Workers' Compensation

Tuesday, March 8, 2011

Supreme Court Decided Not to Decide Illegal Alien Issue

The US Supreme Court has determined that States should be left to decided whether illegal aliens should be barred from collecting workers' compensation benefits.

A report in Insurance Journal provides further insight:

"The U.S. Supreme Court recently declined to hear a workers’ compensation insurance case that concerned an illegal immigrant in Louisiana who had sought coverage after a workplace accident. The Court’s refusal to consider the case means states are left to decide the issue of whether workers who entered the United States illegally may benefit from workers’ compensation coverage."

No. 10-841

Title:

Vaughan Roofing & Sheet Metal, LLC, Petitioner

Antonio Garcia Rodriguez

Docketed:

December 28, 2010

Lower Ct:

Court of Appeal of Louisiana, Third Circuit

Case Nos.:	(09-1537, 09-1538, 09-1539)
Decision Date:	May 5, 2010
Discretionary Court
Decision Date:	September 24, 2010

~~~Date~~~	~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
Dec 23 2010	Petition for a writ of certiorari filed. (Response due January 27, 2011)
Jan 26 2011	Brief of respondent Antonio Garcia Rodriguez in opposition filed.
Feb 9 2011	DISTRIBUTED for Conference of February 25, 2011.
Feb 16 2011	Reply of petitioner Vaughan Roofing & Sheet Metal, LLC filed. (Distributed)
Feb 28 2011	Petition DENIED.

Monday, March 7, 2011

Maryland Awards Washington Redskins Football Player Benefits

Washington Redskins game at FedExField, Landov...

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A Maryland Court of Appeals has awarded workers' compensation benefits to Tom Tupa, a Washington Redskins football payer. He was injured while warming-up for a football game to be played at FedEx Field in Landover, Maryland.

The Court held, "Considering the stipulated facts, we find that Tupa’s employment in Maryland was regular and not intermittent or temporary. Tupa was hired in Virginia, but the purpose of his employment was to play in professional football games at FedEx Field in Maryland and at various other stadiums around the country. We recognize that Tupa likely spends more time at the practice facility in Virginia than he spends playing in games at FedEx Field or elsewhere. As Hodgson suggests, however, the inquiry requires more than simply tallying up the quantity of time the employee spends in each jurisdiction. Here, it is clear that the purpose of Tupa’s employment was to play in games, not to practice. All of Tupa’s time in Virginia, whether practicing or attending team meetings, was geared towards improving his performance at the games. By way of contrast, a player signed to the practice squad would work entirely in Virginia because the purpose of a squad member's contract is to practice in Virginia."

Washington Workers' Compensation Reform

The State of Washington is in the process of taking drastic action to reform its workers' compensation system as it faces potential insolvency within the next 5 years. A package of bills is advancing that would limit periodic benefits for older workers, restrict medical treatment and reduce costs of the ailing system.

The reform comes on heals of a bitter and contested failed ballot referendum last fall that would have privatized workers' compensation coverage. While the referendum did not succeed, legislators claim that a massive deficit is threatening the solvency of the entire system and that it needs to become much more restrictive in providing benefits.

Saturday, March 5, 2011

Vermont Universal Health Care to Embrace Workers Compensation

A two-stage bill in Vermont is geared to establishing a single-payer medical health care system that would include medical for workers' compensation claims.

The legislation " proposes to set forth a strategic plan for creating a single payer and unified health system. It would establish a board …. ; establish a health benefit exchange for Vermont as required under federal health care reform laws; create a public-private single payer health care system to provide coverage for all Vermonters after receipt of federal waivers.”

The plan proposes covering all workers' compensation claims:

"(3) To the extent allowable under federal law, the Vermont health benefit exchange may offer health benefits to employees for injuries arising out of or in the course of employment in lieu of medical benefits provided pursuant to chapter 9 of Title 21 (workers’ compensation)."

"(c) If the Vermont health benefit exchange is required by the secretary of the U.S. Department of Health and Human Services to contract with more than one health insurer, the Vermont health benefit exchange shall determine the appropriate method to provide a unified, simplified claims administration, benefit management, and billing system for any health insurer offering a qualified health benefit plan. The Vermont health benefit exchange may offer this service to other health insurers, workers’ compensation insurers, employers, or other entities in order to simplify administrative requirements for health benefits."

