Workers' Compensation

Tuesday, November 22, 2011

Lack of Medical Evaluators Delays Social Security Claims Processing

Guest blog by Rodger D. Moore
of the Nebraska Bar

Recently, the Waal Street Journal reported that the Social Security Administration (SSA), frustrated by the backlog of applications for disability benefits, started pressuring the 140 doctors the agency uses to help evaluate some of the claims. In an effort to encourage the quick processing of claims doctors were paid a flat rate of $80/case in stead of the previous $90/hour to review the cases. Many times these cases have hundreds of pages of records to be reviewed and can turn on a few sentences.

Also, doctors were assigned to evaluate conditions that were not in their areas of expertise. One of the more interesting quotes came from Neil Novin, former chief of surgery at Baltimore's Harbor Hospital, who worked for Social Security part time for about 10 years. He said "People who shouldn't be getting [disability] are getting it, and people who should be getting it aren't getting it".

In my experience this has always been the case, but now, with agency doctors being pressured to evaluate these cases quicker, we’ll likely see less competent and thorough evaluations. This in turn will lead to longer delays, more cases waiting for a hearing and more money spent to evaluate more cases by administrative personnel within the SSA.

Although I’ve never thought the agency doctors do a good job evaluating these cases, the situation will get worse now that 1/3 of the 140 doctors have either quit or been fired over this shift in philosophy. In this setting it’s every more important to seek the help of a treating physician in offering a supportive report.

See the complete article:

Doctor Revolt Shakes Disability Program (wsj.com)

NIOSH Warns: Erionite: An Emerging North American Hazard

Erionite is a naturally occurring mineral that belongs to a group of silicate minerals called zeolites. It is usually found in volcanic ash that has been altered by weathering and ground water. Like naturally occurring asbestos, deposits are present in many Western states. Erionite can occur in a fibrous form. Disturbance of this material can generate airborne fibers with physical properties and health effects similar to asbestos. For example, it has long been known that residents of some Turkish villages where erionite-containing rock was used to construct homes have a remarkably high risk for development of malignant mesothelioma. Erionite has been used in road work.

Click here for Map of Erionite Occurrences

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.

Gingrich Calls for More Child Labor, Calls Laws "Stupid"

Newt Gingrich's poll numbers are soaring for the US Presidential nomination. He has announced that he will offer radical proposals including the elimination of child labor laws. For decades child labor laws and penalties have been integrated into state workers' compensation acts acting as a safety deterrent to accidents.

10 Worst Toys for 2011

A consumer group in Boston, W.A.T.C.H., has published its "10 Worst Toys for 2011" list. The toys nominated represent toys with the potential to cause childhood injuries, or even death. W.A.T.C.H.'s annual "Toy Conference" has generated extensive national press and media coverage. Because of these efforts, and the positive response from both the media and the public, there have been many toy and product design changes.

1. TWIST ‘n SORT

Price: $13.35
Manufacturer or Distributor: Guidecraft, Inc.
Purchased: WonderBrains.com
Age Recommendation: “Ages 3+”
Warnings: “WARNING: CHOKING HAZARD – Small parts. Not for children under 3 yrs.”
HAZARD: POTENTIAL FOR CHOKING INJURIES!
This play set consisting of a “brightly colored geometric block and solid wood base” is sold to provide “years of developmental fun” with “problem solving challenges” and “fine motor practice.” On October 20, 2011, certain lots of these toys were recalled because “[t]he small pegs on three of the four posts can detach, posing a choking hazard to young children”. After issuance of the recall, a newly purchased Twist ‘n Sort toy exhibited the same “choking hazard” identified in the government’s recall notice.

2. POWER RANGERS SAMURAI MEGA BLADE

Price: $26.99
Manufacturer or Distributor: Bandai
Purchased: Toys R Us (also available Kmart.com and Walmart.com)
Age Recommendation: “4+” and “Ages 4 and up”
Warnings: Package insert: “CAUTION: PLEASE READ BEFORE PLAYING WITH TOY.
Do not: (1) aim toy at anyone, (2) hit anyone with toy, (3) poke anyone with toy, (4) swing toy at anyone….”; and other cautions and warnings.
HAZARD: POTENTIAL FOR IMPACT INJURIES!
Young children are encouraged to pull a release and flip-open this rigid plastic Power Rangers Samurai “sword”, which “extends 2 feet!” according to the packaging. The blade has the potential to cause serious facial or other impact injuries.

3. FOLD & GO TRAMPOLINE

Price: $99.99
Manufacturer or Distributor: The Original Toy Company
Purchased: Stellabella Toys (also available Sears.com)
Age Recommendation: “ages 3+ YEARS”
Warnings: “WARNING: CHOKING HAZARD – Small parts. Not for children under 3 years”, and other safety information including: “Misuse and abuse of this trampoline is dangerous and can cause injuries.”
HAZARD: POTENTIAL FOR HEAD, NECK AND OTHER BODILY INJURIES!
This trampoline is sold in the toy aisle for children as young as 3-years-old. Remarkably, the package insert instructs, in part, as follows:
“Never attempt any other functions or gymnastic functions or rough play on the trampoline, this trampoline is designed for young children ONLY. The only function on this trampoline should be a controlled bounce (exercise), for young children. No other functions should occur other then [sic] controlled bounce.” The many hazards associated with trampoline use should make it apparent to manufacturers and retailers that such equipment should not be sold as a playtime activity for young children.

