Listen to the COVID-19 Claims and Workers’ Compensation Law Webinar

Click here to listen to the recording of the COVID-19 Claims and Workers’ Compensation Law Webinar. The program was originally broadcast on June 11, 2020.

The discussion addressed global issues impacting the workers’ compensation claim process including claim identification and processing, pre-trial activity and trial preparation.

Health Care Experts Discuss a COVID Second Wave

How do we know when the second wave is starting? What should we expect? These are only two of the questions Dr. Chad Kessler, National Program Director for VHA Emergency Medicine, asked during a recent COVID in 20 interview with VA Infectious Disease and Epidemiology wizards, Michael A. Gelman, M.D., Ph.D., and Gio Baracco, M.D., from James J. Peters VA Medical Center in the Bronx, New York and Miami VA Healthcare System in Miami, Florida respectively.

Asbestos: Strict Liability Imposed Against Product Manufacturers for Ordinary Product Life

The NJ Supreme Court decided an asbestos product liability case that mandates strict liability against manufacturers or distributors of products that contain asbestos-fiber. The court in granting strict liability for failure to adequately warn ultimate users during the ordinary life of the product of the dangers. The Court aligned NJ common law with the US Supreme Court, the NY Court of appeals and the Maryland Court of Appeals.

Medical Providers Prohibited From Reporting to Credit Agencies

NJ Governor Murphy has signed legislation (S.3036) that prohibits a provider to an injured worker of medical, surgical, other treatment, or hospital service pursuant to the workers' compensation law, R.S.34:15-1 et seq., from reporting any portion of their charges which are alleged to be unpaid, to any collection or credit reporting agency, bureau, or data collection facility.

Dependents of NJ Public Safety Workers May Receive Supplemental Benefits

A new benefit program, providing additional workers’ compensation benefits for some dependents of public safety workers, goes into effect on January 1, 2020.

Governor Conditionally Vetoes NJ Supplemental Benefits Bill

The NJ supplemental workers' compensation bill has been conditional vetoed by NJ Governor Murphy. In the conditional veto message the Governor notes that the legislation's unintended consequences would jeopardize NJ's "reverse offset," shift the cost responsibility and not provide an economic benefit to the injured workers. The NJ Senate then took action.

NJ Senate Passes Increase to Supplemental Benefits for Injured Workers

The NJ Senate adopted legislation (S.1967) to increase supplemental benefits to certain injured workers receiving workers' compensation. On October 29, 2018 the NJ Senate voted (26-12) to pass the legislation. The Assembly version A3635 awaits action.

US Supreme Court - NY State Permitted to Close State Fund

The US Supreme Court [SCOTUS] has declined to review the challenge by multiple insurance carriers to the closure of the New York State Insurance Fund. Consistent with a national trend to terminate Second Injury Funds as being obsolete, economically impractical, and no longer warranted,  SCOTUS, by declining the Petition for a writ of certiorari, validated the methodology employed by the State of New York to implement the termination of the Fund.

Technology - Efficiency - Uniform Procedure

For decades the NJ Workers' Compensation administrative law system has had to adapt to meet the social, political, economic and technological changes of a changing world. The well thought-out proposals by the NJ State Bar Association (NJSBA) are a starting point to the beginning of a new wave of discussion and change.

The limits on a total permanent disability award

The New Jersey Supreme Court recently heard oral argument concerning the mathematical limits of a workers’ compensation total disability case. At the heart of the case is the issue of whether an injured worker could have an increase in a pre-existing permanent partial disability [PPT] claim, that existed prior to the last compensable injury which was to another part of the body. The last compensable claim rendered the worker totally and permanently disabled.

NJ Workers' Compensation Rates Increase in 2017 - Max $896.00

The NJ Workers' Compensation Rating and Inspection Bureau (NJCRIB) reported today 2017 rates effective January 1, 2017.

The Commissioner of Banking and Insurance (“Commissioner”) has approved a 3.0% decrease in rates and rating values applicable to New Jersey workers compensation and employers liability insurance effective January 1, 2017 on a new and renewal basis. The rating components of the decrease are summarized below.

