Workers' Compensation News - March 19, 2007, Vol. 5 Issue 103

 RICO CLAIMS RESULTS IN AWARD OF $2.2 MILLION AGAINST INJURED WORKERS
Federal RICO action arising from WC claims results in $2,264,690. Award Against Workers
"The Complaint alleges that the defendants committed violations of the Racketeer Influenced and Corrupt Organization Act, 18 U.S.C. 1962, violations of the New Jersey State Racketeer Influenced and Corrupt Organization Act, N.J.S.A. 2C:41-2, violations of N.J.S.A. 34:15-57.4(b) (workers’ compensation fraud), common law fraud and conspiracy in connection with the filing and prosecution of fraudulent workers’ compensation petitions against Plaintiff...'
Bath Unlimited, Inc. v Ginarte O'Dwyer, et al., Case 2:04-cv-03919-SRC-RJH Filed 3.14.07 Civ Ac No 04-3919 (SRC) (USDCT NJ 2007)
http://pacer.psc.uscourts.gov/ (registration required)
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BENZENE EXPOSURE AND THE RISK OF NON-HODGKIN
".... the evidence supports an association between occupational benzene exposure and NHL. (Cancer Epidemiol Biomarkers Prev 2007;16(3):385–91)
http://cebp.aacrjournals.org/cgi/rapidpdf/1055-9965.EPI-06-1057v1
Additional Information on Benzene
http://www.gelmans.com/FrontEnd/PracticeArea/practice_areas.asp?show=desc&PracticeAreaId=9
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US CONGRESS HOLDS HEARING ON DELAY IN SSA SYSTEM - 2 YEAR WAIT TOO LONG
The “average” wait for a hearing is approaching one and one-half years; in some hearing offices, it is more than two and one-half years. The number of pending cases is growing. A hiring freeze, caused by inadequate funding, prevents the replacement of the most experienced SSA staff who are retiring at a high rate. 

"SSA is generally doing a good job with limited resources and has improved its technological capacity in ways that will help to accomplish its work. However, under the current budget situation, people with severe disabilities have experienced increasingly long delays and decreased services in accessing these critical benefits. Processing times have continued to grow, especially at the hearing level where the delays have reached intolerable levels. In some hearing offices, our members report that claimants wait more than two years just to receive a hearing, which does not count the time for a decision to be issued." Nancy Shoo, Executive Director NOSSCR, Feb. 27, 2007
http://waysandmeans.house.gov/hearings.asp?formmode=view&id=5439
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BAN ASBESTOS BILL RE-INTRODUCED IN THE SENATE
On March 1, Senator Patty Murray (D-WA) introduced the “Ban Asbestos in America Act of 2007” (S.742), http://www.murray.senate.gov/asbestos/. This legislation would finally ban asbestos in the U.S., and fund research to develop better treatments for patients with meso or other asbestos diseases.
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INDUSTRY PROPOSED CMS SET-ASIDE FEDERAL LEGISLATION STALLED
An industry lead effort to re-introduce legislation to deduct a percentage of compromised workers' compensation payments to CMS in full satisfaction of potential future medical expenses remains stalled. Critics of the legislation remain vocal that program merely encourages disintegration of the present workers' compensation system. Additionally, renewed interest in a Federal universal health care system may result in a program that would workers' compensation coverage and CMS/MSP reimbursement making the entire legislative project moot. 
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CANADA: NEW LAW ALLOWS ASBESTOS USE IN TOYS
New Canadian federal regulations allow asbestos to be used in children's toys. Pat Martin and Catherine Bell, members of parliament from the left of centre party NDP used hand puppets dubbed Toxic Timmy and Ms. O'Thelioma, named after an asbestos-related cancer, to raise their concerns at a news conference last week in Ottawa. 'You would have to be crazy to put asbestos in children's toys,' Martin told reporters in the voice of Timmy. 'It's sort of like putting razor blades into children's apples at Halloween time.' New regulations introduced by Canada's Conservative government say explicitly 'a person may advertise, sell, or import an asbestos product... that is used by a child in learning or play.' Martin commented: 'The rest of the world is banning asbestos in all its forms and Canada is actively seeking out new markets and applications. It defies reason.' NDP said putting carcinogens into children's toys and playthings is a 'spectacularly bad idea' and showed an appalling lack of judgment on the part of the Conservative government. 'What's even more absurd is that the Canadian government is spending a fortune subsidising and promoting this deadly material,' said Catherine Bell. Canada continues to be one of the world's largest producers and exporters of asbestos, 'dumping approximately 220,000 tonnes per year into developing nations and third world countries,' says NDP. All of the mining occurs in Quebec, where one-third of work-related deaths are attributed to asbestos exposure each year, according to a 2006 study conducted the Centre for Study of Living Standards, an Ottawa-based non-profit organization.
http://www.cbc.ca/health/story/2007/03/01/asbestos-toys.html
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SWEEDEN: SITE DUST CAUSES HEART ATTACKS
Construction workers who are exposed to airborne particles in the workplace are more likely than others to die of a heart attack, a major Swedish study has found. Researchers from Gothenburg and Umeå found there has been little improvement in building site health and safety conditions in the last 25 years. Their study is based on health data collected from 176,309 Swedish male construction workers from the 1970s onwards and compared the builders' data to that of a control group consisting of 71,778 workers who were not exposed to airborne particles. During the 25-year follow-up period, 7,273 men in the larger construction workers' group died of heart attacks and 1,813 died of strokes. The corresponding figures for the control group were 1,790 and 497. 'The increased risk may not look so dramatic, around 12 per cent when the whole group is taken into account, but it still means that many people die each year as a result of risks in their workplaces,' said professor Kjell Torén from Sahlgrenska University Hospital. According to Torén, who led the study, workers are exposed to the same airborne particles today as they were 25 years ago. These include solvents, varnishes, diesel smoke and cement dust. Some chemicals like the paint stripper methylene chloride and carbon monoxide in exhaust fumes cause strain because they make the heart work harder to compete for oxygen. Dust damage to the lungs can also cause 'right sided heart failure', where the heart is damaged through overwork, trying to provide sufficient oxygen to poorly functioning lungs.
http://www.bwint.org/default.asp?Issue=OSH&Language=EN

