Kirsch, Gelband, & Stone, PC

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Newark, New Jersey, United States
THE PASSION TO SERVE; THE EXPERIENCE TO WIN! Certified by the New Jersey Supreme Court as a Workers Compensation Attorney, with 22 years experience; specializing in protecting YOUR basic human right to FREE and URGENT health care in the Workers Compensation Court. Our Firm is one of the Pre Eminent Personal Injury Law Firms in N.J., providing representation to the seriously injured, from product liability to auto accidents to medical malpractice. Call anytime for a free appointment 201 519-6785 (24 hours)KIRSCH, GELBAND & STONE 17 Academy Street, Newark N.J NOTE: THIS PROFILE MAY CONSTITUTE ATTORNEY ADVERTISING. PRIOR RESULTS DO NOT GUARANTEE A SIMILAR OUTCOME. ANY CORRESPONDENCE WITH THIS PROFILE HOLDER DOES NOT CONSTITUTE A CLIENT/ATTORNEY RELATIONSHIP. NEITHER THE CONTENT ON THIS PROFILE NOR TRANSMISSIONS BETWEEN YOU AND THE PROFILE HOLDER THROUGH THIS PROFILE ARE INTENDED TO PROVIDE LEGAL OR OTHER ADVICE OR TO CREATE AN ATTORNEY-CLIENT RELATIONSHIP.

Saturday, January 24, 2015

MOTIONS FOR MEDICAL AND TEMPORARY BENEFITS
VIEW FROM THE BAR
1/6/15         JAY BERNSTEIN

     Over the past decade the Division of Workers Compensation, under the leadership of the current Chief Judge, has increased the focus and raised the importance given to the quick resolution of Motions for Medical and Temporary Benefits (MMT). From the top down, all the Judges of the Compensation court now seriously and fastidiously deal with pending Motions for medical care; a vast change from the past.
     This is not to say the statutory scheme, involving two to sixth month trials for emergency medical care,  is in any way greatly  improved; but the Judicial  attitude and the courts concern and attention to the Motions for Med/temp is across the board excellent. The legal framework is still antiquated, arcane, and mired in delay; but the court does the best it can within a statutory framework as old as the ‘Model T’ (1911 original Workers Comp. N.J. statute).The Motion’s for Medical and Temporary Benefits are no longer regulated to the back burner, but dealt with expeditiously and with utmost concern, by the Division, and the Judges.The change was slow in coming, but has played out over the last 20 years.
     Recently I have been in involved in a MMT trial where the insurance appointed treating physician has testified, reversed his position on the stand, and the Court ordered immediate Medical treatment. Usually the authorized treating doctor “cut off” of treatment is sacrosanct, as the case law holds that the authorized M.D. must be given greater weight than any other doctor.
     But in some cases, the Judge can use case law, logic and common sense to overcome a treating authorized insurance doctor’s arbitrary and capricious cut off of all treatment. The Judge was incensed that we had to drag the authorized surgeon into court, to reveal the paucity of his written report, and have him reverse his position in open court, with untold delay in treatment. The Judge commented that this paradigm is surfacing all too often in the Workers’ Compensation arena.
     A second MMT, which our office filed in December 2014, under the new (2008) statute dealing with Emergent Motions for treatment (N.J.S.A. 34:15-15.3), was assiduously dealt with by two seasoned Judges, hours before the Christmas vacation, and the day after New Year’s, ensuring immediate action, and possibly saving the life of my client. The new law mandates a respondent answer within 5 five days and an emergency hearing be held within 10 days of motion filing.

 The new emergent motion statute specifies the critical nature of the motion, to be filed only if a physician states:
a.              the injured worker is in need of emergent medical care.
b.              the specific nature of the irreparable harm or damage.
c.              that any delay of treatment will result in irreparable harm or damage.
(N.J.S.A. 34:15-15.3)

