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

Monday, July 11, 2011

The Debt Ceiling and Workers Compensation

President Barack Obama talks with members of his staff in the Oval Office following a meeting with the Congressional Leadership, July 7, 2011. Pictured with the President, from left, are: Chief of Staff Bill Daley; Rob Nabors, Assistant to the President for Legislative Affairs; Bruce Reed, Chief of Staff to the Vice President; National Economic Council Director Gene Sperling; Jason Furman, Principal Deputy Director of the National Economic Council; Office of Management and Budget Director Jack Lew; Senior Advisor David Plouffe; and Treasury Secretary Timothy Geithner. (Official White House Photo by Pete Souza)


As The Debt Ceiling Crisis continues to fester in a sluggish economy, the attack on public health programs like Medicare and Workers Compensation remain targets of cuts. Basically the medical delivery system just can't be supported and is imploding bringing down the entire house of cards.

Workers' Compensation, a patchwork of state programs, has a target on its back. The system is a massive Ponzi Scheme that now lacks a base of economic support and can no longer provide delivery of benefits in either the arena of medical or indemnity. It is the promise to Labor that just can't be kept.

Angry critics from cost to coast have targeted the system with a plethora of lame excuses why the system is ailing and why it is too costly to maintain as presently structured. While Industry continues somewhat to the downfall of workers' compensation, it cannot be blamed entirely. The compensation system was build on the foundation of the Industrial Revolution and a massive insurance scheme of the early 1900s that no longer realistically exists. Medical science has been transformed from the ancient French medical practice of the use of leaches, no anesthesia and zero sterilization, to an era of modern medicine with modern modalities, complex diagnostic and treatment and research protocols.  

As the debate unfolds in Washington DC on the debt ceiling, the focus with become more directed upon public entitlement programs and benefits that need to be modernized and revamped to meet the current changes to the economy and health of the nation. One of those targets will ultimately be workers' compensation and this time the politicians should look at it not in the light of negativity but rather for all the positive benefits workers compensation brings the nation.
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Better Control Over Asbestos Contaminated Sites Required

Senator Max Baucus (MT)


The recent discovery of the spread of asbestos contamination in Libby MT, which had been declared a Public Health Emergency, is shocking. Asbestos, a known carcinogen, associated with mesothelioma, is reportedly still lingering throughout the community. 

Montana's senior U.S. Senator Max Baucus vowed to find answers regarding reports today of asbestos-contaminated bark and wood chips being sold in Libby, MT and beyond. 

"We've made tremendous strides in the effort to help Libby heal with health care and environmental cleanup. But trust is essential to Libby's ability to heal psychologically and economically. Now it appears EPA's actions may have put that trust in jeopardy, so you can bet I'll be holding EPA's feet to the fire to find out exactly what they knew, when they knew it, and whether action is needed to ensure the safety of folks in Libby and across the country who were exposed to this bark," Baucus said. "The people of Libby have already been poisoned in the name of greed and I won't allow them to be victimized again because of negligence. We need to work together to make sure safety information is complete and transparent so the community can move forward and create jobs with faith in the agencies and processes that are supposed to protect them."

Since news reports first linked widespread deaths and illness to exposure to deadly asbestos fibers at the defunct W.R Grace and Co. mine, Baucus has visited Libby more than 20 times, secured millions for healthcare and cleanup, brought numerous White House cabinet secretaries to the town, helped save the CARD clinic, and has dogged the EPA to keep cleanup efforts moving forward. 

As far back as 1999, Baucus wrote a letter to then Secretary of Health and Human Services Donna Shalala requesting immediate medical help and assistance to the area. He further lambasted the EPA's decision to not declare a Public Health Emergency, calling it an "outrage." 

In 2008, Baucus released a report detailing a 2002 attempt by the EPA to declare a Public Health Emergency in Libby that was thwarted by the previous Administration's Office of Management and Budget. And on June 17, 2009, due in large part to Baucus' efforts, the EPA declared its first ever public health emergency in Libby, Montana. 

Earlier this year Baucus was announced as the 2011 Tribute of Hope Award recipient by the Asbestos Disease Awareness Organization (ADAO) for his tireless efforts fighting on behalf of residents of Libby, Lincoln County and Asbestos victims everywhere. In March, the Senate unanimously passed Baucus' resolution to designate the first week of April 2011 as "Asbestos Awareness Week," and call attention to Libby and other victims of asbestos-related disease.

