Workers' Compensation

Friday, May 11, 2012

OSHA Fines NJ Employer For Unsafe Conditions

US Labor Department's OSHA cites Wisconsin-based food and beverage
manufacturer for repeat safety hazards at Flemington, NJ, facility

The U.S. Department of Labor's Occupational Safety and Health Administration has cited Kerry Ingredients & Flavours Inc., headquartered in Beloit, Wis., for three repeat violations at its Flemington facility. Proposed penalties total $50,000 following an inspection conducted under OSHA's Site-Specific Targeting Program for industries with high injury and illness rates.

"Not using proper safeguards leaves workers at risk of serious injury," said Patricia Jones, director of OSHA's Avenel Area Office. "Employers have a legal responsibility to ensure a safe and healthful workplace."

The violations involve amputation and laceration hazards due to a lack of lockout procedures for the energy sources of specific equipment, and the improper adjustment of bench rests and guards on a bench grinder. Similar violations were cited at the company's Chicago facility in May and October 2008. A repeat violation exists 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.

"Employers can take proactive steps alongside workers to identify and eliminate hazardous conditions by establishing an injury and illness prevention program," said Robert Kulick, OSHA's regional administrator in New York.

Kerry Ingredients & Flavours Inc. manufactures cereal, soft drinks and seasonings, and employs 45 workers at the Flemington site. The company has 15 business days from receipt of the citations to comply, ask for an informal conference with OSHA's area director or contest the citations and proposed penalties before the independent Occupational Safety and Health Review Commission.

To ask questions, obtain compliance assistance, file a complaint, or report workplace hospitalizations, fatalities or situations posing imminent danger to workers, the public should call OSHA's toll-free hotline at 800-321-OSHA (6742) or the agency's Avenel office at 732-750-3270.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA's role is to ensure these conditions for America's working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit http://www.osha.gov.

Law to Ban Medical Expense Claims Proposed

Legislation (A-2652) [introduced May 10, 2012] has been proposed in NJ that would ban charging workers’ compensation claimants for medical expenses and gives the Division of Workers’ Compensation sole jurisdiction over work-related medical claims. The law would be a positive initiative for all parties as it will subject medical provider claims to an exclusive remedy and consolidate the claims before a single administrative agency for resolution.

The legislation will be the subject of consideration by the NJ Assembly Labor Committee on Monday, May 14, 2012.

Click here to read: Clearing the Workers' Compensation Benefit Highway of Medical Expense Land Mines

By John H. Geaney and Jon L. Gelman
"Medical expenses in contested workers’ compensation cases are now a significant and troublesome issue resulting in uncertainty, delay and potential future liability. Th recent NJ Supreme Court decision, University of Mass. Memorial Hospital v. Christodoulou, 180 N.J. 334 (2004) has left the question of how to adjudicate medical benefits that were conditionally paid or paid in error. Presently there is no exclusively defined procedure to determine the allocation, apportionment of primary responsibility for unauthorized medical expenses and reimbursement."

Statement of the Bill

"This bill prohibits the charging of workers’ compensation
claimants for medical expenses that have been authorized by the
employer or its carrier or its third party administrator, that have
been paid by the employer, its carrier or third party administrator
pursuant to pursuant to the workers’ compensation law, or which
been determined by the Division of Workers’ Compensation to
be the responsibility of the employer, its carrier or third party
administrator. The bill gives the division sole jurisdiction over
disputed work-related medical claims, and directs the division to
provide procedures to resolve those disputes, including procedural
requirements for medical providers or any other party to the
dispute. Finally, the bill provides that the treatment of an injured

worker or the payment of workers’ compensation to an injured

worker or dependent of an injured or deceased worker shall not be
delayed because of a claim by a medical provider. "

Further Reference:
NJ Task Force Report on Medical Provider Claims
"During our meetings, it came to the attention of the Task Force that “balance billing” is a
problem. This is the practice wherein authorized medical providers accept fees paid by the
carrier and then issue a bill to the petitioner for any remaining balance. In an effort to eradicate
this practice, the Task Force recommends an amendment to N.J.S.A. 34:15-15. Section 15 of the
Act requires that employers furnish and pay for physicians, surgeons and hospital services for the
injured worker. Having reviewed the statute and the case law, the Task Force believes that there
is a need to clarify that balance billing in the workers’ compensation setting is inappropriate.

