A homeowner was not responsible under workers' compensation law for the injuries suffered by someone who was hired to clean the house. The Court held that individuals hired to perform basic cleaning services such as dusting, vacuuming, sweeping and bathroom cleaning did not establish an employee-employer relationship.
The reviewing tribunal, in affirming the trial court's decision, held that the relationship did not meet either "the right to control" or "relative nature of the work" tests.
Lopez v. Moser, Docket No. A-1535-09T21535-09T2, NJ App. Div., 201 WL 2696754, Decided July 9, 2010.
Click here for more information on how Jon L Gelman can assist you in a claim for workers' Compensation claim benefits. You may e-mail Jon Gelman or call 1-973-696-7900.
Saturday, July 10, 2010
Lawsuit Filled Alleging Asbestos Exposed Chemical Worker Suffered Fatal Mesothelioma
A lawsuit was filed alleging that a former chemical operator at Hoffman-LaRoche in Nutley, New Jersey was exposed to asbestos fiber and died of mesothelioma. The lawsuit filed in New Jersey Superior Court asserts that he suffered injurious exposure to asbestos as a direct result of his exposure to asbestos fiber at work. The estate of the deceased worker brought the action against several manufacturers and suppliers of asbestos fiber.
Allianz Firemans Fund Increases Asbestos Reserves by $301 Million
Asbestos has been a known carcinogen for decades. It is a natural occurring mineral that that has been used for its non-flammable properties. Medical conditions occur such as asbestosis, mesothelioma and other cancers, decades after the initial exposure.
Initially sold by companies in the 1920s, without warning of its known dangers, asbestos use continues not to be banned in the US. Disease from asbestos exposure is predicted to continue at very high rates.
The workers’ compensation system did not provide an adequate remedy because of a constellation of reasons, and subsequently, the wave spread to civil litigation out of desperation for adequate benefits. Asbestos litigation has been named, "The Longest Running Tort” in American history. Asbestos litigation expanded into bankruptcy claims that continue unabated and the epidemic of disease continues. The remaining cases in the Federal court system were transferred to Federal Multi District Litigation (MDL 875) and the majority are finally concluding after twenty years of Panel consolidation.
Large verdicts continue to be reported in asbestos claims. A Los Angles jury recently awarded $208.8 Million in what has been recognized as the largest asbestos verdict ($200 Million punitive damages) in the State of California. The case involved a household contact exposure to asbestos fiber. The wife of the asbestos worker was exposed to asbestos fiber on the clothes of her husband that he brought home and that she cleaned.
Click here to read more about asbestos related disease and claims for benefits. For over 3 decades the Law Offices of Jon L. Gelman1.973.696.7900 jon@gelmans.com have been representing injured workers and their families who have suffered asbestos related illnesses.
Tuesday, July 6, 2010
Temporary Benefits Due During Period of Unrelated Medical Condition
An asthma flare up, that delayed surgery for a compensable back injury, was not a reason to halt the payment of workers' compensation temporary disability payment. The Court held:
"....when treatment for the original work related injury is delayed due to unrelated
conditions, the claimant was entitled to continued disability benefits during the entire period."
"The compensation judge correctly ordered continued temporary disability benefits from November 9, 2006 through February 17, 2007, "the period of time when [Schock] was unable to proceed with an authorized anterior fusion at C5-6 and C7 because of asthma flare-ups unrelated to the work accident." Schock did not refuse treatment, there is no evidence that she was able to return to work or that she was at maximum medical improvement during the brief delay in her neck surgery. Her asthma condition was temporary and beyond her or her doctor's control."
"....when treatment for the original work related injury is delayed due to unrelated
conditions, the claimant was entitled to continued disability benefits during the entire period."
"The compensation judge correctly ordered continued temporary disability benefits from November 9, 2006 through February 17, 2007, "the period of time when [Schock] was unable to proceed with an authorized anterior fusion at C5-6 and C7 because of asthma flare-ups unrelated to the work accident." Schock did not refuse treatment, there is no evidence that she was able to return to work or that she was at maximum medical improvement during the brief delay in her neck surgery. Her asthma condition was temporary and beyond her or her doctor's control."
