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

Saturday, February 19, 2011

OSHA Fines NJ Contractor $45,450 For Safety Violations

The U.S. Department of Labor's Occupational Safety and Health Administration has cited the general contractor for the Sheridan Avenue Steam Plant renovation project in Albany for repeat and serious violations of safety standards. Plato Construction Corp. of Hopewell, N.J., faces a total of $45,540 in proposed fines, chiefly for scaffold and fall hazards.

"Falls are among the deadliest hazards in construction. They can end a life or a career in seconds," said Edward Jerome, OSHA's area director in Albany. "Proper scaffold erection, safe work practices and effective fall protection are critical in protecting workers against this potentially deadly hazard."

OSHA found employees exposed to fall hazards ranging from 27 to 41 feet while working without fall protection on a scaffold that was not fully guarded, climbing atop the scaffold's guardrails and standing on an empty plastic bucket on the scaffold's deck. The agency has alleged that scaffold's tiebacks were not anchored securely, its pulley block was damaged, and it had not been erected by a competent person. Other hazards included an electrical panel box that was not protected against water, a power cord that lacked strain relief, an unguarded grinder blade and a damaged power cord with exposed wiring.

OSHA issued Plato Construction Corp. two repeat citations with $13,200 in proposed fines for the lack of scaffold fall protection and the damaged power cord, and nine serious citations with $32,340 in fines for the remaining items. OSHA issues a serious citation when there is substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known. The repeat citations stem from OSHA's having cited the company in December 2006 for similar hazards at a Philadelphia, Pa., worksite. A repeat citation is issued when an employer previously has been cited for the same or a similar violation of a standard, regulation, rule or order at any other facility in federal enforcement states within the last five years.

"One means of eliminating recurring hazards such as these is for employers to establish an injury and illness prevention program in which workers and management work together to continually eliminate hazardous conditions," said Robert Kulick, OSHA's regional administrator in New York.

Friday, February 18, 2011

Federal Probe Requested of Illinois Workers Compensation Arbitrator

Illinois Senator Kyle McCarter (R-Lebonon) has called for a Federal probe into the alleged actions of the arbitrator who allegedly delayed the hearing of a controversial case involving a State Trooper who was involved in a fatal motor vehicle accident while texting and driving  at 126 miles per hour.

As a result of  his distracted driving two teenagers were killed in the accident. The state trooper pleaded guilty to two counts of reckless homicide last year. He has since resigned from his job.


From Doughnuts to Workers Compensation Dollars

The failure to provide complete subsidies for prescription-drug coverage will indirectly continue to have an adverse financial impact on soaring workers' compensation costs. The Affordable Care Act (ACA) enacted in March 2010 has attempted but not completely removed the so-called "doughnut hole."


The aging workforce continues to increase as a result of both the economic downturn, as well a a dramatically increased retirement age. Furthermore, the increase in the denial rate of occupational conditions, some caused by latent disease, has increased to the number of beneficiaries on the Medicare system. Medicare continues to seek reimbursement through the Medicare Secondary Payer Act of conditional secondary payments to potential workers' compensation beneficiaries.


Those who elect Part D coverage, after the yearly deductible ($310) , are entitled to contribution from the Federal program for up to 25% of additional medical costs. Once they enter "the gap" in coverage ($2,840 to $4,550), the beneficiary is responsible for 100% of prescription costs. 


William H. Shrank, MD, M.S.H.S and Niteesh K. Choudhry, M.D., Ph.D., point out in their recent article in the New England Journal Of Medicine, that the present "doughnut hole system" results in seniors not taking prescribed medication because of the inability to pay dor drugs. The failure to deliver prescription care to seniors will ultimately result in an unhealthier workforce that the workers' compensation system will have the potential indirect responsibility to pay for. The cascading and progressive complications of underlying disease will have systemic negative health consequences for the aging workforce, and ultimately their employers, and their workers' compensation insurance coverage.
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Thursday, February 17, 2011

Medicare Secondary Payment Interest Calculation Tool Updated

The Medicare Secondary Payer Recovery Contractor (MSPRC) has published an updated version of its Interest Calculation Tool.
  • Interest Periods tab
  • The Interest Periods tab gives you the ability to enter a specific demand date and calculate the exact day interest will be assessed each month thereafter for that demand.
  • Demands before October 2004 tab
  • Demands that were issued prior to October 1, 2004 are handled slightly differently. This tab allows you to perform appropriate interest calculations that are tailored to these specific demands.
  • How Interest is Calculated tab
  • Want to know how interest is calculated? This tab provides education on MSPRC's interest calculation process. This includes how the accrual of interest is calculated from day 1 of the demand letter date, the 60-day grace period to pay that amount, and how interest is assessed on the demand amount if the demand is not paid within the grace period. This tab also provides the actual formula for interest calculation to give you a better understanding of the process. Download the Excel based tool at: http://www.msprc.info/forms/Interest%20Calculation%20Tool%20(GHP%20&%20NGHP).xls
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Hot Topics in Workers’ Compensation Law 2011 Seminar

Save the Date: March 2, 2011

This popular annual program, offered by the NJ Institute for Continuing Legal Education (NJICLE), is geared to both the novice and expert Workers’ Compensation attorney. It provides important and essential information to understand the cutting edge and critical issues confronting those who practice workplace injury law.

During the program, you’ll gain insight into understanding both simple and complex jurisdictional issues, medical benefits, and off-premises injuries. The seminar will enlighten you of  ethical issues in obtaining and utilizing social networking evidence.   The program will provide guidance by a judicial panel of ethical considerations in the negotiation, presentation and finalization of a settlement in workers’ compensation matters.

The seminar features a panel of some of the most respected New Jersey Workers' Compensation Judges and attorneys, who will review and provide insight on the top issues and cases that have emerged during the past year.

As an attendee, you’ll pick up 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. Make plans to register today!

Program Agenda
·      The Ethical Considerations of the Settlement, Strategy & Tactics
·      Medical Benefits: Compliance, Penalties and Counsel Fees
·      Social Networking: The Perils & Pitfalls for Employee & Employers
·      Multi-State Jurisdictional Issues and Apportionment of Liability
·      Off Premises Injuries: When Is A Trip to the Coffeehouse Compensable
·      Discrimination Claims: Current Developments


Program Moderators

Author, NJ Workers' Compensation Law 3rd Ed (Thompson-West)
Jon L. Gelman, LLC 
(Wayne)

Weston Stierli McFadden & Capotorto
Certified by the Supreme Court of New Jersey as a Workers’ Compensation Attorney
(Parsippany)

Speakers

Supervising Judge of Workers’ Compensation
(Camden)

Supervising Judge of Workers’ Compensation
(Bridgeton)

Judge of Workers’ Compensation
(Newark)

Judge of Workers’ Compensation
(Hackensack)

Rabner Allcorn Baumgart & Ben-Asher, P.C.
(Upper Montclair)

Kancher Law Firm, L.L.C.
(Haddonfield)

Certified by the Supreme Court of New Jersey as a Workers’ Compensation Attorney
Smith Magram Berenato & Michaud
(Burlington)

Certified by the Supreme Court of New Jersey as a Workers’ Compensation Attorney
Pietras, Saracino, Smith & Meeks
(Cherry Hill)

Certified by the Supreme Court of New Jersey as a Workers’ Compensation Attorney
David Tykulsker & Associates
(Montclair)
........ 
 Save the Date: March 2, 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.
........
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.


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