Copyright

(c) 2014 Jon L Gelman, All Rights Reserved.

Friday, July 31, 2009

Working While Texting: The New Workers Compensation Defense

New technology encroaching upon the workplace has been both a help and a hindrance. Recent studies add to the growing volumes of data reporting that the use of cell phones while driving provides a significant distraction and increases the risk of accidents at alarming rates.

A recent study by the Virginia Tech Transportation Institute (VTTI) has adds to mounds of data that the use of cell phone technology is a driving distraction. The study combined more than 6,000,000 miles of driving and causally relates the use of cell phone technology and the increased risk of motor vehicle accidents. The study concluded that merely dialing a cell phone while driving produces an accident risk of 2.8 times as high as a non-distracted driver. The use of a heavy vehicle or truck, normally used in commercial situations, increased rate of a risk of crash of 23.2 times as high as the non-distracted driver. The report concludes that “…..texting should be banned in moving vehicles for all drivers. “

“Given recent catastrophic crash events and disturbing trends, there is an alarming amount of misinformation and confusion regarding cell phone and texting use while behind the wheel of a vehicle. The findings from our research at VTTI can help begin to clear up these misconceptions as it is based on real world driving data. We conduct transportation safety research in an effort to equip the public with information that can save lives,” says Dr. Tom Dingus, director of the Virginia Tech Transportation Institute.

Workers’ compensation is based upon a no-fault system, and few defenses exist that bar recovery. Defenses such as intoxication or working under the influence of controlled dangerous substances may limit or bar recovery in many jurisdictions. Generally, if an accident or injury was the sole or proximate cause of the prohibitive activity, recovery will be denied.

Public outrage as to the findings of the VTTI study has quickly generated into proposed Federal legislation, by Sen. Charles E. Schumer (D. N.Y.) and three other Democrats, to ban the use of cell phones for texting while driving. Only 14 States have enacted progressive legislation to outright ban texting while driving.

Accidents and injuries at work have a devastating economic impact on a State’s economy. The study will assist State legislatures and courts to recognize that manual manipulation of phones, such as dialing and texting of the cell phone, results in a substantial increase in the risk of being involved in a safety critical event. Workers’ compensation benefits may be prohibited by statute for working while texting (WWT) . In the alternative Courts, may merely consider such events as a risk not associated with the employment, ie. a communication not related to employment or an employer prohibited activity, or, in some instances, a mere deviation from employment. Audits of wireless communication records will assist in providing a data trail.

The Center for Truck and Bus Safety at VTTI, by publishing the study, has made a significant contribution to workplace safety. The message has now been sent for action to be taken to eliminate this safety risk at work.

Wednesday, July 29, 2009

President Barack Obama announced his intent to nominate David Michaels Assistant Secretary for the OSHA

President Barack Obama announced his intent to nominate David Michaels, Assistant Secretary for the Occupational Safety and Health Administration, Department of Labor.

David Michaels, PhD, MPH, is an epidemiologist and is currently Research Professor at the Department of Environmental and Occupational Health at the George Washington University School of Public Health and Health Services. He has conducted numerous studies of the health effects of occupational exposure to toxic chemicals, including asbestos, metals and solvents, and has written extensively on science and regulatory policy.

From 1998 to 2001, Dr. Michaels served as Assistant Secretary of Energy for Environment, Safety and Health, responsible for protecting the health and safety of workers, neighboring communities and the environment surrounding the nation’s nuclear weapons facilities. In that position, he was the chief architect of the historic initiative to compensate nuclear weapons workers who developed occupational illnesses as a result of exposure to radiation, beryllium and other hazards.

In 2006, Dr. Michaels received the American Association for the Advancement of Science’s Scientific Freedom and Responsibility Award for his work on behalf of nuclear weapons workers and for his advocacy for scientific integrity. He is also the recipient of the 2009 John P. McGovern Science and Society Award given by Sigma Xi, the Scientific Research Society.

David Michaels, former Assistant Secretary of Energy for Environment, Safety, and Health during the Clinton administration contends that corporations hire their own scientists to skew the safety records of certain products. He recently spoke at an event was hosted by the Center for American Progress in Washington, DC. The speech was broadcast by C-Span TV. in 2006. Michael authored Doubt is Their Product: How Industry's Assault on Science Threatens Your Health.

