Historically compensation programs for asbestos victims have constantly evolved. One of the leading efforts to reform payments for victims has emerged in the United Kingdom. While the City of London continue to maintain in depth effort for employee safety and health to limit asbestos exposure and restrict disease support groups there maintain a close vigilance such as the Asbestos Victims Support Groups Forum UK [AVSGFUK]. The following article is authored by Tony Whilston, Chair of the AVSGFUK.
Asbestos victims and their representatives have welcomed the Mesothelioma Bill. After all, it is the first attempt to remedy a long-standing injustice. But, on close examination, it is a gift to insurers who could not indefinitely hide behind their own failures and evade liability for insurance they wrote for so many years. The day of reckoning has come, but at great cost to asbestos victims and with a great discount to insurers. It is in examining the detail of the payment scheme that the true cost to asbestos victims is found. This article sets out the main elements of the scheme and then discusses the Government's rationale for its generosity to insurers.
Background
For decades, insurers wantonly destroyed or simply lost records of employers' liability insurance – insurance which victims of very long latent asbestos diseases, such as mesothelioma, would later come to rely on long after the companies who exposed them to asbestos had ceased trading. Unmoved by the suffering and incalculable loss of life caused by asbestos, insurers persistently refused to accept responsibility for their failure to retain records and turned their backs on dying asbestos victims, who searched in vain for evidence of insurance which might provide some security for the families they would leave behind.
At last, in February 2010, the Labour Government consulted on measures to remedy this gross injustice with a recommendation to set up an Employers' Liability Insurance Bureau (ELIB), similar to the Motor Insurance Bureau (MIB) which pays compensation in the event negligent drivers are uninsured or insurance cannot be traced. The consultation closed in May 2010 and responsibility for responding to the consultation fell to the Coalition Government Minister, Lord Freud. Two years later, on the 25 July 2012, Lord Freud announced his response.
The Mesothelioma Bill and the Diffuse Mesothelioma Payment Scheme
Instead of creating an ELIB, the Government has drafted the Mesothelioma Bill to set up a Diffuse Mesothelioma Payment Scheme (Payment Scheme), funded from a levy on active insurers, which will pay discounted average compensation based on age to mesothelioma sufferers who were diagnosed on or after 25 July 2012. The Bill commenced in the House of Lords where the discounted payment of 70% of average compensation was increased to 75%. The Bill has now commenced its passage through the House of Commons. Royal assent is expected to be given in April 2014 and payments are set to commence in summer 2014.
It is estimated that approximately 3,500 payments will be made by 2024 at a cost of £322 million. Although average compensation in 2012 was £154,000, due to the increasing age of claimants it is expected that average litigated settlements over the first ten years of the scheme will be £124,286. At 75% of this figure, the average scheme payment would be £93,214. However, benefits and lump sum payments would be deducted in full, at an average deduction of £20,480, reducing the average payment to £72,734.
The levy will be collected by the Department of Work and Pensions (DWP) and treated as a hypothecated tax, i.e. public money. Dependants may claim under the scheme, but unlike claims in law, no payment will be made to the deceased's estate if there are no dependants. However, the scheme applies common law rules for recovery of benefits. Peers challenged the Government's very selective application of common law rules, but to no avail.
Fifty per cent of asbestos victims are excluded from the scheme, which is limited to mesothelioma sufferers only, even though it would only increase the cost by 20% to include all asbestos victims. Despite the fact that it took two years to respond to the consultation, the Government has refused to accept the modest request to set the eligibility date at the commencement of the consultation, 10 February 2010.
The scheme excludes claims for negligent environmental exposures and contaminated work clothes exposures, and claims from the self-employed. Turner & Newall (T&N) claimants, who are not protected by T&N insurance and are paid just 27% of tariff payments from T&N scheme funds, are also excluded.
The payment scheme is the result of two years' negotiation with insurers held behind closed doors in which insurers drove a hard a bargain, reducing scheme benefits well below the limit of acceptability. With threats of court action and utter intransigence, insurers have bullied and faced down the Government, thereby gaining an overwhelming advantage.
The Government expects to receive £71 million in recovered benefits and lump sum payments in the period 2014 to 2024, of which £17 million is to be given as a gift to insurers to help them out. This is a gift; it is not to be paid back. The Government is also lending insurers £30 million to help to “smooth” the first four years when there will be a spike in claims due to claims coming forward from 25 July 2012. This money will be paid back in years six and seven.
