Workers' Compensation

Wednesday, March 21, 2012

US Supreme Court Hears Arguments on The Entitlement of Children's Benefits

The US Supreme Court, in a matter that may have widespread impact on workers' compensation dependency benefits, heard oral arguments in Astrue v Capato concerning whether a child conceived after the death of a biological parent is eligible for survivor benefits under Title II of the Social Security Act [42 USC § 401 et seq.].

Justica report on Circuit Court Split:

"The US Court of Appeals for the Third Circuit ruled [opinion] that the Social Security Act must provide for claimants' children who were born after their death. Attorney for the Commissioner of Social Security appealed, arguing that the court must defer to state intestacy law, regardless of whether the Social Security Act's definition of child is ambiguous.

Health Benefits, US Supreme Court and Workers Compensation

U.S. Supreme Court building.
(Photo credit: Wikipedia)

On Monday, the US Supreme Court will hear oral arguments concerning the validity of the 2010 Patient Protection and Affordable Care Act. Whatever the US Supreme Court decides in the pending matters, the nation's patchwork of workers' compensation systems will ultimately feel the impact. The implementation of the Act will ultimately have far reaching consequences of the overall operation of both the delivery of workers' compensation medical benefits and the ultimate assessment/apportionment of permanent disability.

Workers' Compensation systems have been struggling with the delivery of medical benefits. As more cases are denied initial compensability determinations, and alterate medical care is sought for the prevention, identification and treatment of underlying, co-existing and pre-existing medical conditions will be even more significant issues in workers' compensation matters.

Thompson-Reuters News & Insight identifies some of the issues the US Supreme Court will consider:

"* Adult children remaining on their parents' insurance coverage through the age of 26.

* An end to lifetime limits on the dollar value of benefits available to people with serious medical conditions that can lead to astronomical treatment costs.

* Preventive healthcare benefits including free coverage for mammograms and birth control.

* For Medicare beneficiaries stuck in the prescription drug benefit coverage gap known as the "doughnut hole," a 50 percent discount on covered brand name drugs and 14 percent savings on generic drugs.

* A requirement that insurance companies justify unreasonably large healthcare premium increases.

* Tax credits for small employers with no more than 25 employees and average annual wages of less than $50,000 that provide health insurance for employees.

* Temporary insurance coverage programs for retirees who are over age 55 but not eligible for Medicare.

* Temporary insurance coverage for individuals with pre-existing medical conditions who have been uninsured for at least six months.

* A requirement that health plans report the proportion of premium dollars spent on clinical services, quality, and other costs, and provide rebates to consumers if the share of the premium spent on clinical services and quality is less than 85 percent in the large group market and 80 percent in the individual and small group markets.

National Federation of Independent Business v. Sebelius, No. 11-393; U.S. Department of Health and Human Services v. Florida, No. 11-398; and Florida v. Department of Health and Human Services, No. 11-400

Related articles

US Supreme Court Rules When Disability Commences in Longshore Case

Sonia Sotomayor, U.S. Supreme Court justice
(Photo credit: Wikipedia)

The US Supreme Court ruled that an employee must be "newly awarded compensation" in a Longshore and Harbor Workers Act (LHWCA) claim when he was injured and not when the award was entered. This determination sets the time frame for the calculation of benefits.

Justica reports:

"In an opinion authored by Justice Sonia Sotomayor, the court held that in order to support an administrable rule "that will result in equal treatment of similarly situated beneficiaries and avoids gamesman ship in the claims process," an employee must be "'newly awarded compensation' when he first becomes disabled and thereby becomes statutorily entitled to benefits under the Act, no matter whether, or when, a compensation order issues on his behalf." The court further concluded that:

'[A]pplying the national average weekly wage for the fiscal year in which an employee becomes disabled advances the LHWCA's purpose to compensate disability, defined as "incapacity because of injury to earn the wages which the employee was receiving at the time of injury." Just as the LHWCA takes "the average weekly wage of the injured employee at the time of the injury" as the "basis upon which to compute compensation" it is logical to apply the national average weekly wage for the same point in time.

