Workers' Compensation News - Aug. 10, 2007, Vol. 5 Issue 108

Workers' Compensation News - Aug. 10, 2007, Vol. 5 Issue 108

INSURANCE INDUSTRY AGAIN OFFERS MSP LEGISLATION THAT WOULD DISCOURAGE WORKERS' COMPENSATION PERIODIC PAYMENTS
After a failed attempt in the last Congress, the Insurance Industry has again offered similar legislation to encourage "lump sum" settlements in Workers' Compensation hearings, H.R.2549, and circumvent reimbursement of the ailing Medicare program. This legislation failed to gain acceptance in the last Congress as it did not receive the support of interest groups involved in preserving the Medicare system and Labor who continues to support a periodic benefit system in Workers' Compensation. The proposal would encourage the dismantling of the current Workers' Compensation system in favor of lump sum benefits. Leading commentators also oppose such legislation.
"In some jurisdictions, the excessive and indiscriminate use of the lump-summing device has reached a point at which it threatens to undermine the real purposes of the compensation system. Since compensation is a segment of a total income insurance system, it ordinarily does its share of the job only if it can be depended on to supply periodic income benefits replacing a portion of lost earnings. If a partially or totally disabled worker gives up these reliable periodic payments in exchange for a large sum of cash immediately in hand, experience has shown that in many cases the lump sum is soon dissipated and the worker is right back where he or she would have been if workers' compensation had never existed."
[8 Larson's Workers' Compensation Law, § 132.07]1[ at 132-17 (2006).]
See: http://thomas.loc.gov/cgi-bin/bdquery/z?d110:h.r.02549:

NEW WCMSA SUBMISSION ADDRESS EFFECTIVE AUGUST 27, 2007
CMS
c/o Coordination of Benefits Contractor
P.O. Box 33849
Detroit, MI 48232
http://www.cms.hhs.gov/WorkersCompAgencyServices/01_overview.asp#TopOfPage

BANNING ASBESTOS IN AMERICA
Ban Asbestos in America Act 2007
WASHINGTON, DC. July 31, 2007 --- The Asbestos Disease Awareness Organization (ADAO), an organization dedicated to serving as the voice of asbestos victims, today praised the passage of Senator Patty Murray (D-WA)'s Ban Asbestos in America Act of 2007 by the U.S. Senate Committee on Environment and Public Works. The bill was unanimously voted out of Committee and will now move to the Senate floor. The Ban Asbestos in America Act is an effort to ban all production and use of asbestos in America, launch public education campaigns to raise awareness about its dangers and expand research and treatment of diseases caused by asbestos. Murray's legislation, which was first introduced in the 107th Congress, will also authorize additional studies to determine which commercial products today still contain asbestos, increase funding for asbestos-related diseases, and call for a national mesothelioma registry to help public health professionals track this deadly asbestos-related disease. Studies estimate that during the next decade, 100,000 victims in the United States will die of an asbestos related disease - equaling 30 deaths per day.
http://www.asbestosdiseaseawareness.org/cure/July07/EPW.html
http://seattlepi.nwsource.com/local/325817_asbestos01.html

CHUBB TO REFUND $13M TO FLORIDA CUSTOMERS
Chubb to refund $13M to Florida customers
The Florida Office of Insurance Regulation has ordered Chubb Group of Insurance Companies to refund more than $13 million to its customers within the next two months.
South Florida Business Journal
http://southflorida.bizjournals.com/southflorida/stories/2007/07/16/daily31.html?t=printable

AIG SUED FOR $100M IN DAMAGES
St. Paul: Minnesota workers compensation insurance associations have sued insurer American International Group Inc. to collect about $100 million in damages for allegedly fraudulent business practices, the groups said Thursday.

DEADLINE EXTENDED FOR NY 9-11 CLAIMS - AUGUST 14, 2008
Deadline Extended for World Trade Center Responders and Volunteers to Register for Workers' Compensation Benefits
Workers' Compensation Board Chair Donna Ferrara applauded the New York State Legislature and Governor Eliot Spitzer for giving World Trade Center responders until August 2008 to file the paperwork needed to claim workers' compensation benefits if they become ill in the future.
"Those who responded to the 9/11 disaster as workers or volunteers have another year to let us know they were on site," Ferrara said. "We want to make sure they preserve their eligibility should they become ill in the future. I congratulate the Legislature and Governor Spitzer for their swift action in passing and signing into law this very important legislation."
The law (S.4067/A.4940), which went into effect July 3, 2007, allows people who worked or volunteered at the World Trade Center to register with the Workers' Compensation Board and reserve the right to claim benefits if they become ill at a later date. It amends workers' compensation law §162 by giving those who participated in the rescue, recovery and clean-up until Aug. 14, 2008, to file a WTC-12 form.
While it is unclear how many people participated in the rescue, recovery and clean-up of the World Trade Center, more than 19,000 people have filed a WTC-12 form, registering as responders and volunteers.
For more information, or to download a copy of the form, visit http://www.wcb.state.ny.us

