The claim of an injured who brought a Federal Court action pro se for “unwarranted delays” of his NJ workers’ compensation claim was dismissed by a Federal Court. The action was based on a violation of: The Americans with Disabilities Act, the Universal Declaration of Human Rights, the Convention on the Rights of Persons with Disabilities and 42 U.S.C. sec. 1983 for violation of the First, Ninth and Fourteenth Amendments.
The worker suffered an alleged work related accident on January 29, 2008 as an employee of NJ Transit. He alleged that the Judge of Compensation from October 24, 2008 through January 7, 2010, on numerous occasions imposed delays through cancellation or postponement of his hearings.
The Court held that the Younger Abstention Doctrine, that prohibits unwarranted federal interference in an ongoing state judicial proceeding, bars the claims. Younger v. Harris, 401 U.S. 37 (1971). The doctrine is imposed when there is an ongoing state proceeding that involves an important state interest and the state proceedings afford an adequate opportunity to raise any constitutional issues. O’Neill v. City of Philadelphia, 32 F.3d 785 (3rd Cir. Pa. 1944).
The legislative intent of the Workers Compensation Act, originally enacted in 1911, was to provide a summary proceeding through an administration system utilizing the concepts of a no-fault system. The compensation program has been severely challenged over the decades by a growing burden of collateral and complex issues that now need resolution as part of the compensation process. Nationally, the state administered systems have become critically impaired by the growing state economic difficulties that have resulted in the availability of fewer resources to operate a system whose responsibilities and magnitude of demands are constantly increasing.
Townsend v. The Hon. Peter J. Calderone and the Hon. William Lake, in their official capacity as members of Labor and Workforce Development Workers’ Compensation, Civil Action No. 09-3303 (GEB), 2010 WL 19999588 (D.N.J.) Slip Copy, Unpublished Opinion.
To read more about delay and workers' compensation.
Click here for more information on how Jon L Gelman can assist you in a claim for workers' Compensation claim benefits. You may e-mail Jon Gelman or call 1-973-696-7900.
Thursday, May 27, 2010
Workers Compensation Beneficiary Challenges to ERISA Setoff Allowed
A US District Court has held that a workers’ compensation claimant is allowed to go forward with his challenge of a delayed setoff of workers’ compensation benefits. The ERISA plan administrator originally, in October 2004 determined that no offset of workers’ compensation benefits would be permitted based upon a specific loss date. In December 2007 the beneficiary was by the plan administrator that the date offset had been changed and that an offset would be required.
The injured worker instituted the action claim that the plan was estopped by the late chance of plan determination of the disability date.
Luppino v. Sedwick Claims Management Services, Inc., et al., Civil Action No. 08-cv-5315 (DMC-MF), 2010 WL 1999316 (D.N.J.), Slip Copy, Unpublished Opinion.
To read more about offsets and workers' compensation.
Click here for more information on how Jon L Gelman can assist you in a claim for workers' Compensation claim benefits. You may e-mail Jon Gelman or call 1-973-696-7900.
Click here for more information on how Jon L Gelman can assist you in a claim for workers' Compensation claim benefits. You may e-mail Jon Gelman or call 1-973-696-7900.
Friday, May 21, 2010
Cell Phone Use and Occupational Cancer: The Jury is Still Out
Cell phone use has disturbingly has become ingrained in the work environment. Distracted driving caused by cell phone use has been identified as major cause of accident.
Unfortunately, if there is further delay in reaching a definitive conclusion on the association of cancer with cell phone use, then any necessary precautions will not be invoked and potential malignancies will continue.
To read more about cell phone use and occupational accidents.
Click here for more information on how Jon L Gelman can assist you in a claim for workers' Compensation claim benefits. You may e-mail Jon Gelman or call 1-973-696-7900.
Wednesday, May 19, 2010
Libby Care Program Begins Enrollment Process
The new Federal healthcare program for those exposed to asbestos in Libby MT has now begun registration of citizens. The new program will provide Medicare benefits to those who were exposed to asbestos, a known carcinogen.
The occupational healthcare program embodied in the recently enacted legislation has the potential for being the most extensive, effective and innovated system ever enacted for delivering medical care to injured workers. The “Libby Care” provisions, and its envisioned prodigies, will embrace more exposed workers, diseases and geographical locations, than any other program of the past. Potential pilot programs will now be available to injured workers and their families who have become victims of the failed workers’ compensation occupational disease medical care system.
The occupational healthcare program embodied in the recently enacted legislation has the potential for being the most extensive, effective and innovated system ever enacted for delivering medical care to injured workers. The “Libby Care” provisions, and its envisioned prodigies, will embrace more exposed workers, diseases and geographical locations, than any other program of the past. Potential pilot programs will now be available to injured workers and their families who have become victims of the failed workers’ compensation occupational disease medical care system.
Heart Disease Associated With Overtime Work
New studies just published establish the causal relationship of overtime work with an increased risk of heart disease resulting in a greater risk of cardiovascular death, nonfatal myocardial infarction and angina. Workers who put in just one or two extra hours a day did not appear to have an elevated risk of heart disease events, the researchers reported online in the European Heart Journal.
