Workers’ Compensation News - November 19, 2003 Volume 1 Issue 33

Schwarzenegger convenes special session on workers’ comp
Displaying his priorities as the new governor of California, Arnold Schwarzenegger convened a special session of the state Legislature starting on Tuesday to address the high costs of workers’ compensation insurance.

Employers' Rights Law Firm Sues to Protect California Employers and Indian Sovereignty 
Los Angeles-based law firm Roxborough, Pomerance & Nye, LLP filed a suit against respondents John Garamendi, California's Insurance Commissioner, and Chuck Cake, acting director of the California Department of Industrial Relations, who have been attempting to shut down an Indian tribal staffing enterprise and its clients, threatening prosecution and fines. The suit seeks an injunction to prevent these agencies from interfering with sovereign tribal activities. 

Over 43 million Amerians had NO health insurance coverage in 2002 US Census Bureau Reports

As expected, the Service Employees International Union and the American Federation of State, County and Municipal Employees, the two largest unions in the AFL-CIO, on Wednesday endorsed former Vermont Gov. Howard Dean (D) for president, USA Today reports (Lawrence, USA Today, 11/13). Leaders of SEIU on Nov. 6 indicated that Dean would receive their endorsement, but the union waited to formally announce its decision at the request of Gerald McEntee, president of AFSCME; the delay allowed AFSCME's union board to meet and consider its endorsement. SEIU, which represents nurses, nursing home workers, janitors and public service employees, has 1.6 million members, and AFSCME has 1.4 million members (Kaiser Daily Health Policy Report, 11/7).

NPR's "Talk of the Nation" on Wednesday interviewed presidential candidate Rep. Dennis Kucinich (D-Ohio) on several issues, including his proposal for a government-run, single-payer health program that would eliminate the role of private health insurers (Conan, "Talk of the Nation," NPR, 11/12). Kucinich has proposed a government-run, single-payer health system that would cover all Americans by 2013 and altogether eliminate the role of private health insurers. Under the proposal, which would cost an estimated $2.2 trillion per year when fully implemented, all children would be covered within three years, all seniors would be covered by 2008 and every U.S. resident would be covered within a decade. Kucinich has said that the plan would be funded with a 7.7% tax on public and private employers that would produce $917 billion per year. Kucinich also would repeal $245 billion in tax deductions employers take for providing health insurance for their employees. Further, the proposal calls for using some of the $1 ttrillion in federal, state and local money that currently funds Medicare for the new single-payer health system. Kucinich has said the proposal would reduce government expenditures by purchasing prescription drugs in bulk (Kaiser Daily Health Policy Report, 10/16). In the NPR interview, Kucinich said that providing access to health care is a "moral concern" and that his plan will use the approximately $1.4 trillion spent on health care in the United States for medically necessary procedures rather than advertising, marketing,lobbying and corporate salaries ("Talk of the Nation," NPR, 11/12). The full segment is available online in RealPlayer.

A new Commonwealth Fund-supported analysis published in Health Affairs finds that 85 million Americans had no health insurance at some point during the four years 1996 to 1999--more than double the number uninsured at any one point in time or any one year during that period and nearly double the 43.6 million Americans recently estimated by the Census Bureau to be without coverage in 2002. The article, together with a companion Fund Issue Brief, says this larger figure is due to "churning," the process by which millions of people cycle on and off of coverage. Press Release

The uninsured are more likely to be diagnosed in the late stages of cancer. The uninsured are up to two and a half times more likely to be diagnosed in the late stages of cancer than those with health insurance. The uninsured are also more likely to die from cancer, as in this example of colorectal cancer where the uninsured are 70 percent more likely to die from it than the privately insured.


WILG-NJ Launches New Web Site
The Workplace Injury Litigation Group of New Jersey has launched its new web site
Look for their upcoming nomination form as they compile their 2004 Resturant Guide to NJ Workers' Compensation Courts.


