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(c) 2010-2024 Jon L Gelman, All Rights Reserved.

Monday, October 31, 2011

U.S. Chamber’s Hypocrisy Exposed: Do As I Say, Not As I Sue

New report shows hypocrisy of Institute for Legal Reform’s corporate board members that aggressively litigate while blocking justice for everyday Americans
As the U.S. Chamber’s Institute for Legal Reform (ILR) holds its annual summit – a strategy session on eliminating Americans’ access to the civil justice system – a new report exposes ILR’s corporate board members that hypocritically use the courts for their own gain against competitors, customers and even each other.
In its newest report, Do As I Say, Not As I Sue, the American Association for Justice (AAJ) exposes the hypocrisy of 10 ILR board members that regularly use the legal system to advance their own agendas, while at the same time advocating legislation that would close the courthouse doors to anyone who would hold them accountable for their own wrongdoing.
“These corporations, like all Americans, have a right to seek justice through the legal system,” said AAJ President Gary M. Paul. “What makes their actions shameful and hypocritical is that these companies are members of ILR’s board for the sole purpose of denying American workers and consumers this same right.”
One ILR board member highlighted in the report is Honeywell International, which has regularly taken competitors to court, but would prefer not to be held accountable for distributing defective body armor to law enforcement personnel across the country, or downplaying the dangers of asbestos exposure.
In return for its financial contributions to ILR, Honeywell has received policy and public relations help when its negligence has been uncovered.  Four days after an Illinois jury delivered a multi-million dollar verdict against Honeywell for conspiring to hide the dangers of asbestos, ILR issued a press release stating that the decision “confirms a troubling trend in the State of Illinois where there is a hostile ligation environment.” Additionally, the Madison County Record, an Illinois-based propaganda-as-news outlet fully owned by ILR, featured an article headlined, “McLean County Continues Inching Closer to Becoming a ‘Judicial Hellhole.’”
The irony does not stop with Honeywell – AAJ’s report also highlights the litigation hypocrisy of ILR board members FedEx, Dow Chemical Company, General Motors Corporation, Caterpillar, State Farm, Koch Industries, Abbott Laboratories, Prudential and Johnson & Johnson.
Online ads will run this week on major news sites and blogs to promote the report, Do As I Say, Not As I Sue: Exposing the Lawsuit-Happy Hypocrites of U.S. Chamber’s Institute for Legal Reform, which can be found at www.justice.org/USChamber.
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It is All The Same Apple

Another challenge to the Medicare Secondary Payer Act (MSP) has been introduced (H.R. 1063 in Congress. This is yet another attempt to bounce the dead cat on the floor.

The legislation is the third reiteration by insurance companies, and the cottage industry that has emerged to service conditional payment resolution. It is most likely doomed to failure reflecting the quick death of its predecessors and the worsening economic times.

Since the enactment of the  MSP in 1980, there has been a slow, yet pervasive and effective effort by the US government to stop the shifting ofmedical costs from the workers’ compensation system onto the  shoulders of the Medicare system.

Medicare has its own solvency problems, not withstanding cost-shifting by the workers’ compensation system. Medicare is trying to serve a growing constituency as costs soar and the base of available of income to tax dwindles. Medicare costs have become a major target for the “Super Committee” in Congress for cost reduction.

Statistics also reveal that the aging workforce is continuing to fall apart physically and file for Social Security Disability Insurance in lieu of workers' compensation at a greater rate than ever..  Even though more attention is now directed to major diseases such as cardio-vascular, cancer and diabetes, the aging bodies of the senior citizen population continue to need more medical care due to wear and tear alone. The barriers established through so-called reformed efforts have blocked the follow of new occupational disease cases into the workers' compensation system.

The aging workforce looks to Social Security Disability Benefits and Medicare as a more effective remedy, and one that takes precedence over applications for workers’ compensation. Fewer seniors, and those approaching that age, opt for workers’ compensation benefits. This pattern even puts more fiscal strain on the present Social Security and Medicare system. 

Medicare is really not a free-ride for seniors and the government. While workers and their employers have made contributions for a lifetime, the system consume a large portion of the nation's economic wealth. Two major hospitalizations by a beneficiary exhaust all the individual and employer economic contributions completely from the reserves, and the government is stuck covering excess bills for the individual's lifetime.

As the US government continues to mandate stricter reporting and payment procedures the state workers’ compensation programs as the state programs to become further stressed by the Centers for Medicare and Medicar Services (CMS) reimbursement procedures. Both the federal and state systems have the same goal of providing assistance to disabled workers and their families.