CALIFORNIA - COURT UPHOLDS "REFORM" DISABILITY RATING SCHEDULE
A California appeals court Tuesday sided with an employer and Zurich North America Insurance Co. by upholding the use of a post-reform workers compensation permanent disability rating schedule.
Energetic Painting and Drywall, Inc. v. Workers' Compensation Appeals Board, C055273 Filed 7/24/07
http://www.businessinsurance.com/cgi-bin/news.pl?newsId=10717
Decision
http://www.courtinfo.ca.gov/opinions/documents/C055273.PDF

CALIFORNIA - REFORM RATING SCHEDULE TO BE RETROACTIVE
"Labor Code section 4660, as amended in 2004, requires the use of a permanent disability rating schedule effective January 1, 2005, to apply to injuries sustained before the schedule was adopted when none of the three exceptions set forth in subdivision (d) of section 4660 apply."
Chang v. Workers' Compensation Appeal Board
http://www.courtinfo.ca.gov/opinions/documents/C053854.PDF

NJ 2008 MAX PERM RATE $742.00
http://www.state.nj.us/labor/wc/notices.htm#072007

NJ ADDRESSES STATEWIDE BACKLOG OF TOTAL DISABILITY CASES
The State of NJ has advised that total disability cases are now backlogged and has implemented new Rules and forms to address the issue. Faced with Medicare issues, NJ, one of the few remaining "reverse-offset States" and one that still has a Second Injury Fund, is establishing new procedures and forms to deal with the administration of thsese cases.
http://www.state.nj.us/labor/wc/forms/072607_SIF.pdf

SCIENTIFIC EVIDENCE
A Daubert Motion: A Legal Strategy to Exclude Essential Scientific Evidence in Toxic Tort Litigation In the US Supreme Court’s Daubert v Merrell Dow Pharmaceuticals, Inc decision, federal judges were directed to examine the scientific method underlying expert evidence and admit that which is scientifically reliable and relevant. However, if a judge does not have adequate training or experience in dealing with scientific uncertainty, understand the full value or limit of currently used methodologies, or recognize hidden assumptions, misrepresentations of scientific data, or the strengths of scientific inferences, he or she may reach an incorrect decision on the reliability and relevance of evidence linking environmental factors to human disease. This could lead to the unfair exclusion of valid scientific evidence, particularly that which is essential to a plaintiff’s case in toxic tort litigation.
Melnick RL. A Daubert Motion: A Legal Strategy to Exclude Essential Scientific Evidence in Toxic Tort Litigation. Am J Public Health, Supplement (July 2005).
http://www.defendingscience.org/upload/CecilTENYEARS.pdf

EMPLOYER COMMON LAW LIABILITY - NJ CHANGES THE RULES
Insurance companies are less liable for certain types of workers' compensation claims after a policy change approved by the state Department of Banking and Insurance.
The Record http://www.northjersey.com/page.php?qstr=eXJpcnk3ZjczN2Y3dnFlZUVFeXk3NDImZmdiZWw3Zjd2cWVlRUV5eTcxNzM0NzAmeXJpcnk3ZjcxN2Y3dnFlZUVFeXkyMg==

NJ CRIB (The Regulatory Change) Manual Amendment Bulletin #436
http://www.njcrib.com/circulars/NJMA436.pdf

SSA EXPERIENCING HUGE DELAYS IN DISABILITY HEARINGS
The Social Security Administration faces a record — and rapidly growing — backlog of appeals by people who claim they are too disabled to work. Through June, it had just over 745,000 cases pending, and the wait for a hearing averaged 17 months, also a record.
USA Today: http://www.usatoday.com/news/washington/2007-07-29-disabled_N.htm?csp=34

