UPS Driver Prevails on Repetitive Trauma Injury

The NJ Court of Appeals, in an unreported decision, has upheld the compensability of a repetitive traumatic condition asserted by a United Parcel Service (UPS) truck driver who for 39 years drove vehicles with poor suspension and hitched trailers together at depots.

The Appellate Court rejected the defense of the statute of limitations asserted by UPS for pre-existing back conditions and its defense expert medical opinion relating the back condition to both pre-existing and unrelated conditions.

In NJ, it is well established that, “….The Court relies heavily upon the evidence presented in reaching decisions regarding back injuries. In reaching its determination to assess appropriate disability, the court must rely upon findings that have been reached based on sufficient credible evidence presented in the entire record.” Gelman, Jon L, NJ Workers’ Compensation Law, 38 NJ Prac. § 8.2.

The continued employment at UPS for 39 years and the daily trauma to his back, negated the defense of the statute of limitations. The Court stated, “Here, there is no question but that the Judge of Compensation properly understood the deadlines for filing a compensation claim and a reopener. The judge did not misunderstand the law. His ruling was premised on the facts he found after evaluating the testimony. The timeliness of Hendrickson's claim turned on whether his continued employment at UPS, “merely cause[d] pain from pre-existing conditions to be manifested” as in Peterson, supra, 267 N.J. Super. at 505, or whether it resulted from “additional 'physical insult,' ... materially attributable to [his] job duties” as in Singletary v. Wawa, 406 N.J. Super. 558, 568 (App. Div. 2009).”

Hendrickson v United Parcel Service, DOCKET NO. A-3267-15T2, N.J. App. Div. 2017, 2017 WL 2953709. Only the Westlaw citation is currently available. Decided July 11, 2017. “This opinion shall not “constitute precedent or be binding upon any court.” Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Superior Court of New Jersey, Appellate Division.”
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Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thomson-Reuters).

For over 4 decades theLaw Offices of Jon L Gelman 1.973.696.7900 jon@gelmans.com has been representing injured workers and their families who have suffered occupational accidents and illnesses.

Employer-Reported Workplace Injuries and Illnesses Continue to Decline

The US Bureau of Labor Statistics (BLS)  has reported that there were approximately 2.9 million nonfatal workplace injuries and illnesses reported by private industry employers in 2015, which occurred at a rate of 3.0 cases per 100 equivalent full-time workers.

The 2015 rate continues a pattern of declines that, apart from 2012, occurred annually for the last 13 years. Private industry employers reported nearly 48,000 fewer nonfatal injury and illness cases in 2015 compared to a year earlier, according to estimates from the Survey of Occupational Injuries and Illnesses (SOII). Because of this decline, combined with an increase in reported hours worked, the total recordable cases (TRC) incidence rate fell 0.2 cases per 100 full-time workers. 

The fall in the TRC rate was driven by a decline in the rate of cases involving days away from work (DAFW) and other recordable cases (ORC)—each falling 0.1 cases—as the rate for cases of job transfer or restriction only (DJTR) has remained at 0.7 cases since 2011.

Beginning with the 2016 reference year, the Survey of Occupational Injuries and Illnesses (SOII) will present a single release of national data on November 9, 2017. This release will include industry counts and rates along with case circumstances and worker characteristics for cases requiring days away from work; in previous years, these data were released separately. State data will be released on November 28, 2017. A similar schedule will be followed in subsequent years.

A question remains whether this decline will continue based upon the reduction of safety and environmental regulations that the Trump administration is proposing. Also of concern is whether the decline in the manufacturing sector in the US will have an impact on the statistics going forward.

Opioid Litigation and Workers' Compensation

The newly initiated litigation by public entities against Big Pharma may prove to be a huge boost to the workers' compensation system. The lawsuits have the potential curtailing a massive drain of benefit dollars and may provide for subrogation as a result of the nations' opioid epidemic.

At a recent NJ State Bar Association meeting in May 2017 Atlantic City, Mark B. Zurulnik, an attorney who specializes in workers' compensation law, referred to the potential of a such a lawsuit.

NPR reported today that, "A wave of litigation by state attorneys general against the biggest opioid manufacturers and distributors feels reminiscent of lawsuits brought by states in the 1990s against the tobacco industry." Click here to read the entire NPR report.

