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Senin, 16 Januari 2012

Workers Injury Rights Blog Launched

The Workers' Injury Rights blog has been launched by the Law Office of Deborah G. Kohl of Fall RIver, Massachusetts. Attorney Deborah G. Kohl has focused her professional energies on workers’ compensation and disability law through her nearly 30 years in practice. 

Attorney Kohl stated, "We started this blog because we are passionate about workers' compensation and workers' rights. It is a way to share some of what we've learned in our decades of legal experience with anyone concerned about workplace safety."

She is an active lecturer and author in the field, and has held several prestigious leadership positions, including serving as president of the Workers Injury and Law Advocacy Group. She is perennial listed in the publication Best Lawyers In America.

The lead article of the blog is entitled, "Workers' Compensation is all about Relationships," by Ryan Benharris. Mr. Benharrus stated, "Prevention of accidents should be the first step in establishing a successful workers’ compensation system."

Click here to visit: Workers' Injury Rights

Kamis, 12 Januari 2012

The Law School's Roll in Workers' Compensation Law To Be Discussed

At the American Bar Association Midwinter Seminar & Conference, Co-sponsored by Tort, Trial and Insurance Practice Section and the Labor Law Section of the ABA, members of The College of Workers' Compensation Lawyers will present a special panel discussion addressing the issue of teaching workers’ compensation in the nation’s law schools. All of the panelists have experience as adjunct professors teaching workers’ compensation. The program is scheduled March 8-12, 2012 in San Antonio, Texas. They will review how many law schools are featuring a workers’ compensation course, how the panelists teach the subject, and they will also provide advice on how to lobby a law school to initiate such a course. The College members will be accompanied by a special guest from Texas, workers’ compensation hearing officer Hon. Patrice Squirewell-Jean, who has taught as an adjunct at Thurgood Marshall School of Law/Texas Southern University.


The College of Workers' Compensation Lawyers has been established to honor those attorneys who have distinguished themselves in their practice in the field of workers' compensation. Members have been nominated for the outstanding traits they have developed in their practice of twenty years, or longer, representing plaintiffs, defendants, serving as judges, or acting for the benefit of all in education, overseeing agencies and developing legislation.


To read more about the conference click here.

Jumat, 09 Desember 2011

Misrepresentation on Pre-Employment Application Not A Bar to Benefits

Brody J. Ockander
The Nebraska Supreme Court has ruled that an employee's misrepresentation on a pre-employment application did not act a defense to bar workers' compensation benefits. The employee failed to include all his prior injuries on the application.

Bassinger v. Nebraska Heart Hospital, (NE. 2011) Decided December 9, 2011.

Claimant's Attorney: Brody J. Ockander or Rehm, Bennett & Moore, P.C. L.L.O

"....we affirmed the Workers’ Compensation Court’s finding that the evidence was insufficient to show a causal connection between the driver’s misrepresentations and this subsequent accident."

"....We have previously explained that workers’ compensation laws reflect a compromise between employers and employees. Under these statutes, employees give up the complete compensation that they might recover under tort law in exchange for no-fault benefits that they quickly receive for most economic losses from work-related injuries. So we have consistently held that the act’s intent is to provide benefits for employees who are injured on the job, and we will broadly construe the act to accomplish this beneficent purpose."

read more...


The Times They Are Changing

This year fall athletics have seem to be taking center field reflecting the problems of an inadequate workers' compensation system. The issues of safety, compensatibility, venue, benefit rates and medical care, are symptoms of a greater problem and are becoming a catalyst for change.

Today, David DePaolo, the President & CEO of WorkCompCentral, has editorialized of the lack of the ability of the workers' compensation system to meet present needs is now a major concern and that generally workers' compensation is just no longer relevant.

Click here to read his recent post: Professional Sports and the Relevancy of Comp
"I see all of this as evidence that things are changing, and that the pace of change is quickening. Obviously such things don't change overnight, but I would wager that the work comp world is going to be a much different landscape in 20 years, or even 10."