   Although seldom used, the new statute can be truly a lifesaver in emergent situations. The immediate tackling of my case by the Judge, via tel. conference, immediate judicial action, --effectively cutting thru the red tape of a mega insurance company, and allowing a lifesaving resolution in 12 hours, (well before the statutory 10 days), is a testimony to the creative and effective action of the Judge and the new serious attitude towards Medical Motions, encapsulated by the NJ Division of Workers Compensation.
         Last October, 2013,  I encountered another first: a Judge of Workers Compensation was so incensed at the delay of authorized treatment, that she entered an order Sua Sponte per N.J.A.C. 12:235-3.16(f), to "compel medical treatment within 15 days" of the order. No motion had been filed on this emergent request for humanitarian intervention. The court on its own volition entered the Order for treatment! [“Sua Sponte:  (sooh-uh spahn-tay) adj. Latin for "of one's own will," meaning on one's own volition, usually referring to a judge's order made without a request by any party to the case.”] 
     But of course problems do remain. Recently I have had a client who worked approximately 30 years with the same employer, grievously injured at work, with major surgery and treatment. But the company ran afoul of the law, owed millions for fraud, folded up, and after 27 years of paying Workers Comp. Insurance; failed to even apply for a policy in its last few years of existence. The owner had disappeared, under threat of numerous lawsuits.
     I requested the UEF (uninsured employer’s fund) step in and pay for treatment and temporary pay to keep the petitioner from becoming homeless. Hospital charity care stepped in for the major operation and treatment, but my client suffered with no possible income. The case is still floundering, within the statutory hoops of the UEF, calling for every possible due process protection of the fraudulent owner, before any hope for redress. As the UEF attorney explained to me, no Motion for Med/Temp may be filed against the State of N.J. UEF fund, and furthermore, if such an order was entered, the UEF cannot recognize the order!  Any order for Medical treatment or temporary pay is null and void against this state agency, and cannot be enforced.  (Subchapter 7. Uninsured Employer’s Fund. 12:235-7.1(c); in part states...“no judgment or order for the payment of benefits shall be entered against the UEF.”).
     Only after personal or substituted service is effected against the Corp. officers and owner, ...only after a trial or motion is entered, ...only after same is docketed in the NJ Civil Court, ...only then is possible redress offered. The cost may well be prohibitive, starting at $79 to $179 for a skip trace for corp. officers who have flown the coup, living out of state, plus the cost of publication of substituted service, etc… The cost in time is the real harm to the injured worker and his family who faces sub-par care, limited to hospital ER or clinic, with no income for his family. What does this do to my client? This arcane UEF statutory scheme and policy directly contravenes the legislative policy regarding the provision of treatment to injured workers. This gaping hole in the Workers Compensation statutory scheme should be redressed immediately.
     A first step may be a relaxation of the strict UEF requirements, but in practice I have never seen this done, although the statute directly allows for same: (Subchapter 7. Uninsured Employer’s Fund. 12:235-7.1(d). “The UEF may relax or dispense with requirements under the subchapter where appropriate and with the consent of the judge hearing the case.”). The State Legislature should tackle and reform the UEF process in the case of Motions for Medical and Temporary benefits and acute medical need.





Jay H. Bernstein is an associate with Kirsch, Gelband, and Stone, PC in Newark N.J.  Mr. Bernstein is a Certified Workers’ Compensation Law Attorney, with 24 years of practice in the Division of Workers’ Compensation.  He is a founding member of the NJSBA Mass Disaster Relief Program and organized pro bono representation of Hurricane Sandy Victims, and 9/11 families.








Sunday, September 7, 2014

UNACCEPTABLE JOB LOSS IN NJ ******* HUMAN CENTRIC VS CAPITAL CENTRIC ECONOMIC POLICY

"Human centric verse capital centric economic policy."

Jay Bernstein September 5, 2014

We live in a society that places limited value on human individuals, especially in their economic potential and Basic economic rights: right to full employment, right to a job, a decent home, healthcare, free education -including college. 

In this age of globalization, we live in a capital centric economic world.   Capital flows to where the return is greatest, worldwide; leaving empty gutted rusted out factories, mass pockets of permanent unemployment, and destroyed lives in its wake.

 Manufacturing and-factory workers cannot be reeducated for the new start up IT economy and their lives (and the lives of their families and children)are permanently injured, and destroyed forever when the jobs disappear.

The train, the engine of private capitalism must be glued to the rails of full employment--people cannot be fired and discarded from the train merely for the sake of increased profit margin.

This week in Atlantic City, New Jersey -- the Showboat casino closed, throwing out 2000 people who will never find the same high-paying job with benefits.

