer was responsible for benefits even though treatment was not sought for three weeks following the accident.
Monday, April 14, 2014
Distracted Driving - Time To Revisit Compensability Issues
Acting Attorney General John Hoffman today announced the staggering toll driver inattention has taken on New Jersey’s roadways in the past 10 years, declaring that the State experienced a “distracted driving decade” and that an ongoing law enforcement initiative is working to help end the crisis.
From 2004 to 2013, driver inattention was a major contributing circumstance in 1.4 million crashes in New Jersey – that is about half of the total crashes in the state in that period. Distraction was the number one contributing circumstance in total crashes. And in one decade (2003-2012), more than 1,600 people have been killed in crashes where driver inattention was a major contributing factor.
“The numbers tell the sad truth: we are in the midst of a surge in driver inattention, and crash statistics bear out that we can characterize the last 10 years simply as ‘New Jersey’s Distracted Driving Decade,’” said Hoffman. “What is perhaps most troubling about these numbers is that the issue of distracted driving seems to be getting progressively worse. Our research indicates that while crashes and fatalities are trending downward as a whole, the number and proportion of distracted crashes are rising.”
At the beginning of the “Distracted Driving Decade” in 2004, driver inattention was cited as a major contributing circumstance in 42 percent of crashes. But that number has risen in those 10 years and last year it peaked at 53 percent. And the proportion of distracted crashes has surged 26 percent in that time span.
“In recent years smartphones and other devices have become more sophisticated and it’s clear to most of us that they’re being used more by drivers,” said Acting Director of the Division of Highway Traffic Safety Gary Poedubicky. “Though the overall picture of road safety is brightening, one cannot help but conclude that there is an increasing addiction to distraction for drivers. We need to put an end to the epidemic of driver inattention and close the book on the ‘Distracted Driving Decade.’”
In an effort to stop distracted driving, the Division of Highway Traffic Safety has for the first time made funds available to law enforcement agencies for a statewide crackdown on motorists who are using a handheld device while driving, which is illegal in New Jersey. Sixty police departments received $5,000 each for the campaign called U Drive. U Text. U Pay. and the funds will be used to pay for checkpoints and increased patrols. Many more enforcement agencies are also expected to participate unfunded in the initiative, which was funded and developed by the National Highway Traffic Safety Administration (NHTSA).
About halfway through the three-week campaign, which runs from April 1 to 21, the funded departments have issued an estimated 3,000 summonses for cell phone and electronic device violations.
“People need to know that we are serious about stopping this deadly behavior,” said NHTSA Region 2 Administrator Thomas M. Louizou. “Using a handheld phone and texting has reached epidemic levels. When you text or talk on the phone while driving, you take your focus off the road. That puts everyone else’s lives in danger, and no one has the right to do that.”
The crackdowns are similar in scope to the Drive Sober, or Get Pulled Over and Click It or Ticket mobilizations, which have targeted impaired driving and seat belt usage, respectively. Louizou said the successes of those programs have proven that the combination of tough laws, targeted advertising, and high-visibility enforcement can change people’s risky traffic safety behaviors.
To see a list of agencies receiving funding for this initiative please visit:www.nj.gov/oag/hts/downloads/UDUTUP_2014_Grant_Recipients.pdf
This increased police presence on the roads will soon be paired with stepped up penalties for breaking the State’s primary cell phone law. Currently, motorists violating New Jersey’s primary cell phone law face a $100 fine plus court costs and fees. Because of a new law signed by Governor Chris Christie last year, penalties for that transgression will get stiffer. On July 1, those penalties will rise to a range of $200 to $400 for a first offense, $400 to $600 for a second, and up to $800 and three insurance points for subsequent violations. These changes follow the adoption in 2012 of the “Kulesh, Kubert and Bolis Law.” Under that law, proof that a defendant was operating a hand-held wireless telephone while driving a motor vehicle may give rise to the presumption that the defendant was engaged in reckless driving. Prosecutors are empowered to charge the offender with committing vehicular homicide or assault when an accident occurs from reckless driving.
Joining Acting Attorney General Hoffman’s call to end distracted driving was Gabriel Hurley. Hurley, 29, was severely injured in a 2009 crash that left him blind and with extensive damage to his face and skull. Hurley sustained his injuries when an oncoming car collided into an underpass while he was entering it. The impact caused the other car’s air-conditioning compressor to come flying into his windshield. Hurley, of Middlesex, said he believed the 17-year-old driver had been inattentive behind the wheel at the time of the crash.
After an extensive recovery period, which included more than a dozen facial reconstructive surgeries, he began a career as a safe driving advocate and has spoken to thousands of drivers, most of them in high school, about the consequences of reckless and inattentive driving.
