(c) 2016 Jon L Gelman, All Rights Reserved.

Thursday, May 19, 2016

NJ Supreme Court Hears Argument on Employer's Duty to Household Contact

An employer's duty to a employee's household contact was the focus of an oral argument recently before the NJ Supreme Court. The NJ Supreme Court reviewed the question, that was certified by the US Third Circuit Court of Appeals, to define the duty and its scope. The household contact, the fiance, subsequently spouse, suffered beryllium related disease causally related to the employee's toxic exposure.

The case arose out of a household contact's exposure to beryllium brought home on the employee's cloths. At the time of the exposure, 30 years ago, the household contact was the fiance of the employee.
"The United States Court of Appeals for the Third Circuit having certified to the Supreme Court the following question of law pursuant to Rule 2:12-1:
And the Court having determined to accept the question as certified."
Does the premises liability rule set forth in Olivo v. Owens-Illinois, Inc., 186N.J. 394, 895 A.2d 1143 (2006), extend beyond providing a duty of care to the spouse of a person exposed to toxic substances on the landowner's premises, and, if so, what are the limits of that liability rule and the associated scope of duty?
Three States have adopted the rule that the employer's duty extends to household contacts who are not spouses, ie. children and parents of the employee.

Click here to view NJ Supreme Court Video 4/25/2016  (Available for 30 days, then see below)
Click here for general information about accessing the NJ Supreme Court Video Archive

Case History (Google Scholar):
Schwartz v. ACCURATUS CORP., 118 A. 3d 347 - … - ‎NJ: Supreme Court
Schwartz v. Accuratus Corp., 7 F. Supp. 3d 490 - 2014 - ‎Dist. Court, ED
Schwartz v. ACCURATUS CORPORATION, 2014 - ‎Dist. Court, ED

Related articles:
Mar 28, 2015 ... A $1.6 Million award for a household contact of an asbestos worker was affirmed by a NJ Court of Appeals. The child of a Shulton employee ...
May 1, 2010 ... The case involved a household contact exposure to asbestos fiber. The wife of the asbestos worker was exposed to asbestos fiber on the ...
Nov 29, 2013 ... One would think that we woud have learned of the serious medical problems caused by the consequences of being a household contact to an ...
Oct 11, 2011 ... Labels: asbestos; brakes; chrysotile; mechanic; occupation; epidemiology; mesothelioma, Asthma, Bystander Exposure, household contact, ...

Wednesday, May 18, 2016

Passaic NJ distribution warehouse fined $112K for two dozen safety violations

OSHA cites Oaxaca Mexican Products for blocking fire exit, 20 other serious violations

Oaxaca Mexican Products, 100 8th St., Passaic, New Jersey was issued citations by the U.S. Department of Labor's Occupational Safety and Health Administration issued citations for one willful, 20 serious and three other-than-serious violations on May 3, 2016.

OSHA opened an inspection on May 3, 2016, in response to a complaint alleging that there were unsafe conditions in the facility, including blocked fire exits. Inspectors issued a willful citation after finding an exit door and route obstructed by locking devices that require special knowledge and tools to open in case of emergency. OSHA cited the company previously for the same type of condition on the same door.
  • Serious citations were issued for the following: 
  • Fall hazards. 
  • Inadequate and improper exit signage. 
  • Lack of machine guarding. 
  • Improper spliced electrical cable. 
  • Failure to have a written hazard assessment and a hazard communication program. 
  • Lack of eye-wash facilities where employees use corrosive chemicals. 
  • Lack of Material Safety Data Sheets. 
  • Lack of training regarding hazardous chemicals used in the workplace. 

 "The fact that Oaxaca has again put its employees' lives at risk by not making sure a fire safety door was easily opened is completely unacceptable," said Lisa Levy, director of OSHA's Hasbrouck Heights Area Office. "In this day and age, providing employees with proper emergency exits is safety 101."

Proposed penalties: $112,700

The citations can be viewed at:

The employer has 15 business days from receipt of its citations and proposed penalties to comply, request a conference with OSHA's area director or contest the findings before the independent Occupational Safety and Health Review Commission.

Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thompson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson-Reuters). For over 4 decades the Law Offices of Jon L Gelman  1.973.696.7900  has been representing injured workers and their families who have suffered occupational accidents and illnesses.

Tuesday, May 17, 2016

CMS Publishes Final Rule for MSP Conditional Payments Via Web Portal

This final rule, effective June 16, 2016,  specifies the process and timeline for expanding CMS' existing Medicare Secondary Payer (MSP) Web portal to conform to section 201 of the Medicare IVIG and Strengthening Medicare and Repaying Taxpayers Act of 2012 (the SMART Act).

The final rule specifies a timeline for developing a multifactor authentication solution to securely permit authorized users other than the beneficiary to access CMS' MSP conditional payment amounts and claims detail information via the MSP Web portal.