Yet the Bergen record paper reports that The Showboat turned a profit every year --big profit --and never lost money!

The owner -Caesars -merely closed the casino to consolidate and boost profit margin on three of its other casinos in the area; not because the Showboat ever was unprofitable in anyway.

Capital centric policies replaced human centered (human-centric) policies; destroying probably 2000 families in a depressed economic area with no hope of other replacement jobs.

Laws must be reformed.  The state must have a  say --saving jobs and putting human beings FIRST!

Possibly proven human centric economic policies such as"ESOP" (employee stock ownership plans where the employees purchase the entity and run it as equal owners) could have saved the 2000 jobs.



It is Time worldwide to Turn to  human centric Solutions to tackle economic problems, war, drought, Hunger, displacement, mass refugee crisis, disease ie (11,300 children die each day from preventable diseases such as diarrhea and pneumonia etc.) and put ***humans***first not capital!

Sunday, December 15, 2013



Celebrating the New Jersey Lawyer


(Editor's Note: This column is an excerpt from New Jersey State Bar
Association President Ralph J. Lamparello's speech delivered during
his installation on May 17 at the NJSBA Annual Meeting and Convention in Atlantic City.)


I am going to tell you my story—which is going to be about you, about us, and
who we are—for we are New Jersey lawyers. Yes, we are sworn officers of the
Court, and that means we have a moral imperative to improve the system each
day. But, as New Jersey lawyers, we do that and so much more. I have never
encountered a group of people, indeed an entire profession, who contribute so
much. Who dedicate themselves, not just to improving the system of justice
and practice of law, but to improving their communities and the lives of those
around them. A lot of people talk the talk, but no one walks the walk like a
New Jersey lawyer. You are the people I want to celebrate in the year ahead.





When Hurricane Sandy devastated
our state, New Jersey lawyers stepped
forward and provided assistance to so
many who had lost so much. More than
250 lawyers from our bar association
stepped forward to assist victims on a
pro bono basis, regardless of income, and
with no promise of anything in return.
Their work continues today. Their
response was so rapid and their results
so extraordinary that FEMA gave out the
phone number of the New Jersey State
Bar Association to those in need, and we
assisted over 50 families a day for weeks
on end. Who are these lawyers? They
are you and me. People like Jay Bernstein, who has volunteered for the
NJSBA Mass Disaster Program for many
years, and Bill Krais, Stephen Barry, Beth
White, Domenick Carmagnola and
Shivani Malik. Shivani had a background in landlord/tenant work and
took over 45 referrals from Sandy victims to provide them with guidance as
to their rights under the law. Jay, Bill,
Stephen, Beth, Domenick and Shivani
are all New Jersey lawyers.




GO TO FULL ARTICLE NJ LAW JOURNAL MAGAZINE JUNE 2013:

AID TO SANDY VICTIMS JAY BERNSTEIN INTERVIEW ABA JOURNAL 2013

AID TO SANDY VICTIMS/ JAY BERNSTEIN ABA JOURNAL INTERVIEW 2013

MARCH 2013   ABA NATIONAL LAW JOURNAL
After a massive storm slammed into the New York City region on Oct. 29, 2012, the area "was like the Third World," says Jay H. Bernstein, a partner at Kirsch, Gelband & Stone in Newark, N.J. There was no gasoline at local service stations, cellphones didn't work, electrical power was out, "so basically you were trapped wherever you were."
And in the absence of immediate government assistance, says Bernstein—a founding member of the Mass Disaster Response Program operated by the New Jersey State Bar Association to help address victims’ legal needs—residents’ impromptu efforts to respond to the disaster created some interesting alliances.
“People trapped in buildings were being helped by motorcycle gangs and veterans groups,” says Bernstein, who was reminded of stories his mother told him about neighborhood civil defense programs during World War II, in which “every block made sure every person was taken care of, and people checked on each other.”
The size and destructiveness of the storm qualified it for a special (if not official) designation. Superstorm Sandy joined a late-season tropical hurricane that swept north up the East Coast with a classic nor’easter charging south off the Atlantic to create the second-costliest storm in U.S. history, surpassed only by Hurricane Katrina in 2005.
Sandy killed more than 250 people from the Caribbean to Canada and caused at least $65 billion in damages. In the storm’s wake, some 8.1 million homes were without power in 17 states, in some cases for weeks.
Bernstein says the volume of calls flowing into a hotline maintained by the New Jersey bar illustrates the massive need for legal assistance after a disaster like Sandy. Issues included employment matters, lost documents, contractor disputes and even cases in which homeowners were denied emergency assistance because they were behind on their mortgage payments. Lawyers, he says, can be effective in “breaking through the bureaucracy” for victims.
Superstorm Sandy also prompted the ABA to marshal its own resources, including some new mechanisms and policies that were adopted after Katrina revealed gaps in the legal profession’s preparedness for and response to disasters of all kinds.
“We always had a disaster relief committee, and when people have needed legal services we’ve always been there, but we really never had a planned disaster relief program,” says ABA President Laurel G. Bellows. “Katrina pointed out the depths of the need, ... so post-Katrina we launched a pro bono task force. The ABA has put its money where its mouth is by advocating for funding, and also through the development of a tool teaching lawyers, bar associations and local justice systems how to prepare for and respond to disasters,” says the principal of the Bellows Law Group in Chicago.