“The course of my life was altered in that crash,” Hurley said. “I have lost my sense of sight and smell and suffered other physical and emotional damage. However, I believe what happened gave me a purpose to tell everyone that crashes like mine are preventable and we can stop them by simply focusing on the task at hand when we’re behind the wheel.”
Read more about distracted driving:
Apr 10, 2014
Stay Alert and Avoid Distracted Driving – Work zones present extra challenges and obstacles. Motorists need to pay attention to the road and their surroundings. – Schedule your trip with plenty of extra time. Expect delays and ...
Apr 18, 2011
OSHA has announced an aggressive program to combat "The Number 1 Killer of Workers," Distracted Driving. The announcement was made today by Dr. David Michaels, Assistant Secretary of Labor of the Occupational ...
May 29, 2013
Transportation accidents rank on the top of the list for worker fatalities. Now the federal government is attempting to reduce that number by restricting distractions while driving.driving. Voluntary guidelines reduce ...
Jun 13, 2013
Transportation (DOT) have made major efforts over the last few years to target distracted driving as a major safety issue to avoid serious accidents and ultimately save lives and reduce insurance costs. The DOT reports ...
Friday, May 31, 2013
CDC Reports Hospital Infections (MRSA) Can be Dramatically Reduced With Soap and Water
Many injured workers, and other hospital patients, reportedly contract compensable serious hospital infection as a result of poor hygiene. The Centers for Disease Control (CDC) reports that increased use of better hygiene in hospitals will dramatically improve the problem of contracting hospital infections.
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| English: Magnified 20,000X, this colorized scanning electron micrograph (SEM) depicts a grouping of methicillin resistant Staphylococcus aureus (MRSA) bacteria. See PHIL 617 for a black and white view of this image. These S. aureus bacteria are methicillin-resistant, and are from one of the first isolates in the U.S. that showed increased resistance to vancomycin as well. Note the increase in cell wall material seen as clumps on the organisms’ surface. (Photo credit: Wikipedia) |
Today, on CDC's Safe Healthcare blog, lead author of the REDUCE MRSA trial, Dr. Susan Huang, discusses the results of the landmarkstudy and provides insight into what the findings mean for infection prevention and patient safety. The REDUCE MRSA trial found that using germ-killing soap and ointment on all intensive-care unit (ICU) patients could reduce bloodstream infections by up to 44 percent and significantly reduce the presence of methicillin-resistant Staphylococcus aureus (MRSA) in ICUs.
Dr. Huang is an Associate Professor at the University of California Irvine School of Medicine and Medical Director of Epidemiology and Infection Prevention at UC Irvine Health.
Join the conversation at http://blogs.cdc.gov/
Read the entire study in NEJM: http://www.nejm.org/doi/full/
Sunday, February 10, 2013
Silica Linked to a Fatal and Compensable Lung Cancer
A foundry worker, who was exposed to silica for over 35 years, was held by a NJ Workers' Compensation Judge, to have contracted a fatal lung cancer as a result of his employment. His spouse was awarded dependency benefits.
Compensation Judge, Philip A. Tornetta, in a recently published decision (Johnson v. Campbell CP NO. 2007-11564), found that a worker's adenacarcinoma was related to his exposure at on the job. The Judge based his decision upon a review of the death certificate, Material Data Safety Sheets, hospital records, oral testimony from the surviving spouse, and expert medical testimony.
Following the landmark NJ Supreme Court decision in Fiore v. Consolidated Freightways, 140 NJ 452 (1995) [an occupational heart claim], and Lindquist v. City of Jersey City Fire Department, 175 NJ 244 (2003) [mandating evidential review of scientific evidence], the Court reasoned "the preponderance of the credible evidence" proven the exposure to caused a compensable and fatal medical condition.
The Obama Administration is reviewing proposed rules to reduce exposure to silica in the workplace. It is anticipated that they will be adopted shortly. Judge Tornetta's decision reflects the urgency of the need to promulgate silica regulations immediately.
Read more about "silica" and workers' compensation:
Feb 05, 2013
The Laborers International Union (LIUNA) has set up petition to the White House, urging the executive to move forward on the proposed OSHA rule to reduce silica exposures. You can join the 2700 other people who have ...
Jun 22, 2012
Because large quantities of silica sand are used during hydraulic fracturing, NIOSH began a cooperative effort in January 2010 to collect data regarding silica exposure at hydraulic fracturing operations. NIOSH worked in ...
Jan 03, 2010
"Crystalline silica is a significant component of the earth's crust, and many workers in a wide range of industries are exposed to it, usually in the form of respirable quartz or, less frequently, cristobalite. Chronic silicosis is a ...
Jan 21, 2010
Insofar as silica dust impairs cellular defense, silica-exposed workers (without silicosis) may be at increased risk for fungal infections, as they are for mycobacterial infections." Concurrent Silicosis and Pulmonary Mycosis at ...
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