Shock v Morristown Memorial Hospital/Atlantic Health Systems, Docket No, A-1658-09T2, (NJ Ap. 2010), Decided July 2, 2010
Monday, July 5, 2010
Designing the New Federal Workers Compensation Program
The trend toward Federalization of workers’ compensation benefits took a giant step forward by recent Presidential action creating the British Petroleum Oil Compensation Fund. While the details remain vague, the broad and sweeping concept of inclusiveness is more than obvious.
This is not a surprising turn of events. It is entirely consistent with a broad pattern to sweep the ailing and fragmented patch work of state programs into a unified Federal program. In an era of economic depression, national health care reform and major workforce changes this approach is consistent with the underlying bipartisan national philosophy.
Columnist and an expert in the field, Peter Rousemaniere, recently concluded an analysis of system’s failures that have literally pushed workers’ compensation into a federalized program. “The states and workers' compensation insurers have for decades weaseled on the promise to protect workers from occupational illnesses and to honor their claims.”
The knee jerk reaction, one would think, would be this could never happen because of interested stakeholders. In reality, they have been silently distracted by more far reaching issues and have been economically drained of resources to the point where they’ll take anything the Federal Government can offer to save them from extinction.
The Federal government is not unfamiliar with the administration and distribution of benefits. Since 1882 the federal government has been providing benefits to injured workers and their widows: in 1900 the postal workers compensation system was established; in 1908 the Federal government established a program for those who work in hazardous environments; and, in 1932 the Social Security Administration was established. However, the Social Security Act did not embrace workers’ compensation in 1932 since the primary goal of the law was to reduce unemployment.
The federal programs have produced a dismal result over the last few years. The Federal Victims Compensation Fund, enacted following the horrific tragedy of September 11th, 2001, has a very strict eligibility criteria and a limited recovery scheme. The Smallpox Emergency Personnel Protection Act of 2003 (SEPPA) was enacted following an aborted vaccination program after the government reluctantly disclosed available medical research concerning potential fatal cardiovascular reactions. A risk analysis demonstrated that this program may not have been needed at all but was merely implemented to sway public opinion. Ultimately, the federal government halted the Smallpox Vaccination Program and funded $100 million for the purpose of cleaning up the legacy of adverse medical reactions and to ease the burden placed upon the victims and their estates that were struggling to obtain benefits under State compensation programs.
The Energy Employees Occupational Illness Compensation Program Act of 2000 (EEOICPA) (P.L.106-398) was enacted into law in October, 2000 with strong bipartisan support. EEOICPA established a program to provide compensation to employers of the Department of Energy (DOE), its contractors and subcontractors, companies that provided beryllium to DOE, and atomic weapons employers.
The Federal health care reform is a big Federal deal for workers’ compensation as it establishes the Libby Health Care Plan with far reaching impact by involving Medicare to deliver health care. The ongoing integration of conditional payments (Medicare Secondary Payer Act and mandatory reporting) as well as the review of all compromises concerning the provision of future medical care (Workers Compensation Medical Set-aside Agreements) is already anther Federal foot in the door to prevent what in the past was a tradeoff of medical care to US taxpayer without consideration.
While federalization may not be the panacea, the target remains to limit the cost of medical expenses and provide an efficient and remedial benefit delivery system at minimal cost for administration and to hold the appropriate parties financial responsible. The costs of maintaining duplicate medical delivery systems for workers, major medical and workers’ compensation, continues to represent an unnecessary and costly duplicate expenditures in administration and management.
The BP-Federal Oil Compensation Plan is yet another attempt to find a solution. While it may not be perfect, hopefully it will be guided successfully and will learn from past Federal trials and errors dabbling in workers’ compensation. It is obviously not the perfect solution, but that may only exist as an unattainable goal. The first step is a comprehensive and integrated Federal workers’ compensation program. A step in the right direction would be for the Federal Government to take primary responsibility for all occupational workers’ compensation claims. This would be an innovated initial approach to implement a new Federally administered Workers’ Compensation system.
Sunday, July 4, 2010
BP Oil Spill Compensation Flows to Florida
Oil compensation funds are now flowing along the predictable loop current to the State of Florida. The Palm Beach Post reports that while 90,000 claims have been filed as of July 2, 2010 by individuals totally, in Florida only one in four of the 25,000 have yet to be paid. Most of #22.4 million that BP has paid in Florida has gone to compensate for lost wages.
