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

Monday, December 10, 2012

The New Reality |As goes the Labor market, so goes workers compensation

Paul Krugman
Paul Krugman points out in the New York Times today, that robots are eliminating the labor market. The consrquences of the economic sustainabily of workers compensation may place the entire system into peril.

"As best as I can tell, there are two plausible explanations, both of which could be true to some extent. One is that technology has taken a turn that places labor at a disadvantage; the other is that we’re looking at the effects of a sharp increase in monopoly power. Think of these two stories as emphasizing robots on one side, robber barons on the other."

Robots and Robber Barons

Federal court denies motion to add Medicare secondary reimbursement claims to a pending class action

A United States District Court handling Vioxx litigation has denied as application to add Medicare reimbursement claims to the pending application. 

"The Court has reviewed the briefs and finds that denying leave to amend is appropriate because the proposed joinder of these new Defendant Law Firms is not the most expeditious way to dispose of the merits of these matters. First, the Court finds that the proposed amendment violates Federal Rule of Civil Procedure 20. The Court previously granted a motion to sever the Plan Plaintiffs' claims pursuant to Rule 21(a). See AvMed II, 2008 WL 4681368, at *5–8. As the Court held in AvMed II, the Plan Plaintiffs' bring different claims pursuant to different health benefit plan language to pursue liens over funds owed to different claimants in different factual circumstances. See id. This diversity between the claims of the individual Plan Plaintiffs meant that the rights to relief asserted did not arise out of the same transactions or occurrences and did not present common questions of law or fact. See id. (citing Fed.R.Civ.P. 20(a)). Therefore, the Court recognized the risk of “transform[ing] this litigation into an action against approximately 15,000 defendants, each of whom has entered into a separately negotiated health plan contract and each of whom has received medical benefits under highly individualized factual circumstances.” See id. at *8. Accordingly, the Court exercised its discretion to sever the improperly-joined claims of the individual Plan Plaintiffs."
....
Jon L.Gelman of Wayne NJ, helping injured workers and their families for over 4 decades, is the author NJ Workers’ Compensation Law (West-Thompson) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson).  

In re Vioxx Products Liab. Litig., MDL 1657, 2012 WL 6045910 (E.D. La. Dec. 4, 2012)
Read more about Medicare Reimbursement Claims
Mar 17, 2009
A private suit, brought by a consortium of plaintiff entities and individuals seeking reimbursement of Medicare for the failure of the tobacco companies' to repay The Centers for Medicare and Medicaid [CMS] for benefits, was ...
Oct 01, 2010
The 11th Circuit Court of Appeals has held that Medicare is not entitled to reimbursement under the Medicare Secondary Payer Act (MSP) when the the surviving children's allocated share of proceed is the result of a wrongful ...
Dec 01, 2012
By one estimate, under its current reimbursement system, Medicare is paying in excess of a billion dollars a year more for the same services because hospitals, citing higher overall costs, can charge more when the doctors ...
Nov 22, 2011
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 ...

US Supreme Court to Determine Who is A Dependent

The US Supreme Court (SCOTUS) it's going to come intricately involved in determining who is a beneficiary  dependency benefits in workers' compensation claims when it renders it's decision on the validity of same-sex marriages. The decision to be rendered by SCOTUS will have tremendous impact on evaluating dependency benefits throughout the nation.

When an injury on the job injury dependency benefits or afforded to certain individuals. Those include statutory dependence such as spouses and children.

Dependency status confers an obligation by the insurance company/employer to pay benefits for extended periods of time. Dependency benefits are usually paid to the surviving spouse for the duration of their lifetime.

"The US Supreme Court [official website] on Friday granted certiorari [order list, PDF] in two cases dealing with same-sex marriage [JURIST backgrounder]. InHollingsworth v. Perry [docket; cert. petition, PDF] the court will consider the validity ofProposition 8 [JURIST news archive], a California referendum that revoked same-sex marriage rights. Same-sex marriage was briefly legal in California following a state Supreme Court decision and then overturned with a constitutional amendment created by Proposition 8. Early in the proceedings, the state of California declined to defend the law, and the backers of Proposition 8, ProtectMarriage.com [advocacy website], successfully intervened. The court will consider whether Proposition 8 is constitutional under the Equal Protection Clause of theFourteenth Amendment as well as if the Proposition 8 supporters had standing to intervene under Article III [LII Cornell backgrounders].

