Workers' Compensation

Thursday, February 17, 2011

A National Celebration of the Workers' Compensation Centennial

Guest Blog by Alan S. Pierce

The year 1911 saw the enactment of this country’s first state-based Workers’ Compensation laws. The effects of the Industrial Revolution began some decades earlier and made it necessary to change the way the costs associated with workplace injuries and deaths were compensated.

Wisconsin claims credit for the first constitutional statute (earlier attempts failed constitutional muster) with Massachusetts and nine more states not far behind. Thirty-six other states followed by the end of the decade.

So it’s no surprise that 2011 will see various commemorations of this social, economic, and legal milestone.

Here in Massachusetts, generally acknowledged as the nation’s second state to pass a Workers’ compensation statute (signed into law by Governor Eugene H. Foss, July 28, 1911) plans have been underway to mark this auspicious occasion.

On April 7, 2011, Massachusetts will be holding a centennial commemoration that has attracted interest across the country.

The American Bar Associations's (ABA) Section on Tort, Trial and Insurance Section (TIPS) and the Workers’ Compensation and the Section of Labor and Employment Law (LEL) has joined in the planning of this hallmark event, and we, along with the Labor and Employment Law Committee, will be holding The 2001 Midwinter Seminar & Conference in Boston April 7-9, 2011 to coincide with the Massachusetts event.

Before detailing our plans in Massachusetts, it is worthwhile to briefly examine the historical origins of a concept of a no-fault-based system of compensating for job-related injuries and deaths. Who then can lay claim to the first model of a modern Workers’ Compensation system?

Early History of Workers' Compensation

According to Gregory Guyton in A Brief History of Workers’ Compensation, Iowa Orthopedic Journal, 1999, in approximately 2050 B.C., in ancient Sumeria (now Iraq), the law of Ur contained in Nippur Tablet No, 3191 provided for compensation for injury to a worker’s specific body parts. Under ancient Arab law, the loss of a thumb was worth one-half the value of a finger. The loss of a penis however was compensated by the amount of the length lost. The manner of estimating that however, is a fact lost to history. Similar systems existed and are contained in Hammurabi’s Code in 1750 B.C. as well as in ancient Greek, Roman, and Chinese law. The common denominator in most if not all of these early schemes was the compensation for “schedules” for specific injuries which determined specific monetary rewards. This concept of an “impairment” (the loss of function of a body part) as distinct from a “disability” (the loss of ability to perform specific tasks remains with us today

Jumping ahead a couple of thousand years.

Stephen Talty in Empire of Blue Water: Captain Morgan’s Great Pirate Army, Crown Publishing, (2007) describes the legendary English privateer Capt. Henry Morgan (of the rum company fame) who in the mid-1600s had a ship’s constitution that provided for the “recompense and rewards each one ought to have that is either wounded or maimed in his body, suffering the loss of any limb, by that voyage.” The loss of a right arm was worth 600 pieces of eight; the left arm:500; right leg:500, left leg: 400, and so forth.

Today’s workers’ compensation laws owe their origin to Prussian Chancellor Otto von Bismarck who in a political move to mitigate social unrest, created the Employer’s Liability Law of 1871. In 1884 he established Workers’ Accident Insurance. This program not only provided monetary benefits but medical and rehabilitation benefits as well. The centerpiece of von Bismarck’s plan was the shielding of employers from civil lawsuits; thus the exclusive remedy doctrine was born.

Centennial Commemoration in Massachusetts

Plans to commemorate this centennial originated with the Massachusetts Academy of Trial Attorneys, which for the past decade hosted an annual Workers’ Compensation Bench/Bar Dinner.

On April 7, 2011, the Massachusetts Academy of Trial Attorneys, the Massachusetts Bar Association, and the Department of Industrial Accidents will host a centennial commemoration of workers’ compensation, not only in Massachusetts but the country as well.

The focus will be on the recognition of 100 years of workers’ compensation remembering how this unique area of law originated and developed with a look toward the future and examining forces at work that may change how workplace injuries are compensated. A planning committee comprised of representatives of the claimant and insurer bar, Department of Industrial Accident representatives, and other stakeholders in the system have been meeting periodically for almost three years.

