5TH ANNUAL THIS YEAR IN WORKERS’ COMP – THE TOP ISSUES & CASES

5TH ANNUAL THIS YEAR IN WORKERS’ COMP – THE TOP ISSUES & CASES
http://www.njicle.com/seminar.aspx?sid=558

Hear an expert analysis of key cases decided during the past year

Presented in cooperation with the NJSBA Workers’ Compensation Section

Tuesday, July 08, 2008 4:00 PM to 8:00 PMNew Jersey Law Center, New Brunswick / S1485d-14533

This fifth annual program features a panel of some of the most respected Workers' Conmpensation Judges and attorneys, who will review and provide insight on the top issues and cases that have emerged during the past year.

This fast-paced program will be packed with practical pointers that have proven successful in matters ranging from jurisdictional issues through coverage of employment. The program will expand your horizons and broaden your practice potential into expanding in developing areas of the law such as the Longshore Act, Defense Base Act claims, and actions involving New York jurisdiction, including 9/11 claims. Make plans to register today!

PROVEN STRATEGIES FOR DEALING WITH THE TOP ISSUES CONFRONTING TODAY’S WORKERS’ COMPENSATION ATTORNEYS, INCLUDING…
• Proving that a claim arose out of, and occurred in, the course of the employment: Mojica v. The Valley Hospital
• Interpreting the "Going and Coming Rule" to prove your case: Scott v. Foodarama Supermarkets • Determing jurisdiction of the court: Morella v. Grand Union/New Jersey Self-Insurers Guaranty Association 193 N.J. 350 (2008), Kibler v. Roxbury Bd. of Educ. 392 N.J. Super. 45 App. Div. 2007) , Flick v. PMA Ins. Co. and Kathleen Reed, 394 N.J. Super. 605 (App. Div. 2007)• What you need to know about counsel fees: Alvarado v. J & J Snack Foods Corp.
• How to handle a Longshore and/or Defense Base Act Claim
• What you need to know about NJ 911 exposure filing and proof requirements
...and more

http://www.njicle.com/seminar.aspx?sid=558
Moderator:JON L. GELMAN, ESQ.

Speakers include:
STEPHEN C. EMBRY, ESQ.
NANCY J. JOHNSON, ESQ.
EDGAR N. ROMANO, ESQ.

Click here to print paper registration form http://www.njicle.com/ICLEOrderForm.pdf

Medicare Recovery Made Simple

Navigating the Medicare recovery system just became a whole lot easier with the deployment of the new website launched by the new national MSP Recovery Contractor (MSPRC). The Centers for Medicare & Medicaid Services (CMS) has consolidated all of the functions and workloads related to Medicare Secondary Payer (MSP) post-payment recoveries into one MSP recovery contract.

The contract for the new national MSP Recovery Contractor (MSPRC) was implemented on October 2, 2006. The MSPRC has taken over new MSP recovery cases and most existing cases. Chickasaw Nation Industries, Inc. (CNI) is the national contractor. CNI has received several prestigious national awards including: Top Small Businesses, ranked #23 by Federal Times 2006; U.S. Department of Commerce Minority Business Development Agency National Minority Small Business of the Year SBA Administrator’s “Award for Excellence” 2005; and American Indian-Owned Businesses, ranked #2 by New Mexico Business Weekly 2004.

The website explains in detail the procedures and forms utilized by CNI to contact the parties and implement the procedures that it utilizes for recovery in: Workers’ Compensation, Liability, Med-Pay, PIP and Group Health Plan recoveries.

The new website site is a major step forward in assisting all parties in the recovery process.

Are Second Injury Funds Going to be History Soon?

Second Injury Funds [SIF] are now undergoing a critical evaluation as the economy continues to deteriorate. Originally created post World War II, the SIFs encouraged the employers to hire handicapped employees who were hired and had pre-existing disability. The concept afforded a shared responsibility through pooled insurance and insulated the employer from the burden of on apportioning liability in total and permanent disability cases.

Recently, however, the SIF had become raided by State politicians in an effort to balance their State budgets. New Jersey highlights such a concern, and within the last decade funds have been raided three times in order to satisfy debt in the general treasury. Not only does it renege on the promise of providing benefits to injured workers, it slows down the bureaucracy of administrating a workers’ compensation program by inadequately funding staff. At recent hearings before the New Jersey State Senate there were a multitude of complaints concerning inadequate staffing of the SIF, including the need for more attorneys to represent SIF. As a result of this outrage there is pending before the state legislature a resolution to amend the New Jersey’s constitution to prohibit such raiding in the future of funds directed to employee benefits.

SIFs had been challenged by the insurance industry over the last 10 years and they have attempted to disband them and wind down their benefit distribution contributions. Such a challenge was recently opposed in the State of Missouri where an attempt to eliminate the SIF by 2011 was defeated.

Opponents the SIF’s indicate that the Americans with Disabilities Act insulates the employee from retaliatory claims, and the SIFs are no longer necessary. Additionally, insurance carriers would like more control over the distribution of the benefit dollars and the SIF appears as an additional obstacle to employers in crafting settlements in total and permanent disability cases.

It is likely that this debate will continue and that the trend towards elimination of SIFs will also continue.

Cost of Medical Benefits Continue to Soar in Workers Compensation

Medical benefits continue to soar in the workers compensation arena. They constitute the largest and most significant factor in the payment of workers' compensation claims. At a recent meeting of NCCI Holdings Inc. it was announced that data reflects a huge increase in the medical component.

What is significant is that medical now comprises 59% of the benefit dollar reflected in 2007 projections. The total indemnity in 2007 amounts to only 41% of the benefit dollar. In 1997 medical comprise 53% of the benefit dollar and in 1987. It comprised only 46% of the benefit dollar. This is a significant increase in a critical trend in the payment of workers' compensation benefits.

Workers compensation medical cost trends reflect a 6% increase in 2007. While this change is lower than the increase of 2006 which was 8.6%. The overall expenditures are increasing. Medical severity remains growing at a faster rate than the medical cost per loss-time claim. In 2007 while growth was at 6%., the medical CPI was only 4.4%.

Employer costs in workers' compensation have decreased to a projected 1.8% of the total cost in 2007 significantly down from the 2.2% reported in 1997. However, when combined, both the health insurance and workers' compensation programs, the employer' s costs continue to rise very significantly. Health insurance in 2007 amounted to 7.1% of the cost to employers for employee compensation while. In 1997 there were only 5.5%.

“Given the positive 2007 results, our short-term view of the market is optimistic,” added NCCI Chief Actuary Dennis Mealy. “However, our long-term outlook is cautionary due to the myriad of uncertainties that continue to face the business.”