"The court also granted United States v. Windsor [docket; cert. petition, PDF], which examines the constitutionality of Section 3 of the Defense of Marriage Act (DOMA) [text; JURIST news archive]. The case concerns Edith Windsor [ACLU backgrounder], a widow who had a legal same-sex marriage under Canadian and New York law but was denied spousal deduction for federal estate taxes when her wife died. The Supreme Court will consider the constitutionality of DOMA under the Fifth Amendment [LII Cornell backgrounder]. Prior to her challenge, the US Department of Justice (DOJ) announced that it would no longer defend DOMA in courts, and in response, the US House of Representatives formed [JURIST reports] the Bipartisan Legal Advisory Group (BLAG) to defend the law. The court will also consider if BLAG had standing to intervene and if the DOJ's refusal to defend the law deprives the Supreme Court of jurisdiction. The Windsor court held homosexuals to an intermediate scrutiny standard of review. The other petitions concerning same-sex marriage remain on hold.


Excerpted from Jurist: Supreme Court to review constitutionality of same-sex marriage
....
Jon L.Gelman of Wayne NJ, helping injured workers and their families for over 4 decades, is the author NJ Workers’ Compensation Law (West-Thompson) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson).  

Read more about "dependency" and workers' compensation
Oct 26, 2012
The child of an infertile woman has yet another hurtle of proof to establish dependency status in a workers' compensation as the NJ Supreme Court decided that a formal adoption is necessary for an infertile woman to be ...
Jun 09, 2008
The NJ Supreme Court reversed a ruling of the Appellate Division and declared the Legislature's 2004 amendment to the workers' compensation act not to have retroactive application. The Amendment increased benefits to ...
Apr 20, 2009
Court Awards Dependency Benefits to Police Officer Who Committed Suicide. The dependents of a deceased police officer will receive benefits as a result of the officer's work-related suicide related to stress. Wilde v Township ...
Mar 21, 2012
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 ...

Statement from the Maquiladora Health and Safety Support Network On the Bangladesh Factory Fires and What’s Needed to Prevent Them

Bangladesh Factory Fire
This will appear as a “Letter from the Coordinator” in the December 2012 issue of the MHSSN newsletter, Border/Line Health & Safety. Garrett Brown, MPH, CIH, is the MHSSN Coordinator and the Network’s website iswww.igc.org/mhssn .

Letter from the Coordinator

Words fail at times like this – another garment factory fire in Bangladesh; 112 dead and 150 injured; another round of despair and anguish for the workers and their families; another round of denials by international garment brands that they bear any responsibility; another round of promises by the brands and their contractors that they will “do better” while refusing to acknowledge that it is their “profits first and foremost” production system that has led to fire after fire after fire.

At least 600 garment workers have been killed – with hundreds more injured, some disabled for life – in factory fires in Bangladesh since 2006. In September 2012, 289 garment workers were killed in a garment factory fire in Pakistan, with scores more injured.

Yet everyone knows exactly the cause of these fires: large quantities of poorly kept flammable materials; damaged or overloaded electrical systems; absent or completely inadequate fire suppression equipment; and non-existent or unimplemented emergency action and evacuation plans. But the people who control these supply chains – the brands – refuse to take any meaningful action to keep from regularly killing the people who make their products and their profits.

The root cause of these fires is a supply chain that places priority on the brands’ “iron triangle” of the lowest price/the highest quality/the fastest delivery from contractors; at the same time that contractors are provided with ever-shrinking, razor-thin profit margins by the brands; while government regulation is made meaningless by corruption and lack of resources; and garment workers are so desperate for work that they cannot refuse any job, no matter how dangerous. Corporate greed and corruption literally kill.

The garment industry’s global supply chain of death-traps is a crisis for all involved – a crisis for workers, for contract manufacturers, for international brands, for governments in the developing world, for the ever-expanding “corporate social responsibility” (CSR) industry, and for the occupational health and safety profession. See the extended “Quotes of the Month” for the perspective of each level of the supply chain. It is a crisis for workers because they are forced by poverty and hunger to go to work every day knowing that they may be burned alive.

It is a crisis for the contractor manufacturers who are denied by their brand clients theresources needed to upgrade their facilities, pay decent wages and still make an “acceptable” profit – so they take “unacceptable risks” with the lives and livelihoods of their work force.