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CASES:
OH: ILLEGAL SALE OF DRUGS WARRANTS TERMINATION OF BENEFITS
Evidence that a claimant sold drugs on a weekly basis over a period of years, for $300 to $400 per week, supported a finding that the claimant was engaged in sustained remunerative employment, thus warranting termination of his permanent total disability (PTD) compensation. Termination was proper, because PTD compensation is inappropriate where there is evidence that an injured worker is actually engaged in sustained remunerative employment, whether the employment involves lawful or unlawful activities.
State ex rel. Lynch v. Indus. Comm.2007 WL 184823 (Ohio App. 10 Dist.), 2007-Ohio-292

SPORTS - PROFESSIONAL PLAYER FUMBLES
Ex-NFL Player's Workers' Comp Bid Fumbles in Case of First Impression
Chad Hennings, a former defensive lineman for the Dallas Cowboys, has three Super Bowl rings from his nine-year football career -- a career that ended in 2000 after a spine injury sidelined him. Before becoming a Cowboy in 1992, he was a star football player at the U.S. Air Force Academy and an Air Force veteran who flew 45 missions in an A-10 Thunderbolt fighter jet over Iraq. Hennings -- now a successful motivational speaker -- was inducted into the College Football Hall of Fame last week.But according to the 10th Court of Appeals in Waco, Texas, he is not a successful workers' compensation claimant.
http://www.law.com/jsp/article.jsp?id=1185181601604

NJ: DIVISION OF WORKERS' COMPENSATION DIRECTED TO ACT ON "BAD FAITH" CLAIMS AGAINST INSURANCE COMPANY ADMINISTRATOR
The Appellate Divison directed the NJ DWC to use its "panoply of enforcement mechanisms for judges of compensation" to take action against insurance companies or their agents that act in bad faith. An action in tort was not permitted as the claimant did not exhaust his administrative remedies even though the injured worker claimed that they were "woefully insufficient" because of the costs of medical care and the transactional costs of litigating such disputes before the Division of Workers' Compensation. A common-law action was not permitted
Flick v. PMA Insurance Company, et al., 2007WL2033817, Decided July 17, 2007
http://lawlibrary.rutgers.edu/courts/wordperfect/appellate/A0202-06.DOC

TINNITUS ALONE RECOGNIZED AS A COMPOUNDABLE CONDITION
NJ following the lead of 19 other States as held tinnitus as a compoundable and separate disease. The court relying upon extensive medical and legal research (some of it Internet accessible) set forth a 3 part test to be utilized.
Schorpp-Replogle v New Jersey Manufacturers Insurance Company, __A.2d___, 2007 WL 2162164 (NJ App. Div. 2007)
FT Guiliano for NJM-Appellant
R Thomas for Schoroo-Repolgle, Petitioner-Respondent
http://lawlibrary.rutgers.edu/courts/wordperfect/appellate/A0915-05.DOC

SUICIDE HELD NON-COMPENSABLE
"...workers' compensation claim alleging that her husband's suicide was brought on by severe depression that was not properly diagnosed by three co-employees who were associated with an Employee Assistance Program (EAP) established by Karak's employer, respondent E.I. DuPont (DuPont)."
Karak v E.I.DuPont, Not Reported in A.2d, 2007 WL 2188522 (N.J.Super.A.D.)

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CALENDAR:

Nov. 7-10, 2007 ABA Labor & Employment Law, Philadelphia, PA http://www.aba.com
Jan. 24-27, CAAA Mid Year Mtg, Rancho Mirage, CA http://www.caaa.org
Oct. 4-7, 2007 Western Occupational Health Conference (WOHC) http://www.woema.org/WOHC2007/WOHC07.pdf
Oct. 24-25-2007 WCRI's 24th Annual Issues & Research Conference, Boston MA http://www.wcri.com
March. 4-7, 2008 ABA Employment & Law & Coillege of WC Lawyers, Loews Ventana Canyon Resort, Tucson, AZ
Jun2 24-27, 2008 CAAA Summer Convention, Monterrey, CA http://www.caaa.org
July 12-16, 2008 ATLA Annual Meeting, WC CLE, Philadelphia PA http://www.aba.com
Aug. 7-12, 2008 ABA Meeting, NY, NY http://www.aba.com
Oct. 11-13, 2008 WILG CLE, Las Vegas, NE http://www.wilg.org

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QUOTE-SCIENCE AND THE LAW
"The scientific outlook is radically different from the legal. The man of science relies on his own knowledge and observation and judgment, and disregards testimony. . . . A court of law just decide according to the evidence which is before it; and that evidence is of the nature of sworn testimony. If a witness is prepared to swear that black is white and no evidence to the contrary is offered, the evidence before the Court is that black is white, and the Court must decide accordingly."
The Eye of Osiris (1911)