Related articles

Sabtu, 15 Oktober 2011

Scientific Evidence and The Court

Last week the Third Edition of The Reference Manual on Scientific Evidence (2011) was published by The National Research Council and The Federal Judicial Center.


"The Reference Manual on Scientific Evidence, Third Edition, assists judges in managing cases involving complex scientific and technical evidence by describing the basic tenets of key scientific fields from which legal evidence is typically derived and by providing examples of cases in which that evidence has been used.
"First published in 1994 by the Federal Judicial Center, the Reference Manual on Scientific Evidence has been relied upon in the legal and academic communities and is often cited by various courts and others. Judges faced with disputes over the admissibility of scientific and technical evidence refer to the manual to help them better understand and evaluate the relevance, reliability and usefulness of the evidence being proffered. The manual is not intended to tell judges what is good science and what is not. Instead, it serves to help judges identify issues on which experts are likely to differ and to guide the inquiry of the court in seeking an informed resolution of the conflict.
"The core of the manual consists of a series of chapters (reference guides) on various scientific topics, each authored by an expert in that field. The topics have been chosen by an oversight committee because of their complexity and frequency in litigation. Each chapter is intended to provide a general overview of the topic in lay terms, identifying issues that will be useful to judges and others in the legal profession. They are written for a non-technical audience and are not intended as exhaustive presentations of the topic. Rather, the chapters seek to provide judges with the basic information in an area of science, to allow them to have an informed conversation with the experts and attorneys.

Kamis, 13 Oktober 2011

Dramatic Downturn In Work Comp Underwriting Will Continue Predicts AM Best

Due to the stressed housing market and ongoing economic downturn, 2010 was another difficult year for the title industry, according to an A.M. Best Special Report featured in this week's BestWeek U.S./Canada.

Despite the historically low mortgage interest-rate environment, revenues were pressured from the high unemployment rate and tightened credit standards. As such, operating results deteriorated and total industry written premiums declined slightly, year over year, A.M. Best said. Nevertheless, the title insurance industry managed to report an overall approximate 7% increase in surplus, driven mainly by the equity market recovery in 2010.

Also in BestWeek U.S./Canada, it's unlikely workers' compensation writers will see that line of business turn around anytime soon, despite large-scale workers' compensation reform bills enacted in several states this year, said Edward Keane, a senior financial analyst at A.M. Best.

Keane told BestWeek the deterioration that workers' compensation insurance has seen during the past two years will continue at least until mid-2012, unless the economy makes a dramatic improvement before then.

"I think the way things are going, results are going to get worse before they get better," Keane said, adding that for 2011, A.M. Best is projecting a 121.5 combined ratio. Last year, the combined ratio for the line was 118.1.

And with the election for Louisiana insurance commissioner coming up on Oct. 22, Jim Donelon, the Republican incumbent, and Donald Hodge, a Democrat, spoke to BestWeek about their opposing views.

Donelon has been spending aggressively to increase his name recognition and has continued his effort to court new insurers to the state. His opponent has gone on the attack, targeting Donelon for accepting campaign contributions from insurance companies doing business in the state. In fact, if Hodge had his way, he would be the last elected insurance commissioner in Louisiana.

Senin, 25 Juli 2011

US Senate to Hold Hearing on Federal Comp System Reform

On Tuesday, U.S. Senator Daniel K. Akaka (D-HI) will hold a hearing titled Examining the Federal Workers' Compensation Program for Injured Employees to examine reform proposals for the Federal Employees Compensation Act (FECA).


The Federal Employees Compensation Act (FECA) provides workers' compensation coverage to federal civilian workers for any injury or illness incurred on the job. FECA has not been significantly updated in close to 40 years. A number of changes have been proposed, which are intended to modernize the program, improve return-to-work incentives, and reduce the overall cost to the Federal government. Discussion will focus largely on proposals to reduce FECA wage loss compensation benefits for disabled FECA recipients who reach retirement age.


