Workers' Compensation

Thursday, July 21, 2011

That Used to Be Comp

A parallel can be drawn between the concepts discussed by Thomas Friedman, at the National Governors Conference last week, and the status of the ailing workers’ compensation system in the US. The present problems, that have been the subject of Band-Aid statutory reform and regulatory directives, lack creative solutions. Reinventing America and workers compensation must incorporate the challenges of globalization, technology, national deficits and energy consummation, to meet the demands of the new world.

Mr. Friedman is the foreign affairs columnist for the New York Times, recipient of three Pulitzer Prizes, and is the author 5 best sellers. His newest book, “That Used To Be Us” is scheduled for release in September. He declares that “the American dream is in peril.” What worked in the past for the Nation to be a vibrant economy will no longer work in the future. Change is necessary.

The State workers’ compensation system, crafted over one hundred years ago, in the time of the American Industrial Revolution, no longer functions as an efficient, remedial and expeditious method for the handling of disability claims. Traumatic events have given way to multifaceted occupational diseases, the simplicity of single stage medical treatment protocols have multiplied into complex and costly: diagnostics, treatment modalities, and pharmaceutical regiments, that are accentuated with personalized genetic modeling.

The world of workers’ compensation will have difficulty meeting its responsibilities without adequate funding as payrolls fall, fewer people become employed as technology takes the place of jobs, and workload is distributed across the globe and into The Cloud. Creative thinking is necessary to look forward and determine how to administer and reconfigure the compensation system so that it meets the needs of injured workers rather than rejects them. A Labor force that is healthy will strengthen the national economy. Instead of dueling at every street corner in the land over medical fees and payment reimbursement, it is time to look at an inventive and universal remedy.

Thomas Friedman remarked that in the future there will be two types of nations, The High Imagining Enabled (HIE) countries and the Low Imagining Enabled (LIE) countries. The United States needs to relook at what used to be an efficient and functioning workers’ compensation system, and redevelop it through creative thinking and available global technology, to make it workable once again.

That Used To Be Us: How America Fell Behind in the World It Invented and How We Can Come Back, Thomas L. Friedman and Michael Mandelbaum, Farrar, Straus and Giroux (September 5, 2011), 400 pp.

Wednesday, July 20, 2011

The Setoff Nightmare: The Pension Well Runs Dry

Over the past decades of reform, legislatures throughout the United States have established rules and regulations to offset pensions from workers' compensation benefits chasing off potential claims. Now faced with economic stress, public entities are following the path of private companies, and about to default on pension payments.

The NY Times reports today that a town in Rhode Island has asked 19,000 pension beneficiaries to forgo their pension benefits. The program is called, "The Big Ask."

The consequences are severe. The claimants who failed to file for workers' compensation benefits because they were scarred off by potential bankruptcy setoffs from their workers' compensation awards, and now being left out in the cold. Injured workers are now barred by the statute of limitations from collection compensation.

Legislatures must consider this adverse consequence. Modifications in State laws are now required to protect workers from this contingency. Laws should be modified to permit a tolling of the statute of limitations so that workers in the future will not be asking why their rights for workers' compensation benefits were stolen.

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.

Tuesday, July 19, 2011

Zadroga WTC Health Claims Fund Town Hall Meetings

The Special Master for the Zadroga 9-11 Victims Compensation Fund, Sheila L. Birnbaum, will be holding a series of public town hall forums to discuss the operation of the Fund. Those meetings will take place in both New York and New Jersey.

Wednesday, July 27th 6:00-7:30pm: Queens Borough Hall, 120-55 Queens Blvd, New York, NY
Thursday, July 28th 6:00-7:30pm: Jersey City City Hall - Council Chambers, 280 Grove Street, Jersey City, NJ
Tuesday, August 2nd 6:00-7:30pm: Melville Marriott, 1350 Old Walt Whitman Road, Melville, NY

The program was established to provide compensation and medical monitoring to victims of the September 11th tragedy in New York City. Regulations for the operation of the Fund have yet to be announced. It is anticipated that the Fund should be operational by July 1, 2011. Those who were exposed to the toxic dust and fumes of the World Trade Center disaster continue to suffer from latent and progressive medical conditions. The New England Journal of Medicine has reported that a substantial population that was exposed to the toxic residuals of the event are suffering from sever medical conditions. Positive pathological findings reflect the existence of aluminum and magnesium silicates, chrysotile asbestos, calcium phosphate, calcium sulfate, glass, and carbon nanotubes (CNT) were found in specimens of exposed individuals.

Eligibility for benefits under the James Zadroga 9/11 Health and Compensation Act include those who were World Trade Center victims and First Responders. Under the law those who worked, attended school, childcare and adult day care, may be eligible. The program also covers some who were present in the area of the dust cloud or who lived in the the New York City disaster area. Certain cleanup and maintenance workers are included including tele-communications workers such as Verizon, AT&T and other employees.

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.