The insurers have insisted that they will pass on levy costs to businesses if the levy exceeds 3% of the annual amount they receive from employers' liability premiums, i.e. Gross Working Premium (GWP). They argue that anything over a 70% payment will exceed 3% GWP. The Government has disputed the insurers' estimates and their figures show that over the initial 10 years of the scheme, 100% compensation could be paid without exceeding 3% GWP. Nevertheless, the Government has accepted the insurers' estimates and the arbitrary 3% threshold and have pledged not to levy insurers above 3% GWP.
For the first four years of the scheme (2014-2018) insurers will have to meet the cost of claims, but the DWP will fund any cost in excess of 3% GWP. After the first four years, the DWP will have to estimate the annual cost of claims and set the levy accordingly. Any shortfall in the levy is the DWP's responsibility and any surplus will be paid into the Government Consolidated Fund. If the estimated levy payment is above 3% GWP the DWP will pay the excess, not the insurers.
Discussion
The Government justifies its concessions to insurers saying the insurers paying the levy are not necessarily the ones who took the premiums paying for untraceable historical policies so they have to be fair to them. But insurers should take collective responsibility for their collective failure. If this is “rough justice” it is nothing compared to the injustice suffered by asbestos victims.
We should be clear about where responsibility lies. The Financial Services Authority (now the FCA) described the long-standing problem of untraced insurance as “… a situation where insurers/policyholders are inappropriately subsidised by claimants ….” According to the Mesothelioma Bill Impact Assessment an estimated 6,000 mesothelioma sufferers have lost approximately £800 million in compensation due to untraced insurance. That is the extent to which mesothelioma sufferers have subsidised insurers. If one includes other asbestos victims we find that asbestos victims have subsidised insurers to the tune of £1 billion. In the face of such financial loss, not to speak of the loss of life, does fairness lie in mesothelioma sufferers continuing to subsidise insurers by 25% and other asbestos victims subsidising them by 100%?
Notwithstanding the Government's uncritical acceptance of the insurers' 3% GWP threshold, there is no certainty whatsoever that insurers will not pass on the cost to businesses at any level of GWP. The Government should not give way to threats of this sort, and certainly should not use taxpayers' money to subsidise insurers in the event of the levy exceeding the insurers' convenient 3% threshold. We have come to a pretty pass when dying asbestos victims are called on to absorb insurers' cost to protect business!
In the face of an obdurate, litigious and self-serving insurance industry, Lord Freud has negotiated a scheme at too great a cost to mesothelioma sufferers. Asbestos victims are entitled to 100% justice. We are asking everyone who is concerned about justice for asbestos victims to write to their MPs asking them to improve the Bill for mesothelioma sufferers and to give a commitment to include victims of other asbestos diseases in the scheme in the future.
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Monday, March 4, 2013
Tuesday, May 1, 2012
Delay By Worker Does Not Give Rise To Legal Malpractice
A Court has held that if an injured worker fails to act in a timely fashion and retain counsel, the law firm ultimately retained cannot be held responsible for not filing a claim in a timely fashion. While a law firm has several responsibilities including: careful investigation of a claim, formulation of a legal strategy, filing of the appropriate papers, and maintenance of communication with a client, the firm cannot be held responsible for the delay incurred by the injured worker.
Millar v Del Sardo, et al., Docket No. A-4386-10T1 (NJ App Div 2012)
Related articles
Millar v Del Sardo, et al., Docket No. A-4386-10T1 (NJ App Div 2012)
Related articles
Sunday, November 17, 2013
California sends misinformation to 246,000 new Medicaid enrollees
LOS ANGELES -- California has mistakenly sent letters to 246,000 low-income residents, warning they may need to find new doctors next year under the state's newly expanded Medicaid program.