Roberts v. Sea-Land Services

Tuesday, March 20, 2012

Workers' Compensation: Are Second Injury Funds Going to be History Soon?

As the Second Injury Fund debate in Missouri becomes more heated, one must consider the underlying issues challenging its existence. Whatever the outcome, injured workers being denied benefits ordered by judgment should not he held hostage to political motivations.

See Workers' Compensation: Are Second Injury Funds Going to be History Soon?

Monday, March 19, 2012

National Asbestos Awareness Week - April 1 to 7 2012

Image via Wikipedia

US Senator Max Baucus (MT)

The US Senate has passed a resolution designating April 1- 7, 2012 as National Asbestos Awareness Week. Introduced by US Senator Max Baucus (MT), the mesure received US Senate approval the same day.

Co-Sponsors were:
Sen Boxer, Barbara [CA] - 3/6/2012
Sen Durbin, Richard [IL] - 3/6/2012
Sen Feinstein, Dianne [CA] - 3/6/2012
Sen Isakson, Johnny [GA] - 3/6/2012
Sen Murray, Patty [WA] - 3/6/2012
Sen Reid, Harry [NV] - 3/6/2012
Sen Tester, Jon [MT] - 3/6/2012

A resolution (S. Res. 389) designating the first week of April 2012 as ``National Asbestos Awareness Week.''

There being no objection, the Senate proceeded to consider the resolution.

Mr. DURBIN. Mr. President, I ask unanimous consent that the resolution be agreed to, the preamble be agreed to, the motions to reconsider be laid upon the table, with no intervening action or debate, and any statements be printed in the Record.

The PRESIDING OFFICER. Without objection, it is so ordered.

The resolution (S. Res. 389) was agreed to.

The preamble was agreed to.

The resolution, with its preamble, reads as follows:

S. Res. 389

Whereas dangerous asbestos fibers are invisible and cannot be smelled or tasted;

Whereas the inhalation of airborne asbestos fibers can cause significant damage;

Whereas asbestos fibers can cause cancer such as mesothelioma, asbestosis, and other health problems;

Whereas asbestos-related diseases can take 10 to 50 years to present themselves;

Whereas the expected survival time for those diagnosed with mesothelioma is between 6 and 24 months;

Whereas, generally, little is known about late-stage treatment of asbestos-related diseases, and there is no cure for such diseases;

Whereas early detection of asbestos-related diseases may give some patients increased treatment options and might improve their prognoses;

Whereas the United States has substantially reduced its consumption of asbestos, yet continues to consume almost 1,100 metric tons of the fibrous mineral for use in certain products throughout the United States;

Whereas asbestos-related diseases have killed thousands of people in the United States;

Whereas exposure to asbestos continues, but safety and prevention of asbestos exposure already has significantly reduced the incidence of asbestos-related diseases and can further reduce the incidence of such diseases;

Whereas asbestos has been a cause of occupational cancer;

Whereas thousands of workers in the United States face significant asbestos exposure;

Whereas thousands of people in the United States die from asbestos-related diseases every year;

Whereas a significant percentage of all asbestos-related disease victims were exposed to asbestos on naval ships and in shipyards;

Whereas asbestos was used in the construction of a significant number of office buildings and public facilities built before 1975;

Whereas people in the small community of Libby, Montana suffer from asbestos-related diseases, including mesothelioma, at a significantly higher rate than people in the United States as a whole; and

Whereas the establishment of a ``National Asbestos Awareness Week'' will raise public awareness about the prevalence of asbestos-related diseases and the dangers of asbestos exposure: Now, therefore, be it

Resolved, That the Senate--

(1) designates the first week of April 2012 as ``National Asbestos Awareness Week'';

(2) urges the Surgeon General to warn and educate people about the public health issue of asbestos exposure, which may be hazardous to their health; and

(3) respectfully requests that the Secretary of the Senate transmit a copy of this resolution to the Office of the Surgeon General.