To read more about petroleum exposure and workers' compensation click here.
Click here for more information on how Jon L Gelman can assist you in a claim for workers' Compensation claim benefits. You may e-mail Jon Gelman or call 1-973-696-7900.
Saturday, July 3, 2010
NIOSH Targets the Safety and Health of Oil Spill Workers
The National Institute for Occupational Safety and Health (NIOSH) added further resources to its web page on occupational safety and health issues associated with the Deepwater Horizon Response in the Gulf of Mexico. This is an expansion of the Federal government' s plan to design an oil spill compensation fund. The new additions provide NIOSH's updated, science-based interim findings and recommendations to help protect the safety and health of Deepwater Horizon Response workers:
- “Interim Guidance for Protecting Deepwater Horizon Response Workers and Volunteers.”www.cdc.gov/niosh/topics/oilspillresponse/protecting/ This document recommends interim measures under a comprehensive approach for protecting the health and safety of the response workers in the Gulf. Recommendations will be updated as more information about exposures is collected and assessed in relationship to the incidence and prevalence of symptoms, illnesses and injuries. (Added June 25.)
- A table of respiratory protection recommendations for Deepwater Horizon Response workers – at a glance. (Added June 25.)www.cdc.gov/niosh/topics/oilspillresponse/pperecsumm.html
- “Staying Safe and Healthy on the Job” – concise tips for Deepwater Horizon Response workers, in English, Spanish, and Vietnamese. (Added June 29.) www.cdc.gov/niosh/topics/oilspillresponse/dwhworkertips.html
- The first of a series of interim reports from the NIOSH health hazard evaluation of response workers. (Added June 25.)www.cdc.gov/niosh/topics/oilspillresponse/gulfspillhhe.html
- A NIOSH report of BP injury and illness data, updated as of June 30. This report is designed to provide a basic overview of illnesses and injuries reported by responders involved in the Deepwater Horizon response. It will be updated on a regular basis as new data becomes available. The data utilized to produce the report was provided to NIOSH by BP safety officials.www.cdc.gov/niosh/topics/oilspillresponse/data.html
- Also added on June 25 was a copy of a NIOSH presentation regarding the federal response to the Deepwater Horizon Response health issues, from a June 22-23 workshop by the Institute of Medicine.www.cdc.gov/niosh/topics/oilspillresponse/pdfs/IOMNIOSHPresentation.pdf
NIOSH also updated statistics from its work in developing a voluntary roster of Deepwater Horizon Response workers. With the roster, NIOSH will have a record of those who have participated in cleanup activities, and a mechanism to contact them about possible work-related symptoms of illness or injury, as needed. As of June 30, 2010, NIOSH had rostered 26,289 response workers.www.cdc.gov/niosh/topics/oilspillresponse/workerroster.html
Additional NIOSH information and resources about the Deepwater Horizon Response can be found atwww.cdc.gov/niosh/topics/oilspillresponse/.
Friday, July 2, 2010
Gulf Oil Spill Forecast to Involve The US East Coast
"Much of the west coast of Florida has a low probability (1%–20%) for impact, but the Florida Keys, Miami, and Fort Lauderdale areas have a greater probability (61%–80%) due to the potential influence of the Loop Current."
If this senario plays out, the health threat to workers and volunteers will expand.
To read more about petroleum exposure and workers' compensation click here.
Click here for more information on how Jon L Gelman can assist you in a claim for workers' Compensation claim benefits. You may e-mail Jon Gelman or call 1-973-696-7900.
Thursday, July 1, 2010
Occupational Risks and Health Hazards to Oil Spill Workers & Volunteers
Video Highlight: Welcome Remarks by Harvey V. Fineberg, President, IOM
Several days ago the US Institutes of Medicine held a conference on the medical conditions potentially related to occupational exposures arising out of the gulf oil spill. The complete program, Assessing the Human Health Effects of the Gulf of Mexico Oil Spill: An Institute of Medicine Workshop, is now available online.
To read more about petroleum exposure and workers' compensation click here.
Click here for more information on how Jon L Gelman can assist you in a claim for workers' Compensation claim benefits. You may e-mail Jon Gelman or call 1-973-696-7900.
