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September 10, 2005 9:28 PM
Workers' Compensation News - September 10, 2005, Volume 3 Issue 311

 FRAGRANCE AND FLAVOR INDUSTRY HIT WITH $15 MILLION VERDICT
Jury Awards $15 Million in Making of Popcorn -This self regulated industry becomes prime target.
A jury on Friday awarded a former popcorn-plant worker $15 million after finding that his exposure to butter-flavoring fumes led to his severe respiratory problems.
The verdict brings to nearly $53 million the total amount awarded in the last two years against the makers of the popcorn flavoring, International Flavors & Fragrances Inc. of New York and a subsidiary, Bush Boake Allen Inc.
The Kansas City Star September 3, 2005
http://www.kansascity.com/mld/kansascity/business/12549361.htm

CMS: MEDICARE PRESCRIPTION DRUG COVERAGE ANOTHER MSP ISSUE?
Starting January 1, 2006, Medicare will offer insurance coverage for prescription drugs through Medicare prescription drug plans and other health plan options. Medicare's new prescription drug coverage will typically pay over half of some beneficiaries drug costs next year, for a monthly premium. It will also provide benefits once the out-of-pocket drug spending is more than $3600 a year.
Insurance companies and other private companies will work with Medicare to provide a choice of plans that cover both brand name and generic drugs. To enroll, the beneficiary must have Medicare Part A and/or Medicare Part B. Beneficiaries can first enroll in a plan in their area from November 15, 2005 through May 15, 2006.
If the claimant has limited income and resources, he or she may qualify for extra help that will cover between 85 and almost 100 percent of your drug costs. Most people who are eligible for this extra help will pay no premiums, no deductibles, and no more than $5 for each prescription. The amount of extra help depends on income and resources.
http://www.medicare.gov/MPCO/Static/Resources.asp?dest=Nav|Home|Resources|Resources#TabTop

CMS Manual Changes -Effective January 3, 2006
Common Working File (CWF) Unsolicited Response Adjustments for Certain Claims Denied Due to an Open Medicare Secondary Payer (MSP) Group Health Plan (GHP) Record Where the GHP Record was Subsequently Deleted
http://www.cms.hhs.gov/manuals/pm_trans/R624CP.pdf

ASBESTOS FEDERAL VOTED AN OCTOBER POSSIBILITY
U.S. Sen. Specter Hopes for Asbestos Vote in October
The co-author of a bill to create a $140 billion asbestos compensation fund said he hoped it would come to the Senate floor during the first week of October.
Reuters Tue Sep 6, 2005 12:33 PM ET
http://today.reuters.com/investing/financeArticle.aspx?type=bondsNews&storyID=2005-09-06T163325Z_01_N06734417_RTRIDST_0_CONGRESS-ASBESTOS.XML

NEW YORK: 15 YEARS WITHOUT AN INCREASE
Injured workers in New York State have gone nearly fifteen years without a legislated. workers compensation benefit increase from the NYS Legislature and Governor. This is a travesty. There is no other State benefit or mandate for workers, including the minimum wage that has not increased at all during the same time period. Obviously, the purchasing power of the compensation benefit has substantially eroded through this dry spell. New York’s maximum benefit rate now puts us near the bottom among all the states. Union/Employer, Taft-Hartley benefit funds that supplement compensation benefits are hard pressed to pick up ever-larger supplements as wages increase and compensation benefits stagnate.
By Richard Winsten
On the Record (Newsletter of the Injured Workers’ Bar Association) September 2005
http://www.injuredworkersbar.org/index.htm

OHIO:: Official Fired After Insurance Fund for Injured Workers Loses More Than $300M
http://www.law.com/jsp/article.jsp?id=1126170312661

CALIFORNIA: Schwarzenegger Administration cuts disability compensation 85% 
"After 20 years cleaning rooms at SF Hyatt, I can’t clean my own house..."
VotersInjuredatWork.org today released the third of nineteen Permanent Disability Horror stories spotlighting injured California workers being harmed by the governor’s deep cuts in their permanent disability compensation.
http://www.caaa.org/Research/Jimenez.final.pdf

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THE REQUIST LEGACY
The Legacy of Chief Justice William H. Rehnquist, Erwin Chemerinsky, Neil Siegel and Chris Schroeder, Duke Law School Program in Public Law, September 8, 2005. RealPlayer 57 minites. Watch recorded video.
Duke Law School
http://jurist.law.pitt.edu/monitor/2005/09/rehnquist-legacy-duke-law-school.php

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CASES
INSURANCE COVERAGE 
Where the underlying complaint does not allege an intent to injure and the policy, consistent with statutory and case law authority, does not exclude coverage for intentional acts which are not themselves intended to cause injury the workers' compensation carrier is required to provide coverage in the underlying matter. Charles Bessler Company v. O'Gorman & Company, etc., 005 WL 2173691 (N.J.Super.A.D.)
Richard J. Williams, Jr., argued the cause for appellant (McElroy, Deutsch, Mulvaney & Carpenter, attorneys; Michael J. Marone, of counsel and on the brief; Mr. Williams, on the brief).
Thomas W. Sweet argued the cause for respondent.

VICARIOUS LIABILITY WC INS CO FOR MED MAL
A Workers' Compensation insurer is not vicariously liable for the medical malpractice of its designated treating physician when the insurer exercised discretion over what, when and where treatment was rendered.
Wolf v. Transportation Insurance Company, 2005 WL 2061296 (N.J.Super.A.D.)
Lewis Stein argued the cause for appellant (Nusbaum, Stein, Goldstein, Bronstein & Kron, attorneys; Mr. Stein, on the brief).
Thomas J. O'Leary argued the cause for respondent (Connell Foley, attorneys; Mr. O'Leary, Karen Painter Randall, on the brief), of counsel.

INTOXICATION
The compensation judge awarded petitioner medical and temporary disability benefits for injuries sustained in an accident which occurred when he fell asleep while driving a tractor trailer as respondent's employee, losing control of the vehicle and crashing. The judge rejected respondent's statutory defense of intoxication, holding that petitioner's intoxication was not the sole cause of the accident; and that the accident was also contributed to by the stress of petitioner's home life, the number of hours he had worked in the three days prior to the accident, and his physical activity in repairing the roof of his house prior to the accident. 
Tlumac v. High Bridge Stone, App. Div. (per curiam) 
http://www.law.com/

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CALENDAR
Sept. 29, 2005 (Friday) The Honorable James J. McGovern Retirement Dinner 
The Brownstone House, 351 West Broadway, Paterson, NJ 6:30pm (Cocktail Hour-Dinner) $75.00 per person
Contact: Victor B. Matthews, Esq.
4 Second Avenue, Suite 202
Denville, NJ 07834
Tel 973-627-6778 - Fax 973-627-7440

Sept. 29-Oct. 1: WILG's Worker Justice Summit programming in Kansas City, co-sponsored with IWJ. 
http://www.wilg.org

Oct. 22 Rutgers Lacrosse/Nancy Gelman Tournament for Breast Cancer- Sat. 10/22/05 9:30a-5:00p
http://www.gelmans.com/FrontEnd/ReadingRoom/vwArticle.asp?ArticleId=584&PracticeAreaId=1

Nov. 3-6: Association of South Carolina Claimant Attorneys for Workers' Compensation, at The Grove Park Inn and Spa in Asheville, NC

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