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Jumat, 20 Januari 2012

IAIABC Partnering with Self-Insurance Guaranty Funds

The International Association of Industrial Accident Boards and Commissions (IAIABC) and Self-Insurance Guaranty Funds of America (SIGFA) announced their partnership in 2012. Working together, the two groups hope they will foster greater discussion among members of U.S. guaranty funds and workers’ compensation regulators. This collaboration will enable the sharing of collective knowledge and expertise on common interests, particularly self insurance regulation.

Beginning in 2012, SIGFA will host its annual meeting in conjunction with the IAIABC 98th Annual Convention. “We are excited about this agreement as there is a natural alignment between the two groups,” commented Alan McClain, IAIABC Past President. “We look forward to welcoming fund administrators from across the nation to our annual meeting.” Guaranty funds play an important role in the U.S. workers’ compensation system and their participation will enrich conference discussions.

Charles Hough, SIGFA Chairperson remarked, “While our meeting will be run independently of the IAIABC conference, we can benefit from the perspectives offered by the regulatory community. At the same time, our members can take advantage of IAIABC programming that may interest them.” Having access to administrators and self insurance directors speaks directly to SIGFA’s guiding principles to educate, internally and externally, and share critical information. Additionally, when topics of common interest are identified, SIGFA and the IAIABC look forward to sharing resources to address them.

SIGFA will first meet with the IAIABC at the 98th Annual Convention on October 1-4, 2012 in Newport, Rhode Island. A schedule of events and program details will be released in January 2012 and can be found at www.iaiabc.org/convention2012

Jumat, 06 Januari 2012

Baby Boomers Have Work Comp Claims Too

A recent study confirms that Baby Boomers are unfortunately not claiming workers' compensation benefits at a higher rate than younger workers. What the report doesn't reveal is that older disabled workers are being shifted to the Social Security system for medical benefits at a higher rate than ever before.

NCCI, with its private data, seems to ignore the fact that cost shifting is still occurring from workers' compensation insurance coverage to the general taxpayer by the utilization of Medicare. Until CMS finally shuts the door once and for all, older workers are going to take the easier path for benefits through Medicare. Medicare leaves the choice of doctors and the number of physicians to the patient.

At this point in time, the few senior workers who do file compensation claims for injuries superimposed on general deteriorating medical conditions, are being denied work comp due to pre-existing conditions and age related deterioration. It "used to be" that workers' compensation "took the worker as they found him (her)," but that has changed through the insurance company initiated legislative efforts in a majority of jurisdictions.

Until such time as the workers' compensation system becomes user friendly to senior workers, those workers will be left out of the compensation system and will not realize the additional benefits of temporary and permanent partial or total disability benefits. Under the current system the senior workers, and the general taxpayer, are the big losers. The system needs to be reversed so that workers' compensation becomes a winning solution to the problem.

Read more about the baby boomers who are working: In a Second Career, Working to Make a Difference
“The concept of retirement is fading,” said Mary S. Bleiberg, ReServe’s executive director. “There is a steady increase in people over 65 going into or staying in the workforce. People are realizing they’re going to be around a lot longer, and there’s a limited number of golf clubs they can swing.”
Related articles

Jumat, 02 Desember 2011

NJ Legislation Seeks To Increase Counsel Fees

Practicing workers' compensation law is difficult work, and not usually economically rewarding. Most lawyers who handle claimant's work have a passion to help people. In most, if not many cases, the time and effort that an attorney puts into the case usually just doesn't offset fee paid in the case.

Gone are the days when scores of cases were adjudicated on a daily basis in most jurisdictions. Many factors have caused the system to shift from high gear to what seems like reverse. The manufacturing workforce has dwindled, conditions have become safer, a good thing, and reforms to the system have thrown in hurtles that appear insurmountable to obtain benefits. The tightening of recovery procedures by collateral sources have changed the flow, from a tidal wave of dispositions, to a dribble through the funnel.

Fewer and fewer attorneys now participate in workers' compensation claims, even though other areas of the legal economy have gone into the tank. Those who are remaining are attempting to be even more selective in what representation they undertake. With limited assets to invest there needs to be a an economic certainty for recovery more than ever.