Our plans have three major components: a symposium featuring four of the nation’s leading scholars of workers’ compensation as an economic, labor relations, and legal concept; a book covering the history of the Massachusetts Industrial Accident Board, and dinner bringing everyone together at the Rose Kennedy Ballroom at the Intercontinental Hotel in Boston. The other bar groups coming to Boston to join us will be holding their own programming, including three mornings of informative continuing legal education program as part of the ABA TIPS/Workers’ Compensation Committee and Labor and Employment Law Committee’s annual midwinter meeting.

The ABA’s College of Workers’ Compensation Lawyers will also hold its annual dinner inducting the 2011 Class of Fellows on Saturday, April 9, 2011.

Symposium

The symposium to be held during the afternoon of April 7, 2011, will be chaired by Prof. Emeritus John Burton, perhaps the leading authority on workers’ compensation, both nationally and internationally. Burton, who has taught economics and labor relations at Rutgers and Cornell Universities, was President Nixon’s appointed Chair of the 1972 National Commission on Workers’ Compensation which resulted in recommendations responsible for the extended period of major workers’ compensation reforms that closed out the last quarter of the 20th century.

Prof. Burton has invited Emily Spieler, Dean of Northeastern University Law School, Dr. Richard Victor, Executive Director of the Workers’ Compensation Research Institute, and Prof. Les Boden of Boston University to join him. Among the subjects to be explored are a discussion of federal and state responsibility for workers’ compensation; the extent of coverage of injuries and disease; the impact of changes in healthcare and what “universal” healthcare may mean for workers’ compensation systems; adequacy and equity of benefits among other topics.

Book on The Massachusetts Industrial Board

Attorney and TIPS member, Joseph Agnelli Jr. of the Keches Law Group, has authored The “Board” A History of the First Century of the Massachusetts Industrial Accident Board and the Workers’ Compensation Act.

Agnelli’s book contains a comprehensive history of workers’ compensation in Massachusetts focusing on how our Industrial Accident Board was originally organized. The book profiles many of the fascinating commissioners, judges, and attorneys who help shape the practice of workers’ compensation law at the Department of Industrial Accidents.

The book also features a copy of the Workers’ Compensation Statute signed into law by Governor Eugene H. Foss on July 28, 1911; a copy of the first insurance policy (policy no. 1) issued to the Everett Mills by the Massachusetts Employee’s Insurance Association (M.E.I.A.), the entity that was to become Liberty Mutual Insurance Company.

According to Agnelli’s forward: “When pondering a suitable way to commemorate such a momentous event, it became clear that something needed to be written about the countless numbers of individuals who have played a role in its long history, to the legislators who were instrumental in its passage of 1911, the members of the first Industrial Accident Board in 1912, the men and women who have served as either Commissioners or Administrative Judges on the Board, those who pioneered the early practice before the Board, and to past and current personalities, this book is a tribute to their efforts in perpetuating the spirit of the Act.”

Symposium Dinner

The Symposium Dinner on Thursday evening, April 7, 2011, will be held in a remarkable venue, a ballroom that can accommodate up to 700 people. Early reservations are a must. To purchase dinner tickets or for further information, contact terri@alanspierce.com OR contact Alan Pierce at 978-745-0914.

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Alan S. Pierce practices in Salem Massachusetts. He has authored and edited several publications including Massachusetts Workers' Compensation Law, Workers' Compensation and the Law, and Workers' Compensation: Issues and Answers. Alan currently serves as chair-elect of the American Bar Association workers' compensation section and will be the national chairperson in 2010. He is a charter Fellow in the College of Workers' Compensation Lawyers.

Other Resources
Registration Information: 2011 Midwinter Meeting
Program Agenda: 2011 Midwinter Meeting

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Wednesday, February 16, 2011

The James Zadroga 9/11 Health & Compensation Act of 2010

It Is A Guest Blog Featuring Troy G. Rosaco.......

On January 2, 2011, President Obama signed the James Zadroga 9/11 Health and Compensation Act (“Zadroga Act”) providing a total of $4.3 billion in health benefits and financial compensation for victims, responders, and other harmed by the attacks of September 11th and its aftermath.