NJ Supreme Court to Review An Increase of Partial Disability Award in Total Disability Claim

One of the basic tenants of workers' compensation is that awards maybe reviewed and modified where the medical status has changed.1 The NJ Supreme Court on March 14, 2016 granted Certification to review a favorable Appellate Court ruling that permitted a totally and permanently disabled injured worker to receive an increase of a prior (2006 injury) partial disability award, even though the worker had been declared to be totally and permanently disability from a subsequent (2008 injury) injury.

NY Corporate Workers' Compensation Fraud Leads to Criminal Charges

New York State Inspector General Catherine Leahy Scott announced today the arrests of four Central New York and Southern Tier business owners on fraud and theft charges as part of an ongoing series of investigations into employers and employees who defraud the State Workers’ Compensation system. Under State law, employers are required to maintain Workers’ Compensation coverage for their employees, and employees are expected to provide truthful information regarding their work activity to insurance carriers and the Workers’ Compensation Board during the time they are receiving benefits.

Today’s arrests are part of an ongoing coordinated effort by Inspector General Leahy Scott with local and State law enforcement partners involving multiple investigations across New York. Additional arrests are expected imminently. It also coincides with enhanced outreach efforts, including stakeholder trainings by the Inspector General, to increase public awareness of Workers’ Compensation fraud in the State.

“The Workers’ Compensation system is meant to assist and protect employees who are unable to work due to an illness or injury, and those who abuse the system should fully expect they will be caught,” said Inspector General Leahy Scott. “In these arrests today, the defendants are accused of using fraud and deceit to undermine their legal and moral responsibilities, and I will use the resources of my office to relentlessly pursue anybody who abuses the system at the expense of honest, hard-working New Yorkers.” Workers’ Compensation fraud impacts all New Yorkers, from increased insurance premiums to increased workloads for coworkers and an overall reduction in workforce productivity.

Arrested today were:

Douglas S. Griffen, 53, of 330 Halseyville Road, Ithaca, owner of Fingerlakes Excavating LLC, was charged with Grand Larceny in the Third Degree and Falsifying Business Records in the First Degree, felonies, as well as the Workers’ Compensation crimes of Fraudulent Practices, a felony, and Failure to Secure Compensation, a misdemeanor. Inspector General Leahy Scott’s investigation found that Griffen, last summer, provided a Tompkins County home building company false documents that purported to show that his own company had valid Workers’ Compensation coverage in order to qualify for two construction contracts with the home builder worth $72,000. Griffin had no Workers’ Compensation coverage and would not have been awarded the contracts if he had not provided the false documents to the home builder. Griffen was arraigned in Ithaca City Court and sent to Tompkins County Jail in lieu of $5,000 cash or $10,000 bond bail and is due back in court Tuesday, Nov. 17.

 Roger Camby, 60, of 1119 Teall Avenue, Syracuse, owner of an online retail candle business, was charged with the Workers’ Compensation crime of Fraudulent Practices, Insurance Fraud in the Second Degree and Grand Larceny in the Second Degree, all felonies. Inspector General Leahy Scott’s investigation found that Camby, a former truck driver out from work on a Workers’ Compensation claim since 2010, was operating several businesses while certifying to the Workers’ Compensation Board that he was not working in any capacity. Between early 2011 and the summer of 2013 he received more than $56,000 in Workers’ Compensation benefits while also running a candle business, Lovesoy Candles and Gifts, as well as working as a consultant for three multi-level marketing businesses.

Camby was arraigned in Town of Tully Court and is due to appear in Syracuse City Court tomorrow, Nov. 13. John A. Francher, 73, of 20 Vista Street, Auburn, owner of the Greenbriar Home for Adults in Homer, was charged with the Workers’ Compensation crime of Effect of Failure to Secure Compensation, a felony.

Inspector General Leahy Scott’s investigation found that Francher operated a business with more than five employees without obtaining required Workers’ Compensation coverage. He employed approximately 10 people at the Greenbrier Home. Francher was previously convicted in February 2014 of a misdemeanor charge of failure to secure compensation at Briarcliff Manor in Bath. Francher was arraigned in Town of Homer Court and is due back in court next Tuesday, November 17.

Steven M. Spratley, 58, of 179 Prospect Ave, Walton, owner of Spratley and Sons Tree Surgeons, was charged with Fraudulent Practices, a felony under the Workers’ Compensation Law. Inspector General Leahy Scott’s investigation found that Spratley falsely denied at a 2013 Workers’ Compensation Board hearing that a man who was severely injured while working for him in 2011 was actually an employee.

