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

Tuesday, December 3, 2013

The Workers' Compensation Nuclear Option: Detroit officially enters bankruptcy

The "nuclear option" for a workers' compensation claim is a public entity bankruptcy and Detroit got the Court's approval to go forward with the legal maneuver. Over the course of the last 3 decades, bankruptcy has become a common practice to shield private corporations from product liability claims. Asbestos claims have seen dozen of companies use this legal tactic to reduce payment to less that 5% on the dollar. As corporations struggle for life in this changing economy, workers are now experiencing the effects of bankruptcy ruling to reduce their benefits and break the promise made in 1911 for an efficient and cost effective benefit program. Today’s post is shared from deseretnews.com

Detroit is finally officially bankrupt, a federal bankruptcy judge certified on Tuesday.

"It is indeed a momentous day," U.S. bankruptcy judge Steven Rhodes said at the end of a 90-minute summary of his ruling, USA Today reported. "We have here a judicial finding that this once-proud city cannot pay its debts. At the same time, it has an opportunity for a fresh start. I hope that everybody associated with the city will recognize that opportunity."

Rhodes surprised some observers by saying he would support the city in shaving pension expenses, a key bone of contention. The ruling on pensions has significant implications for others cities elsewhere. In California, for example, cities such as San Bernardino could seize the precedent, the Sacramento Bee suggested.

"But one...
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Are Smokers Really the ACA’s Biggest Losers?

Smoking is a major pre-existing condition in workers' compensation claims and it is also a multiplier for medical conditions that result in malignancies. Penalizing smokers through the ACA (Affordable Care Act) will also have an effect on workers' compensation claims. Today's post was shared by The Health Care Blog and comes from thehealthcareblog.com



Facing thousands in extra insurance costs, smokers appear to be the Affordable Care Act’s (ACA) biggest losers.  Employers are allowed charge smokers up to 50% more for their medical coverage than nonsmokers , starting in 2014.
On November 25, Fox News put it best:  “Obamacare Policies Slam Smokers,” , noting that “smokers are the only group with a pre-existing condition that Obamacare penalizes.”   THCB itself has headlined:  Smokers Face Tough New Rules under Obamacare.
And these headlines are absolutely accurate —  meaning that, with the possible exception of the e-cigarette, ACA is the best thing that has happened to employed smokers ever.
Here is how we arrive at this conclusion.  The data is mixed on whether smokers incur much higher healthcare costs or just slightly higher healthcare costs during their working ages than non-smokers do.  None of the data shows that their costs are lower, but let’s say there is no impact on health spending.
Nonetheless, the following is incontrovertible:  smokers take smoking breaks.
Remarkably, there are no laws specifically governing smoking breaks, and like most other quantifiable human resources issues, no one has quantified them.   But we all observe these breaks, and about a fifth of us participate in them.  They reduce productivity.  By definition, if you are outside smoking, you are not inside...
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Better Pay Now

The movement for an increase in the minimum wage is growing. An increase in wages will have a direct impact on workers' compensation as wages determine rates of compensation benefits.Today's post was shared by Steven Greenhouse and comes from www.nytimes.com

’Tis the season to be jolly — or, at any rate, to spend a lot of time in shopping malls. It is also, traditionally, a time to reflect on the plight of those less fortunate than oneself — for example, the person on the other side of that cash register.
The last few decades have been tough for many American workers, but especially hard on those employed in retail trade — a category that includes both the sales clerks at your local Walmart and the staff at your local McDonald’s. Despite the lingering effects of the financial crisis, America is a much richer country than it was 40 years ago. But the inflation-adjusted wages of nonsupervisory workers in retail trade — who weren’t particularly well paid to begin with — have fallen almost 30 percent since 1973.
So can anything be done to help these workers, many of whom depend on food stamps — if they can get them — to feed their families, and who depend on Medicaid — again, if they can get it — to provide essential health care? Yes. We can preserve and expand food stamps, not slash the program the way Republicans want. We can make health reform work, despite right-wing efforts to undermine the program.
And we can raise the minimum wage.
First, a few facts. Although the national minimum wage was raised a few years ago, it’s still very low by historical standards, having consistently lagged behind both inflation and average wage levels. Who gets...
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Wage Strikes Planned at Fast-Food Outlets

