Copyright
Wednesday, June 20, 2018
Penalty Denied in MSP Private Cause of Action Claim for Delay in Reimbursement
Sunday, November 19, 2017
Client Communications and Equitable Tolling
Tuesday, June 20, 2017
Employment Status: Common Law Tests May Need an Update
Sunday, February 8, 2015
Wal-Mart sued in Georgia over wrong prescription
A pharmacist at a Wal-Mart store in Georgia filled a man’s prescription for blood pressure medication incorrectly, causing him to develop kidney failure, according to a state court lawsuit.
Plaintiff Harold Williams, who also worked at Wal-Mart, says the company fired him while he was sick from the taking the wrong medication.
(
Williams says he went to a Wal-Mart pharmacy in Roswell, Ga., in January 2013 to get a prescription for 25 milligrams of hydralazine, a blood pressure medication.
The unidentified pharmacist who filled the prescription gave him 25-milligram tablets of hydrochlorothiazide, a diuretic used to treat fluid retention, the suit says.
(Click here to read the complaint on WestlawNext.)
Williams says that because of the error, he took doses of the wrong medication and later was diagnosed with acute renal failure and hospitalized.
He seeks to hold the pharmacist liable for negligence and malpractice. The suit also says Wal-Mart failed to properly hire, train, retain and supervise its pharmacist and other employees.
The complaint seeks compensatory damages from the defendants for past and future medical bills, past and future lost income, and past and future pain and suffering. It also requests punitive damages solely against Wal-Mart for allegedly firing Williams.
Williams v. Wal-Mart Stores Inc. et al., No. 15-EV-000040, complaint filed (Ga. State Ct.,...
[Click here to see the rest of this post]
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Monday, October 13, 2014
Is Ebola Too Big of Risk For The Nation's Workers' Compensation System?
In the past, with anthrax/smallpox, the Federal government put in place a contingency system to avoid an economic collapse of the Insurance Industry. "The federal government established a no-fault program entitled the Smallpox Emergency Personnel Protection Act of 2003 (SEPPA) in an effort to provide benefits and/or compensation to certain individuals, including health-care workers and emergency responders, who are injured as a result of the administration of smallpox countermeasures including the smallpox (vaccinia) vaccine. SEPPA also provides benefits and/or compensation to certain individuals who are injured through the result of accidental vaccinia inoculation through contact. 42 U.S.C.A. § 239 " 38 NJ PRAC §1.25, Gelman, (West Publishing 2014).
CDC Statement 10/12/2014
"Texas Patient Tests Positive for Ebola
A health care worker at Texas Health Presbyterian Hospital who provided care for the Ebola patient hospitalized there has tested positive for Ebola in a preliminary test at the state public health laboratory in Austin. Confirmatory testing will be conducted by the Centers for Disease Control and Prevention in Atlanta.
The health care worker reported a low grade fever Friday night and was isolated and referred for testing. The preliminary test result was received late Saturday.
"We knew a second case could be a reality, and we've been preparing for this possibility," said Dr. David Lakey, commissioner of the Texas Department of State Health Services. "We are broadening our team in Dallas and working with extreme diligence to prevent further spread."
Health officials have interviewed the patient and are identifying any contacts or potential exposures. People who had contact with the health care worker after symptoms emerged will be monitored based on the nature of their interactions and the potential they were exposed to the virus.
Ebola is spread through direct contact with bodily fluids of a sick person or exposure to contaminated objects such as needles. People are not contagious before symptoms such as fever develop."
....
