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(c) 2010-2026 Jon L Gelman, All Rights Reserved.

Tuesday, October 22, 2013

BART strike could have long-term impact on unions

Today's post was shared by Steven Greenhouse and comes from www.sfgate.com

A few days before it all went down the tubes, Art Pulaski, executive secretary-treasurer of the California Labor Federation, had this to say on the organization's website:
"Whether BART closes down this week will come down to one issue and one issue only: whether the BART Board of Directors shows leadership or continues to act to hold Bay Area transit riders hostage by using the same playbook a small minority of elected officials in Washington, DC have used to close down our federal government."
BART riders and other denizens of the Bay Area so far haven't seen it that way. Quite the reverse: The unions are the hostage takers - a furious public has said so in overwhelming numbers. The unions are the ones who have closed down BART.
And, like the Republican Party in Washington, the unions appear to have suffered some serious damage. "The danger to labor is if the strike goes on for a while, then the unthinkable begins to be discussed - like banning all mass transit strikes," said Harley Shaiken, a labor economist at UC Berkeley.
That discussion has already begun, in letters from California lawmakers to Gov. Jerry Brown, from state Sen. Mark DeSaulnier, D-Concord, who said he "looking into legislation that could prevent future strikes," a petition drive by a Democratic Assembly candidate in the East Bay seeking the same, and a piece by editorial page editor John Diazin Sunday's Chronicle supporting a Republican proposal that BART unions be made to honor the no-strike clause in...
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Kansas SC suspends former AG’s law license indefinitely | Legal Newsline

Today's post was shared by Legal Newsline and comes from legalnewsline.com

The Kansas Supreme Court has suspended former state Attorney General Phill Kline’s law license indefinitely.
The high court released its decision Friday.
Kline
“As fully detailed below, after reviewing each instance of misconduct found by the panel, we find clear and convincing evidence that Kline committed 11 (Kansas Rules of Professional Conduct) violations,” according to the court’s per curiam opinion.
“In assessing discipline, we have considered the facts and circumstances of each violation; the ethical duties violated by Kline to the public, the legal system, and the legal profession; the knowing nature of his misconduct; the injury that resulted from the misconduct; the existence of aggravating and mitigating factors; and the applicable advisory American Bar Association Standards for imposing discipline.
“Ultimately, after applying that framework, we reject the Disciplinary Administrator’s suggestion of disbarment and conclude Kline’s misconduct warrants indefinite suspension, the discipline recommended by the panel.”
In October 2011, a panel for the Kansas Board for Discipline of Attorneys recommended that Kline should have his state law license suspended indefinitely.
Kline served as the state’s top lawyer from 2003 to 2007, and as Johnson County District Attorney from 2007 to 2009.
The three-member panel pointed to Kline’s actions during investigations of abortion...
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Facing lawsuits over deadly asbestos, paper giant launched secretive research program

By 2007, the Georgia-Pacific research program, approved by Childs, was in full swing. The first step was to try to re-create both wet and dry asbestos-containing joint compound since, Holm said in his deposition, no usable amounts of actual product could be located.
The re-created compound was applied to wallboard, allowed to dry and then sanded. The dust was shipped to a laboratory near Geneva, where Bernstein supervised a series of rat experiments. Lab workers wore “moon suits” to protect themselves from asbestos fibers.
In a pilot study, the rats were divided into three groups of 14 and confined in tubes for five days, six hours a day. The control group breathed filtered air. The second group breathed chrysotile fibers, the third a mixture of chrysotile and aerosolized joint compound particles.
The rats were killed after exposure and their lungs and pleural tissue were examined. The “chrysotile exposed lungs had the same appearance as the filtered-air controls,” Bernstein and his co-investigators reported. No obvious lung damage, in Bernstein’s view, translated to little or no cancer risk.
In a later experiment, one group of rats inhaled re-created Ready-Mix containing chrysotile. Another group inhaled amosite asbestos, part of the amphibole family. The rats exposed to chrysotile showed “no pathology in either the lung or the pleural cavity,” Holm testified in his deposition. Those that breathed amosite showed “both...
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Monday, October 21, 2013

Your prescription history is their business

Drug history
Think you can keep a medical condition secret from life insurers by paying cash for prescription meds? Think again.

A for-profit service called ScriptCheck exists to rat you out regardless of how diligent you are in trying to keep a sensitive matter under wraps.
ScriptCheck, offered by ExamOne, a subsidiary of Quest Diagnostics, is yet another example of data mining — using sophisticated programs to scour databases in search of people's personal information and then selling that info to interested parties.