It is a crisis for the brands because their reputations are, or should be, in tatters, and there will come a point when their customers will think twice about buying their products and any employees with a conscience will look for another employer.

It is a crisis for governments in the developing world where more and more of the world’s consumer products manufacturing is being done as they lack the resources (human, financial and technical) and the political will to protect their own citizens.

It is a crisis for CSR because the endless factory fires are proof positive that “corporate social responsibility” is a fake and fraud – all the codes of conduct, all the “independent” monitors, all the “social audits,” and all the CSR consultants and conferences have failed completely in the global garment industry.

It is a crisis for the occupational health and safety profession because it is being drawn into “certifying” working conditions in global supply chains. The Pakistani garment factory that killed 300 workers had been “certified” as safe by Social Accounting International auditors. Apple supplier Foxconn, whose factories have had aluminum dust explosions immediately after inspections, boasted of “certification” under the OHSMS 18000 scheme.

As long as the OHS profession allows these charlatans to profit from meaningless certifications and the resulting worker deaths, the profession will bear an inescapable measure of responsibility. There is a growing recognition of this, such as the statement released by the American Society of Safety Engineers (ASSE) after the Bangladesh fire. “It’s not enough to condemn local factory owners for these conditions and to expect long term change,” declared Thomas Cecich, CSP, CIH, Vice President for Professional Affairs and chair of the Center for Safety and Health Sustainability. “The corporations that source supply chain products, as well as their stakeholders, have tremendous power to influence the conditions in which supply chain workers operate.”
As our Network has pointed out repeatedly for many years, the factory fires and unsafe/unhealthy conditions in garment, electronics, and toy supply chains will continue unabated unless two things happen:
  1. the near-universal “sweatshop business model” described above must change so that life safety issues and workers’ health an safety actually come first in deeds as well as in damage-control public relations statements; and
  2. workers must be incorporated into plant-level health and safety programs, and be authorized, trained and empowered to play a meaningful role in identifying and correcting hazards – without reprisals and discrimination by their employers.
Perhaps the only ray of hope in this bleak panorama is the effort by a coalition of Bangladesh unions and international workers’ rights organizations – outlined in our July 2012 newsletter [hyperlink] – to establish an independent, competent fire safety program that would be transparent, involve workers as key actors, and actually inspect and require hazard correction in garment factories.

Four brands are required to initiate the project in Bangladesh. Two have signed on – PVH (Tommy Hilfiger, Calvin Klein and other brands) and the German brand Tchibo – but two more are needed. In September, after almost a year of negotiations, The Gap pulled out of talks and declared that it would set up its own program without almost all the elements of the program agreed to by PVH and Tchibo.

One way to remember the latest dead and injured in Bangladesh, and try to prevent more deaths, is to join with others around the world in demanding that the international brands step up to the plate with the proposed fire safety plan. Specifically you can add your voice in a campaign to convince The Gap to make good on its promises via the international letter campaign athttp://www.cleanclothes.org/urgent-actions/gap-appeal .

For further information and background on the factory fires, please see:
Quotes of the Month from the Bangladesh factory fire
I won’t believe Walmart entirely if they say they did not know of this at all. That is because even if I am subcontracted for a Walmart deal, those subcontracted factories still need to be certified by Walmart. You can skirt the rules for one or two odd times if it is for a very small quantity, but no decent quantity of work can be done without the client’s knowledge and permission. 
- Annisul Huq, former president of the Bangladesh Garment Manufacturers and
Exporters Association, quoted by Reuters news service on November 28, 2012.

The buyers write to us to improve working conditions. We asked them to raise prices by 25 cents per clothing unit that would go to workers’ welfare. They refused, citing the financial downturn in their countries.
- Mikail Shiper, a senior official in Bangladesh’s Ministry of Labor and
Employment, quoted in “Bangladesh: How rules went astray,” The Wall Street Journal,
December 5, 2012.

It was my fault. But nobody told me that there was no emergency exit, which could be made accessible from outside. Nobody even advised me to install one like that, apart from the existing ones. I could have done it. But nobody ever suggested I do it.
- Factory owner Delwar Hossain quoted in the Dhaka, Bangladesh, The Daily Star
newspaper, November 29, 2012.

