Cypen & Cypen
APRIL 12, 2007
Stephen H. Cypen, Esq., Editor
1. FIREFIGHTER’S HYPERTENSION NOT “DISABILITY” UNDER WORKERS’ COMP:
Claimant, a firefighter, passed a pre-employment physical examination without evidence of heart disease, hypertension or tuberculosis. In 2003, he was diagnosed with hypertension, and reached maximum medical improvement in 2004. As a result of the hypertension, claimant suffered a permanent physical impairment of between 1% and 10% of the body as a whole. If the claim were determined to be compensable, benefits would have been handled administratively. The issue was whether claimant’s permanent impairment for hypertension, standing alone, constituted a “disability,” so as to qualify for coverage under the Workers’ Compensation Act as an occupational disease pursuant to Section 440.151, Florida Statutes. The judge of compensation claims determined that claimant’s permanent impairment for hypertension, standing alone, constituted a disability under the Workers’ Compensation Act. On appeal, the ruling was reversed. In a 10-5 decision, the full District Court of Appeal held that claimant’s hypertension had not caused him to miss any work, thus he could not demonstrate an incapacity resulting in actual wage-loss. Without incapacity resulting in actual wage-loss, claimant cannot show disablement. Without disablement, claimant’s hypertension does not meet the statutory definition of an occupational disease. Without an occupational disease, claimant’s hypertension cannot be treated as the happening of an injury by accident. Without an injury by accident, a necessary prerequisite to applicability of Chapter 440, claimant’s hypertension is not covered under the Act. Without coverage under the Act, claimant is not eligible for benefits under Section 440.151(3), Florida Statutes. (One concurring judge suggested that the legal question posed may have limited practical significance in that it arose because the statutory presumption combined with the routine physical examination produced a “permanent impairment” in an employee who had not experienced symptoms.) City of Port Orange v. Sedacca, 32 Fla. L. Weekly D917 (Fla. 1st DCA, April 10, 2007) (en banc).
2. A TOOL TO HELP PREVENT PENSION FRAUD:
We have all read about cases where pension funds have erroneously made payments to “deceased” retirees. National Technical Information Service (part of the U.S. Department of Commerce, Technology Administration), working with Social Security Administration, has made available Social Security Administration’s Death Master File. The file is used by leading government, financial, investigative, credit reporting organizations, medical research and other industries to verify identity. as well as to prevent fraud and to comply with the U.S.A. Patriot Act. Pension funds can utilize the file to see if a pension payee is on the list of deceased persons. (Several of our pension board clients now utilize a private service to obtain the same information.) This product can be accessed at http://www.ntis.gov/ssa-dmf.
3. THE U.S.A. PATRIOT ACT:
As the above piece indicates, Social Security Administration’s Death Master File can be used to comply with the U.S.A. Patriot Act, which requires an effort to verify identity of customers, including procedures to verify customer identity and maintaining records of information used to verify identity. We’ll bet that most readers are not aware that U.S.A. Patriot Act is an acronym: Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001. Just a little something else to be learned by reading our Newsletter.
4. FINANCIAL HEALTH OF PBGC:
On March 23, 2007 Congressional Research Services issued its Report for Congress on financial health of the Pension Benefit Guaranty Corporation. PBGC is a federal government agency created by the Employee Retirement Income Security Act of 1974 to protect pensions of participants covered by most private sector, defined benefit pension plans. PBGC receives no appropriated funds. The agency’s costs are offset by assets of the plans that PBGC takes over and premiums paid by sponsors of covered pension plans. Premiums are established by Congress. The PBGC’s single-employer program posted an all-time high deficit of $23 Billion in 2004; as of September 30, 2006, the deficit was $18 Billion. PBGC discloses an additional, off-balance sheet liability for reasonably possible terminations; as of September 30, 2006, it was $73 Billion. Although PBGC’s net position (measured as assets minus liabilities) improved $5.2 Billion since 2004, it fell $31 Billion from 2001 to 2004. Many factors have contributed to PBGC’s worsening financial condition. Primary among them was termination of several large underfunded pension plans between 2002 and 2005 in the steel and airline industries. Plan terminations by airlines continue to threaten PBGC’s finances. Poor stock market returns (in 2001 and 2002) and falling interest rates also contributed to PBGC’s recent problems. As PBGC’s condition worsened, Congress and the Administration considered reforms to address salient issues. On August 17, 2006, the President signed the Pension Protection Act of 2006 (P.L. 109-280). The Act has been called the most comprehensive reform of the nation’s pension laws since enactment of ERISA. It establishes new rules that strengthen funding requirements for most plans; however, it provides funding relief for plans sponsored by commercial airlines. It also includes reforms that affect cash balance plans, defined contribution plans and other forms of deferred compensation. Even though PBGC currently receives no appropriations, many expect that because it insures pensions of 44 million Americans, its failure could require a taxpayer funded bailout. The Government Accountability Office added PBGC’s single-employer insurance program to its list of high-risk areas in July of 2003. As of January 2007, it remains on GAO’s list because of its high deficit and because the ultimate impact of recent reforms on PBGC’s finances is unclear.