The study concludes that overtime work is related to increased risk of incident CHD independently of conventional risk factors. These findings suggest that overtime work adversely affects coronary health.
A major step towards liberalizing the Workers' Compensation Act relating to cardiovascular claims occurred in 1962 in the matter of Dwyer v. Ford Motor Co., 36 N.J. 487 (NJ 1962). Gerald E. Dwyer was 41 years of age and was employed at the Ford Motor Company for a period of seven (7) years doing factory laboring work. After several incidents of chest pain and numbness in his left hand requiring hospitalization, lost time, and medication, he returned to work to perform activities similar to those he had previously engaged in, including the movement of materials. In awarding Workers' Compensation benefits, the court indicated that the effort need not be a single incident, but may be a series of efforts which in combination, if related to the employment, result in a compensable event. The fact that the heart was seriously diseased prior to the fatal attack did not preclude the awarding of benefits because of the premise that the employer takes the employee as he is, with no standard of health required.
In Fiore v. Consolidated Freightways, Inc. 140 N.J. 452 (NJ 1995), the Supreme Court unanimously recognized that an occupational heart condition is compensable under the Workers' Compensation Act. While recognizing that diseases are complex and their causes multi-factoral, the court realized that experts can disagree on the relative roles of an occupational exposure and personal-risk factors in causing a coronary condition.
In an editorial title, "Overtime is Bad for the Heart," the European Heart Journal declares that the study will have major implication on employers who will have to reconsider the risks of overtime and compensable heart disease.
Monday, May 17, 2010
Getting Tattoos Evidences Total Disability
An injured worker, who obtained tattoos to camouflage surgical scars of 6 surgical interventions, was held to be totally and permanently disabled. The evidence, presented at the time of trial, was found by the Judge of Compensation to provide a basis for an increase in the worker’s psychiatric disability that rendered the employee unable to work.
The worker testified that the side effects of a laundry list of medications that manifested low stamina and dry eyes. The drugs included:
• Buspar, an anti-anxiety medication, three times a day
• Nortiptyline, and anti-pain and antidepressant medication, three times a day
• Oxycontin, a pain medication, four times a day
• Topomax, a seizure medication used for pain relief, twice a day
• Methodone, a pain medication, four times a day
• Wellbutrin, an antidepressant, two to three times a day
• Bethanechol, a medication for dry mouth
• Prevacid, a stomach medication
The appellate forum affirmed the decision of the trial judge, Stephen Tuber, who in an extensive written decision rejected the opinions of the respondent’s medical experts, Drs. Galina and Effron in favor of that of the petitioner’s expert, Dr. Peter Crain.
Dr. Crain testified that the reason why the injured worker obtained the tattoos made “psychological sense.” The reviewing form held that “…She explained that she obtained tattoos to help her deal with her "suicidal ideation" and to camouflage the scars she bore from the multiple operations.”
Kiessling v. Prudential Insurance Company, NO. A-3051-08T23051-08T2, 2010 WL 1928711 (Decided May 10, 2010)
To read more about psychiatric disability and workers' compensation click here.
Click here for more information on how Jon L Gelman can assist you in a claim for workers' Compensation claim benefits.
The worker testified that the side effects of a laundry list of medications that manifested low stamina and dry eyes. The drugs included:
• Buspar, an anti-anxiety medication, three times a day
• Nortiptyline, and anti-pain and antidepressant medication, three times a day
• Oxycontin, a pain medication, four times a day
• Topomax, a seizure medication used for pain relief, twice a day
• Methodone, a pain medication, four times a day
• Wellbutrin, an antidepressant, two to three times a day
• Bethanechol, a medication for dry mouth
• Prevacid, a stomach medication
The appellate forum affirmed the decision of the trial judge, Stephen Tuber, who in an extensive written decision rejected the opinions of the respondent’s medical experts, Drs. Galina and Effron in favor of that of the petitioner’s expert, Dr. Peter Crain.
Dr. Crain testified that the reason why the injured worker obtained the tattoos made “psychological sense.” The reviewing form held that “…She explained that she obtained tattoos to help her deal with her "suicidal ideation" and to camouflage the scars she bore from the multiple operations.”
Kiessling v. Prudential Insurance Company, NO. A-3051-08T23051-08T2, 2010 WL 1928711 (Decided May 10, 2010)
To read more about psychiatric disability and workers' compensation click here.
Click here for more information on how Jon L Gelman can assist you in a claim for workers' Compensation claim benefits.
Delays Continue to Soar for Social Security Disability Determinations
The number of pending Social Security disability claims continues to increase. Congressman Rob Filner of California has introduced legislation to federalize the State Disability Determination Services (DDS).
Filner, at a recent joint hearing of the Ways and Means Committee testified the backlog of Social Security Disability claims is continuing to mount. In California alone, 40,000 cases were involved in the backlog and 1,000 new cases were being added each month. State imposed furloughs have complicated the process even further.
To read more about social security disability click here.
Click here for more information on how our office can assist you in a Social Security disability application/appeal.
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