MAKE THE CALL

The ABA’s disaster preparedness and response strategy has two primary goals: first, helping to provide emergency legal services to affected individuals and businesses; and second, helping lawyers prepare for and respond to disasters.
Two policies adopted by the ABA House of Delegates in recent years put a stronger focus on both those goals. In 2009, the House adopted a recommendation (PDF) that the ABA urge federal, state and local governments to provide more funding to nonprofit legal services providers, bar associations and pro bono programs to help address the unmet legal needs of low-income residents of communities affected by disasters. The lead sponsor was the Standing Committee on Pro Bono and Public Service.
And in 2011, the House adopted a resolution (PDF) urging lawyers “to reg­­u­larly assess their practice environment to identify and address risks that arise from any natural or manmade disaster that may compromise their ability to diligently and competently protect their clients’ interests, and maintain the security of their clients’ property.” That resolution was sponsored by the Special Committee on Disaster Response and Preparedness.
Almost immediately after Sandy struck, the Disaster Legal Services Program operated by the ABA’s Young Lawyers Division kicked in. The program operates under a memorandum of understanding between the division and the Federal Emergency Management Agency that dates back to 1978. Under the agreement, the YLD provides pro bono disaster legal services to low-income survivors of a federally declared disaster when FEMA requests it do so. Since September 2007, the YLD has responded to 103 disasters in 37 states.
The division coordinates volunteer lawyers working toll-free hotlines. Questions from disaster victims may be answered by hotline volunteers or referred to pro bono attorneys in the appropriate jurisdiction. Through the end of December, program volunteers had fielded some 2,500 calls.
“The Young Lawyers Division has really strong relationships with the state bars and works closely with state bar young lawyers committees,” says Christopher A. Rogers, chair of the YLD and an associate at Haynes and Boone in Dallas. “This has made it more efficient as far as the training for setting up a local hotline. We’re lucky enough to have a structure set up to make pro bono lawyers available when disaster strikes.”
In 2007, the House adopted another policy aimed at making it easier for the profession to provide emergency assistance to disaster victims. The Model Court Rule on Provision of Legal Services Following Determination of Major Disaster (PDF)—the “Katrina rule” for short—permits out-of-state lawyers to provide pro bono legal services when a disaster affects the local justice system. At least 11 states have adopted the model rule.
The ABA also is a participating organization in the National Disaster Legal Aid website, which provides information for lawyers wanting to volunteer or donate to legal aid programs, and serves as a resource for individuals seeking legal assistance in the aftermath of a disaster.