EXAMINING THE FEDERAL WORKERS’ COMPENSATION PROGRAM FOR INJURED EMPLOYEES

Subcommittee on Oversight of Government Management, the Federal Workforce, and the District of Columbia

Live video will not be available until approximately 15 minutes prior to the scheduled hearing start time.
Tuesday, July 26, 2011
02:00 PM - 05:00 PM
Dirksen Senate Office Building, room SD-342
The hearing will be webcast live at: hsgac.senate.gov 
Individuals with disabilities who require an auxiliary aid or service should contact Aaron Woolf, Subcommittee Chief Clerk, no later than 3 business days before the hearings. This will allow the office a reasonable amount of time before the event to make any necessary arrangements.

Witnesses

Panel 1

  • The Honorable Christine M. Griffin
    Deputy Director
    U.S. Office of Personnel Management
  • Mr. Gary Steinberg
    Acting Director, Office of Workers’ Compensation Programs
    U.S. Department of Labor
  • Mr. Andrew Sherrill
    Director, Education, Workforce, and Income Security
    U.S. Government Accountability Office

Panel 2


Selasa, 21 Juni 2011

Sun Exposure, Prevention and Workers Compensation

The first day of summer brings attention to working outside, sun exposure and the risk of skin cancer. Workers Compensation coverage offers a unique opportunity to provide affirmative action to prevent, detect and treat high risk workers before the disease takes a fatal course.

While working outside has the connotation of working in a clean air and healthy environment, the reality is quite the opposite. With a reduction of the world's ozone layer, workers exposed to the sun are at an increase risk of developing skin cancer at an even shorter exposure time. 

The US Food and Drug Administration (FDA) just published recommendations for sunscreens. This initial first step will most likely expand the government's roll in getting skin cancer under control. In the meantime, exposed and diagnosed workers must rely upon the workers' compensation programs for treatment and benefits as a result of occupational induced skin cancer resulting from the occupational exposure to the the sun.

Workers' Compensation insurance companies and employers would do well to heed the government's recommendations and take affirmative action to protect  employees and provide medical evaluations for medical monitoring and surveillance. That action may include: avoiding exposure to the sun,  seek regulation medical monitoring and mandating the use of sunscreens in the workplace. The risk of sun exposure is well known and employers should be encourage to protect workers from such obvious and deadly common place exposures.

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.

Sabtu, 07 Mei 2011

Worker Alleging Workers Compensation Discrimination Awarded $361,000

A worker in Minnesota was awarded $361,000 against his employer for being discriminated against for filing a workers' compensation claim. The worker alleged that the employer terminated him after he suffered a work related accident and filed a claim for workers' compensation benefits.

The worker was injured on the job when a car lost control and struck the truck that the worker was driving. The employer alleged that the employee did not disclose previous injuries on his job application and terminated him. A jury subsequently awarded the injured employee $111,000 in dames for lost wages and emotional distress and another $250,000 for punitive damages.

In New Jersey a discrimination complaint may be filed with the Division of Workers' Compensation as an administrative remedy, which is separate from any common law action which might be instituted against the employer. The Division of Workers' Compensation shall conduct an investigation and forward the complaint and the results of the investigation to the Commissioner of the Department of Labor within 30 days of filing. The Commissioner will then act in accordance with the statutory provisions to determine whether or not there has been an unlawful discharge of, or discrimination against, the employee as a result of an application for workers' compensation benefits or as a result of the employee's testimony in a workers' compensation claim. An employee who has been discriminated against will be restored to his employment and will be compensated by his employer for any loss of wages arising out of the discrimination, as long as he is still qualified to perform his job duties.

Kamis, 05 Mei 2011

New Facebook Address for Injured Workers Law and Advocacy Group

Keeping up with the times is important. Facebook has changed its group services and the Injured Workers Law and Advocacy Group is moving forward with them. Please make note of our new address and join us to keep updated on new developments, exchange information and observe and participate in discussions.


Click here to join us to our new address. http://tinyurl.com/4xzdbrh

Selasa, 03 Mei 2011

Texas Disallows Work Comp Retaliation Suits Against State Based on Sovereign Immunity

Guest Blog by Jon Rehm 

The Texas Supreme Court ruled that that sovereign immunity protects public employers against suits for retaliating against employees who file workers compensation cases. This is an unfortunate decision, but not a surprising decision based on the hostility directed towards public employees in today’s political climate. Legally the Texas case was supported by a broad view of sovereign immunity that covered operational aspects of government in addition to its policy making role. Advocates for injured workers should be aware that employers and insurers will attempt to have other states adopt Texas’ approach to workers compensation retaliation suits against public employers. 