4. PULLING ANIMAL DUCK
Price: $29.99
Manufacturer or Distributor: Haba
Purchased: Creatoyvity
Age Recommendation: “Age 1+”
Warnings: “WARNING: Do not make a knot or grip in the string.” (stick-on label on box only).
HAZARD: POTENTIAL FOR STRANGULATION INJURIES!
This wooden duck, which “[w]addles amusingly when pulled”, is sold as a pull toy for 1-year-old babies. The duck’s cord is approximately 33” long, presenting a serious potential strangulation hazard. The industry’s standard limits strings on crib and playpen toys to 12” in length.

5. SCHOOL BUS

Price: $4.00
Manufacturer or Distributor: Schylling
Purchased: Toy Shop of Concord (also available online retailers)
Age Recommendation: “Not for children under 3 years.” (stick-on label only).
Warnings: “WARNING: CHOKING HAZARD – Small parts. Not for children under 3 years.” (stick-on label only).
HAZARD: POTENTIAL FOR CHOKING INJURIES!
These miniature yellow school buses are sold with a “choking hazard” warning on a removable, stick-on label. The firm rubber tires, mounted on plastic wheels, can be removed, presenting the potential for a serious choking injury for oral age children.

6. Z-CURVE BOW

Price: $25.05
Manufacturer or Distributor: Zing Toys, Inc.
Purchased: Amazon.com
Age Recommendation: “DESIGNED FOR KIDS 8+”
Warnings: “WARNING: Do not aim at eyes or face. Do not aim or shoot at people or animals”; “WARNING: Arrows should not be pulled back at more than half strength… Anyone within close distance to intended target should be alerted prior to firing….”; and other warnings on packaging.
HAZARD: POTENTIAL FOR EYE INJURIES!
This “high-performance” bow and arrow set is sold with three “long-range” foam arrows, which are marketed as being able to fly “over 125 FEET!” Remarkably, among the many “warnings” for children is an instruction that arrows not be pulled back “more than half strength”, and that people nearby “should be alerted” prior to firing.

7. STEPPER “LOW RISE” STILTS

Price: $10.99
Manufacturer or Distributor: JJI Toys
Purchased: Ben Franklin
Age Recommendation: “Ages 5 and up”
Warnings: None.
HAZARD: POTENTIAL FOR HEAD AND OTHER IMPACT INJURIES!
These colorful plastic platforms with attached, adjustable “hand ropes” are sold as “perfect ‘low rise’ stilts.” The manufacturer provides no warnings or cautions. The instruction on the throw-away tag invites children, as young as five years old, to “[j]ust step on the platform, pull the ropes up tight, and begin to walk around” while balancing on top of the cups.

8. SWORD FIGHTING JACK SPARROW
Price: $15.98
Manufacturer or Distributor: Jakks Pacific
Purchased: Toys R Us
Age Recommendation: “4+”
Warnings: “WARNING: CHOKING HAZARD – Small parts. Not for children under 3 years” (on box).
HAZARD: POTENTIAL FOR EYE AND OTHER IMPACT INJURIES!
The Jack Sparrow action figure, from the popular Pirates of the Caribbean movie franchise, is sold for children as young as four years old. The pirate’s right hand is armed with a 4 ½”-long rigid, plastic sword, which activates in an upward motion at the push of a lever. No warnings are provided regarding the potential for eye or other impact injuries.

9. THE INCREDIBLE SHRINKY DINKS MAKER
Price: $29.99
Manufacturer or Distributor: Big Time Toys, LLC
Purchased: Kmart
Age Recommendation: “Ages 8+”
Warnings: “CAUTION: ELECTRIC TOY” and many more warnings on package, package insert and product.
HAZARD: POTENTIAL FOR ELECTRIC SHOCK AND BURN INJURIES!
This oven uses standard 120-volt house current and shrinks a “shrinky dink” in a “heating chamber” with a 60-watt light bulb. A parent or caregiver needs no further indication that this oven could be dangerous than the litany of warnings and cautions on the toy itself and the packaging, including:

“CAUTION-ELECTRIC TOY: As with all electric products, precautions shall be observed…to prevent electric shock.”
“WARNING: SHOCK HAZARD. Pull plug before changing light bulb.”
“DANGER – To prevent electric shock, do not immerse in water….”
“CAUTION – SUPERVISION REQUIRED - ELECTRIC TOY- UNPLUG WHEN NOT IN USE.”

A product with so many inherent hazards does not lend itself to use in a home environment with children.