LAWYER PREPAREDNESS

Since Katrina, the ABA has put more emphasis on helping lawyers prepare for and respond to disasters that can affect their practices. In 2011, for instance, the Tort Trial and Insurance Practice Section introduced itsInitiative on Disaster Preparedness and Response. Spearheaded by Randy J. Aliment, who was then section chair, the initiative provides podcasts, teleconferences and live programs to address issues such as preparedness, recovery and response, risk management, liability, insurance, claims and litigation.
“During my year as chair, the theme was a series of programs on disasters: cyberterrorism, negligence, acts of nature and domestic acts of terrorism,” says Aliment, a partner at Williams Kastner in Seattle. “The initiative started with 20 webinars dealing with the fallout of disasters, insurance coverage, regulatory [procedures], wrongful death. And then came the incredible, horrific events in Japan, the twisters in the U.S. and Sandy, and we wondered: ‘Did we jinx the country?’ ”
Aliment says lessons learned about disaster preparedness and response really paid off in preventing what could have been worse damage from Sandy. “With the advance warning systems, we know some businesses took actions, like placing generators up higher in the building so they wouldn’t be flooded in the basement,” he says.
In addition, the ABA maintains an online library of sample disaster plans, as well as information on safeguarding records and serving clients and the public—both before and after disaster strikes. The Law Practice Management Section offers a free webzine that focuses on emergency preparedness and response. Also, ABA members receive a discount on the services of Agility Recovery, whose experts work with lawyers to develop disaster plans and—should disaster strike—help law firms get back up and running. The ABA also has produced a book, A Lawyer’s Guide to Disaster Planning, and a video, Surviving a Disaster: Are You Prepared? Both products may be ordered through ABA Publishing.
The ABA also has taken steps to prepare itself to respond effectively to disasters. In October, the association became the first not-for-profit in the United States to be certified under the Voluntary Private Sector Preparedness Program, or PS-Prep, approved by the Department of Homeland Security. The ABA is only the second U.S. business entity of any kind to receive this distinction.
“Our nearly 400,000 members and the public can rest assured that the ABA can recover from a severe business interruption and continue to serve their needs,” Bellows said in a statement issued in conjunction with the announcement. “The organizational resilience that disaster preparedness provides is critical in an increasingly unpredictable environment of global terrorism and frequent natural disasters.”
While the recent focus has been on natural disasters, Bellows also wants the ABA to prepare for technological disasters in the form of cyberattacks on government agencies and private businesses, including law firms.
At the start of her term in August, Bellows appointed the Cybersecurity Legal Task Force to address this next frontier in disaster preparedness. “The Cybersecurity Legal Task Force is a huge initiative working on many different levels,” Bellows says. “Among other issues, we are focusing on how to protect clients’ secrets by keeping law firms from getting hacked, or keeping the hacker from going through law firms to get clients’ information.”

FULL ARTICLE:


NJ State Bar Association Mass Disaster Program History:

 History NJ Mass Disaster Response Program 1994-2014://www.njsba.com/about/news-archives/president-kevin-p-mccann-testimony-before-assembly-judiciary.html

Thursday, November 3, 2011

The People Rule/ Kirsch, Gelband & Stone, Newark N.J.: How to fight your insurance company/ New Jersey St...

The People Rule/ Kirsch, Gelband & Stone, Newark N.J.: How to fight your insurance company/ New Jersey St...: How to fight your insurance company/ New Jersey Storm Damage Fall 2011. Jay Bernstein, Volunteer pro bono attorny, NJ Bar Mass Disaster Rel...

How to fight your insurance company/ New Jersey Storm Damage

How to fight your insurance company/ New Jersey Storm Damage Fall 2011.
Jay Bernstein, Volunteer pro bono attorny, NJ Bar Mass Disaster Relief Program




     Hit with the trifecta  of the Halloween Storm, Hurricane Irene, and the Sept. Flooding, many in
New Jersey are reeling from the devastation, and damage caused by wind, rain, loss of power and flooding.

    Home owners insurance policies have proven inadequate.  Major insurance companies are fighting tooth
and nail valid claims from damage from electrical outages, sump pump failures, and major flooding.

     Before hiring a lawyer you can do simple appeals that may reverse your denied claim:
 
(a) Demand a full updated copy of your Home owners insurance policy.  See what applies to your situation (IE wind damage, electrical black out, etc...)

(b)  Appeal in writing the denial of benefits.
     - directions of who to write to and how much time you have to write will usually be on the back or attached to your denial letter.  It is too your benefit to appeal, as higher ups in the Insurance Company may be more willing to review the denial.  Keep appealing.

(c) Contact an Attorney to Help you fight within the statutory time period.

      Insurance is their to protect us.  The insurance companies continue to have windfall profits in NJ,
no matter the disaster, as they continue to hike rates, and withhold payouts.  Insurance is your right.
DO NOT GIVE IN TO THE DENIAL OF YOUR BENEFITS!!