Looking at an overview, when both benefit programs are combine, the statistics reflect a significant rise from the 7.7% in 1997 to the 8.9% in 2007. This trend, if continued, will probably result in consolidation of both benefit programs, and elimination of administrative and litigation costs, through use of a single-payer system.

Diagnosing and Curing the Ailing NJ Workers' Compensation System

On the eve the NJ Senate's investigation into New Jersey's workers' compensation system, the question lingers on how to evaluate its health. New Jersey has always had a very large and very dedicated workforce A recent newspaper series by Star-Ledger reporters Dunstan McNichol and John P. Martin revealed that the system is serious flawed and that it is in need of a “complete overhaul.”

The State has a history of being a heavily industrialized state with a huge legacy of pollution from asbestos to petrochemical. Dr. Irving J. Selikoff, of Paterson, NJ, began his landmark studies on asbestos workers in New Jersey. In 1911, almost a century ago, NJ adopted an administrative system known as workers' compensation and it was the intent of the Legislature to provide a speedy and cost effective system of delivering statutorily defined benefits to injured workers while passing the costs onto the consumers of products and services.

This will be the first major evaluation of the workers’ compensation system in 30 years. The last one resulted in a fraud report from the NJ State Commission of Investigation and subsequent statutory change.

Much has changed from the past. In 1911 modern medicine was unknown and so were the diseases that it now treats. The program’s benefits were meager and the conditions eligible for compensation were few and far between. More Americans have died from occupational disease in the United States of America in the past 40 years than in all wars dating back to 1776. Hearings on S.79 before the Subcomm. of Labor and Human Resources of the Senate Comm. on Labor and Human Resources, 100th Cong. 1st Session, S.Hrg. 100-56, pt. 1, at page 1 (1987). Collateral benefit programs did not exist: major medical insurance, long term disability, social security and pension programs.

We are experiencing a struggling economy today. Former Labor Secretary Robert Reich stated, “Fifty years ago, when over a third of the American workforce was unionized and most big industries were oligopolies, it was fairly easy for unionized workers to get higher wages and benefits without putting any individual company at a competitive disadvantage. The higher wages and benefits were merely passed on to consumers in the form of higher prices or came out of profits that would otherwise go to investors. Today, though, most companies are in fierce competition because new technologies combined with globalization have destroyed the old oligopolies and allowed many new entrants.”

Today the workers’ compensation process is confronted with the complexity of the causal relationship of new diseases to synergistic occupational exposures to complex substances as well as traumatic events. Multiple bureaucratic benefits programs that are not formally connected burden the system with claims and liens. Revenue is limited by fewer manufacturing facilities and it is more costly to provide medical treatment and pharmaceutical protocols that result in miraculous recoveries as well as serious and fatal unfortunate results. Benefits must be paid out longer since the average person has a greater life expectancy, ie 1911 – 50 yrs of age and 2007 – 78 years of age.

As in medicine, one must look at both subjective complaints and objective findings to guide its evaluation of the workers’ compensation system. One can hear the cry’s of injured workers “Waiting in Pain,” and of the injured workers and the families of those who did not survive the compensation system. Stories of frustration and outrage are reported in the press. Testimony to the NJ Senate will come from the stakeholders who have economic interests in the system and those who are organized representatives of those who are unable to speak any longer. Those voices must be heard and evaluated. It is important to heed to words and wisdom of all and evaluate them in the context of self-motivation.

The compensation system has been portrayed as, “a dead elephant in the room,” and one that fails to carry out the legislative intent of 1911. Professor Emeritus, John F. Burton, Jr., of Rutgers University of the School of Management and Labor Relations, describes the NJ system as, "It's kind of a sleepy system…” that is “…not particularly worker-friendly."

Unlike The Constitution, the workers' compensation act deals not in the theoretical and vague general concepts of Democracy. The compensation act is a document, which within its four comers, speaks with certainty, specifics and details.

The program has failed because under the present system the Legislative intent cannot be carried out. One cannot drive a 1911 model car on the NJ Turnpike today. Workers' Compensation should be viewed in that context, and not as a cash cow for any interest parties.

The Act can no longer provide medical treatment in an efficient and effective manner consistent with the legislative intent to provide social remedial benefits through a liberal and summary social insurance program. Medical coverage has become acute in NJ and in other jurisdictions. Almost a majority of workers will soon be uninsured for major medical coverage. NJ should take the initiative, as other states have, to provide for universal health care. NJ should combine workers' compensation medical coverage with a universal employer based medical care program and have a single payer system. A single payer system will be cost effective, efficient and provide more appropriate delivery of medical care.

The workers' compensation system began in 1911 with the noble mission as a social remedial system providing an efficient and certain system of benefits to injured workers. Today, the system struggles to protect employees as the rapidly evolving landscape is demanding increased attention to reconsideration of an IHC system in light of the consequences of the program's costs and the consequences of being uninsured for healthcare benefits. The participants in the current program, including employees and employers , will require a more balanced and certain medical delivery system. The lack of healthcare coverage takes an enormous toll on the uninsured, which results in avoidable deaths each year, poorly managed chronic conditions, undetected or under treated cancer and untried life-saving medical procedures. An Integrated Health Care plan is a potential national shift to reduce costs so that a healthcare safety net can be maintained for workers and their families.

“Full-time healthcare would save money. Instead of paying for two insurance plans – one to cover healthcare for injuries and illnesses on the job and another for injuries and illness off the job – businesses would buy one plan. As Roger Thompson, former director of Travelers Insurance Workers’ Compensation Strategic Business Unit put it, the present system is ‘like having two trains going down separate tracks and it doesn’t make a lot of sense to have all the administrative costs to maintain these separate systems.’” R. McGarrah, “Full-time Healthcare for America’s Working Families [Draft],” AFL-CIO (August 22, 2003).

In the short run, adopting such concepts, proposed by Senator Stephen M. Sweeney and Assemblyman Neil M. Cohen, would be fine initial steps:

• prohibiting the future raiding of revenue on designated workers' compensation funds (CSR-60) should be enacted;
• swifter scheduling and use of continuous trials;
• greater permanent, temporary rate and dependency [A-2499], benefits;
• rate increases [A-2498] should be enacted;
• a review of judicial appointments as recommenced in the 1974 by the State Commission of Investigation report;
• an enhanced in-service judicial training curriculum;
• exclusive jurisdiction of the Division of Workers compensation over medical fee disputes [A-2501];
• a less burdensome Uninsured Employer Fund system to shift the responsibility to the State to locate and serve responsible parties and in the alternative to carryout the mandate of the Legislature to make payment to uninsured workers and asbestos victims expeditiously and even more swiftly in exigent cases;
• an independent oversight commission [A-2503] should continuously evaluate the status and progress of this system that handles trust funds and benefits valued at over $1.8 Billion dollars per year; and
• Data Match with the Centers for Medicare and Medicaid Services to comply quickly with the Medicare Secondary Payer Act which was enacted decades ago.

