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Wednesday, October 9, 2013

Case Remanded to Compensation Court to Determine Employment Status

A NJ Appellate Court has remanded a negligence case from Superior Court to the Division of Workers' Compensation to determine when an employee held joint employment and subject to the Exclusivity Bar.

" It is well settled in this jurisdiction that for workers ' compensation  purposes
an employee may be simultaneously employed by more than one employer, either because
of the employee's separate contracting with multiple employers or because
his general employer has “lent” him to a special employer. The question to be
determined in the dual employment situation is whether, at the time of the injury,
the petitioner was, as a factual matter, the employee of one or the other
or both of the employers.
In determining which among multiple employers are liable for workers ' compensation ,
this court has noted the indicia of employment that ordinarily require
evaluation, including the existence of a separate agreement between the employee
and each employer, the determination of whose work is being done at the time of
the compensable injury, which has the right to control the details of the work,
which pays, and which has the power to hire, discharge or recall the employee.
The relative weight to be accorded these factors and the manner in which they
are to be balanced are not, however, ... subject to mechanical or automatic application.
Rather, the criteria determinative of the employment relationship
must be “rationalized and applied so that each case may be considered and determined
upon its own particular facts.” And, ...in the dual employment situation,
the most significant inquiry is the determination of “whose interest the
employee was furthering at the time of the accident. ”

CHALMERS and FRED CHALMERS, Plaintiffs–Appellants,
v.
STEPHEN J. SWARTZ
--- A.3d ----, 2013 WL 5525694 (N.J.Super.A.D.) October 9, 2013

Related articles

Wednesday, October 28, 2009

Workers Compensation Insurance Company and PBMs Liability for Drug Abuse

The Wall Street Journal reports today about a claim against  pharmacies as a result of customer drug abuse. In the State of Nevada a case is pending that may confer liability upon a drugstore for the consequences of an accident caused by patient drug abuse. A pharmacy dispensed narcotic painkillers to a Patricia Copening, 35 year old doctor's office receptionist, who killed a 21 year old man in a fatal Las Vegas accident. 


A case is pending against the seven pharmacies (Wal-Mart, Longs Drugs, Walgreen Co., CVS Pharmacy, Rite-Aid, Sav-On and Lam’s Pharmacy) that dispensed 4,800 tablets of the drug for Copening in the 13 months prior to the fatal accident. 


The Nevada Prescription Controlled Substance Abuse Task Force had notified the pharmacies that Copening was “taking an unusual amount of these narcotics.” The vehicle causing the accident was commercially owned by a physician who was involved in a relationship with the driver.


The Nevada Supreme Court will be deciding whether the pharmacies, previously dismissed by the trial court, are liable because they dispense enormous amounts of drugs to Copening that resulted in drug abuse and resulting the fatal accident. 


Where the perimeter of liability may end is unknown. Workers' Compensation insurance companies and their integrated pharmacy benefit managers (PBMs) dispense many narcotics, on an ongoing basis, for pain relief, to injured workers.  The courts may ultimately deem them unprotected by the "exclusivity rule," and they, as ultimate wrongdoers, may become targets for these tragic yet foreseeable events.


To read more about drugs and workers' compensation click here.

Wednesday, July 18, 2012

Workers Compensation Rates in New York to Decrease

Mario Cuomo,
Governor of the State of New York
Governor Cuomo Announces First Reduction in Workers' Compensation Rates Since 2008

After Compensation Board Recommends Rate Increase, Administration Review Determines No Increase is Needed, Helping NY Businesses to Remain Competitive

Governor Andrew M. Cuomo today announced that for the first time in four years, New York State employers will see a reduction in workers' compensation premium rates. The Governor asked for a reconsideration of the original recommendation in order to find ways to reduce the proposed increase.

Rates to policyholders will actually see a decrease of 1.2 percent – the first reduction in rates since 2008. The Governor also announced that the last measures of the 2007 Workers' Compensation Reform Law, which secured necessary benefit increases for injured workers and cost reductions for businesses, have now been fully implemented by the state. The rate reduction and the expedited implementation of the reforms are a result of efforts by the Governor's administration over the past 18 months to modernize, improve efficiency and decrease waste in the workers' compensation system.