To be sure, life insurers have a need to know as much as possible about the people they cover. This helps mitigate risk and potentially keep rates affordable for everyone.

But for anyone who is taking an antidepressant, say, or being treated for a chronic condition, privacy can be a key consideration. You may not want employers — or potential employers — to know what you're taking. By the same token, you may not want to risk a potentially sharp increase in insurance premiums.

"It's a tough issue," said David Bryant, a Los Angeles life and health insurance broker. "From the consumer's perspective, you may want to keep certain things under wraps. But when you buy a policy, an insurer will want to pull all information about you."

And thanks to ScriptCheck, the insurer doesn't have to give things a second thought. By purchasing this or a similar service, the insurer can be notified of all prescriptions you've filled in recent years, regardless of how...
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Computer woes plague Pa. worker comp system

Today's post was shared from philly.com.

New software was designed to modernize the process of filing claims. Instead, the opposite has happened, according to interviews with attorneys, judges and others who use the system.

The glitches range from being unable to upload claims or other supporting legal documents into the system to having court paperwork disappear.

The result: Injured workers and their lawyers have been unable to get hearings, creating a backlog of cases at the Labor and Industry Department's Bureau of Workers' Compensation.

Attorneys for workers, employers and insurance companies are, in some cases, not getting notified of decisions in their cases. And judges and their staff have even been unable to upload critical documents into the system.

"The intent was good, but the delivery has failed," said Philadelphia attorney Leonard A. Cohen, who represents injured workers and who is on a steering committee working with the state to oversee the implementation of the system. "We are all in favor of hanging in here. But in the meantime, the [new software] is causing the system to almost come to a halt."

The new system, designed by New York-based Deloitte Consulting LLC, went live on September 9 and the problems started immediately.

Cohen said he has filed 20 petitions on behalf of clients seeking workers' compensation since early September, and not one has been assigned to a...


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The Future of Workers' Compensation

Congress has pushed the deadline for dealing with social issues and expenditures until after Election Day. That still leaves many issues including the future of Social Security and the delivery of medical benefits unaddressed. Those issues are closely intertwined with the patchwork of national programs called workers' compensation. Today's post was shared by Kaiser Health News and comes from www.kaiserhealthnews.org

The deal President Barack Obama, Republican and Democratic lawmakers reached to reopen the federal government and raise the debt ceiling includes a bipartisan panel charged with producing a long-term budget agreement.
Led by Senate Budget Committee Chairman Patty Murray, D-Wash., and House Budget Committee Chairman Paul Ryan, R-Wisc., the 29-member panel has a Dec. 13 deadline to reach consensus, a timeframe that seems optimistic considering the bitter partisan showdown over the health law that resulted in a 16-day government shutdown of the government and risked federal default.
In remarks Thursday, the president called for a new era of bipartisan cooperation on Capitol Hill. “To all my friends in Congress, understand that how business is done in this town has to change,” the president said. He noted that the nation’s fiscal challenges are the “long-term obligations that we have around things like Medicare and Social Security.  We want to make sure those are there for future generations. “
In a joint statement, Murray and Ryan pledged to work together to find a way around the automatic spending cuts known as “sequestration” now governing federal spending. “We hope we can reduce the deficit in a smarter way. We hope to restore stability to the budget process and end the lurching from crisis to crisis,” they said.
Medicare currently accounts for 16 percent of the federal budget, a share that will grow as more baby...
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Exposure to Toxic Environmental Agents

The American College of Obstetricians and Gynecologists Committee on Health Care for Underserved Women
American Society for Reproductive Medicine Practice Committee
The University of California, San Francisco Program on Reproductive Health and the Environment

Committee OpinionThis Committee Opinion was developed by the American College of Obstetricians and Gynecologists Committee on Health Care for Underserved Women and the American Society for Reproductive Medicine Practice Committee with the assistance of the University of California, San Francisco (UCSF) Program on Reproductive Health and the Environment. The Program on Reproductive Health and the Environment endorses this document. This document reflects emerging clinical and scientific advances as of the date issued and is subject to change. This information should not be construed as dictating an exclusive course of treatment or procedure to be followed.
PDF Format
ABSTRACT: Reducing exposure to toxic environmental agents is a critical area of intervention for obstetricians, gynecologists, and other reproductive health care professionals. Patient exposure to toxic environmental chemicals and other stressors is ubiquitous, and preconception and prenatal exposure to toxic environmental agents can have a profound and lasting effect on reproductive health across the life course. Prenatal exposure to certain chemicals has been documented to increase the risk of cancer in childhood; adult male exposure to pesticides is linked to altered semen...
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Flavorings and Fragrances: A Newly Engineered Problem in the Workplace

Flavorings and fragrances have ben a perennial problem in the workplace. They have created and contributed to occupational exposures and diseases. Some exposure have led to civil lawsuits, beyond workers' compensation claims. Today's post is shared from nytimes.org

Vanilla, saffron, patchouli. For centuries, spices and flavorings like these have come from exotic plants growing in remote places like the jungles of Mexico or the terraced hillsides of Madagascar. Some were highly prized along ancient trading routes like the Silk Road.