Third party litigation can impact workers' compensation programs in multiple ways. Historically, both the tobacco and asbestos litigation curtailed the use of the hazardous products going forward. Subrogation is yet another situation though. It requires the ability of the parties to establish specific liens. While this was easily done in asbestos occupational exposure litigation, it was much more difficult to seek individual reimbursement or set-off in claims caused by or complicated by tobacco use in the workplace.

Notwithstanding the public entity, opioid litigation is yet another social cause that may, in fact, improve the lives of injured workers and in the long run provide tremendous benefits to both employers and their insurance companies.

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Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thomson-Reuters). 

For over 4 decades theLaw Offices of Jon L Gelman  1.973.696.7900  jon@gelmans.com  has been representing injured workers and their families who have suffered occupational accidents and illnesses.

An Injury to All

Governor Chris Christie (R) has issued an Executive Order closing the NJ Division of Workers' Compensation. Christie, who is the most unpopular Governor in the US, with a 15% approval rating, has decided now, in his remaining few months in office, to get into yet another political squabble with the Democratic legislative majority.

The action of closing the NJ Division of Workers' Compensation office defeats the attempt to improve the system. At a recent NJ State Bar Association meeting in May 2017 the Chief Judge and Director, Hon. Russell Wojtenko, Jr., described that it was his goal to reduce the disposition rate of the pending caseload to at least 24 months. This is a noble goal and one that would benefit all involved in the system, including employers, injured workers, workers' compensation hearing officials, as well as all stakeholders. 

Closing the Division of Workers' Compensation offices does not benefit anyone. Everyone suffers, even those who are working in the administration such as Director Wojtenko, as they struggle during a difficult time to greatly improve the system.

Hurting people and businesses should not be a political tactic (#beachgate). It is enough that the Christie administration closed the George Washington Bridge because of political motivation. Choosing to close the NJ Division of Workers' Compensation because of a political argument only hurts all citizens and business of the State of New Jersey.

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Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thomson-Reuters). 

For over 4 decades theLaw Offices of Jon L Gelman  1.973.696.7900  jon@gelmans.com  has been representing injured workers and their families who have suffered occupational accidents and illnesses.

OSHA proposes to delay compliance date for electronically submitting injury, illness reports

WASHINGTON – The U.S. Department of Labor’s Occupational Safety and Health Administration today proposed a delay in the electronic reporting compliance date of the rule, Improve Tracking of Workplace Injuries and Illnesses, from July 1, 2017, to Dec. 1, 2017. The proposed delay will allow OSHA an opportunity to further review and consider the rule.


The agency published the final rule on May 12, 2016, and has determined that a further delay of the compliance date is appropriate for the purpose of an additional review into questions of law and policy. The delay will also allow OSHA to provide employers the same four-month window for submitting data that the original rule would have provided.

OSHA invites the public to comment on the proposed deadline extension. Comments may be submitted electronically at www.regulations.gov, the Federal e-Rulemaking Portal, or by mail or facsimile. See the Federal Register notice for details. The deadline for submitting comments is July 13, 2017.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to ensure these conditions for America’s working men and women by setting and enforcing standards and providing training, education, and assistance. For more information, visit www.osha.gov.

MESOTHELIOMA MARTINDALE HUBBELL HIGHEST AV RATING

 MESOTHELIOMA MARTINDALE HUBBELL HIGHEST AV RATING 

ELSM has been granted Martindale Hubbell most astounding AV rating for perfection in moral guidelines and legitimate ability. This very respected framework uses both customer and companion audit criticism to rate legal counselors in the ranges of involvement, ability, information, judgment, correspondence and morals.
I am satisfied to advise you that you have been granted the most noteworthy honor in Martindale Hubbell; an AV rating. This is because of a broad, secret survey directed among the legitimate calling in your group.
Your AV rating is critical in light of the fact that it is an affirmation of the status you have accomplished as an exceedingly regarded, moral individual from the Bar. It means that your lawful capacities are of the extremely most noteworthy standard and that your expert morals are unchallenged. You now join a select gathering of lawyers who have been perceived by their companions for their lawful skill and expert notoriety.

Martindale Hubbell has gone to significant lengths to affirm the legitimacy of your rating. To keep up the exactness of evaluations, intermittent reconsiderations are led.

The objective of the rating framework is to help those looking for legitimate guidance to settle on educated choices with a more elevated amount of certainty. When you pick a law office with a Martindale-Hubbell AV rating, as Early, Lucarelli Sweeney and Meisenkothen, you can be guaranteed that you have worked with lawyers that are all around respected by their companions, have an excellent reputation, and that work with a high level of trustworthiness. To put it plainly, you have picked the best.