Though Texas has restricted the ability of public employees to bring workers comp retaliation suits, the majority of states have a cause for action for retaliation for filing for workers’ compensation claims by statute or case law. This cause of action prevents employers from taking the following stand with their injured workers: 

“Although you have no right to a tort action, you have a right to a workmen's compensation claim which, while it may mean less money, is a sure thing. However, if you exercise that right, we will fire you.”Leach v. Lauhoff Grain Co., 51 Ill.App.3d 1022, 366 N.E.2d 1145, 9 Ill.Dec. 634 (1977). 

So how does one know that an employer is retaliating against an injured worker for filing a workers compensation claim? One you have to file for a workers compensation claim. This is usually a given in these cases. However in Kasten v. Saint-Gobain Performance Plastics Corp., the Supreme Court recently held that an oral notice of a wage and hour claim to the employer qualified as a filing a claim for the purpose of an FLSA retaliation claim. 

Then the employer has to retaliate against the employee. Again this is a given if the employee has been fired, but can mean any adverse employment action taken against the employee. However while “less flagrant reprisals by employers may indeed be adverse ... not every unpleasant matter short of discharge or demotion creates a cause of action for retaliatory discharge.” Richardson v. New York State Dep't of Correctional Serv., 180 F.3d 426, 446 (2d Cir.1999) Attorneys need to check the law in their jurisdiction to see how far courts in their particular jurisdiction have stretched retaliation. 

The heart of a workers compensation retaliation case is linking the retaliation to the filing of the workers compensation claim. This is usually done by circumstantial evidence because employers rarely announce retaliation as a motive. Among the factors showing retaliation: 

(1) knowledge of the compensation claim by those making the decision on termination; (2) expression of a negative attitude toward the employee's injured condition; (3) failure to adhere to established company policies; (4) discriminatory treatment in comparison to similarly situated employees; and (5) evidence that the stated reason for the discharge was false. Continental Coffee Products v. Cazarez, 937 S.W.2d 444, 451 (Tex. 1996). 

In addition proximity in time between filing and retaliation and satisfactory job performance are circumstantial evidence of motivation. Riesen v. Irwin Indus. Tool Co., 272 Neb. 41, 717 N.W.2d 907 (Neb. 2006) 

Notice of the workers compensation injury by the employer is usually the easiest element to prove. Though you probably won’t get an employees boss to admit he or she made negative comments about employees injured condition, your client’s testimony that there were negative comments about their injured condition are sufficient for the purposes of defending a summary judgment motion. 

Proving a company failed to adhere to their own policies usually means that counsel for the employee needs to obtain and familiarize him or herself with the defendant’s employee handbook if one exists. Failure to follow their own procedure can also be evidence that an employer’s reason for firing your client was false. 

Proving discriminatory treatment in comparison to other employers requires fact-specific discovery. In the Riesen case, the employee was fired because he falsified his employment application by not listing all of his previous employers. His employment application only listed room for three employers but asked employees to attach another sheet for more employers. Plaintiff only listed three employers on his application, but listed more on his answers to interrogatories which HR manager for the defendant had read. Plaintiff surmounted this hurdle by showing that almost all the employees at the plant did not attach additional sheets for other employers. Plaintiff also showed that plaintiff was only employee terminated for not listing all of his employers in his employment application. 

Proximity in time between filing and retaliation is another element of cause. Just because an employee was fired many months after they initially filed for comp doesn’t defeat proximity. You can still tie retaliation to proximity if you can tie the retaliation to action like hiring a lawyer or having an expensive surgery. 

Satisfactory job performance can also prove retaliation. If a client had good performance reviews and an absence of discipline prior to the work injury, but starts receiving write-ups and poor reviews after the work injury then you have evidence of retaliation. 

