Patricia Smith for US Solicitor of Labor

On Monday the US Senate will have the opportunity to end debate and confirm the nomination of Patricia  Smith as US Solicitor of Labor. Senator Reid will be calling for a closure vote on debate by the Senate and move her nomination.

Pat Garofalo writes at the Wonk Room about Smith’s successes:

"The New York Times has called Smith “one of the nation’s foremost labor commissioners because of her vigorous efforts to crack down on minimum wage and overtime violations at businesses including restaurants, supermarkets, car washes and racetracks.” During her time with the New York State Labor Department, where she is labor commissioner, Smith helped win more than $20 million in back pay for thousands of low-wage workers, including a record $2.3 million settlement with the owner of Ollie’s Noodle Shop and Grill chain in Manhattan.

As David Madland and Karla Walter pointed out, 'too often penalties [for labor law violations] are easily reduced or levied for low amounts, and the solicitor’s office has minimized civil and criminal liability for the worst violators.' Smith can change that, if only her nomination could come to a vote."

This is a unique opportunity for the Republicans to demonstrate their partisan support in the spirt that President Obama called for in his State of Union speech last week and confirm an eminently qualified individual, Patricia Smith, as US Solicitor-Department of Labor.

OSHA releases workplace injury and illness information

Data represents administration's "Open Government" policy

 Every year since 1996 the Occupational Safety and Health Administration (OSHA) has collected work-related injury and illness data from more than 80,000 employers. For the first time, the Agency has made the data from 1996 to 2007 available in a searchable online database, allowing the public to look at establishment or industry-specific injury and illness data. The workplace injury and illness data is available at http://www.osha.gov/pls/odi/establishment_search.html as well as Data.gov.

OSHA uses the data to calculate injury and illness incidence rates to guide its strategic management plan and to focus its Site Specific Targeting (SST) Program, which the agency uses to target its inspections.

"Making injury and illness information available to the public is part of OSHA's response to the administration's commitment to make government more transparent to the American people," said David Michaels, Assistant Secretary of Labor for OSHA. "This effort will improve the public's accessibility to workplace safety and health data and ensure the Agency can function more effectively for American workers."

Information available at the Data.gov and www.osha.gov Websites includes an establishment's name, address, industry, associated Total Case Rate (TCR), Days Away, Restricted, Transfer (DART) case rate, and the Days Away From Work (DAFWII) case rate. The data is specific to the establishments that provided OSHA with valid data through the 2008 data collection (collection of CY 2007 data). This database does not contain rates calculated by OSHA for establishments that submitted suspect or unreliable data.

Data.gov provides expanded public access to valuable workforce-related data generated by the Executive Branch of the federal government. Although the initial launch of Data.gov provides a limited portion of the rich variety of Federal datasets presently available, the public is invited to participate in shaping the future of Data.gov by suggesting additional datasets and site enhancements to provide seamless public access and use of federal data.

More information about the Department of Labor's Open Government Web site is available athttp://www.dol.gov/open/ where there are links to the latest data sets, ways to connect with Department staff, and information about providing public input that will make the Department's site and its work more useful and engaging.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA's role is to assure these conditions for America's working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit http://www.osha.gov

US Department of Labor's OSHA proposes recordkeeping change to improve illness data

The U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) is proposing to revise its Occupational Injury and Illness Recording and Reporting (recordkeeping) regulation by restoring a column on the OSHA Form 300 to better identify work-related musculoskeletal disorders (MSDs). The rule does not change existing requirements for when and under what circumstances employers must record musculoskeletal disorders on their injury and illness logs.

Many employers are currently required to keep a record of workplace injuries and illnesses, including work-related MSDs, on the OSHA Form 300 (Log of Work-Related Injuries and Illnesses). The proposed rule would require employers to place a check mark in a column for all MSDs they have recorded.

The proposed requirements are identical to those contained in the OSHA recordkeeping regulation that was issued in 2001. Prior to 2001, OSHA's injury and illness logs contained a column for repetitive trauma disorders that included noise and MSDs. In 2001, OSHA separated noise and MSDs into two separate columns, but the MSD column was deleted in 2003 before the provision became effective. OSHA is now proposing to restore the MSD column to the OSHA Form 300 log.

"Restoring the MSD column will improve the ability of workers and employers to identify and prevent work-related musculoskeletal disorders by providing simple and easily accessible information," said Assistant Secretary of Labor for OSHA Dr. David Michaels. "It will also improve the accuracy and completeness of national work-related injury and illness data."