Now a powerful form of genetic engineering could revolutionize the production of some of the most sought-after flavors and fragrances. Rather than being extracted from plants, they are being made by genetically modified yeast or other micro-organisms cultured in huge industrial vats.

“It’s just like brewing beer, but rather than spit out alcohol, the yeast spits out these products,” said Jay D. Keasling, a co-founder of Amyris, a company based here that is a pioneer in the field. However, while yeast makes alcohol naturally, it would not produce the spices without the extensive genetic rejiggering, which is called synthetic biology.

The advent of synthetic biology raises thorny economic and regulatory issues, such as whether such yeast-made ingredients can be called natural and whether developing countries dependent on these crops will be hurt.

Supporters say the technique could benefit food and cosmetic companies, and...
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….

Jon L. Gelman of Wayne NJ is the author NJ Workers’ Compensation Law (West-Thompson) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson). 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.

Sunday, October 20, 2013

Where is the Deep Water?

NJ Appellate Court allowed the assertion of a workers' compensation statutory lien against a liability award (NJSA 34:15-40), where the compensation insurance company paid the initial medical benefits without prejudice following a detailed dismissal by the Compensation Court before trial. This decision has far reaching consequences in defining when, on the timeline,  an insurance carrier's actions should trigger responsibility.

Workers' Compensation was designed as a summary and expeditious system paying injured workers who suffer an injury or illness at work. The benefits of treatment and temporary disability benefits are triggered by the event or manifestation of injury, and should flow quickly to the injured worker without a long, burdensome, and litigious process.

The payment of  major medical benefits by an employer, in the past, under The Sheffield Doctrine, has been considered to act as an estoppel, barring the denial of the compensation claim. The NJ Legislature modified its Workers' Compensation Act several decades ago, and allowed for the payment of medical benefits, without prejudice. The consequence  is that the injured worker is lulled into a sense of false security relying upon the implied acceptance of compensability. Albeit, the payment extends the statute of limitation for filing a formal claim.

The Court's dismissal, in the Greene matter, barring the assertion of the lien by the workers' compensation insurance company, was reversed and the lien enforced from the liability award.

Interestingly, the Court did not note that the technique of ordinary settlement, by payment of unauthorized medical payments, and/or for waiver of the right to appeal, was a common practice before the legislative enactment of NJSA 34:15-20. AIG in this case chose to "have your cake and eat it too."

Historically, prior to the legislative enactment of lump sum payments, pursuant to NJSA 34:15-20, voluntary dismissals were utilized as vehicle to compromise dependency, and other claims, for settlement. In those instances, following the dismissal of the workers' compensation claim, the parties would enter into a settlement, albeit a fiction, to settlement of the right to appeal and a letter of payment would be exchanged and/or a Release would be executed. Any potential was extinguished.

Beside the increased necessity of reducing the dismissal terms to writing, and/or stipulation of dismissal, the issue is generated of far the insurance company can step into the deep water before it comes committed to a decision. The Legislature needs to revisit this issue, and redefine the timeline for irrevocable commitment of responsibility, otherwise the initial Legislative intent for an expeditious, remedial administrative system will be defeated.

KELLY GREENE v AIG CASUALTY COMPANY, 
NJ App Div 2013 (Decided October 16, 2016) --- A.3d ----, 2013 WL 5629045 (N.J.Super.A.D.)

….
Jon L. Gelman of Wayne NJ is the author NJ Workers’ Compensation Law (West-Thompson) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson). 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.

New Jersey Supreme Court rules state must begin allowing same-sex marriages

Statutory dependency in workers' compensation claims will have an expanded meaning on Monday when same-sex marriages are allowed beginning on Monday in New Jersey. Today's post is shared from jurist.org.

