Today’s post comes from guest author Charlie Domer from The Domer Law Firm.
Recent article indicates some public health departments are offering incentives to create smoke-free policies in buildings. The idea is to reduce the exposure to second-hand smoke.
While substantial strides have been made in many states to provide both smoke-free public places and smoke-free workplaces, the dangers of secondary smoke inhalation remain. Continue reading
Today’s post comes from guest author Leila A. Early from The Jernigan Law Firm.
Medicare should not pay medical bills that are the primary responsibility of a third party. When they do, they want to be reimbursed, and all parties understand that concept, but the problem is the lengthy delays and lack of due process. The SMART Act, which was signed into law by President Obama on January 10, 2013, amends and reforms the Medicare Secondary Payer Act to improve the reimbursement process. It is located in Title II of H.R. 1845 and entitled “Strengthening Medicare Secondary Payer Rules.”
Section 201 requires CMS to maintain a secure web portal with access to claims and reimbursement information. Payments for care made by CMS must be loaded onto the portal within 15 days of the payment being made. The portal must also provide supplier or provider names, diagnosis codes, dates or service, and conditional payment amounts. Moreover, the portal must accurately identify that a claim or payment is related to a potential settlement, judgment or award. After several steps, the parties may download a final conditional payment amount from the website. If there is a dispute over the conditional payment amount, CMS must respond/resolve the dispute within 11 days or the proposed resolution by the claimant/applicable plan will be deemed accepted. In terms of appeals, CMS must draft regulations that give applicable insurance plans limited appeal rights to challenge final conditional payment amounts. This process will go into effect around April of 2013.
Section 202 states that by November 15th of each year (beginning in 2014), CMS is required to calculate and publish a threshold for liability claims. If an amount owed is under that threshold amount, CMS is barred from seeking repayment. Section 205 states the statute of limitations for conditional payment recovery by CMS is three years after the receipt of notice of a settlement, judgment, award, or other payment made.
The SMART Act applies to workers’ compensation cases, so it is important to understand the law and how it will be applied in the future. Read it and follow its implementation closely.
Today’s post comes from guest author Jay Causey from Causey Law Firm.
Injured workers with claims under the Longshore & Harbor Workers Act and the Defense Base Act, who are awaiting hearings by federal administrative law judges (ALJs), have now had their cases seriously impacted by the Sequester. The Office of Administrative Law Judges (OALJ), with District Offices in seven cities including San Francisco, schedules hearings not only in those cities but in other venues in the District. The San Francisco office schedules hearings in San Diego, Seattle, Portland, Denver and elsewhere, and so-called Calendar Calls are scheduled in those cities by traveling ALJs.
The Sequester has caused the San Francisco office…to cancel all travel by ALJs until at least October, when a new fiscal year for OALJ may refresh its travel budget.
The Sequester has caused the San Francisco office, which covers a larger geographical territory than any other, to cancel all travel by ALJs until at least October, when a new fiscal year for OALJ may refresh its travel budget. No further Calendars in outlying cities will be scheduled until at least October. In the meantime, the parties may agree to bring their witnesses to San Francisco for hearings (or agree to a telephonic hearing – rarely a good alternative), but both sides must to agree to the alternative process. The cost of bringing the claimant and expert witnesses to San Francisco, even if jointly agreed to, makes that a mostly unrealistic option.
The cancellation of travel for ALJs makes the system even more unfair to claimants.
The likelihood is that, in claims where the insurance carrier is denying benefits, many carriers will simply choose to wait out the claimants for the many additional months delay the Sequester budget issue gives them. An terribly-burdensome delay already exists in this system, as ALJ decisions on cases typically take one to two years to issue after the trial. The cancellation of travel for ALJs makes the system even more unfair to claimants. Because of the long delay in getting to a hearing and then to a decision, a large number of cases in which hearings are requested ultimately end up settling in an alternative dispute resolution process called “mediation,” as both sides wish to arrive at settlement without the work and expense of getting ready for trial and then a long wait for a decision. A scheduled hearing is what mostly drives the parties to mediate these cases. But with six months of cancelled Calendars in non-District Office cities, claimants attorneys worry that insurance carriers will feel under far less pressure to bring these cases to the mediation table.
Photo credit: jaymallinphotos / Foter.com / CC BY-NC
Today’s post comes from guest author Barbara Tilker from Pasternack Tilker Ziegler Walsh Stanton & Romano.
Many people think that they will easily get Social Security disability benefits because they got a letter from their doctor that states that they are “totally disabled” and cannot work. This is a great first step for obtaining benefits – but it is only a first step. If your doctor is willing to write you a letter that says you are totally disabled, that shows that he or she will support your claim for benefits. The support of a treating physician is very important to your claim.