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

Seeking to increase pressure on McDonald’s, Wendy’s and other fast-food restaurants, organizers of a movement demanding a $15-an-hour wage for fast-food workers say they will sponsor one-day strikes in 100 cities on Thursday and protest activities in 100 additional cities.
As the movement struggles to find pressure points in its quest for substantially higher wages for workers, organizers said strikes were planned for the first time in cities like Charleston, S.C.; Providence, R.I.; and Pittsburgh.
The protests have expanded greatly since November 2012, when 200 fast-food workers engaged in a one-day strike at more than 20 restaurants in New York City, the first such walkout in the history of the nation’s fast-food industry.
“There’s been pretty huge growth in one year,” said Kendall Fells, one of the movement’s main organizers. “People understand that a one-day strike is not going to get them there. They understand that this needs to continue to grow.”
The movement, which includes the groups Fast Food Forward and Fight for 15, is part of a growing union-backed effort by low-paid workers — including many Walmart workers and workers for federal contractors — that seeks to focus attention on what the groups say are inadequate wages.
The fast-food effort is backed by the Service Employees International Union and is also demanding that restaurants allow workers to unionize without the threat of...
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If the minimum wage tracked inflation, it would be $4.07 per hour.

Today's post was shared by Steven Greenhouse and comes from online.wsj.com

Speaking at the White House on June 25, Vice President Joe Biden claimed that a higher federal minimum wage was practical and long overdue. "Just pay me [for] minimum wage what you paid folks in 1968," Mr. Biden said, echoing the argument numerous labor unions, left-wing think tanks and activist groups have made.
The logic goes something like this: Had the minimum wage tracked inflation since 1968, it would today be over $10 an hour, so Congress should seek to bring it up to at least that amount. There are two problems with this logic. First, it is inconsistent with other Labor Department inflation data. And second, it presumes that entry-level employees can't get a raise unless the government gives them one.
The federal minimum wage was first set in 1938 at 25 cents an hour. Had it tracked the cost of living since, it would today be $4.07 an hour, based on Labor Department data and the Bureau of Labor Statistics' inflation calculator. This is the only logically consistent "historic" value of the minimum wage, and it's 44% less than the current amount of $7.25.
Advocates of a higher minimum wage arbitrarily selected 1968 as the historical reference point. It's no wonder: That's when federal minimum wage hit its inflation-adjusted high point.
How about picking other arbitrary years to track the minimum wage and inflation? If you used 1948 instead of 1968, the minimum wage's inflation-adjusted value would only be $3.81 an hour. If you chose 1988, the adjusted minimum wage would...
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NJ COLA Bill - Legislative Hearing Scheduled

The NJ Senate Budget and Appropriations Committee will hold a public hearing on a pending COLA bill S613 to increase benefits on 12/5/2013 1:00:00 PM.

The Senate Labor Committee report

The Senate Labor Committee reports favorably and with

committee amendments Senate Bill No. 613.

As amended by the committee, this bill provides, from July 1, 2013

forward, an annual cost of living adjustment (COLA) in the weekly

workers' compensation benefit rate for any worker who has become

totally and permanently disabled from a workplace injury at any time

after December 31, 1979 and for the surviving dependents of any

worker who died from a workplace injury after December 31, 1979.

The COLA would be an amount such that, when added to the

workers' compensation weekly benefit rate initially awarded, the sum

will bear the same percentage relationship to the maximum benefit rate

at the time of the adjustment that the initial rate bore to the maximum

rate at the time of the initial award, except that:

1. The bill reduces the amount of the adjustment as much as

necessary to ensure that the sum of the adjustment and the amount

initially awarded does not exceed the amount which would cause any

reduction of disability benefits payable under the Federal Old Age,

Survivors and Disability Act; and

2. The bill reduces the supplemental workers’ compensation

benefits (but not regular workers’ compensation) for claimants injured

after 1979 by the amount of any Social Security benefits (other than

Social Security disability benefits and any increases in Social Security

benefits due to federal statutory changes after May 31, 1980), Black

Lung benefits, or the employer’s share of disability pension payments

received from or on account of an employer, except that if the worker's

original workers' compensation award was already reduced under

current law, there would be no further reduction of the supplemental

benefits under the bill.

These reductions parallel the reductions provided under current

law for claimants who were injured before 1980. The bill also

provides that no supplemental benefits would be paid in any case

where they are calculated to be less than $5 per week.