10. “GIGAN” GODZILLA FIGURE
Price: $22.99
Manufacturer or Distributor: Bandai
Purchased: Toys R US
Age Recommendation: “4+”
Warnings: “WARNING: CHOKING HAZARD – Small parts. Not for children under 3 years.”
HAZARD: POTENTIAL FOR IMPACT AND PUNCTURE WOUND INJURIES!
This “12[-inch] Classic Godzilla Figure”, referenced on the packaging as the character “Gigan”, features rigid, pointed fins and wings, as well as sharp, dagger-like attachments on its arms. Such unforgiving, plastic protrusions present the potential for penetrating and impact injuries.

Related articles

CMS Sets Telephone Conference Call to Discuss Workers' Compensation Medicare Set-aside Portal

The Centers for Medicare & Medicaid Services (CMS) has completed its Pilot Testing of the Workers' Compensation Medicare Set-aside Portal (WCMSAP). The CMS will be conducting a Town Hall conference call on November 29, 2011 from 1:00 to 3:00 pm (EST), to introduce this initiative to submitters of proposed Workers' Compensation Medicare Set-Aside Arrangement (WCMSAs) amounts, and to answer questions regarding the WCMSAP. After the Town Hall conference call, CMS will post the links of the WCMSAP application, and the WCMSAP Computer Base Training (CBT) Modules, on the Workers' Compensation Medicare Set-aside Portal (WCMSAP) section page "Related Links Outside CMS."

Please Note: The call in information for the WCMSAP Town Hall teleconference is:
Call in time: 1pm to 3pm
Call In Line: 1-(800) 603-1774
*Conference ID: 29840615

*Participants must use the Conference ID number to be allowed into the call.

The Doctrine of Equitable Allocation Not Applicable in a Medicare Secondary Payment Reimbursement Claim

The 6th Circuit Court of Appeals has ruled that The Center for Medicare and Medicaid Services (CMS) is entitle to complete reimbursement of Medicare payments under the Medicare Secondary Payer Act (MSP) from a liability claim even though the beneficiary claimed that the settlement required allocation due to the law allocating liability.

"We address only one of them here: specifically, under § 1395y(b)(2)(B)(ii) as amended, if a beneficiary makes a “claim against [a] primary plan[,]” and later receives a “payment” from the plan in return for a “release” as to that claim, then the plan is deemed “responsib [le]” for payment of the “items or services included in” the claim. Id. Consequently, the scope of the plan's “responsibility” for the beneficiary's medical expenses—and thus of his own obligation to reimburse Medicare-is ultimately defined by the scope of his own claim against the third party. That is true even if the beneficiary later “compromise[s]” as to the amount owed on the claim, and even if the third party never admits liability. And thus a beneficiary cannot tell a third party that it is responsible for all of his medical expenses, on the one hand, and later tell Medicare that the same party was responsible for only 10% of them, on the other."

Hadden v. U.S., --- F.3d ----, 2011 WL 5828931, C.A.6 (Ky.), 2011. Decided November 21, 2011.

Monday, November 21, 2011

Who Is An Independent Contractor: Deciding In a Multi-District Litigation Consolidation

The 7th Circuit Court of Appeals ruled that the Transferee Court designated by the Judicial Pannel on Mutli-District Litigation (JPMDL) has the discretion to make a decision on "independent contractor" status. The Circuit Court of Appeals denied a mandamus action and affirmed the decision of the JPMDL.

"This petition for the extraordinary writ of mandamus presents an important question concerning the management of appeals in multidistrict litigation under 28 U.S.C. § 1407 when portions of some cases must be returned to their original transferor courts. In this case, the Judicial Panel on Multidistrict Litigation (JPML) chose one of two alternative courses. The JPML chose to ensure that each case produces one appeal of all issues in that case, rather than using partial final judgments under Federal Rule of Civil Procedure 54(b) to ensure that all related appeals would go to the same circuit. As we explain below, we agree with the JPML that there are strong arguments for both sides of this procedural dispute, and we defer to the JPML's exercise of its discretion in this matter. In terms of the standards for issuing writs of mandamus, we find that the petitioner has failed to show that it has a clear and indisputable right to issuance of the writ, so its petition is denied."

"Delivery drivers for petitioner FedEx Ground Package System, Inc. filed numerous class actions against FedEx alleging that the company improperly classified them as independent contractors rather than employees. Although the cases in federal courts alleged violations of many different state laws, they presented many common questions of fact. Under the authority of 28 U.S.C. § 1407, the JPML consolidated more than 70 of the cases in MDL No. 1700 and transferred those cases to the Northern District of Indiana in 2005 for consolidated pretrial proceedings under the supervision of Judge Robert L. Miller, Jr., a veteran district judge with long experience both as a transferee judge managing MDL cases and as a member of the JPML itself. Judge Miller supervised the cases through several years of discovery and motions practice.

FEDEX GROUND PACKAGE SYSTEM, INC., v. UNITED STATES JUDICIAL PANEL

ON MULTIDISTRICT LITIGATION,

No. 11-243 Decided November 17, 2011 (&th Cir CT Appeals),

Copyright