The New Jersey Supreme Court [official website] on Friday ruled [text, PDF] that the state must begin recognizing same-sex marriages. The court declined to issue a stay on a lower court's decision [text, PDF] pending appeal. The lower court ruling found that, in light of US v. Windsor [SCOTUSBlog backgrounder; JURIST report], the status of civil unions deprive same-sex couples of federal benefits enjoyed by married couples. That ruling was challenged [JURIST report] by Governor Chris Christie [official website], who has argued recognition should be delayed pending a statewide referendum. Chief Justice Rabner rejected the state's claim that it will suffer irreparable harm if the order is allowed to be enforced, finding that no tangible harm can be found. The unanimous court held:

Because, among other reasons, the State has not shown a reasonable probability of success on the merits, the trial court's order directing State officials to permit same-sex couples, who are otherwise eligible, to enter into civil marriage starting on October 21, 2013 remains in effect. The lower court's ruling was allowed to stand, pending a hearing on the merits in January.

The heated debate regarding same-sex marriage [JURIST backgrounder] is one of the most polarizing [JURIST op-ed] issues currently facing the US legal community....

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Found on


Breaking: Wal-Mart workers on strike, defying firings

Today's post was shared by Steven Greenhouse and comes from www.salon.com


Breaking: Wal-Mart workers on strike, defying firings
Breaking: Wal-Mart workers on strike, defying firings
Dozens of workers at a Florida Wal-Mart walked off the job this morning, mounting the first Wal-Mart store work stoppage since the firings of 20 workers who participated in an extended June strike.
“I don’t have fear,” striker Jose Bello told Salon in Spanish. “I don’t have any fear. They could punish us – we’re used to that.” Bello said that at least 80 of the employees at his Hialeah, Fla., store had joined the strike, which began at 9 a.m. Wal-Mart did not immediately respond to a request for comment.
“I decided a long time ago to do this, but we needed to come together as a group to make the decision,” said Bello. He described the strike as a response to “abuse and discrimination” by managers, as well as insufficient hours. “I have four years here,” he said, and “they’re give me 29 hours … as a human being, I want 40 hours.” Bello told Salon that workers met Thursday and decided to strike.
As Salon first reported, workers last fall mounted the first ever coordinated U.S. Wal-Mart strikes, including a high-profile “Black Friday” walkout the day after Thanksgiving. The group behind those strikes was OUR Walmart, a non-union labor group closely tied to the United Food &...
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Naloxone Expansion In California Will Enable Family, Friends To Save Lives At Home

Today's post was shared by Huffington Post and comes from www.huffingtonpost.com

Family and friends of more drug users in California will soon be able to reverse overdoses at home with a lifesaving injectable drug.
On Thursday, Gov. Jerry Brown signed into law Assembly Bill 635, authored by Assemblymember Tom Ammiano, which will expand the use of the drug naloxone. Naloxone, also known by its brand name Narcan, can be administered to a person suffering from an opiate overdose to restore breathing.
Naloxone is non-addictive, non-toxic, fairly cheap and is easy to administer through the nose or intravenously. It was approved by the Food and Drug Administration in 1971 and is stocked in thousands of emergency rooms, ambulances and post-surgery recovery rooms across the country. But frequently, opiate users don't make it to the hospital in time.
For that reason, in 2008, California implemented a pilot program in seven counties that allowed drug users, their family and friends, health care professionals and addiction counselors to administer naloxone in an emergency -- and be protected from civil or criminal liability if anything goes wrong.
The bill that Brown signed into law extends the program across all of California.
Starting Jan. 1, drug users and their family and friends will be able to request a naloxone prescription from a doctor or addiction treatment program.
For example, "if a teen is known to be picking up OxyContin, their family might -- in the treatment process -- want a naloxone prescription, just in case," Ammiano's communications director Carlos...
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The Damage Done

Today's post was shared by Steven Greenhouse and comes from www.nytimes.com

The government is reopening, and we didn’t default on our debt. Happy days are here again, right?
Well, no. For one thing, Congress has only voted in a temporary fix, and we could find ourselves going through it all over again in a few months. You may say that Republicans would be crazy to provoke another confrontation. But they were crazy to provoke this one, so why assume that they’ve learned their lesson?
Beyond that, however, it’s important to recognize that the economic damage from obstruction and extortion didn’t start when the G.O.P. shut down the government. On the contrary, it has been an ongoing process, dating back to the Republican takeover of the House in 2010. And the damage is large: Unemployment in America would be far lower than it is if the House majority hadn’t done so much to undermine recovery.
A useful starting point for assessing the damage done is a widely cited report by the consulting firm Macroeconomic Advisers, which estimated that “crisis driven” fiscal policy — which has been the norm since 2010 — has subtracted about 1 percent off the U.S. growth rate for the past three years. This implies cumulative economic losses — the value of goods and services that America could and should have produced, but didn’t — of around $700 billion. The firm also estimated that unemployment is 1.4 percentage points higher than it would have been in the absence of political confrontation,...
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