US DOL: Workplace Injuries Continue Their Downward Trend

The US Department of Labor reported today that were approximately 2.9 million nonfatal workplace injuries and illnesses reported by private industry employers in 2016, which occurred at a rate of 2.9 cases per 100 full-time equivalent (FTE) workers, the U.S. Bureau of Labor Statistics reported today. (See www.bls.gov/web/osh/summ1_00.xlsx and www.bls.gov/web/osh/summ2_00.xlsx.) Private industry employers reported nearly 48,500 fewer nonfatal injury and illness cases in 2016 compared to a year earlier, according to estimates from the Survey of Occupational Injuries and Illnesses (SOII).

Changes Urged for NJ Workers' Compensation System

The NJ 2017 Gubernatorial election results have not even been reported and major changes to the NJ Workers' Compensation system are already being urged. A leading practitioner in the workers' compensation arena is urging the adoption of a pure wage-loss system to replace the scheduled and time-limited disability benefits now embodied in the Act, and an employee choice of physician statute to replace the present employer directed system.

Electronic Medical Bills for Workers' Compensation Claims

The State of NJ has recently adopted an "electronic medical bill" process. N.J.S.A. 34:15-144, P.L 2016, c. 64. On October 16, 2017, Regulations were proposed to implement the Statute. Public Hearing will be held on Tuesday, November 14, 2017, 10:00 A.M. to 12:00 Noon.  The deadline for written comments is December 15, 2017.

Guidelines for Medical Provider Claims - A Valuable Approach

While the vast majority of jurisdictions in the US have the guidance of mandatory workers' compensation medical fee schedules, New Jersey remains one of the very few with no such structure. As I reported earlier, this generates multiple issues in the claims process and creates costly delays in the adjudication of disputes.

The Inherent Judicial Power of Judges of Compensation

A Judge of Compensation has the discretion to call and question witnesses in pending cases. A NJ Appellate Court affirmed the trial court award of additional weeks of temporary disability,  the imposition of a 25% penalty for unreasonable and negligent delay in defending the case and 20% counsel fees.

2018 Social Security Changes - COLA Increases

The Social Security Administration has announced based on the increase in the Consumer Price Index (CPI-W) from the third quarter of 2016 through the third quarter of 2017, Social Security and Supplemental Security Income (SSI) beneficiaries will receive a 2.0 percent COLA for 2018.

NASI Study: Employers & Employees Lose With Workers' Compensation

WASHINGTON, D.C. – Workers’ compensation employer costs as a share of payroll declined in 2015, reversing a four-year trend, and benefits as a share of payroll fell for the fourth straight year, according to a new report from the National Academy of Social Insurance (the Academy).

Some Surprising 2016 SSA-DIB Statistics

Size and Scope of the Social Security Disability Program

1. Disability benefits were paid to almost 10.2 million people. 
2. Awards to disabled workers (706,448) accounted for 88 percent of awards to all disabled beneficiaries (799,330). 
3. In December, payments to disabled beneficiaries totaled more than $11.3 billion. 
4. Benefits were terminated for 820,372 disabled workers. 
5. Supplemental Security Income payments were another source of income for about one out of six disabled beneficiaries. 

 Profile of Disabled-Worker Beneficiaries 

1. Workers accounted for the largest share of disabled beneficiaries (87 percent). 
2. The average age was 54. 
3. Men represented less than 52 percent. 
4. The largest category of diagnoses was diseases of the musculoskeletal system and connective tissue (32.3 percent). 
5. Average monthly benefit received was $1,171.15. 
6. Supplemental Security Income payments were another source of income for about one out of eight. 

Preface

Since 1956, the Social Security program has provided cash bene ts to people with disabilities. This annual report provides program and demographic information about the people who receive those benefits. The basic topics covered are— beneficiaries in current-payment status;

• workers’ compensation and public disability benefits; 
• benefitts awarded, withheld, and terminated; 
• disabled workers who have returned to work; 
• outcomes of applications for disability bene ts; and 
• disabled beneficiaries receiving Social Security, Supplemental Security Income, or both. 

