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Kamis, 19 Januari 2012

Federal Cell Phone Rules Compliance Guide Published

Distracted Driving remains a serious problem in the workplace and now the Federal government is taking enforcement actions to a new level. The Federal Motor Carrier Safety Administration (FMCSA) recently announced Rules that it is prohibiting the use of hand-held cell phones by interstate truck and bus drivers.

As the Rules take effect is is anticipated that many states will adapt these changes. For those who use prohibited devices in the course of their employment and are involved in accidents may ultimately be denied workers' compensation benefits and employer liability will result. ZoomSafer has now published a compliance guide.

See: FMCSA Cell Phone Rules: A Compliance Guide for Truck and Bus Fleets

Rabu, 26 Oktober 2011

Sense of Injustice, Occupy Wall Street & A Tornado Survivor From Joplin

In a dramatic turn of events based upon pubic outrage, a insurance company has reversed its decision and now decided to provide workers' compensation benefits to a first responder who was injured while providing assistance to tornado victims in Joplin, Missouri.

Mark Lindquist saved 3 development disabled adults in Joplin following the tornado that devastated that community. Caught in the he 200 mile an hour tornado, Lindquist lost all of his teeth, was in a coma for several months and ran up medical bills amounting to $2.5 Million. The insurance company initial had denied the claim and recent news reports and public outrage resulted in a reversal by the insurance company on the issue of compensability.

The same outrage against Corporate America and an imbalance in the socio-economic system is now being reflected in the Occupy Wall Street movement. Recently Amy Goodman commented about the growing recognition of injustice on the Charlie Rose show.

Minggu, 09 Oktober 2011

Occupy Wall Street And The Future Of Workers Compensation

The same social/economic forces present on streets of New York City over a century go, are now re-emerging in the birth of the Occupy Wall Street [OWS] movement. The workers, unions and concerned citizens that are are patriotically seeking to again balance the social/economic system mirror the century old movement and aspirations that its genesis in the Triangle Shirt Waist tragedy. This time the inspiration generated may evolve into a new and creative system to prevent workplace injuries and compensation. The new system maybe target entirely to safety and prevention rather than solely compensating for injuries and exposures sustained at work.

Over a century ago the failure of employers to protect workers’ health and safety resulted in the tragedy of the Triangle Shirt Waist factory fire. Following that fatal conflagration emanated the promulgation of the modern day workers’ compensation system. It arose out of frustration and anger and was displayed in the street.

The recent efforts to dismantle the national network of workers’ compensation systems through legislation and regulation has effectively rendered the system both costly to navigate and burdensome to obtain benefits. Efforts have been made to make it more difficult to establish a claim. Occupational disease claims once considered compensable are not being denied and litigated on a regular basis.

The present workers’ compensation system has been emasculated by the competing efforts of Industry to reduce access to benefits at earlier stages of the process, and by a transformed industrial/economic system. Soaring medical costs necessitated by the need to provide personalized medical treatment protocols to cure for complex diseases are raging havoc to the program. Medical costs have soared and insurance carriers are continuing to raise rates. The 99% that constitutes the core group of the Occupy Wall Street movement is either unemployed or disabled and unable to work. They seek good jobs which are safe, and medical benefits that are effectively and efficiently delivered.

Counting failure is no longer an option. Jobs that injury workers and a system that delays and denies benefits for injuries and exposures at work, is not beneficial to nation, its Industry and workers. Hopefully American creativity will give birth to a new system, and the Occupy Wall Street movement will be that catalyst.

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.

Jumat, 25 Maret 2011

Grizzly Bear Attack Does Not Deter Benefits Even Though Employee Was Using Marjuana

The Montana Supreme Court ordered the Uninsured Fund to pay workers' compensation benefits to an employee who was mauled by an grizzly bear even, though the worker was under the influence of marijuana at the time of the accident.

The Court held that the marjuana was not a major contributing cause of the employee's injuries.