SSA can make disability determination without investigating whether job that claimant can do still exists.
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)). After her job as an elevator operator was eliminated, respondent Thomas applied for disability insurance benefits and SSI. An Administrative Law Judge (ALJ) found that her impairments did not prevent her from performing her past relevant work as an elevator operator, rejecting her argument that she is unable to do that work because it no longer exists in significant numbers in the national economy. The District Court affirmed the ALJ, concluding that whether Thomas's old job exists is irrelevant under the Social Security Administration's (SSA) regulations. In reversing and remanding, the en banc Third Circuit held that §423(d)(2)(A) unambiguously provides that the ability to perform prior work disqualifies from benefits only if it is substantial gainful work which exists in the national economy.
Held: The SSA's determination that it can find a claimant not disabled where she remains physically and mentally able to do her previous work, without investigating whether that work exists in significant numbers in the national economy, is a reasonable interpretation of §423(d)(2)(A) that is entitled to deference under Chevron U.S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837. Section 423(d)(2)(A) establishes two requirements: An impairment must render an individual "unable to do his previous work" and must also preclude him from "engag[ing] in any other kind of substantial gainful work." The clause "which exists in the national economy" clearly qualifies the latter requirement. The issue in this case is whether that clause also qualifies the former requirement. The SSA's regulations, which create a five-step sequential evaluation process to determine disability, answer that question in the negative. At step four, the SSA will find not disabled a claimant who can do his previous work, without inquiring whether that work exists in the national economy. Rather, it reserves inquiry into the national economy for the fifth step, when it considers vocational factors and determines whether the claimant can perform other jobs in the national economy. See 20 CFR §§404.1520(f), 404.1560(c), 416.920(f), 416.960(c). That interpretation is a reasonable construction of §423(d)(2)(A). The Third Circuit's contrary reading ignores the grammatical "rule of the last antecedent," under which a limiting clause or phrase should be read to modify only the noun or phrase that it immediately follows. Construing §423(d)(2)(A) in accord with this rule is quite sensible. Congress could have determined that an analysis of a claimant's capacity to do his previous work would in most cases be an effective and efficient administrative proxy for the claimant's ability to do some work that exists in the national economy. There is good reason to use such a proxy to avoid the more expansive and individualized step-five analysis. The proper Chevron inquiry is not whether an agency construction can give rise to undesirable results in some instances (which both the SSA's and the Third Circuit's constructions can), but whether, in light of the alternatives, the agency construction is reasonable. Here, the SSA's authoritative interpretation satisfies that test. Pp. 3—10.
294 F.3d 568, reversed. Scalia, J., delivered the opinion for a unanimous Court.

Express statement from physician about occupational disease triggers limitations period. 
Employer sought review of ruling by Workers' Compensation Board that occupational disease claimant was not time barred from pursuing his claim, and that his claim was therefore compensable. The Court of Appeals, Edmonds, P.J., held that a claimant is "informed" by physician that claimant is suffering from occupational disease, so as to trigger running of statute of limitations for occupational disease claim, when physician tells claimant expressly or in substance that claimant is suffering from occupational disease.
In the Matter of the COMPENSATION OF Curtis A. MULFORD
2003 WL 22499632 (Or.App.)
Westlaw: ($)

KAUFELER v. STANDARD TANK CLEANING, Appellate Division, A-2086-02T3, November 7, 2003, not approved for publication
Dismissal of the petition for workers’ compensation benefits for lack of prosecution, denial of the motion to vacate the dismissal, and denial of the motion for reconsideration affirmed; the case was listed for hearing 47 times after a pretrial conference in May 1990, the petition was dismissed in May 2000, the motion to vacate was denied in August 2001, and the motion for reconsideration was denied in November 2002; although the petitioner claimed that he had been incarcerated, there was nothing in the motion to vacate or the motion for reconsideration to establish either when he was incarcerated or the efforts that the petitioner took to prosecute his claim during the 12 and one-half years after the pretrial conference, the two and one-half years after the dismissal, and the year after the denial of reconsideration.

KOROMA v. BESAM AUTOMATED ENTRANCE SYSTEMS, INC., Appellate Division, A-6 136-01 T1, November 10, 2003 not approved for publication.
Summary judgment for the defendant manufacturing company based on the workers’ compensation special-employee doctrine affirmed; the plaintiff was employed by a temporary employment agency that assigned him to work at the defendant’s plant, where he worked a 40-hour week for a year and a half; under the test established in Volb v. G.E. Capital Corn., the plaintiff was a special employee of the defendant manufacturing company and was subject to the workers’ compensation exclusive remedy where he consented and voluntarily submitted to the special employee relationship by accepting the assignment and following the direction and control of the defendant.

S-1522 (Codey) The bill concerns workers’ compensation for asbestos-related occupational disease claims and workers' compensation benefit rates for surviving dependents. The NJSBA supports the bill with an amendment to include all occupational diseases with a latent manifestation as defined by present statutes.
Status: On May 5. 2003, S-1522 was introduced and referred to Assembly Appropriations Committee.