Nationally, advocates to improve the delivery of medical benefits to injured workers have urged federalization of the medical delivery system into a single payer approach through universal health care. The proposed Vermont single payer system is a unified state approach to the co-ordinated delivery of medical care.

Friday, March 4, 2011

Asbestos Awareness Conference To Focus on Public Health, Environment and The Economy

The Asbestos Disease Awareness Organization (ADAO), the largest U.S. organization serving as the voice of asbestos victims, presents its 7th Annual Asbestos Awareness Conference, Asbestos: Impact on Public Heath, Environment, and the Economy. The event will be held April 1 - 3, 2011, at the Atlanta Marriott Buckhead Hotel & Conference Center. This conference is made possible with the support of the Barbara Ann Karmanos Cancer Institute. Presentations will include occupational and non-occupational exposure issues, detection and treatment advances, environmental and economic impact, national and global policy.

The international conference brings together experts from around the globe to collaborate and enhance efforts to completely ban asbestos. Attendees will hear about the most advanced medical, occupational and environmental information to prevent home, school and work asbestos exposure; as well as disease prevention and treatment.

The conference will also quantify the economic impact of asbestos exposure to individuals, business and the government. Speakers will represent the United States, Canada, Mexico, Brazil, Japan, and Germany. The ADAO international conference is made possible with the support and collaborative efforts of the Barbara Ann Karmanos Cancer Institute in Detroit. Registration includes continental breakfast and lunch.

Linda Reinstein, President/CEO and Co-Founder of the Asbestos Disease Awareness Organization, knows first hand the pain that can result from asbestos exposure after loosing her husband in 2006 to mesothelioma, a leading asbestos caused cancer. “ADAO is dedicated to the three core principles – education, advocacy, and community – as reaffirmed by this year’s powerful conference,” stated Reinstein. “This year’s event brings together some of the world’s most important voices, including leading professionals from different fields who play a pivotal role in globally uniting efforts to end asbestos disease. We welcome them and thank our many generous sponsors who are helping to make this event possible. There is indeed power in knowledge.”

According to Michael Harbut M.D., MPH, FCCP, of the Barbara Ann Karmanos Cancer Institute, “The ADAO conference is one of the best educational and awareness opportunities for physicians, public health representatives, caregivers and other advocates. We all have an opportunity to make an impact on preventing asbestos-related diseases. Whether you’re a medical professional or someone who deeply cares about the health of your loved ones, this conference offers an important network for everyone.”

The weekend will provide information and inspiration for those impacted by asbestos-related disease as well as others who advocate for safe environments.

The conference also will recognize US Senator Max Baucus, and others, those who have demonstrated exceptional service to enhance asbestos awareness. The Unity and Remembrance Brunch on April 3 will honor and remember loved ones lost to asbestos exposure, as well as support others impacted by asbestos-related diseases.

Click here for to register. http://preview.tinyurl.com/4afv8jt

HBO To Air Special About Triangle Shirtwaist Fire

The HBO special, "Triangle: Remembering The Fire" will air on HBO starting, March 21, 2011 at 9pm. The documentary will commemorate the 100th anniversary of the fire where 146, mostly young immigrant women, were killed in the New York City garment district. The tragedy galvanized public opinion and sparked the birth of the modern labor movement which lead the way for safety regulations in the workplace.

Public Meeting Held On Zadroga Health Compensation Fund

A public hearing, sponsored by the National Institute for Occupational Safety and Health (NIOSH), was held Thursday in New York City concerning the James Zadroga 9/11 Health and Compensation Act of 2010 (Pub. L 111-347). The purpose of the government sponsored meeting was to solicite comments on how to implement the Federal benefit program that was signed into law at the end of last year by President Obama.

Victims, their families and representatives were among the presenters at the day-long hearing. A major area of concern at the hearing was whether the program will cover cancer claims and claims for anxiety based diseases that resulted from the World Trade Center attack on September 11, 2001. The toxic cloud of dust and fumes that emanated from the site is of serious concern to medical professionals because of the known pulmonary irritants and carcinogens, including asbestos, that it contained and transported.

The law provides for additional benefits to those who worked near the site during the months following the disaster. Not only are first responders permitted to file for benefits, but the program provides coverage to those who were utility workers, who were involved in the restoration of services, ie. telephone and power, and it also includes those who were involved in the clean-up of the area and local residents.