Click here for more information on how Jon L Gelman can assist you in a claim for workers' Compensation claim benefits. You may e-mail Jon Gelman or call 1-973-696-7900.
Delay To Reinstate For Tactical Reasons Not Excuseable
The NJ Court of Appeals did not permit reinstatement of a dismissed claim where the claimant's attorney waited more than one year following the entry of a dismissal for lack of prosecution. While the NJ case law permits discretion by the Judge of Compensation to reinstate a claim, the Court upheld the trial court's decision of not allowing reinstatement.
"Here, there was no impediment to the filing of a timely motion for reinstatement for nearly the entire one-year statutory period. Despite the considerable age of most of the petitions in question, and despite the fact that they still were not capable of being moved due to petitioner's failure to provide discovery, petitioner here did nothing but adopt a deliberate course of delay, choosing to expend as much of the one-year period as possible without taking action. The fact that petitioner's attorney's unanticipated illness proved untimely and struck at a critical moment is of no consequence. Even if counsel's inactivity between September 7 and October 3, 2008 was excusable, his conscious and deliberate inaction from September 27, 2007 until September 6, 2008 was inexcusable. An attorney's neglect or inadvertence is not ground for relief pursuant to Rule 4:50-1(a). See, e.g., Baumann v. Marinaro, 95 N.J. 380, 394 (1984); Quagliato v. Bodner, 115 N.J. Super. 133, 138 (App. Div. 1971)."
"Here, there was no impediment to the filing of a timely motion for reinstatement for nearly the entire one-year statutory period. Despite the considerable age of most of the petitions in question, and despite the fact that they still were not capable of being moved due to petitioner's failure to provide discovery, petitioner here did nothing but adopt a deliberate course of delay, choosing to expend as much of the one-year period as possible without taking action. The fact that petitioner's attorney's unanticipated illness proved untimely and struck at a critical moment is of no consequence. Even if counsel's inactivity between September 7 and October 3, 2008 was excusable, his conscious and deliberate inaction from September 27, 2007 until September 6, 2008 was inexcusable. An attorney's neglect or inadvertence is not ground for relief pursuant to Rule 4:50-1(a). See, e.g., Baumann v. Marinaro, 95 N.J. 380, 394 (1984); Quagliato v. Bodner, 115 N.J. Super. 133, 138 (App. Div. 1971)."
Danter v. Arrow International, Inc., DOCKET NO. A-0111-09T30111-09T3, (NJ App Div 2010) Decided June 30, 2010 - Unpublished.
To read more about dismissals and workers' compensation click here.
Click here for more information on how Jon L Gelman can assist you in a claim for workers' Compensation claim benefits. You may e-mail Jon Gelman or call 1-973-696-7900.
To read more about dismissals and workers' compensation click here.
Click here for more information on how Jon L Gelman can assist you in a claim for workers' Compensation claim benefits. You may e-mail Jon Gelman or call 1-973-696-7900.
Federal Government Launches HealthCare Insurance Website
"
The Federal Government has launched a new web site to provide information to consumer of health care insurance.
"HealthCare.gov launches today. It’s a website designed to help you take control of your health care – by putting the power of information at your fingertips.
"It’s the first website to collect both public and private health insurance options across the nation in a single place. Even better, our insurance options finder automatically sorts through this huge catalog of options to help you identify the ones that may be right for you.
"Other highlights of the site include extensive information about your rights as a consumer, how to navigate the health insurance marketplace, and how the Affordable Care Act can help you – all tailored to you.
The Federal Government has launched a new web site to provide information to consumer of health care insurance.
"HealthCare.gov launches today. It’s a website designed to help you take control of your health care – by putting the power of information at your fingertips.
"It’s the first website to collect both public and private health insurance options across the nation in a single place. Even better, our insurance options finder automatically sorts through this huge catalog of options to help you identify the ones that may be right for you.
"Other highlights of the site include extensive information about your rights as a consumer, how to navigate the health insurance marketplace, and how the Affordable Care Act can help you – all tailored to you.
City Out Sourcing Police To Reduce Workers Compensation Costs
Maywood City California is taking the cost saving approach by out-sourcing its essential services, including its police, to reduce workers' compensation costs. City officials anticipate a 40% cost savings through the use of out-sourcing. The city has an operating deficit of $1.4 Million.
