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

Friday, September 2, 2011

When the Boss Calls

The use of cells phones while driving still remains a serious problem as drivers continue to ignore laws throughout the country. Unenforced and unenforceable laws throughout the nation aren't meeting the well intentioned goal of restricting their use. A major excuse is the need to use it for work and my "boss" required the employee to use it.

The epidemic of distracted driving continues to spread. Economic consequences are not yet frequent enough and severe enough to change the culture of abuse. Industry still hasn't taken the bold steps required to solve the problem.

Even though the genie of the "car phone" is out of the bottle, carefully engineered technology can resolve the problem. The same companies that brought us the unhealthy combination of cell phones and distracted driving can engineer the cure.

Employers seem to lack the economic motivation to take action. Employers who insit on their use for employment reasons can be compared to those employers who remove a machine guard to increase production at the cost of injury. It is senseless and tragic to insist that employees are required to us cellphones for employment. It is time that mandatory technology safeguards be implemented to curb abuse and avoid trajic and unnecessary accidents.
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Thursday, September 1, 2011

Who Is Paying the Premiums for Workers Compensation Anyway

Employes have been subject to "give backs" and "add on" costs for decades, but now employers want to shift the cost of workers compensation insurance to employees. The intent of the workers' compensation act was to shift the costs of workers' compensation coverage to the consumer of the product and/or user of the service and not the employee.


A recent Massachusetts Judge reiterated that principle, but left open the question as to whether the employee could consensually contract to accept the costs of workers' compensation coverage. If this occurs, it is ultimately a "deal breaker."


Cost shifting of workers' compensation coverage is a dangerous precedent going to the heart of the initial promise made to workers in creating the system. Is is against  "public policy," and defeats the Legislative intent of the act. While the economy is soft and the workers' compensation system in a weakened condition it is not time to abandon ship unless a more creative approach for reform of the entire system comes into play. As jobs remain scarce, the process would not be consensual, but merely coercion. Shifting the cost would ultimately remove the deterrent effect for unsafe workplaces, and yet is another reason why employers and ultimately consumers should remain responsible for workers compensation  costs.


See: Awuah v. Coverall North America, Inc.,--- N.E.2d ----, Mass. , 2011 WL 3805255, Mass., August 31, 2011 (NO. SJC-10829)

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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Wednesday, August 31, 2011

Surveillance Crosses the Privacy Line

Surveillance in workers compensation matters creates sensitive issues regarding privacy. The bright-line of what is public versus private becomes even more acute as employers and insurance companies investigate fraud concerns. When companies cross the line the consequences can be serious.

Several Montana attorneys have sought relief from a Court for what they call a breach of the privacy of the injured workers whom they represent. The attorneys allege that insurance fraud investigators, on behalf of a Montana insurance fund, have violated the privacy rights of their client by recording surveillance videos  and giving them to examining physicians, in order to facilitate reports that the injured workers are malingering.

The attorneys represent that  in over 800 instances, over the past several years, criminal surveillance tapes were unilaterally provided to defense medical experts to the detriment of their client's right to privacy. Harassment of injured workers creates fear that deters claims to benefit of employers and their insurance carriers. Inured workers have limited resources to fight such unscrupulous behavior. The attorneys in Montana had done a great pro bono and public service to take on Goliath on behalf of David. Hopefully the courts will balance the playing field and protect the rights of the injured worker from such tactics.

Workers' compensation was designed as a simple and equitable system. It was intentionally designed for the benefit of all the parties who participate in it. It is important that when the system becomes unbalanced that all the participants join in the effort equally to both redesign and rebalance the program.
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, August 30, 2011

Zadroga 9-11 Compensation Fund To Accept Claims October 3rd

The 9/11 Zadrogra Compensation Fund is scheduled to start accepting claims for compensation on October 3, 2011. Announcement of the publication of the Final Rule was just announced.

With the 10-year anniversary of Sept. 11, 2001, approaching, September 11th Victim Compensa­tion Fund (VCF) Special Master Sheila L. Birnbaum today announced the final rule governing the fund. Since issuing the proposed regulations in June 2011, Special Master Birnbaum has reviewed formal comments and met with, and received feedback from, hundreds of New York-area residents, workers and first responders at town hall meetings held in New York and New Jersey.

For more information about The 9/11 Fund claims click here.


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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What Hurricane Relief Volunteers Need to Know About Workers Compensation

Hurricane relief volunteers are entitled to workers compensation benefits for injuries and illnesses that occurred as a result of their participation in relief efforts. In order to claim those benefits injured volunteers need to make sure that they follow some simple steps.

