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(c) 2010-2024 Jon L Gelman, All Rights Reserved.

Tuesday, January 26, 2010

A Once-In-A-Generation Chance

The NY Times today called for passage of the Senate version of health care reform and salvage the opportunity for important change in the nation’s health care plan. More emphatically, the Senate version provides an opportunity for change in the way the nation’s century-old workers’ compensation system provides for the delivery of medical care in occupational disease claims.

The paper’s editorial rightly observes that one botched election in Massachusetts, a State that has already met the issue of universal health care, should not encumber the rest of country with horrors of a failed system. The Senate version of health care reform contains an opportunity to experiment and explore the opportunities on embracing the delivery of medical care and medical monitoring into a coordinated and national framework under the Medicare program. In the end it will be able to establish a unified epidemiological database to help prevent and treat occupational illnesses and lead the nation to a safer and healthier work environment.

The efforts of Senator Mat Baucus (D-MT) has made to craft an occupationally health care program has the potential for being the most extensive, effective and innovative system ever enacted for the delivery of medical care to injured workers. Libby Care [see Patient Protection and Affordable Care Act Sec. 10323 pp. 2222-2237] , and its envisioned prodigies, will embrace more exposed workers, diseases and geographical locations than any other program of the past. An ancillary benefit will be the integration of Centers for Medicare and Medicaid Services (CMS) and Centers for Disease Control (CDC) for the advancement of greater worker safety through organized data collection and research.

Caring for those who have been the victims of occupational disease has been an illusive goal of the nation’s patchwork of workers’ compensation systems for over a decade. Occupational diseases were a supplement to the compensation system that developed when Industry tried to shield itself from the emerging economic liabilities that silicosis was generating.

History reflects that the system just didn’t work. The longest running tort, asbestos reacted illness, plagued the workers’ compensation system and produced a  plethora of problems that only created more delay and denial of medical care for injured workers.

Economically the costs of direct costs for occupational illnesses and diseases continue to soar. Unfair cost shifting continues. A study in the year 2000 indicated that direct costs amounts to $51.8 Billion per year for hospitals, physicians and drugs. Workers’ compensation was reportedly covering only 27% of the costs and taxpayers were sharing un even share of the burden. The costs of occupational disease amounted for 3% of the gross national product.

The problems of under-reporting of occupational illnesses and disease even compound the reporting the true reality of the issue even further. The recent NY Times and Nebraska Appleseed investigative reports indicate that true numbers are hard to come by because of the fear and intimidation injured employees suffer in reporting claims.

Since the enactment of workers’ compensation in 1911, there has never been a greater opportunity to provide meaningful change to make the workplace healthier and safer. Congress and the President Obama should take advantage of this one-in-a-lifetime chance and make the Senate version of health care reform the law of the nation.


Monday, January 25, 2010

NJ Workers' Compensation Revenue Bills to be Shelved

Bolstered by a united chorus of favorable comments at recent NJ Legislative hearings, the transition team of NJ Governor Christie has urged opposition to any new benefit increases for workers' compensation. The hearings were in response to a series on investigative articles that appeared in The Star Ledger alleging problems existed in the present system.

The transition team has made the following recommendations:

Oppose A-5181 (Egan, Evans) / S-639 (Sarlo, Gill): Increases workers' compensation for loss of hand or foot.
Impact: $20 - $25 million in increased costs to the system.

Oppose A-2846 (Greenstein, DeAngelo) / S-785 (Sweeney, Madden): Extends supplemental disability and dependent benefits for post-1979 claims.
Impact: These added benefits would be paid entirely by employers through an increased surcharge in their Workers' Compensation policy. An analysis by the Office of Special Compensation Funds within the Department of Labor and Workforce Development projects the annual cost to New Jersey employers at $125 million with the potential to be significantly higher if this law change caused New Jersey to lose its "reverse offset" benefit from the Social Security Administration.

Oppose S-1982 (Sweeney): Establishes an ombudsman for injured workers in, but not of, the Department of Labor and Workforce Development.
Impact: This would create an entirely new department within the State government with its incumbent salary and administrative costs. This would also duplicate many of the responsibilities now handled effectively by the Division of Workers' Compensation.

Click here to read more about workers' compensation reform efforts.

NJ Second Injury Fund Is In Financial Trouble

Governor Christie's transition team reported that the NJ Second Injury Fund (SIF) is insolvent. Several options were presented, if the SIF is going continue to operate.


The SIF was established to compensate totally disabled workers for their pre-existing disabilities shield the last employer from the total cost of the last compensable injury. The was enacted by NJ prior to the existence of the American With Disabilities Act (ADA) and theoretically was to encourage employers to hire handicapped workers.


