THE FOLLOWING IN BRACKETS IS THE COMMITTEE/TEAM’S ANSWER TO THE STATEWIDE INSURANCE FUND RESPONSE TO THE TOWNSHIP JOURNAL ARTICLE (www.townshipjournal.com/apps/pbcs.dll/article?AID=/20170803/NEWS01/170809983/Statewide-Insurance-Fund-responds-to-first-responders-group)

[Overview: Upon thorough review of the Statewide Insurance Fund response below, it is clear that the intent of the legislature in 1985 when the First Responder Workmen’s Compensation Law (C.34:15-7.3) was enacted has been totally ignored by the insurance industry, legal community and the judiciary assigned to apply said law. It is apparent that the Statewide writer has never seen the Legislative Intent as below. From other feedback on record, state officials, lawyers and possibly even judges have never seen the documented legislative intent.

Legislative intent is important to our separation of powers in government. By ignoring legislative intent, the executive branch and the judiciary ‘legislate’. They are to use legislative intent to apply laws passed by the legislature and signed by the governor. Not following legislative intent interferes with the function of tripartite government checks and balances eviscerating the legislature.

Legislative Language and Intent: The Legislative Intent/Summary of C.34:15-7.3 reads as follows: “This bill (now law) relieves firefighters, police officers, and rescue, first aid, and ambulance squad volunteers or their beneficiaries, from the burden of proving that their cardiovascular and cerebral vascular injuries or deaths are directly and specifically related to their actions in the line of duty before these injuries or deaths can be deemed compensable under the workmen’s compensation act.” C.34:15-7.3. “There shall be a rebuttable presumption that the injury or death is compensable.”

Although essential to the application of C.34:15-7.3, the Statewide writer uses the word “presumption” only once in the entire response memo. Another inconvenient truth.]

August 2, 2017

Re: Committee for Justice for Bill and Scott

Thank you for giving Statewide Insurance Fund (“Statewide”) the opportunity to respond to the position taken by the Committee for Justice for Bill and Scott (“Committee”) and the families of Bill Martin and

Scott Danielson both of whom tragically lost a family member to a heart attack. While the Statewide Insurance Fund is extremely sympathetic to any family that loses a member, it believes that the Committee and the families are not fully aware of the many facts relating to workers’ compensation claims and therefore improperly blaming “insurance carriers” and others for their frustration with the system. To help you and the public better understand how workers’ compensation claims for emergency service providers who suffer heart attacks are handled, we submit the following.

[The natural and extended families of Bill Martin and Scott Danielson appreciate the sympathies of the unnamed responder for Statewide Insurance Fund, which we have never named in our releases. The Committee/Team is fully aware of the statutory law and the Legislative Intent/Summary associated with C.34:15-7.3. We also have copious evidence, which is growing daily, of the intentional delaying tactics used by the insurance industry to avoid responsibly addressing claims.]

First, Statewide is not an insurance carrier. Insurance Companies are corporations founded to make a profit and have stockholders who want a return of their investments. Statewide, on the other hand, is a joint insurance fund. Joint Insurance Funds were created by the State of New Jersey at a time when insurance companies did not want to provide insurance coverage to municipalities and other public entities at affordable prices. The statutes which created them permitted municipalities, school boards and other public entities to join together to self-insure or to purchase commercial insurance at competitive rates.

[The fact that the writer for Statewide is compelled to articulate a difference between joint insurance funds (JIFs) and insurance companies is a tacit admission that tends to support observations of our Committee/Team that delays, harassment and badgering exists, possibly just not on the part of JIFs. To say that Statewide Insurance Fund is not an insurance company is a matter of semantics. Most of our Team has had experience with governmental joint purchasing agreements. We fully appreciate the effort to fill the gap created by a costly yet ineffective insurance industry. We are taxpayers, as were Bill and Scott. Indeed, their widows have difficulty in paying those taxes, their mortgages and health insurance, among other nominal expenses.] Joint insurance funds do not make a profit; they have no stockholders and no investors. They are created to provide efficient and cost effective insurance to municipal and other local governments. The goal was to make available to local governments insurance coverage at affordable rates thereby serving as a safeguard against runaway tax increases resulting from dramatic increases in rates for property and liability coverage; in fact over three quarters of the public entities in New Jersey are members of joint insurance funds.

[Joint insurance funds (JIFs) DO make a profit and DO have stockholders and investors. The ‘profit’ takes the form of reduced rates for insurance to the members and their constituents who are de facto ‘stockholders and investors’. The JIFs have as much self-preservation interest as any publicly traded corporation, however, most of the JIFs’ is political in nature.]

Unlike private insurance carriers there is no incentive to deny meritorious claims; in fact, since the funds are run by an executive committee comprises of municipal officials, there is a strong incentive to treat claims in a fair and efficient manner. Unlike private insurance companies, joint insurance fund meetings are open to the public as are their minutes. Since there is no profit motive the goal is to fairly handle and quickly resolve claims.

