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Showing posts with label Disability. Show all posts
Showing posts with label Disability. Show all posts
Wednesday, January 12, 2011
Too Old to Get Workers Compensation
Washington's Governor, Chris Gregorine has proposed legislation to retire older totally disabled workers from the state's workers' compensation system. About 8% of the state's totally disabled workers would have the option of receiving a lump sum benefit to opt out of the system of periodic benefits. The senior beneficiaries amount to 85% of the present systems' cost and amount to only 8% of the total beneficiaries.
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Monday, November 22, 2010
Congress Told Workers Compensation is a Deteriorating System
The former chair of the 1972 National Commission on Workers' Compensation told Congress that the present system is deteriorating and a new course of action is warranted. Profession Emeritis John F. Burton, Jr., last Wednesday testified before The Subcommittee on Workforce Protections of the Congressional Committee on Education and Labor.
Professor Burton told Congress that during the last 20 years he has observed the "...deterioration in adequacy and equity of state workers' compensation programs..." He reported that "the decline in workers' compensation cash benefits in the states during the 1990's is explained by ....changes in workers' compensation provisions and practice than is explained by the drop in workplace injuries and disease during the decade."
Burton proposed that Congress consider new legislation to prohibit costs shifting from workers' compensation to Social Security Disability Insurance (SSDI). He advised the Subcommittee that cost shifting was continuing because 15 states were permitted to continue "reverse offset" provisions, the Social Security Administration (SSA) was paying benefits to workers who were not totally disabled under workers compensation acts, and a larger number injured workers were not qualifying for workers' compensation benefits.
As Professor points out, the aging workforce further complicates the burden placed upon the nation's Medicare system. With the erosion of the doctrine that workers' compensation takes the worker as it finds him or her, medical treatment for pre-existing conditions will be a growing cost for Medicare and a cost-shift from the workers' compensation system. The NY Times reported that, "Nearly one-fourth of Medicare beneficiaries have five or more chronic conditions. They account for two-thirds of the program’s spending."
As Professor points out, the aging workforce further complicates the burden placed upon the nation's Medicare system. With the erosion of the doctrine that workers' compensation takes the worker as it finds him or her, medical treatment for pre-existing conditions will be a growing cost for Medicare and a cost-shift from the workers' compensation system. The NY Times reported that, "Nearly one-fourth of Medicare beneficiaries have five or more chronic conditions. They account for two-thirds of the program’s spending."
A "reaffirmation" of "Federal standards" as enunciated in the 1972 National Commission report were recommended by Burton. Additionally, he called upon Congress to enact legislation requiring employers and/or their insurance carriers reimburse Social Security for permanent disability cash benefits paid by Social Security for disability flowing from a work related event or disability.
Wednesday, November 17, 2010
Congresswoman Woolsey Calls For A GAO Study of Workers Compensation-Cites Insurance Company Cost Shifting
Below are the prepared remarks of U.S. Rep. Lynn Woolsey (D-CA), chairwoman of the Workforce Protections Subcommittee, for a subcommittee hearing on “Developments in State Workers’ Compensation Systems” 11.17.2010
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Thank you all for attending this hearing on “Developments in State Workers’ Compensation Systems.” Here in Congress, we don’t examine these state compensation programs very often because they are generally under the purview of state legislatures.
Thank you all for attending this hearing on “Developments in State Workers’ Compensation Systems.” Here in Congress, we don’t examine these state compensation programs very often because they are generally under the purview of state legislatures.
However, there have been some disturbing national trends that may compel a comprehensive reexamination of these state programs and their impact on injured workers.
As most of you are aware, workers’ compensation statutes were passed beginning in the early 20th century to establish a no fault system for providing efficient redress for injured workers.
Workers’ compensation was called the ‘grand bargain.’
Workers waived their rights to bring individual suits against their employers and in return receive compensation for work-related injuries regardless of fault.
Every state and the District of Columbia have workers’ compensation programs in place.
Most employers purchase private workers compensation policies, but others self-insure or purchase insurance from a state managed compensation fund.
Beginning in the 1990s, changes in state workers’ compensation laws--brought about by the lobbying efforts of employers and insurance companies---have resulted in stricter eligibility requirements and the reduction in both the amount and duration of benefits—particularly for those workers with permanent partial disabilities.
