Workers’ Compensation News - March 30, 2003 Volume 1 Issue 4

 ** NJ Unpublished decisions
HUDAK v. SCHULLER INTERNATIONAL, INC., Appellate Division,
A-2661-01T3, March 25, 2003, not approved for publication
Judge of compensation’s order granting a funeral allowance and dependency benefits to the surviving wife of one of the respondent’s employees affirmed; under the limited review allowed by Lindquist, the record supported the judge’s finding that the decedent died of lung disease for
which workplace exposure to asbestos was a substantial contributing factor and also supported the judge’s rejection of the respondent’s thesis that the decedent died of a ruptured aortic aneurysm.

HYLAND v. CITY OF JERSEY CITY,Appellate Division,
A-3018-01T5, March 25, 2003, not approved for publication.
Judge of compensation’s denial of permanent disability benefits because the petitioner failed to satisfy his burden of proving that a permanent disability was related to his employment and because his alleged injuries did not satisfy the requirements of N.J.S.A. 34:15-36 affirmed; the judge’s findings were supported by sufficient
credible evidence in the record; the petitioner’s reliance on the testimony of his own witnesses was “misplaced” because the judge had found that the witnesses for the respondent were more credible.

** Seminar NJ-ICLE & WILG-NJ: HANDLING A WORKERS’ COMPENSATION CASE AFTER LINDQUIST
Saturday, June 14, 2003 - 9:00 AM to 1:00 PM Radisson Suites, Fairfield With the recent Lindquist and Culbert decisions, the New Jersey Supreme Court has completely rewritten the book on how to handle a workers’ compensation case. At this new seminar, a distinguished panel of attorneys who participated in these landmark decisions will be joined by other experts in the field
to provide an in depth analysis of the new Lindquist Doctrine. You’ll gain a thorough understanding of how you must now prepare and try a workers’ compensation case.
http://www.njicle.com/cgi-bin/njicle?SessionID=29&doc=/Seminars/Linquist_6-14-03.htm

** Smallpox Compensation Bill
The Republican bill that will go to the House floor at 2:00 PM Monday under a suspension of the rules. The Democratic Leadership will hold a press conference at 11:00 AM Monday, March 31 at the Cannon Terrace (street level) just outside the door of the Cannon House Office Building. Comparison of Rep. Burr’s Smallpox Compensation Legislation (H.R. 1463) to the Capps/Waxman Substitute

Rep. Burr has introduced H.R. 1463, a smallpox vaccine compensation program modeled on the Administration’s proposed smallpox compensation package. Reps. Capps and Waxman have introduced a substitute, which has a more adequate compensation package based on the recommendations of nurses, firefighters, and other first responders. The Capps/Waxman substitute also has assured funding as well as an authorization of money to states to conduct screening and surveillance. Below is a comparison Rep. Burr’s legislation and the Capps/Waxman substitute.

Capps/Waxman Substitute
• Death benefit of $262,100 and portion of unreimbursed lost wages for
dependent spouse or minor child.
• Permanent and total disability benefit of $262,100 plus portion of lost wages.
• No lifetime cap on wage replacement. Compensation for temporary disability includes unreimbursed medical costs and 66.600 unreimbursed lost wages (75% for people with dependents) with a yearly cap of $75,000,
and no lifetime cap. People who are out of work for longer than five days would be eligible for unreimbursed lost wages starting from the first day of work they missed.
• Funding for the compensation program is mandatory, assuring full availability of funds.
• Compensation is available to anyone covered under the declaration Sec. Thompson made on 1/24/03.
• Establishes an injury table and directs the Secretary to determine within three months of enactment of the legislation if cardiac condition should be included on the table. Conditions can be added to the table as information develops.
• Two year statute of limitations for all compensation claims.
• Allows for judicial review of compensation decisions.
• Authorizes money to states to pay for adequate education and screening of potential vaccinees.

Rep. Burr’s Legislation
• Flat death benefit of $262,100 reduced by any wages replaced before death occurs. No continuing replacement of wages for surviving spouses or dependents.
• Permanent and total disability benefit of $262,100 reduced by any wages replaced before a determination of disability occurs 
• Lifetime cap of payment of lost wages of $262,100. Until the cap is met, the program would pay 66.6% of actual lost wages (75% for those with dependents) subject to a yearly cap of $50,000. No compensation for the first five days of lost wages.
• Payment of any benefit under the fund “shall be subject to the availability of appropriations...”
• Compensation is limited to those people covered by the declaration Sec. Thompson made on 1/24/03 who are vaccinated within 180 days of implementing regulations, or within 120 days of becoming covered by the declaration.
• Calls on the Secretary to establish a table of injury that can be amended.
• One year statute of limitations for people who are vaccinated and become injured, and two year statute of limitations for people who are injured by coming into contact with someone who has recently been vaccinated.
• Does not allow for judicial review of compensation decisions. 
• No grants to states to screen and educate potential vaccinees.