For more information, view OSHA's proposal at:http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=FEDERAL_REGISTER&p_id=21314. This notice will be published in the Jan. 29 edition of theFederal Register.

Interested parties may submit comments on the proposed rule electronically athttp://www.regulations.gov, the federal e-rulemaking portal; or by mailing three copies to the OSHA Docket Office, Room N-2625, U.S. Department of Labor, 200 Constitution Ave. NW, Washington, DC 20210; or by fax at 202-693-1648 if the comments and attachments do not exceed 10 pages.

Comments must include the agency name and docket number for this rulemaking (Docket Number OSHA-2009-0044). The deadline for submitting comments is March 15. OSHA will hold a public meeting on the proposed rule March 9.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA's role is to assure these conditions for America's working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit http://www.osha.gov.

Time to Lab Test Chemicals

The Toxic Substances Control Act (TSCA) was enacted in 1974 and has not kept up with the time. Of the 80,000 chemical substances in use  it has test only 200 and regulated only 5. The United Steelworkers joined forces with the Learning Disabilities Association, the Cancer Institute, and the Pennsylvania Nurses Association to call for reforms of the federal Toxic Substances Control Act needed to ensure the health and safety of America's workers and families.


The 5 substances that TSCA mandates regulations for are all known carcinogens: Asbestos, Hexavalent Chromium, Vinyl Chloride, Trichloethylene, Methyene Chloride and Dicloromethene. 


Since 1976 chronic and terminal diseases have increased: Leukemia +20%; Breast Cancer 40% with a risk factor increase from 1 in 10 women to 1 in 8 women; and asthma +200%. Additionally, major increases in conceiving and making pregnancy, birth defects and autism have been reported.


Chronic conditions now result in 70% of all deaths and 75% of all health costs. Direct health care costs from cancer alone, in 2008, was $93.2 Billion of the total health care costs in the US that amounted to $304 Billion.


A recent report reveals the inadequacies of the TSCA and urges an update. As medical science continues to investigate these medical conditions, it is critically important that Congress updates the TSCA and requires better regulation 


Dr. Maryann Donovan, associate director of research services for the University of Pittsburgh's Cancer Institute and director of the Center for Environmental Oncology stated, "It's not a matter of whether we test toxic chemicals. It's a matter of how we test them. Right now we test them in the bodies of our children, our consumers, our workers, ourselves. It's time to start testing chemicals in the lab, and to take action before anyone is harmed." 


Click here to read more about toxic exposures and workers' compensation.

Asbestos: Not Banned in US But Use Declining

The use of asbestos, a known carcinogen, is not yet banned  in the US, but the use of it continues to decline. Asbestos has not been mine in the US since 2002 and therefore the country is dependent upon imports for asbestos products. 

The US Geological Survey reports that asbestos consumption in 2009 was 715 metric tons. In 2008 1,460 metric toms were estimated to be imported. Roofing products account for 65% of US consumption while other applications account for 35%. Over 89% of asbestos used in the US is imported from Canada.

The US government no longer stockpiles asbestos for use. It had been widely use in Word War II as a strategic commodity to insulate ships. Many exposures occurred in naval yards and to Navy personnel. 

Asbestos is the sole cause of mesothelioma, a rare but fatal asbestos disease. It is also causally related to many cancers, including lung cancer, and to asbestosis. One of the last known asbestos mines in the US was in Libby MT, which has now been declared to be a Super Fund site and asbestos there has been declared to be "a public health emergency."  Under the recently passed Senate health care reform legislation, Libby MT has been afforded medical benefits under the Medicare program.

While the US has not yet banned the use of asbestos, other nations have, The Republic of South Korea has enacted the final stage of a ban on the the use of asbestos manufactured products as of September 2009. Under the ban, asbestos may not be used to manufacture any children's products or products which asbestos particles may come loose and contact the skin.

Substitutes are available or the use of asbestos fiber. The US Geological Survey reports, "Numerous materials substitute for asbestos in products. Substitutes include calcium silicate, carbon fiber, cellulose fiber, ceramic fiber, glass fiber, steel fiber, wollastonite, and several organic fibers, such as aramid, polyethylene, polypropylene, and polytetrafluoroethylene. Several nonfibrous minerals or rocks, such as perlite, serpentine, silica, and talc, are considered to be possible asbestos substitutes for products in which the reinforcement properties of fibers were not required.."