Proposed New Code of Conduct for NJ Judges of Compensation

The Department is proposing repeals, amendments, and a new rule, which would result in the adoption of a new Code of Conduct for Judges of Compensation (Code). The proposed adoption of a new Code is prompted by the Supreme Court of New Jersey (Supreme Court) having recently adopted a revised New Jersey Code of Judicial Conduct, effective September 1, 2016, which applies to judges who serve within the judicial branch of State government, as opposed to those, like Judges of Compensation, who serve within the executive branch of State government.

Technology - Efficiency - Uniform Procedure

For decades the NJ Workers' Compensation administrative law system has had to adapt to meet the social, political, economic and technological changes of a changing world. The well thought-out proposals by the NJ State Bar Association (NJSBA) are a starting point to the beginning of a new wave of discussion and change.

Looking for Order in the Land of Chaos

The NJ Appellate Division was again faced with a dispute over medical fees. This issue has engulfed the NJ Division of Workers' Compensation over the decades. New Jersey remains a member of a diminishing minority of seven jurisdictions that lack a medical fee schedule for workers' compensation claims.

How to View the 2017 Solar Eclipse Safely

Many workers will have the opportunity to view the 2017 Solar Eclipse that will be occurring this Monday, August 21, 2017, sweeping from the Northwest US to the Southeast US. Safety precautions are essential to prevent eye damage. The following is shared information is shared from The National Aeronautics and Space Administration [NASA].

The Facts Don't Change Because You Try a Case

In my early days in the practice of law,  when I was eager to try every case, my dad, a lawyer, used to remind me that, "The facts don't change because you try a case." I  was reminded of that adage while reading a recent NJ Appellate Court's opinion, where a respondent unsuccessfully appealed the trial court's decision.

Hot Topics in Workers' Compensation Law 2017 - Wednesday, September 27, 2017 5pm-8:35pm

Hot Topics in Workers Compensation Law 2017

Wednesday, September 27, 2017 5pm-8:35pm

Termination and the lingering cloud over a disabled worker

Injured workers are in constant fear of losing their jobs as a result of absenteeism caused by injuries incurred at work. NJ Supreme Court Justice LaVecchia noted in a recent concurring opinion in a Law Against Discrimination (LAD) case, that termination based on absenteeism challenges the remedial social intent of the workers’ compensation act.

The Rise and Fall of Workers' Compensation - The Path to Federalization

Every year The Board of Trustees of the Federal Hospital Insurance and Federal Supplemental Medical Supplemental Medical Insurance Trust Funds makes an actuarial guess as to the future financial solvency of Medicare. The report creates an annual news frenzy in the workers’ compensation community since Medicare is both the safety net for injured workers and playground for employers and their insurance companies to use in cost shifting,

UPS Driver Prevails on Repetitive Trauma Injury

The NJ Court of Appeals, in an unreported decision, has upheld the compensability of a repetitive traumatic condition asserted by a United Parcel Service (UPS) truck driver who for 39 years drove vehicles with poor suspension and hitched trailers together at depots.

Employer-Reported Workplace Injuries and Illnesses Continue to Decline

The US Bureau of Labor Statistics (BLS)  has reported that there were approximately 2.9 million nonfatal workplace injuries and illnesses reported by private industry employers in 2015, which occurred at a rate of 3.0 cases per 100 equivalent full-time workers.

Opioid Litigation and Workers' Compensation

The newly initiated litigation by public entities against Big Pharma may prove to be a huge boost to the workers' compensation system. The lawsuits have the potential curtailing a massive drain of benefit dollars and may provide for subrogation as a result of the nations' opioid epidemic.

An Injury to All

Governor Chris Christie (R) has issued an Executive Order closing the NJ Division of Workers' Compensation. Christie, who is the most unpopular Governor in the US, with a 15% approval rating, has decided now, in his remaining few months in office, to get into yet another political squabble with the Democratic legislative majority.

OSHA proposes to delay compliance date for electronically submitting injury, illness reports

WASHINGTON – The U.S. Department of Labor’s Occupational Safety and Health Administration today proposed a delay in the electronic reporting compliance date of the rule, Improve Tracking of Workplace Injuries and Illnesses, from July 1, 2017, to Dec. 1, 2017. The proposed delay will allow OSHA an opportunity to further review and consider the rule.

