Workers' Compensation News - November 10, 2005, Volume 3 Issue 313

IT IS ALL ABOUT THE MEDICAL.....
It has been widely reported that medical costs exceed the indemnity portion (temporary and permanent disability benefits) in many jurisdictions. This was again confirmed by the recent report issued by NASI (Workers' Compensation: Benefits, Coverage, and Costs, 2003). The business of workers' compensation has now become a reimbursement vehicle for group health carriers. 

While the third largest group health carrier (GHC), Centers for Medicare and Medicaid Services (CMS) has taken an increased role in the process, everyone else is jumping on the band wagon. As long as medical costs continue to soar out of control at double digit rates the trend will continue. 

Joining the line of those who want their money back is the United States Navy. Emerging from the Veterans' Administration's role in providing medical care, the US Navy is now asserting their own collection recovery procedures. Based on the Medical Recover Act , 42 U.S.C. s 2651-2653, 10 U.S.C. s 1095, and implementing regulations, the Navy is authorized to recover the reasonable value of the medical care provided through the US Government. The US Navy may intervene in any action brought by the injured person or may pursue its claim in an independent lawsuit.

See:
NASI (Workers' Compensation: Benefits, Coverage, and Costs, 2003 ) http://www.nasi.org/publications2763/publications_show.htm?doc_id=286017

Does Workers' Compensation Need a Prescription Change?
http://www.gelmans.com/FrontEnd/ReadingRoom/vwArticle.asp?ArticleId=477&PracticeAreaId=-1


DON'T MESS WITH CALIFORNIA
…and the workers' compensation system
California voters embarrassed Governor Arnold Schwarzenegger in a special election as they considered four measures he promoted as part of a power struggle with legislators and public-employee unions. The special election in California, called by Schwarzenegger, evolved into an unofficial referendum on his performance. The Governor called it "Judgment Day" for the Terminator. His popularity has plummeted after he literally dismantled the State's workers' compensation system.

W.R. GRACE & LIBBY MONTANA ON NIGHTLINE (A very good program!)
For those of you who missed the Nightline series on the W.R. Grace Asbestos tragedy in Libby, Montana and around the country brought to you by W.R. Grace, you can watch the program at the Nightline webpage night one and night two.
Night One: http://abcnews.go.com/Video/playerIndex?id=1280122
Night Two: http://abcnews.go.com/Video/playerIndex?id=1280122

AETNA TO LAUNCH GENERIC RX PROGRAM WITH "ATM-STYLE" MACHINE IN PHYSICIAN OFFICES
Aetna this week plans to launch a pilot program in which the company will place "ATM-style" machines that dispense samples of generic medications in physician offices in Philadelphia, the Wall Street Journal reports. According to the Journal, Aetna to date has tested the machines in eight different regions, but the new program "will be the broadest and the most rigorously analyzed for its effects on prescribing patterns," the Journal reports.
http://www.kaisernetwork.org/daily_reports/rep_index.cfm?DR_ID=33068 
Aetna this week plans to launch a pilot program in which the company will place "ATM-style" machines that dispense samples of generic medications in physician offices in Philadelphia, the Wall Street Journal reports. According to the Journal, Aetna to date has tested the machines in eight different regions, but the new program "will be the broadest and the most rigorously analyzed for its effects on prescribing patterns," the Journal reports.

IBM REJECTS GENETIC TESTING AT WORK
IBM, the world's largest computer maker, has pledged not to use genetic data to screen employees and applicants in what it said was the first such move by a major corporation. IBM CEO Sam Palmisano sent a memo this week to employees announcing the company was revising its policies to prevent the use of genetic information in making personnel decisions. The pledge came as Congress debated a proposed privacy bill that would bar health insurers and employers from discriminating against people with a genetic predisposition to disease. 
USA Today
http://www.usatoday.com/money/industries/technology/2005-10-10-ibm-genetics_x.htm