The investigation found that Spratley made the false statements to avoid liability for the employee’s claim for Workers’ Compensation due to the injury, which made him unable to work. Spratley is due to appear in the Town of North Norwich Court at a future date. Inspector General Leahy Scott thanked the Workers’ Compensation Board, the State Insurance Fund, Liberty Mutual Insurance and the Ithaca Police Department for their assistance during the investigations; the Ithaca Police Department and the New York State Police for their assistance with making the arrests; and Onondaga County District Attorney William J. Fitzpatrick, Tompkins County District Attorney Gwen Wilkinson, Cortland County District Attorney Mark D. Suben and Chenango County District Attorney Joseph A. McBride and their offices for prosecuting these cases.

The defendants are presumed innocent until and unless proven guilty in a court of law.

For an audio file of Inspector General Leahy Scott’s remarks, click HERE

NJ Governor Chris Christie Vetoes Supplemental Benefit Bill

SENATE BILL NO. 929

(First Reprint)

To the Senate:

Pursuant to Article V, Section I, Paragraph 14 of the New

Jersey Constitution, I am returning Senate Bill No. 929 (First

Reprint) without my approval.




Workers’ compensation is an important program in New

Jersey, providing compensation to employees who suffer job related

injuries or illnesses through no fault of their own. It

is especially significant to families who receive benefits after

a loved one has died in the line of duty.




In 1979, the State made comprehensive changes to the

workers’ compensation law, resulting in higher payments for

workers totally and permanently disabled after December 31,

1979. The changes, however, created a disproportionate effect

on workers’ compensation payments made to those who sustained

total and permanent disability or death before the

implementation of those changes. In recognition of this

disparity, the Legislature established a cost-of-living

adjustment (“COLA”) for those injured on or before December 31,

1979 to align their payments with those injured after the new

reforms.




This well-intended bill would extend the workers’

compensation COLA benefit to total disability beneficiaries and

those receiving survivors’ benefits where the injury occurred

after December 31, 1979. The estimated yearly cost for the COLA

is at least $58 million and would be funded solely through an

increase in the annual surcharge on private-sector employers

paid into the Second Injury Fund (“SIF”).




Employers in New Jersey already pay the third highest

workers’ compensation rates in the Nation. This bill would

further raise those rates, putting even more of a burden on

private sector businesses. I have worked tirelessly with my

Administration to maintain a business environment that fosters

the growth of private-sector jobs in the State, and we have been

successful. This bill represents a step in the wrong direction

because an increase in the annual SIF surcharge would threaten

the State’s ability to keep existing employers in the State and

undermine efforts to attract new ones. I cannot sign a bill that

will pile yet another unacceptable financial burden on the

businesses of this State.




Accordingly, I am returning Senate Bill No. 929 (First

Reprint) without my approval.

Respectfully,

[seal] /s/ Chris Christie

Governor

Attest:

/s/ Thomas P. Scrivo

Chief Counsel to the Governor




................

S929 Aca (1R) Concerns certain workers' compensation supplemental benefits.

Received by the Senate




Identical Bill Number: A1908 (2R)

Last Session Bill Number: A4514 S613 (1R)




Sweeney, Stephen M. as Primary Sponsor

Madden, Fred H., Jr. as Primary Sponsor

Burzichelli, John J. as Primary Sponsor

Riley, Celeste M. as Primary Sponsor

Moriarty, Paul D. as Primary Sponsor




1/16/2014 Introduced in the Senate, Referred to Senate Labor Committee

3/17/2014 Reported from Senate Committee, 2nd Reading

3/17/2014 Referred to Senate Budget and Appropriations Committee

6/5/2014 Reported from Senate Committee, 2nd Reading

6/12/2014 Passed by the Senate (21-15)

6/12/2014 Received in the Assembly, Referred to Assembly Labor Committee

10/27/2014 Reported and Referred to Assembly Appropriations Committee

3/16/2015 Reported out of Assembly Comm. with Amendments, 2nd Reading

6/25/2015 Substituted for A1908 (2R)

6/25/2015 Passed by the Assembly (43-31-2)

6/25/2015 Received in the Senate, 2nd Reading on Concurrence

9/24/2015 Passed Senate (Passed Both Houses) (24-12)

