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July 11, 2005 9:45 PM
Workers' Compensation News - July 10, 2005, Volume 3 Issue 308

NCCI announced that the decline in claim frequency continued through 2004. Over the last five years there have been significant declines for all types on injuries. However medical costs continues to be the leading driver of costs. The medical share of total workers' compensation costs has now risen to 55% countrywide and in some states is approaching 70%.
The report is available in PDF format.
Streaming video of the analysis is also available.

The Rules of the Division have been updated, effective May 16, 2005. These rules address asbestos exposure claims under N.J.S.A. 34:15-33.3; Certification to the Uninsured Employer's Fund medical information in asbestos exposure cases. 
A complete analysis of these Rules, including sample forms, were presented by Richard V. Jones, Esq. at the NJ ICLE Seminar, Hot Topics in Workers Compensation Law.
See http://www.njicle.com/cgi-bin/njicle?SessionID=27&doc=/Catalog/books/YearWC_M148505.htm

Four Senators (Kennedy, Biden, Feingold and Durbin) released a 42-page Minority Report in opposition to the Senate asbestos compensation bill, S. 852. To download the report. 
"Funding for the Trust should be tailored to increase or decrease as the needs of the Trust Fund demand. In other compensation programs, such as workers’ compensation, payors must increase the amount they contribute when more claims than expected are approved. Under the Trust Fund proposed in S. 852, however, victims are faced with the threat that benefits will be reduced or medical criteria changed if funding for the Trust proves inadequate. Throughout Committee consideration of S. 852, many suggestions for improvements to the proposal were rejected, apparently because of the view that there isn’t enough money. We do not believe that is an adequate answer. Congress has an obligation to protect the rights of the claimants to fair compensation – especially if the bill is going to take away their right to proceed in court." 
http://www.nycosh.org/workplace_hazards/asbestos.html and click on the first item

TRIA is about to expire and uncertainty exists as to its future. Some insurance carriers are consideration pulling out of the NY market altogether.
The federal Government may not want to insulate workers' compensation carriers.

There is substantial variability in how state workers’ compensation laws provide benefits to workers who have a permanent partial disability. The basic approaches used by the states can be classified into four groupings, although important differences exist within each group. Depending on the approach used, workers with similar injuries can receive substantially different amounts of benefits. Because compensating permanent partial disabilities frequently involves contention, the matters in dispute will depend on the approach used to determine benefits. The continuation of such differences in approach suggests that the states have not found a single “best practice” for determining what such benefits should be. 
Compensating Workers for Permanent by Peter S. Barth 

Governor Joseph Manchin III, who in January won consent from the state legislature to sell debt to meet pension and workers' compensation liabilities, needed voters to approve amending the state's constitution before going ahead with his plan. 

Reassessing the Relationship Between Disability Insurance and Workers’ Compensation
Since 1993, up to 85 percent of Social Security benefits have been subject to federal income taxation, while benefits from workers’ compensation have remained tax-exempt. This disparate tax treatment can create horizontal inequities. The policy issues surrounding appropriate levels of wage replacement have not received serious attention since the Disability Amendments of 1980, and it is surely time for them to be reviewed again. 
James B. Lockhart III, Deputy Commissioner of Social Security

US DOL Posts Lists of Comparison Workers' Compensation Benefits

Employers who sponsor and contribute to group health care plan may be liable to reimburse government under Medicare Secondary Payer statute for overpayment of Medicare benefits to employees who are covered by both Medicare and group health care plan.
Telecare Corp. v. Leavitt, 409 F.3d 1345, C.A.Fed. (Cal.),2005.

An administrative regulation governing discovery in workers' compensation cases requires the employer to disclose in the pre-trial memorandum its intent to offer at trial any surveillance videotapes or films of the employee. The employer can avoid its obligation of notification by delaying surveillance without special justification until after the trial has begun and then offering the videotapes just before its last medical expert testifies. Gross v. The Borough of Neptune City NJ App. Div. [June 10, 2005]

Retroactive Application of NJ Dependency Benefits
The issue was whether the January 14, 2004 amendments to N.J.S.A. 34:15-13 applied retroactively to this dependency case or should be applied prospectively to only those dependency claims that accrued on or after the effective date of the statutory amendments. As amended, this statute now provides that, in compensable death cases, benefits are computed based on 70% of wages for one or more dependents (whereas before the amendment, benefits were computed at 70% of wages only where there were five or more dependents surviving the deceased employee). After comparing the wording of proposed bills with the wording of the legislation finally enacted, the judge concluded that the Legislature intended that the amendments to Section 13 be applied retroactively to dependency cases pending on the date of enactment, as well as to dependency claims accruing on or after the date of enactment.

Crediting the testimony of the respondent’s physician over that of the petitioner’s expert, the compensation judge justly concluded that the pain and discomfort in petitioner’s back and leg were not caused by his employment, but were arthritic and congenital in nature; even though the manual labor did involve some repetitive bending and lifting, the compensation judge concluded that the work exertion did not substantially contribute to petitioner’s condition. [May 31, 2005]
Collins v. Poly One Corp., App. Div. NJ

Petitioner was seriously injured in an accident at his work site and sued his employer, Kemram Printing in compensation court. He also filed a civil suit in Superior Court against Allied Web Offset Printing, alleging that his injury was caused by one of their employees. Kemram and Allied were separate entities under common ownership, both operating at the same premises, Kemram being a mailing and commercial printer, and Allied being a newspaper and advertising circular printer. Allied’s insurer, Utica, instituted an action in Superior Court against Allied and petitioner, seeking a declaration that he was an employee of Allied at the time of his injury, and that Utica had no duty to defend Allied in the civil suit. Utica’s motion to consolidate the declaratory judgment action with petitioner’s personal injury suit was granted. Allied then successfully moved to transfer the consolidated Superior Court action to the compensation court. Here, the panel reverses, noting that the present case is both similar to, and different from, the cases of Wunschel and Kristiansen, where petitioner properly filed both a common law action and a petition for compensation. As to him, Kristiansen clearly dictates that the Superior Court action await the outcome of the petition, wherein the employment issue will be decided by the Division. Thus, the Superior Court order should not have been limited to a transfer merely to determine the identity of the petitioner’s employer or co-employees, but need only have stayed the common law action between petitioner and Allied until the compensation court had ruled. That said, Utica is not a party over whom the Division has jurisdiction, and the Superior Court had no authority to compel Utica to litigate in the Division; to that extent, the order of transfer must be reversed. However, Utica has the right to intervene in the Division if it chooses, because its interests may be affected, perhaps adversely, by the employment determination there. If it does, any judgment on that question will be binding based on principles of collateral estoppel and res judicata. If not, the judgment entered in the Division should be entered into evidence in the Superior Court action. [May 31, 2005]
Utica Mutual Ins. Co. v. Allied Web Offset Printing Corp., et al., App. Div. NJ

July 19-21, 2005, Hyannis, Cape Cod, Massachusetts

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