The error frustrated counties and community health centers, which have repeatedly assured patients they can keep their providers when the Affordable Care Act takes effect in 2014. The patients are part of the state's "bridge to reform" program, which was designed to cover uninsured, poor Californians until they became eligible for Medicaid, known as Medi-Cal here. The program launched in 2011 and more than 600,000 people across the state enrolled in county-based health coverage. Many of them formed relationships with doctors and started seeking regular care. But county and clinic administrators said the incorrect mailing this month has put the counties' efforts in jeopardy. The mix-up occurred as people are scrambling to figure out how the health law impacts them, and as private policy holders have been receiving letters canceling their insurance plans. "The whole key to the success is that people seamlessly transition to Medi-Cal," said Sean South, an associate director at the California Primary Care Association. "It is vitally important that we don't confuse them." But that's what happened when the incorrect letters started going out on Nov. 1, said clinic and county officials. Patients immediately began calling and showing up with questions about the letter, said Eva Serrano, a... |
Saturday, February 11, 2017
Chaos in Workers' Compensation - Raising Medicare's Eligibility Age to 67
A new issue for workers' compensation programs is emerging as the Republicans push forward on their legislative agenda to reform Medicare. Uncertainty over the impact of raising the eligibility age for Medicare from 65 to 67 may seriously and adversely impact the nation's network of fragile workers' compensation schemes. Furthermore, looming in the background is also the elimination of The Affordable Care Act and the consequence of a large pool of uninsured again seniors.
Friday, February 6, 2015
Republican Lawmakers Set To Unveil Health Law Replacement Plan
Health care is a known unknown in the future of workers' compensation. If the Scott Walker's Wisconsin plan to dismantle workers' compensation is implemented, will that lead to more uninsured workers, or a merger into a universal health care program? Will it be a step backward to the 1994 Contract With America and the Newt Gingrich plan to eliminate workers' altogether? The debate continues as the 2016 national election cycle continues to frame the issues. Today's post was shared by Kaiser Health News and comes from kaiserhealthnews.org
| House Energy and Commerce Committee Chairman Fred Upton declined to give details on the plan. Some Republicans are pushing tax credits and deductions for health care, and others are pushing the idea of "portable" health coverage -- the ability to take your insurance from job to job. The Associated Press: GOP Lawmakers Ready A Plan To Replace Obama Health Care Law A Republican House committee chairman says he and two GOP senators are preparing to release a plan for replacing President Barack Obama's health care law. House Energy and Commerce Committee Chairman Fred Upton declined to discuss details Tuesday, but said the proposal will give Republicans a proposal that they can stand behind. The Michigan Republican said he, Senate Finance Committee Chairman Orrin Hatch of Utah and Sen. Richard Burr of North Carolina will unveil their proposal Thursday. (2/3) The Fiscal Times: New GOP Congress Develops Alternate Health Plans House lawmakers are planning to vote for a 60th time today to repeal the president’s health care law – a vote that’s legislatively pointless but politically symbolic. Many of the 47 GOP freshmen who were elected last November won at least in part because their constituents were anti-Obamacare. (Ehley, 2/3) |
Monday, November 25, 2013
Illinois Employer to Pay $10K Penalty for Lack of Workers’ Comp Insurance
| An uninsured employer in Illinois has pled guilty to a Class 4 felony for refusing to obtain workers’ compensation insurance, the Illinois Workers’ Compensation Commission announced. John Linek, individually and as president of SMS Logistics of Chicago, has been ordered to pay a $10,000 penalty for refusing to obtain workers’ compensation insurance. The IWCC’s Insurance Compliance Unit had been requesting compliance with the Act from this trucking firm since 2010. In August 2013, the Compliance Division obtained a felony conviction against Ahmed Ghosien, d/b/a Ghosien European Auto Werks in Hometown. Ghosien pled guilty to a Class 4 felony for failing to obtain workers’ compensation insurance. The IWCC’s Insurance Compliance Unit worked with the Cook County Sheriff’s Office and the Cook County State’s Attorney’s Special Prosecutions Division to obtain the conviction. Again, the Insurance Compliance Unit had worked on the case since 2010. Both of these individuals were given many opportunities to obtain insurance before charges were filed, but they persistently refused, the IWCC said. |
Friday, July 17, 2009
NJ Employer Indicted for Failing to Have Workers' Compensation Coverage
A NJ employer who failed to have workers' compensation insurance was criminally indicted the NJ Attorney General announced. The owner of Accurate Paving, Mack Setvens, was alleged not to have insurance coverage.
The NJ Uninsured Employers' Fund (UIF) is required to make payments to injured workers when no coverage is maintained by the employer. In this instance the UIF paid $253,000 in payment to the injured worker.