.....

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.

Thursday, March 15, 2012

John Sciortino, 52

John Sciortino passed away suddenly, at much too young an age, Monday evening at his home in Penfield. John was born in Buffalo and grew up in Schenectady where he graduated from Mohonasen High School in 1977. John is deeply mourned by the many he so profoundly touched. He was a man of many varied and diverse passions and talents. He loved life and lived it large in every way. He possessed the rare qualities of a good listener and great storyteller. He was funny. Above all, he was a loving husband to Michele and a doting father to his teenage daughter Andrea.

He loved music, particularly jazz, and was accomplished with the trumpet and piano. He never missed the Rochester Jazz Festival. He was an avid fan and supporter of the Gregory Kunde Chorale, headed by his good friend and world renowned tenor, Gregory Kunde.

He loved sports of every kind and was always a familiar figure at Frontier Field rooting on the Red Wings or the many teams who completed at the Blue Cross Arena. Through thick and thin, and last year very thick, the Boston Bruins were his team and to his tremendous delight, finally brought home the Stanley Cup.

His home in Cape Cod was his refuge where he escaped to enjoy the pleasures of his family. He was an avid fisherman and boater.

John served tirelessly on the Boards to advance the needs of others through his service with many not-for-profit organizations. At St. Joseph's Catholic Church of Penfield he was chair of the Parish Pastoral Council and led an involved and successful expansion project. He is past Chairman of the Board of Governors for Seniorsfirst Communities & Services. He is a member of Wakan-Hubbard Lodge No. 154 F.&A.M. He served for almost 25 years on the Boards at Valley Manor and Kirkhaven Nursing Home.

His recent appointment to the Board of Trustees at his alma mater, Union College, capped a lifetime of study, financial support and service to the institution that provided him invaluable guidance and purpose.

After graduating from Union, John earned his law degree from Albany Law School in 1986 and was a founding partner in the law firm of Segar & Sciortino. His distinguished service in the bar was dedicated solely to advancing the needs of injured workers. At the time of his death, he was President of the New York State Injured Workers' Bar Association, a founding member of the Board of Governors of the New York Injured Workers' Alliance and founding member and former State Co-Chair of the New York Workers' Compensation Alliance. He was a member of the Board of Directors of the Triangle Shirtwaist Factory Fire Memorial, a non-for-profit organization devoted to commemorating the early 20th century sweatshop conflagration which provided the impetus for the enactment of New York State's Workers' Compensation Law. Each year, under John's guidance, more than a dozen Triangle Scholarships are awarded to children of permanently disabled workers attending college across New York State.

Described as "one of the foremost advocates for Workers' Compensation reform", John was invited in 2006 to participate as a panelist at a NYS Senate Workers' Compensation Reform Round Table to offer insight into ways to improve the Workers' Compensation system. In 2007, John served as an advisor to the New York State Department of Insurance Task Force appointed to make recommendations to improve the resolution process for disputed Workers' Compensation cases.

In 2008, he was awarded a Clara Lemlich Public Service Award for his outspoken efforts on behalf of the rights of injured workers in New York State. The recognition is named in honor of the noted 20th century sweatshop labor activist who inspired a massive strike for the New York City garment workers in 1909 which lead to improved working conditions in the garment industry. John has been annually recognized by Super Lawyers. Last weekend he was inducted as a Fellow of the College of Workers' Compensation Lawyers.