Many workers, their families and their dependents have filed workers' compensation against former employers and civil actions against the asbestos manufacturers, suppliers and health research groups for the damages including the reimbursement of medical costs. Asbestos litigation has been called "The longest running tort in history."

Click here to read more about asbestos litigation.

A Once-In-A-Generation Chance

The NY Times today called for passage of the Senate version of health care reform and salvage the opportunity for important change in the nation’s health care plan. More emphatically, the Senate version provides an opportunity for change in the way the nation’s century-old workers’ compensation system provides for the delivery of medical care in occupational disease claims.

The paper’s editorial rightly observes that one botched election in Massachusetts, a State that has already met the issue of universal health care, should not encumber the rest of country with horrors of a failed system. The Senate version of health care reform contains an opportunity to experiment and explore the opportunities on embracing the delivery of medical care and medical monitoring into a coordinated and national framework under the Medicare program. In the end it will be able to establish a unified epidemiological database to help prevent and treat occupational illnesses and lead the nation to a safer and healthier work environment.

The efforts of Senator Mat Baucus (D-MT) has made to craft an occupationally health care program has the potential for being the most extensive, effective and innovative system ever enacted for the delivery of medical care to injured workers. Libby Care [see Patient Protection and Affordable Care Act Sec. 10323 pp. 2222-2237] , and its envisioned prodigies, will embrace more exposed workers, diseases and geographical locations than any other program of the past. An ancillary benefit will be the integration of Centers for Medicare and Medicaid Services (CMS) and Centers for Disease Control (CDC) for the advancement of greater worker safety through organized data collection and research.

Caring for those who have been the victims of occupational disease has been an illusive goal of the nation’s patchwork of workers’ compensation systems for over a decade. Occupational diseases were a supplement to the compensation system that developed when Industry tried to shield itself from the emerging economic liabilities that silicosis was generating.

History reflects that the system just didn’t work. The longest running tort, asbestos reacted illness, plagued the workers’ compensation system and produced a  plethora of problems that only created more delay and denial of medical care for injured workers.

Economically the costs of direct costs for occupational illnesses and diseases continue to soar. Unfair cost shifting continues. A study in the year 2000 indicated that direct costs amounts to $51.8 Billion per year for hospitals, physicians and drugs. Workers’ compensation was reportedly covering only 27% of the costs and taxpayers were sharing un even share of the burden. The costs of occupational disease amounted for 3% of the gross national product.

The problems of under-reporting of occupational illnesses and disease even compound the reporting the true reality of the issue even further. The recent NY Times and Nebraska Appleseed investigative reports indicate that true numbers are hard to come by because of the fear and intimidation injured employees suffer in reporting claims.

Since the enactment of workers’ compensation in 1911, there has never been a greater opportunity to provide meaningful change to make the workplace healthier and safer. Congress and the President Obama should take advantage of this one-in-a-lifetime chance and make the Senate version of health care reform the law of the nation.

Click here to read more about health care and workers' compensation.

NJ Workers' Compensation Revenue Bills to be Shelved

Bolstered by a united chorus of favorable comments at recent NJ Legislative hearings, the transition team of NJ Governor Christie has urged opposition to any new benefit increases for workers' compensation. The hearings were in response to a series on investigative articles that appeared in The Star Ledger alleging problems existed in the present system.

The transition team has made the following recommendations:

Oppose A-5181 (Egan, Evans) / S-639 (Sarlo, Gill): Increases workers' compensation for loss of hand or foot.
Impact: $20 - $25 million in increased costs to the system.

Oppose A-2846 (Greenstein, DeAngelo) / S-785 (Sweeney, Madden): Extends supplemental disability and dependent benefits for post-1979 claims.
Impact: These added benefits would be paid entirely by employers through an increased surcharge in their Workers' Compensation policy. An analysis by the Office of Special Compensation Funds within the Department of Labor and Workforce Development projects the annual cost to New Jersey employers at $125 million with the potential to be significantly higher if this law change caused New Jersey to lose its "reverse offset" benefit from the Social Security Administration.

Oppose S-1982 (Sweeney): Establishes an ombudsman for injured workers in, but not of, the Department of Labor and Workforce Development.
Impact: This would create an entirely new department within the State government with its incumbent salary and administrative costs. This would also duplicate many of the responsibilities now handled effectively by the Division of Workers' Compensation.

Click here to read more about workers' compensation reform efforts.

NJ Second Injury Fund Is In Financial Trouble

Governor Christie's transition team reported that the NJ Second Injury Fund (SIF) is insolvent. Several options were presented, if the SIF is going continue to operate.


