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Workers' Compensation News - January 18, 2004 Volume 2 Issue 3

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  • Workers' Compensation News - January 18, 2004 Volume 2 Issue 3

    NJ 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

    ***
    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)

    ***
    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/ne...form1-1-04.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.

    ***
    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-M...ml#anchor59183

    ***
    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]

    ***
    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 [email protected].

    NJ Work Environment Council
    --Friday, February 20: Healthy Schools Forum, Cosponsored by WEC, the
    Education Law Center and others. (Rutgers University, Livingston
    Campus Center, New Brunswick.) For more information, contact the ELC
    at (973)624-1815

    NJ ICLE Cosponsored by WILG-NJ
    Wednesday, April 14: Top Ten Hot Issues in Workers'Compensation - NJ
    ICLE, New Brunswick, NJ
    www.njicle.com

    National WC and Occupational Medicine Conference
    July 20-22, 2004
    Cape Cod, Mass
    www.seak.com
    .................
    The workers' compensation mailing list is an informal means to
    periodically broadcast passive electronic messages to a large group of
    professionals with interest in workers' compensation law. It is
    distributed without charge to stimulate academic interest in various
    topics including case law, statutory law, administrative memorandum,
    proposed regulations and other various issues.

    Subscription changes: http://www.gelmans.com/FrontEnd/Email/join.asp
    ALL past issues of Workers' Compensation News are archived &
    searchable in the reading room under "mail archives"
    http://www.gelmans.com

    Jon L. Gelman, Attorney at Law
    1450 Valley Rd 1st fl, PO Box 934, Wayne NJ 07474-0934
    Voice: (973)696-7900 Fax: (973)696-7988 e-mail: [email protected]
    http://www.gelmans.com
    Author: Workers' Compensation Law (Thomson/West)
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