These factories should be shut down, but who will do that? Any good government inspector who wants to act tough against such rogue factories would be removed from office. Who will take that risk? [Kalpona Akter, Executive Director of the Bangladesh Center for Worker Solidarity]…These factories should be closed, but it is not an easy task. We need to follow a protracted legal battle. Always there is pressure because the owners are influential. They can manage everything. [anonymous Dhaka fire official].
- quoted in “Bangladesh Factory Where Dozens Died Was Illegal,” Associated
Press, December 7, 2012.

“We want the owner to reopen the factory as soon as possible or pay us a few months of salary because we have nowhere else to go right at this moment,” said Hasan, a worker who escaped the fire and uses only one name…”I need to recover soon. I need money immediately. We want at least four months of salary to just get by now and by this time, we will look for jobs in other factories,” said Dipa Akter, the 19-year-old worker who injured her led escaping the fire and who has worked at the factory for three years. “Otherwise, I have to go back to my village, where I have nothing to do.”
- BBC News, November 30, 2012

Read more about "job safety"
Dec 03, 2012
The National Institute for Occupational Safety and Health (NIOSH) has published a video to enchance trucker safety. The video, Move IT!, Covers rig move safety for truckers in the oil and gas fields. It helps make sense of the ...
Nov 30, 2012
OSHA has cited the company for three serious safety violations related to the fatalities, including exposing workers to "struck-by" hazards by not protecting them against overpressurization, and failing to maintain and service ...
Nov 28, 2012
OSHA has cited Continental Terminals Inc. for nine serious and two willful safety violations at the company's Jersey City facility. Inspectors were notified of alleged hazards at the facility while they were inspecting another ...
Dec 01, 2012
The U.S. Department of Transportation's Federal Aviation Administration, working with the U.S. Department of Labor's Occupational Safety and Health Administration, today proposed a new policy for addressing flight attendant ...

Sunday, December 9, 2012

Insurance Company Broker Caught Cooking the Books

NJ Attorney General Jeffrey S. Chiesa announced that an employee of a former Morris County insurance brokerage company pleaded guilty today to stealing several million dollars entrusted to her employer. These funds had been entrusted to the insurance brokerage for the purpose of purchasing insurance policies for small and medium-sized businesses in New Jersey and New York.

Kelly Roetto, 45, of Bedminster, pleaded guilty to an accusation charging her with second-degree theft by unlawful taking, second-degree issuing bad checks, and second-degree misconduct by a corporate official before Superior Court Judge Thomas V. Manahan in Morris County.
Judge Manahan scheduled sentencing for Dec. 19.Under the plea agreement, the state will recommend that Roetto be sentenced to nine years in state prison. In addition, Roetto will be ordered to pay restitution and will agree to never again obtain an insurance license in the State of New Jersey.

“This defendant used her position of trust within this insurance brokerage firm to divert millions of dollars,” Attorney General Chiesa said. “My office will continue to work with the insurance industry to root out corrupt insurance brokers.”

“This crime attacked the integrity of our insurance system by deceiving both companies seeking insurance and companies that finance such insurance,” Acting Insurance Fraud Prosecutor Ronald Chillemi said. “Such crimes warrant vigorous prosecution and serious sanctions.”

At the time of the crime, Roetto was the controller for a now-defunct insurance brokerage called the John A. Rocco Co., Inc. (JarCo), located in Florham Park. JarCo was in the business of obtaining insurance policies on behalf of small and medium-sized trucking, hauling, waste management, moving, and recycling businesses located in New Jersey and New York. As part of its operations, JarCo would arrange for these businesses to finance the cost of such insurance policies, and used its existing relationships with numerous premium finance companies for this purpose. In her capacity as the Controller for JarCo, Roetto was responsible for arranging this financing and for ensuring that the borrowed funds were forwarded from JarCo’s bank accounts to the insurance carriers or their respective agents.

In pleading guilty, Roetto admitted that between January 1, 2008 and May 28, 2010, she used her position as JarCo’s controller to steal between $3,800,000 and $5,000,000 of financed proceeds. The state’s investigation revealed that Roetto was able to perpetrate these offenses by capitalizing on the complexity of the premium finance transaction process using a combination of different schemes.  For example, Roetto admitted that she knew that these finance companies sent financed proceeds to JarCo with the understanding that they would be used to purchase insurance policies on behalf of businesses seeking coverage.  She further admitted that on numerous occasions she failed to send this money to the carriers and, instead, exercised unlawful control over such money by using it for a purpose other than its intended purpose.