"To create jobs and get our state's economy back on track it is essential that New York's businesses remain in a competitive position to succeed in the global marketplace," Governor Cuomo said. "For years, the workers' compensation system has been too costly for businesses and ineffective for injured workers. With the new measures implemented by the state, and our continued work together with the business and labor communities, we will remain on track to create a system that works better for both employers and employees."

This year, the New York Compensation Insurance Rating Board, a non-governmental rate service organization, recommended a cost increase in their annual loss cost filing. After reviewing all filings and written submissions, the administration deemed the rate increase was not to be necessary. As a result of the decision, workers' compensation rates will actually decrease in the upcoming policy year. The rates are determined on an annual basis, and are informed by a variety of factors, including but not limited to experience in the marketplace, implementation of any cost cutting measures, and implementation of any new policies and procedures. 

Benjamin M. Lawsky, Superintendent of Financial Services, said, "Under the Governor's leadership, New York has taken dramatic steps that ultimately will benefit workers' compensation insurers, claimants, and businesses -- both large and small -- throughout the state. At a time when many states are gutting their workers' compensation systems, New York is working to continually improve our workers' compensation system for employers and employees. This is the right decision on rates at the right time."

The DFS decision was due in part to a variety of developments which are altering the workers' compensation landscape, including the completion of the workers' compensation reforms. Last year, Governor Cuomo directed the Workers' Compensation Board to deliver on the components of the reforms and implement any outstanding provisions. Although the savings from the reforms were immediately realized by businesses, the implementation of the measures supporting those savings proceeded at a slower pace. The January 1, 2012 release of the Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity and the recent adoption of diagnostic testing network regulations marked the completion of the reform.

Having finished the process for capping the number of years certain benefits are paid, instituting medical treatment guidelines and improving the calculation of loss-of-wage earning capacity, the Workers' Compensation Board will now focus on creating comprehensive guidelines for the treatment of chronic pain and modernizing its systems using technology and industry best practice to speed benefit delivery, improve service to injured workers, and reduce waste, fraud, and abuse by employers, medical providers, and employees in the system. 

Mario Cilento, President of the New York State AFL-CIO, said, "The Labor Movement's priority in the 2007 Workers' Compensation reform was to ensure that workers who suffer injury or illness while at work receive the timely treatment they need and adequate benefit levels to support themselves. The reform led to the indexation of the benefit at two-thirds of the state's average weekly wage so that never again would injured workers suffer an erosion of their benefits through inflation. I thank Governor Cuomo for finally implementing these reforms thereby ensuring that the benefit levels remain indexed and injured workers receive essential care. The New York State AFL-CIO will continue to work with the Administration to ensure that the system is appropriately funded and administered to serve injured workers and pay their benefits."

Heather Briccetti, President and CEO of the New York State Business Council, said, "The 2007 legislation was a good faith effort to balance benefit increases, reduced employer cost, and improved claims administration. Five years after the 2007 reforms, we need to evaluate its actual impacts on both benefits and costs. The cost of workers' compensation coverage remains a significant competitiveness issue for New York State business, and we look forward to working with the Administration and other stakeholders on next steps in improving the system."

Robert Beloten, Chair of the Workers' Compensation Board, said, "Prior to the reform, lost wage benefits were insufficient for injured workers yet the system has had uncontrollable medical and indemnity costs. It was an unsustainable system that did not work for the employer or the injured worker. Working with business and labor we have put this system on a more sustainable path. We will continue to work with our key stakeholders to improve benefit delivery and weed out waste, fraud, and abuse in the system."

Peter M. Rivera, Commissioner of Department of Labor, said, "Improvements in New York's workers' compensation system is a benefit to all the hard working people in the State of New York."