John was truly one of a kind - bigger than life. He lived to help and serve others. He was - in the most special way - heaven sent and loved by all. He is survived by his wife of 25 years, Michele, daughter Andrea, mother Hermine Sciortino, sister Linda DiGiralamo, sister-in-law and brother-in-law David and Maureen McDaniel, mother-in-law Shirley Hudson, Uncle/Aunt Dominick and Kathleen Sciortino, Aunt Isabel Sciortino, nieces Nicole DiGiralamo and Ismay English, nephew Matthew Hudson and several cousins. He is also survived by his best friend and law partner, Stephen A. Segar and family. He was predeceased by his loving father Anthony Sciortino and dear friend - brother-in-law Mark Hudson.

Friends may call Friday, 2-4, 6-8 PM at the funeral chapel (2305 Monroe Ave.). Friends are invited to bring a written memory or photo for the family's Memory Book. A Funeral Mass will be held Saturday, 1 PM at St. Joseph's Church, 43 Gebhardt Rd., Penfield. Interment at Oakwood Cemetery. Contributions in John's name may be made to Union College, 807 Union Street, Schenectady, New York 12308. To share a memory or photo of John visit www.anthonychapels.com.

Wednesday, March 14, 2012

OSHA finds Metro-North Commuter Railroad retaliated against injured employee

US Labor Department's OSHA finds Metro-North Commuter Railroad

retaliated against injured employee,

interfered with medical treatment

Railroad ordered to pay damages, attorney’s fees

An investigation by the U.S. Department of Labor's Occupational Safety and Health Administration has determined that Metro-North Commuter Railroad Co. violated the employee protection provisions of the Federal Railroad Safety Act when it took retaliatory action against an employee at its Harmon Diesel Shop in Croton-on-Hudson who reported a workplace injury. OSHA found that the railroad, which provides commuter rail service in Connecticut, New York and New Jersey, interfered with the worker's medical treatment and forced him to work in violation of his physician's orders.

The employee, a laborer, injured his finger on June 26, 2009, and reported it to management, who first attempted to dissuade him from seeking medical treatment. The worker received sutures at a nearby hospital, where he was instructed to not use his hand until the sutures healed, and to keep the hand clean and dry. The railroad's occupational health service determined that the injury disqualified the worker from duty, but the facilities director of the diesel shop persuaded the health service to change the worker's status to restricted duty. The worker's personal physician excused him from work until the sutures were removed and supplied written notice that he should not lift heavy objects or immerse his hands in chemicals, actions he performed in the normal course of his duties. In spite of these instructions and the employee's restricted work status, management ordered him back to work and required him to perform these duties.

"Metro-North's actions in this case are unacceptable and send a message of intimidation to its workforce," said Robert Kulick, OSHA's regional administrator in New York. "Railroad employees must be free to report injuries without fear that their employers will harass them, ignore medical instructions or force them to work under conditions that could impair the healing process or cause more harm."

OSHA has ordered Metro-North to pay $10,000 in punitive damages to the worker and $8,830 in attorney's fees, and to expunge any adverse references relating to the employee's exercise of his FRSA rights from his personnel, safety and department files. Metro-North also must post an OSHA notice for employees in the Harmon Diesel Shop and on its internal website, and provide all diesel shop employees with information on employee protections for reporting work-related injuries.

Metro-North and the complainant each have 30 days from receipt of the findings to file an appeal with the Labor Department's Office of Administrative Law Judges. Under the FRSA, employees of a railroad carrier and its contractors and subcontractors are protected against retaliation for reporting on-the-job injuries, reporting certain safety and security violations, and cooperating with investigations by OSHA and other regulatory agencies.

OSHA enforces the whistleblower provisions of the FRSA and 20 other statutes protecting employees who report violations of various airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health care reform, nuclear, pipeline, public transportation agency, maritime and securities laws. Under these laws enacted by Congress, employers are prohibited from retaliating against employees who raise various protected concerns or provide protected information to the employer or to the government. Employees who believe that they have been retaliated against for engaging in protected conduct may file a complaint with the secretary of labor for an investigation by OSHA's Whistleblower Protection Program. Detailed employee rights information is available online at http://www.whistleblowers.gov.

Copyright