Federal Court Rejects Review of Workers’ Compensation Judge’s Alleged Gross Judicial Misconduct

A complaint filed by an injured worker who sought Federal Court review of a NJ Workers’ Compensation Judge for alleged gross misconduct was dismissed. The Court held that it lacked the authority to review the matter.

The injured worker, who had filed an action for temporary and medical benefits before the NJ agency, was previously awarded by the Division of Workers’ Compensation 20% of the right wrist and 20% of permanent partial total for residuals of a “contusion, strain, tendonitis, and synovitis of the hand. "

In a complaint filed in the Federal Court, pro se, the injured worker alleged, “…Plaintiff asserts that the actions and inactions of the Department of Labor, the Division of Workers' Compensation, and specifically the Workers' Compensation judges violated her right to due process of law under the Constitution of the United States …..Plaintiff sought damages in the amount of $5 million.”

The complaint alleged, among other items, that, "....the Workers' Compensation hearing and trial judges engaged in gross judicial misconduct by: (1) conducting hearings in Plaintiff's absence, (2) adjourning hearings without good cause, (3) relying on fraudulent and factually inaccurate medical evidence to reach its determination, and (4) ordering an independent medical exam without Plaintiff's consent and without a court order."

Judge Greenway, rejected review of the matter based on the Rooker-Feldman doctrine. “The Rooker-Feldman doctrine, derived from Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983), bars lower federal courts from exercising jurisdiction over an action that is “the functional equivalent of an appeal from a state court judgment.” Marran v. Marran, 376 F.3d 143, 149 (3d Cir.2004). The Supreme Court restated the Rooker-Feldman doctrine in Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005).”

The court reasoned , that “Whether the Workers' Compensation judges erred in holding a hearing in Plaintiff's absence, adjourning the hearings without notifying Plaintiff, or relying on “fraudulent” evidence at trial is an issue that must be decided by the New Jersey courts through the appeals process. In short, Plaintiff failed to avail herself of the proper appellate process.”

Hogg’s v. New Jersey, 2008 WL 5272372 (D.N.J. 2008) Decided December 16, 2008.

We are moving....January 1, 2009

JON L GELMAN LLC
Attorney at Law
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CMS Regional Centers for Workers' Compensation Matters

CMS announces publishes State contact list for Workers'  Compensation matters. I its guide CMS has directed contact to 6 regional centers for all states and territories.

The contact list is now available on line.

Seeking a Waiver of CMS/MSP Overpayment Request

A formal process exits to obtain a waiver of an Overpayment Recovery request from The Center for Medicare and Medicaid Services [CMS]. If SSA advises you or your client that it has made an overpayment, ie. Medicare Secondary Payer Act [MSP] recovery request, then a waiver request maybe made. This is not to be confused with a Request for Reconsideration which should be used where the amount is disputed.

If you or your client agrees that the number is correct and the beneficiary is unable to make repayment, then a Request for Waiver of Overpayment Recovery should be filed. The form is 8 pages in length and requires the submission of a reason for the request including no fault of the beneficiary or unfairness of the request.

A financial statement is required to be submitted to CMS which requests information concerning: current rent; mortgage payments; pay stubs; tax returns; utility, medical, charge cards and insurance bills; cancelled checks; spouse and dependent(s) financial information.

CMS Publishes WCMSA Operating Rules

The Centers for Medicare and Medicaid Services (CMS) has now published a copy of its Operating Rules regarding the evaluation of set-aside proposals. CMS cited that distribution of this material may reduce review time by the agency.

The Operating Rules, an 11 page document, highlights the procedures to be utilized by CMS. They instruct CMS on how to respond to telephone quires including specific instructions such as, "Do not give recommended amounts or expected completion dates." The Rules also instruct CMS contractor to consider the Total Settlement Amount (TSA) if the claimant has multiple workers' compensation cases and suggest one Recommended MSA (RMSA). Therefore "apportioning" multiple claims into a series of cases below the threshold level will not avoid CMS scrutiny. Also legal malpractice awards based on the mishandling of the workers' compensation claims are deemed not to be payments of compensation.

The Operating Rules were previously made available under a Freedom of Information Request in October 2008. The Operating Rules have been posted in redacted form and will be updated periodically by CMS.

AIG: going, going,......?

AIG, a major workers' compensation carrier and reinsurer, is now facing another major economic loss amounting to $30 Billion, which may critically impact its ability to remain viable. In an exclusive report, Bloomberg, has reported that AIG, previously rescued by the Federal government in a $60 Billion infusion of dollars to offset troubled credit default swaps, is now facing additional losses.

Bloomberg reported, "...Wider losses may cast new doubt on whether the federal funds will be enough to prop up AIG, the biggest U.S. insurer by assets. The U.S. package almost doubled from the $85 billion approved in September to save the company from bankruptcy. Previous miscalculations about the swaps contributed to the ouster of Chief Executive Officer Robert Willumstad and his predecessor, Martin Sullivan. "

The huge insurance carrier, AIG, is considered to be a backbone of the workers' compensation insurance market and its financial instability, including insolvency, could critically shake the national patchwork of State programs. Earlier this year several State's issued statements that their insolvency funds would be a mechanism for relief should AIG fail. Declining State resources may place that solution also in jeopardy.

NJ Supreme Court Holds Electronic Insurance Policy Cancellations Invalid

In a sweeping, decision that may have impact on thousands of cases, the NJ Supreme ruled that an electronic cancellations of a workers’ compensation policies was not in compliance with the statute.

The Court ruled that the NJ Compensation, Rating and Insurance Bureau (CRIB) established a protocol called an FTP transfer to cancel policies by insurance carriers that was not in compliance with the law. NJ CRIB, the rate setting agency in NJ for workers’ compensation premiums, has been under investigative attack and legislative review. Recent legislation increased the governance to include some non-insurance affiliated members.

The NJ Supreme Court held, “…[that a] carrier does not satisfy N.J.S.A. 34:15-81 merely by transmitting electronic notice of cancellation of coverage to the Commissioner by way of the FTP. The statute clearly requires that to effectuate the cancellation, carrier also must file a statement certified by an employee that the required notice was provided to the insured.”

“In short, the Appellate Division correctly concluded that the use of the FTP system to transmit data about policy cancellations, without any accompanying certification, cannot be effective in light of the clear and unambiguous demands of N.J.S.A. 34:15-81(b).”

“… we have concluded that Sroczynski and any other party who previously raised the notice issue should be granted relief from the improper cancellations but that those cancellations that were never challenged should stand because the policyholders waived their right to do so.”

Walter Sroczynski v. John Milek (A-68/77-07) December 17, 2008

Click Here: Supreme Court of New Jersey Oral Argument May 5, 2008