Related Blogs - New York
Jul 11, 2012
In a Multidistrict Litigation (MDL) case pending in New York, a Federal Court ruled that the New Jersey law governing exclusivity of claims barred an employee from proceeding with an intentional tort claim against the ...
Jun 08, 2012
The New York Times is reporting this afternoon that The National Institute for Occupational Safety and Health (NIOSH) has approved for compensation payments 50 types of cancers from the $4.3 Billion Zadroga 9-11 Fund.
May 23, 2012
"This is a call to action for every contractor in the state," says Robert Kulick, OSHA regional administrator in New York. "These incidents are tragic reminders of the dangers posed to workers when they are not adequately ...
Jul 03, 2012
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 ...

Saturday, February 27, 2010

Making a Fatal Circus Out of Safety




The terrible and tragic death of Daum Brancheau, the trainer who was attacked at SeaWorld by a killer whale, provides striking evidence that the present system, to make the workplace safer, is not working. The corporate incentive to maintain a safe workplace unfortunately only can be induced by economics.

Two things need to happen so that workplaces become safer. The Occupational Safety and Health Act (OSHA) need to be strengthened, and the workers' compensation system needs to remove the exclusivity bar that prevents liability claims against employers.

Workers' compensation has been in place since 1911 and limits recovery for an employee injured at work and shields employers from liability claims by injured workers. The system provides for a limitation of recovery and economic caps that shield employers from threatening damage claims. Without an economic incentive employers just won't do what's necessary to prevent accidents and injuries to employere.

Legislation, Protecting America's Workers Act H.R. 2067 S.1580 and Protecting Workers From Imminent Dangers Act of 2009 H.R.2199 ,  is presently under consideration to put teeth back into OSHA. Those pending changes, sadly will not help Dawn, they would be a good first step in preventing injuries and deaths like what occurred at SeaWorld in Florida.

Click here to red more about OSHA and workplace accidents and illnesses.

Friday, July 10, 2015

Injured worker has no standing in a subrogation claim

An injured worker has no standing in a subrogation action initiated by a tby the insurance carrier/employer against the ultimate wrongdoer where the injured worker takes no action to pursue a personal injury action against the third party. The injured worker, who fails to file an action, has no right to interfere with the subrogation claim and need not be notified of the settlement.

A NJ Appellate Court ruled that the failure of the injured worker to proactively initiate a third party claim prohibited the employee from involvement/recovery in the subrogation action.

A-4731-13T1
INAAM ELHELOU, ET AL. VS. LIPINSKI OUTDOOR SERVICES, ET AL.       
VS. ALL STATE POWER WASH
July 9, 2015
2015 WL 4112210 (N.J.Super.A.D.)

Saturday, January 24, 2009

2009 Supplement to Workers' Compensation Law - Order Now

Jon L. Gelman's 2009 supplement to the 3 volume hard bound practice series has been published. Now available for order.

The newly enacted statutory changes to the New Jersey Workers’ Compensation Act permitting Emergent Medical Care Motions, new registration requirements for insurers, and new judicial enforcement powers of Judges of Compensation, including sanctions and contempt powers, are contained in this supplemental material.

The mandatory reporting requirements of the SCHIP Extension Act of 2007 are described as well as the appeal procedure under the reimbursement provision of the Medicare Secondary Payer Act.

These pocket parts provide information concerning the requirements for medical monitoring in workers’ compensation claims. It discusses. the Asbestos Fund, which has been established for those entities where workers’ compensation coverage cannot be established. The newly designed forms that need to be utilized in filing for benefits are included. Also, the recently modified Motion for Temporary and Medical Benefits, including a form Certification, is provided and discussed.

The newly revised Judgments for Total and Permanent Disability are provided in this pocket part. The Judgments include new refinements in offsets for pensions and Social Security disability benefits. Reviewed also is the “intentional wrong exception” to the Exclusivity Bar which has been the subject of new workers’ compensation insurance policy language and regulation.

The recently promulgated administrative rules governing the disposition of Temporary Disability Benefits are discussed. The non-duplication of benefits provisions are reviewed including the multiple agency adjudication process. An expansion of benefits available to Federal public safety officers is reviewed in this supplement.