Legislation has been introduced in NJ to expand the recovery of counsel fees. The Senate Labor Committee will meet on Thursday, December 8, 2011 at 10:00 AM in Committee Room 6, First Floor, State House Annex, Trenton, New Jersey discuss a pending bill to increase the base for benefits. S2446 Concerns attorney fees for workers' compensation awards.

"This bill requires that in cases in which a workers’ compensation petitioner has received compensation from an insurance company prior to any judgment or award, the reasonable allowance for attorney fees will be based upon the sum of the amount of compensation already received by the petitioner, and the amount of the judgment or award in excess of the amount of compensation already received by the petitioner. Currently, in cases in which a petitioner has received compensation prior to a judgment or award, a reasonable attorney fee is based upon only that part of the judgment or award that is in excess of the amount of compensation already received by the petitioner."

read more...

Penalties for Insurance Companies Who Fail to Pay Enough for Medical Care

The quality of medical care for workers' compensation beneficiaries has always been a major issue. Injured workers just don't want to go to an employer selected physician.They want to go to a doctor who provides good quality medical care and one they have confidence in. It makes good medical sense. While one concept to adjust the issue is to compel insurance carriers to pay for outcome driven results. If the doctor cures you, then the doctor should be paid in full for the reasonable value of his or her services. If the opposite, well then maybe the doctor should get paid less.

Another approach, enacted by the federal government is to compel insurance carriers to pay a certain percentage of premiums collected for medical care, instead of paying large sums for administration expenses. That could be applied to workers' compensation carriers. Instead of paying 80% of the premium to fight the claim, workers' compensation insurance companies should be compelled to pay 80% to cure the medical condition.

Read more about this concept:
HHS Unveils Medical Loss Ratio Rule (Kaiser Health Breaking News)

"The Department of Health and Human Services today released its final medical loss ratio rule. According to an HHS press release, the rule will ensure that health insurance companies spend at least 80 percent of consumers' health insurance premiums on medical care rather than on income, overhead and marketing expenses. "If your insurance company doesn't spend enough of your premium dollars on medical care or quality improvement this year, they'll have to give you rebates next year," said CMS Acting Administrator Marilyn Tavenner, in the release . "This will bring costs down and give insurance companies the incentive to focus on what matters for patients – high quality health care."

read more

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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 occupational accidents and illnesses.

Senin, 24 Oktober 2011

Insurance Agent Charged With Theft of $255,000 of Work Comp Premiums

Agents from the Pennsylvania Attorney General's Insurance Fraud Section have filed criminal charges against a Berks County man accused of the theft of more than $255,000 in workers' compensation insurance premiums.

Attorney General Linda Kelly identified the defendant as Joseph A. Maurer, 58, of 2558 Welsh Road, Mohnton. Maurer owned and operated Commonwealth Professional Group, a former insurance agency located in Reading, Berks County.

According to the criminal complaint, Maurer is accused of taking more than $188,000 in premiums paid by four municipal governments, including Bally Borough and South Heidelberg Township, located in Berks County, along with Salisbury Township in Lehigh County and Earl Township in Lancaster County. The money allegedly paid to Maurer by all four municipalities was supposed to be forwarded to Pennprime Insurance Trust, of Harrisburg, as payment for workers compensation coverage.

Additionally, Maurer allegedly misdirected premium payments for at least five other policies purchased through his agency, totaling in excess of $67,000 that was supposed to be forwarded to Travelers Insurance and ACE American Insurance Company on behalf of various clients.

Maurer is charged with three counts of theft by failure to make required disposition of funds received, all third-degree felonies which are each punishable by up to seven years in prison and $15,000 fines.

Maurer was preliminarily arraigned on October 12th before Reading Magisterial District Judge Phyllis J. Kowalski and released on $850,000 unsecured bail. He was also ordered to surrender his passport.

A preliminary hearing for Maurer is scheduled for November 9th, at 1:30 p.m., before Magisterial District Judge Kowalski.

