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(c) 2010-2026 Jon L Gelman, All Rights Reserved.

Wednesday, July 4, 2012

Happy 4th of July - "We hold these truths to be self-evident..."

Statute of Liberty, NY
(c) Jon L Gelman 2012
IN CONGRESS, JULY 4, 1776
The unanimous Declaration of the thirteen united States of America
When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. — Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.
He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.
He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.
He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures.
He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.
He has refused for a long time, after such dissolutions, to cause others to be elected, whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.
He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.
He has obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers.
He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.
He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.
He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.
He has affected to render the Military independent of and superior to the Civil Power.
He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:
For quartering large bodies of armed troops among us:
For protecting them, by a mock Trial from punishment for any Murders which they should commit on the Inhabitants of these States:
For cutting off our Trade with all parts of the world:
For imposing Taxes on us without our Consent:
For depriving us in many cases, of the benefit of Trial by Jury:
For transporting us beyond Seas to be tried for pretended offences:
For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies
For taking away our Charters, abolishing our most valuable Laws and altering fundamentally the Forms of our Governments:
For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.
He has abdicated Government here, by declaring us out of his Protection and waging War against us.
He has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people.
He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation, and tyranny, already begun with circumstances of Cruelty & Perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.
He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.
He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Nor have We been wanting in attentions to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. — And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.


Tuesday, July 3, 2012

Not Taxable: Reimbursed Governmental Sick Leave Benefits

A New Jersey appellate court ruled that workers' compensation benefits to a NJ governmental entity for the payment of sick leave benefits are not subject to the NJ State Gross Income Tax.

The Director of the Division of Taxation argued that the benefits were paid pursuant to a collective bargaining agreement and therefore were considered taxable wages. The court rejected that argument.

Where a municipality paid an injured worker sick leave Injury (SLI) program benefits, pursuant to a collective bargaining agreement, that portion of the benefit which was reimbursed as workers' compensation by the employee to governmental agency, is not subject to state income tax.

Sa v. Director, Division of Taxation, 2012 WL 2515276 (N.J.Tax), Decided June 29, 2012.
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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.

Surveillance Video Barred as Belated Evidence

A New Jersey appellate court held that the trial court's decision to bar the admission of a surveillance tape into evidence was appropriate in a total disability claim, where the employer's attorney did not adhere to the administrative of rules concerning the offering of evidence. On the last day of a trial, the employer attempted to introduce a surveillance video of the of the employee on the basis that the tape would refute the injured worker's testimony that he could do nothing at home more than replace a lightbulb.


At the trial, Judge  Kenneth Kovalcik, exercising his judicial discretion, barred the use of the video as evidence. The court relied upon NJAC 12:235-3.11(a)(4)(i) that requires a pretrial memorandum must reflect that a party intends to utilize videos or other electronic media prior to trial. The defense argued that it was unable to comply with the administrative requirement because the video did not exist at the time the pretrial memorandum was submitted and that it was necessary to rebut the petitioner's testimony.

In affirming the trial judge, the appellate court reasoned that it was not an abuse of discretion to bar the use of the video. It reasoned that the belated surveillance tapes could not be admitted unless the employer could show that it was unaware, and could not have become aware, of the circumstances warranting the surveillance video before the hearing.

Marra v. Ryder Transportation Resources & Second Injury Fund, Docket No. A-5274-10T4, 2012 WL 2505731 (N.J.Super.A.D.), decided July 2, 2012.

WTC Health Program: First Year Anniversay


WTC Program Administrator John Howard, M.D. comments about the one-year anniversary of the James Zadroga 9/11 Health and Compensation Act


On July 1st we marked the one-year anniversary of the James Zadroga 9/11 Health and Compensation Act going into effect, officially launching the World Trade Center (WTC) Health Program. The WTC Health Program is a unique government program that provides medical evaluation and treatment to eligible 9/11 responders and survivors.


After opening our doors one year ago, we have made a lot of progress in our ability to respond to the needs of our members. We wanted to take this opportunity to reflect on the past year and how the Program has grown and what we will be focusing on in the coming months.


If you should have any questions about the WTC Health Program, please email us at WTC@cdc.gov.


Thank you,


John Howard, M.D.
Administrator, World Trade Center Health Program


Achievements and Looking Ahead

  • Since the Program became effective last year, it has helped over 60,000 people receive benefits, including those who were previously enrolled in the medical monitoring and treatment program and more than 1,200 new enrollees.
  • The WTC Health Program Scientific/Technical Advisory Committee (STAC) met three times to discuss and prepare their recommendation on whether to add cancer to the list of health conditions covered by the Program.
  • On June 13, we published a proposed rule to add certain types of cancers to the list of conditions the Program covers. We based this decision on a hierarchy of methods, including the recommendation of the STAC. After a 30 day public comment period, the Administrator will consider and address those comments as appropriate before issuing a final ruling.
  • In May, Stony Brook Medical Center opened a new clinic in Brooklyn to serve 9/11 responders, providing another place to get care that is closer to home and/or work.
  • The funding announcement for outreach and education cooperative agreements has gone out and we are looking forward to reviewing the proposals. The purpose of the awards is to recruit eligible responders and survivors and help them enroll in the Program to receive the care they need and deserve.
  • We will continue to work to improve the Program, including establishing eligibility criteria for Pentagon and Shanksville, PA responders.
  • We will expand the Program so that through the nationwide network of providers both responders and survivors who live outside the New York City metropolitan area can receive monitoring and treatment benefits near to where they live.