The SIF was established to compensate totally disabled workers for their pre-existing disabilities shield the last employer from the total cost of the last compensable injury. The was enacted by NJ prior to the existence of the American With Disabilities Act (ADA) and theoretically was to encourage employers to hire handicapped workers.


Since the enactment of the ADA many states have felt that their was no need to continue the SIFs and the growing trend is to eliminate them. The SIF in NJ currently  supports the operating funds on the NJ Division of Workers' Compensation.


The transition report concludes:


"The SIF has been experiencing cash flow problems recently due to diversions from the fund in 2003 and 2004 and also as a result of legislative changes made in 2000 and 2003. Prior to 2000, the assessment against employers and insurance companies that finance the Division of Workers Compensation was determined by estimating the costs incurred to run all programs (including benefits) and multiplying that by 150%. In 2000, this was changed to 125% of estimated benefits and 100% of estimated administrative costs. These changes initially did not cause any significant cash flow issues; however, when the State began diverting money the combination of these factors resulted in an insufficient amount of cash being collected through assessments.

Solutions: Due to the legislative changes to the assessment calculations, the fund will never be able to restore solvency. The only solution requires legislative approval to phase out the $40 million “add back” and adjust the $5 million fund balance cap to a percentage of the prior years’ benefit payments. The only other option would be to find a supplemental appropriation to replenish the diverted money from FY2010."

Historically, surpluses in the NJ SIF have been raided by the Legislature and Governor and the funds diverted to the general treasury of the State. Like other NJ agencies, the NJ Division of Workers' Compensation has been challenged by mandated furloughs and short staffing issues. The fiscal problems of the SIF have compounded Medicare delays in the workers' compensation program in dealing with catastrophic and serious disability claims.

Click here to read more about The Second Injury Fund.

Requests to Preserve Evidence Must be Timely

The failure to act swiftly in both requesting preservation of evidence, as well as inspecting the physical evidence of a work related accident, can lead to a waiver of a cause of action for spoliation of evidence.  An attorney for an injured worker quickly requested that a potentially defective forklift be preserved, but did not hastily have an expert conduct a physical inspection.


Ciapinski v Crown Equipment Corp., 2010 WL 183903 (N.J. App. Div.) Decided Jan. 21, 2010.

Click here to read more about evidence and workers' compensation.

Perception of Claimant Insuffient to Meet Burden of Proof

The Chief Financial Officer of a day care center was denied her caim for psychological disability resulting from a claim of a heavy work load. The Court held the cause was not peculiar to her employment, that there was a lack of supporting objective mendical evidence, and that the underlying, pre-existing disability from childhood resulting in a compulsive disorder was the cause of the condition.

K.S. v Sunnydays Early Childhood Services, 2010 WL 173531 (N.J. Super.A.D.) decided January 20, 2010.

Click here to read more about hostile work environment claims and workers' compensation.

Workers Compensation Law Firm Absolved of Legal Malpractice for Negligent Advice

A NJ workers' compensation firm, successor to another firm representing the claimant in a workers' compensation claim,  has prevailed on appeal in defending against charges of  providing negligent advice to an injured worker. The successor firm was joined as a third-party defendant in a legal malpractice claim where the claimant alleged that he should have been furnished advice about his claim for retirement benefits.

While the court reasoned that the injured worker may have had a viable cause of action against the law firm, the mechanism of a third-party joinder was not an effective method of bringing a claim. The withdrawing defendant-law firm, that had previously presented the worker, was not entitled under the law to join the successor firm for contribution. The court concluded, "...that attorneys in this situation cannot be characterized as joint tortfeasors and that a successor attorney owes no duty to a predecessor attorney to correct the predecessor's errors."

Summary Judgement was granted the third-party defendant firm and it was awarded sanctions $16,622.49) and expenses ($15,555.20) against the defendant firm for filing a frivolous claim.

Arthur v Klitzman & Gallagher v. Ansell, et al. and Schebell, et al., 2010 WL 163194 (N.J.Super.A.D.) Decided November 23, 2009

Click here to read more about workers compensation.

Silica Workers Prone to Fungal Infections

A just release study reports that silica workers have a greater risk of contracting fungal infections and dying from them:


"We found that persons who die with silicosis are more likely to die with pulmonary mycosis than are those who die without pneumoconiosis or who die with the more common pneumoconioses. Insofar as silica dust impairs cellular defense, silica-exposed workers (without silicosis) may be at increased risk for fungal infections, as they are for mycobacterial infections."