The Zadroga Act accomplishes two goals important for individuals who suffered injuries or illnesses related to either the actual attacks or the subsequent cleanup.. First, Title I of the Zadroga 9/11Act establishes a comprehensive health plan to monitor and treat injuries suffered by first responders and survivors—including firefighters, police officers, EMT’s, rescue workers, construction workers, cleanup workers, local residents, local area workers, and school children—as the result of the exposure to toxic dust and debris around Ground Zero and other specified areas. Second, Title II of the Zadroga 9/11 Act reopens and expands a number of elements of the September 11th Victim Compensation Fund of 2001.

Title I - Health Benefits

There are a number of health programs funded under the Zadroga Act. The new law establishes a new WTC responders medical monitoring and treatment program to provide medical evaluation, monitoring, and treatment benefits (including prescription drug benefits) to emergency responders and clean-up workers who were impacted by the WTC attack on September 11th. The benefits are delivered through medical “Centers of Excellence”.

The Zadroga Act also establishes a medical monitoring and treatment program to pay for medical monitoring for WTC responders who performed rescue, recovery, demolition, debris clean-up, and related services. If the responder meets the eligibility criteria and is accepted into the program, the responder is entitled to receive treatment if two conditions are met: (1) the condition is among those identified WTC-related listed conditions including a number of “aerodigestive” disorders, listed mental health conditions, and musculoskeletal disorders occurring during the rescue or recovery efforts, and (2) a physician at a Clinical Center of Excellence determines that a condition was caused or contributed to by exposure to airborne toxins, other hazards, or adverse conditions resulting from the September 11th attacks.

The Zadroga Act also establishes a “survivor program” for non-responders who lived, worked, went to school or were otherwise in a defined area of lower Manhattan (and parts of Brooklyn) for a certain time period after the September 11th attacks. The criteria and medical eligibility determinations for survivors are the same as those that apply to the responders program. The survivor program is the “secondary payor” to any applicable public or private health insurance for the conditions that are not work-related.

Title II - The Re-Opened Victim Compensation Fund of 2001

The Zadroga Act also reopens and significantly expands a number of aspects of the September 11th Victims Compensation Fund of 2001. The Zadroga Act amends the original September 11th Compensation Fund by extending the time in which a claim may be filed for a period of five years from the date that Special Master (who has not yet been appointed) updates the regulations under the Zadroga 9/11 Act. The Victims’ Compensation Fund was originally closed on December 22, 2003.

The Zadroga Act also expands the 9/11 Victim Compensation Fund (VCF) in several important respects. The original VCF provided a right to file a claim only to those individuals injured while “present at the site” of the disasters or in the “immediate aftermath” of the September 11th attacks. “Present at the site” was originally defined by the VCF as physically present at the time of the crashes in the buildings, portions of the buildings that were destroyed as a result of the airplane crashes or any contiguous area that was sufficiently close to the crash site that there was a demonstrable risk of physical harm from the impact of aircraft or any subsequent fire, explosions, or collapse of buildings. As a result, rescue and clean-up workers injured at the buildings or areas not adjacent to the site were not originally eligible to file a claim as they were not “present at the site”.

The original VCF regulations defined the “immediate aftermath” of the crashes for claimants, other than rescue workers, as from the time of the crashes for a period of 12 hours after the crashes. For rescue workers the period of time defined as the “immediate aftermath” was extended to include the period from the crashes until 96 hours after the crashes. Again, rescue and recovery workers who arrived more than 96 hours after the crash and were injured were excluded from filing a claim under the original VCF.

The Zadroga Act expands the definition of “immediate aftermath” to well beyond the 12 and 96 hour post-crash periods defined in the original law. “Immediate aftermath” is redefined by the Zadroga Act to mean “any period beginning with the terrorist-related aircraft crashes of September 11, 2001, and ending on May 30, 2002.” The expansion of what was considered the “immediate aftermath” of the terrorist attacks significantly broadens the pool of claimants in the VCF to include the rescue, construction, an other clean-up workers who suffered injures during the ongoing rescue and clean-up efforts that persisted for many months after the September 11th attacks.