Facebook Photo Admissible As Evidence

An injured worker was denied benefits when an Arkansas Court admitted into evidence Facebook pictures that were posted on line showing him drinking and partying. The worker had alleged that as a result of a hernia, sustained at work, he was in excruciating pain.

The trial court held that the evidence went to the weight to be given his testimony and it was within the province of the Court admit them into evidence. The Court dismissed the injured worker's argument that the Facebook photos "are a disgrace to the dignity of the workers' compensation proceeding and the legal system." The case was dismissed.

Clement v. Johnson's Warehouse Showroom, 2012 Ark. App. 17, 2012 WL 11285 (Ark.App.)

EPA Provides Funding Community Groups to Educate About River Contamination from Abandoned Industrial Facilities

The legacy of toxic pollution generated from abandoned industrial facilities located on the NJ Passaic River, and other urban waters,  concern the US Environmental Protection Agency (EPA). The agency will be providing grants to educate the communities, including the former workers of the facilities.

Many of the toxic substances that companies dumped in to the Passaic River have resulted in occupational illnesses that have taken decades to manifest. Claims for industrially-induced occupational diseases are probably the greatest economic burden upon the compensation system at this time. The epidemiological predictions of the manifestation of occupational disease in the 21st century are for numbers of "epidemic" proportion.

The U.S. Environmental Protection Agency is providing a $60,000 grant to the Ironbound Community Corporation, a community organization in the Ironbound section of Newark, New Jersey, to educate the community about the history and ecology of the Passaic River and what can be done to protect it. The funding is part of the EPA’s Urban Waters program, which supports community efforts to restore and revitalize local canals, rivers, lakes, wetlands, aquifers, estuaries, bays and ocean areas and provide access to them. The Ironbound Community Corporation is the largest comprehensive social service provider in the area.

"Urban waterways like the Passaic River have been battered by toxic and sewage pollution for too long," said EPA Regional Administrator Judith A. Enck. "By providing these grants, the EPA is supporting efforts to educate the public about the history of the Passaic River and the need to work together to clean it up.”

The Ironbound Community Corporation will offer a series of river tours and “walkshops” to introduce Newark residents to the Passaic River’s history and ecosystem. The programs will include a series of walks along the river’s edge to celebrate the river and educate participants about what they can do to improve the river. The Ironbound Community Corporation will also produce a Back to the River brochure and map depicting the history and current state of the Lower Passaic River.

Many urban waterways have been polluted for years by sewage, runoff from city streets and contamination from abandoned industrial facilities. Healthy and accessible urban waters can help local businesses grow and enhance educational, recreational, employment and economic opportunities in nearby communities. By promoting public access to urban waterways, the EPA is helping communities become active participants in restoration and protection.

Through the Urban Waters program, the EPA is awarding grants ranging from $30,000 to $60,000 to 46 organizations throughout the nation. The projects selected for the funding will promote the restoration of urban waters through community engagement and outreach, water quality monitoring and studies, and environmental education and training. To view a list of the grant recipients, visit: http://www.epa.gov/urbanwaters/funding.Information on the EPA’s Urban Waters program: http://www.epa.gov/urbanwaters/index.html.

Information on the Urban Waters Federal Partnership: http://urbanwaters.gov/
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For over 3 decades the Law Offices of Jon L. Gelman1.973.696.7900 jon@gelmans.com have been representing injured workers and their families who have suffered work related accident and injuries.


More Blogs About the Passaic river Pollution
Jun 21, 2012
Seventy Companies Reach Agreement with EPA to Remove Highly Contaminated Mud from Lyndhurst Section of the Passaic River; Cleanup work estimated to cost $20 million. The U.S. Environmental Protection Agency ...
May 09, 2012
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 ...
Feb 28, 2012
In 2010, new pollutants were included for waters in the basins of the Hudson River, the Passaic River, the Raritan River, the Delaware Bay, and others. The EPA will continue to work with state and local governments to ensure ...
Dec 28, 2011
The U.S. Department of Labor's Occupational Safety and Health Administration has cited Creamer Sanzari Joint Venture of Hackensack for seven alleged serious safety violations found at the Passaic River bridge project in ...

Monday, July 2, 2012

The Stockton Senario: When the Municipality Goes Into Bankruptcy

Official seal of City of Stockton
Official seal of City of Stockton (Photo credit: Wikipedia)
An injured municipal employee's nightmare is when the governmental entity goes into bankruptcy and uncertainty of benefits and potential elimination of a safety net become a reality. Unfortunately the senario is now threatening to be played out in Stockton, California.


Stockton is self-insured:
"The City of Stockton is "self-insured" for workers' compensation benefits. The City pays benefits directly to injured employees rather than purchasing an insurance policy that would pay benefits.

"All employees of the City are eligible to receive workers compensation benefits if injured or made ill by their job. There is no qualification period for eligibility, such as working a minimum time period or a minimum number of hours per week. If an employee believes that he or she was injured on the job, a claim for benefits can be filed with the employee's supervisor.


Some states have backup coverage system in place to provide benefits and many do not. If the bankruptcy protection becomes a growing trend for municipalities, then the senario can become even more problematic.