11/9/2015 Absolute Veto, Received in the Senate




Introduced - 5 pages PDF Format HTML Format

Statement - SLA 3/17/14 - 3 pages PDF Format HTML Format

Fiscal Estimate - 3/26/14; as introduced - 8 pages PDF Format HTML Format

Statement - SBA 6/5/14 - 4 pages PDF Format HTML Format

Statement - ALA 10/27/14 - 4 pages PDF Format HTML Format

Statement - AAP 3/16/2015 - 3 pages PDF Format HTML Format

Fiscal Estimate - 4/8/15; 1R - 8 pages PDF Format HTML Format

Reprint - 3 pages PDF Format HTML Format

Veto - Absolute veto - 2 pages PDF Format HTML Format

Committee Voting:

SLA 3/17/2014 - r/favorably - Yes {3} No {1} Not Voting {0} Abstains {1} - Roll Call

SBA 6/5/2014 - r/favorably - Yes {8} No {2} Not Voting {2} Abstains {1} - Roll Call

ALA 10/27/2014 - r/favorably - Yes {6} No {2} Not Voting {0} Abstains {1} - Roll Call

AAP 3/16/2015 - r/Aca - Yes {6} No {1} Not Voting {1} Abstains {1} - Roll Call




Session Voting:

Sen. 6/12/2014 - 3RDG FINAL PASSAGE - Yes {21} No {15} Not Voting {4} - Roll Call

Asm. 6/25/2015 - SUBSTITUTE FOR A1908 Aca - Yes {0} No {0} Not Voting {80} Abstains {0} - Voice Vote Passed

Asm. 6/25/2015 - 3RDG FINAL PASSAGE - Yes {43} No {31} Not Voting {4} Abstains {2} - Roll Call

Sen. 9/24/2015 - CONCUR ASMB AMEND - Yes {24} No {12} Not Voting {4} - Roll Call






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NJ COLA Bill Passed by Senate (workers-compensation.blogspot.com)

Injured workers suffer if courts are closed

Today's post is an Editorial shared from mycentraljersey.com/

Gov. Chris Christie spent most of his Tuesday budget address talking about the state's supposedly crippling pension burden, tossing around billion-dollar numbers and warning of dire consequences without more reforms.

Compared to all that, the proposed closing of a workers' compensation court in Lebanon Township seems like pretty small potatoes.

Financially, it is — closing the court would save a grand total of about $160,000, plus some additional staff expenses. And that doesn't even come out of state funds; the courts are financed by the Second Injury Fund (SIF), revenue for which Is generated by surcharges and taxes on the workers' compensation insurance policies of employers.

So this isn't a meaningful budget issue; it falls under the category of micromanaging a minimal expense and claiming it's fiscally responsible. But the impact on the lives of injured workers who are already suffering could be significant, which makes the closure a poorly conceived idea that's hardly worth the modest savings it would achieve.

The Lebanon court now services three counties — Somerset, Hunterdon, and Warren. Closing it would send workers in those counties involved in claims disputes to the next nearest court, either in New Brunswick in Middlesex County or Mount Arlington in Morris County. For most that will mean a longer commute — in some cases much longer — in areas that aren't exactly...

[Click here to see the rest of this post]

NJ To Consolidate Workers' Compensation Hearing Offices

The State of NJ is planning to close local hearing offices according to a letter published in a local periodical. Consolidation from local to regional hearing offices for economic reasons is a trend that has occurred throughout the US and was previously initiated in NJ during the 1970s.

Like other industrial states, NJ has suffered terribly from the economic consequences of the loss of its manufacturing base. Additionally, NJ population has shifted and the service industries are generating more claims in the southern tier of the state.

Even though the NJ Division of Workers' Compensation is funded from insurance premiums through charges directly to employers (Second Injury Fund costs), the increased operational expenses remain a burden upon all who work in the state. Consolidation represents a balancing of interests to meet present realistic demands..

For the most part, statistical transparency in NJ is lacking as to docket loads and disposition rates. Some states, like Florida, publicly disseminate that data, making comparison and analysis open for review. NJ does not publicly publish regional, or hearing officer statistical disposition data.