By evaluating the health of the compensation system thorough an intensive analysis of both the objective findings and subjective complaints, the NJ Senate will have the opportunity to enact modern, creative and innovative solutions that will be able meet the present needs of the workers, the employers and taxpayers of State. The NJ Legislature has the opportunity to craft an up-to-date system that will cure the ailing and antiquated workers’ compensation system and embrace today’s needs and tomorrow’s future and bring the State into a new century.

Opposition Continues to Swell Against Utilization of the AMA Guides 6th ed

Resistance continues to mount against adoption of the AMA Guides to Impairment 6th edition. Joining the growing chorus of opposition are John Burton, a leading expert in workers' compensation, and the Attorney General of Tennessee who issued an opinion against adoption of the 6th Edition.

Workers’ compensation expert, John Burton, at a presentation to the NY State Workers’ Compensation Board expressed his disfavor in adoption to the AMA Guides 6h edition to determine disability. He recommended that all 40 US State jurisdictions and Canada abandon the AMA Guides altogether.

Burton said, "My concern about the AMA guide ... is that it's simply not evidence-based. It's ignoring the evidence that's available to do it right," "I think the AMA has now shown it's incapable of doing it right and this thing ought to be referred to the Institute of Medicine to look at this issue and figure out how to do a decent rating system."

Additionally, the automatic adoption of the AMA Guides 6th Ed. is unconstitutional states Attorney General of the State of Tennessee. “While there is not any controlling authority in Tennessee on this issue, and while Tenn. Code Ann. § 50-6-102(2) is defensible, this provision is vulnerable to attack as an unconstitutional delegation of legislative authority in violation of Tenn. Const. art. II, § 3, because by making the “most recent” edition of the AMA Guides that is in effect on the date of the employee’s compensable injury the applicable edition, § 50-6-102(2) may be construed as incorporating future changes of the AMA Guides to Tennessee’s statutory scheme.”

As the debate continues concerning the adoption of the AMA Guides to Impairment 6th Ed. the issue continues to focus on whether the AMA Guides to Impairment should be utilized at all to determine disability in at all in a workers’ compensation claim.

A Constitutional Amendment To Stop The Raiding Of The Second Injury Fund For The General Treasury is Proposed in New Jersey

An amendment has been proposed, which has received bipartisan support, to stop the raiding of the second injury trust funds and their diversion to the general treasury. Senate Majority Leader Stephen Sweeney has proposed a constitutional amendment [SCR-60] requiring contributions collected from assessments on wages to be used for employee benefits and prohibiting use of the contributions for any other purpose.

Over the past years he executive branch has raided the second injury fund trust funds and has diverted the money to the general treasury of the State of New Jersey to cover shortfalls. Second injury fund revenues are collected as a line item surcharge on workers' compensation premiums from all employers of the State of New Jersey. The fund not only supports second injury fund beneficiaries, but it also supports general funding of the New Jersey Division Workers Compensation.

Most states in the United States have eliminated the second injury fund concept. The rationale for elimination of benefits is that the insurance carriers want greater control over the revenue to be paid to beneficiaries involving total disability. Additionally, the second injury fund concept was established in order that employers hire handicapped employees. It is now considered that the Americans With Disabilities Act affords protection to injured workers who have disabilities and the second injury funds are no longer required.

The proposed resolution is receiving bipartisan support and should it be adopted the constitutional question will appear on the ballot as a Constitutional amendment to be voted upon by all citizens of the state of New Jersey.

ALS Linked to Formaldehyde Exposure

At a recent meeting of the American Academy of Neurology a report was presented demonstrating a 34% higher risk of developing amyotrophic lateral sclerosis (ALS), also known as Lou Gehrig’s disease as a result of exposure to formaldehyde.

“Although this finding could well be a chance observation, it merits further investigation, particularly because people with longer exposure to formaldehyde had a greater risk of developing ALS than those with shorter exposures,” said study author Marc Weisskopf, PhD, of Harvard University in Boston. “People who reported 10 or more years of exposure were almost four times as likely to develop ALS as those with no exposure.”

Formaldehyde is used in particle board and other wood products, permanent press fabrics, glues, and other household products, such as cosmetics and shampoo. It is also used as a preservative in medical laboratories and mortuaries, and as an industrial disinfectant.

Do the AMA Guides Have Any Place in the Workers’ Compensation System?

The great debate continues over whether the AMA Guides have any place in the workers’ compensation system. During a recent interview with Dr. Christopher Brigham, Senior contributing editor of the AMA Guides 6th Edition and Todd McFarren, past President of the Work Injury Law and Advocacy Group and president-elect of CAAA, the issues were crystallized.

The AMA Guides measure “impairment” and most if not all workers’ compensation acts provide benefits for “disability.” Additionally there are many other negative changes in Guides including lower values and the elimination of pain as a factor.

There has been a national uproar created over the adoption and use of the AMA Guides 6th Edition. A question has now been raised as to whether they should be relied upon at all in the workers’ compensation area.

NJ Workers' Compensation System Termed “completely dysfunctional”

The NJ Star-Ledger newspaper conducted an eight-month survey involving hundreds of thousands of workers compensation claims pending before the New Jersey Division of Workers Compensation. The Star Ledger series ran for three days and exposed huge difficulties in the NJ workers’ compensation system.

The flaws in the $1.8 billion system include:

-Frequent delays for claimants who can least afford them: totally disabled workers with mounting medical needs, no income or insurance.In its review of court
dockets, The tar-Ledger found that hearings were rescheduled on average more than a dozen times.

-Inexperienced judges who, once on the bench, lack any substantial power to enforce their orders. The main qualification for some is friends in high places.

-A Legislature where some of the same lawmakers who approve comp judges and
decide which workers' benefits bills get considered belong to law firms that
earn big money in compensation cases.

-A workers' compensation administration that does a woeful job of tracking its own performance. New Jersey officials acknowledged they could not identify the outcome in more than 10,000 of the most complex cases in the past seven
years.

-More than almost any state, New Jersey lets insurers dictate where, when and for how long injured workers get treated. There are no alternative forms of resolution, no incentives to quickly resolve a claim and weak sanctions against companies slow to act.

Senate Majority Leader Stephen Sweeney (D-Gloucester), vowed Wednesday to overhaul the state's "completely dysfunctional" workers' compensation system. “To fix the $1.8 billion-a-year system, Sweeney said, ‘You've got to go back and completely take it apart and put it back together again so it benefits employers and employees.’" (Star Ledger April 9, 2008)

In an editorial the Start Ledger demanded an “overhaul” of the entire NJ Workers’ Compensation system:

New Jersey's nearly 100-year-old workers' compensation system is in desperate
need of an overhaul.