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Sunday, October 12, 2014
NJ quarantines NBC crew that worked with Ebola-stricken cameraman
Infectious diseases are compensable conditions under most state workers' compensation laws. Todays post is shared from northjersey.com An NBC news crew that was worked alongside an Ebola-stricken cameraman in Liberia has been placed under mandatory quarantine through Oct. 22, New Jersey health officials announced Saturday. The state Department of Health issued the order Friday evening, after a voluntary 21-day isolation agreement was violated by the crew, according to a notice posted on the health department's Web site. The notice stressed that the crew remains "symptom-free" and that there was "no reason for concern of exposure to the community." Neither health officials nor an NBC News spokesperson would say who violated the order, how many people were being quarantined or locate where the quarantine was being carried out. But Princeton Police Chief Nicholas Sutter confirmed that his agency, in conjunction with the Princeton Health Department, was enforcing the order. He believed three people, all in Princeton, had been quarantined. He referred all other comment to the state Health Department. The NBC team was led by Chief Medical Editor Nancy Snyderman, who lives in Princeton, according to her bio on the NBC News website. Freelancer Ashoka Mukpo, 33, contracted Ebola while working as a camera operator for Snyderman's team in Liberia, where the virus has killed more than 2,000 people, according to NBC News. He is being treated in Nebraska, where... |
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Tuesday, October 7, 2014
Ebola lawsuits would face high hurdles in Texas
Today's post is shared from reuters.com/ Potential suits against the Dallas, Texas hospital that sent home a patient later diagnosed with Ebola face long odds in the face of state medical malpractice laws. Texas tort-reform measures have made it one of the hardest places in the United States to sue over medical errors, especially those that occurred in the emergency room, according to plaintiffs’ lawyers and legal experts. “It’s one of the highest legal burdens of any state in the country,” said Joanne Doroshow, executive director of New York Law School’s Center for Justice and Democracy, who studies U.S. tort law.
Duncan, now in critical condition, first visited Texas Health Presbyterian Hospital’s emergency room late at night on Sept. 25. Duncan told a nurse he had just returned from Liberia, where the disease is raging, but he was sent home with antibiotics. On Sunday, Sept. 28, he was admitted after his symptoms became worse, becoming the first patient to be diagnosed with Ebola in the United States. Texas Governor Rick Perry on Monday said that there had been "mistakes" handling the Ebola diagnosis, the latest in a series of officials and health experts questioning the initial response. The hospital on Friday... |
….
Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thompson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson-Reuters). For over 4 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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Saturday, July 19, 2014
Medical Errors - The Third Leading Cost of Death
Medical doctors specializing in patient safety testified on preventable medical errors that can lead to death or serious financial problems as bills mount to correct the medical mistake.
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Friday, November 29, 2013
Changes to the Medicare Physician Fee Schedule for Calendar Year 2014
On November 27, 2013, the Centers for Medicare & Medicaid Services (CMS) finalized updates to payment policies and payment rates for services furnished under the Medicare Physician Fee Schedule (PFS) on or after January 1, 2014. In recognizing the importance of care that occurs outside of a face-to-face visit, CMS finalized policies that will allow us to make a separate payment to physicians for managing select Medicare patients’ care needs beginning in calendar year (CY) 2015. The rule also finalizes changes to several of the quality reporting initiatives that are associated with PFS payments – the Physician Quality Reporting System (PQRS), as well as changes to the Physician Compare tool on the Medicare.gov website. Furthermore, the rule continues the phased-in implementation of the physician value-based payment modifier (Value Modifier), created by the Affordable Care Act, that will affect payments to certain physician groups based on the quality and cost of care they furnish to beneficiaries enrolled in the traditional Medicare fee-for-service program. Finally, the rule addresses changes to a handful of other programs which are listed in the Table of Contents within the rule.
This fact sheet discusses the changes to payment policies and payment rates for services furnished under the PFS. A separate fact sheet, also issued today, discusses the changes to the quality reporting programs, the Medicare EHR Incentive program, and the policies adopted for implementing the Value Modifier.
BACKGROUND
Since 1992, Medicare has paid for the services of physicians, non-physician practitioners (NPPs), and certain other suppliers under the PFS, a system that pays for covered physicians’ services furnished to a person with Medicare Part B. Under the PFS, relative values are assigned to each of more than 7,000 services to reflect the amount of work, the direct and indirect (overhead) practice expenses, and the malpractice expenses typically involved in furnishing that service. Each of these three relative value components is multiplied by a geographic practice cost index to adjust the payment for variations in the costs of furnishing services in different localities. The resulting relative value units (RVUs) are summed for each service and then are multiplied by a fixed-dollar conversion factor to establish the payment amount for each service. The higher the number of RVUs assigned to a service, the higher the payment.