Ironically, NJ Workers Compensation Director & Chief Judge Peter Calderone announced that he will retire March 1, 2015. It was also announced that NJ Labor Commissioner Wirths will appoint Judge Russell Wojtenko as the new Director & Chief Judge of the NJ Division of Workers' Compensation.

While lawsuits have been filed in the past by claimants attorneys, and by local county bar associations, regarding locations of hearing offices in the State of NJ, the outcomes have not been successful.

Gov. Chris Christie and NJ Workers' Compensation: Declining Approval

What has NJ Gov. Chris Christie done for Workers' Compensation? It appears that he has done little to nothing except, complain it needs reform.

NJ continues with high unemployment, a failing infrastructure, steep taxes, a mass migration of both Industry and Labor out-of-the state, high debt, and declining public pension reserves. The State continues with a spiraling rate of income inequality that reflects high and almost unobtainable maximum workers' compensation rates for the vast majority of low and middle income wage earners.

The State's antiquated workers' compensation system continues with a reverse social security offset that favors insurance companies to the detriment of the nation's taxpayers. NJ administratively refuses to allow COLA increases under the Triennial Redetermination Social Security program to those totally disabled workers who receive benefits and NJ continues to allow insurance companies and employers to reap benefits at the detriment of injured employers. NJ still maintains an antiquate, objectionable, obsolescent and costly Second Injury Fund for pre-existing injuries when the vast majority of states have terminated such programs.

Additionally, NJ, that lacks a medical provider fee schedule, continues to control medical treatment by requiring injured workers to obtain only employer authorized medical care and prohibits injured workers freedom to choose their own medical providers.

Unproductive bullying of the public at the NJ Governor's "town hall meetings" has become a trademark of his administration. The excitement and approval of "the entertainment value" of those events in the past caught the attention of the public at the emergence of his administration and allowed him to gain popularity. That has now faded has Governor Christie's public approval, according to recent polls in NJ, is declining.

In the meantime, Gov. Christie criticizes NJ workers' compensation and lacks an announced plan to correct the ailing system.

“'We’re  going to be coming up with a package of proposals that’s going to work both sides of that,' Christie told a caller on his monthly NJ 101.5 FM radio show tonight.

'The employers who may not be stepping up and meeting their obligations and also the employees who are committing fraud on the worker’s comp system,' he said."

NJ Gov. Christie, April 2013

Today's post is shared from nytimes.com/

When the Chris Christie-for-president chatter first started, in 2011, voters in his home state of New Jersey took pride in having a celebrity governor. As Nancy Reagan escorted Mr. Christie to his speech at her husband’s presidential library, and hedge fund billionaires, The Weekly Standard and The Wall Street Journal’s editorial pages urged him to run, his approval ratings jumped. Voters told pollsters the national attention made him more effective, and improved their state’s long-maligned image.

Four years later, with Governor Christie again considering a run for president, his constituents appear to be tiring of the whole routine.

Polls taken over the last three months reveal a list of home-state complaints: Mr. Christie’s favorability is at its lowest point, with more voters disapproving than approving of his job performance. New Jersey residents think he is making decisions with an eye on his national standing rather than on what is good for their state. They do not think he should run for president — they are, as the slogan goes, ready for Hillary — but most expect he will, and want him to resign if he does. Political talk in New Jersey centers less on Mr. Christie running for president and more on which one of three Democrats quietly seeking to succeed him will win — even though that election is three years away.

Click here to read the entire NY Times article.

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• Christie Vetoes Bill That Would Have Prevented Some Truck Drivers From Being Treated As Independent Contractors (workers-compensation.blogspot.com)
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Close Down All Second Injury Funds?

Today's post is shared from reduceyourworkerscomp.com/ Employers get little to no relief from state workers compensation second injury funds.  Many state second injury laws are weak, ill defined, are hard to penetrate, and may lack proper funding. Rules and regulations make it hard for a claim to be  acceptance by a second injury fund. Funding programs for second injury funds vary greatly. Some are funded from insurance carrier premium assessments.  Others are funded from state budgets and legislative action.  Most funding programs may fail to meet the fund exposures or liabilities.  This means that even if a claim is accepted by a fund, the employer may not be able to recover their expended funds. The employer has to handle and pay the claim before seeking reimbursement from the second injury fund. Second Injury Funds and rules became prevalent after World War II as a program to induce employers to hire handicapped veterans.   By then workers compensation law, legal precedent, and regulation had clearly established that the employer took the employee as is.  This meant any employee with an underlying pathology or disability, who sustained a compensable injury which aggravated or increased the overall heath or disability costs had to be borne by the employer. The second injury fund program gave the employer relief from the expense of the aggravation or increased disability. The fund would take over the claim handling and cost after certain set periods of time...