[This does not in fact happen to be the experience of claimants. Is Statewide willing to produce the minutes of all recently determined claims, settled and pending? Do those minutes have to be requested under OPRA? Our Committee/Team would like to see such records for the past five years?]

Accordingly, joint insurance funds have no incentive to delay or harass the employees or volunteers of their members; their goal is to pay claims that are due and not pay claims that are not meritorious. While joint insurance funds are interested in fair payments to meritorious claims, they are also careful to not pay claims that are not due. This is so because joint insurance fund have an obligation to each of their members to only pay meritorious claims and strenuously contest claims that should not be paid. In this regard the fund members believe that the taxpayers of their members deserve no less.

[JIFs have the same incentives as insurance companies to delay and wear down claimants. To posture otherwise is not credible. We are sure that as taxpayers, Bill and Scott appreciated those good intentions to make determinations on facts as to what claims are meritorious and which are not so. Scott likely had a special appreciation, since not only was he a public safety service volunteer and an elected municipal official but also a career public manager who held a CPM.]

Statewide also believes that the Committee and the two families misunderstand how workers’ compensation claims are handled. The Workers’ Compensation Act dictates the benefits available to injured workers. If there is a dispute whether a claim is compensable or the benefits someone is entitled to, claimants have recourse to file a claim petition with the Workers’ Compensation Court which is staffed with highly experience, competent judges who know the workers’ compensation law and are not beholden to one side or the other. In fact, the workers compensation laws are set up for employees and many believe they generally favor employees over employers. Employees who bring claims are represented by experienced workers compensation lawyers who fight aggressively for their clients.

Those who claim they are badgered or are being unreasonably delayed in pursuing their claims have recourse to the independent workers compensation judges for relief. Accordingly, the claims by the Committee and families who believe they are being unfairly treated by the workers’ compensation system made be clouded by the lack of understanding of the opportunities available to claimants through the court system. Joint insurance funds get no benefit out of delay; they want to resolve claims fairly so they can stop paying their lawyers and move on to the next matter. In particular they see no reason to mistreat emergency workers. Like everyone else they respect and appreciate the fine work done by the volunteers and want to see them protected in the way the law envisions.

[FACTS TOTALLY BELIE THIS ENTIRE PARAGRAPH. One only has to interview the widows the Committee/Team has cited and others to understand their viewpoints. The Statewide writer sees the system from, to use current colloquial language, inside the ‘swamp’.]

Statewide also believes that the Committee and the families may not fully understand the law with respect to compensability of heart attacks and the “line of duty death” doctrine. In order for a heart attack to be compensable the claimant must prove that the injury or death was produced by a work effort or strain involving a substantial condition, event or happening in excess of the wear and tear of the claimant’s daily living. A first responder who suffers a heart attack while in the line of duty is entitled to a “presumption” that the heart attack was caused by the emergency services being provided. However this doctrine only applies when the injury or death occurs while the individual is responding, under orders from a competent authority, to a law enforcement, public safety or medical emergency. The doctrine does not apply when the heart attack occurs when the emergency service provider responds on his own.

[In 1985, it was NOT the Legislative Intent of C.34:15-7.3 to have claimants or their beneficiaries “prove that the injury or death was produced by a work effort or strain. . .” It IS presumed to be directly related to the emergency effort. To believe the writer’s posturing, a firefighter who comes upon a fire, enters the scene, rescues victims and subsequently has a heart attack would not be covered. Such is not the federal line-of-duty death (LODD) standard and would be extremely unpopular if not compensable in New Jersey. There are times when the first responder IS the ‘competent authority’ as they have a duty-to-act under federal and state laws.]

This is an important distinction that was recognized by the Legislature when this doctrine was created. Heart attacks, as most people know, occur to older people for many different reasons. They may be caused by smoking, high cholesterol, congenital problems, family history or for other or unknown causes. The Legislature recognized that it was not fair to local taxpayers to pay possibly millions of dollars through the workers’ compensation system to a person who was an emergency services worker but who happens to have a heart attack, unrelated to his service. The decision as to whether a heart attack was caused by the emergency service or some independent cause is not always an easy one and requires evidence from medical records, family histories and the testimony of highly skilled medical experts. The workers’ compensation system is set up to address these issues fairly. However artificial deadlines, like those suggested by the Committee, are not realistic and would not lead to fair results.

Those who suffer work caused heart attacks should receive workers’ compensation benefits; those who heart attacks are not related to their emergency service should not. It should be left to the workers’ compensation judges to decide which are meritorious and which are not.