1. Make sure that they establish an employment relationship for the agency or company conducting the relief work. In other words, the volunteer, even if earning no money, must be an employee of the the company conducting the rescue and/or relief effort. The best evidence would be a written agreement that the worker is to be considered an employee of the company. 

2. Report to the report if an accident or injury occurs arising out of and in the course of the employment. This report should be made as quickly as possible following the event or manifestation of illness. This should be followed up immediate with a written communication to the employer advising that an injury or illness occurred and that medical treatment, if necessary, is being sought.

3. Record the names and addresses witnesses to the even or exposure.

4. Seek medical care if required. If it is an emergency and you are unable to first notify your employer, seek medical attention first and then report the event. Most emergency rooms will record your event history and notify your employer, but that is not always the case. Therefore, advise your employer where and when you sought emergency medical care as soon as possible.

5. If you are advised by a medical profession to stay out of work, then obtain that information in writing. Make a copy of the lost time order and give the copy to your employer.

6. See the advice of an attorney at law familiar with workers' compensation matters since volunteer work in emergency situations produced a lot of complication issues. Those issue are inherited from the chaos and complications that occur in the wake of a major natural disaster such as a hurricane.

Volunteering for the hurricane relief effort is a noble gesture. Workers, in the emotional haste to assist, must also insure that they remain insured for workers' compensation benefits.
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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Monday, August 29, 2011

Pensions, Workers Compensation and Medical Benefits

The State of New Jersey has taken assertive action to guarantee medical benefits to injured workers for their lifetimes even though they are receiving accidental injury pensions. The Director has issued an Administrative Directive requiring language to literally toll the statute of limitations and permit the Division of Workers' Compensation to retain jurisdiction over such matters where the injured worker has accepted the continuing medical benefit option.

"Petitioner has been awarded and accepted an accidental disability pension effective _(date)_. To resolve the workers' compensation case, petitioner and respondent have agreed to provide petitioner with reasonable and necessary medical treatment for injuries related to the _(date)_ accident. This Order for continuing medical benefits shall not be subject to the two year statute of limitations and such medical benefits shall continue for the life of the petitioner or until further order of this court."

By statute, workers' compensation awards are offset by pension awards. The medical issue remains open usually and medical benefits remain the responsibility of the employer. The medical issue becomes a complication when costs are attempted to be shifted to collateral medical carriers or Medicare. The subsequent reimbursement issue then generates medical lien claims that must be litigated. The incorporation of the language will greatly clarify responsibility and expedite medical care and payment.

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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Genetic Pre-Disposition to Mesothelioma


The workers' compensation system has struggled with asbestos related claims for decades. The serious and sometimes fatal occupational malignancies that asbestos exposure has been responsible for have resulted in an unabated epidemic surge of claims for which he system was unable to handle efficiently. The recent findings of a genetic predisposition to mesothelioma is a hopeful beginning that positive research efforts will yield both prevention and cure of asbestos related disease.

Scientists have found that individuals who carry a mutation in a gene called BAP1 are susceptible to developing two forms of cancer – mesothelioma, and melanoma of the eye. Additionally, when these individuals are exposed to asbestos or similar mineral fibers, their risk of developing mesothelioma, an aggressive cancer of the lining of the chest and abdomen, may be markedly increased.

"Because only a small fraction of asbestos-exposed individuals develop malignant mesothelioma1, and because mesothelioma clustering is observed in some families, we searched for genetic predisposing factors. We discovered germline mutations in the gene encoding BRCA1 associated protein-1 (BAP1) in two families with a high incidence of mesothelioma, and we observed somatic alterations affecting BAP1 in familial mesotheliomas, indicating biallelic inactivation. In addition to mesothelioma, some BAP1 mutation carriers developed uveal melanoma. We also found germline BAP1 mutations in 2 of 26 sporadic mesotheliomas; both individuals with mutant BAP1 were previously diagnosed with uveal melanoma. We also observed somatic truncating BAP1mutations and aberrant BAP1 expression in sporadic mesotheliomas without germline mutations. These results identify a BAP1-related cancer syndrome that is characterized by mesothelioma and uveal melanoma. We hypothesize that other cancers may also be involved and that mesothelioma predominates upon asbestos exposure. These findings will help to identify individuals at high risk of mesothelioma who could be targeted for early intervention."

"Germline BAP1 mutations predispose to malignant mesothelioma," Nature Genetics (2011) doi:10.1038/ng.912Received 06 May 2011 Accepted 27 July 2011 Published online 28 August 2011


Also see NIH Press Release: NIH-funded researchers discover genetic link to mesothelioma; Identified gene mutation may underlie other cancer types

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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