The case will be prosecuted in Berks County by Deputy Attorney General John T. Dickinson of the Pennsylvania Attorney General's Insurance Fraud Section.

Rabu, 21 September 2011

Work Comp Premiums Linked to Stock Market Swings and Not Claims

While it was the intent of the crafters of workers' compensation legislation to past the costs of workers' compensation claims along to the consumer, a new study reveals that work comp rates are actually associated with the swings of the stock market. A report released by the University of California’s UC Davis Center for Healthcare Policy Research reveals the starling finding based on a recent analysis that while accidents and injuries have decreased for the past two decades rates have only risen.

The study, of what it calls "skyrocketing rates" yielding higher premiums, reveals that higher premiums are instead associated with decreases in the Dow Jones Industrial Average and interest rates on U.S. Treasury bonds.

"Insurance companies appear to have been setting premiums according to their returns on the stock and bond markets, not according to the number of claims they have," said J. Paul Leigh, UC Davis professor of public health sciences and senior author of the study. "They invest because they need a financial cushion to pay for claims and, if they lose, raise premiums to recoup their losses."

The analysis of trends was an essential part of the report and was provided so that policy makers would have information available to understand why why regulations should be enacted to protect workers. In 2009 California workers sustained between 3 and 4 million occupational injuries amounting to a cost to employers of $74 billion.

In conducting the study, Leigh and UC Davis postdoctoral scholar Abhinav Bhushan examined U.S. Bureau of Labor Statistics data on incidence rates for injuries and illnesses, along with data from the National Academy of Social Insurance on workers' compensation costs (to employers) and benefits (to workers and medical providers) from 1973 through 2007. Beginning in 1992, the Bureau of Labor Statistics began identifying cases involving more than 30 days away from work, providing the study team with the opportunity to evaluate the impact of more severe work-related injuries and illnesses on premiums. That information was compared with Dow Jones Industrial Average indices and Treasury bond interest rates.

The researchers found that while premiums increased from 1992-2007, claims decreased 1 to 2 percent each year. Claims for serious illnesses and injuries varied, but decreased overall.

The team also discovered that for the entire 35-year timeframe of the study, rising premium rates were closely linked with the Dow Jones Industrial Average or Treasury bonds. As either the Dow or interest rates on Treasury bonds fell, premiums rose, and vice versa.

"The association of premiums with the stock market and Treasury bonds was consistent and strong," said Leigh. "Increasing premiums had nothing to do with the number of injured workers, who often are incorrectly blamed for increasing premiums for employers."

The study also explored the decline in workers' compensation claims over the last two decades. This trend is often linked with the establishment of the Occupational Safety and Health Administration, created by Congress to ensure safe working conditions nationwide. The agency, however, was established in 1970, and the downward trend in claims was not evident until 1993.

Leigh suspects the decline may be related to the transition of some high-injury jobs, such as construction and janitorial services, from large companies to smaller companies, where employees may not belong to unions and could be more fearful of losing their jobs if they complain of work-related injuries or illnesses. According to Leigh, small companies are also less likely to keep complete records, so injuries are recorded and reported less often.

"Insurance commissioners and legislators who regulate premium increases should pay greater attention to trends in claims rather than to insurance companies' returns on investments in allowing premium increases," Leigh said. "More effort should also be directed toward policing contractors and smaller businesses to assure they aren't circumventing workers' compensation laws."

Workers compensation has dramatically changed since its enactment a century ago. The system should not be an economic engine to sustain Industry and the cottage industries that evolved. The policymakers need to focus on maintaining the intent of the original crafters, which was to equally balance the costs upon both labor and Industry so that the costs of the program could be passed along to the consumer. Workers compensation is best served if the system is an economic engine for a safer work environment rather than a monument to a failed manufacturing economy.

For over 4 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.

Kamis, 01 September 2011

Who Is Paying the Premiums for Workers Compensation Anyway

Employes have been subject to "give backs" and "add on" costs for decades, but now employers want to shift the cost of workers compensation insurance to employees. The intent of the workers' compensation act was to shift the costs of workers' compensation coverage to the consumer of the product and/or user of the service and not the employee.