Saturday, February 12, 2011
Published: 2011 Workers' Compensation Law Treatise
What's New
The newly enacted statutory changes to the New Jersey Workers’ Compensation Act and promulgated Rules 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 judicial decision imposing direct liability against an insurance carrier for delay and/or denial of medical treatment is discussed.
An analysis of the newly adopted procedures for the reimbursement of conditional payments established by Medicare and the protocols to co-ordinate workers’ compensation claims with the Centers for Medicare and Medicaid Services is contained in this supplement. The materials also provide the authorizations required to obtain conditional payment information from the Coordinator of Benefits. Debt collection referral to the Department of the Treasury is also reviewed.
The new Community and Worker Right to Know material has been incorporated into this supplement. The current hazardous substance lists and the substances that have been deemed extremely dangerous are provided.
The supplement reviews new case law concerning electronic cancellation of coverage as well as the standard for claims to be considered casually related to the employment.
The judicial interpretation of the Exclusivity Doctrine is discussion in light of the dual capacity status of a household contact / bystander and also former employee. The evidential requirements in latent occupational claims is reviewed.
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. New pleadings issued by the Division of Workers’ Compensation in the area of medical payment and reimbursement claims are provided and commented upon in these materials.
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 far-reaching ramifications of the newly enacted healthcare reform legislation are reviewed. The new prototype occupational medical care program, encompassing potential occupational exposure claims, is presented in this supplement.
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 new administration and management of claims arising from insolvent workers’ compensation insurance is covered in this pocket part.
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.
To Order
An analysis of the newly adopted procedures for the reimbursement of conditional payments established by Medicare and the protocols to co-ordinate workers’ compensation claims with the Centers for Medicare and Medicaid Services is contained in this supplement. The materials also provide the authorizations required to obtain conditional payment information from the Coordinator of Benefits. Debt collection referral to the Department of the Treasury is also reviewed.
The new Community and Worker Right to Know material has been incorporated into this supplement. The current hazardous substance lists and the substances that have been deemed extremely dangerous are provided.
The supplement reviews new case law concerning electronic cancellation of coverage as well as the standard for claims to be considered casually related to the employment.
The judicial interpretation of the Exclusivity Doctrine is discussion in light of the dual capacity status of a household contact / bystander and also former employee. The evidential requirements in latent occupational claims is reviewed.
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. New pleadings issued by the Division of Workers’ Compensation in the area of medical payment and reimbursement claims are provided and commented upon in these materials.
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 far-reaching ramifications of the newly enacted healthcare reform legislation are reviewed. The new prototype occupational medical care program, encompassing potential occupational exposure claims, is presented in this supplement.
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 new administration and management of claims arising from insolvent workers’ compensation insurance is covered in this pocket part.
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.
To Order
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Table of Contents Supp. 2011
Index, Supp. 2011
Summary of Contents
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Table of Contents Supp. 2011
Index, Supp. 2011
Summary of Contents
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Monday, June 16, 2008
The Next Crisis in Comp: What Happens When the Funds Go Insolvent?
Workers’ Compensation coverage is not immune from the economic realities of the market and injured workers again fail to lose big time as the economy falters. Many States have established UEFs, Uninsured Employer Funds and IFs, Insolvency Funds but they are not uniform in application, some are based on weak economic foundations and others do not provide full benefits.
When the system fails on the employer side of the ledger the consequences trickle down to the employees on the benefit end. In a recent development in the State of New York 12 trusts embracing $200 Million have failed. The domino effect is now a real threat for 50 group trusts remaining covering 20,000 business and 500,000 employees.
States will now have to scramble to provide a resolution of this issue or the consequences of further economic impact will fall upon the taxpayers who are unable to accept the shift in this burden as injured workers seek alternate avenue for at least medical care.
When the system fails on the employer side of the ledger the consequences trickle down to the employees on the benefit end. In a recent development in the State of New York 12 trusts embracing $200 Million have failed. The domino effect is now a real threat for 50 group trusts remaining covering 20,000 business and 500,000 employees.
States will now have to scramble to provide a resolution of this issue or the consequences of further economic impact will fall upon the taxpayers who are unable to accept the shift in this burden as injured workers seek alternate avenue for at least medical care.