Related Stories
Reuters:
http://story.news.yahoo.com/news?tmpl=story2&cid=571&ncid=751&e=5&u=/nm/20030327/hl_nm/smallpox_compensation_dc

-Second Death Follows Smallpox Vaccination
http://www.nytimes.com/2003/03/28/international/worldspecial/28SMAL.html

-U.S. Soldier Dies Several Days After Smallpox Shot
http://story.news.yahoo.com/news?tmpl=story2&cid=564&ncid=564&e=1&u=/nm/20030328/ts_nm/health_smallpox_dc_13

--CDC: Temporary Deferral Recommended for Heart Patients Volunteering for Smallpox Vaccination
http://www.cdc.gov/od/oc/media/pressrel/r030325.htm

** Around the Country
-MO: General Assembly has passed legislation that would turn the clock back on Missouri's workers' compensation law.
http://www.zwire.com/site/news.cfm?BRD=1116&dept_id=447318&newsid=7502023&PAG=461&rfi=9

-HI: Governor wants to bar claims for mental stress over work criticism, layoffs and other lawful personnel actions.
http://the.honoluluadvertiser.com/article/2003/Mar/28/ln/ln13a.html

-CA: 24 hr medical coverage plan proposed. Merger of all health plans considered.
http://www.insurancejournal.com/news/exclusive/west/2003/03/25/27380.htm

-NY: Workers' Comp Board Resolves 2,062 WTC Death Claims
Lessons Learned Resolving WTC Death Claims Will Help Future Claimants The Workers' Compensation Board has resolved 2,062 death benefit claims filed by families of victims of the World Trade Center attack, Board Chairman Robert R. Snashall announced today. The 2,062 claims represent more than 94 percent of the 2,191 death claims filed. Chairman Snashall said, "Previous reforms enacted by the Governor and the Board, combined with fast action taken immediately following the attacks, has helped Board personnel resolve 94 percent of death claims within 12
months of being filed. By implementing new, non-traditional measures we not only helped ease the suffering of New York families, but learned valuable lessons that will serve claimants in the future." As a result of lessons learned in dealing with WTC claims, the process for
future claimants seeking benefits for loved ones lost in the course of employment will be simplified. A new affidavit form, created specifically for World Trade Center claims, will relieve grieving family members of the
burden of testifying before the Board to establish basic facts http://www.wcb.state.ny.us/content/main/PressRe/wtc_claims.htm

**Fraud
-Employer-Don't Let Them Take Away Overtime Pay
The Bush Administration today proposed changing federal overtime rules and eroding the 40-hour workweek--reducing overtime protections and cutting the pay of hundreds of thousands of America's workers. http://www.unionvoice.org/campaign/overtimepay/bgkwx2278iw

-Medicare Provider: Looking for Medicare Fraud at HealthSouth 
Federal officials are investigating whether HealthSouth used an illegal accounting scheme to cheat Medicare out of millions.
http://www.nytimes.com/2003/03/28/business/28CARE.html?th

**Asbestos Issues
-$47 Million Mesothelioma Award Reached By New York Jury
NEW YORK -- A New York state jury on March 26 delivered a $47.1 million verdict in favor of mesothelioma sufferer Robert Croteau, who alleged asbestos exposure while working as a boilermaker in Consolidated Edison (ConEd) and Long Island Lighting Co. (LILCO) facilities (Robert Croteau v. Consolidated Edison Inc., et al., No. 18793-01, N.Y. Sup., N.Y. Co.). 

-Congoleum Corporation Sees to Resolve Asbestos Liability
http://www.gelmans.com/FrontEnd/ReadingRoom/vwArticle.asp?ArticleId=271

** Quote
"...the Act [Workers' Compensation Act] 'involved a historic trade-off whereby employees relinquished their rights to pursue common-law remedies in exchange for automatic entitlement to certain, but reduced, benefits
whenever they suffered injuries by [compensable] accident.' "Millison v. E.I. DuPont, 101 N.J. 161 (NJ 1985).

Reaffirmed by the Justice Coleman in Lindquist , City of Jersey City Fire
Department, 175 N.J. 244 at 257 (NJ 2003).