The accompanying letter from Martindale Hubbell affirms that Early Lucarelli, Sweeney and Meisenkothen has earned an AV rating, the most astounding rating granted just to the individuals who display brilliance and maintain elevated expectations of direct in the legitimate calling

MESOTHELIOMA LAWYER CENTER

MESOTHELIOMA LAWYER CENTER

For a significant long time, mesothelioma, a presence undermining illness that can impact the lungs, midsection, and a couple of other critical organs, has been associated with deferred prologue to asbestos, achieving numerous people searching for a mesothelioma law office to get value and empower them to take care of the psyche boggling costs related with the sickness.

Frequently, mesothelioma losses were introduced to asbestos while working at a job site that used asbestos-containing materials ACMS. When in doubt, the makers of asbestos and ACMS thought about the covered hazards and risks of asbestos, yet fail to exhort general society, as asbestos was a to an extraordinary degree productive mineral. Because of the snag of information, workers who made therapeutic issues from asbestos introduction may be met all requirements for cash related compensation to take care of expenses, for instance, lost wages, specialist's visit costs, energetic persevering, physical distress, and that is recently the start.

If you encounter the evil impacts of mesothelioma, asbestos-related lung development, or bestosis, you may be met all requirements for a great deal of pay. Starting at now, there is over RS2,010 billion in asbestos place stock in stores, set up for the people who have been resolved to have an asbestos-related infection. Round out our edge to get our free Financial Compensation Packet.

What Does a Mesothelioma Law Firm Do

Law offices represent considerable authority in mesothelioma are not the same as some other kind of law office. While different firms may have some expertise in territories like auto collisions or nursing home manhandle, mesothelioma law offices concentrate basically on mesothelioma .It's not prescribed to hold legitimate portrayal from a general provide legal counsel firm or even individual damage firm that represents considerable authority in a wide cluster of damage cases. You'll require a lawyer who particularly practices Attorneys at these law offices have learning and experience with respect to government and state laws concerning asbestos utilize and its history in the workforce. They additionally have sharp investigative abilities and can burrow profound to reveal when and where organizations as well as different substances presented laborers to asbestos. Furthermore, these law offices are contained instructed lawyers who comprehend the lawful procedure including courts, trials, settlements, and bids.

How to Select a Mesothelioma Attorney

How to Select a Mesothelioma Attorney

Best tips to choose a Mesothelioma attorney for you 

Picking the correct mesothelioma lawyer is critical as it is difficult to follow the asbestos introduction and furthermore recognizing the organization in charge of the uncovered asbestos condition. You have to consider a couple key focuses while picking a mesothelioma legal advisor.

1. Essential Know-how: Ensure that the lawyer offers individual administration. The majority of the mesothelioma legal counselors allude customers to other law offices for a decent expense and they will have nothing to do with you later. Discover an attorney that will bail you out with the entire lawful process and the one that has the experience and also the assets which are basic to deal with the case 

2. Mesothelioma Experience: Keep the down to earth contemplations as a main priority that incorporate the legal advisor's zone of ability, the measure of expenses charged by them and time-term of case finish, search for a firm that spotlights fundamentally or only on contesting mesothelioma cases, know the related knowledge and notoriety of the lawyer and how great their interchanges aptitudes are 

3. Responsive: You ought to be quite OK with the designated mesothelioma lawyer as he will be the individual who will help you with the entire lawful process and get you remuneration by winning the case. The lawyer ought to care enough to react to your calls consistently and palatably. It can baffle for the mesothelioma casualties when the legal counselor won't answer your telephone calls. Some are truly responsive while others may react till you have consented to a portrayal arrangement 

4. Comes about Speak: It is a smart thought to look into the historical backdrop of the best mesothelioma legal advisors shortlisted by you. Once in a while the greatest cases are settled while at some point the mesothelioma law offices have a notoriety in choosing just those cases that have the higher possibility of getting settled and the litigants know they are probably going to be outgunned in trial. It is pivotal for your legal advisor to walk you through the subtle elements of your case, clarify the solid and feeble focuses and be absolutely legitimate about the potential outcomes for remuneration pick up and furthermore construct a course of events 

5. Heed your Gut feelings: No matter how great a mesothelioma lawyer would look on paper, on the off chance that you don't feel he is the perfect individual to choose have a go at discovering another person with whom you have a superior understanding and working relationship. Picking the correct legal counselor can help you in getting the correct settlement so this determination procedure is justified regardless of each second of yours.