The continued spread of this contamination is yet another reason why the US must finally ban asbestos entirely. 
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Friday, July 8, 2011

Workers’ Compensation Medicare Set-Aside Portal (WCMSAP)


The Centers for Medicare & Medicaid Services (CMS) is currently Pilot Testing the Workers' Compensation Medicare Set-aside Portal (WCMSAP), a web-based application. This new initiative will allow submitters of Workers' Compensation Medicare Set-Aside Arrangements (WCMSAs) to directly enter case information, upload documentation, and receive case status information through the use of a secure Web portal. 

This secure Web portal will greatly improve the efficiency of the submission process for WCMSAs, including receipt of the proposal by its Workers' Compensation Review Contractor (WCRC). The WCMSAP, a web-based application, will allow attorneys, beneficiaries, claimants, insurance carriers, representative payees, and WCMSA vendors to:

• Create a work-in-progress case
• Submit WCMSA cases
• Perform case lookups
• Append documentation to a case

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Thursday, July 7, 2011

Distracted Driving Increases Workers' Compensation Risks

In a recent video interview, Jon Gelman, spoke about the serious workers' compensation and liability risks that employers face flowing from distracted driving.

For the complete interview click here.
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National Cell Phone Ban Proposed by Congress


Cell phone abuse while driving has been proposed by Congresswoman Carolyn McCarthy (D-NY4).  Distracted driving accidents are soaring and are now emerging as a major cause of work-related accidents.

Distracted riving claims are a major liability issue for employers and their insurance carriers. Liability falls upon the employers for workers' compensation benefits, potential liability damages by innocent injured third-parties, and subject employers to fines by regulatory agencies such as The Occupational Safety and Health Administration (OSHA).

McCarthy, a victim of an accident caused by testing while driving, is a former nurse who has made public health and safety a hallmark of her tenure in Congress, has announced new federal legislation that would create a single national standard prohibiting the use of handheld mobile devices while driving.


“Driving while making a phone call, texting or using apps can be as dangerous as driving drunk, and much more common,” Rep. McCarthy said.  “With some basic commonsense rules that are already in place in some parts of the country, we can reduce injuries and save lives in America.”

The Safe Drivers Act of 2011 focuses on two primary efforts.  First, it directs the Secretary of Transportation to establish minimum regulations that ban the use of hand-held mobile devices on a public road while operating a moving or idling motor vehicle, except in the case of an emergency.  There are exclusions, including voice-operated, vehicle-integrated devices, as well as voice-operated GPS systems.

The bill also requires the DOT to conduct a study on distracted driving, focusing particularly on the issue of cognitive distraction and the impact of distraction on young and inexperienced drivers.  In two years, the DOT must report the findings of this study to Congress and provide recommendations for revising the minimum distracted driving prohibitions and penalties states must comply with.

The penalty for not complying with the DOT’s minimum standards within two years of enactment would be a withholding of 25 percent of a state’s federal highway transportation funding.

The legislation is modeled after the nation’s federal Blood Alcohol Content standard, the violation of which also results in a withholding of federal transportation funds (though no state has been in violation of the federal BAC standard).  States that are penalized can actually receive their funds as soon as they are in compliance with federal law.  Click here to read the full legislation. 

With a potpourri of laws in different states, including some states with no laws whatsoever limiting cell phone use while driving, distracted driving is rapidly becoming a deadly problem across the nation.

According to the National Highway Traffic Safety Administration, 5,474 people died as a result of driver distraction in 2009, making up about 16 percent of all fatalities as a result of auto crashes that year.

According to the Insurance Institute for Highway Safety, using a cell phone makes a driver four times more likely to be in an accident that causes injury.

Right now, 13 states have no laws addressing handheld voice calls.  They are Alaska, Florida, Hawaii, Idaho, Missouri, Montana, Nevada, Ohio, Pennsylvania, South Carolina, South Dakota, Wisconsin and Wyoming.

Ten states have no laws addressing texting while driving.  They are Arizona, Florida, Hawaii, Idaho, Montana, Nevada, Ohio, Pennsylvania, South Carolina and South Dakota.

Eight states have no laws whatsoever limiting the use of cell phones while driving, whether for voice calls or texting.  They are Florida, Idaho, Montana, Nevada, Ohio, Pennsylvania, South Carolina and South Dakota.

Only 8 states prohibit all drivers – including novice drivers, bus drivers and regular adults – from using handheld cell phones while driving.  They are California, Connecticut, Delaware, Maryland, New Jersey, New York, Oregon and Washington.