Comments will accepted until 5:00pm EDT on April 29, 2011 and an implementation plan will be formalized by July, 2011.

Thursday, March 3, 2011

US Postal Service May Fail to Deliver Workers Compensation Benefits

A small United States Postal Service truck see...

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In testimony before the US House of Representatives yesterday it was disclosed that the US Postal Service may defaulting on its delivery of workers' compensation benefits. A $1.3 billion payment scheduled for November 2011 just can't be met under present financial plans.

Patrick R. Donahoe, US Postmaster General stated, "Even as we continue to fulfill our commitment to service, we must address one particular area of concern – our liquidity. I would like to discuss this in more detail, to provide a clear picture of our situation and to give some background, especially for the new committee members. Without changes in applicable laws, at the close of this fiscal year, in seven months, the Postal Service will be insolvent, as we will be unable to meet all of our financial obligations."

Monday, February 28, 2011

The Triangle Fire Airs on PBS Feb 28, 2011

It was the deadliest workplace accident in New York City’s history. A dropped cigarette on the 8th floor of the Triangle Shirtwaist Factory sparked a fire that killed over a hundred innocent people trapped inside. The private industry of the American factory would never be the same.

Airs on American Experience on PBS Feb. 28, 2011 at 9:00pm on most PBS stations. Commemorating the workers' compensation centennial.

Saturday, February 26, 2011

Montana Targets Workers Compensation to Reduce Deficit Spending

The State of Montana has targeted its workers' compensation program in an effort to reduce its deficit spending. Montana has the some of the largest premium costs in the nation and the state ranks 47th in take home pay. Legislation now pending will reduce workers' compensation premiums by 45% allegedly.

Court Rules Social Security Offset Not Barred by Time

A NJ Court of Appeals has ruled that the reverse-offset permitted under Federal law was allowed to be asserted by an insurance carrier years after an original workers' compensation judgment was entered. Even though the employee pleaded that the insurance company had sat on its rights for years, and done nothing to assert the offset, the Court maintained that the insurance company was entitled to reclaim the benefits it had overpaid.

Since the information provided by parties to define the numerical offset was lacking, and the decision below lacked "specific reasons and analysis," the matter was remanded for further proceedings.

NJ is one of the states that elected to have the insurance company / employer take the offset under the options available in 1980. Most states allow Social Security to take the offset.

Gonzalez v Bristol-Meyers Squibb, 2011WL611722, Docket No. A-2187-09T3 (NJ App Div 2011)

Using the Forbidden Words-Texas Workers Compensation

The Texas Workers Compensation Agency has sent a cease-and-desist letter to to the author of the Texas Workers Compensation Law Blog requesting that he stop using the term(s), "Texas Workers Compensation" in his blog. The Lubbock, Texas workers compensation lawyer has filed a lawsuit in federal court alleging violation of his First Amendment rights have been violated.

The Texas Labor Code s 419.002 prohibits “any impersonation, advertisement, solicitation, business name, business activity, document, product or service.” The Texas blog author, who has sought declaratory relief, has alleged that the statute is overly broad and violates his Right to Free Speech. The blogger is certified in Workers' Compensation Law from the Texas Board of Legal Specialization.

Friday, February 25, 2011

Pulmonary Disease Linked to World Trade Center Disaster

September 11, 2001 attacks in New York City: V...

Image via WikipediaA study, recently published, reveals that sarcoid like granulomatous pulmonary disease is present among the WTC responders. More than 20,000 responders have been examined through the World Trade Center (WTC) Medical Monitoring and Treatment Program since September 11, 2001. Studies on WTC firefighters have shown elevated rates of sarcoidosis. The main objective of this study was to report the incidence of “sarcoid like” granulomatous pulmonary disease in other WTC responders.

Cases of sarcoid like granulomatous pulmonary disease were identified by: patient self-report, physician report and ICD-9 codes. Each case was evaluated by three pulmonologists using the ACCESS criteria and only “definite” cases are reported.

Thirty-eight patients were classified as “definite” cases. Six-year incidence was 192/100,000. The peak annual incidence of 54 per 100,000 person-years occurred between 9/11/2003 and 9/11/2004. Incidence in black responders was nearly double that of white responders. Low FVC was the most common spirometric abnormality.