The Zadroga Act also expands definition of the “crash site.” The term “9/11 crash site” is defined by the Zadroga Act to mean: ‘‘(A) the World Trade Center site, Pentagon site, and Shanksville, Pennsylvania site; (B) the buildings or portions of buildings that were destroyed as a result of the terrorist-related aircraft crashes of September 11, 2001; (C) any “area contiguous to a site of such crashes that the Special Master determines was sufficiently close to the site that there was a demonstrable risk of physical harm “ resulting from the impact of the aircraft or any subsequent fire, explosions, or building collapses (including the immediate area in which the impact occurred, fire occurred, portions of buildings fell, or debris fell upon and injured individuals); and (D) any area related to, or along, “routes of debris removal”, such as barges and the Fresh Kills landfill. on Staten Island.

One major issue that is unclear at the time of this writing is whether the residents, workers, and others in lower Manhattan who were sickened by the toxic fallout from the 9/11 attacks are eligible claimants under the VCF. The broadened language of the Zadroga Act amendments would suggest that the area residents and nearby workers are eligible claimants under the reopened VCF.

Within two weeks of the signing of the of Zadroga Act, however, Senator Kirsten Gillibrand’s staff announced that lower Manhattan residents and workers were not covered by the Fund, only to be contradicted by Rep. Jerrold Nadler (a co-author of the Zadroga Act) the next day, declaring that such area residents/workers were in fact covered. Resolution of this issue will need to be decided by the Special Master and the new rules implemented under the Zadroga Act. As of February 11, 2011, no Special Master has been appointed,

The Zadroga Act places sharp limitations on attorneys’ fees. The Zadroga Act amended the original Victim Compensation Fund law to place a “cap on attorneys’ fees of no more than ten percent” of an award made on a claim. The ten percent attorneys’ fee cap is further limited by fees previously received by attorneys representing VCF claimants who were also part of any settled civil action, including the recently settled litigation in the Southern District of NewYork. The Zadroga Act also prohibits an attorney from charging a legal fee in the case of an individual who was charged a legal fee in connection with the settlement of a prior civil action, except if the legal fee charged in connection with the settlement of a civil action is less than 10 percent of the aggregate amount awarded by a subsequent Victim Compensation Fund.

Bottom Line - attorneys who represented the over 10,000 9/11 responders in the recently settled actions against New York City cannot “double dip”. If their fees in the NYC litigation were higher than the 10% attorney fee cap in the Zadroga Act, they cannot charge any fee for the Zadroga VCF claim. New attorneys who represent the claimant solely in the Zadroga VCF claim are also limited by the 10% aggregate cap, which may dissuade some attorneys from taking claims where claimants previously paid attorneys a 25% fee under the NYC settlements. In some cases, the result might be that the attorney fee on the Zadroga Victim Compensation Fund claim could be significantly less that 10%, and could be offset completely.

Conclusion

The passage and enactment of the James Zadroga 9/11 Health and Compensation Act of 2010 was a huge victory for 9/11 first responders and survivors. Most importantly, it provides much needed medical monitoring and treatment to thousands of individuals who are now sick as a result of the 9/11 attacks and its aftermath. We are all aware now of the “toxic soup” that enveloped the area surrounding Ground Zero.

The Zadroga 9/11 Act also provides a second chance for many individuals, who were either ineligible or became sick after the closure of the original Victim Compensation Fund, to apply for a monetary award for their damages. As of February 11, 2011, President Obama has not selected the new Special Master of the Fund.

The original Special Master of the VCF was Kenneth Feinberg, who is now administering claims related to the BP Gulf oil spill. Mr. Feinberg has offered to act as Special Master in the reopened VCF on a pro bono basis. The Special Master must issue new regulations on Fund procedures within 180 days of enactment of the Zadroga 9/11 Act. Once these regulations are issued, attorneys will be in a much better position to counsel our clients on their rights and potential benefits under the new Zadroga Act.
......
Troy G. Rosasco is a Senior Partner at Turley, Redmond, Rosasco & Rosasco, LLP with offices in Nassau, Suffolk and Queens. He has been representing 9/11 victims and first responders since soon after the September 11th attacks. He authors the nationally recognized New York Disability Law Blog.

Daniel J. Hansen is a personal injury trial attorney with his own practice and offices in the Woolworth Building in Manhattan. They are jointly handling 9/11 Victim Compensation Fund claims.

Court Holds Parties May Assert A Third Party Lien Against Lump Sum Payment

A NJ Court of Appeals has held that parties may stipulate, as part of a workers' compensation settlement, that a third party lien may be asserted against a lump sum payment. A workers' compensation settlement contracted into by the parties, and approved by a Judge of Compensation, supersedes the statutory prohibition against the assertion of a lien on such proceeds.