A recent Massachusetts Judge reiterated that principle, but left open the question as to whether the employee could consensually contract to accept the costs of workers' compensation coverage. If this occurs, it is ultimately a "deal breaker."

Cost shifting of workers' compensation coverage is a dangerous precedent going to the heart of the initial promise made to workers in creating the system. Is is against "public policy," and defeats the Legislative intent of the act. While the economy is soft and the workers' compensation system in a weakened condition it is not time to abandon ship unless a more creative approach for reform of the entire system comes into play. As jobs remain scarce, the process would not be consensual, but merely coercion. Shifting the cost would ultimately remove the deterrent effect for unsafe workplaces, and yet is another reason why employers and ultimately consumers should remain responsible for workers compensation costs.

See: Awuah v. Coverall North America, Inc.,--- N.E.2d ----, Mass. , 2011 WL 3805255, Mass., August 31, 2011 (NO. SJC-10829)

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.

Rabu, 31 Agustus 2011

Surveillance Crosses the Privacy Line

Surveillance in workers compensation matters creates sensitive issues regarding privacy. The bright-line of what is public versus private becomes even more acute as employers and insurance companies investigate fraud concerns. When companies cross the line the consequences can be serious.

Several Montana attorneys have sought relief from a Court for what they call a breach of the privacy of the injured workers whom they represent. The attorneys allege that insurance fraud investigators, on behalf of a Montana insurance fund, have violated the privacy rights of their client by recording surveillance videos and giving them to examining physicians, in order to facilitate reports that the injured workers are malingering.

The attorneys represent that in over 800 instances, over the past several years, criminal surveillance tapes were unilaterally provided to defense medical experts to the detriment of their client's right to privacy. Harassment of injured workers creates fear that deters claims to benefit of employers and their insurance carriers. Inured workers have limited resources to fight such unscrupulous behavior. The attorneys in Montana had done a great pro bono and public service to take on Goliath on behalf of David. Hopefully the courts will balance the playing field and protect the rights of the injured worker from such tactics.

Workers' compensation was designed as a simple and equitable system. It was intentionally designed for the benefit of all the parties who participate in it. It is important that when the system becomes unbalanced that all the participants join in the effort equally to both redesign and rebalance the program.

Selasa, 30 Agustus 2011

What Hurricane Relief Volunteers Need to Know About Workers Compensation

Hurricane relief volunteers are entitled to workers compensation benefits for injuries and illnesses that occurred as a result of their participation in relief efforts. In order to claim those benefits injured volunteers need to make sure that they follow some simple steps.

1. Make sure that they establish an employment relationship for the agency or company conducting the relief work. In other words, the volunteer, even if earning no money, must be an employee of the the company conducting the rescue and/or relief effort. The best evidence would be a written agreement that the worker is to be considered an employee of the company.

2. Report to the report if an accident or injury occurs arising out of and in the course of the employment. This report should be made as quickly as possible following the event or manifestation of illness. This should be followed up immediate with a written communication to the employer advising that an injury or illness occurred and that medical treatment, if necessary, is being sought.

3. Record the names and addresses witnesses to the even or exposure.

4. Seek medical care if required. If it is an emergency and you are unable to first notify your employer, seek medical attention first and then report the event. Most emergency rooms will record your event history and notify your employer, but that is not always the case. Therefore, advise your employer where and when you sought emergency medical care as soon as possible.

5. If you are advised by a medical profession to stay out of work, then obtain that information in writing. Make a copy of the lost time order and give the copy to your employer.

6. See the advice of an attorney at law familiar with workers' compensation matters since volunteer work in emergency situations produced a lot of complication issues. Those issue are inherited from the chaos and complications that occur in the wake of a major natural disaster such as a hurricane.

Volunteering for the hurricane relief effort is a noble gesture. Workers, in the emotional haste to assist, must also insure that they remain insured for workers' compensation benefits.