On January 2, 2010, President Barack Obama signed the James Zadroga 9/11 Health and Compensation Act establishing the World Trade Health Program and extends and expands eligibility for compensation under the September 11th Victim Compensation Fund of 2001.

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 disease. Please contact our office if you require assistance in filing a claim under the newly enacted James Zadroga 9/11 Health and Compensation Act.

Thursday, February 24, 2011

Zadroga Health Fund: Utility Workers Suffer Increased Anxiety

A recent study reveals that utility workers who were deployed at the World Trade Center (WTC) disaster site on 9/11 have an increased level of post traumatic stress disorders (PTSD) and depression. The study may significantly increase the potential benefits that utility workers may obtain under the James Zadroga 9/11 Health and Compensation Act (“Zadroga Act”) providing a total of $4.3 billion in health benefits and financial compensation for victims, responders, and other harmed by the attacks of September 11th and its aftermath.

The report concludes that, nonrescue workers deployed to a disaster site are at risk for PTSD and depression. Extent of exposure affected the most vulnerable workers differently than the least vulnerable ones. These results suggest that the relationship among predictors of PTSD may be different for different vulnerability groups, and underscore the importance of screening, education, and prevention programs for disaster workers.

Recent attention has begun to be focused on the effects of disaster recovery work on nonrescue workers. The study assesses the prevalence and predictors of posttraumatic stress disorder (PTSD) and related symptoms in a population of utility workers deployed to the World Trade Center (WTC) site in the aftermath of 9/11. Utility workers deployed to the WTC site were screened at their place of employment between 10 and 34 months following the WTC attacks, utilizing both structured interviews and self-report measures.

Eligibility for benefits under the James Zadroga 9/11 Health and Compensation Act include those who were World Trade Center victims and First Responders. Under the law those who worked, attended school, childcare and adult day care, may be eligible. The program also covers some who were present in the area of the dust cloud or who lived in the the New York City disaster area. Certain cleanup and maintenance workers are included including tele-communications workers such as Verizon, AT and T and other employees.

Additionally, various respiratory and digestive diseases are being reported including:

1. Interstitial lung diseases.
2. Chronic respiratory disorder--fumes/vapors.
3. Asthma.
4. Reactive airways dysfunction syndrome (RADS).
5. WTC-exacerbated chronic obstructive pulmonary disease (COPD).
6. Chronic cough syndrome.
7. Upper airway hyperreactivity.
8. Chronic rhinosinusitis.
9. Chronic nasopharyngitis.
10. Chronic laryngitis.
11. Gastroesophageal reflux disorder (GERD).

Like the September 11th Victim Compensation Act of 2001, even if the exposed individuals are living in another state, but were exposed at the NY Disaster Area, the ill individuals may apply 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 disease. Please contact our office if you require assistance in filing a claim under the newly enacted James Zadroga 9/11 Health and Compensation Act.

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Monday, February 21, 2011

Obama Care for All

Over half our injured worker clients do not have health insurance. Many work for employers who do not provide health insurance, and they simply cannot afford private insurance on meager wages.

Since workers do not have group health insurance coverage, they are denied access to the medical care they need when their injury claims are denied by the worker's compensation insurer. And their claims are routinely denied based on the comp carrier's "hired gun" adverse medical examiner or reviewer. Understandably, hospitals and doctors, who have "bottom line" issues to face, will not provide treatment without some assurance of "upfront" payment, leaving injured workers in the lurch.

Wisconsin injured workers are fortunate that our State law provides a potential remedy for "prospective treatment"; a judge can order a worker's compensation insurance company to pay for treatment (including diagnostic testing, surgery, etc.). But the time lapse in waiting for a hearing (40-6 months) and inevitable insurance company appeal (another potential 6-8 months), realistically means that necessary treatment goes wanting. Injured workers without some insurance alternative to workers compensation suffer while waiting for treatment. Universal health insurance coverage provides an answer to this dilemma.

Thomas M. Domer practices in Milwaukee, Wisconsin (www.domerlaw.com). He has authored and edited several publications including the legal treatise Wisconsin Workers' Compensation Law (West) and he is the Editor of the national publication, Workers' First Watch. Tom is past chair of the Workers' Compensation Section of the American Association for Justice. He is a charter Fellow in the College of Workers' Compensation Lawyers. He co-authors the nationally recognized Wisconsin Workers' Compensation Experts Blog.

