Workers' Compensation

Monday, March 26, 2012

Congress to Hold Hearings on Toxic Cosmetics

The Subcommittee on Health has scheduled a hearing on Tuesday, March 27, 2012, at 10:15 a.m. in room 2322 of the Rayburn House Office Building. The title of the hearing is “Examining the Current State of Cosmetics.” The hearings follow disclosure that various hair products contain formaldehyde, a carcinogen, and that some lipstick contains lead, a neurotoxic substance.

Witness List:

Panel One:

Michael M. Landa, J.D.
Director
Center for Food Safety and Applied Nutrition (CFSAN)
U.S. Food and Drug Administration
Witness Testimony (Truth in Testimony)

Panel Two:

Halyna Breslawec, Ph.D.
Chief Scientist and Executive Vice President for Science
The Personal Care Products Council
Witness Testimony (Truth in Testimony)

Peter Barton Hutt, J.D.
Senior Counsel
Covington and Burling, LLP
Witness Testimony (Truth in Testimony)

Ms. Curran Dandurand
Co-Founder and Chief Executive Officer
Jack Black Skincare
Witness Testimony (Truth in Testimony)

Ms. Debbie May
President and Chief Executive Officer
Wholesale Supplies Plus
Witness Testimony

Michael J. DiBartolomeis, Ph.D, CIH
Chief Occupational Lead
Poisoning Prevention Program & California
Safe Cosmetics Program
California Department of Public Health

Saturday, March 24, 2012

Federal Appeals Court Allows Case to Go Forward Against Zurich For Obstruction Of Workers Compensation Claim

The Federal 8th Circuit Court of Appeals has ruled that an employee may be permitted to go forward against an employer and its workers' compensation insurer, Zurich American Insurance Company for the intentional obstruction of a claim. The insurance company, despite conflicting statements, denied the compensability of a claim.

The Court stated:
"From the outset of Nunn’s workers’ compensation case, Zurich’s claims representative Tara Draves-Blandin and its attorneys Kristin B. Maland and Patrick T. Grove understood that if Gibson called the meeting for business purposes, Nunn’s claim was compensable."
***

"Viewing the facts most favorably to Nunn, there are genuine issues of material fact whether Noodles intentionally obstructed her receipt of workers’ compensation benefits through Gibson’s fabrications and its 17-month delay in payment."

Nunn v Noodles & Company; Zurich American Insurance Company, No. 11-1531 (8th Cir Ct 2012) Decided March 22, 2012 __F.3d__, 2012 WL 952759 (C.A.8 Minn.)

Wednesday, March 21, 2012

Employer Assessed $14,947 Counsel Fee For Wrongful Termination

A NJ administrative court awarded back pay to a wrongfully terminated employee and counsel fees to his lawyer as a result of being terminated by his employer for filing a workers' compensation claim.

"Based upon the applicable law, I CONCLUDE that the uncontested facts as set forth by petitioner establish a prima facie case of retaliation pursuant to N.J.S.A. 34:15-39.1 because they show that Hatley 1) made a claim for Workers' Compensation and 2) he was discharged in retaliation for making that claim. Morris v. Siemens, 928 F. Supp. 486, 493 (D.N.J. 1996), reargument denied, 938 F. Supp. 277 (1996). The employer did not come forward with any legitimate business reason for firing him so it may be inferred and I CONCLUDE, from the circumstances in this case that the two events were causally connected, Hatley's claim was the cause of his discharge.

****

"Accordingly, it is ORDERED that respondent Perfection Contracting, Inc. pay petitioner Hatley back wages in the amount of $26,356.72 because it wrongfully discharged petitioner from his position in violation of N.J.S.A. 34:15-39.1.

IT IS FURTHER ORDERED that respondent Perfection Contracting, Inc. shall also pay legal fees to the law firm of Lawrie, Cozier and Vivenzio in the amount of $14,947.50 incurred by the petitioner as a result of respondent's wrongful termination and statutory violations.

Hatley v Perfection Contracting, Inc., 2012 WL 918966 (N.J. Adm.) Decided March 5, 2012.

