CMS/MSP Statute Tolling Case Set for Hearing by Federal Court

The claim filed by the US government for reimbursement against multiple law firms and insurance companies has been scheduled for a hearing September 13, 2010 on the pending motions. The Federal government, who has claimed that the Statute of Limitation was tolled, is seeking reimbursement involving over 900 specific claims that were paid involving a liability action. The gross settlement was $275 Million for which payment was made in 2003.

The Centers for Medicare and Medicad Services (CMS) under the Medicare Secondary Payer Act has alleged that it was not reimbursed. The Government contends that the Statute of Limitations under 28 U.S.C.2415 is 6 years and not three years. Alternatively the Government has argued that the Statute  f Limitations was tolled under 28 U.S,C, 2416(c), which permits tolling where a claim has accrued, but "facts material to the right of action are not known and reasonably could not be known" by the Government.

The attorneys and insurance companies contend that the Statute of Limitations is a valid defense since the the claim arose when the defendants were originally obligated under the settlement agreement to make payment. Travelers and AIG, as parent companies,  claim that they are not proper parties to the case and should be removed as parties. The insurance companies, in a brief filed in June 2003, also allege that the bar to permitted the statute of limitation tolling should have been dropped under Federal statute. The stated in  "....once the facts making up the 'very essence of the right of action' are reasonably knowable."

United States of America v. James J. Stricker, et al., Case No. 1:09-cv-02423-KOB (USDCT AL).

Related Articles:

Amended Complaint Filed in CMS Recovery Action Against Law Firms

Click here to read more about Medicare Secondary Payer Act and workers' compensation.

For over 3 decades the Law Offices of Jon L. Gelman 1.973.696.7900 jon@gelmans.com have been representing injured workers and their families who have suffered occupational exposures.

Spinal Kinetics-A New Computer Assisted Radiographic Mensuration Analysis

A new approached to the objective measurement of spinal damage is now being offered by Spinal Kinetics. The technique provides standards for the measurement for spinal ligamentous assessments using Computer Assisted Radiographic Analysis (CRMA). Board Certified Radiologists utilize a new computer assisted program to  determine: a treatment plan, ability to play and work, as well a pain management.


Click here to read more about this Spinal Kinetics
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For over 3 decades the Law Offices of Jon L. Gelman 1.973.696.7900 jon@gelmans.com have been representing injured workers and their families who have suffered occupational exposures.

Ballot Issue in Washington State to Privatize Workers Compensation

The countdown is underway and the rhetoric is becoming inflamed, as private insurance carriers in Washington State battle to privatize the workers compensation system.  $1 Million in donations have been accepted to date.


"There is a ballot initiative being presented by the large industries of Washington State in the next election cycle that could divide a worker’s overall notion of how they feel politically and what is in their own personal best interest. It is in regards to workers compensation and the fate of theWashington State Department of Labor and Industries.


"The Building Industry Association of Washington (BIAW) introduced Initiative 1082. The BIAW is a conservative organization who “fight against” government on behalf of private industry. They are specifically geared to improving the profit of the building industry through deregulation, much like what happened with the banking industry in the early 2000’s, which resulted in a global economic collapse.


"Their intent with I-1082 is to privatize workers compensation insurance in Washington state. In theory this would bring down premiums due to competition, or that’s what many who promote privatization contend. Others who back this initiative say that this would allow employers more choice on their workers compensation plans and thus be able to better protect their workers.


"With help of private donation from Washington businesses large and small, the BIAW spent about $500,000 to put the I-1082 on the ballot. This initiative was also largely backed by those who would reap the profits from it, the insurance companies. Liberty Mutual, the new corporate parent of Safeco, has given $300,000 to the campaign, a mere drop in the bucket compared to the expected profit to be had if the initiative passes.

Complete Blog: http://tinyurl.com/2a8egv5 Philips  Webster

The Complete Ballot Initiative: http://tinyurl.com/2bb8xyl

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For over 3 decades the Law Offices of Jon L. Gelman 1.973.696.7900 jon@gelmans.com have been representing injured workers and their families who have suffered occupational exposures.
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Related Articles:

• I-1082: Don't sign it, don't vote for it

More Related articles:

• Workers comp initiative steps closer to ballot (sfgate.com)
• Workers comp initiative steps closer to ballot (dailycaller.com)
• Workers comp initiative qualifies for Wash. ballot (seattletimes.nwsource.com)
• A challenge to BIAW's Tom McCabe (horsesass.org)
• Republicans back BIAW initiative (seattlepi.com)

State Colleges Seek to Privatize Workers' Compensation Coverage

NJ State colleges and universities want to opt out of the costly NJ State claims network and are seeking to establish a joint fund to cut costs. Yesterday S2067 advanced in he NJ Legislature and was transfered to the Senate Budget and Appropriations Committee. 