Statutorily workers' compensation settlements made pursuant to NJSA 34:15-20 are immune form the assertion of a third party recovery lien made in accordance with a settlement under NJSA 34:15-40. As part of the workers' compensation settlement, the parties stipulated to the assertion of a third party recovery lien, and the Appellate Court held the contractual agreement made between the parties to be valid.

"The resolution of plaintiff's claims, including retention of the Section 40 lien, was negotiated as a material part of the settlement. A settlement agreement between parties in litigation is a contract. Nolan v. Lee Ho, 120 N.J. 465, 472 (1990) (citing Pascarella v. Bruck, 190 N.J.Super. 118, 124- 25 (App.Div.), certif. denied, 94 N.J. 600 (1983)). Accordingly, American Style's right of reimbursement on the $50,000 is contractual rather than statutory.

"Significantly, Calle acknowledged under oath his understanding that a Section 40 lien amount of $50,000 of the money ... [was] reservable by the insurance company as pay back for authorized treatment. This money will come from the part of the case that was handled by [the Law Firm in the Superior Court action] should they have a financial recovery.

"The parties relied upon that understanding when they entered into the settlement agreement. It would be inconsistent with the agreement and unjust to permit Calle to repudiate that understanding after the fact. See Knorr v. Smeal, 178 N.J. 169, 178 (2003) (observing that estoppel "is designed to prevent injustice by not permitting a party to repudiate a course of action on which another party has relied to his detriment").

The effect of this ruling will ultimately dilute, yet again, the value of a workers' compensation award globally. Claimants and their attorneys will be hard pressed to avoid the the inclusion of the stipulated waiver in Section 20 settlements since the alternative route would be the trial of a claim where the statutory lien mandated under NJSA 34:15-40 would be applied.

DANIEL AQUILINO CALVA CALLE Administrator ad prosequendum of the Estate of CHRISTIAN DANIEL CALVA SIGUENA, Deceased and DANIEL AQUILINO CALVA CALLE individually v. HITACHI POWER TOOLS, AMERICAN STYLE CONSTRUCTION, INC HITACHI KOKI, USA , LTD., DOCKET NO. A-1015-09T1--- A.3d ----, 2011 WL 499345 (N.J.Super.A.D.)

Tuesday, February 15, 2011

Straightening Out What is Formaldehyde

The fragrance and cosmetic industry seems to be having a difficult time in straightening out its own product line after being the direct and indirect target of claims from injured workers and consumers. National Public Radio [NPR] reports today that the attempt to remove formaldehyde, a know carcinogen, has been met with new and potentially toxic results.

The Hollywood rage, that is frizz-free hair, has created concern in Washington and in courtrooms as to the toxicity of the beauty products being sold and utilized. A scientist, Sharon Neufeldt, has raised concern the the new products being market maybe no better than the allegedly toxic old products.

Agenda Announced for Public Meeting on Implementation of the Zadroga 9/11 Health and Compensation Act

An agenda for the a public meeting on March 3, 2011 to discuss the implementation of the James Zadroga 9/11 Health and Compensation Act of 2001 has been published by The National Institute for Occupational Safety and Health (NIOSH) of the Centers for Disease Control and Prevention (CDC). The purpose of the meeting is to allow interested parties provide the agency with their perspectives to assist in developing a plan to meet the requirements of the Act.

In December 2010 US Congress passed and President Obama signed, The World Trade Center Health Program, marking yet another advance on the path to federalize the nation's workers' compensation program. The Federally funded and administered program provides for medical evaluation and treatment of occupational medical conditions that have been neglected or ignored by other benefit programs.

The meeting will begin with a brief introduction by Federal officials, followed by presentations from attendees who register to speak. Each speaker will be limited to five minutes in order to maximize the number of presentations during the meeting. If all registered presentations are made before the end time, there will be an open session to receive comments from anyone who has not signed up on the speaker registration list who may wish to speak. Open session comments will also be limited to five minutes per person. After the last speaker or at 4:45 p.m., whichever occurs first, the meeting will be adjourned.