BEAT MESOTHELIOMA LAWYERS OF 2017

BEAT MESOTHELIOMA LAWYERS OF 2017 KARST and VON OISTE

Karst and Von Oiste are a national law office committed to helping asbestos introduction casualties and their families seek after monetary pay. Having a long history of accomplishing significant decisions and settlements for our customers who are experiencing Mesothelioma and Asbestos-related growth makes them the pioneers in such claims.

Bergman Draper Ladenburg 

Bragging the reality of being a little law office that they can commit their training exclusively to helping families adapting to the deplorability of mesothelioma since over 10 years. Their law lawyers are additionally broadly known for their work in ensuring the premiums of asbestos casualties in various chapter 11 procedures including a portion of the biggest makers of asbestos items,

Employment Status: Common Law Tests May Need an Update

The application of the common-law standard to determine employment status may no longer be relevant in the age of the gig economy. The NJ Appellate Division ruled that the common law test utilized to determine employment status could not be utilized in the interpretation of a medical malpractice insurance policy.

A medical malpractice claim was brought against Clara Maas Medical Center. The trial judge capped the liability of the hospital under the Charitable Act N.J.S.A. 2A:53A 1 to 11 in the amount of $250,000.00. The plaintiff then looked to the hospital's policies for additional coverage against the physician.

In a published decision, the Court rejected the common law tests, of "right to control test" and the "relative nature of the work test," in establishing the definition of "employee" for the physician.

In a concurring opinion by Judge Oster, J.A.D.,  the Judge stated that "This is an insurance case....it is irrelevant whether Dr.Copur satisfied the common law definitions of an employee, either by the right to control test or by the relative nature of the work test." Judge Oster went on to write, "I am wary of applying our traditional common law standards to increasingly complex and novel workplace relationships."

Judge Oster further went on to comment, "We might also consider whether the traditional control and relative nature of work tests should be modernized to account for the shift in the nature of the workplace relationships in our society, which affects far more than the hospital or, broadly, the health care sector."

Gil v Clara Maass Medical Center, et al., __A.3d___ (App. Div. 2017)  2017 WL 2625964, Decided June 19, 2017.

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Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thomson-Reuters). 

For over 4 decades theLaw Offices of Jon L Gelman  1.973.696.7900  jon@gelmans.com  has been representing injured workers and their families who have suffered occupational accidents and illnesses.

Click here for related articles on "employment status"

Governor of Nevada Vetoes Single-Payer Legislation

Nevada Governor Brian Sandoval has vetoed legislation that would have established a single-payer Assembly Bill 374 would have expanded a Medicare-type health care insurance plan. coverage to provide health care coverage to all Nevada residents.

Nevada Governor
Brian Sandoval

State sponsored plans are under consideration as the Republicans are attempting to repeal and replace the Federal Affordable Care Act (ACA). While the US House of Representatives has passed a replacement bill for ACA  the US Senate has not yet acted.

The patchwork of private workers' compensation insurance coverage throughout the United States has been challenged by delays in medical delivery, an onerous litigation process,  difficult CMS Medicare  Secondary Payer issues and soaring costs. Workers' Compensation could be subsumed into a state-based universal health care plan.

A California bill SB 562 has advanced. The proposed legislation would establish a single-payer system in California. It would establish a Medicare-for-all type coverage for all residents of California. Under the concept, a government plan would replace private insurance for payments to all physicians and hospitals.

Safeguarding Injured Workers From Cybersecurity Breaches

Under new Federal proposals, injured workers will be protected from cybersecurity breaches. The impact will be greater responsibilities and costs for law firms and, employers and their insurance companies.

Workers' Compensation stakeholders will be required to maintain better cyber hygiene, have better application update procedures and establish an adequate plan to respond to  breaches. Client and governmental agencies will require more secure networks and procedures for handling data transmission, access, and storage.

Hacking is an increasing concern for workers' compensation stakeholders. Some of the attacks by nation states are difficult to contain. Other attacks, by criminal ventures and amateurs, are less invasive. All the attacks can be hazardous, disruptive and costly. In the future, they will probably advance from the invasion of Personal Protective Information (PPI) to industrial ("Internet of Everything"), and national attacks, ie. WannaCry, and WannaCry (2nd wave).  See also, Envisioning the Hack That Could Take Down New York City  NYMag June 10, 2016  and "A Cyberattack "the World Isn't Ready For," NY Times, June 25, 2017.