Unfortunately this ‘grand bargain’ of the 20th century is not so ‘grand’ any more, especially for injured workers.
In addition, there are two other recent developments that merit our attention
The first has to do with the American Medical Association’s (AMA) Guides to Permanent
Impairment.
And the second concerns a cost-shifting trend away from state workers compensation programs, where the employer is responsible for an employee’s injury, to the federal government’s medical and disability programs.
The AMA Guides have been in effect since 1971 and are now in widespread use.
Some states even require workers’ compensation programs to use the latest edition of the Guides.
These Guides were originally designed to be used by physicians in making a scientific assessment of a worker’s level of impairment---or loss of function---due to a work-related injury.
The determination of whether a worker is permanently disabled and entitled to workers compensation is based upon his or her impairment rating, which is then applied to the specific case of a given worker.
For example, a worker who loses a hand may not suffer permanent disability if he or she is a teacher, but that same worker would be permanently disabled if he or she works in construction.
In 2007, the AMA published the 6th edition of the Guides, and witnesses today will describe how this new edition has dramatically reduced impairment ratings for many types of conditions, without apparent medical evidence, and transparency.
The 6th edition has become so controversial that many states, including Iowa, Kentucky and Vermont have decided not to adopt them.
It also appears that the 6th edition was developed in near secrecy, without the transparency and consensus which should necessarily accompany the development of standards that will have widespread use by state governments.
In addition, it appears that the physicians who developed this latest edition may have ties to insurance companies, and are making a profit training doctors on the use of the 6th edition, which is complicated and very difficult to apply.
The National Technology Transfer Advancement Act of 1996 sets forth minimum criteria for the development of voluntary consensus standards: openness; balance of interests; due process protections; and consensus.
The process used for developing the 6th edition appears to significantly deviate from these standards and is a focus of testimony before us today.
Workers who are wholly dependent on this ‘grand bargain’ when they are injured on the job, are the ones paying the price.
The subcommittee invited the AMA to testify today, but unfortunately, it declined.
Another troubling policy issue is that as eligibility for workers’ compensation benefits have become more restrictive, there has been a cost shift to Medicare and Social Security Disability (SSDI), placing an additional burden on the taxpayer.
In addition, costs are being shifted to private health insurance that should be borne by workers’ compensation policies and employers.
This is particularly worrisome, especially during a time of record deficits.
Chairman Miller and I believe that this cost-shifting trend warrants further study.
Therefore, we will be asking the Government Accountability Office (GAO) to do a study and issue recommendations.
The testimony today will illuminate these problems facing injured workers and taxpayers, and I look forward to hearing from our witnesses.
Wednesday, August 25, 2010
$500,000 Verdict Awarded Police Officer Terminated Due to Disability
The Record reports that a police officer, who was unable to work because of blood thinner therapy flowing from a work related injury and a pregnancy, was awarded $500,000 because the employer terminated her because of the disability.
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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 accidents & exposures at work.
Saturday, March 20, 2010
Medical Criteria Swamp for WTC First Responders
The recent plan offered by the WTC Captive Insurance Company, and rejected by the Court, sets forth elaborate eligibility and disability criteria. The 96 page agreement, and accompanying exhibits, outlining the settlement process provides insight into struggle.
Drawing from far and wide, the proposed agreement tries to cover all potential diseases and schedule them.
"To constitute a Qualifying Injury, an alleged injury must satisfy all three of the following components of the Medical Proof Criteria: (i) it must be one of the “Qualifying Injuries” listed expressly in the tables immediately below; (ii) it must meet the “Diagnostic Criteria” applicable to the Disease Group in which the Qualifying Injury is listed in the tables immediately below; and (iii) it must satisfy the “Impairment Criteria” for the Disease Group in which the Qualifying Injury is listed in the tables..."The sources include:
"European Respiratory Society/American Thoracic Society COPD Guidelines – 2005; ATS/ERS Criteria for Diagnosis of Idiopathic Pulmonary Disease in Absence of Surgical Lung Biopsy; Global Initiative for Asthma/World Health Organization; American College of Chest Physicians Consensus Statement; British Society for Allergy and Clinical Immunology guidelines for the management of rhinosinusitis and nasal polyposis. Scadding GK; Durham SR; Mirakian R; Jones NS; Drake-Lee AB; Ryan D; Dixon TA; Huber PA; Nasser SM - Clin Exp Allergy. 2008 Feb; 38(2):260-75. Epub 2007 Dec 20.
