“Filling the Gaps” Did Not Accelerate the Statute of Limitations

In a novel decision the NJ Appellate Division decided the custom the workers’ compensation insurance company of “filling the gaps” between periods of temporary disability with permanent disability payments was an unauthorized acceleration and did not step up the final date of payments for purposes of the statue of limitations. The petitioner was permitted to file an application to review and modify his former award for increased benefits two years from the payment of benefits that would have been paid had they not been accelerated by the insurance carrier. Pollock v. Tri State Motor Transit, Inc. , No. A-6224-06T1, NJ App. Div. Decided August 15, 2008.

http://www.judiciary.state.nj.us/opinions/a6224-06.pdf

2009 NJ Workers’ Compensation Benefit Will Amount to $19.32 Per Hour

The 2009 workers’ compensation benefit rate for 2009 has been announced and it will increase to a maximum of $19.32 per hour or the equivalent of $40,196. per year. NJ bases its rate on only 70% of the SAWW.

• NJ SAWW $1030

• NJ SAWW Hourly $25.75/hr

• 2009 Annual Benefit 75% SAWW of the 2008 SAWW $773.00

• 2009 Maximum Annual SAWW cap = $19.32/hour

• $19.32 x 40 x 52 = $40,196.00 per year

Where NJ Stands in Comparison to Other States
13 States have SAWW Caps that are higher than 100% of the SAWW. Iowa has 200%. 20 States, including close or nearly adjacent States/Federal District (Pennsylvania, Rhode Island, Connecticut, Massachusetts and District of Columbia.), have 100%.

Of the States with fixed dollar caps on benefits, 33 States have caps that are 100% or greater than New Jersey and only 6 states have dollar caps lower than NJ.

What an Increase of the “CAP” Would Cost
Some proponents have sough a legislative change in NJ to increase the benefit payment, It has been estimated that in increase in the cap from merely from 75% to 80% would cost no more that a 1% percent increase in total cost and therefore an increase to 100% would be no more than 5% or about $100 million in total premium dollars.

CMS/MSP and the Increase in Drug Costs

Hold onto your seats because the cost of drugs are soaring and so will be the requests from CMS for MSP reimbursements and future allocations for set-aside agreements. CMS just announced that to merely make ends meet next year that it is increasing the drug premium cost 12% for 2009. While CMS announced that this is lower than anticipated it still will be a major increase to workers’ compensation programs through reimbursement procedures.

With 17.4 million beneficiaries enrolled in the program and the average person living longer due to enhanced medical care the issue reimbursement will continue to have a greater impact on State workers’ compensation programs.

EIRSA’s Reach Shortened by the US Supreme Court

The US Supreme Court denied certification in Silverleaf v Resorts, Inc. v. McAteer, 128 S.Ct. 2884, and allowed to stand a 5th Circuit decision, McAteer v. Silverleaf Resorts, Inc., 514 F.3d 411 (C.A.5-Tex. 2008) ,that held that an employee’s state law negligence claim against her employer for the failure to maintain a safe workplace were not preempted by the Employee Retirement Income Security Act (ERISA]. The employee’s action was improperly removed on theory based on ERISA preemption. The employee was required to waive participation in the State of Texas’ workers compensation program in order to participate in the employer’s EIRSA plan. The election made ERISA the exclusive remedy for any on-the-job-injuries.

In the decision rendered by the 5th Circuit, the Court held that RISA does not preempt state law negligence claims relying upon its prior decision in Hook v. Morrison Milling Co., 38 F.3d 776 (C.A.5-Tex. 1994).

The employer, Silverleaf, was a non-subscriber to the Texas workers’ compensation plan and had stabled an ERISA governed plan to provide benefits to employee in the event of a job-related injury and provide for the arbitration of disputes regarding benefits.

Workers’ Comp by an ATM Machine

Workers’ Compensation is high finance and the delivery of benefits a costly procedure. JP Morgan Chase & Co. has announced that it will issue a Visa credit card underwritten by workers’ compensation funds. Ohio’s Central Mutual Insurance Co. is expected to be one of the first companies to use this financial mechanism for distribution of funds.

Since injured workers are probably in financial distress to begin with, as they lack adequate wage replacements and are disabled, it will be important to watch what safeguards are put in place to regulate this vehicle so that the captive market of injured workers does not become prey to credit card companies.

Hospital-Acquired Infections - The Next Wave of Litigation

The old saying, “Sick people don’t belong in hospitals,” was given new meaning by a recent jury verdict for over $2.5 Million against a heart surgeon and his practice group and a hospital in St. Louis Missouri. The patient was admitted for the installation of a pacemaker and a resulting hospital acquired infection resulted in the loss of his right leg a portion of his left foot, a kidney and his a majority of his hearing.

The award was entered after the patient contracted a hospital-acquired infection. The patient had developed a drug-resistant staph infection called methicillin-resistant Staphylococcus aureus (MRSA)

Medicare has taken the position recently that it will no longer reimburse hospital for the conditions, citing them as “never” events. Many infections in hospitals are preventable through proper sanitation and serialization procedure. The verdict serves as a wake-up call to hospitals and their staff’s that they will suffer economic consequences if they fail to maintain a safe working environment.

Governor Patterson Signs Legislation Extending Benefits for 911 Workers

New York State workers’ compensation benefits have been expanded for 911 workers as a result legislation signed Governor Patterson. Under the prior law the registration period would have closed in August 208. The date has been extended to September 10, 2010.

The definitions in this bill expand the scope of a "qualifying WTC condition" under the Accidental Diability Law to include:

(1) members who did not undergo apre-employment physical examination, but who provide access to medical records which demonstrate the absence of a qualifying condition priorto September 11, 2001;

(2) 911 dispatchers who worked on September 11, 2001 and suffered psychological injury;

(3) members who worked for any period of time within the first 48 hours after the first airplane hit the WTC; and

(4) members who repaired, cleaned or rehabilitated vehicles or equipment, including emergency vehicle radio equipment owned by New York City ("NYC") that was contaminated by debris from the WTC site.

Sections 18, 19 and 20 of the bill amend Workers` Compensation Law("WCL") SS 162, 164 and 168 to allow claimants to file a sworn statement indicating the dates and locations of their participation inthe rescue, recovery and clean-up operations until September 10, 2010,with the date of disablement being determined as the date mostbeneficial to the claimant. Claims for disablements occurring between September 1, 2003 and September 11, 2008 will not be time barred. The time period was to have expired on August 14, 2008.

“We have a profound responsibility to provide those who participated in the rescue, recovery and clean-up efforts in the aftermath of the terrorist attack on September 11, 2001 with the benefits they deserve,” said Governor Paterson. “It is imperative that we continue to provide those workers who face health consequences from their work at Ground Zero with the very best care and the opportunity to apply for disability benefits.”

“We also have a responsibility to better protect patients in New York. Strengthening the disciplinary system for physicians and giving the public more information, combined with enhancing infection control measures, is vital to the safety of all of our citizens,” added Paterson.