Friday, August 22, 2014
Why More, Not Fewer, People Might Start Getting Health Insurance Through Work
| In an earnings call last week, Walmart announced that its workers were signing up for health insurance en masse. The news was bad for the company’s shareholders, since the added $500 million it will cost to cover them will eat into expected profits. But it also means that many more low-income families have health insurance now than did last year. The change didn’t come because of a more generous company policy. Walmart has long offered health insurance to its full-time workers for relatively low premiums — about $18 every two weeks for its lowest-paid workers. It came because many more workers decided to take advantage of the offer. It’s early yet to be sure of a strong trend, but the Walmart experience mirrors evidence from early polls and the historical experience of Massachusetts, which enacted a law similar to the Affordable Care Act in 2006. More people may be signing up for employer-based coverage than did before. When we talk about the effect of the Affordable Care Act on health insurance, we often focus on people who were shut out of the market before, either because a prior illness made insurance inaccessible to them or because a high premium put coverage out of their financial reach. What Walmart’s experience reminds us is that there were also uninsured people who simply chose not to buy coverage before there was a law requiring them to do so. Now they may be changing their minds.This increase, if it is permanent, is going to cost... |
Sunday, October 4, 2009
The Great Health Care Debate
As the US Senate signals the beginning of the floor debate of the proposed health care legislation, a new chapter is about to be written in the Workers' Compensation medical benefit delivery system. If any of the five proposed bills, or prodigies of any, are enacted into law the nation's workers' compensation will be impacted.
The health care delivery system of the nation's compensation system is a patchwork of acts enacted in 1911 that have changed little since then. While modern medical science has move at the speed of light to develop new methods for diagnosis and new modalities for treatment, workers' compensation has stood still like a classic picture in the museum of time. While the US compensation system was crafted in 1911 to provide immediate and remedial medical care for industrial accidents in a swift and summary manner, the recognition of occupational diseases, and their enormous complex etiology, has been met by what some critics observe as a "deny and delay" strategy by Industry resulting in a failure of the system to provide benefits in an efficient and effective manner. Compounding the issue is the massive maize of collateral benefits of global insurance systems that have now resisted inappropriate benefit shifting to them and are mandating reimbursement for improper initial payments in the past and protection from looting in the future, ie. The Centers for Medicare and Medicaid Services.
The workers' compensation stakeholders have been silent participants in the drafting of the new health care legislation and have sat quietly on the sidelines. Only on the eve of the US Senate Finance's Committee's debate on the Rockefeller Amendment, for mandated broad and potentially universal coverage, was the chorus of compensation defense attorneys' heard to rally support in opposition without offering a creative solution.
The proposed legislation will embrace massive change for the nation's medical delivery and involve every individual, business, hospital and doctor. Yet to be determined is whether every employer will be mandated to provide health insurance. While the number of the nation's uninsured has continued to rise in epidemic proportions, the "safety net" for those who have been denied medical benefits under the workers' compensation systems have also grown logarithmically.
Issues remain open as the floor debate opens on health care. To be debated are many issues including: mandatory coverage; the extent of business involvement; financing the program; a public plan; government subsidies; and the cost of care. Any or all of these immense issues will ultimately impact the national workers' compensation system as it now exists.
As the unpredictable health care legislation is debated in Congress, the legislators will hopefully take notice of how other industrial countries have met the challenge to treat workers. The European countries, where workers' compensation had its geniuses almost a century ago, have already solved the problem through the enactment of universal health care.
.....
Wednesday, September 12, 2012
Health Care Continues to Eat Away at Employee Earnings
Family Health Premiums Rise 4 Percent to Average $15,745 in 2012, National Benchmark Employer Survey Finds
Throughout the nation Workers' Compensation systems have been impacted by health care costs that now take a large piece of the premium dollar. Traditional health care offered by employers mirrors the same problem of economic stress. Running two parallel systems creates added costs and delays the delivery of medical care. The recent Kaiser Survey just released for 2012 reports that costs in the health care field continue to outpace employee compensation.
This year’s premium increase is moderate by historical standards, but outpaced the growth in workers’ wages (1.7 percent) and general inflation (2.3 percent). Since 2002, premiums have increased 97 percent, three times as fast as wages (33 percent) and inflation (28 percent).