According to the Insurance Institute for Highway Safety, immediately after New York banned cell phone use while driving in 2001, cell phone use declined an estimated 47 percent.  Since then over time, handheld cell phone use by New York Drivers is down an estimated 24 percent.

 Kelly Cline, a Buffalo, NY-area mother who lost her 20-year-old son A.J. Larson in a texting-while-driving accident in 2007 and co-founded the 1,000-member Families Against Texting While Driving organization, gave the Safe Drivers Act of 2011 a very personal endorsement.

“I know all too well the tragic outcome that distracted driving can lead to in a split second,” Ms. Cline said.  “No one should lose their life because of an easily avoidable problem that society hasn’t made a serious issue of.  I hope that what happened to my family serves as a wake-up call to our legislators, and I thank Congresswoman McCarthy for her leadership.  Hopefully we can raise awareness about distracted driving and stop another tragedy from happening.”

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Wednesday, July 6, 2011

OSHA To Focus on Infections in the Workplace

OSHA schedules meetings to
discuss occupational exposure to infectious diseases

The Occupational Safety and Health Administration has scheduled two informal stakeholder meetings to solicit comments on exposure to infectious diseases in the workplace. OSHA will use information gathered during these meetings to explore the possible development of a proposed rule to protect workers from occupational exposure to infectious agents in healthcare settings where direct patient care is provided and other settings where workers perform tasks with occupational exposure. Both meetings are scheduled for July 29 in Washington, D.C.

On May 6, 2010, OSHA published a Request for Information on Infectious Diseases. OSHA wanted to gather comments on strategies that are currently used to reduce the risk of workplace exposure to infectious agents, and to more accurately distinguish the nature and extent of occupationally-acquired infectious diseases. Based on responses received and an ongoing review of literature on this subject, OSHA is considering development of a proposed program standard to control worker exposures to infectious agents.

"We know that workers in healthcare and related facilities may be exposed to infectious agents, and they deserve to be protected," said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels. "Information gained from these meetings will help us determine the best approach to assure that workers don’t put themselves at risk while caring for patients and doing their job. After all, a good job is a healthy and safe job."

The two meetings will be held July 29, from 9 a.m. to noon and from 1:30 p.m. to 4:30 p.m., at the U.S. Department of Labor, 200 Constitution Ave., N.W., Room N-4437, Washington, DC 20210. To participate in one of the stakeholder meetings, or be a nonparticipating observer, individuals must submit a notice of intent electronically, by facsimile or by hard copy no later than July 22. See the Federal Register notice for details.

Meeting discussions will focus on issues including the advantages and disadvantages of using a program standard to limit occupational exposure to infectious diseases; whether and to what extent an OSHA standard should require employers to develop a written worker infection control plan that documents how employers will implement infection control measures to protect workers; and whether and to what extent OSHA should take alternative approaches to rulemaking to improve compliance with current infection control guidelines issued by the Centers for Disease Control and Prevention, the National Institutes of Health, and other authoritative agencies.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit http://www.osha.gov.

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 occupational accidents and illnesses.
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Tuesday, July 5, 2011

Employers Prohibited From Seeking Reimbursement From a Public Entity

A New Jersey appeals court has held that an employer or insurance carrier is prohibited from seeking reimbursement from a public entity resulting from a work related claim. Only a direct action may be brought by an employee against a public entity.
"Relying on Travelers, supra, 169 N.J.Super. at 415, Judge Casale held that where, as here, a public entity is the third-party tortfeasor, the Tort Claims Act (TCA), N.J.S.A. 59:9-2(e), bars subrogation by the employer or its worker's compensation carrier. That section provides: "No insurer or other person shall be entitled to bring an action under a subrogation provision in an insurance contract against a public entity or public employee." Ibid.
"It is clear that N.J.S.A. 34:15- 40 not only permits subrogation recovery from the employee, but would allow a lawsuit directly against the third-party tortfeasor. N.J.S.A. 34:15-40(f). However, in enacting the TCA, N.J.S.A. 59:9-2(e), the Legislature intended that the cost of worker's compensation payments should not be shifted to a public entity that happened to be a third-party tortfeasor. Instead, those costs were to be absorbed by the worker's compensation insurer. Travelers, supra, 169 N.J.Super. at 415.
Thomas v The City of East Orange,  Docket No. L-6929-09, 2011 WL 2582550 (N.J.Super.A.D.) Decided July 1, 2011.

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 occupational accidents and illnesses.

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