CORPORATE CORRUPTION OF SCIENCE 
The National Institute for Occupational Safety and Health (NIOSH) budget provides less research and training funding to occupational health and safety with each succeeding year, while at the same time funds for biomedical research and education are increased. Conversely, private commercial funding of university research has expanded dramatically over the past decades. This funding has grown to more than $2 billion, making US universities more dependent on private commercial funding than ever before.
The extent of corporate-funded science is troubling because, as feature contributors Egilman and Rankin-Bohme point out, industry funding is accompanied by a "substantial tradition of manipulation of evidence, data, and analysis, ultimately designed to maintain favorable conditions for industry, at both the material and ideological levels."
The International Journal of Occupational and Environmental Health Special Issue IJOEH Vol. 11, No. 4 October-December, 2005
All articles are available as PDF files at http://www.ijoeh.com 

NEW STUDY ON WORK ENVIRONMENT IN U.S. INCLUDES FIRST EVER NATIONAL INDEX TO RANK EACH STATE ON HOW WORKERS ARE TREATED
Delaware, New Hampshire, Minnesota, Vermont, Iowa Rank Highest; 
Louisiana, Texas, Arkansas, Utah, South Carolina Rank Lowest 
The Work Environment Index (WEI), was released today that rates working environments in all 50 states and Washington, D.C., in terms of average pay, employment opportunities, employee benefits, percentage of low-income workers, fair treatment between genders and ability for employees to unionize. It is the first index to evaluate worker climate as opposed to business climate on a state-by-state basis, and was developed by researchers at Political Economy Research Institute (PERI) at the University of Massachusetts. The WEI is included in PERI's new study, Decent Work in America.
http://www.umass.edu/peri/resources/wei/pressrelease.htm

***
CASES

OFF PREMISES -A 10 YEAR CLAIM
Employees were seriously injured when they were involved in a off-premises vehicular accident. "In a rather terse oral decision, the workers' compensation judge dismissed the claims pursuant to Jumpp v. City of Ventnor, 177 N.J. 470 (2003). We reverse. In doing so, we conclude that at the time of the accident, Nuri and Walter were engaged in job duties. It is not necessary, therefore, for us to address Walter's additional contentions, alternatively, that he is entitled to compensation because he was compelled by his supervisor, i.e., his father, to be where he was at the time of the accident. See Sager v. OA Peterson Constr. Co., 182 N.J. 156 (2004)."
"We pause here to express our concern over the length of time it took for the workers' compensation judge to reach a final decision after filing of the complaints in 1993--almost ten years. There were fourteen days of testimony scattered throughout this period of time. One needs only to read the transcript of June 12, 2003, to see how this affected the workers' compensation judge's ability to recall the prior testimony. That may explain, but certainly not excuse, the judge's three-page factually skimpy oral decision."
Delson v. Growing Years 2005 WL 2509811 (N.J. Super. A.D.) Unpublished Opinion Decisded October 11, 2005
HH Lookhoff & FE Popovitch, appellant
FT Giuliano, respondent

HEART ATTACK DEMMED NON-COMPENSABLE
Appellate Division affirmed the trial level decision dismissing the claim of a teacher who alleged that a heart attack was work induced. Basing its opinion upon the respondent's expert testimony concern the elevated enzyeme test results, the Court dismissed the case
Grzyb v Middlesex County Vocational School A-2845-03T2 2005 WL 2548511 (N.J.Super.A.D.) Unpublished Opinion Decided Sept. 27, 2005
http://lawlibrary.rutgers.edu/courts/appellate/a2845-03.opn.html

DEVIATION FROM EMPLOYMENT
An employee was deemed to have deviated from his employment when he drove 4 extra miles to meet another employee even though he driving a company vehicle. The court reasoned that the deviated was not directed by his employer. 
Tighe v. Jack Trebour Motorcycles, Inc. 2005 WL 2648667 (N.J.Super.A.D.) Unpublished Opinion Decided Oct. 18, 2005
DP. Kendall, appellant
PC Ioannou respondent
http://lawlibrary.rutgers.edu/courts/appellate/a0205-04.opn.html