The picture in "comp court" can verge on the Dickensian: Thousands of cases become bogged down for years, delaying much-needed payments to workers with the most serious injuries or disabilities.

Compensation court judgeships are often treated as patronage plums, with skill
and expertise taking a back seat to political connections.

The insurance companies have responded by requesting more detailed analysis of the present system.

David J. Socolow, Commissioner of the New Jersey Department of Labor and Workforce Development, appeared before the Senate Budget Committee April 9, 2008 and testified that the system was working well.

A series of bills introduced by NJ Assemblyman Neil Cohen are presently pending for reform of the present NJ Workers’ Compensation system including a bill to establish a review commission, reimbursement of medical liens, increases certain workers’ compensation benefits, and to ban the sale of asbestos products.

W.G. Grace to Settle Asbestos Claims for $3 Billion

W.R. Grace and Co. has announced that it will fund a trust for resolving all current and future asbestos-related personal-injury claims. The company entered bankruptcy 7 years ago with 135,000 asbestos claims pending. Grace had set aside $1.7 Billion in 2004 to pay its asbestos liabilities and will probably finance another $1.5 Billion to provide additional contribution to the financial package for asbestos claim resolution.

In March 2008 Grace agreed to reimburse the U.S. Superfund program for the cleanup costs associated with its Libby, Montana, asbestos facility

Iowa Joins Other States Not Adopting the AMA Guides 6th Edition

The State of Iowa joins many other States who will not implement the 6th Edition of the AMA Guides. This follows mounting criticism against the use of the 6th Ed. of the AMA Guides to determine workers’ compensation disability.

Under emergency rule making authority The Iowa Commission promulgated the following rule.
“AMA GUIDES – Rule 876—2.4 has been amended as follows:
876—2.4(85,86) Guides to evaluation of permanent impairment. The Guides to the Evaluation of Permanent Impairment, Fifth Edition, published by the American Medical Association are adopted as a guide for determining permanent partial disabilities under Iowa Code section 85.34(2)“a” to “s.” The extent of loss or percentage of permanent impairment may be determined by use of this guide the Fifth Edition of the guides and payment of weekly compensation for permanent partial scheduled injuries made accordingly. Payment so made shall be recognized by the workers’ compensation commissioner as a prima facie showing of compliance by the employer or insurance carrier with the foregoing sections of the Iowa workers’ compensation Act. Nothing in this rule shall be construed to prevent the presentations of other medical opinions or guides or other material evidence for the purpose of establishing that the degree of permanent disability to which the claimant would be entitled would be more or less than the entitlement indicated in the Fifth Edition of the AMA guide guides.”

Robbing The People of Justice

On Tuesday the voters of Wisconsin changed the configuration of the State’s Supreme Court from liberal to conservative in a referendum vote to oust Justice Louis Butler. In a highly contested election, divided heavily between conservative business interest groups and public interest organizations, by a mere 20,000 votes, a liberal Democratic was removed from office and the Court will now have a 4-3 conservative majority.

The fiercely fought and costly ($4 million) election brings to light, once again, the issues involved in conducting judicial elections. Last year over $3.1 million dollars was spent by special interest groups to challenge yet another judicial election in Wisconsin. Elections of judiciary are the case in 39 States who elect some, if not all, of their appellate Judges.

The Wisconsin Supreme Court, in nationally recognized opinions: has recognized manufacturers’ liability in latex glove litigation; guarded patients from medical malpractice; and protected children from the problems associated with lead paint. The Court defined the standard for “enterprise liability” in an effort to guard the public from hazardous and toxic substances.

Private financing of judicial elections are problematic and bring to the forefront a need for review of the entire process to maintain the integrity of the judicial system. As Justice Butler remarked in his concession speech, "We cannot continue to see elections like last year 's and this year 's, and expect people to maintain their faith in our judicial system, " Butler said. "If we rob people of their faith in that system, we've robbed them of justice. "

National Asbestos Awareness Week

Senate Resolution 462 designates the first week of April 2008 as National Asbestos Awareness Week. The proclamation urges public awareness about the prevalence of asbestos-related diseases and the dangers of asbestos exposure.

Asbestos, a know carcinogen, is still used in the US and has not been banned. "Asbestos" is a generic name given to a fibrous variety of six naturally occurring minerals that have been used for decades in the development of thousands of commercial products. The term "asbestos" is not a mineralogical definition but a commercial name given to a group of minerals that possess high tensile strength, flexibility, resistance to chemical and thermal degradation, and electrical resistance. These minerals have been used in many products, including insulation and fireproofing materials, automotive brakes and textile products, and cement and wallboard materials. It has recently been found in toys.

Asbestos exposure affects both workers and their families. The legacy of asbestos related disease continues: mesothelioma, lung cancer and asbestos medical conditions continue to be diagnosed. Litigation continues against the asbestos manufaturers, distributors and health research groups. Ill conceived legislation by the insurance industry failed to survive Congressional debate.

The Workers’ Compensation system continue to fail in delivering benefits to asbestos exposed workers due to latency and coverage issues complicated by bureaucratic nightmares. Hopefully, public awareness will draw attention to crafting a better system to deliver benefits to injured asbestos workers than the present workers’ compensation system crafted in 1911, decades before the disease become recognized as an occupational disease.

Governmental Opposition Swells Against Implementation of the 6th Edition of the AMA Guides

State governments throughout the United States are now delaying implementation of the 6th Edition of the AMA guides as a standard to determine permanent disability. The governmental officials are heeding warnings that the guides do not carry out the legislative intent of the workers’ compensation acts which is to provide a remedial social insurance benefit to injured workers.

In 1911 workers bargained away the right to seek redress in the civil litigation system for a more limited benefit structure called workers’ compensation. Workers’ compensation was the original “no fault system” that was to provide limited benefits in a summary and efficient fashion to disabled workers.

Soon there was an attempt by Industry to modify the system in the 1970’s to create a standardized system of measuring disability and reduce even the meager benenfits offered. The AMA guides were drafted and adopted in several state to measure permanent disability. Presently many jurisdictions utilize the 5th Edition to determine disability.

The 6th edition were published in late 2007s under the guidance of Christopher R. Brigham M. D. whose company, Brigham and Associates conducts medical evaluations. Dr. Brigham contends that only 40% of those totally disabled are really unable to perform meaningful work. It has been reported that if the new guides are adopted then permanent disability will no longer be recognized in 70% of the present claims.

At a recent meeting of the IAIABC (The International Association of Industrial Accident Boards and Commissions) , an organization composed of industrial boards and commissions throughout the United States, but open to membership from dues paying members, which include many of the workers’ compensation insurance carriers in the United States, there was “a lively discussion” concerning use of the new Guides.

