Proposed Federal Asbestos Act Will Create Massive Inequities in Both Workers' Compensation and Medicare

Asbestos Litigation

Statement of Jon L. Gelman Attorney at Law
Before the US Senate Committee on the Judiciary
Hearing on the Fairness in Asbestos Resolution Act of 2005
January 11, 2005

Thank you for permitting me to comment concerning the Fairness in Asbestos Resolution Act of 2005. I am the co-author of a national treatise, Modern Workers Compensation Law (West/Thomson), and the current and past editions of the NJ State treatise, Workers' Compensation Law (West/Thomson). For over 30 years, I have represented asbestos victims primarily in workers’ compensation proceedings throughout the country. My experience has permitted me to become uniquely familiar with subrogation issues involving asbestos litigation claims.

I am very concerned that the proposed legislation will create massive inequities in the current compensation system, will generate havoc and chaos with the presently functioning workers' compensation systems throughout the country, and will ultimately place a greater burden upon the Federal Medicare system. The proposed legislation will encourage forum shopping in workers' compensation actions and circumvention of the traditional compensation payment process to avoid payments that would be potentially subject to subrogation. 

The State workers’ compensation programs were enacted almost 100 years ago as remedial social legislation. They function as an efficient and effective method of providing benefits to injured workers in an expeditious fashion by use of an administrative process as an alternative to civil litigation. If the Fairness in Asbestos Resolution Act of 2005 were enacted with the proposed subrogation provisions, claimants would be encouraged not to file a State workers’ compensation claim and instead merely file a claim solely against the Federal Asbestos Injury Resolution Fund. This would shift the economic burden from the employers and their workers’ compensation insurers in those jurisdictions. Since the cost of workers’ compensation insurance is based on wages in effect at the time of employment, the insurance premiums for employees exposed to a substance such as asbestos with a disease latency of 30 or years, would have been paid by employers to insurance carriers and may never be used to pay claims. Workers’ compensation insurance carriers are, in most cases, not the same carriers who insure third-party defendants. Such activities will result in a degradation of the workers' compensation program by shifting liability to those who were not primarily responsible for providing workers' compensation coverage, including Medicare and Social Security. If State workers' compensation systems no longer pay workers for their lost wages and medical bills, Social Security and Medicare will likely do so, creating an additional economic burden on those programs. Medicare is acutely sensitive to reimbursement issues and is presently aggressively and successfully seeking reimbursement of conditional payments from Workers' Compensation insurance carriers for post-enactment exposures under the Medicare Secondary Payment Act. A recent report revealed that Medicare is already recovering $23 Billion in medical costs that should be paid by the workers' compensation system. 

The proposed subrogation provisions will create geographically imposed financial inequities since all State workers' compensation systems do not mandate liens and offsets of liability awards from workers in a uniform fashion. While some State systems provide that an injured worker is required to reimburse the 3rd party defendant (ultimate wrongdoer) others do not. In some States, there is no lien for sums paid pursuant to a workers' compensation resolution and in other States, a lien exists only for compensation, medical, surgical or hospitalization benefits paid by the workers' compensation carrier. Additionally, the State workers' compensation systems differ on whether reimbursement includes the amount of the costs and expenses incurred in the prosecution of the 3rd party claim.

The State workers' compensation programs differ on what benefits, if any, are subject to subrogation from recovered benefits in workers' compensation dependency actions. In most jurisdictions, benefits awarded in a workers' compensation dependency claim are not subject to reimbursement to the workers' compensation carrier if there is a third-party award or settlement. Furthermore, what constitutes dependency status in a workers' compensation claim differs statutorily in each State jurisdiction. Each State has its own eligibility criteria, period of payment, and amount of payment for dependency benefits.