Equally important to your claim is how your doctor’s opinion is expressed. A brief statement that you are totally disabled and/or that you cannot work will not be given a lot of consideration by the Social Security Administration (SSA). In order to make sure that your doctor’s opinion is properly considered and given the proper weight, your doctor will need to provide SSA with a “function by function” assessment of your ability to work. SSA wants your doctor to provide them with an opinion that lists specific restrictions, such as how long you can sit, stand, and walk, how much weight you can lift and carry, and any limitation in your ability to get along with co-workers, the public, or to concentrate and follow instructions. Your doctor must also support his opinion with evidence such as examination findings or the results of diagnostic tests (such as MRIs and CT scans). If your doctor’s opinion is not properly expressed, it may not be given the weight it deserves, making it more difficult for you to get the benefits you’re entitled to.
To make sure that our clients get the benefits that they deserve, we contact the treating physicians to gather all of the evidence we need – including opinion evidence in the format required by SSA. If your doctor has told you that you are totally disabled and/or unable to work, please contact us if you need assistance with your claim.
Today’s post comes from guest author Kit Case from Causey Law Firm.
A Press Release by the National Academy of Social Insurance
WASHINGTON, DC – Workers’ compensation benefits declined to $57.5 billion in 2010 according to a report released today by the National Academy of Social Insurance (NASI). The drop in workers’ compensation benefits was largely due to a 2.1 percent drop in medical benefits for injured workers. Employers’ costs for workers’ compensation also fell by 2.7 percent in 2010. As a share of covered wages, employers’ costs in 2010 were the lowest in the last three decades.
“As a share of covered wages, employers’ costs in 2010 were the lowest in the last three decades.”
“Employers’ costs as a percent of payroll declined in 43 jurisdictions,” said John F. Burton, Jr., chair of the study panel that oversees the report. “This decline is probably due to the slow pace of the recovery, with many jurisdictions still experiencing relatively high unemployment rates.”
|
Workers’ Compensation Benefits, Coverage, and Costs, 2010 |
||
|
Total |
2010 |
Change Since 2009 (%) |
|
Covered workers (in thousands) |
124,454 |
-0.3% |
|
Covered wages (in billions) |
$5,820 |
2.6% |
|
Benefits paid (in billions) |
$57.5 |
-0.7% |
|
Medical benefits |
$28.1 |
-2.1% |
|
Cash benefits |
$29.5 |
0.7% |
|
Employer costs (in billions) |
$71.3 |
-2.7% |
|
Per $100 of Covered Wages |
2010 |
Change Since 2009 ($) |
|
Benefits paid |
$0.99 |
-$0.03 |
|
Medical benefits |
$0.48 |
-$0.03 |
|
Cash benefits |
$0.51 |
-$0.01 |
|
Employers’ costs |
$1.23 |
-$0.06 |
|
Source: National Academy of Social Insurance, 2012. |
||
The new report, Workers’ Compensation: Benefits, Coverage and Costs, 2010, is the fifteenth in the series that provides the only comprehensive data on workers’ compensation benefits for the nation, the states, the District of Columbia, and federal programs.
“This report represents the first time the Academy has released employers’ costs by state.”
This report represents the first time the Academy has released employers’ costs by state. For a table showing employers’ costs for all fifty states and the District of Columbia, refer to Table 12 (page 34).
Most states reported a decrease in the number of workers covered but an increase in covered wages between 2009 and 2010. During the same period, the total amount of benefits paid to injured workers declined in 26 jurisdictions and increased in 25. As a share of payroll, benefits paid to injured workers fell by three cents to $0.99 per $100 of payroll in the nation.
The share of medical benefits for workers’ compensation has increased substantially over the last 40 years. During the 1970s medical benefits nationally accounted for 30 percent of total benefits, whereas in 2010 the share of benefits paid for medical care was almost 50 percent. Experts attribute this trend to the rising cost of health care.
Workers’ Compensation hearings tend to be relatively cordial
Today’s post comes from guest author Tom Domer from The Domer Law Firm.
I just completed another semester teaching the worker’s compensation course at Marquette University. Part of my responsibility includes instructing students on the ethical practice of worker’s compensation law. I also recently read an article in the American Bar Association Journal in which a lawyer was chastised by the Judge for inappropriate behavior in a class action lawsuit.
The lawyer held depositions in a Dunkin Donuts, wore a T-shirt and shorts to the deposition, drew penis cartoons during the deposition, and played Angry Birds on his computer throughout. He also disrespected the opposing counsel, indicating in the presence of the opposing party that the counsel was inadequately trained to handle the case.
While worker’s compensation claims can be bitterly fought, worker’s compensation attorneys on both sides, in general, remain highly professional and relatively cordial.
While worker’s compensation claims can be bitterly fought, worker’s compensation attorneys on both sides, in general, remain highly professional and relatively cordial. Part of the explanation is the absence of actual “discovery” in worker’s compensation – no depositions, requests for production of documents, etc. that lead to the kind of results discussed above. Injured workers waive physician-patient privilege and worker’s compensation carriers can obtain any and all relevant medical records to defend the claim. Experts’ reports are required to be exchanged by Statute, and depositions are held only in rare circumstances (when parties are unavailable at a hearing). Although this “trial by surprise” can sometimes produce surprising results depending on the testimony, the absence of substantial pre-hearing discovery also means, in general, the absence of gamesmanship present in some other more contentious areas of the law.