"Non-prescription drug consumption will preclude an injured employee’s benefits if consumption was the leading cause contributing to the result, when compared to all othersSection 39-71-407(4), and -407(13), MCA. No evidence was presented regarding Hopkins’ level of impairment. The WCC [Workers' Compensation Court] aptly noted, “Hopkins’ use of marijuana to kick off a day of working around grizzly bears was ill-advised to say the least and mind-bogglingly stupid to say the most.” However, the WCC further noted that grizzlies are “equal opportunity maulers,” without regard to marijuana consumption. Without evidence of Hopkins’ level of impairment, the WCC correctly concluded that marijuana was not the major contributing cause of Hopkins’ injuries."

The majority of states permit the payment of workers' compensation benefits where the use was not the sole cause of the accident. Usually Uninsured Funds are able to obtain reimbursement directly for the employer who failed to carry workers' compensation benefits.

Hopkins v. Uninsured Employers Fund, et al., Docket 2011 MT 49 (MT 2011) Decided March 22, 2011

Kamis, 10 Februari 2011

AIG Reaches For Its Wallet to Cover $4.1 Billion in Work Comp Claims and Asbestos Liabilities

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The American International Group (AIG), the huge insurance company that the US Government bailed out financially, is still hard pressed to raise funds to cover on going claims. AIG has announced that it will need to raise another $4.1 Billion dollars to cover such costs as primary and excess workers' compensation claims and asbestos liability claims.

AIG's long and troubled history was the subject of investigative reporting in the Academy Award nominated film, Inside Job. The Many factors have impact on an insurance company's solvency including the ability to collect premiums in a down economic cycle, the investment of the premiums collected and colateral bad investments the have a massive economic impact of the financial worth of the company in general.

Workers' compensation claims continue despite a low employment cycle. Latent diseases, such as asbestos related lung cancer, asbestosis and mesothelioma, may be dormant for decades before manifesting into a chronic and terminal medical condition.

The industry continues to struggle on how workers' compensation should be employed to insure industries and employers from these condition. Originally the workers' compensation acts did not cover occupational conditions such as silicosis or asbestosis. In the 1950s acts were amended, at industries insistence to bring these occupational conditions under the umbrella of coverage and shield employers from civil lawsuits. With the expansion of products liability claims, based on the intentional concealment of information of the hazards of these conditions, as well as low economic recoveries from struggling workers' compensation systems put the boat back into the bottle, "the longest running tort", asbestos litigation, was born.

Industry continues to try to put the genie back into the bottle, which is reflected in the latest attempt in Missouri to bar liability claims against employers and co-workers. One of the incentives of a workers' compensation program is to prevent industrial accidents, but the system continues to struggle both economically and procedurally in achieving that objective.

The need for AIG to raise additional cash to pay claims raises a concern as to whether premium dollars to pay claims are being adequately protected in the first place, and whether those premiums ared being directed to injured workers and victims of occupational illness. Instead of trying to figure how to further restrict the payment of benefits, perhaps more attention should be paid to making a safer workplace by banning asbestos use, and providing more convenience access through universal medical care.

Related articles

Kamis, 28 Oktober 2010

NJ Rejects Broad Medicare Release Language in Judgments

The NJ Division of Workers Compensation has indicated that broad release "language should not be included as part of a settlement order, attached to a settlement order or placed or part of the settlement record."

Specifically the following sample language was rejected, The claimant, , agrees to indemnify defendant, hold harmless the respondent from any action by Medicare seeking payment of past, current or future medical expenses for the claimant. Claimant shall further hold the respondent harmless from any and all adverse consequences in the event the settlement results in the loss of right to Social Security and/ Medicare benefits to the extent claimant would have been entitled to those benefits in the absence of the settlement agreement."

A memo was issued on October 28, 2010, by the Director and Chief Judge, The Honorable Peter J. Calderone.
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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.

Rabu, 13 Oktober 2010

NJ Denies an Occupational Workers Compensation For Last Exposure Applying Apportionment Rule

A NJ Appellate Court denied an employee workers' compensation benefits by applying an apportionment rule as well as the manifestation of disease doctrine. The employee worked in two states and spend more than 10 times of his working career in Pennsylvania working n a similar job during which time manifestation occurred.