Employment Status: Common Law Tests May Need an Update

The application of the common-law standard to determine employment status may no longer be relevant in the age of the gig economy. The NJ Appellate Division ruled that the common law test utilized to determine employment status could not be utilized in the interpretation of a medical malpractice insurance policy.

Governor of Nevada Vetoes Single-Payer Legislation

Nevada Governor Brian Sandoval has vetoed legislation that would have established a single-payer Assembly Bill 374 would have expanded a Medicare-type health care insurance plan. coverage to provide health care coverage to all Nevada residents.

Safeguarding Injured Workers From Cybersecurity Breaches

Under new Federal proposals, injured workers will be protected from cybersecurity breaches. The impact will be greater responsibilities and costs for law firms and, employers and their insurance companies.

Medical Marijuana Providers Maybe be Federally Prosecuted

Medical marijuana use may be heading to a new challenge for medical providers in workers' compensation case. Even though some States have authorized regulation and approval of dispensing medical marijuana, a Federal law allowing the practice is up for Congressional review.

NJ Public Employees On Workers' Compensation Considered On Leave Without Pay

The NJ Court of Appeals has ruled, in an unreported and Per Curium decision,  that public employees who are receiving workers' compensation temporary disability benefits are on leave without pay, and can not accrue sick and vacation days during their absence from work.

Chaos for Workers' Compensation Programs--The Elimination of Social Security Numbers?

The Centers for Medicare & Medicaid Services (CMS) is readying a fraud prevention initiative that removes Social Security Numbers (SSN) from Medicare cards to help combat identity theft and safeguard taxpayer dollars. The question remains whether the elimination will cause chaos in state workers' compensation programs since the SSNs have historically been utilized as personal identifiers.

NJSBA: The Ethics of Pain Management: The Workers’ Compensation Bench/Bar Conference

Friday May 19, 2017 11:15AM - 1:30PM - Borgata, Atlantic City , NJ

The Ethics of Pain Management: The Workers’ Compensation Bench/Bar Conference WORKERS COMPENSATION TRACK A round table discussion of the ethical complications of opioid prescriptions in workers’ compensation matters from the medical and legal perspective.   State of the Division: Hon. Russell Wojtenko, Jr., Chief Judge Division of Workers Compensation Moderator/Speaker: Katherine Hellander Geist, Esq. Capehart Scatchard, Mt. Laurel Speakers:  Jag Desai, M.D., Interventional Pain Medicine Specialist Metropolitan Pain Consultants, Lyndhurst Christopher P. Gargano, Esq. The Bianchi Law Group, LLC, West Caldwell Jon L. Gelman, Esq. Jon L. Gelman, Attorney at Law, Wayne Mark B. Zirulnik, Esq. Zirulnik, Sherlock & DeMille, East Hanover    NJ CLE: 2.7 general credits NY CLE: (Transitional & Non-transitional) 2.5 professional practice credits PA CLE: 2.0 substantive credits pending ($8.00 check payable to NJICLE)  Click Here for More Information/Registration

CMS Prohibited From Collecting for Unrelated Conditions

A Federal Court in California has prohibited the Center for Medicare and Medicaid Services (CMS) from seeking reimbursement of conditional payments when the medical codes for the conditions are unrelated or not related even if the primary code was for a work-related medical condition. The court made the following ruling in a motion for partial summary judgment in a declaratory judgment action.

The Internet Redefines Jurisdiction

The Internet has resulted in widespread changes in workers’ compensation including what defines a contract of employment. In determining the applicable law governing a claim, the NJ Appellate Division, in a unanimous reported decision, went back to basics in reaching the conclusion that NJ had jurisdiction.

An Increase Predicted of Reported Mesothelioma Cases

Asbestos is a naturally occurring fibrous mineral which was widely used in the manufacture of a variety of products beginning in the late nineteenth century. Although the majority of exposure to asbestos occurred between 1940 and 1980, in occupations such as construction, shipyards, railroads, insulation, sheet metal, automobile repair, and other related fields, exposure continues to this day.

