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

Thursday, January 24, 2013

Temporary Employees Cannot Be Excluded From Workers’ Compensation

Today's post comes from Paul J. McAndrew, Jr. of the Iowa bar. Paul 's expertise in workers' compensation issues is nationally known and he has bee an zealous advocate for workers' rights.

According to a recent decision by the Texas Supreme Court, a temporary employee cannot be excluded from an employers’ workers’ compensation policy. In 2005, Rafael Casados was killed on his third day at work at a grain storage facility owned by Port Elevator-Brownsville L.L.C.

Because Casados was a temporary employee of Port Elevator at the time of his death, he was initially awarded a liability ruling of $2.7 million directly from Port Elevator.

However, according to the latest Supreme Court ruling, Casados’s family should receive remedy under Port Elevator’s workers’ compensation policy instead. Port Elevator’s insurance provider is liable for Casados’s death benefits, despite the fact that Port Elevator never paid workers’ compensation insurance for any of their temporary employees.

According to the decision: “If Port Elevator’s policy had set out certain premiums solely for temporary workers and Port Elevator had not paid those premiums, Casados would still have been covered under the policy and the failure to pay premiums would be an issue between Port Elevator (their insurance provider).”    

 Photo Credit:sixninepixels / FreeDigitalPhotos.net

Tuesday, January 22, 2013

US Supreme Court Upholds Equitable Tolling In Reimbursement Matter

US Supreme Court Upholds Equitable Tolling In Reimbursement Matter
Sebelius v. Auburn Regional Medical Center, Decided Jan. 22, 2013

"But this Court has explained that giving intermediaries more time to discover overpayments than providers have to discover underpayments may be justified by the “administrative realities” of the system: a few dozen  fiscal intermediaries are charged with issuing tens of thousands of NPRs, while each provider can concentrate on a single NPR, its own.  Your Home Visiting Nurse Services, Inc. v. Shalala, 525 U. S. 449, 455, 456.  Pp. 11–14. "
See full analysis on Scotus Blog.

Read more about equitable tolling:

Nov 13, 2012
ERISA health reimbursement claims asserted in Workers' Compensation claims may be subject to equitable relief depending on the upcoming decision in a case pending before the US Supreme Court. Oral argument is ...
Nov 22, 2011
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 ...
Nov 29, 2012
The US Court of Appeals for the Third Circuit, in defiance of several other circuits held [opinion] that "appropriate equitable relief" did not include revoking the payment to McCutchen. Interestingly enough at oral argument ...
Dec 05, 2011
US Supreme Court Maybe Asked to Rule on CMS Issue: "The Doctrine of Equitable Allocation". The 6th ... The Doctrine of Equitable Allocation Not Applicable in a Medicare Secondary Payment Reimbursement Claim A recent ...

Monday, January 21, 2013

Boston Globe: Teen Work Related Injuries a “Major Problem”

Today's post comes from Deborah Kohl from Deborah G. Kohl Law Offices of Massachusetts. 

A recent article published in the Boston Globe cites injuries to teenagers are, “A major problem,” according to the Massachusetts Department of Public Health. The article can be found here. The article further goes on to state that rules are often “flouted” for minors. The majority of injuries to teenagers take place in retail jobs or those in the the food preparation and service industry.

The article reports that the injuries are often serious ones such as cuts from deli/meat slicers and back/neck pain as a result heavy lifting in service and landscaping jobs. The article also reported, “One local teen, who asked not to be identified fearing retaliation from his boss, described going onto a highway to retrieve supermarket carts.” Everyone, regardless of age, has the right to expect nothing less than a safe working environment.

If you are injured at work, do not hesitate to immediately report the injury to your employer. If you feel that your rights have been violated with respect to an injury you sustained on the job, please contact us to discuss your situation.

Read more abut child labor.

Dec 14, 2012
The U.S. Department of Labor's Bureau of International Labor Affairs today introduced Reducing Child Labor and Forced Labor: A Toolkit for Responsible Businesses, the first guide developed by the U.S. government to help ...
Sep 14, 2012
The US Library of Congress has just posted digital images o child labor that are in it s collection. Workers' Compensation benefits are but one instance that enforce penalties when child labor laws are not followed.
Jan 03, 2013
Other reforms included workplace safety regulations, child labor laws, and enhanced fire inspections, among others. There is a growing effort by worker groups to demand safety reforms in Bangladesh where factory fires have ...
Nov 22, 2011
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 ...