The proposed system is yet another attempt to quantify disability and adds another set of elaborate medical criteria and complexity to the insurance company playbook. The loquaciousness of the authors of the proposal is mind boggling. This level of sophistication can only compound the delivery of benefits. This proposal is yet another example of the compelling need for one universal national program that can provide benefits to injured workers without the need of hip high boots to navigate the swamp.
Wednesday, March 17, 2010
Hot Coffee- Is Justice Being Served
Everyone has heard of the case against McDonald for spilled hot coffee that resulted in a large verdict. Susan Saladoff has undertaken an effort to undo the effects of the "brainwashing" campaign of the insurance industry designed to demonstrate the triviality of the claim.
Last week I had the opportunity to watch a screening the movie and the actual and horrendous bodily damage caused by the scalding hot coffee. The movie depicted the callouss behavior of McDonald's in its disregard of the on going complaints concerning its beverage.
Ms. Saladoff has undertaken a mission to right a wrong and reverse the effort of the insurance industry to limit all types of lawsuits under the guise of reform. The movie in its final stages of production. The producers are making an incredible effort to serve justice.
Click here to read more about "The Starbucks Doctrine" and workers' compensation.
Tuesday, March 9, 2010
Commercial Driver Fatigue Questioned as a Pre-exisiting Condition?
Falling asleep at the wheel is a common cause of accidents for commercial drivers. The Federal Motor Carrier Safety Administration (FMCSA) of the U.S. Department of Transportation is exploring the issue that such conditions as excessive daytime sleepiness should be evaluated by medical examination in an effort to predict future probabilities of having a bad day at the wheel and potential crashes at the wheel because of sleepiness.
If a sleep disorder can be identified and documented, that condition maybe determined to be a pre-exisiting medical condition. Apart from the third party liability that could be imposed upon an employer for identification and non-identification of the medical condition, the issue of an allocation for a pre-exisitng medical conditions (prior-functional credit) may exist in a workers' compensation claim as well as an event that can be attributed to a risk in the course of employment.
The term "prior functional credit" refers to the credit given to the employer, or to the employer's insurance carrier, for the loss of function of any part of the body which an employee had sustained before a subsequent injury or occupational disease for which the employer in question is responsible. Over the years there have been dramatic changes enacted by the Legislature accompanied by varying interpretations by the courts with regard to the law addressing credits to be afforded to the employer for both non-work and work connected injuries.
The employer no longer takes an employee as they find them. Belth v. Anthony Ferrante & Son, Inc., 47 N.J. 38, 219 A.2d 168 (1966). An individual suffered from asbestosis and bronchitis, and medical testimony was presented by the petitioner's expert apportioning a percentage of the functional loss to cigarette smoking. The employer was awarded a credit for the previous loss of function which could be attributed to the employee's cigarette smoking, since the legislatively enacted amendments permitted the employer to receive credit for an employee's prior loss of function involving the same body part affected by the compensable occupational disease regardless of whether compensation was received for the earlier injury. In effect, the employer no longer takes employees as it finds them. The court stated that the credit to employers for previous loss of function, whether work-related or not, was an incentive to encourage employers to hire workers with pre-existing disabilities. Field v. Johns-Manville Sales Corp., 209 N.J.Super. 528, 507 A.2d 1209 (App.Div.1986), certif. denied 105 N.J. 531, 523 A.2d 172 (1986); Dafler v. Raymark Industries, Inc., 259 N.J.Super. 17, 611 A.2d 136 (App.Div.1992).
Additional questions may arise as to whether the risk is actually associated with the employment. The Court may also evaluate the risk associated with the employment task in evaluating compensability. Where the risk was not enhanced by the business interests of the employer, and there was no exercise of control by the employer over the employee, the event is usually deemed to be non-compensable. If the risk in indeed removed from the course of employment then the employer may be denied the exclusivity bar and liability on the employer could be imposed in a civil action.
The FMCSA commented, "....measuring an individual’s sleepiness today is not going to predict how sleepy the person will be 6 weeks from now. Several factors influence sleepiness, including prior sleep time, medications, and time of day, so it is a very difficult thing to assess."