The meeting is scheduled for Wednesday, March 3, 2011 9 a.m to 4:45 p.m. EDT. The meeting will take place at the Jacob Javits Federal Building, 26 Federal Plaza, Broadway entrance, 6th Floor, Broadway entrance, 6th Floor Conference Room A/B, New York, NY 10278. While the meeting is open to the public, limited only by the space available. It is anticipated that the space can hold only 300 people. The USA toll-free dial-in number is 800–619–8873; pass code 8693287.

The James Zadroga 9/11 Health and Compensation Act of 2010 established a program known as the World Trade Center (WTC) Health Program within the US Department of Health and Human Services (HHS). The Act includes:

1. Medical Monitoring for Responders

2. Initial Health Evaluation for Survivors

3. Follow-up Monitoring and Treatment for WTC-Related Health Conditions for Responders and Survivors

4. Outreach

5. Clinical Data Collection and Analysis

6. Research on Health Conditions

For over 3 decades the Law Offices of Jon L. Gelman 1.973.696.7900 jon@gelmans.com have been representing injured workers and their families who have suffered asbestos related disease. Please contact our office if you require assistance in filing a claim under the newly enacted James Zadroga 9/11 Health and Compensation Act.

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Saturday, February 12, 2011

Published: 2011 Workers' Compensation Law Treatise

The 2011 Supplement to Gelman on Workers' Compensation Law has been published and is shipping. Now in its third edition, the 3 volume hard-bound series, provides a comprehensive analysis of workers' compensation law. Published by West Publishing, a business of Thomsom-Reuters, it is totally integrated into the West citation system and Westlaw® research system. The series and updates may be ordered in hardbound, CD-Rom and/or accessed thorough the Westlaw® research system.

What's New

The newly enacted statutory changes to the New Jersey Workers’ Compensation Act and promulgated Rules permitting Emergent Medical Care Motions, new registration requirements for insurers, and new judicial enforcement powers of Judges of Compensation, including sanctions and contempt powers, are contained in this supplemental material. The judicial decision imposing direct liability against an insurance carrier for delay and/or denial of medical treatment is discussed.

An analysis of the newly adopted procedures for the reimbursement of conditional payments established by Medicare and the protocols to co-ordinate workers’ compensation claims with the Centers for Medicare and Medicaid Services is contained in this supplement. The materials also provide the authorizations required to obtain conditional payment information from the Coordinator of Benefits. Debt collection referral to the Department of the Treasury is also reviewed.

The new Community and Worker Right to Know material has been incorporated into this supplement. The current hazardous substance lists and the substances that have been deemed extremely dangerous are provided.

The supplement reviews new case law concerning electronic cancellation of coverage as well as the standard for claims to be considered casually related to the employment.

The judicial interpretation of the Exclusivity Doctrine is discussion in light of the dual capacity status of a household contact / bystander and also former employee. The evidential requirements in latent occupational claims is reviewed.

The mandatory reporting requirements of the SCHIP Extension Act of 2007 are described as well as the appeal procedure under the reimbursement provision of the Medicare Secondary Payer Act.

These pocket parts provide information concerning the requirements for medical monitoring in workers’ compensation claims. It discusses. the Asbestos Fund, which has been established for those entities where workers’ compensation coverage cannot be established. The newly designed forms that need to be utilized in filing for benefits are included. Also, the recently modified Motion for Temporary and Medical Benefits, including a form Certification, is provided and discussed.

The newly revised Judgments for Total and Permanent Disability are provided in this pocket part. The Judgments include new refinements in offsets for pensions and Social Security disability benefits. Reviewed also is the “intentional wrong exception” to the Exclusivity Bar which has been the subject of new workers’ compensation insurance policy language and regulation.

The recently promulgated administrative rules governing the disposition of Temporary Disability Benefits are discussed. The non-duplication of benefits provisions are reviewed including the multiple agency adjudication process. An expansion of benefits available to Federal public safety officers is reviewed in this supplement.

Collateral medical benefit issues are discussed in light of the recent Supreme Court decision concerning this matter. The pocket parts include a Motion to Join the Collateral Health Carrier and provide sample Certifications to be used in support of the application. New pleadings issued by the Division of Workers’ Compensation in the area of medical payment and reimbursement claims are provided and commented upon in these materials.