"We do not suggest that there is a mandatory mathematical formula that judges of compensation should apply in calculating the employment exposure of a petitioner as part of Williams's jurisdictional test. Although we might quibble with Judge LaBoy's description of petitioner's exposure as "de minimis," we nevertheless conclude that the sixteen-month exposure was not sufficiently substantial under the totality of the circumstances to constitute injury-conferring jurisdiction in the Division."

McGlinsey v George H. Buchanan Company, Not Reported in A.3d, 2010 WL 3932983 (N.J.Super.A.D.) Decided September 30, 2010

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.

Minggu, 10 Oktober 2010

Cell Phone Safety and Workers Compensation

Workers' Compensation benefits may soon be denied to employees involved in motor vehicle accidents because of the unauthorized use of cell phones while driving within the course of their employment. As the US Department of Transportation (USDOT) continues to educate Americans with overwhelming statistical evidence that distracted driving is a major cause of accident, the denial of benefits to cell phone users may become a major incentive to create a safer work environment.

Meanwhile, the US Department of Transportation is leaning toward banning all use of cell phones by drivers. At the second national USDOT summit on the increased hazards of the use of cell technology a major campaign was launched to encourage employers to outright ban the use of cell phones by employees while working.

Employers have become increasingly concerned over employee "cognitive distraction" caused by the use of cell phones in motor vehicles as more data has become available associating driver cell phone use with accidents. Methods of enforcement will include the use of traffic cameras as the system already hss the capability of detecting drivers who are using telephones while driving. Evidentially, telephone billing records produced post accident can be used to corroborate the fact that an employee was using a telephone while working.

The precedent of using the workers compensation acts to make occupational environments safer is already established. The denial of workers' compensation benefits for unsafe actions by employees has previously been incorporated into law and has been an economic incentively for employers to reduce costs. Employees who are under the influence of drugs or alcohol, and those who fail to use employer provided safety devices, have already been denied benefits in some jurisdictions.

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.

Sabtu, 09 Oktober 2010

RICO Case Dismissed By Trial Court After US Supreme Court Decision

A Federal District Court in Michigan has dismissed a RICO [Racketeer Influenced and Corrupt Organizations Act] claim against Cassens Transportation Company and several other defendants. This is the third time the case was negatively reviewed by the US District Court in Michigan and follows a landmark decision in the US Supreme Court supporting the RICO action that flowed from an underlying by a workers' compensation action.

"The Court concludes that Plaintiffs' exclusive remedy for their claim that they were fraudulently denied benefits under the WDCA [Workers' Disability Compensation Act] lies within the exclusive administrative scheme set forth in the WDCA which forcloses their RICO claim."

Brown v Cassens Transportation Company, et al. No. 04-cv-72316, 2010 WL 3842373, Decided Sept. 27, 2010.

Click here to read more about RICO claims and workers' compensation.

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.

Class Action Certification Sought in NCCI et al v AIG Premium Case

Class Action certification is being sought in a claim against AIG brought by NCCI Holdings Inc., Liberty Mutual and Travelers Insurance for underreporting of workers ' compensation premiums. See AIG tries to block workers comp competitors' class action.

Jumat, 01 Oktober 2010

Medicare Denied Reimbursement From Claim Of Survivor: Held Separate & Distinct

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 death claim. The Court reasoned that under Florida law, any claim of the estate is separate and distinct from the claim of a survivor. Under Florida law, child's loss of parental companionship claim is a property right belonging to the child.

Medicare through the Secretary of Health and Human Services (HHS) did not participate in the Florida probate action. HHS had refused to recognize the validity of that decision of allocation of the Florida Probate action.

"Counsel for the survivors and the estate acted sensibly, in a cost-effective manner. The nursing home neglect claim was settled for the full value of the available insurance. Clearly, if the language of the field manual applied, in practice, it would lead to an absurd Catch-22 result. Forcing counsel to file a lawsuit would incur additional costs, further diminishing the already paltry sum available for settlement. This flies in the face of judicial and public policy.

"The Secretary's position would have a chilling effect on settlement. The Secretary's position compels plaintiffs to force their tort claims to trial, burdening the court system. It is a financial disincentive to accept otherwise reasonable settlement offers. It would allow tortfeasors to escape responsibility.

