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

Thursday, July 28, 2011

Deal or No Deal: Judge Relies on Court Appointed Physician

An Appellate Court has rule that a Judge of Compensation can select an independent physician to review the need for medical treatment. It doesn't matter whether or not the parties agreed formally or informally as to the binding effect of the physician's opinion as to causal relationship and the need for treatment.


The Court has discretion to merely rely upon the physician's opinion and reach a reach a decision based upon the report. The cost  of the evaluation is to be paid for by the employer /insurance carrier. Furthermore, the Court need not hold a hearing for oral argument on the issue and can reach a binding on the papers alone.


Thompson v. Quality Et al., 2011 WL 3107767, Docket No. A-1177-10T1 (NJ App. Div.) decided July 27, 2011.
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Tuesday, July 26, 2011

NIOSH Fails to Link Cancer as Zadroga Fund Compensable

The National Institute for Occupational Safety and Health (NIOSH) published a report concluding that cancer is not a compensable disease for the Zadroga World Trade Center Victims Compensation Fund.

The report concludes:
"Based on the scientific and medical findings in the peer-reviewed literature reported in this first periodic review of cancer for the WTC Health Program, insufficient evidence exists at this time to propose a rule to add cancer, or a certain type of cancer, to the List of WTC-Related Health Conditions. "

Although a determination cannot be made to propose a rule to add cancer, or a type of cancer, to the List of WTC-Related Heath Conditions at this time, it is important to point out that the current absence of published scientific and medical findings demonstrating a causal association between the exposures resulting from the September 11, 2001, terrorist attacks and the occurrence of cancer in responders and survivors does not indicate evidence of the absence of a causal association. 

"It is expected that the second periodic review of cancer for the WTC Health Program will be conducted in early to mid-2012 to capture any emerging findings about exposures and cancer in responders and survivors affected by the September 11, 2001, terrorist attacks.
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7 Problems Facing Work Comp in a Credit Default

White House Photo, Pete Souza, 7/25/11
Workers' Compensation payments are so intertwined with the national system of workers' compensation that a potential US credit fault will impact the system significantly. Workers' Compensation is social remedial legislation and as the US government leaders struggle to find a political solution to the nation's financial crisis concern becomes focussed on how a shutdown will impact the national workers' compensation system.


The consequences of a US credit default will be significant. President Obama stated, "If that happens, and we default, we would not have enough money to pay all of our bills -– bills that include monthly Social Security checks, veterans’ benefits, and the government contracts we’ve signed with thousands of businesses. "


1. Centers for Medicare and Medicaid Services (CMS) and their contractor will be unable to provide conditional payment information under the Medicare Secondary Payer Act. Negotiations in workers compensation matters will come to halt.


2. CMS will be unable to approve compromises and releases in advance of workers' compensation disposition thereby halting the State systems.


3. CMS and their agents will be unable to review Medicare Set-Aside Agreements thereby stopping workers' compensation dispositions by compromise.


4. Chaos will erupt in those States where Social Security takes a reverse offset on permanency payments. Workers' compensation insurance companies and employers will become responsible for the entire amount to be paid.


5. The Veterans' Administration will be unable to provide information concerning medical treatment. Records will he held-up and will delay evaluations in adjudications in workers' compensation cases.


6. Tricare and other federal insurance providers will be unable to provide benefit information. The lack of reimbursement data will stymie evaluation of medica reimbursement issues slowing the disposition and settlements of workers' compensation claims.


7. The US Military will be unable to provide Personnel Records and prior medical treatment and claim information.


The potential fiscal impact of a US debt crisis is enormous.  Hopefully, the politicians in Washington will reach a compromise and the this crisis will be resolved and everyone can creatively focus on making the compensation system less complicated and more efficient.
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Monday, July 25, 2011

US Senate to Hold Hearing on Federal Comp System Reform

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On Tuesday, U.S. Senator Daniel K. Akaka (D-HI) will hold a hearing titled Examining the Federal Workers' Compensation Program for Injured Employees to examine reform proposals for the Federal Employees Compensation Act (FECA).


The Federal Employees Compensation Act (FECA) provides workers' compensation coverage to federal civilian workers for any injury or illness incurred on the job. FECA has not been significantly updated in close to 40 years. A number of changes have been proposed, which are intended to modernize the program, improve return-to-work incentives, and reduce the overall cost to the Federal government. Discussion will focus largely on proposals to reduce FECA wage loss compensation benefits for disabled FECA recipients who reach retirement age.


EXAMINING THE FEDERAL WORKERS’ COMPENSATION PROGRAM FOR INJURED EMPLOYEES

Subcommittee on Oversight of Government Management, the Federal Workforce, and the District of Columbia

Live video will not be available until approximately 15 minutes prior to the scheduled hearing start time.
Tuesday, July 26, 2011
02:00 PM - 05:00 PM
Dirksen Senate Office Building, room SD-342
The hearing will be webcast live at: hsgac.senate.gov 
Individuals with disabilities who require an auxiliary aid or service should contact Aaron Woolf, Subcommittee Chief Clerk, no later than 3 business days before the hearings. This will allow the office a reasonable amount of time before the event to make any necessary arrangements.

Witnesses

Panel 1

  • The Honorable Christine M. Griffin
    Deputy Director
    U.S. Office of Personnel Management
  • Mr. Gary Steinberg
    Acting Director, Office of Workers’ Compensation Programs
    U.S. Department of Labor
  • Mr. Andrew Sherrill
    Director, Education, Workforce, and Income Security
    U.S. Government Accountability Office

Panel 2


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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.

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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.
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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.



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