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Found on

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Stay Safe During Lightning

Protect yourself and your loved ones from lightning during a thunderstorm.

The weather forecast calls for a slight chance of thunderstorms, but you can only see a few fluffy white clouds overhead. So you and your tennis partner grab your racquets and balls and head for the tennis court. You spend a few minutes warming up and then—wait! Is that thunder you hear? Was that a lightning flash?

What do you do? Keep playing until the thunder and lightning get closer? Go sit on the metal bench under the trees to see what happens? Or get in your car and drive home?

Correct answer: If no substantial, non-concrete shelter is nearby, get in your car and wait out the storm.

Why? Because being outside when lightning is present is not something to take lightly—ever.
Risks of lightning strikes

Although the odds of being struck by lightning in a given year are only around 1 in 500,000, some factors can put you at greater risk. Lightning most often strikes people who work outside or engage in outdoor recreational activities. Regional and seasonal differences can also affect your risk of being injured by lightning.

Alabama, Colorado, Florida, Georgia, Missouri, New Jersey, North Carolina, Ohio, Pennsylvania, and Texas have the most lightning deaths and injuries [634 KB]. Florida is considered the "lightning capital" of the country, with more than 2,000 lightning injuries over the past 50 years.

The consequences of lightning strikes are serious....
[Click here to see the rest of this post]

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• Drive Safely Work Week (workers-compensation.blogspot.com)
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Just Published: 2014 Update - Gelman on Workers' Compensation Law

Jon Gelman’s newly revised and updated treatise on Workers’ Compensation Law has just been published by West Group of Egan, MN. The treatise is the most complete work available on NJ Workers’ Compensation law.

The work offers an in-depth and insightful analysis that provides a  quick and accurate guidance to those who practice workplace injury law. Time-saving comments and instructions shorten the claims process and expedite handling of issues.

New areas of the law reviewed:

The newly enacted SMART Act (The Strengthening Medicare and Repaying Taxpayers Act of 2012), and the proposed Regulations, are discussed at length in this supplement. The newly enacted statutory provision concerning balance billing and expanded jurisdiction of the Workers’ Compensation Court is reviewed. The launch of COURTS 4, the expanded workers’ compensation electronic filing system, implementing e-filing of Notice of Motions, is explained along with accompanying sample forms, codes, and instructions for filing/service. The statutory extension of lifetime benefits embodied in recent legislation for surviving spouses of police and fire department employees, who are fatally injured in-the-line of duty, is discussed. The recent case law concerning the second-prong of the “context test” involving the “Exclusivity Doctrine” is reviewed 

New 2014 Section Sections include:

--Dependency—Surviving spouse of police or fire department killed in the line of duty [12.14.50] 

--Case organization utilization reporting tracking system (COURTS)—Court proceeding type codes [25.22.30] 

--Case organization utilization reporting tracking system (COURTS)—E-filing of motions—General motion [25.22.40] 

Gelman on Workers’Compensation Law is exclusively integrated into the entire world-wide leading legal research network of West Group-Reuters-Thomson publications.

It is now available, in print, on CD-Rom and online via Westlaw™ and WestlawNext™. [Westlaw Database Identifier NJPRAC]

Click here now to order your copy.

Jon L. Gelman is nationally recognized as an author, lecturer and skilled trial attorney in the field of workers’ compensation law and occupational/environmental disease litigation. Over a career spanning more than three decades he has been involved in complex litigation involving thousands of clients challenging the mega-industries of: asbestos, tobacco and lead paint. Gelman is the author NJ Workers’ Compensation Law (West-Thompson) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson). He is the former Vice-President of  The Workers Injury Law & Advocacy Group (WILG) and a charter member of The College of Workers' Compensation Lawyers. Jon is a founder of the Nancy R. Gelman Foundation Inc., which seeks to fund innovative research to cure breast cancer. He is also an avid photographer. jon@gelmans.com -www.gelmans.com