"Dr. Russell Travis, Medical Director for the Kentucky Office of Workers’ Claims, suggested the 6th Edition makes improvements in guiding impairment rating, particularly in consistency of ratings across organ systems. However, Dr. Travis highlighted some of the perceived weaknesses he found in the AMA Guides; his presentation pointed to issues of apportionment, pain, and the qualifications required to perform a rating as still unresolved. The strong debate among the rating physicians demonstrated the lack of consensus on techniques for impairment rating and the role of the AMA Guides."

Within the last few weeks, several states have paid attention to warnings and taken action to resist immediate implementation of the 6th Edition of the AMA Guides. Kentucky legislatively voted to adopt the prior 5th Edition of the AMA guides to permanent impairment rather than the current 6th edition. Vermont issued an administrative directive barring use of the new 6th Edition. Iowa has joined the growing chorus of those who will not follow the adoption of the 6th Edition. Opposition to implementation in New York is at a fever pitch.

Joining the chorus of growing opposition is The Workplace Injury Law And Advocacy Group. In an article authored by Todd McFarrin, the President-Elect of CAAA, he cautions that:

“By using impairment ratings from the Guides, essentially as a proxy for disability, permanent disability benefits are being slashed. The use of impairment and the eclipse of disability as the relevant permanent consequence of an injury in workers’ compensation is a dangerous trend for injured workers. The latest [6th] edition of the Guides accelerates this decline.”

How to determine permanent disability has always been an agonizing proposition to all who participate in the system. While State legislatures and the Federal government would be pleased to adopt an objective standard, such a goal is illusionary. One cannot be substituted for subjective nature of pain and restrictions of movement in the human environment.

While the economy may be struggling, it is anticipate that the outrage of Labor to the implementation of the restrictive 6th Edition to determine permanent disability will only increase. The objections will become louder and stronger as Industry tries to renege on its 1911 bargain called workers’ compensation.

California Considers Taxing Workers' Compensation Attorneys Fees

If Governor Arnold Schwarzenegger has his way the battered advocacy system for injured workers in California is about to get hit again. The Governor recently proposed charging a sales tax on professional fees in the State of California. He indicated that he is well aware of the loopholes in the present system and would like to end them in order to recover money for California sagging state revenues.

Charging a “sales tax” for professional fees is a concept that the Social Security system has imposed for several years by charging a user fee (6.3%) to successful attorneys who receive favorable awards for their clients before that agency. In fact, the concept of Social Security charging a fee to have Medicare review proposed settlements has often been rumored as they are analogous to IRS private opinions.

While no definite proposal has been offered to the California legislation, the Governor will obviously need to reach into someone’s bank account to keep California’s budget afloat.

Collecting Both Social Security Disability Insurance And Workers’ Compensation Benefits Generates Inequality of Benefits

A recent study by the federal government reports that some disabled workers who receive workers' compensation or public disability benefits may receive less money than their counterparts. The reason why this phenomenon occurs is because the Social Security benefit computation is designed to replace more of the lower earner’s pre-retirement or predisability earnings than a higher earner’s.

“The Social Security benefit computation is designed to replace more of a lower earner's preretirement or predisability earnings (average indexed monthly earnings) than a higher earner's. This is done by "bend points" in the primary insurance amount formula, which create three earnings brackets. Earnings up to the first bend point are replaced at 90 percent; earnings between the first and second bend point, at 32 percent; and earnings above the second bend point, at 15 percent, up to the taxable maximum. The three brackets are a convenient way to group workers by income (represented here by AIME). This grouping also helps distinguish differences in replacement rates, which are largely determined by the earnings bracket in which the worker belongs.”

The Social Security disability system was established in 1956 to pay cash benefits to those workers who sustained long-term disabilities and were insured for coverage. On the other hand, state workers compensation systems had been in place since 1911 and may be combined with other public disability benefits in addition to Social Security benefits.

The Social Security system, unlike state workers compensation programs, provides a nationally distributed benefit to over 8 million disabled-worker beneficiaries. State public disability benefits are paid under numerous laws including federal, state or local government were plans that provide compensation for medical conditions that are not work related. Some of them may be short-term such as state temporary disability benefits.

As of December 2005, the date that the study utilized for collection of data, there were 8,305,702 disabled-worker beneficiaries in the Social Security program. Of those beneficiaries, 1,440,772 had some past or present connection to workers compensation or public disability benefits and 798,476 at a current connection to workers' compensation or public disability benefits.

In 1984 Congress amended The Social Security Amendments of 1956 and required that workers’ compensation benefits were to be offset against the federal Social Security disability insurance benefit. In 1985 the offset was eliminated and it was again reinstituted in 1989 by Congress. Further amendments in 1996 to The Omnibus Budget Reconciliation Act Of 1981 extended the offset provision to public disability benefit programs. However, Congress excluded the offsets of workers’ compensation and public disability beneficiaries who are receiving Social Security disability benefits in those states where the State took the offset. These have been named reverse offset states. The state law needed to be in effect as of February 18, 1981. Presently there are 16 states and Puerto Rico that are reverse offset states.

The recent study involving 18 month period from January 2003 through June 2004, identifies that a proximately 11% of all Social Security disability beneficiaries were also entitled to receive state workers compensation for public disability payments. It reported that those who receive combined benefits were most likely to be male, high earners, older it retirement and from the Western states.

The report concludes that the earnings replacement rate for disability insurance beneficiaries under the Social Security system, as measured by the ratio of the monthly disability insurance benefits to the average indexed monthly earnings, demonstrates that disabled workers without workers’ compensation or public disability benefits had higher replacement rates. Therefore, collecting multiple benefits may create an economic disparity.

The Future of Spitzer’s NY Workers’ Compensation Reform Effort and the AMA Guides 6th ed.

With Governor Spitzer now embroiled in a major scandal that may end in his resignation as Governor of the State of New York, all eyes in the workers’ compensation arena are now focused on his reform efforts. On February 27, 2007 shortly after taking office he signed landmark legislation to overhaul the NY system.

The legislation mirrors the concerns of Labor and Industry throughout the country about a workers’ compensation system bogged down in administrative bureaucracy and failing to meet the medical and permanent disability needs of injured workers. The new NY act is a skeleton on a program that will be reconstructed by regulations and administrative memos.

Injured workers in NY, as in other parts of the country, are concerned of the implantation of the new AMA Guidelines as the criteria for determining disability. It has been remarked that the new AMA Guidelines 6th edition will eliminate at 60% of all findings of disability resulting in no benefits for those injured workers. The Business Council on NY has been advocating for their implementation.

It is doubtful that there will be a change of course in NY. The NY legislation was originally drafted under the Republication Administration of Governor Pataki and merely passed in the Democratic Administration of Spitzer in about 45 days after he took office. The political deal was struck NY long before the Spitzer Administration, but the legislation is only a skeleton that will require additional crafting and implementation.