Current law requires such annual adjustments in the rate of

workers' compensation benefits for death and permanent total

disability to be paid from the Second Injury Fund (SIF), but only for

cases of injury or death occurring before January 1, 1980. The bill

extends the adjustments paid from the SIF to claims originating after

December 31, 1979, although the adjustments would apply only to

benefits paid on those claims after July 1, 2013, thus avoiding a

backlog of retroactive benefits.

The bill provides that supplemental payments will commence only

after SIF assessments are sufficient to pay them without using General

Fund money. The supplemental benefit payments would start on July

1, 2013 and the Department of Labor and Workforce Development is

required to take into account the supplemental benefits when

calculating the amount of the Second Injury Fund assessment which

starts on January 1, 2013, thus avoiding the need for any General Fund

appropriation.

To avoid an abrupt fiscal impact on the workers’ compensation

system, the bill provides that one third of the supplemental benefit rate

be paid during the first year, two thirds of the rate be paid during the

second year and the full amount be paid during the third and

subsequent years.

The bill sets time limits for workers’ compensation insurers and

self-insured employers to notify the SIF when supplemental workers’

compensation benefits are required under the bill. An insurer or selfinsured

employer is required to provide the notice not more than 60

days after the supplement is awarded or voluntary payment is to begin.

If a failure to notify results in the payment of an incorrect amount of

benefits, the liability for the payment of the supplemental benefits is

transferred from the SIF to the insurer or employer until the required

notice is provided.

The bill makes no change in the provisions of sections 1 and 9 of

P.L.1980, c.83 (C.34:15-95.4 and 34:15-95.5), which provide for the

reduction of certain portions of workers' compensation benefits by the

amount of Social Security disability benefits paid. In addition, the bill

expressly states that the supplemental benefits shall not be paid in a

manner which in any way changes or modifies the provisions of those

sections. The bill, therefore, will have no effect on existing provisions

of State and federal law regarding offsets between workers'

compensation and federal Social Security disability benefits.

The committee amendments provide that the application of the cost

of living adjustment commence on July 1, 2013, instead of July 1,

2011.

This bill was pre-filed for introduction in the 2012-2013 session

pending technical review. As reported, the bill includes the changes

required by technical review, which has been performed.

….
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.

As Hospital Prices Soar, a Single Stitch Tops $500

Medical delivery costs continue to soar and workers' compensation claims costs are running out of ontrol. Cost for emergency medicare are not usually regulated by workers' compensation prorams, eve where balance cillig is removed from the equation. Todays post is shared from the NYTimes.org

With blood oozing from deep lacerations, the two patients arrived at California Pacific Medical Center’s tidy emergency room. Deepika Singh, 26, had gashed her knee at a backyard barbecue. Orla Roche, a rambunctious toddler on vacation with her family, had tumbled from a couch, splitting open her forehead on a table.

On a quiet Saturday in May, nurses in blue scrubs quickly ushered the two patients into treatment rooms. The wounds were cleaned, numbed and mended in under an hour. “It was great — they had good DVDs, the staff couldn’t have been nicer,” said Emer Duffy, Orla’s mother.
Then the bills arrived. Ms. Singh’s three stitches cost $2,229.11. Orla’s forehead was sealed with a dab of skin glue for $1,696. “When I first saw the charge, I said, ‘What could possibly have cost that much?’ ” recalled Ms. Singh. “They billed for everything, every pill.”
In a medical system notorious for opaque finances and inflated bills, nothing is more convoluted than hospital pricing, economists say. Hospital charges represent about a third of the $2.7 trillion annual United States health care...
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NTSB is investigating a Metro North rail accident in Bronx, NY

The National Transportation Safety Board is investigating a Metro North passenger train accident in Bronx, New York that occurred at approximately 7:20 am on December 1, 2013.

NTSB Rail Safety Investigator Mike Flanigon is the investigator-in-charge, leading a multi-disciplinary team of NTSB personnel. Board Member Earl Weener served as the principal spokesman during the on-scene phase of the investigation.