As each continue to battle for a resolution of their own economic issues, they are merely shooting each other in the foot and weakening the entire purpose of each of their noble missions. Until a more unified system is established, it is incumbent upon both programs to direct their efforts to designing a more non-contentious system of resolution. 

The mandatory arbitration of the cost medical reimbursement would be an interim step so that the workers’ compensation administrative process could go forward unimpeded. The problem of funding medical costs for the population should be considered one apple, and taking bites at it from every direction will merely result in a total deterioration of the entire process.
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Sunday, October 30, 2011

Winter Snowstorm Brings Concerns Over Work Related Accidents

Snowstorms can be dangerous for workers. The picturesque early fall snowstorm pounding the Eastern seaboard brings great concern over the potential for accidents at work.

Some of the hazards associated with working in winter storms include:
  • Driving accidents due to slippery roadways
  • Carbon monoxide poisoning
  • Slips and falls due to slippery walkways
  • Hypothermia and frostbite due to the cold weather exposure
  • Being struck by falling objects such as icicles, tree limbs, and utility poles
  • Electrocution due to downed power lines or downed objects in contact with power lines
  • Falls from heights (e.g. falls from roof or skylights while removing snow)
  • Roof collapse under weight of snow (or melting snow if drains are clogged)
  • Burns from fires caused by energized line contact or equipment failure
  • Exhaustion from working extended shifts
  • Dehydration
  • Back injuries or heart attack while removing snow
Potential hazards from down power lines include:
  • Electrocution by contacting downed energized lines, or contacting objects, such as broken tree limbs, in contact with fallen lines.
  • Falls from heights.
  • Being struck or crushed by falling poles, towers or parts thereof, tree limbs, ice accumulation on lines, towers and poles.
  • Being injured in vehicular accidents when responding to an emergency situation.
  • Burns from fires caused by energized line contact or equipment failure.

Workers are entitle to receive workers' compensation benefits should they get hurt at work. The benefits include: temporary compensation when out of work and under treatment, medical treatment and permanent disability benefits. Workers should consult an attorney at once if they sustain a work-related accident.

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.
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Wednesday, October 26, 2011

Employee Allowed to Sue Employer for Negligence Resulting From an Occupational Exposure

Guest Blog by John R. Boyd

A Court of Appeals in Missouri has ruled that an employee, who became ill as a result of an occupational exposure to asbestos fiber, may sue his employer for negligence. The Court ruled that the limitations on recovery of the Workers' Compensation Act did not bar a claim where an occupational exposure occurred.

On September 13, 2011, the Court of Appeals for the Western District of Missouri issued a very rare en banc opinion on a writ of prohibition allowing the employee's claim to go forward. The ill worker was exposed to asbestos, a known cancer causing agent, while working for KCP&L Greater Missouri Operations Company (KCP&L)  from 1954 to 1988 and was diagnosed with mesothelioma in 2010. Mesothelioma is a rare, but fatal, asbestos related disease.

His claims against his employer, KCP&L,  relied upon premises liability and negligence theories. The employee alleged that KCP&L had a duty to exercise "reasonable care" in preventing an "unreasonable risk of injury."   KCP&L argued that the Missouri Workers' Compensation Act was his exclusive remedy, and sought summary judgment, which was ultimately denied by the trial court.

The Appeals Court held in its 7-2 opinion, that a strict reading of the  Missouri Statutes §287.020.2 and §287.120 defeated KCP&L's argument that the claimant's occupational disease was covered by the Act, and that workers' compensation was the employee's exclusive remedy available. The Court reasoned that the 2005 amendments to the Missouri Workers' Compensation Act required a "strict construction" of the Act. 

The exposure at work was deemed not to be a specific accident, but rather a continuous occupational exposure over 34 years. The Appeals Court differentiated the occupational exposure to asbestos from a specific accident that is defined as "an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift."

The Court's ruling opened the door for this worker and others who have been exposed in such a fashion to pursue a lawsuit against his or her employer directly, and not be constrained by the limited economic bounds of the Workers' Compensation Act.

This change in the law came about as a result of previous aggressive actions by business and industry to modify the Missouri Workers' Compensation Act in an to attempt to eliminate claims. The ultimate lesson to be learned is that when a pro-business Legislature deforms the law, and attempts to carve-out certain types of injuries from being compensable, they force such cases into the civil arena. Be careful what you ask for----you just might get what you deserve.

Following the Appeals Court's  ruling, an Application for Transfer to the Missouri Supreme Court was filed by counsel for the appellant's on 9/27/11. No ruling on the transfer request has been made by the Missouri Supreme Court.