Senate Bill No. 2067 of 2010 authorizes two or more State colleges or universities to form a State college risk management group and to participate in joint liability funds, risk management programs, and related services provided by the group, subject to certain regulatory oversight by the State Treasurer. Currently, the Division of Risk Management in the Department of the Treasury administers certain insurance coverage programs for various agencies of State government, including State colleges. This bill would modify that authority in order to allow State colleges to form their own risk management groups and joint liability funds to provide that coverage.

For over 3 decades the Law Offices of Jon L. Gelman 1.973.696.7900 jon@gelmans.com  have been representing injured workers and their families who have suffered occupational exposures.

Related Workers' Compensation Articles:

• New Jersey Task Force Recommends Privatization of Workers Compensation
• Budget Crisis Triggers NJ DWC Closing

More Related Articles:

• Tight budgets force local colleges to lay off employees (nj.com)
• Keenan Develops Strategic Alliance With SAFER and i-SAFE to Assist School Districts in Addressing Internet Safety Education and E-Rate Compliance (prnewswire.com)

Workplace Safety is the Most Important Issue This Labor Day

More than 85% of of the workers polled this Labor Day consider workplace safety as the most important issue. The study, "Public Attitudes Towards and Experiences with Workplace Safety," draws on dozens of surveys and polls conducted by NORC, one of the nation's leading academic survey operations, think tanks and public opinion firms. NORC’s analysis sought to gain a picture of Americans' experiences with workplace safety issues. The study was done for the Public Welfare Foundation, based in Washington, DC, which supports efforts to improve workers' rights.

Click here to read the study.

For over 3 decades the Law Offices of Jon L. Gelman 1.973.696.7900 jon@gelmans.com  have been representing injured workers and their families who have suffered occupational exposures,

Related articles:

• Workers rate safety most important workplace issue in new Labor Day study (scienceblog.com)
• Workplace safety records go online this fall (cbc.ca)
• 85% of Americans Say Workplace Safety Regulations are "Very Important" (workinprogress.firedoglake.com)
• Workplace safety website falls short of pledge (newswire.ca)
• Workers rate safety most important workplace issue in new Labor Day study (physorg.com)
• Workplace safety ranked #1 labor standard [The Pump Handle] (scienceblogs.com)

There is No Good Asbestos -- It Is All a Killer

Chrysotile Asbestos and Mesothelioma

• Article

Jump to

• References

Richard A. Lemen

Assistant Surgeon General, U.S. Public Health Service (retired), National Institute for Occupational Safety and Health (retired), Canton, Georgia, E-mail: richard@ralemen.org

Citation: Lemen RA 2010. Chrysotile Asbestos and Mesothelioma. Environ Health Perspect 118:a282-a282. doi:10.1289/ehp.1002446

Online: 01 July 2010

Editor’s Note: We appreciate Lemen’s concern about the incorrect statement that was included in the original Editor’s Summary for Tse et al. (2010), and we regret the error. The Editor’s Summary has been corrected in the online version of the paper, and an erratum was published in the June issue of EHP [118:A240 (2010)]; the text of the erratum is included below:

The Editor’s Summary for the article “Are Current or Future Mesothelioma Epidemics in Hong Kong the Tragic Legacy of Uncontrolled Use of Asbestos in the Past?” by Tse et al. [Environ Health Perspect 118:382–386 (2010); doi:10.1289/ehp.0900868], has been corrected online: specifically, “(which has been implicated but not conclusively established as a cause of mesothelioma)” has been deleted.

The author testifies in asbestos litigation on behalf of plaintiffs.

The Editor’s Summary for the article by Tse et al. (2010) stated the following:

Assuming an average latency of 42 years, the authors predict that incidence rates will peak in 2009 and that diagnoses will peak in 2014. However, they caution that ongoing use of chrysotile asbestos (which has been implicated but not conclusively established as a cause of mesothelioma) and the release of asbestos fibers from older buildings during demolition or renovation may slow the projected decline.

The statement concerning chrysotile asbestos being “implicated but not conclusively established as a cause of mesothelioma” is inconsistent with current scientific opinion. I refer you to the most recent evaluation by the International Agency for Research on Cancer in which Straif et al. (2009) stated,

Epidemiological evidence has increasingly shown an association of all forms of asbestos (chrysotile, crocidolite, amosite, tremolite, actinolite, and anthophyllite) with an increased risk of lung cancer and mesothelioma. Although the potency differences with respect to lung cancer or mesothelioma for fibres of various types and dimensions are debated, the fundamental conclusion is that all forms of asbestos are “carcinogenic to humans” (Group 1).

In addition, opinions such as that expressed in the Editor’s Summary are advanced only by scientists with prochrysotile industry bias.