Sustainable Growth Rate (SGR) and MPFS conversion factor for CY 2014: Under current law, physicians and non-physician practitioners (NPP) will face steep across-the-board reductions in payment rates, based on a formula—the Sustainable Growth Rate (SGR) methodology—which was adopted in the Balanced Budget Act of 1997. Without a change in the law, the conversion factor will be reduced by 20.1 percent for services in 2014. The President’s budget calls for averting these cuts and finding a permanent solution to this problem. The CY 2014 conversion factor is $27.2006, which reflects a smaller reduction in the conversion factor than the 24.4 percent reduction that we projected in March 2013. The smaller reduction is due in part to a 4.72 percent adjustment to the conversion factor to offset the decrease in Medicare physician payments that would otherwise have occurred due to the CY 2014 rescaling of the RVUs so that the proportions of total payments for the work, PE, and malpractice RVUs match the proportions in the final revised Medicare Economic Index (MEI) for CY 2014. This issue is discussed further below. The overall 2014 reduction in physician fee schedule payments required under the SGR methodology is unchanged by this rescaling.
PROVISIONS INCLUDED IN THE CY 2014 PFS FINAL RULE
Primary Care and Chronic Care Management: As part of our ongoing efforts to appropriately value primary care services, Medicare will begin making a separate payment for chronic care management services beginning in 2015. In last year’s final rule, we established separate payment for transitional care management services for a beneficiary making the transition from a facility to the community setting. In this final rule, we further emphasize our support for advanced primary care through our establishment of policies to facilitate separate payment for non-face-to-face chronic care management services for Medicare beneficiaries who have multiple (two or more), significant chronic conditions. This reinforces Department of Health and Human Services (HHS) efforts to support care management through payment reform and incentives and is consistent with HHS’ Strategic Framework on Multiple Chronic Conditions. Chronic care management services include the development, revision, and implementation of a plan of care; communication with the patient, caregivers, and other treating health professionals; and medication management. Medicare beneficiaries with multiple chronic conditions who wish to receive these services can choose a physician or other eligible practitioner from a qualified practice to furnish these services over 30-day periods.
The rule indicates that CMS intends to establish practice standards necessary to support payment for furnishing care management services through future notice-and-comment rulemaking.
Telehealth Services: We are modifying our regulations describing the geographic criteria for eligible telehealth originating sites to include health professional shortage areas (HPSAs) located in rural census tracts of urban areas as determined by the Office of Rural Health Policy. We believe this change will more appropriately allow sites located within HPSAs in MSAs that have rural characteristics to qualify as originating sites and improve access to telehealth services in shortage areas. We are also establishing a policy to determine geographic eligibility for an originating site on an annual basis, consistent with other telehealth payment policies. This change will avoid mid-year changes to geographic designations (sometimes without advance notice to Medicare beneficiaries and providers) that could result in unexpected disruptions to established telehealth originating sites and avoid the need to make mid-year Medicare telehealth payment policy changes. In addition, we are updating the list of eligible Medicare telehealth services to include transitional care management services.
Revisions To The Practice Expense Geographic Adjustment: As required by the Medicare law, CMS adjusts payments under the PFS to reflect the local cost of operating a medical practice as compared to the national average. CMS calculates separate geographic practice cost indices (GPCIs) to adjust the work, practice expenses (PE), and malpractice cost components of each payment. The law requires that we review the GPCIs every three years and adjust them as appropriate with a two-year phase-in of the new GPCIs. We are finalizing new GPCIs using updated data. The updated GPCIs will be phased in over CY 2014 and CY 2015. Additionally, we will apply the statutorily mandated 1.5 work GPCI floor in Alaska and the 1.0 PE GPCI floor for frontier states (Montana, Nevada, North Dakota, South Dakota, and Wyoming), which have no expiration date. There is separate statutory 1.0 work GPCI floor that is scheduled to expire under current law on December 31, 2013. Therefore, the finalized GPCIs reflect the expiration of the 1.0 work GPCI floor.
Medicare Economic Index: CMS is finalizing proposed revisions to the calculation of the MEI, which is the price index used to update physician payments for inflation. The changes are in response to recommendations by a Technical Advisory Panel that met during CY 2012. Application of the MEI along with the SGR determines the conversion factor that is used to determine payments made each year under the PFS. The final rule includes changes in the PFS RVU and GPCI weights assigned to the work and practice expense categories so that the weights used in the PFS payment calculation will continue to mirror those in the MEI. As a result, some payment is being redistributed to work from practice expense. In addition, we are updating the GPCI cost share weights consistent with the revised 2006-based MEI cost share weights.