What constitutes an award due to asbestos exposure in a workers’ compensation action differs from jurisdiction to jurisdiction. Each jurisdiction has different definitions of disease, eligibility criteria and disease factors in imposing workers’ compensation liability. In many jurisdictions workers’ compensation disability is awarded for pulmonary and internal residuals, including malignant conditions, and the awards are not separated as to specific industrial causation since the industrial environment where the worker was exposed contained many toxic substances, and the resulting disease process occurred as a result of the synergistic effect of the exposure to many toxic substances over a long exposure and latency period. In some jurisdictions, traditional factors are taken into consideration, including tobacco exposure, and in others, pre-existing diseases may be discounted in reaching the ultimate compensation resolution. Further disparity exists in the apportionment of responsibility, the statute of limitation issues, and payment rates. 

The priority of payment and reimbursement benefits to workers’ compensation insurance carriers from third-party defendant recoveries differs from jurisdiction to jurisdiction. In some jurisdictions, benefits are paid by workers' compensation insurance carriers, some are paid by self-insured employers, and some are paid by pooled insurance funds. Workers' compensation insurance is usually sold based upon the experience rating of specific industries and based upon the wages in effect at the time of employment and retroactively assessed after the policy period. The priority of reimbursement is not uniform in each jurisdiction where subrogation is now mandated. This inconsistency is partially based upon the fact that the periods of payment vary in each jurisdiction.

The mechanisms for the distribution of benefits in the workers' compensation arena vary by jurisdiction. The proposed law will generate great inconsistency in reimbursement since the State laws vary so greatly on what is in fact subject to a lien. In some instances court-approved judgments and orders approving settlements are utilized, and in others, options are available for the payment of lump sum benefits that are not considered traditional workers' compensation payments. In many of the lump sum resolutions, the payment is not deemed to be a payment of workers' compensation benefits except for insurance purposes only and therefore are not subject to subrogation liens by the ultimate wrongdoer. In some jurisdictions, the subrogation reimbursement can be avoided entirely by the dismissal of the workers' compensation action and the subsequent payment through the release and dismissal of the appeal. Some workers’ compensation statutes provide that a workers’ compensation award paid pursuant to a lump sum payment my not be lienable and not subject to subrogation by a third-party defendant in a civil action since the payment is not considered a payment of workers’ compensation benefits. A similar result will occur when a matter is settled for a lump sum through a release and dismissal of a right to an appeal in the workers’ compensation action. Furthermore, some jurisdictions permit lump sum payments to be paid to injured workers for unauthorized medical treatment, which are also not considered to be payments of workers’ compensation benefits.

The potential adverse consequence of enacting this legislation is enormous. In its present form, by allowing subrogation of workers' compensation claims, the proposed legislation would cause major inconsistencies and inequities in the delivery of State workers’ compensation benefits to asbestos victims. In many instances, it would eliminate the incentive of filing State workers’ compensation claims and it would shift and generate additional economic burdens upon the Federal benefit system by impairing Medicare’s ability to recoup conditional medical payments from responsible workers' compensation insurers and the Social Security Administration’s ability to off-set benefits workers’ compensation awards.
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The author, Jon L. Gelman, practices law in Wayne, NJ. He is the author of NJ Workers’ Compensation Law (Thomson-Reuters) and co-author of the national treatise Modern Workers’ Compensation Law (Thomson-Reuters). For over five decades, the Law Offices of Jon L Gelman  1.973.696.7900  jon@gelmans.com have represented injured workers and their families who have suffered occupational accidents and illnesses.

Recommended Citation: Gelman, Jon L.,  Proposed Federal Asbestos Act Will Create Massive Inequities in Both Workers' Compensation and Medicare,  www.gelmans.com (2005),

https://www.gelmans.com/ReadingRoom/tabid/65/ArtMID/1482/ArticleID/121/preview/true/Default.aspx

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The Fairness in Asbestos Injury Resolution Act: hearing before the Committee on the Judiciary, United States Senate, One Hundred Ninth Congress, first session, January 11, 2005 Author: United States 
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