Friday, July 15, 2011

Workers Are Injured by Misclassification

When employers misclassify workers they attempt to cheat injured workers of adequate workers compensation benefits. In most jurisdictions workers comp rates are determined by the wages paid to the injured worker at the time of their injury.

Disability rates for workers' compensation benefits are based upon the computation of the wages of the injured employee. Statutorily, the wages are defined to mean "the money rate" at which the service rendered is paid. That rate is determined by the wages in effect according to the contract of hiring in force at the time of the accident or exposure of the employee. Board and lodging, when provided by the employer are usually considered as wages, unless the parties have entered into a contract at the time of hiring to set an alternative value. In those instances where wages are determined by the output of the employee, the daily wages are calculated by dividing the number of days the injured employee was actually employed into the total amount that the worker earned during the preceding period.

The US Department of Labor (DOL) strictly monitors misclassification of workers and takes enforcement action when appropriate. The U.S. Department of Labor has recovered $104,837 in overtime back wages for 57 workers who had been misclassified as independent contractors and thereby denied overtime compensation for all hours of their work in violation of the Fair Labor Standards Act, following an investigation by the department’s Wage and Hour Division. The workers were employed by Cecil Parker Jr., the owner of a debris cleanup company in Anahuac.

The DOL reports of the serious consequences of misclassification, "The misclassification of employees as independent contractors is an alarming trend, particularly in industries such as construction that often employ low-wage, vulnerable workers, and in which the division historically has found significant wage violations. The practice is a serious threat both to employees entitled to good and safe jobs, as well as to employers who obey the law. Too often misclassified employees are deprived of overtime and minimum wages, and forced to pay taxes that their employers are legally obligated to pay. Honest employers have a difficult time competing against scofflaws. The Labor Department is committed to ensuring that employees receive the pay and benefits to which they are legally entitled and to level the playing field for employers that play by the rules."

The States need to provide better enforcement of how workers are classified and paid by employers. Injured workers continue to be "short changed" in many ways by misclassification.

Inconsistent Enforcement of State Wage and Hour Laws Could Lead to "Regulatory Race to The Bottom, " New Study Finds (workers-compensation.blogspot.com)
Minimum Wage, Overtime Laws Due For Reform: Republicans (huffingtonpost.com)
Workers Compensation, Pensions and Bankruptcy (workers-compensation.blogspot.com)
Penalties, Paper and The Injured Worker (workers-compensation.blogspot.com)

Tuesday, July 12, 2011

Hotel Workers Have Work Comp Claims

Long before the Straus-Kahn publicity, hotel workers have been suffering from work related accidents and injuries leading to workers compensation benefits. The US Centers for Disease Control and The National Institute for Occupational Safety and Health have published a brochure and announced a new partnership program to promote innovative research and improve workplace practices.

The National Occupational Research Agenda (NORA) is a partnership program to promote innovative research and improve workplace practices. Unveiled in 1996, NORA is a framework for guiding occupational safety and health research and interventions throughout the nation. NORA stakeholders collaborate to identify critical workplace issues in industry sectors. The National Institute for Occupational Safety and Health (NIOSH) convened a number of these partners to develop the National Services Agenda, which includes safety and health goals for the Accommodations Industry. Groups such as unions, worker organizations, government agencies, and hotel/motel associations can build partnerships to implement these goals and help ensure that hotels are safe for all employees.

Related articles

Workers Compensation, Pensions and Bankruptcy

The rush to offset everything from workers compensation awards, including pensions, may cause some injured workers, to their longterm detriment, not to pursue a compensation claim. Should the pension be compromised in the future for lack of funding, as what is happening in a municipality in Rhode Island, then the injured worker maybe unable to seek workers' compensation because of a waiver for failing to file a claim originally. Injured workers and the attorneys may need to rethink their strategy for workers compensation.

Incorrect Offset of Temporary Benefits

The incorrect offset of temporary Workers' Compensation benefits is not the basis for an interlocutory appeal ruled a NJ Appellate Court.

"Appellant Linda Scott appeals from a determination by the Judge of Compensation that her former employer, the County of Bergen (Bergen), is entitled to an offset pursuant to the provisions of N .J.S.A. 34:15-43 and N.J.S.A. 34:15-29, permitting Bergen to avoid the payment of temporary compensation benefits to appellant due to her receipt of an ordinary disability retirement pension from the Police and Firemen's Retirement System (PFRS). We dismiss this appeal as interlocutory because it does not present an issue that should be decided at this time and no application for leave to appeal was filed. R. 2:2-4.

"Leave to appeal was not sought nor does appellant argue such leave should be granted. Scott is receiving the ordinary disability pension; thus, the lack of additional funds from a temporary disability payment does not leave her destitute. This appeal neither presents a situation where the interests of justice require us to rule on the merits nor does it address a legal issue of general importance likely to recur often.

Scott v The County of Bergen, Not Reported in A.3d, 2011 WL 2651957 (N.J.Super.A.D.)

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