The scope of potential exposure to injured workers is enormous. It extends from the hypothetical breach of a cardiovascular  (ie. medical device security) implant portrayed on the television series, Homeland, to real-world breaches of Personal Protected Information (PPI). An example of which is the breach of 32,599 patient records resulting in a $4.124 million class action settlement. Columbia Cas. Co. v. Cottage Health System, 2015 WL 4497730 July 15, 2015 Not Reported in F.Supp.3d. "The Court, therefore, DISMISSES the Complaint WITHOUT PREJUDICE, so that the parties may pursue alternative dispute resolution under the terms of the policy." The cybersecurity policy contained an exclusion for "failure to follow minimum required practices." See also the press releases from the NY State Attorney General.

Insurance carriers are not immune from liability as a result of cybersecurity data breaches. A $115 Million proposed class action settlement as a result of a cybersecurity attack on health insurer Anthem, Inc. has been announced. It is the largest data breach settlement in history,

More specifically, a recent American Bar Association opinion mandates that attorneys must take reasonable cybersecurity measures to protect client data. ABA Formal Opinion 477 (May 11, 2017). 

National regulation initiatives have been given a mandate through Presidential Executive Orders. Presidential Executive Order on Improving Critical Infrastructure Cybersecurity 13636 February 13, 2013 and Presidential Executive Order on Strengthening the Cybersecurity of Federal Networks and Critical Infrastructure  May 11, 2017. An Introduction to Data Security  (NIST) June, 2017. Digital Idenity Guidlines 800-63 Rev 3, (NIST) June, 2017.

The National Institute of Standards and Technology (NIST) has initiated a "Framework for Improving Critical Infrastructure Cybersecurity." This voluntary model is rapidly gaining acceptance throughout industry and government.

A Federal statutory cause of action has evolved under the Defense of Trade Secrets Act. 18 USC §1836, et. seq., as well as the Cybersecurity Act of 2015. See also, Cybersecurity Enhancement Act of 2014  P.L.113-274 .

The recent initiatives in electronic security were highlighted at the recent NJ ICLE 2nd Annual Cyber Security Conference. The Presidential initiatives operationalized by National Institutes of Standards and Technology. The Cybersecurity Framework: Implementation Guidance for Federal Agencies - Draft NISTIR 8170 (NIST) May 12, 2017 Comment period through June 30, 2017 . Cybersecurity Framework Workshop 2017 , Addressing Gaps in Cybersecurity: OCR Releases Crosswalk Between HIPAA Security Rule and NIST Cybersecurity Framework  February 23, 2016.

The NIST Framework is being integrated into the infrastructure by the Executive Branch. Adoption and integration is anticipated by Health and Human Services  (HHS) (HIPAA-Office of Civil Rights), and Securities and Exchange Commission (SEC), Food and Drug Administration (FDA).

"An overriding question remains whether lawyers will be able to effectively protect their client’s confidentiality interests at any cost. Clients are becoming more sophisticated and they now demand that law firms adhere to security standards that will prevent a breach and if a breach occurs that the law firm will take adequate action to provide notice and, mitigate the potential damage."
"The ethical responsibility of lawyers, in most jurisdictions, is to take reasonable care to protect the personal information of clients in accordance with well-defined constitutional, statutory and administrative regulations, ethics opinions and the common law phraseology of the Restatement of Torts." See, Cybersecurity is an imminent and costly threat to lawyers and their clients.

Cybersecurity in workers' compensation remains in its infancy.  Cybersecurity is again placing the Federal government yet again in the lead on privacy and confidentiality as workers' compensation moves along the Path to Federalization. Going forward, increased regulation and stricter controls will safeguard injured workers.

This article is based on my presentation on Cybersecurity  at the NJ ICLE seminar on Hot Topics in Workers' Compensation Law 2016. The 2017 supplement to the treatise Workers' Compensation Law provides extensive and expanded coverage on this topic.

Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (2017 West-Thomson-Reuters). 

For over 4 decades the Law Offices of Jon L Gelman  1.973.696.7900  jon@gelmans.com  has been representing injured workers and their families who have suffered occupational accidents and illnesses.