When I wrote the draft for the first IARC Monograph on asbestos in 1976, which the expert committee accepted and published in 1977 as IARC Monograph Volume 14, a similar conclusion was stated: “Many pleural and peritoneal mesotheliomas have been observed after occupational exposure to crocidolite, amosite and chrysotile.” Since then—more than 30 years—science has not changed its opinion that all forms of asbestos, including chrysotile, cause mesothelioma.

In fact, in the article that is the subject of the Editor’s Summary, Tse et al. (2010) did not indicate that chrysotile is not a cause of mesothelioma; on the contrary, they stated the following:

Although the mesothelioma incidence is anticipated to decline in the coming decades, it may not decrease to background risk levels given that chrysotile consumption has not been banned under the current legislation and that secondary asbestos exposure from the environment will likely continue. Nevertheless, the hypotheses generated from this ecologic study need further confirmation by subsequent analytic studies. The present study provides supportive evidence for an immediate and global ban on asbestos use.

I hope that future Editor’s Summaries will reflect the conclusions of the article and not put forth statements that are not supported by mainstream science. I also support the conclusion of Tse e al. (2010) for “an immediate and global ban on asbestos use.”

References Top

1. IARC 1977. Asbestos. IARC Monogr Eval Carcinog Risk Hum 14: 1–106. FIND THIS ARTICLE ONLINE
2. Straif K, Benbrahim-Tallaa L, Baan R, Grosse Y, Secretan B, El Ghissassi F, et al. 2009. A review of human carcinogens—part C: metals, arsenic, dusts, and fibres. Lancet Oncol 10: 453. –454. FIND THIS ARTICLE ONLINE
3. Tse LA, Yu IT, Goggins W, Clements M, Wang XR, Au JS, et al. 2010. Are current or future mesothelioma epidemics in Hong Kong the tragic legacy of uncontrolled use of asbestos in the past? Environ Health Perspect 118: 382–386. FIND THIS ARTICLE ONLINE

Click here to read more about asbestos related disease and claims for benefits. 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 asbestos related illnesses.

Related articles

• Is there still a lot of asbestos in American homes? (greenanswers.com)
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• Tell Canada to Quit Targeting the Developing World With Deadly Asbestos (globalpoverty.change.org)
• Ban asbestos worldwide: doctors (cbc.ca)

Slow Economic Grown Forecasts Dismal Future for Workers Compensation

The announcement today of slower economic growth predicts a gloomy future for the US Workers' Compensation industry. A 2nd Quarter growth rate of 1.6% is far below the minimum 2.5% rate necessary to halt the increasing numbers of unemployed workers.


The US workers' compensation industry is dependent on premiums, based on wages, paid to workers. A lack of workers on payrolls stalls the economic engine necessary to fund the system. The predictable response is an increase in rates chargeable to fewer employees in a time when the country faces a predictable deflation rate in advance of potentially soaring rates based upon inevitable inflation resultant from increased governmental spending. Seven more years, at a minimum of high unemployment has been predicted.


Compounding the scenario is the fact that the historical pattern of the past will most likely not allow for a major rebound as the facts of economic growth, globalization and transfer of manufacturing overseas has devastated the base of growth for the national workers' compensation system. 


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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Is The Recovery Of The Workers’ Compensation System An Illusion?

Hip Implants Recalled Due to Failure

Johnson and Johnson has recalled 2 Hip Implants because of failure. The two implants were made by the DePuy Orthopaedics unit of Johnson and Johnson. The decision to withdrawn the products was based upon the fact that many patients require a second hip replacement because of product failure.

DePuy release a statement today that they two products being recalled were: the ASR XL Acetabular System, a hip socket used in traditional hip replacement, and the ASR Hip Resurfacing System, a partial hip replacement that involves placing a metal cap on the ball of the femur, a method intended to preserve more bone. There about 93,000 of the defective appliances that have been implanted worldwide.

For over two years the US Food and Drug Administration (FDA) has been besieged with complaints about the failure of the devices and painful surgery to replace them.

The office of Jon L. Gelman has advocated for consumer rights and has helped those who have unfortunately received defective medical devices. Please call 1-973-696-7900 or e-mail for further information.

Workers' Compensation and Joint Replacement

• Preventing Joint Replacement Surgery in Workers' Compensation Claims 

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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.

Veterans at Increased Risk for Mesothelioma

The US Department of Veterans Affairs  has now recognized that veterans may be at an increased risk for the development of mesothelioma, a cancer associated with exposure to asbestos fiber. The government has announced that during World War II, several million people employed in the U.S. shipyards. U.S. Navy Veterans were exposed to amosite and crocidolite since these varieties were used extensively in military construction.