US Supreme Court Hears Arguments on The Entitlement of Children's Benefits

The US Supreme Court, in a matter that may have widespread impact on workers' compensation dependency benefits, heard oral arguments in Astrue v Capato concerning whether a child conceived after the death of a biological parent is eligible for survivor benefits under Title II of the Social Security Act [42 USC § 401 et seq.].

Justica report on Circuit Court Split:

"The US Court of Appeals for the Third Circuit ruled [opinion] that the Social Security Act must provide for claimants' children who were born after their death. Attorney for the Commissioner of Social Security appealed, arguing that the court must defer to state intestacy law, regardless of whether the Social Security Act's definition of child is ambiguous.

Health Benefits, US Supreme Court and Workers Compensation

U.S. Supreme Court building.
(Photo credit: Wikipedia)

On Monday, the US Supreme Court will hear oral arguments concerning the validity of the 2010 Patient Protection and Affordable Care Act. Whatever the US Supreme Court decides in the pending matters, the nation's patchwork of workers' compensation systems will ultimately feel the impact. The implementation of the Act will ultimately have far reaching consequences of the overall operation of both the delivery of workers' compensation medical benefits and the ultimate assessment/apportionment of permanent disability.

Workers' Compensation systems have been struggling with the delivery of medical benefits. As more cases are denied initial compensability determinations, and alterate medical care is sought for the prevention, identification and treatment of underlying, co-existing and pre-existing medical conditions will be even more significant issues in workers' compensation matters.

Thompson-Reuters News & Insight identifies some of the issues the US Supreme Court will consider:

"* Adult children remaining on their parents' insurance coverage through the age of 26.

* An end to lifetime limits on the dollar value of benefits available to people with serious medical conditions that can lead to astronomical treatment costs.

* Preventive healthcare benefits including free coverage for mammograms and birth control.

* For Medicare beneficiaries stuck in the prescription drug benefit coverage gap known as the "doughnut hole," a 50 percent discount on covered brand name drugs and 14 percent savings on generic drugs.

* A requirement that insurance companies justify unreasonably large healthcare premium increases.

* Tax credits for small employers with no more than 25 employees and average annual wages of less than $50,000 that provide health insurance for employees.

* Temporary insurance coverage programs for retirees who are over age 55 but not eligible for Medicare.

* Temporary insurance coverage for individuals with pre-existing medical conditions who have been uninsured for at least six months.

* A requirement that health plans report the proportion of premium dollars spent on clinical services, quality, and other costs, and provide rebates to consumers if the share of the premium spent on clinical services and quality is less than 85 percent in the large group market and 80 percent in the individual and small group markets.

National Federation of Independent Business v. Sebelius, No. 11-393; U.S. Department of Health and Human Services v. Florida, No. 11-398; and Florida v. Department of Health and Human Services, No. 11-400

Related articles

US Supreme Court Rules When Disability Commences in Longshore Case

Sonia Sotomayor, U.S. Supreme Court justice
(Photo credit: Wikipedia)

The US Supreme Court ruled that an employee must be "newly awarded compensation" in a Longshore and Harbor Workers Act (LHWCA) claim when he was injured and not when the award was entered. This determination sets the time frame for the calculation of benefits.

Justica reports:

"In an opinion authored by Justice Sonia Sotomayor, the court held that in order to support an administrable rule "that will result in equal treatment of similarly situated beneficiaries and avoids gamesman ship in the claims process," an employee must be "'newly awarded compensation' when he first becomes disabled and thereby becomes statutorily entitled to benefits under the Act, no matter whether, or when, a compensation order issues on his behalf." The court further concluded that:

'[A]pplying the national average weekly wage for the fiscal year in which an employee becomes disabled advances the LHWCA's purpose to compensate disability, defined as "incapacity because of injury to earn the wages which the employee was receiving at the time of injury." Just as the LHWCA takes "the average weekly wage of the injured employee at the time of the injury" as the "basis upon which to compute compensation" it is logical to apply the national average weekly wage for the same point in time.

Roberts v. Sea-Land Services

Tuesday, March 20, 2012