MEDICAL EXPERT EVIDENCE-NET OPINIONS
Mere "parroting" by a medical expert of the petitioner's psychiatric complaints was not sufficient to meet the standard required to provide more than a "net opinion" by the medical expert to support the claim with objective mecial expert analysis. The submission of a report that lack the medical expert's anaylsis did not support the claim. 
Simmons v. Visiting Nurse Association, Unpublished Opinion, 2005 WL 2757246 (N.J.Super A.D.) Decided October 26, 2005
DP Kendall, FT Guiliano, appellant/cross-respondent
TD Wachell, PT Caufield, respondent/cross-appellant
http://lawlibrary.rutgers.edu/courts/appellate/a4150-03.opn.html

ACCIDENTAL PENSION - PORT AUTHORITY OF NY & NJ
Receipt by an employee of the Port Authority of NY & NJ limts the recovery of NJ Workers' Compensation benefits.
Ward v. Port Authority of NY & NJ, 2005 WL 2621505 (N.J.Super. A.D.) Decided September 28, 2005
TT Cutchell, Klitzman & Gallagher, appellant
DF Burke, H Conkling, respondent
http://lawlibrary.rutgers.edu/courts/appellate/a5471-03.opn.html

EVIDENCE - "SNEEZE" HELD COMPENSABLE
Adequate evidence in the record to support the workers' compensation judge's determination to hold respondent responsible for injuries triggered when petitioner sneezed while recuperating from his earlier work-related back injury.
Cuevas v. S & J Electric, 2005 WL 2665539 (N..J. Super. A.D.) Decided September 19, 2005
http://lawlibrary.rutgers.edu/courts/appellate/a4336-03.opn.html

CALIF: WC BENENFITS HUPHELD FOR UNDOCUMENTED WORKERS
Farmers Brothers Coffee v. WC Appeals Board, Filed November 17, 2005
http://www.caaa.org/FarmerBrothersDecision.pdf

LEGAL MALPRACTICE CLAIM: UNPAID MEDICAL BILLS
While a workers' compensation attorney owes a duty of care to non-clients when the attorney knows, or should know, that the non-attorney client will rely on the attorney's representations and the non-client is not too remote from the attorney to be entitled to protection, the breach must also be a proximate cause of the claimed damages.
University of Massachusetts Memorial Medical Center, Inc., v. AS Goldberger, at al, 2005 WL 2860982 (N.J. App. Div. 2005) Argued October 18, 2005.
RA Vort, appellants
R Ringle, (Doyle & Brady) respondents
http://lawlibrary.rutgers.edu/courts/appellate/a3866-04.opn.html

HORSEPLAY
An act of horseplay that causes injury does not always preculde the employee's right to workers' compensation rememdies.
Kelly v. County of Monmouth, 883 A.2d 411 (App. Div. 2005)

***
PHILIP N. GUMBS, FORMER JUDGE OF COMPENSATION
Philip N. Gumbs, the first black freeholder and judge in Monmouth County and a former Aberdeen mayor, died. He was 82.
Gumbs died at Bayshore Community Hospital, Holmdel, after developing pneumonia. He had also been battling prostate cancer, his daughter, Robina Gumbs-Shaw, said.
Gumbs, a Democrat, joined the county Board of Freeholders in 1974 and was named freeholder director in 1975. He held that post until resigning in April 1976 when then-Gov. Brendan T. Byrne appointed him as a workers' compensation judge. He served as Aberdeen's mayor from 1974 to 1975.
He remained on the bench in Monmouth, Ocean, Middlesex, Essex and Passaic counties before retiring from Ocean County in 2001 as supervising judge of compensation. During his 25 years in the state post he oversaw thousands of workers' compensation cases.
http://www.app.com/apps/pbcs.dll/article?AID=/20051020/NEWS/510200487/1001/NEWS02

RUTH RABSTEIN 92
She was one of the founders of Pellettieri, Rabstein and Altman.
http://www.legacy.com/trenton/LegacySubPage2.asp?Page=LifeStory&PersonId=15592911