Collateral medical benefit issues are discussed in light of the recent Supreme Court decision concerning this matter. The pocket parts include a Motion to Join the Collateral Health Carrier and provide sample Certifications to be used in support of the application.

Additionally, these pocket parts provide information concerning the new rules of the Division of Workers’ Compensation embodying electronic filing requirements and new procedures involving both formal and informal proceedings, motion practice, post judgment process, and judicial performance. The expanded Medicare secondary reporting requirements and the mandatory coordination of benefits are reviewed in this supplement. The recovery aspects of Medicare conditional payments as well as future medical provisions are updated and discussed. The new Child Support Lien distribution forms, computation worksheets and judgments are provided and explained in depth. The NJ Supreme’ Court ruling and the legislative enactments are discussed concerning same sex couples and the availability of workers’ compensation benefits.

This supplement reviews the newly promulgated Rules concerning the Uninsured Employers’ Fund and audio and video coverage of workers’ compensation proceedings. The horrific tragedy of September 11th, 2001 and the impact it has upon the Workers’ Compensation system is discussed. This supplement reviews the newly enacted Smallpox Emergency Protection Act as well as recent court decisions concerning acts of terrorism. The subsequent legislative changes enacted in response to potential terrorist threats are reviewed, including the Public Safety Officers’ Benefit Act as well as the liberalized legislative enactments involving rescue workers and medical personnel.

The impact of the newly promulgated Federal rules and regulations concerning medical record privacy and compliance with the Health Insurance Portability and Accountability Act (HIPPA) medical authorization requirements are reviewed in this supplement and model forms are furnished. The recently enacted statutory workers' compensation coverage options available to proprietors and partners are discussed. The supplement reviews the recent court decisions expanding the responsibility of the Second Injury Fund for pre-existing medical conditions in cases in which latent diseases become manifest during retirement. The statutory enactments concerning State Temporary Disability Benefits are reviewed. The recently amended Energy Employees Occupational Illness Compensation Act is explained in detail and forms are furnished and discussed.

The recent Supreme Court decisions concerning the high judicial threshold for evaluation of scientific evidence are analyzed. The requirements for proof of scientific evidence in complex workers’ compensation cases are discussed including the admissibility of testimony from non-physicians experts. Furthermore, the evolving and expanding issues concerning medical monitoring are reviewed.

This pocket part also discusses recent changes in the application for counsel fees. The supplement includes the newly promulgated administrative directive embodying those changes.

Sunday, February 17, 2013

The Missouri Compromise - 2013

It looks like Missouri is not going to ditch their Second Injury Fund (SIF) after all. The Missouri Senate did a turn around and passed legislation to fund the insolvent SIF.

Part of the compromise was to limit liability of occupational disease claims against employers and re-establish the exclusivity bar. Albiet, the SIF would provide additional monetary benefits to those exposed at work.

While it sounds nice on paper, the problem, of using a band-aide to permanently correct the overall concerns of both Industry and Labor, will not work in the long-run. Actually this has been tried before and already failed. Employers notoriously dodge the bullet and delay and deny occupational claims even though they are difficult to defend against.

When the going gets tough, down the road, Industry will end up further restricting the benefit flow to injured workers, and medical delivery will then remain non-existent. Consequentially, the end result is that the general taxpayer and not the consumer, ends up paying for the continued unsafe work practices of Industry.

The Missouri Compromise 2013 is only a first step in recognizing a problem exists. It demonstrates that legislators from different parties can reach a compromise. The real fix would be even greater OSHA enforcement of safety procedures, new Federal regulation and, a universal health care system.

Friday, December 6, 2013

Trickle Down Stagnation

Workers' compensation is dependent the integration of federal benefits in many claims. As the federal government continues to stagnate legislatively, it is difficult for workers' compensation programs to maintain their viability and effectuating a medial social legislative system. Today's post, an editorial, from the New York Times, points out, that the federal government continues big political standoff. Unfortunately, the difficulties facing the federal government in formulating regulations and legislation, Will trickle-down two additional stagnation in the Worker's Compensation programs throughout the nation. Weather this is by design, or an unintentional consequence, the bottom line is that, but Workers' Compensation system Will need to be reformulated before choked out of existence.