Misvalued Codes: Consistent with amendments made by the Affordable Care Act, CMS has been engaged in a vigorous effort over the past several years to identify and review potentially misvalued codes, and make adjustments where appropriate. We are continuing to make strides as the values for around 200 codes were finalized and approximately 200 additional codes had their work relative value units changed on an interim basis for 2014. Included in these are services for hip and knee replacements, mental health services and GI endoscopy services. These rates are open for public comment until January 27, 2014.
CMS is not finalizing its proposal to adjust relative values under the PFS to effectively cap the physician practice expense payment for procedures furnished in a non-facility setting at the total payment rate for the service when furnished in an ambulatory surgical center or hospital outpatient setting. Instead, CMS will take additional time to consider issues raised by the public commenters and plans to address this issue in future rulemaking. In addition, for CY 2014, we are finalizing 18 codes that we identified and proposed as potentially misvalued services in consultation with Contractor Medical Directors.
Revisions to the Clinical Laboratory Fee Schedule (CLFS): Under current law, payments on the CLFS remain static and are not revised once a test code has been added to the CLFS and its payment rate has been established. At this point, the CLFS is approximately 30 years old with payment rates that are outdated and potentially excessive. This rule indicates that CMS intends to explore an existing statutory provision that allows updates to the CLFS based on changes in technology. As a result, for the first time, CMS will conduct regular reviews and updates to the payments on the CLFS in order to ensure greater payment accuracy.
Application of Therapy Caps to Critical Access Hospitals: The law applies annual limitations or “therapy caps” on per beneficiary incurred expenses for outpatient therapy services —one for physical therapy and speech-language pathology services combined and another for occupational therapy services. Before the American Taxpayers Relief Act of 2012 directed us to count CAH services towards the caps, the caps were not applied to therapy services furnished in Critical Access Hospitals (CAH). We are finalizing our proposal to apply the therapy caps and related policies to outpatient therapy services furnished by a CAH beginning on January 1, 2014 in order to properly apply the law that established the therapy caps.
Compliance with State Law for Incident To Services: We are requiring as a condition of Medicare payment that “incident to” services be furnished in compliance with applicable state law. This policy strengthens program integrity by allowing Medicare to deny or recoup payments when services are furnished not in compliance with state law. We also eliminated redundant regulations for each type of practitioner by consolidating the “incident to” requirements for all practitioners that are permitted to bill Medicare directly for their services, reducing the regulatory burden and making it less difficult for practitioners to determine what is required in order to bill Medicare for “incident to” services.
The final rule will appear in the December 10, 2013, Federal Register.
For more information, see: www.federalregister.gov/inspection.aspx#special
Sunday, July 1, 2012
OSHA kicks off summer campaign to prevent heat-related illnesses and fatalities among outdoor workers
The U.S. Department of Labor's Occupational Safety and Health Administration has kicked off a national outreach initiative to educate workers and their employers about the hazards of working outdoors in hot weather. The outreach effort builds on last year's successful summer campaign to raise awareness about the dangers of too much sun and heat.
"For outdoor workers, 'water, rest and shade' are three words that can make the difference between life and death," Secretary of Labor Hilda L. Solis said. "If employers take reasonable precautions, and look out for their workers, we can beat the heat."
Every year, thousands of workers across the country suffer from serious heat-related illnesses. If not quickly addressed, heat exhaustion can become heat stroke, which has killed — on average — more than 30 workers annually since 2003. Labor-intensive activities in hot weather can raise body temperatures beyond the level that normally can be cooled by sweating. Heat illness initially may manifest as heat rash or heat cramps, but quickly can become heat exhaustion and then heat stroke if simple prevention steps are not followed.
"It is essential for workers and employers to take proactive steps to stay safe in extreme heat, and become aware of symptoms of heat exhaustion before they get worse," said Dr. David Michaels, assistant secretary of labor for occupational safety and health. "Agriculture workers; building, road and other construction workers; utility workers; baggage handlers; roofers; landscapers; and others who work outside are all at risk. Drinking plenty of water and taking frequent breaks in cool, shaded areas are incredibly important in the hot summer months."