“In terms of employee insurance costs, this year’s 4 percent increase qualifies as a good year, but it still takes a growing bite out of middle-class workers’ wages, which have been flat or falling in real terms,” Kaiser President and CEO Drew Altman, Ph.D. said.
“Premium growth is at historic lows, which greatly benefits workers. Continuing to ensure that Americans have coverage options that are affordable is vitally important for our nation’s health,” said Maulik Joshi, Dr.P.H., president of HRET and senior vice president for research at the American Hospital Association.
The 14th annual Kaiser/HRET survey of more than 2,000 small and large employers provides a detailed picture of trends in employer-sponsored health insurance costs and coverage. In addition to the full report and summary of findings being released today, the journal Health Affairs is publishing a Web First article with select findings, and Dr. Altman authored a “Pulling It Together” column reflecting on this year’s results.
The survey reveals significant differences in the benefits and worker contributions toward family premiums between firms with many lower-wage workers (at least 35 percent of workers earn $24,000 or less a year) and firms with many higher-wage workers (at least 35 percent of their workers earn $55,000 or more a year).
Workers at lower-wage firms on average pay $1,000 more each year out of their paychecks for family coverage than workers at higher-wage firms ($4,977 and $3,968, respectively). This occurs even though the firms with many lower-wage workers on average pay less in total premiums for family coverage than firms with many higher-wage workers ($14,694 and $16,427, respectively).
In addition, workers at lower-wage firms are also more likely to face high deductibles than those at higher-wage firms. Specifically, 44 percent of covered workers at firms with many low-wage workers face an annual deductible of $1,000 or more, compared with 29 percent of those at firms with many high-wage workers. Across all employers, a third of covered workers (34 percent) face a deductible of that size, including 14 percent with deductibles of at least $2,000 annually.
“This year’s survey suggest that working families at the low end of the wage scale face significant out of pocket costs for coverage,” said study lead author Gary Claxton, a Kaiser Vice President and director of the Foundation’s Health Care Marketplace Project. “Firms with many lower-wage workers ask employees to pay more out of pocket than firms with many higher-wage workers even though the coverage itself tends to be less comprehensive.”
Health Reform and Employers
The survey estimates that 2.9 million young adults are currently covered by employer plans this year as a result of a provision in the 2010 Affordable Care Act that allows young adults up to age 26 without employer coverage of their own to be covered as dependents on their parents’ plan. That’s up from the 2.3 million in the 2011 survey. Young adults historically have been more likely to be uninsured than any other age group.
The survey also finds that 48 percent of covered workers are in “grandfathered” plans as defined under health reform, down from 56 percent last year. Grandfathered plans are exempted from some health reform requirements, including covering preventive benefits with no cost sharing and having an external appeals process. To retain this status, employers must not make significant changes to their plans to reduce benefits or increase employee costs.
Employer Expectations for 2013
In addition to the comprehensive survey conducted in the spring, employers were asked in August whether they had information about the change in premiums (or total cost for self-funded plans) for their current health plan with the largest enrollment. The average increase reported by employers who had received information for their current plan is 7 percent.
These early reports may not match what employers and workers ultimately end up paying next year, as firms can raise deductibles or otherwise change the health benefits and plans they offer to lower premiums. This year, for example, more than half (54 percent) of employers who offer health benefits reported that they had shopped around for new coverage. Of that group, significant shares switched carriers (18 percent) or changed the type of plans they offer (27 percent).
Other findings from the study include:
Worker-only coverage. Premiums for worker-only health coverage increased 3 percent in 2012 to reach $5,615 annually. Workers on average pay $951 toward this coverage.
Offer rate. This year, 61 percent of firms offer health benefits to their workers – statistically unchanged from last year.
Cost-sharing for office visits, emergency care and drugs. Covered workers facing co-payments for in-network physician office visits on average pay $23 for primary care and $33 for specialty care. For emergency-room visits, average co-pays are $118. For drug plans with three or more tiers, average co-pays are $10 for generic drugs, $29 for preferred brand-name drugs, $51 for non-preferred brand-name drugs, and $79 for specialty drugs.
Domestic partner benefits. In 2012, 31 percent of employers offer health benefits to same-sex domestic partners, up from 21 percent three years earlier. This year 37 percent of firms offer such benefits to unmarried opposite-sex partners, up from 31 percent in 2009.