Concurrent Silicosis and Pulmonary Mycosis at Death,Yulia Iossifova, Rachel Bailey, John Wood, and Kathleen Kreiss, DOI: 10.3201/eid1602.090824 Emerg Infect Dis. 2010 Feb


Click here to read more about silicosis litigation.

Subject of Smear Campaign Recovers for Psychiatric Condition

An employee, who was the object of a smear campaign that included being the subject of  circulated pornographic cartoons, was permitted to seek benefits for psychological residuals flowing from the humiliation, shock and anger that resulted in her loss of sleep. The worker was treated for an adjustment disorder with mixed anxiety and depressive mood.


The trial court, that was affirmed, had concluded:


"...[t]he aforementioned events cannot be characterized as an honest attempt to ensure that an office is running in an efficient and effective manner. Here, [p]etitioner was subjected, in part, to a resignation rumor, a potentially improper layoff, together with the aforementioned . . . sexual propaganda . . . . [I]t shocks the conscience that same would have occurred over such a long period of time without otherwise being addressed by the employer."


In affirming the Appellate Court held:


"In finding in petitioner's favor, Judge Leslie A. Berich applied correct legal standards.  The Workers' Compensation Act is 'humane social legislation designed to place the cost of work connected injury upon the employer who may readily provide for it as an operating expense.'"


Lori Ross v. City of Asbury Park, Docket No. A-0379-08T3 


Click here to read more about stressful conditions and workers' compensation.

Releasing 3rd Party Workers Compensation Liability Upheld

A security guard, who was injured on the premises of the employer's client, was prohibited from recovery in a negligence claim. As a condition of pre-employment, the employer had requested, and the injured worker signed, a waiver of liability against the third party.

The Court held that the waiver did not violate public policy and the release was enforceable. The third party workers' compensation release, signed as a condition of pre-employment, was upheld as the guard agreed to extinguish only her right under workers' compensation to recover only amount additional to what she already recovered under workers' compensation.

Bowman v Sunoco, Inc., 2009 WL 4828976 (Pa.Super.), 2009 PA Super 242

The Starbucks Doctrine: Injury on Coffee Break Held Compensable

The NJ Appellate Division has expanded the exceptions to the "going and coming rule" by affirming a  trial court decision hold that an injury while on a coffee break is a compensable event. The injured worker was involved in a motor vehicle accident, off the employers' premises.


The employee was a union office who drove a company car from home to work site. His duties required him to travel to a union hall to discuss future work plans with an official. The official was in am eeting and no coffee was available at the union hall, so the employee decided to drive to a coffee vendor when the motor vehicle accident occurred.


The Court's reasoning, of the so called, "Starbucks Doctrine", expanded compensbility to off-premises injuries where the deviation from employment was minor and reasonable. It was equated by the trial court as encompassed in the "the personal comfort" exception.


"Here, the judge of compensation made comprehensive findings based on credibility determinations. He found that petitioner was an “off-site” employee who, facing an extended wait to consult with an expert concerning a work-related issue, was injured while driving for a cup of coffee. It cannot be expected that he would stand like a statue or remain at the union hall with nothing to do for such a period, particularly when there was no coffee available at the site. We cannot conclude in these circumstances that the injuries were not compensable merely because petitioner chose to take his authorized “coffee break” other than at the closest location. The distance of the coffee shop from respondent's off-site jobsite was reasonable given the rural nature of the community in Winslow Township and the time petitioner had to wait to seek the counsel he sought. The judge found petitioner to be credible, and under Jumpp, accidents occurring during coffee breaks for off-site employees, which are equivalent to those of on-site workers, are minor deviations from employment which permit recovery of workers' compensation benefits."


Cooper v. Barnickel Enterprises, Inc.,
--- A.2d ----, 2010 WL 98866, N.J.Super.A.D., January 13, 2010 (NO. A-1813-08T3)

NY Governor Appoints New WC Executive Director

NY Governor David A. Patterson has appointed Jeffrey R. Fenster, age 29, as the new executive director of the NY Workers' Compensation Board.  Fenster, a lawyer, is reportedly an outsider to the system, but has some financial management experience. 

The NY workers' compensation system, like most throughout the county, has been plagued with problems. The NY Times, after in an in depth analysis of the NY system, concluded that it was, "A World of Hurt: A Costly Legal Swamp."