To read more about the economy and workers' compensation click here.
Click here for more information on how Jon L Gelman can assist you in a claim for workers' Compensation claim benefits. You may e-mail Jon Gelman or call 1-973-696-7900.
To read more about the economy and workers' compensation click here.
Click here for more information on how Jon L Gelman can assist you in a claim for workers' Compensation claim benefits. You may e-mail Jon Gelman or call 1-973-696-7900.
EPA Recommends Further Toxicity Studies of Gulf Oil Dispersants
Mandated by the US EPA , British Petroleum (BP) was ordered to reduce the amount of dispersants being utilized. "BP shall implement measures to limit the total amount of surface and subsurface dispersant applied each day to the minimum amount possible. BP shall establish an overall goal of reducing dispersant application by 75% from the maximum daily amount used...."
One of the primary dispersants been utilized is Corexit(r) 9500. NALCO, the manufacturer warns on the material data safety sheet (MSDS): "Do not get in eyes, on skin, on clothing. Do not take internally. Avoid breathing vapor. Use with adequate ventilation. In case
of contact with eyes, rinse immediately with plenty of water and seek medical advice. After contact with skin, wash immediately with plenty of soap and water."
"EPA's results indicated that none of the eight dispersants tested, including the product in use in the Gulf, displayed biologically significant endocrine disrupting activity. While the dispersant products alone – not mixed with oil - have roughly the same impact on aquatic life, JD-2000 and Corexit 9500 were generally less toxic to small fish and JD-2000 and SAF-RON GOLD were least toxic to mysid shrimp."
The EPA called for further testing. The next phase of EPA’s testing will assess the acute toxicity of multiple concentrations of Louisiana Sweet Crude Oil alone and combinations of Louisiana Sweet Crude Oil with each of the eight dispersants for two test species.
To read more about petroleum exposure and workers' compensation click here.
Click here for more information on how Jon L Gelman can assist you in a claim for workers' Compensation claim benefits. You may e-mail Jon Gelman or call 1-973-696-7900.
Wednesday, June 30, 2010
New Study Released Explaining the Asbestos - Mesothelioma Link
"Asbestos carcinogenesis has been linked to the release of cytokines and mutagenic reactive oxygen species (ROS) from inflammatory cells. Asbestos is cytotoxic to human mesothelial cells (HM), which appears counterintuitive for a carcinogen. We show that asbestos-induced HM cell death is a regulated form of necrosis that links to carcinogenesis. Asbestos-exposed HM activate poly(ADP-ribose) polymerase, secrete H2O2, deplete ATP, and translocate high-mobility group box 1 protein (HMGB1) from the nucleus to the cytoplasm, and into the extracellular space. The release of HMGB1 induces macrophages to secrete TNF-α, which protects HM from asbestos-induced cell death and triggers a chronic inflammatory response; both favor HM transformation. In both mice and hamsters injected with asbestos, HMGB1 was specifically detected in the nuclei, cytoplasm, and extracellular space of mesothelial and inflammatory cells around asbestos deposits. TNF-α was coexpressed in the same areas. HMGB1 levels in asbestos-exposed individuals were significantly higher than in nonexposed controls (P < 0.0001). Our findings identify the release of HMGB1 as a critical initial step in the pathogenesis of asbestos-related disease, and provide mechanistic links between asbestos-induced cell death, chronic inflammation, and carcinogenesis. Chemopreventive approaches aimed at inhibiting the chronic inflammatory response, and especially blocking HMGB1, may decrease the risk of malignant mesothelioma among asbestos-exposed cohorts."
"Programmed necrosis induced by asbestos in human mesothelial cells causes high-mobility group box 1 protein release and resultant inflammation" Published online before print June 28, 2010, doi:10.1073/pnas.1006542107 (This item requires a subscription to Proceedings of the National Academy of Sciences).
For over 3 decades the Law Offices of Jon L. Gelman1.973.696.7900 jon@gelmans.com has been representing injured workers and their families who have suffered asbestos related illnesses.