"Without citing any statutory authority, regulatory authority, or case law authority, the Secretary and the district court's reliance upon language in a field manual is unpersuasive. The Secretary is not entitled to any share of the Burke surviving children's loss of parental companionship claims.

The decision may have a sweeping national impact on workers' compensation dependency claims, as they are also separate and distinct actions against an employer.

Bradley v, Sebelius, 621 F. 3d 1330, 2010 WL 3769132 (C.A. 11 Fla. 2010)

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.

CMS/MSP Statute Tolling Case Set for Hearing by Federal Court

CMS Claims No Statute of Limitations May Exist in a Recovery Action

Case Advances Challenging MSP Reimbursement Procedures

Selasa, 28 September 2010

Atlantic Mutual Insurance Co Placed into Rehabilitation

The NJ Division of Workers' Compensation has responded to an Order of Rehabilitation of Atlantic Mutual Insurance Company and Centennial Insurance Company entered by the New York Supreme Court entered on September 14, 2010. The NJ Division of Workers' Compensation has directed that 120 active cases now pending are stayed until further notice.

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.

American Mutual Ordered into Liquidation (workers-compesation.blogspot.com)
Obama Care for All (workers-compensation.blogspot.com)
Vermont Universal Health Care to Embrace Workers Compensation (workers-compensation.blogspot.com)
Employer Fraud is Alive and Well (workers-compensation.blogspot.com)
Washington Workers' Compensation Reform (workers-compensation.blogspot.com)
Memo from Director/Chief Judge Calderone - NJ DWC (http://lwd.dol.state.nj.us/)

Minggu, 19 September 2010

US Workers Compensation Centennial Commission

This 10-minute video was created for the National History Day contest by students at Nimitz High School in Houston, Texas.

The Workers’ Compensation Centennial Commission was formed to celebrate the first constitutional workers’ compensation law in the United States which was signed on May 3, 1911 and took full effect on Sept. 1, 1911. It was a recognition of society’s responsibility to the workplace, establishing workers compensation as the first form of social insurance in American history. Today, workers’ compensation stands as a pillar within our economic system that benefits all Americans.

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.

Related Articles

Campaign for Centennial Workers Compensation Postage Stamp

Designing the New Federal Workers Compensation Program

Sabtu, 18 September 2010

Plaintiffs' Law Firm Jon L. Gelman Ranked a Best Law Firm by U.S. News & World Report

Jon Gelman, a plaintiffs' litigation firm for over 3 decades, announces today that U.S. News & World Report has named the firm to its 2010 Best Law Firms list, an annual list showcasing law firms in 81 practice areas throughout the United States. The Best Law Firms rankings (http://tinyurl.com/2foh4u2) are based on both objective data and peer evaluations. Jon Gelman was ranked for its work in Workers’ Compensation.

Jon Gelman represents clients in individual and class action cases in complex litigation across an array of practice areas, regularly litigating challenging cases involving multiple parties in state and federal jurisdictions throughout the United States, either as sole counsel for the plaintiffs or in association with local counsel and other firms. It is a specialty law office concentrating its practice in the litigation of catastrophic and serious injuries resulting from work-related exposures and traumatic events. Jon Gelman is currently active in such cases as the nationally publicized Asbestos Litigation (http://tinyurl.com/26r4t3r) and Burn Pit Litigation (http://tinyurl.com/279ds2n) and multi-district litigation filed by military personnel against defense contractors KBR and Halliburton.

Attorney Jon Gelman (http://tinyurl.com/ylfucty) received a number of awards and accolades for his willingness to take on diverse litigation in the fight to protect those harmed by traumatic events and occupational exposures. He is a member of The College of Workers Compensation Lawyers (http://tinyurl.com/2crqrn9).

The firm provides legal service with a social conscience. His practice is built on a strong foundation of in-depth knowledge of the subject matter which is reflected in the 3-volume treatise entitled Workers' Compensation Law (http://tinyurl.com/26rfqoq), (Thomson-West), that Jon Gelman authored, and in the 3-volume national treatise, Modern Compensation Law, (Thomson-West), that he also co-authored.