[There is no such doctrine in C. 34:15-7.3. “The Legislature recognized that it was not fair to local taxpayers to pay possibly millions of dollars through the worker’s compensation system to a person who was an emergency services worker but who happens to have a heart attack, unrelated to his service.” THIS DICTA IS TOTALLY IN OPPOSITION TO THE LEGISLATIVE INTENT AND THE MEANING OF THE WORD ‘PRESUMPTION’. There is no need to go into any other facts than the first responder was performing emergency service and died. On balance, decades of service by volunteers saving millions of taxpayer dollars resulting in a rare LODD far more than offsets the cost of LODD compensation. The JIFs and/or the insurance companies are paid dearly (about $1,500 per volunteer) annually from taxes for workmen’s compensation coverage for first responders.]

While Statewide is sympathetic to the family members of emergency providers who lose a loved one, it believes it is unreasonable deadlines imposed on workers ‘compensation judges would be counterproductive and lead to unjust results either for the worker or the taxpayers who pay for the insurance. Such a deadline would not guarantee a more favorable outcome for the family for a heart attack victim when compensation was due, but might result in the decision that compensation is not due. An artificial deadline might deny the family of a heart attack victim the additional time needed to prove the case or might deprive a municipality and its taxpayers of the time needed to disprove a case. Experienced workers’ compensation judges are in the best position to judge the fairness of a particular case.

[Deadlines as recommended by the Committee/Team are but only a first step. We are looking to codify rebuttability. Our cited cases have strung widows out for as many as five to seven years. Such is unconscionable for the widows of dedicated community volunteers. It appears that some in the insurance industry intend to purposefully place the widows and their families in financial jeopardy. (See Google) The Workmen’s Compensation Act C.34 recognizes “horseplay,” “skylarking,” self-infliction, illegal drug use, voluntary intoxication, etc. Rebuttal needs to be within those parameters if the Legislative Intent is to be realized for first responders.]

Finally, there is no evidence which suggests that first responders who belong to a union are treated differently or receive better treatment under the workers’ compensation laws than those who do not belong to a union. The law does not allow for union laborers to be treated differently than non-union laborers or volunteers. As far as Statewide is concerned, our claims representatives and panel counsel treat all claimants fairly, whether unionized or not.

[Such is not in evidence from information we have from our Committee’s/Team’s professional experience. We are going forward with research in this regard and will be more than pleased to share our findings with the JIFs and the insurance industry.]

Although Statewide disagrees with the criticisms made of the handling of heart attack claims in the workers’ compensation system, it offers some alternate proposals that would address the loss experienced by family members when emergency workers suffer fatal heart attacks. First, the Legislature should require, and pay for, a thorough yearly cardiac exam for fire fighters and EMS workers. This would identify any person who has an underlying and perhaps undiagnosed heart issue. Ensuring health volunteers is something that should be supported by the volunteers, their family and the municipalities for which they volunteer. It does not benefit volunteers’ with heart conditions to allow undiagnosed heart issues to go undetected.

[Although the Committee/Team may agree with annual cardiac exams, such an effort would be seriously circumscribed by HIPPA, union contracts, case law and other statutes/regulations not to mention the cost. Some heart attacks and strokes cannot be predicted by medical examination. We have all heard of sudden cardiac death even in the fittest of us. What will the JIFs and insurance industry do with the 25, 35, or more years-of-service first responders who have given their lives one call at a time over those years? Tell them their services are no longer needed? The writer is but passing the buck.]

Second, the most efficient way to assure families of emergency service workers who suffer fatal heart attacks in the line of duty to have available resources is for the Legislature to create a life insurance program for emergency workers. In times when it is difficult to secure enough volunteer fire and first aid volunteers, this would give an added incentive for new members to join and it would also provide assurance to volunteer’s families that they would not face the challenge of proving the heart attack was caused by their volunteer work. Moreover, it would provide a source of financial help to family members and a sense in the volunteers that should unforeseen fatality occur to them, their family will have financial resources.

[ACCORDING TO C.34:15-7.3, THE VOLUNTEERS’ FAMILIES DO NOT FACE THE CHALLENGE OF PROVING THE HEART ATTACK WAS CAUSED BY THEIR VOLUNTEER WORK!!!!!

ADDENDA: In our continuing information gathering, the Committee/Team has been advised of yet another case of insurance company, not JIF, avoidance tactics. On December 13, 2003, Captain Ron Decker of the Lafayette Township Emergency Medical Squad was on a medical emergency with first responders from his squad, Lafayette FD and Frankford Township First Responders. Without warning, he went into sudden cardiac arrest. He was clinically dead. He had no history.

Captain Decker was defibrillated seven times by both basic and advanced life support teams/paramedics. Thankfully he was revived and sometime later returned to duty with his squad. He continues to serve his community saving Lafayette Township thousands of tax dollars per year.

Captain Decker had to sue the township’s workmen’s compensation insurance carrier to get them to pay over $1M in medical bills. After sending him through the wringer of workmen’s compensation doctors, his case eventually was set for hearing. THE INSUROR NEVER SHOWED UP TO THE HEARING AND CAPTAIN DECKER’S BILLS WERE PAID IN A DEFAULT JUDGEMENT. He praises his attorney.

The Committee for Justice for Bill and Scott]