State ex rel KCP&L Greater Missouri Operations Company v. Hon. Jacqueline Cook WD73642 2011 WL 4031146 (Mo.App. W.D.) (September 13, 2011)

John R. Boyd  is President of the Workers' Injury Law and Advocacy Group (WILG). He is the managing partner of Boyd & Kenter, P.C., Kansas City, MO, and is licensed to practice in Missouri, the United States Court of Appeals for the Eighth Circuit; and the United States District Court for the Western District of Missouri. He is currently a member of the Missouri Bar Association, the Kansas City Metropolitan Bar Association (Chairman of the Workers' Compensation Committee 2000-2001), the Missouri Association of Trial Attorneys (MATA), and the American Association for Justice. 
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Sense of Injustice, Occupy Wall Street & A Tornado Survivor From Joplin

In a dramatic turn of events based upon pubic outrage, a insurance company has reversed its decision and now decided to provide workers' compensation benefits to a first responder who was injured while providing assistance to tornado victims in Joplin, Missouri.


Mark Lindquist saved 3 development disabled adults in Joplin following the tornado that devastated that community. Caught in the he 200 mile an hour tornado, Lindquist lost all of his teeth, was in a coma for several months and ran up medical bills amounting to $2.5 Million. The insurance company initial had denied the claim and recent news reports and public outrage resulted in a reversal by the insurance company on the issue of compensability.


The same outrage against Corporate America and an imbalance in the socio-economic system is now being reflected in the Occupy Wall Street movement. Recently Amy Goodman commented about the growing recognition of injustice on the Charlie Rose show. 

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Florida Deems NCCI Rate Request Flawed

Florida ruled that the rate request from NCCI (National Council on Compensation Insurance, Inc.) was based on a flawed calculation. Nevertheless, the State of Florida did rule that the workers' compensation rates would increase 8.9% effective January 1, 2012.

"Commissioner McCarty’s Order is technically a denial of NCCI's rate filing. The Office did not accept NCCI’s methodology for input parameters including policyholder dividends, the loading for these dividends, and investment yields. The Office also did not accept specific rate changes for certain classes, specifically the "F" classes for workers covered by the Federal Acts, classification code 5551 (roofers), and classification code 7705 (Ambulance and EMS providers). The Office also disapproved the proposed increase in minimum premiums."

The Sunshine State has take a very serious economic downturn following the collapse of the real estate market over the past few years. When one drives through southern Florida you can detect that the only industry that is booming is the signage companies that print the "For Lease" and "For Rent" signs that have proliferated throughout the region.

NCCI provides rate information for the majority of States where workers' compensation is written. The availability of rating data is somewhat restricted. 

The news of increased workers' compensation rates, compounded by recent real estate taxes increases, is not good news for the staggering Florida economy that by luck this year missed the impact of severe hurricane season. Should that change in 2012, the increased to be assessed in 2012 may produce a defining moment for the  entire workers' compensation program in that state.
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Monday, October 24, 2011

Insurance Agent Charged With Theft of $255,000 of Work Comp Premiums

Agents from the Pennsylvania Attorney General's Insurance Fraud Section have filed criminal charges against a Berks County man accused of the theft of more than $255,000 in workers' compensation insurance premiums.

Attorney General Linda Kelly identified the defendant as Joseph A. Maurer, 58, of 2558 Welsh Road, Mohnton. Maurer owned and operated Commonwealth Professional Group, a former insurance agency located in Reading, Berks County.

According to the criminal complaint, Maurer is accused of taking more than $188,000 in premiums paid by four municipal governments, including Bally Borough and South Heidelberg Township, located in Berks County, along with Salisbury Township in Lehigh County and Earl Township in Lancaster County. The money allegedly paid to Maurer by all four municipalities was supposed to be forwarded to Pennprime Insurance Trust, of Harrisburg, as payment for workers compensation coverage.

Additionally, Maurer allegedly misdirected premium payments for at least five other policies purchased through his agency, totaling in excess of $67,000 that was supposed to be forwarded to Travelers Insurance and ACE American Insurance Company on behalf of various clients.

Maurer is charged with three counts of theft by failure to make required disposition of funds received, all third-degree felonies which are each punishable by up to seven years in prison and $15,000 fines.

Maurer was preliminarily arraigned on October 12th before Reading Magisterial District Judge Phyllis J. Kowalski and released on $850,000 unsecured bail. He was also ordered to surrender his passport.

A preliminary hearing for Maurer is scheduled for November 9th, at 1:30 p.m., before Magisterial District Judge Kowalski.

The case will be prosecuted in Berks County by Deputy Attorney General John T. Dickinson of the Pennsylvania Attorney General's Insurance Fraud Section.
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