National Asbestos Awareness Week April 1-7, 2017

S. RES. 98 Designating the first week of April 2017 as “National Asbestos Awareness Week”.

IN THE SENATE OF THE UNITED STATES
March 27, 2017
03/29/2017 Resolution agreed to in Senate without amendment and with a preamble by Unanimous Consent.  (All Actions)

Senator Jon Tester

Mr. Tester (for himself, Mr. Markey, Mr. Isakson, Mr. Daines, Mr. Durbin, Mrs. Feinstein, Ms. Warren, Mr. Merkley, and Mr. Leahy) submitted the following resolution;

NJ Bar Association Seek Re-Nomination of Judges of Compensation and System Wide Procedural Improvements

The NJ State Bar Association is urging Gov. Chris Christie to reappoint qualified workers’ compensation judges who are eligible for tenure.

Read the letter to Gov. Christie here. (March 22, 2017)

The organization also offered proposals to the Division of Workers’ Compensation to promote efficiency in processing formal claims.

Read the letter to the Division of Workers' Compensation here. (March 22, 2017)

Trump Administration May Bring a Surge in Occupational Disease Claims

Mesothelioma death rates remain high in the US even on the eve of an anticipated national ban of the asbestos fiber. Things may radically change for the worse as the Trump Administration goes forward with its announced intention to dismantle environmental regulation now in place and placed on-track for enactment during the former Obama Administration. With anticipated less EPA and OSHA regulation under the Trump administration, there is the potential for a serious surge of future occupational disease claims in the United States.

The limits on a total permanent disability award

The New Jersey Supreme Court recently heard oral argument concerning the mathematical limits of a workers’ compensation total disability case. At the heart of the case is the issue of whether an injured worker could have an increase in a pre-existing permanent partial disability [PPT] claim, that existed prior to the last compensable injury which was to another part of the body. The last compensable claim rendered the worker totally and permanently disabled.

The Consequences of TrumpMedical 2016–25: Price Increases, Aging Push Sector To 20 Percent Of Economy

Workers' Compensation medical expenses mirror some of the national health care projections. An aging workforce and the increased longevity of the population impacts overall all costs. Furthermore as the Affordable Healthcare Act's repeal has been anticipated by the Republican Administration, medical care costs are anticipated to spiral. The draft release of the Republican proposal for a new national medical care system is now being revealed.

Directly and indirectly, workers' compensation coverage will feel the impact. For chronic condition denials, pre-existing condition denials and occupational disease denials, the safety net of Medicaid will be diminished and the workers' compensation system will again be the primary target for payment and litigation will increase logarithmically.

Professional Liability Policy Rescinded For Failure to Provide Notice

A US District Court ruled that a professional liability insurance company was permitted to rescind an attorney's policy for lack of notice. The attorney was instructed to appeal a workers' compensation claim and failed to do so on a timely basis, and did not provide notice to the professional liability insurance carrier under the terms of the policy, or in renewal applications, or when when requested on five occasions.

Liberty Mutual Underwriters, Inc., v Wolfe, et al., Civ. No. 16-2353 (WHW)(CLW) Decided 02/03/2017 (USDCT D.NJ) Unreported 2017 WL 481468

Accelerated Justice Is Problematic on Appeal

Workers' Compensation matters were intended by the legislature to be summary and remedial actions. Accelerated justice does have its consequences on appeal, and should be implemented prudently.

Occupational Exposure to Lead Continues to be a Serious Health Issue

The California Department of Health has reported that the workers' occupational exposure to lead continues to be a serious public health issue.

FELA: US Supreme Court to Review Personal Jurisdiction Criteria

The United States Supreme Court will review the merits of a case involving the personal jurisdiction criteria of a FELA case.

"Issue: Whether a state court may decline to follow the Supreme Court's decision in Daimler AG v. Bauman, which held that the due process clause forbids a state court from exercising general personal jurisdiction over a defendant that is not at home in the forum state, in a suit against an American defendant under the Federal Employers' Liability Act."

The Promise of State Initiatives to Prevent Long Term Work Disability

Every year, millions of Americans suffer from medical conditions that affect their ability to work. This puts them at risk of losing their jobs or being forced to rely on Social Security Disability Insurance (SSDI). States could help many of these workers stay in their jobs, but promising options for doing this remain largely untested. The five states with state-mandated short-term disability benefits— California, Hawaii, New Jersey, New York, and Rhode Island—are promising settings for such tests.