Kamis, 25 Agustus 2011

What Workers Should Do In Case of a Hurricane

Workers' Compensation insurance provides benefits if an employee is injured because of because of a hurricane. Preparing for a hurricane is important, and that should include reporting work related injuries to your employer and/or insurance company.

While NIOSH has alereted all of us to the dangers of a hurricane, "....Storm and flood cleanup activities can be hazardous. Workers and volunteers involved with flood cleanup should be aware of the potential dangers involved, and the proper safety precautions. Work-related hazards that could be encountered include: electrical hazards, Carbon Monoxide, musculoskeletal hazards, heat stress, motor vehicles, hazardous materials, fire, confined spaces and falls."

Should a worker suffer any injuries then they should seek medical care at once, and report the incident to their employer. Prepare ahead and take your employer's contact information and workers' compensation insurance information with you so you are prepared to provide to authorities and your employer the facts to process your claim without delay.

Kamis, 18 Agustus 2011

State Acts to Restrict Medical Care

The State of NJ has proposed sweeping regulations to limit the payment of medical care under automobile insurance policies, and this action is seen as yet another signal that workers' compensation medical delivery may become even further restricted. In an effort to reduce insurance premiums, the NJ Department of Banking and Insurance, has proposed massive changes in the manner and method that doctors may bill for medical treatment and diagnostic procedures and has restructured the process for appealing a denied claim.

The State claims that medical delivery costs are soaring. It has been reported that for every premium dollar that insurance companies receive, they end up spending $1.23 on medical benefits. The regulations are designed to reduce medical services and produce a profitable insurance product.

Furthermore, the purpose of the regulations are to limit legal costs. The sate reported that in one instance a contested medical resulted in the payment of $375 in medical benefits, but the legal costs awarded for that recovery were $3,380.

The regulations prohibit the use of innovative radiological diagnostic testing. "X-ray digitization or computer aided radiographic mensuration reported under CPT 76499 or any other code are not reimburseable under PIP."

The comment period for the new rules runs thorough early September 2011. The impact of the regulations is to reduce medical care and diagnostic procedures that will impact resulting workers' compensation benefits. Ironically providing the best medical benefits available would seemingly comply with the intent of the compensation act and ultimately economically benefit the employer by producing a healthy workforce, The process of cost cutting will only ultimately degrade the medical delivery component of workers' compensation even further.

Jumat, 05 Agustus 2011

Bad Faith Claims Maybe Going to the Jury

The NJ Supreme is going to review the procedure to bring bad faith claims against employers and insurance companies in workers' compensation actions. The Court accepted for review a case holding that workers' compensation bad faith claims are within the exclusive jurisdiction of the workers' compensation hearing official.

The case involves an injured worker who filed a civil action against his employer's workers' compensation insurance company for failing to comply with the Division of Workers' Compensation Order that medical treatment should proceed. The employee alleged that the delay and denial of medical care caused harm. The lower court had rejected the case and dismissed it holding that the jurisdiction for bad faith is exclusively within the purview of the Division of Workers' Compensation. Stancil v. ACE USA, 418 N.J. Super. 79, 12 A. 3rd 223 (App. Div. 2011), ___A.3d___, 2011 WL 3342730 (NJ). Decided June 7, 2011.

In another decision, the NJ Supreme Court held that bad faith, in a negligence action, was a contractual issue giving rise to a factual question that could only be decided by a jury.

"We conclude that a Rova Farms claim that an insurer in bad faith failed to settle a claim within the policy limits, thereby in fact exposing its insured to liability for any excess, represents a traditional contract claim that the insurer breached the implied covenant of good faith and fair dealing and to which the right to trial by jury attaches." Wood v. New Jersey Manufacturers Insurance Company, 21 A.3d 1131, 2011 WL 2314954 (NJ), Decided June 14, 2011.

The Stancil case highlights one of the most serious and costly issues in Workers' Compensation, both in NJ and the nation, the adequate and efficient delivery of medical care. While the courts are struggling with this issue that is compounded by arguments over reimbursement and treatment paths, the compensation system continues to be bogged down and unresponsive to the urgency of the need to delivery medical care to injured workers.