UN Announces Treaty to Restrict Use of Mercury

Over 140 governments meeting at a United Nations forum in Geneva have agreed to a global, legally-binding treaty to address mercury, a notorious heavy metal with significant health and environmental effects.

The Minamata Convention on Mercury – named after a city in Japan where serious health damage occurred as a result of mercury pollution in the mid-20th Century – provides controls and reductions across a range of products, processes and industries where mercury is used, released or emitted.

These range from medical equipment such as thermometers and energy-saving light bulbs to the mining, cement and coal-fired power sectors, according to a news release issued today by the UN Environment Programme (UNEP), which convened the negotiations.

“After complex and often all-night sessions here in Geneva, nations have today laid the foundations for a global response to a pollutant whose notoriety has been recognized for well over a century,” said UNEP Executive Director Achim Steiner.

“Everyone in the world stands to benefit from the decisions taken this week in Geneva, in particular the workers and families of small-scale gold miners, the peoples of the Arctic and this generation of mothers and babies and the generations to come. I look forward to swift ratification of the Minamata Convention so that it comes into force as soon as possible,” he added.

The treaty, which has been four years in negotiation and which will be open for signature at a special meeting in Japan in October, also addresses the direct mining of mercury, export and import of the metal and safe storage of waste mercury.

Pinpointing populations at risk, boosting medical care and better training of health care professionals in identifying and treating mercury-related effects will also form part of the new agreement.

UNEP noted that mercury and its various compounds have a range of serious health impacts, including brain and neurological damage especially among the young. Others include kidney damage and damage to the digestive system. Victims can suffer memory loss and language impairment alongside many other well documented problems.

Among the provisions of the treaty, governments have agreed on a range of mercury-containing products whose production, export and import will be banned by 2020. These include batteries, except for 'button cell' batteries used in implantable medical devices; switches and relays; certain types of compact fluorescent lamps (CFLs); mercury in cold cathode fluorescent lamps and external electrode fluorescent lamps; and soaps and cosmetics.

Certain kinds of non-electronic medical devices such as thermometers and blood pressure devices are also included for phase-out by 2020.

Governments also approved exceptions for some large measuring devices where currently there are no mercury-free alternatives. In addition, vaccines where mercury is used as a preservative have been excluded from the treaty as have products used in religious or traditional activities.

Read more about toxicity of mercury:
Dec 20, 2012
The US EPA has announce that mercury, a hazardous substance, that was dischardged by EI DuPont in the Pompton River in NJ will be removed. For decades it has been known that mercury exposure causes illness and ...
Nov 26, 2012
Irving J. Selikoff Center for Occupational & Environmental Medicine at Mount Sinai School of Medicine has released a guide to treatment for elemental mercury ((the pure form of the metal, when it is not combined with other ...
Mar 05, 2010
For example, nearly 70 years ago, on December 1, 1941, the U.S. Public Health Service ended mercury's use by hat manufacturers in 26 states through mutual agreements. The kinds of conditions that put hat-makers and ...
May 09, 2012
The U.S. Environmental Protection Agency will discuss plans to address high levels of contaminants, including PCBs, mercury and dioxin, which are present in Passaic River mud adjacent to Riverside Park in Lyndhurst, New ...

Sunday, January 20, 2013

Paper or Plastic: A Reusable Workplace Hazard From The Grocery Store

Most people have been driven by guilt or cost into thinking about using a reusable shopping bag from the grocery store. A recent report indicates that sometimes the bags, because they are not sanitized by regular cleaning, become killer bacteria farms that may be transported into the workplace in a casual fashion.

Brought home from the grocery store, reusable and contaminated shopping bags then become storage and transport containers left baking in the car and carried everywhere for convenience from gyms, to libraries, and then into the workplace for lunch.

A recent report reflects that the reusable grocery bags often become contaminated by bacteria, since they are not cleaned properly nor  regularly, and that deadly bacteria colonize in the bags resulting human illness and increased emergency room visits.

"Recent studies, however, suggest that reusable grocery bags harbor harmful bacteria, the most important of which is E. coli. If individuals fail to clean their reusable bags, these bacteria may lead to contamination of the food transported in the bags. Such contamination has the potential to lead to health problems and even death."
....
Jon L.Gelman of Wayne NJ, helping victims of workplace injuries 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).  