The appointment comes with a salary of $143,730 and was effective January 11, 2010.

New OSHA Booklet Sets Forth Hexavalent Chromium Standard

The Occupational Safety and Health Administration (OSHA) has published a booklet describing the industry requirements for safe handling of Hexavalent Chromium. Know hazards to workers handling 
this substance include lung cancer and damage to the nose, throat and 
respiratory system.


"Hexavalent chromium is a powerful lung carcinogen and exposure to this chemical must be minimized," said Assistant Secretary of Labor for OSHA David Michaels. "OSHA provides guidance on its standards to ensure that employers and workers know the best ways to prevent workplace injuries and illnesses."


Click here to read more about Hexavalent Chromium and workers' compensation.


Click here to read about Hexavalent Chromium and potential litigation for benefits.

No Free Lunch For Salty Foods

Mayor Michael Bloomberg of New York City may have put a a focus a new compensable event.  A long proponent of a healthier living environment, Bloomberg has proposed reducing salt content in food in the Big Apple by 25%.


While emphasizing the seriousness of the health hazards of salt intake, he compared the consumption of salt to asbestos and smoking, "Salt and asbestos, clearly both are bad for you," Bloomberg continued. "Modern medicine thinks you shouldn't be smoking if you want to live longer. Modern medicine thinks you shouldn't be eating salt, or sodium."


There is no free lunch in the adoption of this scenario. If an employee is exposed to salty foods in the course of the employment and suffers a medical event associated with the intake of salt, then compensability may follow.

"The New York City Health Department is coordinating a nationwide effort to prevent heart attacks and strokes by reducing the amount of salt in packaged and restaurant foods.Americans consume roughly twice the recommended limit of salt each day – causing widespread high blood pressure and placing millions at risk of heart attack and stroke. This is not a matter of choice. Only 11% of the sodium in our diets comes from our own saltshakers; nearly 80% is added to foods before they are sold. The National Salt Reduction Initiative is a coalition of cities, states and health organizations working to help food manufacturers and restaurants voluntarily reduce the amount of salt in their products. The goal is to reduce Americans’ salt intake by 20% over five years. This will save tens of thousands of lives each year and billions of dollars in health care costs."


More than 40 cities, states and national health organizations have joined the National Salt Reduction Initiative. The goal is to reduce the salt intake of Americans by 20% over the next five years.

Click here to read more about asbestos and workers' compensation. 

The Grey Area of the CMS Statute of Limitations for a Recovery Action

CMS (Centers of Medicare and Medicaid Services) has expressed an opinion that there is no specific time limit in its ability to seek recovery. At a recent town hall tele-conference concerning the implementation of mandatory insurance company reporting under Section 111 of the Medicare, Medicaid & SCHIP Extension Act of 2007, 42 U.S.C. 139y(b)(8) a spokesperson for CMS indicated that the traditional 6 year limitations statute was not the applicable time limitation for its recovery actions efforts.

CMS has been increasing its effort to recover money paid erroneously to injured workers’ whose medical benefits should have been paid by their employers or workers’ compensation insurance carriers. In an effort to reduce the CMS “pay and chase” activity, Congress enacted mandatory reporting by insurance carriers so that CMS could enforce the MSP {Medicare Secondary Payer Act] and reduce cost shifting at earlier stages of the claim while enhancing its recovery activity.

“(Tracy) Meador: Okay. And is there any - do you have any type of statute of limitations? I was told in a seminar that there’s a six year statute of limitations. Is that correct? I hadn’t heard that before.

[CMS[ Barbara Wright: This could be another one of those instances where the answer is maybe yes, maybe no depending on what you want to tie to it. Generally, there is a statute of limitations in terms of how long you have to bring a litigation action. But there’s different rules in terms of when it runs from.

And generally, anything we have doesn’t start to run until we have knowledge of the claim. And certainly in a liability situation it’s not the date of accident that controls. What we’re looking at is when there was any settlement, judgment, award or other payment.

So we would have at least six years from that date.

(Tracy) Meador: And after six years then you would no longer pursue recovery?

[CMS] Barbara Wright: That’s not necessarily true. What I said is the six year statute of limitations is generally tied to when we can pursue action in court. But there are other recovery actions that we have that we can take as well.”

FTS-HHS HCFA  Moderator: John Albert, 12-15-09/12:00 pm CT, Confirmation #5650450, Page 77

Revised NJ TDB Application Published

The NJ Department of Labor and Industry has released a revised application for temporary disability benefits that is both HIPPA (Federal Health Information Portability & Accountability Act) compliant and computer friendly. The application can now be downloaded in PDF format and the completed form may be submitted via fax. The medical certification has been expanded to obtain additional information concerning the claimant's medical condition.

