Judge strikes down NYC's gruesome tobacco ads
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The city's campaign to scare smokers with grotesque images of decaying teeth or a diseased lung wherever tobacco products are sold was struck down Wednesday by a federal judge who concluded that only the federal government can dictate warnings that must accompany the promotion of cigarettes.
U.S. District Judge Jed S. Rakoff handed a victory to the nation's three largest tobacco manufacturers and the retailers who sell their products when he ruled on the legality of a 2009 city Board of Health code change requiring the display of smoking cessation signs where tobacco products are sold.
"Even merchants of morbidity are entitled to the full protection of the law, for our sake as well as theirs," Rakoff said. He released the written decision just days before an agreement among the parties to delay enforcement of the rule was to expire on Saturday.
He said the federal Labeling Act, first enacted in 1965, sought to balance public and commercial interests with a comprehensive federal program to deal with cigarette labeling and advertising. He said it was created in part to prevent "diverse, nonuniform and confusing cigarette labeling and advertising regulations." Part of the law dictated that no state law could impose a requirement or prohibition with respect to advertising or promotion of cigarettes, he noted.
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Workers’ Compensation Subrogation of Administrative Fees and Costs
When a worker covered by workers’ compensation makes a claim against a third party, the workers’ compensation insurance retains the right to subrogate against any recovery from that third party for all benefits paid to or on behalf of a claimant injured at work. When subrogating for more than basic medical and indemnity benefits, the Texas workers’ compensation subrogation statute provides that “the net amount recovered by a claimant in a third‑party action shall be used to reimburse the carrier for benefits, including medical benefits that have been paid for the compensable injury.” TX Labor Code § 417.002.
In fact, all 50 states provide for similar subrogation. However, none of them precisely outlines which payments or costs paid by a compensation carrier constitute “compensation” and can be recovered. The result is industry-wide confusion and an ongoing debate and argument with claimants’ attorneys over what can and can’t be included in a carrier’s lien for recovery purposes.
In addition to medical expenses, death benefits, funeral costs and/or indemnity benefits for lost wages and loss of earning capacity resulting from a compensable injury, workers’ compensation insurance carriers also expend considerable dollars for case management costs, medical bill audit fees, rehabilitation benefits, nurse case worker fees, and other similar fees. They also incur other expenses in conjunction with the handling and adjusting of workers’ compensation claims. Workers’ compensation carriers typically assert, of course, that, they are entitled to reimbursement for such expenditures when it recovers its workers’ compensation lien. Injured workers and their attorneys disagree.