Today’s post comes from guest author Jon Gelman from Jon Gelman, LLC – Attorney at Law.
Rescue and recovery workers at the 9/11 World Trade Center terrorist attack site have been reported to be at greater risk of certain cancers. The study followed a group of workers who have been exposed to toxic dust and fumes following the attack in New York City.
The study published in The Journal of the American Medical Association reported an increased incidence of prostate and thyroid cancers, plus multiple myeloma.
Benefits are available under The Zadroga 9/11 Victims Compensation Fund Benefit Program. The law was enacted by the US Congress and signed into law by President Barack Obama about 3 years ago.
Diesel Fumes Cause Lung Cancer
Today’s post comes from guest author Leonard Jernigan from The Jernigan Law Firm.
Lung cancer is the leading cause of death for men and women in the United States. It’s greater than breast and colon cancer in women and greater than prostate, colon, pancreatic and liver cancer in men. If diagnosed early there is a 70-80% survival rate for 5 years, and a low-dose CT scan of the chest can detect 60-70% of lung cancers at an early stage. Unfortunately, there has been no significant progress in the treatment of lung cancer in 40 years and between 10,000–20,000 occupational lung cancer deaths occur each year in the United States.
One area of concern is the relationship between diesel exhaust exposure and lung cancer. In June of 2012 the International Agency for Research on Cancer (IARC) classified diesel engine exhaust as carcinogenic to humans, and studies of underground miners support that statement and also indicate that others who are around diesel fumes may be at an increased risk. Toxic chemicals in diesel gas are nitrogen oxides, sulfur oxides, carbon monoxide, benzene, PAHS (polycyclic aromatic hydrocarbons), aldehydes and nitro-PAHS.
Railroad workers, miners, truck drivers, bus operators, longshoremen and others who have been heavily exposed to diesel fumes are obviously at greater risk than those with less exposures, but even minimal exposures may cause harm. In urban areas, like lower Manhattan, there is concern that diesel exposures may be a public health hazard and detection systems have been placed in areas to collect exposure data. As for workers who have experienced intense, short-term duration to diesel fumes, a chemical called 1-hydroxypyrene may be elevated in urine, but the test for this marker is not performed by most commercial laboratories. The Mount Sinai – Irving J. Selikoff Center for Occupational & Environmental Medicine is studying diesel exposure and may be a good resource for future information, as well as the National Clean Diesel Campaign: www.epa.gov/diesel.
OSHA is being prevented from fulfilling its mission.
Today’s post comes from guest author Paul J. McAndrew, Jr. from Paul McAndrew Law Firm.
In 1970, Congress passed the Occupational Safety & Health Act (the Act), which created the Occupational Safety & Health Administration (OSHA). Among other things, the Act requires every employer to provide a safe workplace. To help employers reach this goal, OSHA promulgated hundreds of rules in the decade after it was created. OSHA’s rulemaking process has, however, slowed to a trickle since then.
While the National Institute for Occupational Safety & Health recently identified over 600 toxic chemicals to which workers are exposed, in the last 16 years OSHA has added only two toxic chemicals to its list of regulated chemicals. This is because Congress, Presidents and the courts have hamstrung OSHA. For example, in March 2001 the Bush Administration and a Republican Congress effectively abolished OSHA’s ergonomics rule, a rule the agency had worked on for many years.
These delays and inactions have caused more than 100,000 avoidable workplace injuries and illnesses.
These delays and inactions have caused more than 100,000 avoidable workplace injuries and illnesses. Workers are being injured and killed by known hazardous circumstances and OSHA can’t act.
Congress and the President need to break this logjam – we need to free OSHA to do its job of safeguarding workers.
Today’s post comes from guest author Jon Gelman from Jon Gelman, LLC – Attorney at Law.
Outgoing US Secretary of The Department of Transportation (DOT) , Ray LaHood, described the deteriorating safety conditions of the nation’s transportation system. Reverberating are the statistics demonstrating increased dangers to workers who utilize it.
Employees and employers would be wise to start pressing Congress to update the transportation system which is now falling to the level of a third world country. Health, welfare and reduced workers’ compensation claims would result.
LaHood: ‘America is one big pothole’ “America is one big pothole right now,” LaHood said in an interview on “The Diane Rehm Show” on National Public Radio.
“At one time … we were the leader in infrastructure,” LaHood continued. “We built the interstate system. It’s the best road system in the world, and we’re proud of it. But we’re falling way behind other countries, because we have not made the investments.”
… “The next decisions that will be made by this Congress, by this administration will have to be bold if we’re going to continue our efforts to fix up our roads, keep our highways in a state of good repair, to fix up unsafe bridges,” he said. “We need a bold plan, and a bold way to fund it.”