An application for NJ TDB must be filed within 30 days of the beginning of disability. Claimants are now advised that Social Security Disability benefits may be available should the disabling medical condition last more than 1 year.

Click here to read more about temporary disability benefits.

Insurance Carrier Successful in Seeking Medical Reimbursement

An agreement to equally share the responsibility of medical expenses was held enforceable between insurance carriers after an eight year delay in seeking reimbursement.

A 1999 settlement of a workers' compensation contained a stipulation that two insurance carriers would share in the cost of medical expenses. One insurance company would manage the claimant's medical care and would seek reimbursement from the other insurance carrier. Eight years after the settlement the managing insurance carriers, New Jersey Manufacturers Insurance Company (NJM) sent a letter to the other carrier, Scibal, requesting reimbursement of 50% of the costs. By then, the costs had amounted to $570,629.03.

The Court rejected the application of the Doctrine of Equitable Estoppel as a defense because Scibal did not met the burden of proof. "Scibal must show that NJM had "engaged in conduct, either intentionally or under circumstances that induced reliance, and that [Scibal] acted or changed [its] position to [its] detriment." The Court also rejected the application of the Doctrine of Laches because the offending party, Scibal, was not prejudiced by the mere passage of time.

Kathleen Patry v. West Jersey Health Systems, NJ App Div, Dceided 12.0.2009

Workplace Violence Kills 4 in St. Louis

The terrible consequences of workplace violence left 4 people dead and 5 hurt at a St. Louis transformer plant yesterday. A disgruntled employee took a gun to work and opened fired killing his co-workers.

The suspected shooter was identified as plaintiff in a lawsuit filed in 2006 against the administrators of the company retirement plan. The law suit alleged that unreasonable fee were charged in administrating the plan.

While workers' compensation may provide a remedy for some victims and their families, the basic question remains on what can be done to make the workplace safer. What signals existed that this was going to occur and what actions could be taken by an employer  to assist disgruntled workers from "going postal."

All would agree that certain circumstances are difficult to predict. On the other hand, employers and their insurance carriers should be preemptive in their efforts to create a safer workplace. When Congress looks at work place safety it should broaden its vision to include regulatory preventive tactics so that this situation will not occur.

Gelman to Speak on Employment Discrimination Claims

Jon L. Gelman will join a distinguished to panel of attorneys to discuss employment discrimination claims. The  seminar to be presented by the NJ Institute for Continuing Education  will be moderated by David H. Ben-Asher.

Tuesday, March 16, 2010

4:00 PM to 7:30 PM

Pines Manor, Edison

Click here to print paper registration form

As the practice of employment law in New Jersey becomes increasingly complex, other legal fields sometimes intersect with that practice in significant ways. In order to effectively represent clients in discrimination, whistleblower retaliation, contract and similar matters, employment lawyers must have a basic understanding as to the potential influence of legal principles and remedies in fields such as criminal, tax, insurance, labor-management, workers’ compensation, bankruptcy and disability benefits law. A panel of practitioners experienced in those areas will limit their discussion to substantive and practical ways in which their fields affect the handling of employment matters

Labor-Management - Peter L. Frattarelli, Esq. 
How unionized employees’ collective bargaining agreement grievances and arbitration, N.L.R.B. charges and duty of fair representation suits bear upon their discrimination, whistleblower and other employment law claims.

Workers’ Compensation - Jon L. Gelman, Esq. 
When and how compensation claims should be pursued. The synergy between workers’ compensation claims and employment civil actions and their relation to liens and setoffs. Provisions regarding workers’ compensation in settlement and release agreements

Criminal Law - Bruce I. Goldstein, Esq. 
Issues of potential criminal exposure of employees and employers in whistleblower retaliation and other employment matters. Addressing the criminal legal questions which may arise during the conduct of corporate internal investigations. How the rights of the corporation and its employees are vindicated during governmental investigations.

Bankruptcy - Gerald H. Gline, Esq. 
The treatment in bankruptcy of employment contracts and benefits, non-competition agreements and settlements. Handling employment claims against employers which are in bankruptcy or claims by employees who have filed for bankruptcy. When and how employment claims need to be proven in Bankruptcy Court. Collecting employment damage awards when the employer has been discharged in bankruptcy.