Monday, December 2, 2013

Consumers, Employers Face New Round Of Health Coverage Challenges, Decisions

This news roundup is shared from kaiser.org
The Washington Post: Consumer Tips For Healthcare.gov Show Administration's Cautious Optimism
The Obama administration on Sunday reported vast improvement with the HealthCare.gov health-insurance portal that opened with extensive glitches in October, while acknowledging that the site still needs more work. One sign of ongoing problems came in the form of a blog entry and infographic that Health and Human Services Secretary Kathleen Sebelius published on Huffington Post. Both items provide tips for consumers visiting the site, most notably by encouraging them to use it during off-peak hours — mornings, nights and weekends (Hicks, 12/2).
Kaiser Health News: With Three Weeks Left, Consumers Fear They May End Up Without Health Coverage On New Year’s Day
For people in the states with well-functioning insurance websites, such as California, New York and Kentucky, this appears to leave plenty of time. But making the deadline could be dicier for people in Arizona and the 35 other states where the federal website healthcare.gov is the path to coverage, as well as Oregon and Hawaii, which have struggled to get their sites functioning. On Sunday, the government reported progress in improving healthcare.gov, saying the site now allows more than 800,000 visits a day with the rate of timeouts or crashes reduced to below 1 percent. Officials said repairs continue (Rau, 12/2).
And for employers -
The Washington Post: New...
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How Much Is That X-Ray? Still Hard To Say, Even In Massachusetts

Today's post was shared by Kaiser Health News and comes from www.kaiserhealthnews.org
Finding out how much an X-ray costs sounds like a simple question. But it is actually very difficult to get an answer. In Massachusetts, a new state law requires insurers to be able to tell members how much a test, treatment or surgery will cost.
But while the new law pulls back the curtain on prices of health procedures to some degree, the burden is still on the patient to ask for information. And, as a recent test drive of the new law showed, there are quite a few hoops for patients to jump through.
I threw out my back in September playing squash and went to the doctor. She sent me down the hall for X-rays. I may need more. I'm curious about what my costs will be, so I call my insurer, Blue Cross.
The recorded menu option doesn't mention health care prices, so I press zero, for all other inquiries.
Eventually, I connect with Jamie D. (customer service reps at Blue Cross don’t give their last names). I explain that I'd like to compare the price of lower back X-rays at a few facilities.
She starts in with the questions: What's the doctor's name? What's the facility where I want to have the X-ray? I have the doctor's name and facility, but I’m stuck on the next question. Blue Cross wants the procedure codes for each X-ray I may need, my doctor's national ID number and the name, address and ID number for my hospital or lab, so it can consolidate all the charges into one estimate.
Jamie directs me to a form online. I call my doctor and get the info. If I...
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NTSB LAUNCHES GO-TEAM TO NEW YORK CITY TO INVESTIGATE METRO NORTH TRAIN ACCIDENT

The National Transportation Safety Board has launched a go-team to investigate the Metro North passenger train accident in New York City, which occurred at approximately 7:20 a.m. ET today.

Rail Safety Investigator Mike Flanigon will serve as the investigator-in-charge. He will lead a team consisting of investigative specialists in track, signals, mechanical systems, operations, human performance, survival factors and recorders. Specialists from the NTSB Office of Transportation Disaster Assistance are also responding to the scene. 

Board Member Earl Weener is accompanying the team and will serve as the principal spokesman during the on-scene phase of the investigation.

Saturday, November 30, 2013

Pennsylvania Supreme Court Rules Exclusivity Doctrine Not a Bar to Asbestos Claim Against an Employer Directly If Late Manifestation

The Pennsylvania Supreme Court permitted a civil action to go forward against an employer where the employee was exposed to asbestos fiber and contracted mesothelioma. The Court ruled that the latent manifestation, after the 300 week statutory period had lapsed and the Exclusivity Doctrine was not applicable.

The court held, "that claims for occupational disease which manifests outside of the 300-week period prescribed by the Act do not fall within the purview of the Act, and, therefore, that the exclusivity provision of Section 303(a) does not apply to preclude an employee from filing a common law claim against an employer."

Tooley v AK Steel Corporation
No. 21 WAO 2011, No. 22 WAP 20111, No. 23 WAP 2011
2013 Pa. LEXIS 2816
Decided: November 22, 2013

Ed Note: My thanks to Judge David B. Torrey for sharing this decision. Note the reference in the  Dissenting Opinion of Mr. Justice Saylor:
"8 David B. Torrey & Andrew E. Greenberg, Pennsylvania
Workers' Compensation Law & Practice §14.10 (3d ed. 2011) (expressing that Section 301(c)(2)'s time 
limitation constitutes a "substantive prerequisite to ascertainment of the compensability," intended 
to "establish, via arbitrary time basis, some outside limit to govern the potential  [*64] liability of the 
employer"). Accordingly, I would hold that the 300-week limitation in Section 301(c)(2) has no effect on 
whether a worker's occupational disease comes within the WCA's coverage. As such, the exclusivity 
mandate appearing in Section 303(a) of the statute applies, in my view, to preclude Plaintiffs from 
maintaining a negligence-based lawsuit against Employers.16"
….