In addition to proving a link between the retaliation and the workers comp claim, plaintiffs usually need to prove the defendant’s stated reason for discharge was false. If the plaintiff offers evidence of the elements listed above then they can usually make the case that the reason for retaliation was pre-textual. 

Hopefully this article has given some guidance for how workers compensation practitioners can prosecute retaliatory discharge cases. With aggressive lawyering and creative thinking, workers compensation practitioners can get good results for their clients and discourage employers from interfering with injured workers rights to receive workers compensation benefits in their jurisdictions.

Jon Rehm practices in Lincoln, Nebraska (Rehm, Bennett & Moore, PC, LLO). He concentrates his practice on representing injured workers and their families. He hold a  degree in journalism from Northwestern University(B.S.) and a law degree from Nebraska College of Law(J.D.).  Jon is a member of the Nebraska State Bar Association, the Nebraska Association of Trial Attorneys and the Workplace Injury Law Advocacy Group.

Jumat, 08 April 2011

Illinois Workers Compensation Maybe Heading for Extinction

Illinois lawmakers are now looking at terminating its failed workers' compensation sytem entirely, and allowing civil suits to proceed instead. The State of Illinois is not alone in recognizing that ailing workers' compensation systems throughout the US are having difficulty fulfilling legislative intent, to provide a summary and redial system of benefits under a no-fault system, to injured workers.


Representative John Bradley (D-Marion) said, "Let's give the courts a chance. Let's try something else. Because we know what we've been doing isn't working," 


Read the Article in the Chicago Tribune: http://tinyurl.com/3nk2cx6

Sabtu, 26 Februari 2011

Montana Targets Workers Compensation to Reduce Deficit Spending

The State of Montana has targeted its workers' compensation program in an effort to reduce its deficit spending. Montana has the some of the largest premium costs in the nation and the state ranks 47th in take home pay. Legislation now pending will reduce workers' compensation premiums by 45% allegedly.

Using the Forbidden Words-Texas Workers Compensation

The Texas Workers Compensation Agency has sent a cease-and-desist letter to to the author of the Texas Workers Compensation Law Blog requesting that he stop using the term(s), "Texas Workers Compensation" in his blog. The Lubbock, Texas workers compensation lawyer has filed a lawsuit in federal court alleging violation of his First Amendment rights have been violated.


The Texas Labor Code s 419.002 prohibits  “any impersonation, advertisement, solicitation, business name, business activity, document, product or service.” The Texas blog author, who has sought declaratory relief,  has alleged that the statute is overly broad and violates his Right to Free Speech. The blogger is certified in Workers' Compensation Law from the Texas Board of Legal Specialization.

Selasa, 08 Februari 2011

Facebook Becomes a Questionable Friend of Workers Compensation

Social networking’s popularity has become a two-edged sword as a tool in the management, investigation, and disposition of workers’ compensation claims. Over the last several years there has been an exponential explosion in the use of this technology on the Internet. The challenge to properly access and effectively utilize the electronically stored information [ESI] is resulting in procedural and ethical ramifications for the workers’ compensation community.


Complete article appears as a guest blog on: PropertyCasualty360

Senin, 22 November 2010

Iowa Workers' Compensation Commissioner Tells Congress AMA Guides Are Objectionable

The Commissioner of the Iowa Division of Workers' Compensation, Christopher James Godfrey, recently testified before Congress that AMA Guides 6 Ed. were problematic. The Commissioner cited the 2008 Iowa Task Force report that found multiple errors and cultural bais in the AMA Guides.

An additional objection made was that the Guides were in conflict with both Iowa statutory and case law. The Commissioner stated, "With all due respect to Dr. Brigham, the Iowa Workers’ Compensation system will evolve and improve when it is decided by the citizens of Iowa that it will evolve and improve. The system will not evolve at the whim or business opportunity of either one physician, one medical association, or a small consensus of the two."


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Kamis, 18 November 2010

Dean Emily Spieler Requests Congress to Review The Workers' Compensation Disability Rating System

In recent testimony before the Subcommittee on Workforce Protections Committee on Education and Labor U.S. House of Representatives, Emily A. Spieler, Dean of the Northeastern University Law School, requested further investigation to develop a new rating system for workers compensation claims.