5. GAO STRATEGIC PLAN:
United States Government Accountability Office has issued its Strategic Plan for 2007-2012. In keeping with GAO’s commitment to update its Strategic Plan at least once every three years, consistent with the Government Performance and Results Act, the Strategic Plan describes GAO’s proposed goals and strategies for serving Congress for fiscal years 2007 through 2012. As expected, with Congress and the nation facing such challenges as the large and growing long-term fiscal imbalance and increased concerns about meeting health care needs of American citizens, the plan includes bodies of work that address anticipated requests for evaluations of those and other major issues. In addition, the plan covers anticipated work related to major government transformation efforts, especially in areas of homeland security and defense. GAO finds disturbing our nation’s long-range fiscal outlook, which remains unsustainable given existing federal commitments and the challenges of caring for a growing elderly population. Consequently, policy makers will be increasingly required to judge what the nation can afford, both now and in the future. There are new expectations about quality of life for Americans and the ways of measuring the nation’s position and progress. Broad goals and objectives of the plan have not altered dramatically since the last one, but events such as the continuing war in Iraq and recent and predicted national disorders account for some modifications and emphasis. GAO has retained its goal of becoming a model agency and world-class professional services organization -- a goal that remains as vital as ever.
6. A LITTLE BIT ABOUT GAO:
And speaking about GAO, just exactly what is it? Formerly known as United States General Accounting Office, the United States Government Accountability Office exists to support Congress in meeting its constitutional responsibilities and to help performance and insure accountability of the federal government for benefit of the American people. Through the Budget and Accounting Act of 1921, Congress established GAO with the broad role of investigating “all matters relating to the receipt, disbursement, and application of public funds” and to “make recommendations looking to greater economy or efficiency in public expenditures.” Since World War II, Congress has clarified and expanded that original charter in the following ways:
GAO implements its statutory responsibilities by engaging in a range of oversight, insight and foresight activities that span the full breadth and scope of federal activities and programs. GAO publishes thousands of reports and other documents annually and provides a number of other related services. By making recommendations to improve practices and operations of government agencies, GAO contributes not only to the increased effectiveness and accountability for federal spending, but also to enhancement of the taxpayers’ trust and confidence in the federal government. GAO also looks at national and international trends and challenges to anticipate their implications for public policy.
7. IRS ISSUES FINAL IRC §415 REGULATIONS:
On April 5, 2007, Department of the Treasury, Internal Revenue Service, issued final regulations under Section 415 of the Internal Revenue Code, removing temporary regulations. Entitled “Limitations on Benefits and Contributions Under Qualified Plans,” the document contains final regulations under Section 415 of the Internal Revenue Code regarding limitations of Section 415, including updates of the regulations for numerous statutory changes since comprehensive final regulations were last published under Section 415. The final regulations also make conforming changes to regulations under Sections 401(a), 401(a)(9), 401(k), 402, 416 and 457, and make other minor corrective changes to regulations under Sections 401(a)(4), 414(s), 457 and 924. The regulations affect administrators of, participants in and beneficiaries of qualified employer plans and certain other retirement plans. The regulations are effective April 5, 2007, and generally apply for limitation years beginning on or after July 1, 2007. Section 415 was added to the Internal Revenue Code by the Employee Retirement Income Security Act of 1974, and has been amended many times since then. Section 415 provides a series of limits on benefits under qualified defined benefit plans and on contributions and other additions under qualified defined contribution plans. Comprehensive regulations regarding Section 415 were last issued in 1981. Final regulations are published in the Federal Register, Volume 72, Number 65, April 5, 2007.