NY mirrors the same issues of other jurisdictions. Unfortunately implementing the AMA Guidelines 6th edition will not solve the problem in NY or elsewhere. It is like taking a wheel off a vehicle with 2 flat tires already. Yes the system needs reform, but one that will be crafted as the fathers of workers’ compensation legislation intended, which is a system that provides expeditious and adequate compensation for injured workers.

Now Available: New 2008 Supplement for Gelman on Workers' Compensation Law 3rd Ed.

Thomson/West has published the 2008 supplement to Workers' Compensation Law 3rd ed., (Vols. 38 - 39A, New Jersey Practice Series) authored by Jon L. Gelman.

NEW MATERIAL INCLUDES:

• These pocket parts provide information concerning 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 newly designed Motion for Temporary and Medical Benefits, including the required certification, is provided and discussed.

• The newly revised Judgments for Total and Permanent Disability are included. The Judgments include new refinements in offsets for pensions and Social Security disability benefits.

• The recently promulgated administrative rules governing the disposition of Temporary Disability Benefits are discussed. The nonduplication of benefits provisions are reviewed including the multiple agency adjudication process.

• Collateral medical benefit issues are discussed in light of the recent Supreme Court decision concerning this matter, including a Motion to Join the Collateral Health Carrier and sample Certifications to be used in support of the application.

• Additionally, these pocket parts provide information concerning thenew 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 updatedand discussed. The new Child Support Lien distribution forms, computation worksheets and judgments are provided and explained in depth.

• 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: Click Here

The volume is also available on Westlaw and in CD-Rom format.

NJ WC Reports a Drop of 46% of CMS Backlog in 60 days

NJ, a State that elected not to data match with CMS, is now reporting a drop of 46% of its backlog from the cases designated "waiting for CMS approval," MCARE matters. In a memo to all judges and attorneys, the Director and Chief Judge reported the drop in the cases so designated.

The memo encourages and the use of "specialists" and suggestions that the cost for that service be shared among the parties. It also suggested that some cases be tried fully or partially and that special language be incorporated in Judgments/Settlements where cases have been compromised, providing the opportunity for the cases to be re-heard at a later date to address Medicare issues when reviews are actually completed by CMS. It is difficult to determine whether the CMS issues are actually being completely resolved or whether they are deferred to a later date. The State of NJ continues to offer the judicial assistance of the Division of Workers' Compensation to reduce the backlog of cases designated as MCARE matters.

The memo also recognizes that little action has occurred on the Industry supported, and previously ill fated, Medicare Secondary Payer Statute which attempts to modify the CMS recoupment procedure for conditional medical payments. The proposed admendments discourage the periodic payments of compensation benefits, a basic premise of the entire workers' compensation system.

Attention was brought to the NJ situation when local attorneys enlightened Senator Lautenberg who then introduce Federal legislation requesting the that CMS provide status on the CMS recovery effort.

“These delays mean that thousands of workers in New Jersey and across the country are waiting months and even years to be compensated for their workplace injuries. Workers who are hurt on the job rely on these payments for medical expenses and to get their lives back on track. Medicare needs to provide information to Congress immediately on the number and length of these delays so we can determine the best way to end them and get workers the settlements they need and deserve,” said Sen. Lautenberg, who is a member of the Senate Appropriations Committee.

CMS has since supported newely enacted legislation and Rules to place an increased burden on primary medical providers, major medical carriers and employers to comply with reporting issues.

NJ Workers' Compensation Carriers Win a "Get Out of Jail Card" on Asbestos Liability Claims

Workers' compensation insurance companies have a long history of guarding themselves from liability from asbestos exposure issues. Recently the NJ courts have ruled that workers' compensation insurance companies are shielded from liability when the insurance company performs hygiene studies and does not take action to protect the employees that it has insured under the policy. This ruling further limits the ability of asbestos victims to obtain benefits.

The court in Fackelman v Lac d'Amiante du Quebec, LTEE, et al ruled on that workers' compensation carriers are shielded from liability for failing to notify workers of known hazards on the job site and take efforts to correct them. An asbestos victim worked at the Owens-Corning plant in Berlin NJ for 10 months as a stripper of Kaylo, asbestos pipe covering. The ambient air conditions were described as "dusty" and "foggy" in the plant. His employer provided no information to the employee about presence of high levels of asbestos fiber and a mask was not required to be worn. Air testing was conducted by the workers' compensation insurance carrier, but the employees were not informed as to the results nor the hazards of asbestos fiber. The employee was diagnosed with asbestosis in 2002.

Between 1958 and 1972 Aetna insurance company conducted air testing at the plant. The testing revealed that asbestos in the air (10,000,000 parts per cubic foot) at the plant far exceeded the minimal standards then in place. Aetna had meetings with Owens and discussed with Owens Corning, the employer, what actions should be taken to improve the industrial environment.

The asbestos worker filed a civil action against Aetna for failing to warn the employees of the hazardous conditions and for its failure to minimize the exposure to a safe level at the Owens Corning plant. The Court dismissed the case and did not extent third party liability against the workers' compensation carrier. The court reasoned that there was no surrender of responsibility to maintain a safe workplace from the employer to the insurance carrier. The court also held that there was no common law liability for an insurance carrier did not have a duty "to reduce the risks of exposure or to warn the employees directly."

The long history of the involvement of the insurance industry with the asbestos industry has been memorialized in depositions and affidavits for decades. The conspiracy of silence has lead to premature and needless and agonizing deaths of those who have been exposed to asbestos fiber. NJ has been reported to have one of the highest rates of asbestos related disease in the US. That should be no surprise since it is the legacy of the State's enormous rate of asbestos production during the war years and shortly thereafter.

The NJ compensation system for the payment of benefits to asbestos victims is stagnant. The recent legislation to provide benefits from the "Uninsured Employers Fund" has been ineffective in moving the cases along and adequately compensating asbestos victims. The civil litigation system has been bogged down in bureaucratic bankruptcies. Hopefully the NJ Legislature will see fit to review this inequitable situation and provide the speedy and remedial benefits to asbestos victims.

Medicare Finalizes New Rules To Collect Conditional Payments

The Centers for Medicare and Medicaid Services (CMS) has issued a final rule to tighten its procedure in collecting conditional payments made in workers' compensation actions.. On February 22, 2008 the Department of Health and Human Services published a final rule (PDF) in its program to strengthen CMS's ability to collect payments under the Medicare Secondary Payer (MSP) Amendments.


CMS has designated third party administrators (TPAs) and self-insured plans as "primary payers."

The rule continues to provide that, "...As is the case with group health plan and large group health plan insurance, Medicare may not make payment if payment with respect to the same item or service has been made or can reasonably be expected to be made under workers' compensation..."