Chaos in Workers' Compensation - Raising Medicare's Eligibility Age to 67

A new issue for workers' compensation programs is  emerging as  the Republicans push forward on their legislative agenda to reform Medicare. Uncertainty over the impact of raising the eligibility age for Medicare from 65 to 67 may seriously and adversely impact the nation's network of fragile workers' compensation schemes. Furthermore, looming in the background is also the elimination of The Affordable Care Act and the consequence of a large pool of uninsured again seniors.

Made by a robot...driven by a computer

The workers' compensation scheme is being challenged to potential extinction by the workplace in which it was created decades ago. Stressed by economic challenges that have been fueled by globalization and technology, workers' compensation benefit programs are now being dismantled by historic reforms that attack the core philosophical  principles of its very existence. 

The evolving dynamic of the world's automobile industry provides a focus on the new economy where goods are made by robots and operated by a computer.

Judge Accepts Medicare’s Plan To Remedy Misunderstanding On Therapy Coverage

Today's post is shared from Kaiser Health News khn.org

"A federal judge has accepted Medicare’s plans to try once more to correct a commonly held misconception that beneficiaries’ are eligible for coverage for physical and occupational therapy and other skilled care only if their health is improving.

"'Confusion over the Improvement Standard persists,' wrote U.S. District Court Chief Judge Christina Reiss in Vermont in a decision released by the court Thursday. Advocates for seniors say coverage is often mistakenly denied simply because the beneficiary reaches “a plateau” and is no longer making progress.

FDA Warns of Allergic Reaction to Hand Sanitizers

FDA is warning that rare but serious allergic reactions have been reported with the widely used skin antiseptic products containing chlorhexidine gluconate. Although rare, the number of reports of serious allergic reactions to these products has increased over the last several years. See the FDA Drug Safety Communication for a data summary.

OSHA Stopped Publishing Press Releases

It is like the US Government just shut down. The last press release from OSHA was on January 19, 2017, the day before Donald Trump was inaugurated as President.

After a robust effort under Obama Administration direction to help make the workplace safer, the Occupational Safety and Health Administration (OSHA), an agency created post the National Commission on Workers' Compensation (1972),  has now just come to a screeching halt in the release of information.

President Trump's Immigration Ban

President Trump's Executive Order, Protecting the Nation from Foreign Terrorist Entry into the United States is impacting some workers who seek workers' compensation benefits.

AMA Urges Trump Administration to Clarify Immigration Executive Order

A major element of workers' compensation benefits is medical treatment and that will be impacted the Donald Trump's recent ban on immigration. An adequate number of physicians must be available to provide medical care to cure and relieve  a work related medical condition. The American Medical Association (AMA) sent the following letter today to the U.S. Department of Homeland Security regarding the Administration’s executive order issued last week,“Protecting the Nation from Foreign Terrorist Entry into the United States:”

Declining Earnings Capacity - A Retrogressive Penalty for Ill Workers

The decline of the earning capacity of ill workers prior to stopping work has an impact on both workers' compensation benefits as well as Social Security disability benefits. It is  a retrogressive penalty for chronically ill workers.

The Social Security Administration in a recent report objectively reports this phenomena.

Takata Corporation Agrees to Plead Guilty and Pay $1 Billion in Criminal Penalties for Airbag Scheme

Tokyo-based Takata Corporation, one of the world’s largest suppliers of automotive safety-related equipment, agreed to plead guilty to wire fraud and pay a total of $1 billion in criminal penalties stemming from the company’s fraudulent conduct in relation to sales of defective airbag inflators. An indictment was also unsealed charging three Takata executives with wire fraud and conspiracy in relation to the same conduct.

U.S. Attorney Barbara McQuade of the Eastern District of Michigan, Chief Andrew Weissmann of the Fraud Section of the Justice Department’s Criminal Division, Special Agent in Charge David P. Gelios of the FBI’s Detroit Field Office and Inspector General Calvin L. Scovel III of the U.S. Department of Transportation Office of Inspector General made the announcement.