Best Lawyers (http://bestlawfirms.usnews.com/) compiles its list by conducting extensive peer-review surveys in which thousands of lawyers confidentially evaluate their professional peers. The list is published in an annual referral guide, The Best Lawyers in America, with the intention of providing lawyers and clients with a reliable source for finding legal experts in unfamiliar jurisdictions and practice areas. To date, Best Lawyers is the oldest peer-review publication available in the legal profession. The 2010 Best Law Firms list will be featured in the October print issue of U.S. News & World Report and will be available on September 27, 2010. The list and selection methodology are also available at www.usnews.com/bestlawfirms.

Jon L Gelman LLC is located in Wayne, New Jersey. For more information about Jon L. Gelman LLC, contact Jon L. Gelman (NJ) at +1 973.696.7900 or visit http://www.gelmans.com.

"US News Media Group and Best Lawyers Release 2010 Best Law Firms Rankings" and related posts (jdjournal.com)
Law Bloggers: West Publishing's List of Authors Who Blog(copyrightlitigation.blogspot.com)

Rabu, 15 September 2010

Facebook Makes an Appearance in Workers' Compensation Court

Social networking sites, such as Facebook, have now become informational sources that workers' compensation lawyers are now utilizing for evidentiary purposes. The question that remains unanswered is how information obtained through social networking sites can be admitted and utilized as evidence.

In a recently published article, Law School Professor Gregory M. Duhl and attorney Jaclyn S. Millner, focus on the issues of professional responsibility, discovery, privacy and evidence when social networking factors integrate with a workers's compensation proceeding. Since the compensation system is theoretically no-fault and the evidentiary system is informal, the authors theorize that the workers' compensation arena will act as a fertile ground for experimentation in the legal application of this new technology.

Social networking site have experienced a surge in use. Web users spend more time on Facebook now than on Google. Workers' Compensation judges are also increasing their use of social networking sites.

Text, photos and commentary, shared among the social network, will provide a new avenue of factual discovery that may assist the decision maker in reaching an evaluation of the claim. The authors review the professional responsibilities of attorneys to their clients in advising them of the potential benefits and hazards of social networking, as well as their strategy for preparing text and photographic material into evidence. They conclude that lawyers handling workers' compensation matters need to be educated on how to properly utilize facts and opinions gathered from the social networking system.

Duhl, Gregory M. and Millner, Jaclyn S., Social Networking and Workers’ Compensation Law at the Crossroads (September 2010). Pace Law Review, Vol. 31; William Mitchell Legal Studies Research Paper No. 2010-16. Available at SSRN: http://ssrn.com/abstract=1675026

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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 illnesses. Author NJ Workers Compensation Law (West).

Related Articles:

Compensation Judges Are Becoming Linkedin
Facebook Job Boast Leads to Work Comp Fraud Charges
The Social Network - In Theaters October 1 (Columbia Pictures)

Selasa, 07 September 2010

NJ Workers Compensation Payments to Decrease

For the first time in history, the NJ workers compensation benefit rates are going to decrease. The maximum benefit rate will decrease 0.3% from $794.00 to $792.00 per week.

The 2011 maximum workers' compensation benefit rates for temporary disability, permanent total disability, permanent partial disability and the dependency rate are based upon the States's Average Weekly Wage (SAWW) for the year prior. New Jersey currently provides for a maximum benefit of 75% of the statewide average weekly wage (SAWW).

The New Jersey maximum rate has been considered significantly low when compared to to other states and perennially a higher adjustment has been recommended.

The rate applies to those work related injuries and deaths that occur in 2011. NJ ADC 12)2351.6, 42 N.J.R. 1994 (a). In 2007 the rate rose a modest 2.7 %.

Historically, NJ maximum workers' compensation has only risen yearly over the decades. The 2011 announced decrease represents a major slow down in the State's economy. Despite the announced fall in scheduled disability rates, the cost of soaring medical treatment remains uncapped and its economic impact remains uncertain in an era of declining payrolls and lower premium collections for compensation benefits.

Related Articles:

For over 3 decades the Law Offices of Jon L. Gelman 1.973.696.7900 jjon@gelmans.com have been representing injured workers and their families who have suffered occupational illnesses. Author NJ Workers Compensation Law (West).