Updated: 06/29/17 06:30 am

Medical Marijuana Providers Maybe be Federally Prosecuted

Medical marijuana use may be heading to a new challenge for medical providers in workers' compensation case. Even though some States have authorized regulation and approval of dispensing medical marijuana, a Federal law allowing the practice is up for Congressional review.


Recently, workers' compensation courts have entered orders mandating that employers and their insurance carriers provide such pharmaceutical benefits. That practice will be quickly reversed if U.S. Attorney General Jeff Session convinces Congress otherwise in accordance with a letter Sessions recently sent to Congress.

NJ Public Employees On Workers' Compensation Considered On Leave Without Pay

The NJ Court of Appeals has ruled, in an unreported and Per Curium decision,  that public employees who are receiving workers' compensation temporary disability benefits are on leave without pay, and can not accrue sick and vacation days during their absence from work.


The Court reasoned, "....an employee who is out of work and receiving workers' compensation is considered on leave of absence without pay; if so the issue is not arbitrable. Following review of the record and applicable law, we affirm PERC's [Public Employment Relations Commission's] determination holding an employee on leave collecting workers' compensation is on leave without pay. The plain language and purpose of N.J.A.C. 4A:6-1.5(b) and the Civil Service Act support this conclusion."

State of New Jersey v. New Jersey Law Enforcement Supervisors Association, 43 NJPER ¶ 123, 43 New Jersey Pub. Employee Rep. ¶ 123, 2017 WL 2686196 (Decided June 6, 2017) Note this is an unreported decision: "This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3."

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Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thomson-Reuters). 

For over 4 decades theLaw Offices of Jon L Gelman  1.973.696.7900  jon@gelmans.com  has been representing injured workers and their families who have suffered occupational accidents and illnesses.

Updated: June 23, 2017

Chaos for Workers' Compensation Programs--The Elimination of Social Security Numbers?

The Centers for Medicare & Medicaid Services (CMS) is readying a fraud prevention initiative that removes Social Security Numbers (SSN) from Medicare cards to help combat identity theft and safeguard taxpayer dollars. The question remains whether the elimination will cause chaos in state workers' compensation programs since the SSNs have historically been utilized as personal identifiers.


For decades private and public insurance systems have relied upon SSN as a major identifier for benefits delivery and record keeping programs. The change surely is going to increase industry costs for the actual conversion process and create some bumps in the road going forward. Workers and their attorneys may also experience inconvenience in initially obtaining benefits and researching prior records. Furthermore, investigatory resources will suffer the burden additional costs in an attempt to convert information and have it readily available on demand. A critical issue remains for lawyers who handle this data and their ethical responsibility to maintain confidentiality.

CMS has rationalized that the new cards will use a unique, randomly-assigned number called a Medicare Beneficiary Identifier (MBI), to replace the Social Security-based Health Insurance Claim Number (HICN) currently used on the Medicare card. CMS will begin mailing new cards in April 2018 and will meet the congressional deadline for replacing all Medicare cards by April 2019. Today, CMS kicks-off a multi-faceted outreach campaign to help providers get ready for the new MBI.

“We’re taking this step to protect our seniors from fraudulent use of Social Security numbers which can lead to identity theft and illegal use of Medicare benefits,” said CMS Administrator Seema Verma. “We want to be sure that Medicare beneficiaries and healthcare providers know about these changes well in advance and have the information they need to make a seamless transition.”

Providers and beneficiaries will both be able to use secure look up tools that will support quick access to MBIs when they need them. There will also be a 21-month transition period where providers will be able to use either the MBI or the HICN further easing the transition

CMS testified on Tuesday, May 23rd before the U.S. House Committee on Ways & Means Subcommittee on Social Security and U.S. House Committee on Oversight & Government Reform Subcommittee on Information Technology, addressing CMS’s comprehensive plan for the removal of Social Security numbers and transition to MBIs.

Personal identity theft affects a large and growing number of seniors. People age 65 or older are increasingly the victims of this type of crime. Incidents among seniors increased to 2.6 million from 2.1 million between 2012 and 2014, according to the most current statistics from the Department of Justice. Identity theft can take not only an emotional toll on those who experience it, but also a financial one: two-thirds of all identity theft victims reported a direct financial loss. It can also disrupt lives, damage credit ratings and result in inaccuracies in medical records and costly false claims.