Senin, 01 Agustus 2011

Workers Compensation Named to Top 50 Human Resources Blogs 2011

Evan Carmichael of The Entrepreneur Blog has named Workers Compensation Blog to the Top 50 Human Resources Blogs of 2011. Workers Compensation Blog is a resource for trends and developments in workers' compensation. It's popularity has grown exponentially over the last few years. The site contains hundreds of resource articles and links. It has received hundreds of thousands of hits and page views.

"Anyone who has ever run a business knows one thing – the most important resource you have at your disposal are the people around you. That is why getting your human resources strategy right is so crucial to business success. The following Top 50 Human Resources Blogs of 2011 can help you do just that.

"Written by the industry’s best, these blogs can help you with everything from hiring, to firing, to becoming a strong leader and managing your people in the best way possible. To reach the top, you need to have a solid team supporting you.

Kamis, 28 Juli 2011

Asbestos Disease Claims Continue to Surge

A recent analysis reveals that mesothelioma claims continue to surge. Insurance companies such as Hartford and AIG forced to increase reserves. Exposures from the 1970's are now manifesting in disease and claims for benefits.

Mesothelioma is a rare but fatal condition caused by exposure to asbestos fiber. It is a condition that they remain dormant for as long as 30 years or more before manifesting symptoms.

Asbestos was used as an insulation product and for structural support i many products including ceiling title and other construction material. It was used to insulate boilers and other heat generating devices.

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.

Deal or No Deal: Judge Relies on Court Appointed Physician

An Appellate Court has rule that a Judge of Compensation can select an independent physician to review the need for medical treatment. It doesn't matter whether or not the parties agreed formally or informally as to the binding effect of the physician's opinion as to causal relationship and the need for treatment.

The Court has discretion to merely rely upon the physician's opinion and reach a reach a decision based upon the report. The cost of the evaluation is to be paid for by the employer /insurance carrier. Furthermore, the Court need not hold a hearing for oral argument on the issue and can reach a binding on the papers alone.

Thompson v. Quality Et al., 2011 WL 3107767, Docket No. A-1177-10T1 (NJ App. Div.) decided July 27, 2011.

Jumat, 15 Juli 2011

Workers Are Injured by Misclassification

When employers misclassify workers they attempt to cheat injured workers of adequate workers compensation benefits. In most jurisdictions workers comp rates are determined by the wages paid to the injured worker at the time of their injury.

Disability rates for workers' compensation benefits are based upon the computation of the wages of the injured employee. Statutorily, the wages are defined to mean "the money rate" at which the service rendered is paid. That rate is determined by the wages in effect according to the contract of hiring in force at the time of the accident or exposure of the employee. Board and lodging, when provided by the employer are usually considered as wages, unless the parties have entered into a contract at the time of hiring to set an alternative value. In those instances where wages are determined by the output of the employee, the daily wages are calculated by dividing the number of days the injured employee was actually employed into the total amount that the worker earned during the preceding period.

The US Department of Labor (DOL) strictly monitors misclassification of workers and takes enforcement action when appropriate. The U.S. Department of Labor has recovered $104,837 in overtime back wages for 57 workers who had been misclassified as independent contractors and thereby denied overtime compensation for all hours of their work in violation of the Fair Labor Standards Act, following an investigation by the department’s Wage and Hour Division. The workers were employed by Cecil Parker Jr., the owner of a debris cleanup company in Anahuac.

The DOL reports of the serious consequences of misclassification, "The misclassification of employees as independent contractors is an alarming trend, particularly in industries such as construction that often employ low-wage, vulnerable workers, and in which the division historically has found significant wage violations. The practice is a serious threat both to employees entitled to good and safe jobs, as well as to employers who obey the law. Too often misclassified employees are deprived of overtime and minimum wages, and forced to pay taxes that their employers are legally obligated to pay. Honest employers have a difficult time competing against scofflaws. The Labor Department is committed to ensuring that employees receive the pay and benefits to which they are legally entitled and to level the playing field for employers that play by the rules."

The States need to provide better enforcement of how workers are classified and paid by employers. Injured workers continue to be "short changed" in many ways by misclassification.