How Veterans Have Been Exposed to Asbestos during Military Service

Veterans who served in some of the following major occupations may have been exposed to asbestos:

• Mining
• Milling
• Shipyard work
• Insulation work
• Demolition of old buildings
• Carpentry and construction
• Manufacture and servicing of friction products, such as clutch facings and brake linings
• Manufacture and installation of products, such as roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment

Health Problems Associated with Exposure to Asbestos

Breathing asbestos mainly causes problems in the lungs and the membrane that surrounds the lungs, including:

• Asbestosis – Scarring of lung tissue that causes breathing problems, usually in workers exposed to asbestos in workplaces before the Federal government began regulating asbestos use (mid-1970s).
• Pleural plaques – Scarring in the inner surface of the ribcage and area surrounding the lungs that can cause breathing problems, though usually not as serious as asbestosis. People living in areas with high environmental levels of asbestos, as well as workers, can develop pleural plaques.
• Cancer - The two types of cancer caused by exposure to asbestos are lung cancer and mesothelioma, a cancer of the thin lining surrounding the lung (pleural membrane) or abdominal cavity (the peritoneum).

 The VA has indicated that exposed veterans may be eligible for governmental benefits including: Health Care Benefits, Disability Compensation Benefits, and other benefits including home loans, vocational rehabilitation and education.

Click here to read more about asbestos related disease and claims for benefits. 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 asbestos related illnesses.

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$7 Million Verdict Upheld for Wife of Asbestos Worker for Handling Workers Clothes

Stay Lifted in RICO Class Action Against Wal-Mart

A Federal Judge has lifted a stay in a class-action law suit against Wal-Mart that charges the company with conspiring with workers' compensation insurance companies to limit medical treatment for injured workers. The stay was lifted by U.S. District Court Judge Robert Blackburn on July 1, 2010. 

The claim, on behalf of 7,000 Colorado Wal-Mart workers charges conspiracy with: Claims Management Inc., American Home Assurance Co. and Concentra Health Services Inc., to control medical treatment, who may have been entitled to treatment under the Colorado Workers Compensation Act. Other allegations of fraud are also asserted.

Gianzero et al. v. Wal-Mart Stores et al., No. 09-00656, stay lifted (D. Colo. July 1, 2010).

Click here for additional articles about Wal-Mart and workers' compensation. 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 asbestos related illnesses.

$7 Million Verdict Upheld for Wife of Asbestos Worker for Handling Workers Clothes

A NJ Appellate Court upheld an award of $7 Million dollars to the wife of an asbestos worker. The spouse washed her hushand's street clothes  that he used at work. She developed mesothelioma, a cancer associated with exposure to asbestos fiber, as a result of laundering her husband's contaminated clothing.

The worker was employed at the Exxon Refinery in Linden, NJ where he was exposed to asbestos while removing insulation from equipment at the plant.. The company held safety meetings and gave the workers helmets but did not furnish respirators to protect them from the hazards of asbestos, a know carcinogen.

Mesothelioma, a cancer associated with the exposure to asbestos fiber, has a long latency period. It may take between 15 to 35 years to develop after the first exposure to asbestos fiber. 

It has been long recognized that household contacts, ie. spouses and family members, who come into contact with asbestos workers may develop asbestosis, lung cancer and mesothelioma. The first know legal action was brought in New Jersey successfully for a household contact in 1981 who developed mesothelioma as a result of cleaning her husband's clothes. He had worked at the Union Asbestos and Rubber Company in Paterson, NJ during World War II.

The Court also rejected that the spouse,  also a former employee at Exxon, should have been required to seek benefits under workers' compensation.  

"In our view, the judge's decision here to apply the dual persona doctrine is buttressed by the Supreme Court's pronoun-cement in Olivo, supra, 186 N.J. at 405, to impose a separate duty on employers for injuries to a worker's spouse caused by bystander exposure to the asbestos brought home on work clothes. That is, although Exxon could not be held liable to Bonnie based on her direct occupational exposure, it could be held liable pursuant to Olivo, based on her separate exposure to the asbestos brought home by John from his Exxon job."

"Thus, consideration of the relevant legal principles in light of the disputed evidence presented on the summary judgment motions leads us to the conclusion that there were genuine issues of material fact about the actual extent of Bonnie's and John's exposures to asbestos, which precluded summary judgment. Whether Exxon could be held liable pursuant to the dual persona doctrine require a jury determination. Thus, we affirm the judge's denials of summary judgment."

Anderson v, A.J. Friedman Supply Co. Inc., A5892-07, NJ App Div 2010.

Click here to read more about asbestos related disease and claims for benefits. 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 asbestos related illnesses.

Related Articles

Cancer Risk Passes to Kin of Asbestos Workers
Haledon Man Sues Asbestos Plant For Wife's Death Due to Mesothelioma

History of Asbestos and the Law

Related Research Reports

Protecting Workers' Families A Research Agenda Report of the Workers' Family Protection Task Force
Report to Congress on Workers' Home Contamination Study Conducted Under the Workers' Family Protection Act