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.

Hip Replacement Lawsuit: ASR Settlement ($2.5 Billion) Benefits Announced

The settlement terms of the ASR HIp Implant lawsuit have been announced:

The ASR Settlement provides for three basic areas of compensation. 

The first is a Base Payment to all ASR Claimants (XL and resurfacing) who have undergone a revision surgery, removing the 
acetabular cup, prior to August 31, 2013. 

The second is for Claimants who have undergone a revision surgery in both their left and right hips (Bilateral Claimants). 

The third addresses patients who have suffered a variety of medical complications following a revision surgery (Extraordinary Injury Fund).

 In addition, the Settlement provides for the resolution of healthcare insurance liens for 
medical costs that are directly associated with the revision surgery, at no additional cost to the 
claimant. 

Click here to read the complete press release issued by the Settlement Oversight Committee

Click here to read about the lawsuit.

Court Holds a Misstatement Does Not Bar Compensability

Despite the fact that eight injured worker made a misstatement at the time of his testimony, tan Appellate Court affirmed an award for compensability. The court held that the employee's testimony was indeed credible, and supported a claim for Worker's Compensation benefits. The trial court found that the injured worker was easily confused, and was just a poor witness because he was a very unsophisticated, uneducated individual and he had difficulty with questions being presented to him for trial counsel for the employer.

Hernandez v Ebby's Landscapping
2013 WL 6096529 (N.J.Super.A.D.)
Decided November 21, 2013
An unpublished opinion
Rustine Tilton, Esq., attorney for the Appellant-Employer
Richard J. Riordan, Esq (John J. Jasienieck, Esq. on the brief) , attorney for the Respondent-Employee

Black Friday dawns and so does violence in the workplace

Violence in the workplace, despite OSHA warnings, occurred as "Black Friday" store sales began. Today's post is shared from the washingtonpost.com

Shoppers look at televisions at a Best Buy store late in the evening on Thanksgiving Day, Thursday, Nov. 28, 2013, in Dunwoody, Ga. Instead of waiting for Black Friday, which is typically the year's biggest shopping day, more than a dozen major retailers opened on Thanksgiving this year. (AP Photo/David Tulis)
A Chicago-area police officer and a suspect he shot in a shoplifting incident outside a Kohl's department store were in the hospital on Friday — a worst-case example of how Black Friday opened with madness, mayhem and violence.
The incident began shortly past 10 p.m. on Thursday, when security officers with one Kohl's department store in Romeoville, outside Chicago, called police to report two men who were suspected of shoplifting. Police arrived on scene and tried to apprehend the men in the parking lot, Fox News reported. But the suspects ran to their car and tried to drive off — and one officer followed on foot, grabbing hold of the vehicle.

Fox News reported that the officer and the driver were recovering in a nearby hospital on Friday. Meanwhile, both of those suspected shoplifters — as well as a third suspect who was apprehended in the store — were arrested.The driver continued to accelerate, dragging the officer, Fox News reported. Police then fired into the vehicle’s...
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How foodies can become champions for workers' rights

Today's post was shared by Steven Greenhouse and comes from america.aljazeera.com

The FCWA estimates that almost 8 million workers throughout the food system would benefit from a national minimum wage boost, and that 29 million workers over all industries would get a raise. In a Thanksgiving-themed "menu" of ways to help improve the lives of food workers, the FCWA asks foodies to sign its petition to raise the wage to $10.10, to spread the word via social media, and to write their members of Congress to urge passage of the raise.
Food workers are also mobilizing to win on three more fronts: they want nationally guaranteed paid sick days, so that they are not forced to show up to work while sick, thus contributing to the spread of infectious disease. They are demanding the right to safe workplaces: Many agricultural employers could easily provide better protections from harmful pesticides for harvest workers. Finally, the workers are demanding their right to a voice on the job, protesting against the abuse and intimidation that frequently occur in the restaurant industry when workers try to unionize.
To push for these rights, the FCWA's member groups are reaching out to consumers with messages about specific bad-actor employers in each of these areas. These employers include Wal-Mart, which has allegedly stolen wages from workers and routinely quashed unionization drives at its stores; and the Darden restaurant group, which owns Red Lobster, Olive Garden and other family-style chains. Workers at Darden establishments are still denied any paid...
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