Additionally, these pocket parts provide information concerning the new Rules of the Division of Workers’ Compensation embodying electronic filing requirements and new procedures involving both formal and informal proceedings, motion practice, post judgment process, and judicial performance. The expanded Medicare secondary reporting requirements and the mandatory coordination of benefits are reviewed in this supplement. The recovery aspects of Medicare conditional payments as well as future medical provisions are updated and discussed. The new Child Support Lien distribution forms, computation worksheets and judgments are provided and explained in depth. The NJ Supreme’ Court ruling and the legislative enactments are discussed concerning same sex couples and the availability of workers’ compensation benefits.

This supplement reviews the newly promulgated Rules concerning the Uninsured Employers’ Fund and audio and video coverage of workers’ compensation proceedings. The horrific tragedy of September 11th, 2001 and the impact it has upon the Workers’ Compensation system is discussed. This supplement reviews the newly enacted Smallpox Emergency Protection Act as well as recent court decisions concerning acts of terrorism. The subsequent legislative changes enacted in response to potential terrorist threats are reviewed, including the Public Safety Officers’ Benefit Act as well as the liberalized legislative enactments involving rescue workers and medical personnel.

The far-reaching ramifications of the newly enacted healthcare reform legislation are reviewed. The new prototype occupational medical care program, encompassing potential occupational exposure claims, is presented in this supplement.

The impact of the newly promulgated Federal rules and regulations concerning medical record privacy and compliance with the Health Insurance Portability and Accountability Act (HIPPA) medical authorization requirements are reviewed in this supplement and model forms are furnished. The recently enacted statutory workers' compensation coverage options available to proprietors and partners are discussed. The supplement reviews the recent court decisions expanding the responsibility of the Second Injury Fund for pre-existing medical conditions in cases in which latent diseases become manifest during retirement. The statutory enactments concerning State Temporary Disability Benefits are reviewed. The recently amended Energy Employees Occupational Illness Compensation Act is explained in detail and forms are furnished and discussed.

The new administration and management of claims arising from insolvent workers’ compensation insurance is covered in this pocket part.

The recent Supreme Court decisions concerning the high judicial threshold for evaluation of scientific evidence are analyzed. The requirements for proof of scientific evidence in complex workers’ compensation cases are discussed including the admissibility of testimony from non-physicians experts. Furthermore, the evolving and expanding issues concerning medical monitoring are reviewed.

This pocket part also discusses recent changes in the application for counsel fees. The supplement includes the newly promulgated administrative directive embodying those changes.

To Order

The series and updates may be ordered in hardbound, CD-Rom and/or accessed thorough the Westlaw® research system.

More Information
Table of Contents Supp. 2011
Index, Supp. 2011
Summary of Contents

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Friday, February 11, 2011

Distracted Driving Workers Compensation Claim Draws Major Public Attention

A workers compensation claim filed by a state trooper for injuries he sustained while texting and speeding 126 miles per hour that resulting in a fatal accident with oncoming teenagers, a driver and a passenger, has drawn media attention. An effort to hold a hearing, "on the sly with no press," before the Illinois Workers' Compensation Commission is now receiving coverage by news organizations including; the Associated Press, the Belleville News Democrat, the Courthouse News Service, and the ABA Journal.

Accidents caused by distracted driving are creating an emerging challenge for workers' compensation court to adjudicate. The National Institute for Occupational Safety and Health (NIOSH) is following the lead of the US Department of Labor by encouraging employers to ban cell phone use while operating vehicles. An outright prohibition and supporting legislation may lead to the prohibition of workers' compensation benefits in many jurisdictions in the near future unless more global and radical action is taken to re-mediate this dangerous activity.

The state trooper pleaded guilty to two counts of reckless homicide last year. He has since resigned from his job.

The attempt to conceal the hearing of the Illinois troop was the subject of internal e-mails reported by the Belleville News Democrat. Public commenting was removed from the on-line report because of abuses. No hearing date or location has been reported yet for the compensation hearing.

Related Articles:

NIOSH Supports Efforts to Ban Distracted Driving
Cell Phone Safety and Workers Compensation
The Trend to Exclude Distracted Driving from Workers Compensation Coverage
Put it Down - Friday April 30th
Driving While Distracted Compared to DUI
Are Driving Distractions Within the Course of Employment?
Employee Cell Phone Chat Results in $5.2 Million Payment to Widow by Employer

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