In preparation for the summer season, OSHA has developed heat illness educational materials in English and Spanish, as well as a curriculum to be used for workplace training. Additionally, a Web page provides information and resources on heat illness — including how to prevent it and what to do in case of an emergency — for workers and employers. The page is available athttp://www.osha.gov/SLTC/heatillness/index.html.
OSHA also has released a free application for mobile devices that enables workers and supervisors to monitor the heat index at their work sites. The app displays a risk level for workers based on the heat index, as well as reminders about protective measures that should be taken at that risk level. Available for Android-based platforms and the iPhone, the app can be downloaded in both English and Spanish by visiting http://s.dol.gov/RI.
In developing last year's inaugural national campaign, federal OSHA worked closely with the California Occupational Safety and Health Administration and adapted materials from that state's successful campaign. Additionally, OSHA is partnering with the National Oceanic and Atmospheric Administration for the second year to incorporate worker safety precautions when heat alerts are issued across the nation. NOAA also will include pertinent worker safety information on its heat watch Web page athttp://www.noaawatch.gov/themes/heat.php.
Read this news release en Español.
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Tuesday, May 29, 2012
Law Firm Bankruptcy: The Saga of Dewey & LeBoeuf
The downward spiral of workers' compensation filings has had severe economic impact throughout the legal profession. Dewey & LeBoeuf's collapse signals a major change in employment law. It is a contributing consequence of the continued decline workers' compensation claims.
Yesterday headlines announced the largest law firm bankruptcy filing in the history of the United States. Dewey & LeBoeuf. It was a law firm with a significant employment litigation practice.
The firm handled the defense of employment related matters including: discrimination complains, sexual harassment and discrimination claims. It assisted employers in the defense of claims arising out of mass layoffs and plant closing, age discrimination and disability matters. These claims are usually intertwined with workers' compensation matters, which have been the genesis for many collateral employment law related claims.
As workers' compensation laws become more restrictive, fewer employment law claims emerge. The present downward trend of workers' compensation claims continues. The consequences of this decline will impact the the practice of employment law forever.
Click here to read: Dewey's Post-Mortem Is Likely to Drag On
"Client bills can be tough enough to collect when a firm is in business. But once a firm goes under and the client-law firm relationship dissolves, collection suddenly gets much harder, say legal experts. "Suddenly, clients start complaining that the fees were too high; that the firm committed malpractice," said Jerome Kowalski, a New York-based consultant to law firms and expert on law-firm dissolutions."
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Friday, May 11, 2012
OSHA Proposes Fines for NJ Uniform & Laundry Company
"The violations at this facility compromise the safety and health of UniFirst's workers," said Kris Hoffman, director of OSHA's Parsippany Area Office, which conducted the inspection. "It is vital that the company take appropriate steps to eliminate all identified hazards."
Three willful violations involve a failure to conduct proper training and provide hepatitis B vaccinations, as well as to have engineering and work practice controls in place to eliminate or minimize exposure to bloodborne pathogens. A willful violation is one committed with intentional knowing or voluntary disregard for the law's requirements, or with plain indifference to worker safety and health. The citations carry $165,000 in penalties.
Four serious violations involve a locked emergency door, a lack of training on fire extinguisher use, lead-contaminated surfaces, inadequate training on OSHA's lead standard and not providing gloves to workers exposed to potentially contaminated clothing. A serious violation occurs when there is substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known. The citations carry $21,000 in penalties.
"A first step toward a safer, healthier workplace is to develop and implement an illness and injury prevention program in which management and workers proactively identify and eliminate hazardous conditions," said Robert Kulick, OSHA's regional director in New York.
The citations can be viewed at http://www.osha.gov/ooc/citations/UnifirstCorporation_315956458_04_12.pdf*.
UniFirst Corp., which employs 35 workers at the West Caldwell facility, has 15 business days from receipt of the citations to comply, request an informal conference with the OSHA area director, or contest the citations and proposed penalties before the independent Occupational Safety and Health Review Commission.
To ask questions, obtain compliance assistance, file a complaint, or report workplace hospitalizations, fatalities or situations posing imminent danger to workers, the public should call OSHA's toll-free hotline at 800-321-OSHA (6742) or the agency's Parsippany office at 973-263-1003.