The final rule removes the requirement that the reimbursement will be made "promptly" and now substitutes that the primary payer is "...obligated to reimburse CMS if and when it is demonstrated that the primary payer has or had primary payment responsibility. This responsibility may be demonstrated by a judgment, a payment conditioned upon the recipient's compromise, waiver, or release (whether or not there is a determination or admission of liability) of payment for items and services included in a claim against the primary payer, or by other means, including but not limited to a settlement, award, or contractual obligation. This means that a primary payer may not extinguish its obligations under the MSP provisions by paying the wrong party--for example, by paying the Medicare beneficiary or the provider when it should have reimbursed the Medicare program. Primary payers are expected to reimburse CMS when it is demonstrated that they have or had payment responsibility."

This rule supplements the recent legislation requiring the timely disclosure of information which was contained in the Medicare Medicaid and SCHIP Extension Act of 2007 and again reflects the Administration concern that cost shifting should not be transferred from workers' compensation onto CMS. The insurance industry continues to press for legislation that will would shift the burden from workers' compensation onto Medicare and require the US taxpayers to continue to supplement contested workers' compensation claims. CMS recently announced improper payments in 3 states amounted to $371.5 Million dollars alone. Previously this legislation was introduced and efforts to enact it failed.

Casino Employee in NJ Wins Cancer Suit for Second-Hand Smoke Forecasting a New Wave in Litigation

An Atlantic City NJ casino card dealer employed at the Claridge Hotel who was exposed to second hand tobacco smoke was awarded workers' compensation benefits. NJ Judge Cosmo Giovinazzi awarded $150,00 for lost wages and medical benefits to a card dealer holding that second-hand tobacco smoke materially contributed to the employee's lung cancer.

Environmental tobacco smoke has long been associated with lung cancer. A survey of London casino workers indicated that most wanted their environments should be smoke-free. A recently published study by researchers at the University of Nevada revealed that casino floor workers are exposed to four times more tobacco smoke tham amy other workers increasing their risk of cradiovascular disease and lung cancer. Ventilation does not eliminate the poisonous toxins and chimcal components of secondhand smoking.

In The History of the War on Cancer , authored by Devra Davis, in a recent speech broadcast on Book-TV, expresses the urgent need for the removal of carcinogens, inluding tobacco, from the workplace and indicates the need to eliminate the causes.

The Surgeon General of the United States has stated two major observations:

"For the majority of American workers who smoke, cigarette smoking represents a greater cause of death and disability than their work environment." U.S. Department of Health and Human Service. The Health Consequences of Smoking. A Report of the Surgeon General, U.S. Department of Health and Human Services, Public Health Service, 1985 at p. 11.

"In those worksites where well-established disease outcomes occur, smoking control and reduction in exposure to hazardous agents are effective, compatible, and occasionally synergistic approaches to the reduction of disease for the individual worker ..." However, "asbestos exposure can increase the risk of developing lung cancer in both cigarette smokers and non-smokers." Id. at p. 13.

"Cigarette smoking is a major cause of cancer of the lung, larynx, oral cavity, and esophagus and is a contributory factor for cancer of the kidney, urinary bladder, and pancreas. These cancers will cause 278,700 of the estimated 910,000 new cancer cases in the United States during 1985 (ACS 1985), or 30.6 percent of the cancers occurring in the United States other than skin cancer. Exposures to agents in the workplace other than cigarette smoke will also cause some of these new cancers, and a number of cancers will result from the combined effects of cigarette smoking and carcinogenic exposures in the workplace." Id. at p. 101.

Approximately 30 percent of indoor workers in the United States are not covered by smoke-free workplace policies. Secondhand smoke exposure causes disease and premature death in children and adults who do not smoke. Exposure of adults to secondhand smoke has immediate adverse effects on the cardiovascular system and causes coronary heart disease and lung cancer.

Secondhand smoke contains hundreds of chemicals known to be toxic or carcinogenic (cancer-causing), including formaldehyde, benzene, vinyl chloride, arsenic, ammonia, and hydrogen cyanide. Secondhand smoke has been designated as a known human carcinogen (cancer-causing agent) by the U.S. Environmental Protection Agency, National Toxicology Program and the International Agency for Research on Cancer (IARC). The National Institute for Occupational Safety and Health has concluded the secondhand smoke is an occupational carcinogen.

Eliminating smoking in indoor spaces fully protects nonsmokers from exposure to secondhand smoke. Separating smokers from nonsmokers, cleaning the air, and ventilating buildings cannot eliminate exposures of nonsmokers to secondhand smoke.

Conventional air cleaning systems can remove large particles, but not the smaller particles or gases found in secondhand smoke. Routine operation of a heating, ventilating, and air conditioning system can distribute secondhand smoke throughout a building. The American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE), the preeminent U.S. body on ventilation issues, has concluded that ventilation technology cannot be relied on to control health risks from secondhand smoke exposure. U.S. Department of Health and Human Services. The Health Consequences of Involuntary Exposure to Tobacco Smoke: A Report of the Surgeon General. U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health, 2006.

Already an area of new litigation is that of Suing the Smoker Next Door. Ironically, in a lawsuit against their neighbors, tenants allege that the common hallways of their NY apartment building smell like "a Las Vegas casino," jeopardizing the health of those who live and work in building.

Workers' Compensation has been the genius of many lawsuits and one could easily predict that a new wave of litigation will be third-party civl actions generated against building property owners and those who are responsible to maintain the premises including: management companies, co-op and condominium associations.

Employee Cell Chat Results in $5.2 Million Payment to Widow by Employer

The distractions caused by cell phone use and other electronic gadgetry are increasing the exposure of employers to monetary exposure well beyond those benefits that employers are covered for under their workers’ compensation policies. A fatal accident contributed to by the employee’s use of a cell phone while driving resulted in a recent settlement of $5.2 million.

While employers’ are shielded to limited and scheduled statutory benefits under workers’ compensation for injures arising out of and in the course of their employment, injured third parties may pursue a civil action against the employer for the employees negligence. An employee who was distracted by cell phone use caused a motor vehicle accident that resulted in the death of a widowed mother of four children. Her estate filed a civil claim against the employer alleging that employee was negligent for using the cell phone while driving.

In a recent article in TRIAL magazine, Robert L. Sacks Jr., discusses the liability caused by text messaging and other distractions while driving. “Drivers with one hand on the wheel and one hand on the phone are a common sight, at least in states where it’s still legal to talk and drive. But the cell phone is only one of many potential high-tech distractions. It’s now possible to talk, text-message, take pictures, check the global positioning system (GPS), adjust the satellite radio, scroll through the pages of your MP3 player, send e-mail, and try to drive—all at the same time.”44 TRIAL 2 (February 2008).

Sacks cites the work of psychologists at the University of Utah that it is 50% more dangerous to drive while text messaging than while talking on a cell phone. This increase a serious danger to motorists.