Flexible Spending Accounts and Pre-Tax Premiums. Large employers are more likely than small ones to allow workers to pay their share of premiums with pre-tax income (91 percent, compared to 41 percent) and to contribute pre-tax dollars to Flexible Spending Accounts (76 percent, compared to 17 percent).
Now in its 14th year, the survey is a joint project of the Kaiser Family Foundation and the Health Research & Educational Trust. The survey was conducted between January and May of 2012 and included 3,326 randomly selected, non-federal public and private firms with three or more employees (2,121 of which responded to the full survey and 1,205 of which responded to a single question about offering coverage). A research team at Kaiser, HRET and NORC at the University of Chicago, led by Kaiser’s Gary Claxton, designed, conducted and analyzed the survey. For more information on the survey methodology, please visit the Survey Design and Methods Section at http://ehbs.kff.org.
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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.
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.
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Jun 21, 2012
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While both Democrats (79%) and Republicans (52%) agree that the nation's health care system is "poor," both Democrats (46%) and Republicans (28%) agree that it does not need to be completely rebuilt. Both parties content ...
Feb 16, 2012
Now, Governor Walker, in a misguided attempt to balance the budget, wants to cut an additional 50,000 adults from the State's health care rolls. In a remarkable display of political doublespeak, Walker's administration– which...
Feb 15, 2012
NIOSH (The National Institute for Occupational Health and Safety) has published a booklet to educate Home Healthcare Workers about preventing latex allergies. Latex products are made from natural rubber, and sensitivity...
Friday, February 12, 2021
Searching for Vaccine in NJ
NJ Commissioner of Health Judith Persichilli COVID-19 provided a status report yesterday on the status of vaccine distribution in NJ.
Friday, May 16, 2014
Learn When an Accident in a Parking Lot Is Compensable
Learn When an Accident in a Parking Lot Is Compensable
New Jersey Institute for Continuing Legal Education
Wednesday, June 18, 2014 4pm-8pm
Law Center, 1 Constitution Square, New Brunswick, NJ 08901
t. 732-249-5100 f. 732-249-1428 www.njicle.com
- Learn about the most important recent case law decisions from a panel of Compensation Judges and leading attorneys. The lead attorneys, John R. Tort, Jr. and Lewis Stein, who tried and participated in the appeal of Hersch v. County of Morris will discuss the recent NJ Supreme Court "Off-Premises" (Coming and Going Rule) decision.
- Understand why state tort law claims for failure to warn of chemical dangers are not preempted by OSHA’s HazCom standard. Attorney Steven H. Wodka, who participated in the appeal of ATRM v OSHA & DOL, et. al,will provide insight into the 3rd Circuit Court of Appeals recent decision and what new claims may be anticipated.
- Gain an understanding of coverage issues involving Workers’ Compensation insurance policies and the operation of the Uninsured Employers Fund.
- Acquire information of the new rules and procedures for obtaining Medicare conditional payment information, and the new regulations onhow to appeal a Medicare determination involving reimbursement /debt owed the Centers for Medicare and Medicaid Services (CMS).
Wednesday, March 21, 2012
Health Benefits, US Supreme Court and Workers Compensation
U.S. Supreme Court building. (Photo credit: Wikipedia)
On Monday, the US Supreme Court will hear oral arguments concerning the validity of the 2010 Patient Protection and Affordable Care Act. Whatever the US Supreme Court decides in the pending matters, the nation's patchwork of workers' compensation systems will ultimately feel the impact. The implementation of the Act will ultimately have far reaching consequences of the overall operation of both the delivery of workers' compensation medical benefits and the ultimate assessment/apportionment of permanent disability.
Workers' Compensation systems have been struggling with the delivery of medical benefits. As more cases are denied initial compensability determinations, and alterate medical care is sought for the prevention, identification and treatment of underlying, co-existing and pre-existing medical conditions will be even more significant issues in workers' compensation matters.
Thompson-Reuters News & Insight identifies some of the issues the US Supreme Court will consider:
"* Adult children remaining on their parents' insurance coverage through the age of 26.
* An end to lifetime limits on the dollar value of benefits available to people with serious medical conditions that can lead to astronomical treatment costs.
* Preventive healthcare benefits including free coverage for mammograms and birth control.
* For Medicare beneficiaries stuck in the prescription drug benefit coverage gap known as the "doughnut hole," a 50 percent discount on covered brand name drugs and 14 percent savings on generic drugs.