“Automotive suppliers who sell products that are supposed to protect consumers from injury or death must put safety ahead of profits,” said U.S. Attorney McQuade. “If they choose instead to engage in fraud, we will hold accountable the individuals and business entities who are responsible.”

“For more than a decade, Takata repeatedly and systematically falsified critical test data related to the safety of its products, putting profits and production schedules ahead of safety,” said Fraud Section Chief Weissmann. “This announcement is the latest in the automotive industry enforcement actions the Fraud Section has taken to protect U.S. consumers against fraud.”

“Today’s criminal charges of the Takata Corporation and three of its employees should be a reminder to other corporations and their employees that if they commit fraud, the FBI and its law enforcement partners will ensure they are held accountable for their actions,” said Special Agent in Charge Gelios. “Whether it is the manipulation of test results which impact customer safety, defective product development or any other type of fraud, we will continue to aggressively investigate corporate fraud allegations to protect consumers in the United States and elsewhere.”

“I offer my deepest sympathies to the families and friends of those who died and to those who were injured as a result of the Takata Corporation’s failure to fulfill its obligation to ensure the safety of its airbag systems,” said Inspector General Scovel. “Because safety is and will remain the highest priority for my office, we will continue to work tirelessly with our law enforcement and prosecutorial partners in pursuing those who commit criminal violations of transportation-related laws and regulations. Along with similar settlements with General Motors in September 2015 and Toyota in March 2014, today’s agreement makes clear to all auto manufacturers and parts suppliers their duty in keeping the public safe.”

According to the company’s admissions, in the late 1990s, Takata began developing airbag inflators that relied upon ammonium nitrate as their primary propellant. From at least in or around 2000, Takata knew that certain ammonium nitrate-based inflators were not performing to the specifications required by the auto manufacturers. Takata also knew that certain inflators had sustained failures, including ruptures, during testing. Nevertheless, Takata induced its customers to purchase these airbag systems by submitting false and fraudulent reports and other information that concealed the true condition of the inflators. This fraudulent data made the performance of the company’s airbag inflators appear better than it actually was, including by omitting that, in some instances, inflators ruptured during testing. Takata employees – including a number of key executives – routinely discussed the falsification of test reports being provided to Takata’s customers in email and in verbal communications. Even after the inflators began to experience repeated problems in the field – including ruptures causing injuries and deaths – Takata executives continued to withhold the true and accurate inflator test information and data from their customers.

addition, Takata took no disciplinary actions against those involved in the falsification of test data until 2015, despite the fact that senior executives had been made aware of the fraudulent conduct years earlier.

Takata has agreed to plead guilty to a one-count criminal information filed today in the Eastern District of Michigan and assigned to U.S. District Judge George Caram Steeh, charging the company with one count of wire fraud. Under the terms of the agreement, Takata will pay a total criminal penalty of $1 billion, including $975 million in restitution and a $25 million fine. Two restitution funds will be established: a $125 million fund for individuals who have been physically injured by Takata’s airbags and who have not already reached a settlement with the company, and a $850 million fund for airbag recall and replacement costs incurred by auto manufacturers who were victims of Takata’s fraud scheme. A court-appointed special master will oversee administration of the restitution funds. Takata has also agreed to implement rigorous internal controls, retain a compliance monitor for a term of three years and cooperate fully with the department’s ongoing investigation, including its investigation of individuals.

The three Takata executives – Shinichi Tanaka, 59; Hideo Nakajima, 65; and Tsuneo Chikaraishi, 61, all Japanese citizens – were each charged in an indictment filed on Dec. 7, 2016, in the Eastern District of Michigan with one count of conspiracy to commit wire fraud and five counts of wire fraud for their alleged conduct in connection with the above-described fraud scheme.

The department reached this resolution based on a number of factors, including Takata’s extensive cooperation with the government’s investigation. However, the company did not receive more significant mitigation credit, either in the penalty or the form of resolution, because of the nature of the conduct to which the company is pleading guilty, including the approximate 15-year duration of the fraud, the pervasiveness of the scheme into the executive level of management and the potential risk the fraud posed to drivers and passengers.

Court Documents:
Takata Information
Takata Plea Agreement
Tanaka et al Indictment

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