Inconsistent Enforcement of State Wage and Hour Laws Could Lead to "Regulatory Race to The Bottom, " New Study Finds (workers-compensation.blogspot.com)
Minimum Wage, Overtime Laws Due For Reform: Republicans (huffingtonpost.com)
Workers Compensation, Pensions and Bankruptcy (workers-compensation.blogspot.com)
Penalties, Paper and The Injured Worker (workers-compensation.blogspot.com)

Selasa, 05 Juli 2011

Employers Prohibited From Seeking Reimbursement From a Public Entity

A New Jersey appeals court has held that an employer or insurance carrier is prohibited from seeking reimbursement from a public entity resulting from a work related claim. Only a direct action may be brought by an employee against a public entity.

"Relying on Travelers, supra, 169 N.J.Super. at 415, Judge Casale held that where, as here, a public entity is the third-party tortfeasor, the Tort Claims Act (TCA), N.J.S.A. 59:9-2(e), bars subrogation by the employer or its worker's compensation carrier. That section provides: "No insurer or other person shall be entitled to bring an action under a subrogation provision in an insurance contract against a public entity or public employee." Ibid.

"It is clear that N.J.S.A. 34:15- 40 not only permits subrogation recovery from the employee, but would allow a lawsuit directly against the third-party tortfeasor. N.J.S.A. 34:15-40(f). However, in enacting the TCA, N.J.S.A. 59:9-2(e), the Legislature intended that the cost of worker's compensation payments should not be shifted to a public entity that happened to be a third-party tortfeasor. Instead, those costs were to be absorbed by the worker's compensation insurer. Travelers, supra, 169 N.J.Super. at 415.

Thomas v The City of East Orange, Docket No. L-6929-09, 2011 WL 2582550 (N.J.Super.A.D.) Decided July 1, 2011.

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, 02 Juli 2011

Injured Worker Sues Insurance Company for Malicious Prosecution

A workers' comp claimant has been allowed by the Massachusetts Supreme Court to sue AIG for malicious prosecution as a result of the insurance companies fraud investigation. The workers' compensation insurance company conducted a fraud investigation of the injured worker and forwarded it onto the State agency for prosecution.

"In this proceeding we consider the appeal of AIG Domestic Claims, Inc. (AIGDC), from the denial of its motion for summary judgment. Jesse Maxwell, a workers' compensation claimant, brought suit against AIGDC regarding the company's conduct in referring his claim to the insurance fraud bureau (IFB), communicating with fraud investigators and prosecutors regarding his activity and claim, and using criminal processes to gain leverage in dealings with him. Maxwell sought recovery on theories of malicious prosecution, infliction of emotional distress, abuse of process, and violation of G.L. c. 93A and G.L. c. 176D. In July, 2007, AIGDC filed a special motion to dismiss the suit pursuant to G.L. c. 231, § 59H, the so-called “anti-SLAPP” statute. That motion was denied and AIGDC's appeal was unsuccessful. See Maxwell v. AIG Domestic Claims, Inc., 72 Mass.App.Ct. 685, 893 N.E.2d 791 (2008). On remand, the parties conducted discovery and AIGDC filed a motion for summary judgment in August, 2009. Summary judgment was denied. AIGDC appealed under the doctrine of present execution, and we granted its application for direct appellate review.

"We conclude that AIGDC enjoys qualified immunity regarding its reporting of potentially fraudulent activity but that summary judgment is inappropriate because all of Maxwell's claims rely, at least in part, on conduct falling outside the scope of the immunity. We also conclude that portions of Maxwell's claims may be barred by workers' compensation exclusivity under G.L. c. 152, but that not one of Maxwell's counts is barred entirely such that the Superior Court would be without subject matter jurisdiction. Accordingly, we affirm the order of the Superior Court denying summary judgment and remand the case for further proceedings consistent with this opinion.

Maxwell v. AIG Domestic Claims, Inc., Mass. , --- N.E.2d ----, 2011 WL 2556944 (Mass 2011) Decided June 30, 2011

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.