Since the enactment of the ADA many states have felt that their was no need to continue the SIFs and the growing trend is to eliminate them. The SIF in NJ currently  supports the operating funds on the NJ Division of Workers' Compensation.


The transition report concludes:


"The SIF has been experiencing cash flow problems recently due to diversions from the fund in 2003 and 2004 and also as a result of legislative changes made in 2000 and 2003. Prior to 2000, the assessment against employers and insurance companies that finance the Division of Workers Compensation was determined by estimating the costs incurred to run all programs (including benefits) and multiplying that by 150%. In 2000, this was changed to 125% of estimated benefits and 100% of estimated administrative costs. These changes initially did not cause any significant cash flow issues; however, when the State began diverting money the combination of these factors resulted in an insufficient amount of cash being collected through assessments.

Solutions: Due to the legislative changes to the assessment calculations, the fund will never be able to restore solvency. The only solution requires legislative approval to phase out the $40 million “add back” and adjust the $5 million fund balance cap to a percentage of the prior years’ benefit payments. The only other option would be to find a supplemental appropriation to replenish the diverted money from FY2010."



Historically, surpluses in the NJ SIF have been raided by the Legislature and Governor and the funds diverted to the general treasury of the State. Like other NJ agencies, the NJ Division of Workers' Compensation has been challenged by mandated furloughs and short staffing issues. The fiscal problems of the SIF have compounded Medicare delays in the workers' compensation program in dealing with catastrophic and serious disability claims.

Click here to read more about The Second Injury Fund.

Sunday, January 24, 2010

Requests to Preserve Evidence Must be Timely

The failure to act swiftly in both requesting preservation of evidence, as well as inspecting the physical evidence of a work related accident, can lead to a waiver of a cause of action for spoliation of evidence.  An attorney for an injured worker quickly requested that a potentially defective forklift be preserved, but did not hastily have an expert conduct a physical inspection.


Ciapinski v Crown Equipment Corp., 2010 WL 183903 (N.J. App. Div.) Decided Jan. 21, 2010.

Click here to read more about evidence and workers' compensation.

Saturday, January 23, 2010

Perception of Claimant Insuffient to Meet Burden of Proof

The Chief Financial Officer of a day care center was denied her caim for psychological disability resulting from a claim of a heavy work load. The Court held the cause was not peculiar to her employment, that there was a lack of supporting objective mendical evidence, and that the underlying, pre-existing disability from childhood resulting in a compulsive disorder was the cause of the condition.

K.S. v Sunnydays Early Childhood Services, 2010 WL 173531 (N.J. Super.A.D.) decided January 20, 2010.

Click here to read more about hostile work environment claims and workers' compensation.

Friday, January 22, 2010

Workers Compensation Law Firm Absolved of Legal Malpractice for Negligent Advice

A NJ workers' compensation firm, successor to another firm representing the claimant in a workers' compensation claim,  has prevailed on appeal in defending against charges of  providing negligent advice to an injured worker. The successor firm was joined as a third-party defendant in a legal malpractice claim where the claimant alleged that he should have been furnished advice about his claim for retirement benefits.

While the court reasoned that the injured worker may have had a viable cause of action against the law firm, the mechanism of a third-party joinder was not an effective method of bringing a claim. The withdrawing defendant-law firm, that had previously presented the worker, was not entitled under the law to join the successor firm for contribution. The court concluded, "...that attorneys in this situation cannot be characterized as joint tortfeasors and that a successor attorney owes no duty to a predecessor attorney to correct the predecessor's errors."

Summary Judgement was granted the third-party defendant firm and it was awarded sanctions $16,622.49) and expenses ($15,555.20) against the defendant firm for filing a frivolous claim.

Arthur v Klitzman & Gallagher v. Ansell, et al. and Schebell, et al., 2010 WL 163194 (N.J.Super.A.D.) Decided November 23, 2009

Click here to read more about workers compensation.

Thursday, January 21, 2010

Silica Workers Prone to Fungal Infections

A just release study reports that silica workers have a greater risk of contracting fungal infections and dying from them:


"We found that persons who die with silicosis are more likely to die with pulmonary mycosis than are those who die without pneumoconiosis or who die with the more common pneumoconioses. Insofar as silica dust impairs cellular defense, silica-exposed workers (without silicosis) may be at increased risk for fungal infections, as they are for mycobacterial infections."


Concurrent Silicosis and Pulmonary Mycosis at Death,Yulia IossifovaRachel Bailey, John Wood, and Kathleen Kreiss, DOI: 10.3201/eid1602.090824 Emerg Infect Dis. 2010 Feb


Click here to read more about silicosis litigation.