Work on this important initiative began many years ago, and was accelerated following passage of the Medicare Access and CHIP Reauthorization Act of 2015 (MACRA). CMS will assign all Medicare beneficiaries a new, unique MBI number which will contain a combination of numbers and uppercase letters. Beneficiaries will be instructed to safely and securely destroy their current Medicare cards and keep the new MBI confidential. Issuance of the new MBI will not change the benefits a Medicare beneficiary receives.

CMS is committed to a successful transition to the MBI for people with Medicare and for the health care provider community. CMS has a website dedicated to the Social Security Removal Initiative (SSNRI) where providers can find the latest information and sign-up for newsletters. CMS is also planning regular calls as a way to share updates and answer provider questions before and after new cards are mailed beginning in April 2018.

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Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thomson-Reuters). 

For over 4 decades theLaw Offices of Jon L Gelman  1.973.696.7900  jon@gelmans.com  has been representing injured workers and their families who have suffered occupational accidents and illnesses.

Follow us on twitter: https://twitter.com/jongelman 

Related Articles of Interest:

Social Security Numbers and Workers' Comp Forms - The Ugly

Cybersecurity is an imminent and costly threat to lawyers and their clients

Updated: 6-5-17 10:53am

Portability, The Gig Economy And Workers Compensation

Today's post is by guest author, Jon Rehm, Esq., of the Nebraska Bar.


Changing employment laws to encourage so-called “portable benefits” is an idea that goes hand in hand with finding new ways to classify gig economy workers. These proposals are being pushed in a growing number of states. These proposals also enjoy support from Democrats and Republicans in Congress. These proposals could also radically alter workers’ compensation in the United States.

The idea of a third classification of worker between employee and independent contractor is to give so-called “gig economy” workers some protections and benefits without employers having to bear the full costs of employment – including unemployment, workers’ compensation, and health insurance. Sometimes this third class of workers is described as “dependent contractors.

Portable benefits are usually discussed in the context of contractors because traditionally benefits such as unemployment, workers’ compensation, and health insurance have been provided by employers. So-called portable benefits are detached from employers. The Affordable Care Act increased portability of health insurance benefits through the use of exchanges Portability of health insurance was touted as a way to help create new businesses because potential entrepreneurs were not tied to an employer for health insurance.

The idea of portable benefits and a new classification for gig employers is also touted as a way to reduce litigation against companies such as Uber for how they classify employees. But former National Labor Relations Board member Craig Becker pointed out that creating a new class of workers may actually create more litigation when employers try to re-classify employee as dependent contractors. Becker and others pointed out that this is what happened in Italy when Italy created a third class of worker that was neither employee nor an independent contractor.

Becker and others point out that the drive to create a new class of workers is being driven by tech companies such as Uber as a way of reducing labor costs. The real risks of creating a new classification of workers are shared even by some who promote the sharing or gig economy. Gene Zaino, founder, and CEO of MBO Partners, a firm that provides services to independent workers, stated that any new classification of independent workers should only include workers who earn more than $50 per hour. Under such a scheme lower-paid workers would still retain the benefits and protections of the employment relationship.

Though states are pondering portability and dependent contractor laws, there is a push for federal legislation so that laws can remain uniform across the country. Any federal push for portable benefits for so-called independent workers would clash with state-based workers’ compensation laws. Workers’ compensation is traditionally a state law concern because when workers’ compensation laws were enacted the power of the federal government to implement laws regarding workplace safety were limited. During the New Deal-era, that interpretation of the interstate commerce clause changed to allow broad regulation of the workplace.

Advocates for state-based workers’ compensation laws likely have little constitutional grounds to overturn any federal legislation that would substitute “portable benefits” for so-called “independent workers” for state-based workers’ compensation benefits. Some critics who argue, correctly, that many state-based laws inadequately compensate injured workers could also be open to or even welcome a federal substitute for insufficient state workers’ compensation laws.

Opioid Abuse and the NJ Workers' Compensation Act

The implementation of the recently enacted NJ law concerning substance abuse disorders was the subject of an insightful panel discussion today at the annual meeting of the NJ Workers' Compensation Section.