Aggravation of Prior Knee Injury Compensable in Workers Compensation
A worker who suffered an injury to a knee with a pre-existing arthritic condition was awarded workers' compensation benefits. A Wyoming court of appeals reversed a trial level decision and found that evidence existed to sufficiently establish that a fall in the workplace resulted in a material degree to have aggravated the preexisting condition.
"The claimant has a previous history of significant obesity. At 5′2″ tall with weighing close to 250 pounds, she has had extensive and excessive weight bearing on her knees. The left knee has already been replaced secondary to severe end-stage degenerative arthritis. "
The Court held, "The evidence is undisputed that despite Judd's preexisting degenerative condition, she was able to work fulltime without restriction before her work injury, and after her work injury, she suffered debilitating pain that prevented her from putting weight on her knee and from working. The work injury brought Judd's need for surgery to a head, and the Medical Commission erred in denying benefits for the surgery. The case is reversed and remanded for the award of appropriate benefits."
"The claimant has a previous history of significant obesity. At 5′2″ tall with weighing close to 250 pounds, she has had extensive and excessive weight bearing on her knees. The left knee has already been replaced secondary to severe end-stage degenerative arthritis. "
The Court held, "The evidence is undisputed that despite Judd's preexisting degenerative condition, she was able to work fulltime without restriction before her work injury, and after her work injury, she suffered debilitating pain that prevented her from putting weight on her knee and from working. The work injury brought Judd's need for surgery to a head, and the Medical Commission erred in denying benefits for the surgery. The case is reversed and remanded for the award of appropriate benefits."
Judd v. State ex. rel. Wyoming Workers' Safety and Compensation Div., ___P.3d____, 2010 WL 2541673 (Wyo. 2010) Decided June 25, 2010
Tuesday, June 29, 2010
NIOSH Is Developing a Voluntary Roster of Exposed Oil Spill Workers
Monday, June 28, 2010
Louisiana Health Department Reports 162 Cases of Oil Spill Worker Illness
Louisiana DHH Releases Oil Spill-Related Exposure Information
162 Exposure-Related Cases; Officials Continue to Monitor Health Impacts
162 Exposure-Related Cases; Officials Continue to Monitor Health Impacts
The Department is gathering data reported through its surveillance network of doctors, clinics, emergency care locations and medical facilities, which are reporting illnesses and injuries related to the oil spill for the ongoing database. Each exposure-related complaint is followed up on by DHH Office of Public Health staff.
This week's report also includes summaries of air surveillance and seafood surveillance data generated by state and federal agencies, including the EPA, the Center for Toxicology and Environmental Health, a private company working with BP, and the Louisiana departments of Wildlife and Fisheries, and Environmental Quality. The seafood data shows that 262 samples of various kinds of seafood have been sampled and tested for chemicals present in hydrocarbons.
Breakdown of Cases by Category:
- Of the workers who reported illnesses, 120 were male, eight were female. Of the general public, 9 were male, while 25 were female. Most of those individuals who reported illnesses were between the ages of 18 and 64.
- Most workers either utilized an emergency room or urgent care center, or a clinic or physician's office (104 and 21, respectively). Nineteen workers and two members of the general public with mild symptoms had short hospitalizations.
Questions about exposure-related illnesses can be directed to the Louisiana Poison Center: 1-800-222-1222. The Poison Center is staffed 24-hours a day and can provide medical management advice. To report an exposure-related illness, call 1-888-293-7020.
The full Oil Spill Surveillance Report is available here. The report will be generated by DHH weekly and posted on www.dhhemergencynews.com.
DHH's Office of Public Health, Section of Environmental Epidemiology & Toxicology gathers and analyzes information provided by surveillance sites, including hospital emergency departments, outpatient clinics, physician's offices and the Louisiana Poison Center.
OSHA Issues an Interim Guidance to Protect Health of Oil Spill Workers & Volunteers
OSHA has issued 7 recommendations to protect the health and safety of Deepwater Horizon workers and volunteers. Exposures to toxic chemicals and physical agents, heat, fatigue and psychological stress remain a focal point of concern. The document discusses the serious health effects of crude oil and il dispersant exposure.
To read more about petroleum exposure and workers' compensation click here.
Click here for more information on how Jon L Gelman can assist you in a claim for workers' Compensation claim benefits. You may e-mail Jon Gelman or call 1-973-696-7900.
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