Insurance - Barbara A. O’Connell, Esq.
 Types of insurance policies that can provide coverage in an employment case. Coverage and bad faith litigation. Workers’ compensation policies and situations which give rise to the obligation thereunder to pay for the defense and pain and suffering damages in employment cases. Employment Practices Liability Insurance: dealing with deductibles, punitive damage claims, settlements and the selection of defense counsel.

Tax - Sean M. Aylward, Esq.
 Tax considerations in the handling of employment cases and in the negotiation, structuring and tax reporting of settlements. How Internal Revenue Code Section 409A applies to deferred payments.

Disability Benefits - Bonny G. Rafel, Esq. 
Availability and pursuit of short term and long term disability insurance benefits. Definitions of residual disability, pre-disability income and occupation. Provisions related to disability buyout and overhead expense coverage. Pitfalls resulting from severance agreements. The interaction between employees’ claims for disability benefits and their employment law claims and damages, including issues of liens, setoffs and judicial estoppel.

Driving While Distracted Compared to a DUI

A growing momentum is now taking hold that is comparing driving while distracted (DWD) to driving under the influence (DUI). Over 200 pieces of legislation have now been offered nation wide to prohibit such activities.

“People are starting to see it like drunk driving, and that’s the comparison we need to continue to make,” said Steve Farley, an Arizona state representative. The next step will be a determination whether State workers’ compensation law will consider the activity outside the course of employment or mandated by statute as  exclusion from coverage.

The NY Times has reports that 22% of all drivers talk of their phone while driving and DWD accounts for 2,600 deaths per year and 570,000 injuries.

To read more on distracted driving activity and workers’ compensation, click here.

OSHA Moving to Finalize Crystalline Silica Exposure Standard

The Occupational Safety and Health Administration (OSHA) is moving forward on implementing the standard for occupational exposure to silica. Silica has long been considered an occupational hazard. 


Silicosis was one of the enumerated occupational diseases that were universally included into workers' compensation statutes about 40 years after the enactment of the initial model acts were adopted, at the behest of Industry, to avoid civil liability actions. Occupational disease claims continue to be problematic for State compensation systems.


"Crystalline silica is a significant component of the earth's crust, and many workers in a wide range of industries are exposed to it, usually in the form of respirable quartz or, less frequently, cristobalite. Chronic silicosis is a uniquely occupational disease resulting from exposure of employees over long periods of time (10 years or more). Exposure to high levels of respirable crystalline silica causes acute or accelerated forms of silicosis that are ultimately fatal. The current OSHA permissible exposure limit (PEL) for general industry is based on a formula recommended by the American Conference of Governmental Industrial Hygienists (ACGIH) in 1971 (PEL=10mg/cubic meter/(% silica + 2), as respirable dust). The current PEL for construction and maritime (derived from ACGIH's 1962 Threshold Limit Value) is based on particle counting technology, which is considered obsolete. NIOSH and ACGIH recommend 50µg/m3 and 25µg/m3 exposure limits, respectively, for respirable crystalline silica. Both industry and worker groups have recognized that a comprehensive standard for crystalline silica is needed to provide for exposure monitoring, medical surveillance, and worker training. The American Society for Testing and Materials (ASTM) has published a recommended standard for addressing the hazards of crystalline silica. The Building Construction Trades Department of the AFL-CIO has also developed a recommended comprehensive program standard. These standards include provisions for methods of compliance, exposure monitoring, training, and medical surveillance. "


It is anticipated that the Peer Review phase will be completed in January 2010 and that NPRM (Notice of Proposed Rulemaking ) will be completed in July 2010.


The proposed Rules, 29 CFR 1915; 29 CFR 1917; 29 CFR 1918; 29 CFR 1926 (To search for a specific CFR, visit the Code of Federal Regulations.) 

Older Energy Workers Occupationally Ill

A new study reveals that older energy workers suffer a propensity of occupational illnesses. Historically occupational diseases of energy workers were primarily associated with limited radioactive substances.


"The age-standardized prevalence ratio of COPD among DOE workers compared to all NHANES III data was 1.3. Internal analyses found the odds ratio of COPD to range from 1.6 to 3.1 by trade after adjustment for age, race, sex, smoking, and duration of DOE employment. Statistically significant associations were observed for COPD and exposures to asbestos, silica, welding, cement dusts, and some tasks associated with exposures to paints, solvents, and removal of paints."


Click here to read more about energy workers and workers' compensation.