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J DWC Announces Its Intent To Publish and Adopt New Rules With Minor
Changes
In a letter to the Workplace Injury Litigation Group-NJ, the NJ DWC
declared its intent to adopt new Rules that would change the way cases
are venued, pro se claimants are handled, Motions for Medical
Temporary are addressed, surveilance discovery is concealed, and
subpoenas are utilized.
For these stories and more visit http://www.gelmans.com
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LITERATURE
The Downsizing, then Supersizing of Medicare's Super Lien by Fred
Johnson*
A year ago, a federal fifth circuit ruling cut Medicare's super lien
down to size, arguably providing that the government's subrogation
interest did not attach to numerous settlement proceeds. But later
rulings challenged that reasoning, and the Medicare reform law passed
last month apparently gives the government broader power than before.
Jan. 04 Illinois Bar Journal, page 40)
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OSHA 2004 RECORDKEEPING CHANGES
The revised OSHA Form 300, Log of Work-Related Injuries and Illnesses
is now available on OSHA's website. The forms, which are required for
employers to use in recording injuries and illnesses, have changed in
several important ways for 2004.
http://www.osha.gov/recordkeeping/new-osha300form1-1-04.pdf
Foremost among the changes is the addition of an occupational hearing
loss column to OSHA's Form 300, Log of Work-Related Injuries and
Illnesses. Other changes include:
"days away from work" column now comes before the days "on job
transfer or restriction"
--more clear formulas for calculating incidence rates
--new recording criteria for occupational hearing loss in the
"Overview" section;
--more prominent column heading "Classify the Case" to make it clear
that employers should mark only one selection among the four columns
offered.
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REFORM
New York State Workers' Compensation Reform on This Year's Legislative
Agenda
Workers' compensation is likely to be a major item on the New York
State legislature's agenda later this year. This week both Gov. George
Pataki and the New York State AFL-CIO announced that they plan to push
for workers' compensation reform.
http://www.nycosh.org/Update20_Jan-Mar_2004.html#anchor59183
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LATEX LITIGATION
Iowa WC holds that a latex allergy contracted bya health care worker
was a classic, texbook example of an occupational diase and had to be
compensable as an injury. The triggering term in cases of occupational
disease is "disablement," meaning incapacity from performing the work
or from earning wages in another employment. The claimant's condition
was deemed "chronic" and medical benenfits were properly awarded.
Terri Mitchel v. Burns Philip Food, Inc.
http://www.westlaw.com
2003 WL 22927675 (Iowa Workers' Comp. Comn) [Decided 11.21.2003]
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CASES
A person is disabled, and thereby eligible for Social Security
disability insurance benefits and Supplemental Security Income (SSI),
"only if his physical or mental impairment or impairments are of such
severity that he is not only unable to do his previous work but
cannot, considering his age, education, and work experience, engage in
any other kind of substantial gainful work which exists in the
national economy." 42 U. S. C. 423(d)(2)(A), 1382c(a)(3)(B)
(emphasis added) (hereinafter 423(d)(2)(A)).
Barnhardt v Thomas (certiorari to the united states court of appeals
for the third circuit - No. 02-763. Argued October 14, 2003--Decided
November 12, 2003
http://laws.findlaw.com/us/000/02-763.html
The court reverses the compensation judge's award of temporary and
permanent disability benefits to petitioner a packer and inspector
for respondent for 34 years that was based on the judge's
determination that petitioner's repetitive work caused and
necessitated removal of a cyst called a schwannoma from her left
wrist, and constituted a work-related disability: the court finds
that, in the circumstances of this case, the testimony of the
petitioner's expert was so lacking in scientific foundation that it
provided no predicate for a factual finding of causation: and, without
this testimony. petitioner's claim must fail. [Decided Jan. 7. 2004.]
Doroba v. Keebler Company. App. Div. (per curiam) (5 pp.)
There was substantial. credible evidence in the record to support the
compensation judges conclusion that the proof requirements for
compensable occupational disease had been satisfied, based on the
testimony of petitioner's medical expert and the diagnostic tests that
supported the conclusion that petitioner suffered from atrial
fibrillation and coronary disease that was caused in material degree
by his occupational exposure to the established conditions of his
workplace. [Decided Jan. 7.2004] Vaughn v. Eairmount Chemical Co.,
Inc., Ct al.. App. Div. (per curiam) (16 pp.)
Here. where petitioner commuted to and from work with his supervisor
in the company truck that the supervisor was permitted to -use so that
he could he dispatched directly from home to work at sites other than
company headquarters, the injuries petitioner sustained when the truck
was struck by a tractor-trailer are compensable as -"arising out of
and in ihe course of his employment' -under the ride-sharing provision
in the definition of "employment" in N.J.S.A. 34:15-36. even though
the -employer was not aware of the ride-sharing agreement between
petitioner and his supervisor. [Decided Dec. 31. 2003.] Rn era i:
Dubcll Litinbet Company . App -Div. (per curiam) (6 pp)
***
CALENDAR
ABA WC Section
The Midwinter Meeting of the Workers' Compensation Committee will be
held at L'Auberge Del Mar in Del Mar, California on March 3-5, 2004.
..A panel on Medical Privacy issues, including dealing with HIPAA, is
scheduled for Thursday morning. Ed Welch, the Director of the Workers'
Compensation Center at Michigan State University, will present this
issue.
--When an employer and/or insurance carrier file bankruptcy, who wins,
who loses and who pays the bill. Mary Ann Stiles of Stiles, Taylor &
Grace and other panel members will discuss how bankruptcy affects us
in workers' compensation.
--On Friday morning, we will have a Medicare panel put on by some of
the country's top experts discussing what we can, should and will have
to do to deal with Medicare, including the latest Medicare
legislation, as well as some proposed legislation.
-- How many times has your workers' compensation settlement been
derailed when a health or disability carrier files a lien? Tim
Schumann, the Committee's employer co-chair, will present: "Get Out of
My Lawsuit! Resolving Group Health and Disability Liens."
Program and registration information is available on the Section's
website (www.abanet.org/labor/calendar.html)
If you would prefer to receive the registration packet via fax, please
contact the Section of Labor & Employment Law office at 312/988-5523
or laborempllaw@staff.abanet.org.
NJ Work Environmen
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