8. AUDITORS WILL CHECK JERSEY PENSION FUND:
Fast on the heels of the report that New Jersey had diverted billions from its pension funds (see C&C Newsletter for April 5, 2007, Item 2), the Governor has said he would ask independent auditors to examine state financial records to determine how severely the pension fund has been jeopardized by underfunding. In a rather incredible statement, reported by the New York Times, the Governor said the state did not have auditors who were qualified to conduct a thorough examination of the fund! (Gee, that’s encouraging.) However, the Governor did say something upbeat: Whatever the figure is, the shortfall must be closed. Bravo on that point.
9. NEW MEXICO GOVERNOR VETOES LEGISLATIVE PENSION BILL:
According to freenewmexican.com, a proposal to sweeten legislative pensions was among the casualties as New Mexico Governor Bill Richardson wielded his veto pen. The legislators’ pension change was tucked into two separate bills placing earnings caps on state and local government retirees who return to work in government jobs. The vetoed bills would have changed the formula for calculating lawmakers’ pensions, resulting in increased benefits for them. Although Richardson didn’t mention the lawmakers’ pension portion of the bills in his veto message, he did complain that the bills contained conflicting approaches to the retiree return-to-work problem, and did not provide a clear consistent view of how to improve the state’s retirement policy.
10. NATIONAL SAVINGS RATE GUIDELINES FOR INDIVIDUALS:
The Journal of Financial Planning, official
publication of the Financial Planning Association, has
savings rate guidelines for individuals. Co-authored by
the legendary Roger Ibbotson, the study creates savings
guidelines for typical individuals with different ages,
income levels and initial accumulated wealth, so the public
can more easily determine how much to save for retirement.
It also creates benchmarks for how much capital an individual
would have accumulated based upon his income and age, with
the presumption that he started saving at age 35. Additionally,
it shows targets for how much individuals should have accumulated
at age 65, prior to retiring. The authors recommend that
their findings be adopted as national savings guidelines.
The study differs from previous savings studies in several
important ways. Perhaps most key is that the savings guidelines
and capital needs are calculated on retirement income as
a percent of net pre-retirement income -- gross income
minus actual retirement savings in pre-retirement. The
study also uses Monte Carlo simulations and Ibbotson Associates’ forecasted
returns to calculate capital required for retirement. The
article calculates retirement cash flow using an 80 percent
replacement ratio of pre-tax pre-retirement net income
for a single person, along with other assumptions. As a
comparison, it shows the difference in savings required
for 60 and 80 percent replacement ratios without pre-retirement
net income approach. The study takes into account Social
Security benefits, and shows that higher-income individuals
need to save at substantially higher rates in order to
offset the impact of Social Security benefits being skewed
to lower-income individuals. The study shows the urgency
of starting to save no later than age 35. It also suggests
that those whose income increases faster than inflation
will have to save an increasing amount to “catch
up” so as to be able to provide for higher assumed
standard of living in retirement. A full copy of the study
can be accessed at
“In matters of principle, stand like a rock; in matters of taste, swim with the current.” Thomas Jefferson
12. HOW’RE WE DOING?:
To paraphrase former New York City Mayor Ed Koch, “How’re we doing?” We would like to know what readers think about the Newsletter -- the good, the bad and the ugly. Each week, we try to gather timely items we think will be of interest to our readers. Are we accomplishing our goal? Are the articles too long? Are there too many of them? Are there subjects we deal with that you would rather not see? Are there subjects we do not deal with that you would like to see? In any event, shoot us an e-mail at your convenience and we will try to improve the Newsletter. After all, we read dozens of source materials every week so you don’t have to! Thanks.
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Items in this Newsletter may be excerpts or summaries of original or secondary source material, and may have been reorganized for clarity and brevity. This Newsletter is general in nature and is not intended to provide specific legal or other advice.