Other article of current interest

Saturday, January 19, 2013

The Obama Agenda: The Road to Workplace Wellness

As workers compensation programs are being diluted by soaring medical costs, The Obama Administration's policy makers are taking a bold new step to focus on promoting wellness and disease-prevention efforts in the workplace. 

Immediately following the presidential elction last November, the Department of Labor, Internatl Revenue Service and the Department of Health and Human Services proposed regulations to enforce workplace wellness programs under thre Affordable Care Act. The proposed regulations will stimulated employer programs to invite healthier workers and may go as far as penalizing those who maintian poor diets and inadequate exercise regiems. 
"... regulations would increase the maximum permissible reward under a
health-contingent wellness program offered in connection with a group
health plan (and any related health insurance coverage) from 20 percent
to 30 percent of the cost of coverage. The proposed regulations would
further increase the maximum permissible reward to 50 percent for
wellness programs designed to prevent or reduce tobacco use. These
regulations also include other proposed clarifications regarding the
reasonable design of health-contingent wellness programs and the
reasonable alternatives they must offer in order to avoid prohibited
discrimination."
One analysis of the proposal concludes......
"We are cautiously optimistic about the potential of workplace-wellness programs to help contain healthcare costs and to improve the health and well-being of millions of California’s workers. Preventing illness and injury through workplace-based strategies potentially benefits employees and their families, employers, and public and private insurance providers. There is emerging evidence about the effectiveness of WWPs in improving chronic disease outcomes, and a long history of occupational health and safety practices reducing workplace injury and death. Incentives in the ACA have the potential to serve as a catalyst for expanding WWP’s broadly in California. However, policy solutions need to respond to potential unintended consequences and account for the state’s incredibly diverse communities and businesses in order to make wellness programs work for all Californians."

Read The Greenlining Institute's report "Helth, Equity and the Bottom line: Workplace Wellness and California Business

Comments are due on or before January 25, 2013.

Read more about health care and workplace injuries and illnesses.

Jan 10, 2013
Curing the Profit Motive in Health Care. Soaring medical costs have afflicted the workers' compensation industry with economic distress and have severely impacted the efficient and effective delivery of medical care to injured ...
Nov 20, 2012
The National Institute For Occupational Safety And Health (NIOSH) has revised and republished informational material concerning the health hazards to healthcare workers were exposed to hazardous drugs. The publication ...
Nov 05, 2012
Access to health insurance is under attack. President's Obama's comprehensive health care reform law, intended to increase health care coverage for millions of Americans, faced extreme scrutiny by the U.S. Supreme Court ...
Sep 12, 2012
Throughout the nation Workers' Compensation systems have been impacted by health care costs that now take a large piece of the premium dollar. Traditional health care offered by employers mirrors the same problem of ...


Beneficiary Not Permitted Injunctive Relief From EIRSA Plan Invoking MSP Terms

A Federal Court held that a beneficiary was unable to seek injunctive relief against an EIRSA plan, where the beneficiary sought to have the ERISA Plan action to declare Medicare the primary plan and subject to the Medicare Secondary Payer Act (MSP). The ERISA plan was held to have the right to changes the terms of the plan in order to align the UNICare Benefits of Choice Program with federal law.

The court declared the MSP action alleged in the complaint moot as it granted the motion to dismiss on the injunctive relief issue. The plaintiff/beneficiary sought to allege a private cause of action for double damages against "those of any entity contractually obliged to pay for an individual’s primary health care" The Court held, "....the plaintiff is not attempting to collect damages for medical bills improperly paid by Medicare on his behalf, but instead seeks an injunction requiring Unilever to pay for future medical expenses. No court has allowed a claim for injunctive relief under § 1395y(b)(3)(A) and I am persuaded that such a claim is not authorized by the statute." Im a footnote the indicated, "The government may be authorized to seek declaratory and injunctive relief under § 1395y (b)(2)(B)(iii)See United States v. Baxter Int'l, Inc., 345 F.3d 866, 909 (11th Cir.2003)."

PACHALY v. BENEFITS ADMINISTRATION COMMITTEE UNILEVER UNITED STATES INC. et al., 2913 WK 172993 (DC CT 2013) Decided Jan. 16, 2013