Click here to read more about "pre-exisiitng conditions" and workers' compensation.
Click here to read more about "pre-exisiitng conditions" and workers' compensation.
Wednesday, February 10, 2010
Workers Compensation Countable as Income Despite Special Needs Trust
An injured worker was denied food stamps in NJ because money from a workers' compensation award was countable as income despite the existence of a special needs trust.
"A special needs trust that effectively exempts assets or income from inclusion in Medicaid eligibility calculation can be established for the benefit of an individual deemed disabled pursuant to 42 U.S.C.A. § 1382c(a)(3). 42 U.S.C.A. § 1396p(d)(4)(A). The disability determination, however, can only be made by the Social Security Administration or the state disability review team, and only based on the definition set forth in the federal statute. See N.J.A.C. 10:71-3.10 to -3.12(a). Hence, the workers' compensation court judgment as to petitioner's disability, issued by a judge in the workers' compensation context, is not dispositive of whether she is "disabled" pursuant to the federal definition. See N.J.A.C. 10:71-3.10. As the Director of DMHS stated, unless and until petitioner is found to be disabled by the Social Security Administration or the state disability review team, she is not entitled to protect her assets through the use of a special needs trust. See Determining Disability and Blindness, 20 C.F.R. § 404.1504 (2009); Determining Disability and Blindness, 20 C.F.R. § 416.904 (2009)."
"A special needs trust that effectively exempts assets or income from inclusion in Medicaid eligibility calculation can be established for the benefit of an individual deemed disabled pursuant to 42 U.S.C.A. § 1382c(a)(3). 42 U.S.C.A. § 1396p(d)(4)(A). The disability determination, however, can only be made by the Social Security Administration or the state disability review team, and only based on the definition set forth in the federal statute. See N.J.A.C. 10:71-3.10 to -3.12(a). Hence, the workers' compensation court judgment as to petitioner's disability, issued by a judge in the workers' compensation context, is not dispositive of whether she is "disabled" pursuant to the federal definition. See N.J.A.C. 10:71-3.10. As the Director of DMHS stated, unless and until petitioner is found to be disabled by the Social Security Administration or the state disability review team, she is not entitled to protect her assets through the use of a special needs trust. See Determining Disability and Blindness, 20 C.F.R. § 404.1504 (2009); Determining Disability and Blindness, 20 C.F.R. § 416.904 (2009)."
J.C. v. Division of Medical Assistance and Health Services, et al., Docket No.: a5632-07 Decided: 2010-02-08
http://lawlibrary.rutgers.edu/courts/appellate/a5632-07.opn.html
Note: N.J.A.C. 10:71-3.10 Disability and Blindness Factors
For purposes of determining medical eligibility for the Medicaid Only program, the disability and blindness standards shall be the same as for the Supplemental Security Income program under Title XVI of the Social Security Act, as amended by Public Law 92-603. 42 N.J. Reg. No. 4.
http://lawlibrary.rutgers.edu/courts/appellate/a5632-07.opn.html
Note: N.J.A.C. 10:71-3.10 Disability and Blindness Factors
For purposes of determining medical eligibility for the Medicaid Only program, the disability and blindness standards shall be the same as for the Supplemental Security Income program under Title XVI of the Social Security Act, as amended by Public Law 92-603. 42 N.J. Reg. No. 4.
Monday, January 11, 2010
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.
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.
Thursday, November 19, 2009
Montana Cuts Off Benefits For Retirees
The Montana Supreme Court reiterated that the right to receive Workers' Compensation benefits is not a fundamental right and it could be terminated at retirement age. The Court rationalized that the receipt of permanent partial disability [PPD] benefits was conditioned upon the ability to return to work. Therefore, an individual should not receive workers' compensation partial disability benefits if the worker retires due to age.
"PTD [permanent partial disability] benefits are not meant to supplement a claimant’s wages rather they are intended to assist the worker who will never be able to return to work."
"PTD [permanent partial disability] benefits are not meant to supplement a claimant’s wages rather they are intended to assist the worker who will never be able to return to work."
"It is well established that the control of workers’ compensation costs is a legitimate government interest that may constitutionally be pursued by the legislature."
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