Saturday, February 19, 2011

OSHA Fines NJ Contractor $45,450 For Safety Violations

The U.S. Department of Labor's Occupational Safety and Health Administration has cited the general contractor for the Sheridan Avenue Steam Plant renovation project in Albany for repeat and serious violations of safety standards. Plato Construction Corp. of Hopewell, N.J., faces a total of $45,540 in proposed fines, chiefly for scaffold and fall hazards.

"Falls are among the deadliest hazards in construction. They can end a life or a career in seconds," said Edward Jerome, OSHA's area director in Albany. "Proper scaffold erection, safe work practices and effective fall protection are critical in protecting workers against this potentially deadly hazard."

OSHA found employees exposed to fall hazards ranging from 27 to 41 feet while working without fall protection on a scaffold that was not fully guarded, climbing atop the scaffold's guardrails and standing on an empty plastic bucket on the scaffold's deck. The agency has alleged that scaffold's tiebacks were not anchored securely, its pulley block was damaged, and it had not been erected by a competent person. Other hazards included an electrical panel box that was not protected against water, a power cord that lacked strain relief, an unguarded grinder blade and a damaged power cord with exposed wiring.

OSHA issued Plato Construction Corp. two repeat citations with $13,200 in proposed fines for the lack of scaffold fall protection and the damaged power cord, and nine serious citations with $32,340 in fines for the remaining items. OSHA issues a serious citation when there is substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known. The repeat citations stem from OSHA's having cited the company in December 2006 for similar hazards at a Philadelphia, Pa., worksite. A repeat citation is issued when an employer previously has been cited for the same or a similar violation of a standard, regulation, rule or order at any other facility in federal enforcement states within the last five years.

"One means of eliminating recurring hazards such as these is for employers to establish an injury and illness prevention program in which workers and management work together to continually eliminate hazardous conditions," said Robert Kulick, OSHA's regional administrator in New York.

Friday, February 18, 2011

Federal Probe Requested of Illinois Workers Compensation Arbitrator

Illinois Senator Kyle McCarter (R-Lebonon) has called for a Federal probe into the alleged actions of the arbitrator who allegedly delayed the hearing of a controversial case involving a State Trooper who was involved in a fatal motor vehicle accident while texting and driving at 126 miles per hour.

As a result of his distracted driving two teenagers were killed in the accident. The state trooper pleaded guilty to two counts of reckless homicide last year. He has since resigned from his job.

From Doughnuts to Workers Compensation Dollars

The failure to provide complete subsidies for prescription-drug coverage will indirectly continue to have an adverse financial impact on soaring workers' compensation costs. The Affordable Care Act (ACA) enacted in March 2010 has attempted but not completely removed the so-called "doughnut hole."

The aging workforce continues to increase as a result of both the economic downturn, as well a a dramatically increased retirement age. Furthermore, the increase in the denial rate of occupational conditions, some caused by latent disease, has increased to the number of beneficiaries on the Medicare system. Medicare continues to seek reimbursement through the Medicare Secondary Payer Act of conditional secondary payments to potential workers' compensation beneficiaries.

Those who elect Part D coverage, after the yearly deductible ($310) , are entitled to contribution from the Federal program for up to 25% of additional medical costs. Once they enter "the gap" in coverage ($2,840 to $4,550), the beneficiary is responsible for 100% of prescription costs.

William H. Shrank, MD, M.S.H.S and Niteesh K. Choudhry, M.D., Ph.D., point out in their recent article in the New England Journal Of Medicine, that the present "doughnut hole system" results in seniors not taking prescribed medication because of the inability to pay dor drugs. The failure to deliver prescription care to seniors will ultimately result in an unhealthier workforce that the workers' compensation system will have the potential indirect responsibility to pay for. The cascading and progressive complications of underlying disease will have systemic negative health consequences for the aging workforce, and ultimately their employers, and their workers' compensation insurance coverage.

Thursday, February 17, 2011

Medicare Secondary Payment Interest Calculation Tool Updated

The Medicare Secondary Payer Recovery Contractor (MSPRC) has published an updated version of its Interest Calculation Tool.

Interest Periods tab

Demands before October 2004 tab

How Interest is Calculated tab

Download

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