Accordingly, the Task Force recommends the following amendment to N.J.S.A. 34:15-15 which
we would propose would appear as a paragraph between the final two paragraphs of that section.

This additional language would read as follows:
“Fees for treatments that have been authorized by the employer or
its carrier or its third party administrator, or which have been
determined by the court to be the responsibility of the employer, its
carrier or third party administrator, shall not be charged against or
collectible from the injured worker. Sole jurisdiction for any
disputed medical charge arising from a workers’ compensation
claim shall be vested in the Division of Workers’ Compensation.”

Unsustainable

NCCI, a national workers' compensation rating company, reported yesterday that the workers' compensation industry is in trouble and that "NCCI's current analysis shows that the combined ratios for workers compensation remain at unsustainably high levels, and investment returns are not high enough to generate operating returns near the cost of capital." One on the major soaring costs was reported to be medical costs.

Click here to read the entire report: Complete State of the Line Presentation from AIS 2012

Wednesday, May 9, 2012

EPA to Discuss Plans for Addressing Contaminated Passaic River Sediment

EPA to Discuss Plans for Addressing Contaminated Passaic River Sediment; Public Meetings Scheduled for May 9 in Lyndhurst, New Jersey

The U.S. Environmental Protection Agency will discuss plans to address high levels of contaminants, including PCBs, mercury and dioxin, which are present in Passaic River mud adjacent to Riverside Park in Lyndhurst, New Jersey. Dioxin causes serious health effects, including cancer. PCBs are suspected carcinogens and mercury can cause serious damage to the nervous system. Steps are being taken under the Superfund program by the EPA to isolate and prevent movement of the contaminants from this area to other parts of the river. EPA is overseeing technical planning that has been initiated by the parties potentially responsible for the contamination. Superfund is the federal cleanup program established in 1980 to investigate and clean up the country’s most hazardous waste sites. The Superfund program operates on the principle that polluters should pay for the cleanups, rather than passing the costs to taxpayers. When sites are placed on the Superfund list, the EPA looks for parties responsible for the pollution and requires them to pay for the cleanups. Cleanups are only funded by taxpayer dollars when the responsible parties cannot be found or are not financially viable.

In the long term, risks to people wading in contaminated mud in the Passaic River alongside Riverside Park are slightly above EPA levels of concern. The EPA recommends that the public avoid wading in the mud flats in Lyndhurst.

The EPA will hold two public meetings on May 9 to discuss the planned cleanup actions and the results of recent sampling efforts in Riverside Park and the adjacent mud flats. The public meetings will be held from 3 PM to 5 PM and again from 7 PM to 9 PM in the court room of Lyndhurst Town Hall located at 367 Valleybrook Avenue.

The EPA estimates that cleanup work in the contaminated mud flats adjacent to Riverside County Park in Lyndhurst could begin in spring 2013 and extend for a period of time into summer 2013. The EPA will work closely with local officials, river and park users, the Passaic River Community Advisory Group, stakeholder organizations and the Lyndhurst community to provide information on these plans, coordinate the cleanup, and minimize possible disruptions to river and park use to the extent possible.

The EPA is overseeing a comprehensive investigation of contamination in the Passaic River that is being carried out by a group of parties potentially responsible for the contamination. Preliminary findings suggest that there could be six to eight additional mud flats in the Newark Bay to Garfield stretch of the river where elevated levels of contamination could warrant a closer look and possible action. While the EPA does not anticipate that the other mud flats present an immediate threat to recreational users of the park or river, it is working with the potentially responsible parties to plan additional sampling out of an abundance of caution. Those detailed sampling plans are being developed now to examine the mud flat areas.

Results from the latest round of mud flat sampling from this past winter are currently undergoing final review by the EPA. Any follow-up sampling deemed necessary by the EPA will likely take place under EPA oversight later this summer or fall, with results expected back in late 2012. EPA will provide the public with the sampling results as the information becomes available and will ensure that all communities are effectively engaged and informed.

Very low levels of PCBs, mercury and dioxin were found earlier this year in soil in the Lyndhurst and North Arlington sections of Riverside Park that likely were carried there by flooding. The concentrations of contaminants detected are well below established levels of concern for children and adolescents playing in the park and for workers maintaining the park. The EPA does not plan on additional sampling of the parks’ recreational areas and cleanup in the park is not necessary. The public can continue to enjoy using Riverside County Park in Lyndhurst but should practice proper hygiene that would normally be followed at any urban park that is prone to flooding.