Last week, in a fit of fury after they lost the ability to filibuster President Obama’s nominees, several Congressional Republicans threatened to retaliate by slowing things down on Capitol Hill. Democrats “will have trouble in a lot of areas because there’s going to be a lot of anger,” said Senator John McCain, Republican of Arizona, specifically warning that a United Nations disability treaty was now in danger of being rejected for the second time.

It’s hard to see how Republicans could slow things down more than they already have for the last several years. Yes, they can prevent committees from meeting and add days of wasted time to every nomination...

[Click here to see the rest of this post]
….
Jon L. Gelman of Wayne NJ is the author NJ Workers’ Compensation Law (West-Thompson) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson). 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.

Thursday, February 28, 2013

California, Workers' Compensation and The Nuclear Option


There has been a call among eminent commentators in California to invoke “The Nuclear Option,” abolishment of the Workers’ Compensation Act entirely.  The suggestion was aired in response to proposed legislation (AB 1309) that would implement a statutory limitation on extraterritorial coverage for professional athletes and reflects a trend to emasculate the benefit program by incremental “take backs.”  

An analysis demonstrates that the law, proposed by California Insurance Committee Chairman Henry Peres (D-Fresno), may indeed be the triggering mechanism to implode the entire system both in California and in the Nation. It may very well be the sentinel event.

California has had a logarithmically problematic workers’ compensation program for at least the past 3 decades. It has been literally a political football. The promise to provide a simple, economically conservative and expeditious administrative system of benefits has turned into an outright nightmare. Both labor and Industry have tried, to no avail, to meet those noble goals against a tide of crippling economic downturn, new and costly medical modalities, waves of emerging occupational diseases, and an onslaught of outside vendors who are “eating the lunch” of the system.

Wednesday, June 17, 2015

NJ Supreme Court: Superior Court has jurisdiction to determine employment status

The NJ Supreme Court ruled that the NJ Division of Workers' Compensation does not have exclusive jurisdiction in determining employment status. In reversing the decision of the Appellate Decision, the NJ Supreme Court held that when a claim petition is not filed with the NJ Division of Workers' Compensation, the Superior Court has exclusive jurisdiction over who is an employee versus independent contractor. 

"We conclude that when, as here, there is a genuine dispute regarding the worker's employment status, and the plaintiff elects to file a complaint only in the Law Division of the Superior Court, the Superior Court has concurrent jurisdiction to resolve the dispute."

Friday, May 10, 2019

Leased Employment Has Its Consequences

An employee leased to another company [ER], ie. From a placement agency [PA], does not have the rights and benefits available to a regular employee. A recent case illustrates how the leased employee is prohibited from seeking an award for damages because of an accident at work.

Wednesday, December 4, 2013

Formaldehyde Spill At Southern Ocean Medical Center; Three Treated For Inhalation

A formaldehyde spill at Southern Ocean Medical Center on Monday caused three hospital employees to be treated for inhalation of the known carcinogen.

At 10:14 a.m., Stafford Township Police responded to a report of a hazardous material spill at SOCH on Route 72 in Stafford Township.

Investigation revealed that a small quantity of formaldehyde was spilled in a utility closet located in the Labor and Delivery area of the hospital. The spill was contained to the utility closet and no evacuations were necessary, police said.

No patients were injured in this incident but three hospital employees were treated for minor inhalation injuries and released, police said.

Responding agencies included the Stafford Township and Barnegat Township Volunteer Fire Companies as well as Stafford Township EMS.

The Berkeley Township Haz-Mat Unit responded and neutralized and contained the spill which is being cleaned up by a private contractor engaged by Southern Ocean Medical Center.

Questions concerning this release may be directed to Capt. Thomas Dellane at 609-597-1189 ext. 8299.
[Click here to see the rest of this post]
….
Jon L. Gelman of Wayne NJ is the author NJ Workers’ Compensation Law (West-Thompson) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson). 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.