Dean Spieler reviewed current difficulties with the current AMA Guides 6th ed. She stated,
"I urge that you ask the National Academies of Science / Institute of Medicine to conduct a review. This review should include recommendations regarding the best way to develop a new system for rating workers’ injuries as measured by the impact of those injuries and diseases on the extent of permanent impairments, limitations in the activities of daily living, work disability and nonwork disability (or noneconomic losses)."


Click here for complete testimony.

Selasa, 16 November 2010

CMS Extends Interim Dollar Reporting Threshold Date

II. Extension of Current Dollar Thresholds for Liability Insurance
(Including Self-Insurance) and Workers’ Compensation

The interim dollar reporting thresholds set forth in Section 11.4 of version 3.1 of the MMSEA 111 Liability Insurance (Including Self-Insurance), No-Fault, and Workers’ Compensation User Guide have all been extended by one calendar year.

Under Section 11.4, “Workers’ Compensation ORM”, the date 12/31/2011 is changed to 12/31/2012.
Under Section 11.4, “Liability Insurance and Workers’ Compensation TPOC Amounts”, the last four bullets are revised to read:
• Claim reports where the last (most recent) TPOC Date is prior to January 1, 2013 with TPOC Amounts totaling $0.00 - $5,000.00, are exempt from reporting. Initial claim reports (add records) with no ORM (ORM Indicator = ‘N’) where the most recent TPOC Date is prior to January 1, 2013 with a total TPOC amount less than or equal to $5000.00 will be rejected.
• Claim reports where the last (most recent) TPOC Date is January 1, 2013 through December 31, 2013 with TPOC Amounts totaling $0.00 - $2000.00, are exempt from reporting. Initial claim reports (add records) with no ORM (ORM Indicator = ‘N’) where the most recent TPOC Date is prior to January 1, 2014 with a total TPOC amount less than or equal to $2000.00 will be rejected.
• Claim reports where the last (most recent) TPOC Date is January 1, 2014 through December 31, 2014, with TPOC Amounts totaling $0.00 - $600.00 are exempt from reporting. Initial claim reports (add records) with no ORM (ORM Indicator = ‘N’) where the most recent TPOC Date is prior to January 1, 2015 with a total TPOC amount less than or equal to $600.00 will be rejected.
• No threshold applies to claims where the last (most recent) TPOC Date is January 1, 2015 and subsequent.

November 09, 2010
Medicare Secondary Payer Mandatory Reporting Provisions in
Section 111 of the Medicare, Medicaid, and SCHIP Extension Act of 2007
(See 42 U.S.C. 1395y(b)(7)&(b)(8))


Rabu, 03 November 2010

The Election Validates A New Approach to Workers Compensation

The recent election results confirm that a new approach to handling the century old workers' compensation is needed and that some definite trends are developing.

Washington State: The insurance industry initiative for privatization was defeated.

New Jersey: The constitutional amendment to prohibit raiding the Second Injury Fund revenue was passed.

California: Jerry Brown was elected governor and the Republican assault on the state compensation system rejected.

Nevada: Harry Reid was re-elected validating the innovated "Libby Health Care" Plan for medical care for occupational illness and the Federalization of the program and the US Senate's initiative.

New York: Andrew Cuomo was elected governor and revision is likely of the administrative assault on workers' rights.

Nationally, the soaring US deficit, and a State system that continues to fail to deliver health care to occupationally injured workers, will eventually need to be addressed by Congress. The 2008 strong Democratic mandate has not evaporated. The Democrats still control the Senate (51-D v 46-R) and downtown at White House. The newly acquired House Republican majority (234-R v 180-D) is instilled with the chaos of an unsettling newly emerging third party, Tea Party, alliance.

The course ahead still remains promising for enacting a unified and coordinate program to help injured workers obtain medical care for occupational diseases on a timely and effective basis without breaking the bank. The vision of a coordinated epidemiological research program to prevent occupational disease and  insure safe working conditions remains hopeful.


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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 work related accident and injuries.