Information on the investigation and cleanup activities in the lower Passaic River is available on the project Web sites at http://www.ourpassaic.org or http://www.epa.gov/region02/superfund/npl/diamondalkali/

Follow EPA Region 2 on Twitter at http://www.twitter.com/eparegion2 and visit our Facebook page, http://www.facebook.com/eparegion2.

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 work related accident and injuries.

Monday, May 7, 2012

Facebook, Organ Donations and Medical Privacy of Workers' Compensation

(Photo credit: Wikipedia)

The announcement of Facebook to allow for the public listing of organ donors of it social media site, albiet with good intentions, raises concerns about the privacy of workers' compensation claims as the organs could become a public commodity. The ramifications of commercialization of the process has raised issues on whether the privacy of organ beneficiaries can be maintained. Visions of yet another workers' compensation cottage industry emerging in human organ trade abound, adding yet another unregulated tier of potential dissemination of medical data.

Click here to read "Facebook’s New “Organ Donor” Feature: Many Applaud It, but Some Raise Possible Concerns About Protecting Private Health Information"

Friday, May 4, 2012

Federal Court Rules That Bankruptcy Court May Transfer Insurance Assets to Trust

The Third Circuit Court of Appeals has ruled that a Bankruptcy Court is permitted to transfer insurance assets to a trust despite policy prohibitions.

"Federal–Mogul Global and its affiliates filed for Chapter 11 bankruptcy and sought to resolve asbestos-related liability through the creation of a personal-injury trust under 11 U.S.C. § 524(g). As part of its reorganization plan, it sought to transfer rights under insurance liability policies to the trust. Appellants Insurers had provided liability policies to the debtors prior to bankruptcy and objected that the transfer violated the policies' anti-assignment provisions. Federal–Mogul contended that 11 U.S.C. § 1123(a)(5)(B) preempts those provisions, and the bankruptcy and district courts agreed. We will affirm."

"In sum, section 524 trusts are the only national statutory scheme extant to resolve asbestos litigation through a quasi-administrative process. In function, the trusts are similar to workers' compensation or other administrative remedies that employ valuation grids to compensate injuries, subject to individualized and judicial review. Unlike those schemes, the trusts place the authority to adjudicate claims in private rather than public hands, a difference that has at times given us and other observers pause, since it endows potentially interested parties with considerable authority."

In re Federal-Mogul Global
--- F.3d ----, 2012 WL 1511773
C.A.3 (Del.),2012.
May 01, 2012

Sidetracked By Drugs

New York Mayor, Michael R. Bloomberg. (Photo credit: Wikipedia)

The core health care delivery problems that exist in workers' compensation are not being driven by the alleged excess prescriptions of pain relief medication. That is a symptom of a system that has been derailed.

The focus of major employer and insurance initiatives of so-called reform legislation in multiple jurisdictions has been to reduce the delivery of prescriptive pain relief. Actually, that is an enforcement issue only that globally exists in the health care industry. New York's Mayor Michael Bloomberg, is working diligently to identify and database the few prescribers and physicians involved. A national effort modeled after the New York process would go a long way to curtain excessive and unorthodox prescriptions.

To use the prescription drug abuse issue to attack workers' compensation generally is merely sidetracking the real problem with the medical delivery system which is the global denial of compensability of workers' compensation claims by employers and insurance carriers merely to delay and avoid payment of medical benefits.

The recent decision in Federal Court recognizing RICO violations by an insurance carrier, the employer medical expert, and the employer itself, puts the real focus on the problem. That decision demonstrates the need to get the workers' compensation train back on the tracks and redirect the system so that it pays benefits to injured workers in an efficient and timely basis.

Copyright

Friday, May 11, 2012

OSHA Fines NJ Employer For Unsafe Conditions

Law to Ban Medical Expense Claims Proposed

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Unsustainable

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Wednesday, May 9, 2012

EPA to Discuss Plans for Addressing Contaminated Passaic River Sediment

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Monday, May 7, 2012

Facebook, Organ Donations and Medical Privacy of Workers' Compensation

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Friday, May 4, 2012

Federal Court Rules That Bankruptcy Court May Transfer Insurance Assets to Trust

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Sidetracked By Drugs

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