Constitutional Challenges New and Old, From Florida to Oklahoma

Today's post highlights the slow and tedious battle a contitutional challenge is to a workers' compensation issue. It is shared from flojcc.blogspot.com.

There is a value to consistency and predictability in the law. Attorneys rely upon the decisions of courts to form opinions about their cases. Attorneys with a clear understanding of their state's statutes, and the interpretations which appellate courts will apply to them, are in an admirable position to provide their clients with predictions and advice regarding their specific case and its issues. In Florida, this can take time. Sometimes such specifics can take many years. In 1993, the Florida Legislature made significant changes to the Florida Workers' Compensation law. Among these was a marked reduction in the quantum of temporary total disability benefits available, from 260 weeks to to 104 weeks. A panel of the Florida First District Court of Appeal ("First DCA") concluded on February 28, 2013 that this statutory change was Unconstitutional. Westphal v. St. Petersburg. (1D12-3563)On September 23, 2013, the Court granted en banc review. This means that the entire First DCA reconsidered the case and issued a new opinion. In this second iteration, a majority of the Court concluded that the 104 week limitation on temporary total disability (TTD) did apply to the claimant, Mr. Westphal. The en banc decision did not find Constitutional infirmity in the statute, as the panel had months earlier....
[Click here to see the rest of this post]

Wednesday, April 16, 2014

2 Executives Leave G.M. After Wide-Ranging Recall

Corporate scapegoats do not solve the underlying issue of corporate fraud. Today's post was shared by The New York Times and comes from www.nytimes.com

DETROIT — In the first major shake-up of General Motors’ senior management since the company announced a wide-ranging recall in February, its chief spokesman and head Washington adviser, and its top human resources executive have left the company.

Selim Bingol, G.M.’s senior vice president for global communications and public policy, was part of the inner circle of Mary T. Barra, the automaker’s chief executive, handling strategy and the public response to the recall of nearly 2.6 million cars. The company announced his departure on Monday, along with that of Melissa Howell, senior vice president for global human resources. It did not say whether Mr. Bingol or Ms. Howell had resigned or if they were dismissed.

The departures are the first major executive changes under Ms. Barra, who took over in January.

Greg Martin, a company spokesman, said the departures were unrelated to the recall of Chevrolet Cobalts, Saturn Ions and other cars for defective ignition switches that are prone to turn off, shutting the engine and disabling the air bags. The company has linked the defect to 13 deaths.While Ms. Barra was expected to make management changes to reflect her strategic direction, the departures coincide with harsh criticism of how the company has handled the recalls.

Lawmakers have been particularly critical of Ms. Barra’s unwillingness to answer questions at congressional hearings on why G.M. waited more than a decade to address the...

{Click here to see the rest of this post]

Related articles:
Corporate Conspiracy: Has Anything Really Changed?
Apr 07, 2014
All intentionally done to avoid corporate liability within the nation's civil justice system. Fortunately, the Courts balanced the playing field, and expanded benefits for injured workers and their families into a most realistic realm ...
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Workers' Compensation: Corporate Liability: Halliburton ...
Jul 27, 2013
The US Department of Justice has announced that Halliburton Corporate Services has pleaded guilty to destroying evidence arising out of the 2010 Deepwater Horizon oil spill that occurred in the US Gulf of Mexico.
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Workers' Compensation: Exclusivity Doctrine Shields an ...
Apr 09, 2010
When a corporate entity is simultaneously an employer and a manufacturer of harmful products, workers' compensation serves to limit its tort liability with respect to its employees." Shamir v. Agilent, et al., MDL 875, Civil Action ...
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Lloyds Report Targets Potential Cell Phone Liability
Nov 16, 2010
... the Lloyds report compares the legal consequences of asbestos exposure and the development of mesothelioma and analyzes the complicity and enormous liability that resulted from corporate concealment and conspiracy.
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Friday, August 14, 2009

Employer Responsibility in the Flu Pandemic

The threat of the spread of flu this fall in the US is a major concern to infectious disease specialists. Healthcare workers are extremely apprehensive as the disease is beginning to spread and employers have not instituted adequate protections for workers.