Under the Occupational Safety and Health Act of 1970, OSHA's role is to promote safe and healthful working conditions for America's working men and women by setting and enforcing standards, and providing training, outreach and education. For more information, visit http://www.osha.gov.
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Unsustainable
Click here to read the entire report: Complete State of the Line Presentation from AIS 2012
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Wednesday, May 9, 2012
EPA to Discuss Plans for Addressing Contaminated Passaic River Sediment
The U.S. Environmental Protection Agency will discuss plans to address high levels of contaminants, including PCBs, mercury and dioxin, which are present in Passaic River mud adjacent to Riverside Park in Lyndhurst, New Jersey. Dioxin causes serious health effects, including cancer. PCBs are suspected carcinogens and mercury can cause serious damage to the nervous system. Steps are being taken under the Superfund program by the EPA to isolate and prevent movement of the contaminants from this area to other parts of the river. EPA is overseeing technical planning that has been initiated by the parties potentially responsible for the contamination. 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, rather than passing the costs to taxpayers. 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. Cleanups are only funded by taxpayer dollars when the responsible parties cannot be found or are not financially viable.
In the long term, risks to people wading in contaminated mud in the Passaic River alongside Riverside Park are slightly above EPA levels of concern. The EPA recommends that the public avoid wading in the mud flats in Lyndhurst.
The EPA will hold two public meetings on May 9 to discuss the planned cleanup actions and the results of recent sampling efforts in Riverside Park and the adjacent mud flats. The public meetings will be held from 3 PM to 5 PM and again from 7 PM to 9 PM in the court room of Lyndhurst Town Hall located at 367 Valleybrook Avenue.
The EPA estimates that cleanup work in the contaminated mud flats adjacent to Riverside County Park in Lyndhurst could begin in spring 2013 and extend for a period of time into summer 2013. The EPA will work closely with local officials, river and park users, the Passaic River Community Advisory Group, stakeholder organizations and the Lyndhurst community to provide information on these plans, coordinate the cleanup, and minimize possible disruptions to river and park use to the extent possible.
The EPA is overseeing a comprehensive investigation of contamination in the Passaic River that is being carried out by a group of parties potentially responsible for the contamination. Preliminary findings suggest that there could be six to eight additional mud flats in the Newark Bay to Garfield stretch of the river where elevated levels of contamination could warrant a closer look and possible action. While the EPA does not anticipate that the other mud flats present an immediate threat to recreational users of the park or river, it is working with the potentially responsible parties to plan additional sampling out of an abundance of caution. Those detailed sampling plans are being developed now to examine the mud flat areas.
Results from the latest round of mud flat sampling from this past winter are currently undergoing final review by the EPA. Any follow-up sampling deemed necessary by the EPA will likely take place under EPA oversight later this summer or fall, with results expected back in late 2012. EPA will provide the public with the sampling results as the information becomes available and will ensure that all communities are effectively engaged and informed.
Very low levels of PCBs, mercury and dioxin were found earlier this year in soil in the Lyndhurst and North Arlington sections of Riverside Park that likely were carried there by flooding. The concentrations of contaminants detected are well below established levels of concern for children and adolescents playing in the park and for workers maintaining the park. The EPA does not plan on additional sampling of the parks’ recreational areas and cleanup in the park is not necessary. The public can continue to enjoy using Riverside County Park in Lyndhurst but should practice proper hygiene that would normally be followed at any urban park that is prone to flooding.
Information on the investigation and cleanup activities in the lower Passaic River is available on the project Web sites at http://www.ourpassaic.org or http://www.epa.gov/region02/superfund/npl/diamondalkali/
Follow EPA Region 2 on Twitter at http://www.twitter.com/eparegion2 and visit our Facebook page, http://www.facebook.com/eparegion2.
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 work related accident and injuries.
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Monday, May 7, 2012
Facebook, Organ Donations and Medical Privacy of Workers' Compensation
(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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Friday, May 4, 2012
Federal Court Rules That Bankruptcy Court May Transfer Insurance Assets to Trust
"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
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Sidetracked By Drugs
New York Mayor, Michael R. Bloomberg. (Photo credit: Wikipedia) |
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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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