It also requires that CMS add functionality to the existing MSP Web portal that permits users to:
  1. Notify us that the specified case is approaching settlement; 
  2. obtain time and date stamped final conditional payment summary statements and amounts before reaching settlement; 
  3. and ensure that relatedness disputes and any other discrepancies are addressed within 11 business days of receipt of dispute documentation.
Effective date: June 16, 2016

Monday, May 16, 2016

Some medicines are just not for sick people: Fluoroquinolone

Obtaining fast and effective medical treatment after suffering and occupational accident or injury is important. Receiving the improper medication can made outcomes a lot worse The FDA advises restricting fluoroquinolone antibiotic use for certain uncomplicated infections and warns about disabling side effects that can occur together.

The U.S. Food and Drug Administration is advising that the serious side effects associated with fluoroquinolone antibacterial drugs generally outweigh the benefits for patients with sinusitis, bronchitis, and uncomplicated urinary tract infections who have other treatment options. For patients with these conditions, fluoroquinolone should be reserved for those who do not have alternative treatment options.

An FDA safety review has shown that fluoroquinolones when used systemically (i.e. tablets, capsules, and injectable) are associated with disabling and potentially permanent serious side effects that can occur together. These side effects can involve the tendons, muscles, joints, nerves, and central nervous system.

As a result, the FDA is requiring the drug labels and Medication Guides for all fluoroquinolone antibacterial drugs to be updated to reflect this new safety information. The FDA is continuing to investigate safety issues with fluoroquinolones and will update the public with additional information if it becomes available.

Patients should contact your health care professional immediately if you experience any serious side effects while taking your fluoroquinolone medicine. 

Some signs and symptoms of serious side effects include: tendon, joint and muscle pain, a “pins and needles” tingling or pricking sensation, confusion, and hallucinations. Patients should talk with your health care professional if you have any questions or concerns.

Health care professionals should stop systemic fluoroquinolone treatment immediately if a patient reports serious side effects, and switch to a non-fluoroquinolone antibacterial drug to complete the patient’s treatment course.

Fluoroquinolone drugs work by killing or stopping the growth of bacteria that can cause illness (see List of Currently Available FDA-approved Fluoroquinolones for Systemic Use).

The FDA previously communicated safety information associated with systemic fluoroquinolone antibacterial drugs in August 2013 and July 2008. The safety issues described in this Drug Safety Communication were also discussed at an FDA Advisory Committee meeting in November 2015.

The FDA urges patients and health care professionals to report side effects involving fluoroquinolone antibacterial drugs and other drugs to the FDA MedWatch program, using the information in the “Contact FDA” box at the bottom of the page.

Sunday, May 15, 2016

Will the future of workers' compensation be ADR?

As mandatory arbitration continues to be adopted in place of litigation, it remains to be be seen whether mandatory arbitration will replace costly and time consuming litigated adversarial hearings in workers' compensation. During the last two decades employers and insurance companies have fashioned contracts to include Alternate Dispute Resolution (ADR) proceedings to reduce costs and awards.

The future of workers' compensation programs is being challenged by both workers and employers as each side tries to maneuver for the best position in the changing market. Both sides seem unhappy with the "Grand Bargain" that was crafted in another era, the early 1900's. The European Model that the US program was fashioned after has long ago been rejected by those who enjoy living on the other side of "the pond."

Keeping a watchful eye on the Millennial Generation affords one an insight into what may be on the horizon. The NY Times reports today that even the "start-up generation" is now headed down the path to ADR.
"For start-ups — many of which began in Silicon Valley — the clauses can seem to conflict with professed goals of upending business as usual and being open with employees. Arbitration, by its very nature, is a secretive process that is often lopsided in favor of the employer. That secrecy, federal labor officials said, can allow widespread problems to persist because the process bars employees from sharing their experiences with others who might be in similar positions.
“They give their young workers Ping-Pong tables and take away their constitutional rights,” said Cliff Palefsky, an employment and civil rights lawyer in San Francisco.
Start-Ups Embrace Arbitration to Settle Workplace Disputes, NY Times 5/15/2016

Monday, May 9, 2016

Announcing the Best Blog Designees for 2016, "the original and largest regulatory and compliance information center available for the workers' compensation industry," has announced the best blog designations for 2016:

"The blogs below were all nominated by citizens of the workers' compensation community. They were judged on several criteria. In addition to objective categories such as age of blog, frequency of posting and website traffic**, they were also assessed by an independent judging panel for content quality, value and timeliness. Designated blog category was determined by people nominating the blog. In the event of multiple nominations, the category selected by the majority of nominators was used.

Elizabeth NJ contractor again exposes workers to dangerous risk of falls

OSHA finds at downtown Jersey City build site
Cajamarca Construction Corp. fined $51K after 8th failed inspection since 2009
Employer name: - Cajamarca Construction Corp., 36 Prospect Street, Apt. 2F, Elizabeth, New Jersey
Inspection site: Residential construction project at 259 Halladay St., Jersey City, New Jersey
Citations issued: The U.S. Department of Labor's Occupational Safety and Health Administration issued one willful, two repeat, and one serious citations on April 28, 2016.
Inspection findings: An OSHA compliance officer opened an inspection after driving by the site and seeing employees of the siding and roofing company exposed to 28-foot falls without fall protection as they did roof work.