In the US alone there have been 6,506 hospitalizations of H1N1 Flu patients. The CDC has reported that there have been 436 reported to date because of the novel flu infection. The World Health Organization (WHO) declared the virus a Phase-6 pandemic, the highest level of concern. Over 1,154 deaths have been reported worldwide.

The CDC has issued an Interim Guidance for controlling the spread of infection in healthcare facilities including hospitals, long-term care and outpatient facilities and other settings where healthcare is provided.

Healthcare workers have rallied to protest the firing of a co-worker who disclosed that a healthcare facility was not taken appropriate action to prevent the spread of flu at its work site. The major national unions in April 2009 warned in a report that employers were not taking adequate precautions to protect healthcare workers.

Most recently a task force of the Institute of Medicine (IOM) charged with the responsibility of making recommendations on how to protect workers from the H1N1 flu heard evidence that actions by employers could reduce the spread of the disease. It was reported the use of N95 masks provided 75% protection against lab-confirmed flu.

Workers' remedies from the residuals of the illness have now been limited. The Federal vaccination compensation program will shield the vaccine makers from liability claims. Employers will be protected against civil law suits by the exclusivity provisions of the workers' compensation system. Workers' Compensation does not encompass a roll in prevention of disease. OSHA has alerted employers to take action, but cannot compel them to do so.

It is time for employers to act to prevent unnecessary illness and death in the workplace. Simple educational and enforcement actions by employers will go along way to protect workers from the consequences of this unprecedented pandemic. While time is short and the clock is ticking away as the US flu season formally approaches, time still remains for employers to act and mandate protocols and procedures that will prevent the spread of the disease and will save lives.
..........

For more on workers compensation and the flu pandemic visit the Workers' Compensation Blog.




Wednesday, April 13, 2022

Injury Caused by Defeated Machine Guard Results in OSHA Fine of $159,522

An employee working at Crystal Finishing Systems Inc.’s aluminum extrusion facility in Weston was hospitalized with serious injuries after being struck by a puller machine while trying to unjam a piece of aluminum.

Tuesday, January 8, 2008

It's All About the Medical

As the new political and legislative year unfolds, stakeholders are keeping their eye on the prize, medical benefits, in the workers' compensation arena. Recent court decisions continue to emphasize the major significance of medical care and continue to question the ability of the presently crafted system to deliver medical benefits in an efficient and effective manner.


The New Jersey Appellate Court declared that medical providers have standing to seek reimbursement for the full amount of medical fees from a the workers' compensation carrier. Failure to attempt to pay or negotiate an obligation that it denied by implied "refusal to treat" actions resulted in an employer being obligated to pay the full freight, medical bills, and a counsel fee for recovery. Villanueva v. Federal Express, Inc. DOCKET NO. A-4342-06T24342-06T2 Medical liens remain a critical issue in workers' compensation. Legislation is pending to centralize the chaotic and disruptive process.


In another decision the NJ Supreme Court insulated the insurance carrier from an employee's medical malpractice claim, but did not permit the exclusivity doctrine to extend to the workers' compensation medical expert for a deviation from practice action. This dramatically increases the potential recovery for failure to provide adequate care in a workers' compensation claim. Barbara Basil, etc. v. Frank A. Wolf, et al. (A-80-05/A-110-06)


Universal medical remains a critical factor in 2008 politics. While Hilary lost Iowa, the exit poles demonstrate that people who wanted a change voted for Obama. "Obama won huge among those who cared most about change -- 51-19." The New Hampshire poles reflect while health care is a a critical issue to most Americans the major questions remains over what the action should be taken to fix the ailing system.


Compounding the problem is the fact that workers' compensation carriers have continued to shift the burden on to others. Whether it be private carriers or CMS the situation has now been inflamed by those who attempt to legislatively again limit the workers' compensation carriers' responsibility even in contested situations. This short sighted shell game will merely add even more outrage by taxpayers as Medicare fails to be able to pay its own bills.