* A requirement that insurance companies justify unreasonably large healthcare premium increases.
* Tax credits for small employers with no more than 25 employees and average annual wages of less than $50,000 that provide health insurance for employees.
* Temporary insurance coverage programs for retirees who are over age 55 but not eligible for Medicare.
* Temporary insurance coverage for individuals with pre-existing medical conditions who have been uninsured for at least six months.
* A requirement that health plans report the proportion of premium dollars spent on clinical services, quality, and other costs, and provide rebates to consumers if the share of the premium spent on clinical services and quality is less than 85 percent in the large group market and 80 percent in the individual and small group markets.
National Federation of Independent Business v. Sebelius, No. 11-393; U.S. Department of Health and Human Services v. Florida, No. 11-398; and Florida v. Department of Health and Human Services, No. 11-400
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Monday, April 23, 2012
NJ Supreme Court To Rule on Several Critical Issues
The NJ Supreme Court has before it three issues of critical importance concerning workers' compensation including: the standard of proof in a fatal heart claim; remedy for the failure of an insurance company to provide medical care, and the "exclusivity rule." These decisions have the potential to be landmark decisions.
1. Standard of Proof in a Fatal Heart Claim: Does the record support this workers' compensation claim under N.J.S.A. 34:15-7.2, which sets the standard of proof governing claims based on injury or death from cardiovascular causes?
Workers' Compensation benefits were awarded for a pulmonary embolism causally related to sedentary work activity. A NJ Appellate Court awarded benefits for the development of a pulmonary embolism precipitated by the inactivity of sitting long hours at a desk job.
Certification granted 6/7/11
Posted 6/10/11
Argued: 3/26/12
A-112-10 Wade Stancil v. ACE USA (067640)
Related articles
1. Standard of Proof in a Fatal Heart Claim: Does the record support this workers' compensation claim under N.J.S.A. 34:15-7.2, which sets the standard of proof governing claims based on injury or death from cardiovascular causes?
Workers' Compensation benefits were awarded for a pulmonary embolism causally related to sedentary work activity. A NJ Appellate Court awarded benefits for the development of a pulmonary embolism precipitated by the inactivity of sitting long hours at a desk job.
Certification granted: 2/14/12
Posted: 2/14/12
A-71-11 James P. Renner v. AT&T (068744)
2. Remedy for the Failure of the Insurance Company to Provide Medical Care:
May an employee who suffered a work-related injury pursue a common-law cause of action against a workers’ compensation carrier for willful failure to comply with court orders compelling it to provide medical treatment when the delay or denial of treatment causes the employee’s condition to worsen?
The NJ Supreme is going to review the procedure to bring bad faith claims against employers and insurance companies in workers' compensation actions. The Court accepted for review a case holding that workers' compensation bad faith claims are within the exclusive jurisdiction of the workers' compensation hearing official.
Posted 6/10/11
Argued: 3/26/12
A-112-10 Wade Stancil v. ACE USA (067640)
3. The Exclusivity Rule:
Under the circumstances of this case, which include a finding by the federal Occupational Safety and Health Administration that the accident was the result of a “willful violation” of its regulations, did the employer’s action constitute an “intentional wrong” that would preclude immunity under N.J.S.A. 34:15-8 of the workers’ compensation statute?
NJ Courts have held that trench accidents were not a mere fact of industrial life and were beyond intent of Act's immunity provision. A claim was permitted directly against the employer in addition to the workers' compensation action.
Certification granted 1/27/11
Posted 1/28/11
Argued: 10/12/11
A-69-10 Kenneth Van Dunk, Sr. v. Reckson Associates Realty Corp. (066949)
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Sunday, November 24, 2013
Obamacare Has a Friend in the Health Care Industry
In the LA Times today, Noam Levey writes that Obamacare has an ace in the hole: the insurance industry. Sure, they have their gripes:
But since 2010, they have invested billions of dollars to overhaul their businesses, design new insurance plans and physician practices and develop better ways to monitor quality and control costs.This is really a crucial point. Like it or not, the entire health care industry has spent the past three years gearing up for the rollout of Obamacare. At this point, they're committed—and doubly so since the Republican Party very clearly has no real alternative for them. This means that all the doom-mongering on Fox... |
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