(Left to right) Jag Desai, MD, Nancy J. Johnson, Esq., Jon L. Gelman, Esq,
Christopher P. Gargano, Esq., Mark B. Zirulnik, Esq., Hon Joanne Downey, Member of the NJ General Assembly
Photo Credit: Margaret Sherlock

The reviewed the implications of the newly enacted NJ law, A3, PL2017, c28, that was enacted on February 15, 2017, and become effective 90 days later. That Act requires health insurance coverage for the treatment of substance abuse disorders. It places certain restrictions on the prescription of opioid and certain other drugs. The law mandates abuse educational programs.

It became obvious during the roundtable program that opioid abuse over the last two or three decades has become an epidemic in nature and the impact to injured workers, employers, and the workers' compensation system has increased enormously.

While the Workers' Compensation Act was not embraced expressly in the text of the legislation, Assemblywoman Downey spoke of her continuing concern and commitment to review the issue further. Ms. Downey told the audience that she would continue to address substance abuse in the workplace going forward and more specifically treatment issues and integration into the NJ workers' compensation system.

Reference Material

The Ethics of Pain Management

The Workers’ Compensation Bench/Bar Conference

May 19, 2017

Round Table Discussion Bibliography

Statutes

P.L.2017, c.28 (Passed) 2017-02-15 S3 Requires health insurance coverage for treatment of substance use disorders; places certain restrictions on the prescription of opioid and certain other drugs; concerns continuing education related thereto.

New Jersey State Sources

Summary: http://www.njleg.state.nj.us/bills/BillView.asp?BillNumber=S3

Text: http://www.njleg.state.nj.us/2016/Bills/S0500/3_I1.HTM
Text:http://www.njleg.state.nj.us/2016/Bills/S0500/3_R1.HTM

Text: http://www.njleg.state.nj.us/2016/Bills/AL17/28_.HTM

Roll Call: http://www.njleg.state.nj.us/bills/BillView.asp

Articles

Rousmaniere, Peter, “We’re beating back Opioids-Now What?, WorkCompCentral (2015) https://www.workcompcentral.com/special-report/special-report/id/2

Paduda, Joseph, “Prescription Drug Management in Workers Compensation,” Workers Compensation Issue 2016 Issues Report, CompPharma (2016)

https://www.ncci.com/Articles/Documents/II_IR2016-Paduda.pdf

Opioid Addiction, 2016 Facts and Figures, American Society of Addiction Medicine

http://www.asam.org/docs/default-source/advocacy/opioid-addiction-disease-facts-figures.pdf

The Opioid Epidemic” By the Numbers, US CDC, June 2016

https://www.hhs.gov/sites/default/files/Factsheet-opioids-061516.pdf

Lembke, Anna MD, “Why Doctors Prescribe Opioids to Known Opioid Abusers,” N Engl J Med 2012; 367:1580-1581, October 15, 2012 | DOI 10.1056/NEJMp1208498

http://www.nejm.org/

Alghnam S, Castillo R, “Traumatic injuries and persistent opioid use in the USA: findings from a nationally representative survey,” Injury Prevention 2017;23:87-92.

http://injuryprevention.bmj.com/content/23/2/87

Stahl, Arthur, IAIABC Policy Guide on Reducing Opioid Abuse Offers Blueprint for Effective Reform, (September 8, 2013) https://www.lexisnexis.com/legalnewsroom/idoctor-health/b/recent-cases-news-trends-developments/archive/2013/09/08/iaiabc-policy-guide-on-reducing-opioid-abuse-offers-blueprint-for-effective-reform.aspx?Redirected=true

Blogs

Domer, Thomas, “Opioid Abuse in Workers’ Compensation,” Wisconsin Workers Compensation Experts Blog, June 17, 2016

https://wisworkcompexperts.com/2013/06/17/opioid-use-in-idoctor-health/

Geaney, John, “What impact will New Jersey’s opioid prescription bill have on workers’ comp?,” NJ Workers’ Compensation Blog, March 9, 2017

http://www.nwcdn.com/state-news/what-impact-will-new-jersey-s-new-opioid-prescription-bill-have-on-workers-comp-nwcdn-new-jersey-mem?A=WebApp&CCID=25405&Page=172&Items=1

Gelman, Jon L., “Doctors, Patients and Opioid Abuse,” Workers’ Compensation Blog, October 24, 2012

http://workerscompensation.blogspot.com/search?q=doctors%2C+patients+and+opioid+abuse

Treatise

Gelman, Jon L., “Medical—Medical and surgical treatment,” 38 N.J. Prac., Workers’ Compensation Law § 12.5 (3 ed.), 2017, Thomson Reuters www.westlaw.com