This enhanced risk can result in serious economic liability to employers who permit or direct their employees to become distracted while driving in the course of their employment. Employers maybe wise to immediately issue rules prohibiting such activity.

Lead Paint Creates A Potential New Wave of Occupational Disease Claims

Occupational lead exposure, especially to lead paint, has been a well known hazard in the workplace you decades. Recent epidemiological studies demonstrate the causal relationship of exposure to impaired brain function, over time, in adults, results in early aging. Employers and insurance carriers should brace themselves for a wave of claims. Occupational exposures over 30 years ago arise from the exposure to lead in paint, that has deteriorated and flaked off through: decomposition, friction, repair replacement or improper encapsulation, may trigger an enormous amount of expensive claims.

"The federal government has, through multiple agencies, extensively reviewed the health effects of lead upon workers. Coordinating their effort through the Agency for Toxic Substances and Disease Registry (ATSDR), Centers for Disease Control and Prevention (CDC), and the National Institute for Occupational Safety and Health (NIOSH) the federal government has alerted both employers and employees to the health hazards of lead and the techniques to be utilized when handling this hazardous substance.

"Lead, a bluish-gray metal, has been used since ancient times because of its unusual properties, such as a low melting point, pliability and resistance to corrosion. Hippocrates reported in 370 B.C. that a worker who had used lead suffered a severe case of colic. Lead is used in older American homes, and lead exposures occur in the workplace because of the widespread use of lead compounds during the past century in paints, gasoline and industry.

"The worker becomes exposed to lead when dust and fumes are inhaled and when lead is ingested through contamination on hands, water, food and clothing. When lead enters the respiratory and digestive tracts of the human body it is released to the blood and distributed throughout the system. More than 90% of the body's lead is accumulated in the bones where it is stored for many years. The bones then release the lead back into the blood stream and re-expose the system long after the original occupational exposure has ceased.

"Lead damages the blood-brain barrier and subsequently damages brain tissue. Workers exposed to lead may experience fatigue, irritability, insomnia, headaches and other subtle effects of mental and intellectual decline. Prolonged exposure to lead may present symptoms such as anemia. Lead inhibits the synthesis of heme and damages the ion transport system in the red blood cell membranes. Chronic high exposure to lead may result in chronic nephropathy and in some extreme cases, kidney failure. Gelman, Jon, Workers' Compensation Law 3rd ed., 38 NJPRAC 9.24 (West-Thomson 2008)

It has recently been reported in the scientific literature, that lead, absorbed into the blood stream over decades, may result in poor performance in a wide variety of mental functions. In a recent study, Dr. Brian Schwartz of Johns Hopkins University, remarked that lengthy exposure to lead, cumulative over years, may cause an aging brain to function at a level that is 5 years older that it really is. The Studies at Johns Hopkins objectively measured lead absorbed over a lifetime in human bodies. Dr. Brian Schwartz remarked, "We're trying to offer a caution that a portion of what has been called normal aging might in fact be due ubiquitous environmental exposures like lead."

Like asbestos and tobacco, lead exposure may cause a latent disease which causes the brain to deteriorate at an accelerated rate. Those who worked with lead, and those who were bystanders to lead exposures on the workplace, may have a workers' compensation benefits for the mental condition related to the lead exposure.

This significant new research relating lead exposure to aging puts insurance carriers and employers at risk for both direct claims under workers compensation systems and for claims against potential third parties, ie. property owners and paint manufacturers. Unlike tobacco and asbestos, these claims may be significantly more costly since because of the long potential long payment period of benefits under workers' compensation acts and the potential legions of workers who have been exposed in directly or indirectly.

Presidential Primaries Are Defining the Future Course of Workers' Compensation Medical Benefits

Workers' Compensation medical benefits continue to be up for grabs as the US Presidential Primaries continue. The problematic compensation delivery system continues to provide little cost containment, high administrative costs and continues to drain the system by endless delay hampering the delivery of effective medical care.

A recent survey article in the New England Journal Medicine, baes on a Kaiser Family Foundation and Harvard School of Public Health review, crystallizes the political future of universal health care based upon present perceptions and future solutions. The review article analyzes multiple surveys and concludes that while polarization continues in many areas there are common grounds. It are those similarities that will define the future of medical care in the US.

While both Democrats (79%) and Republicans (52%) agree that the nation's health care system is "poor," they both Democrats (46%) and Republicans (28%) agree that it does not need to be completely rebuilt.

Both parties content that the failure to health insurance is a serious problem, Democrats (94%) and Republicans (55%) and the overwhelming majority of both parties feel that employers should not bear the responsibility for medical care, Democrats (19%) and Republicans (19%). The issue over the implementation of a universal coverage program seems to be split consistently along party lines, Democrats (79%) and Republicans (53%).

Interestingly enough very few surveyed wish to reduce Federal government programs, Democrats (5%) and Republicans (12%) which implies that a shift to a more efficient and effective Federal universal system would be warranted. Incorporating workers' compensation medical benefits into such a universally designed system would appear to be the direction where things are headed.

CMS Hammers Work Comp Carriers with Major MSP Reporting Requirements

A new law on the books introduced in the Senate on Dec. 18, 2007 and signed by the President on December 29, 2007 is going to have significant impact on how the workers' compensation system operates in the future concerning Medicare Secondary Payer (MSP) issues. Robert E. Taren, Esq. of California, a national expert on the subject, has alert me to the new legislation.

For years it has been a dirty little secret in the Workers' Compensation Industry that the insurance carriers were shifting the medical liability from themselves to Medicare. Enacted in 1980 the Medicare Secondary Payment Act has had major enforcement problems and Medicare has continued to bleed dollars. Struggling with the issue and after major reports of a failing system, Medicare in 2001 issued the famous Patel Memorandum establishing a system where the workers' compensation industry would be required to obtain Medicare consent before future medical benefits could be compromised. Medicare also established a recovery program from benefits that were paid in the past and actually the responsibility of the workers' compensation system.

Plagued by the multiple network of workers' compensation programs and reluctant players in the system to provide data, Medicare has struggled to establish a efficient program. Attorneys, claimants, insurance carriers and the agencies themselves have been reluctant to provide information to Medicare and in turn Medicare has had to seek information through convoluted reporting procedures.

A stagnating system has caused those in the workers' compensation industry to complaint that that the process is too slow and that the workers' compensation has been placed on life support systems. Additionally the major stakeholders in the system, the insurance carriers and the employers have made failed attempts to cut Medicare off at the knees by eliminating and reducing the past due recoveries and the potential future medical payments.

The Medicare, Medicaid, and SCHIP Extension Act of 2007 requires workers' compensation carriers to submit information to Medicare on a schedule prescribed by the Federal government or be subject to a $1,000 a day fine for each violation.

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.