Roetto also admitted that she caused unauthorized finance agreements to be submitted to these finance companies and that she used the proceeds obtained in connection with these unauthorized agreements for unlawful purposes. In addition, Roetto admitted that she used her position to issue more than 200 bad checks totaling more than $2,000,000.  These checks were drawn on many of JarCo’s bank accounts at not fewer than 10 banks.

Read More About Insurance Company/Employer Fraud
Jul 12, 2012
Corporate Workers Compensation Fraud: California Targets Underground Economy. Sweep targets contractors operating in California's underground economy. Insurance Commissioner Dave Jones today announced that a ...
Apr 11, 2011
Perception is reality until proven otherwise, and when it comes to fraud in the workers' compensation system there is the perception that employee fraud is widespread and costs are up because of employee fraud. Could that ...
Mar 04, 2012
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Apr 14, 2011
In recent testimony before the US House of Representatives' Committee on Oversight and Government Reform, David C. Williams, Inspector General of the US Postal Service, reported widespread fraud in the system, and with ...

Saturday, December 8, 2012

Dedicated Bike Lanes Can Prevent On-The-Job Injuries

Traffic accidents are major factors in the death of workers on the job. A recent report from the American Public Health Association reports that separate cycling lanes will prevent accidents.

Objectives. We compared cycling injury risks of 14 route types and other route infrastructure features.

Methods. We recruited 690 city residents injured while cycling in Toronto or Vancouver, Canada. A case-crossover design compared route infrastructure at each injury site to that of a randomly selected control site from the same trip.

Results. Of 14 route types, cycle tracks had the lowest risk (adjusted odds ratio [OR] = 0.11; 95% confidence interval [CI] = 0.02, 0.54), about one ninth the risk of the reference: major streets with parked cars and no bike infrastructure. Risks on major streets were lower without parked cars (adjusted OR = 0.63; 95% CI = 0.41, 0.96) and with bike lanes (adjusted OR = 0.54; 95% CI = 0.29, 1.01). Local streets also had lower risks (adjusted OR = 0.51; 95% CI = 0.31, 0.84). Other infrastructure characteristics were associated with increased risks: streetcar or train tracks (adjusted OR = 3.0; 95% CI = 1.8, 5.1), downhill grades (adjusted OR = 2.3; 95% CI = 1.7, 3.1), and construction (adjusted OR = 1.9; 95% CI = 1.3, 2.9).

Conclusions. The lower risks on quiet streets and with bike-specific infrastructure along busy streets support the route-design approach used in many northern European countries. Transportation infrastructure with lower bicycling injury risks merits public health support to reduce injuries and promote cycling.

Read More: http://ajph.aphapublications.org/doi/abs/10.2105/AJPH.2012.300762?journalCode=ajph&&


Read more about motor vehicle accidents and workers' compensation

Jul 25, 2012
Court Rules Site of Accident Invokes Exclusivity Rule. English: Motor vehicle accident following a ve... A NJ appeals court ruled that a motor vehicle accident cause by a co-worker in the emplyers' parking lot, before work had.
May 23, 2011
In 2009, motor vehicle crashes resulted in approximately 23,000 deaths to passenger vehicle occupants (excluding motorcyclists), and 2.6 million occupants were treated for injuries in emergency departments in the United ...
Nov 29, 2011
The Federal Motor Carrier Safety Administration (FMCSA) proposes to restrict the use of hand-held mobile telephones, including hand-held cell phones, by drivers of commercial motor vehicles (CMVs) while operating in ...
Apr 18, 2011
OSHA will investigate motor vehicle accidents, including cell phone records, and will issue citations and fine employers where an accident involved texting while driving. While OSHA has juridiction over employers, and not ...


Friday, December 7, 2012

Triangle Shirt Waist Fire -- Revisited

"They killed time. Time was so precious, so important. But they said it was a false alarm."ABU NAYEEM MOHAMMAD SHAHIDULLAH, director general of Bangladesh's national fire service, on the actions of some managers during a fatal fire at a garment factory." 

Read the complete story (NY Times):

THE HUMAN PRICE

Horrific Fire Revealed a Gap in Safety for Global Brands

By JIM YARDLEY
A blaze that killed 112 workers in Bangladesh last month exposed a disconnect among retailers like Sears and Walmart, the monitoring system to protect workers and the factories filling the orders.