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CASES

ACTION TO NULLIFY CMS/MSP REQUIREMENTS DISMISSED
A challenge to the validly of the Patel Memo of July 11, 2001 and subsequent requirements by CMS was dismissed by a US Federal Magistrate. 
Protocols, LLC v Leavitt, 2007 WL 757644 (D. Colo.) March 8, 2007.
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MEDICARE SECONDARY PAYER STATUTE - QUI TAM ACTION NOT PERMITTED
Defendants move to dismiss Plaintiff's complaint, arguing, among other things, that Plaintiff lacks standing. Specifically, Defendants argue that Plaintiff lacks standing under the MSP statute, because Plaintiff has not alleged an injury-in-fact under the MSP statute. Plaintiff does not allege in the complaint that he is a Medicare recipient that was injured by Defendants or any other personal injury-in-fact. Plaintiff responds that the MSP statute is similar to a qui tam action, and as such, because the United States has suffered an injury-in-fact, he may sue to redress that injury through the MSP statute. Several courts, however, have rejected this argument in cases filed by this plaintiff and another plaintiff across the county (including three cases filed in the Middle District of Florida). As such, the Court finds that Plaintiff lacks standing under the MSP statute.
Stalley ex rel. U.S. v. Community Health Systems, Inc. , 2007 WL 687638, M.D.Fla.,2007, March 02, 2007 
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NO PERMANENT DISABILITY FOUND - NJ - A NON AMA GUIDLINE STATE
Giving the weight to an analysis of objective testing a Judge completely dismissed petitioners multicited occupational disease claim.
Martinez v. B Tape Corporation, NJ DWC, Claim 2002-036835, (Nov. 16, 2006)
http://www.state.nj.us/labor/wc/cases/Martinez_v_RTape.pdf 

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CALENDAR

SEMINAR: PREPARING TO WIN A WORKERS' COMPENSATION CASE
Mercer County Bar Association and West-Thompson
Samuel Gaylord, Michael R. Paglione and Jon Gelman - at all locations
*Thu May 8th, 2007 5:00p-8:00p Newark Airport Marriott
Registration form:
http://www.gelmans.com/FrontEnd/ReadingRoom/vwFile.asp?FileId=254
Dinner and extensive handouts are included in registration - CLE credits available

RETIREMENT DINNER - The Honorable Lawrence Moncher
Thurs. April 12, 1007 - The Addison Park, 50 Route 35, Aberdeen, NJ 6-11pm - $85/person
Contact Carolyn Bera, 3641 Rt 9 No, Howell, NJ 07731