Tuesday, July 28, 2009

Nationwide Certification Denied in UPS Discrimination Case

The US 3rd Circuit Court of Appeals refused to certify a national class of UPS employees who alleged a pattern or practice of unlawful discrimination based upon the American Disabilities Act (ADA).

The plaintiffs had alleged that UPS, "...as a matter of companywide policy, refuses to offer any accommodation to employees seeking to return to work with medical restrictions, effectively precluding them from resuming employment at UPS in any capacity because of their impaired condition." The Plaintiff's definition of the class included, "...Those persons throughout the United States who: (i) according to the records of UPS, its agents and contractors have been employed by UPS at any time since May 10, 2000, including those employees absent from work and receiving either workers' compensation or short or long term disability insurance benefits; and (ii) have been absent from work because of a medical impairment; and (iii) are disabled as defined under the Americans with Disabilities Act (ADA); and (iv) have attempted to return to work or continue to work at UPS or have submitted to UPS a medical release that permits the employee to work with restrictions and conditions, or have been disqualified by UPS from returning to work; and (v) were harmed as a result of UPS's policies, practices and procedures that control reentry into the workplace or otherwise govern the making of reasonable accommodations under Title I of the ADA to employees in UPS's workforce."

The Court reasoned, in denying the application, that, "...claims cannot be adjudicated within the parameters of Rule 23 such that a determination of classwide liability and relief can be reached. Rather, establishing the unlawful discrimination alleged by plaintiffs would require determining whether class members are "qualified" under the ADA, an assessment that encompasses inquiries acknowledged by the District Court to be too individualized and divergent with respect to this class to warrant certification under Rule 23(a) and (b)(2)."

Hohider v. United Parcel Service, Inc., ____F.3rd____, 2009 WL 2183267 (3rd Cir. 2009) Decided July 23, 2009

Monday, July 27, 2009

Jury Awards $70,000 to Injured Employee For Discrimination & Retaliation

A corrections officer in Hudson County NJ was awarded $70,000 by a jury for violation of her workers' compensation rights and discrimination charges flowing from her accident at work.

The employee, who had suffered an injury to her knee and subsequent surgical intervention, received a disciplinary notice from her employer alleging that she was "faking her injuries."

NJ law permits a common law action for wrongful discrimination based upon an alleged retaliatory firing attributed to the filing of a workers' compensation claim is also available to an employee. The judicial remedies include: loss of wages and reinstatement of employment, as well as other compensatory and punitive damages.

Sunday, July 26, 2009

U.S. Department of Labor's OSHA cites NJ PSEG Power for workplace safety and health hazards

The U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) has cited PSEG Power LLC for alleged workplace safety and health violations found at a Hamilton, N.J., worksite, proposing $57,500 in penalties.

OSHA initiated its investigation on Jan. 21 after being notified of an employee accident. As a result of the investigation, the company has been cited with one willful violation with a penalty of $55,000 and one serious violation with a $2,500 penalty.

The willful violation is due to the company's failure to provide adequate lighting when employees were operating a bulldozer at night. OSHA defines a willful violation as one committed with intentional disregard of, or plain indifference to, the requirements of the Occupational Safety and Health Act.

The serious violation is due to the company's failure to ensure that employees were wearing a seat belt when operating a bulldozer. A serious citation is issued when there is substantial probability that death or serious physical harm could result and the employer knew, or should have known, of the hazard.

"PSEG is strongly encouraged to address the identified violations to ensure its workers are not at risk for future accidents," said Paula Dixon-Roderick, director of OSHA's Marlton, N.J., office. "By implementing an effective safety and health management system, the company can protect its workers from workplace hazards."

The company has 15 business days from receipt of the citations to comply, request an informal conference with the OSHA area director, or contest the citations and proposed penalties before the independent Occupational Safety and Health Review Commission. The investigation was conducted by OSHA's Marlton Area Office; telephone: 856-396-2594.

Under the Occupational Safety and Health Act of 1970, OSHA's role is to promote safe and healthful working conditions for America's working men and women by setting and enforcing standards, and providing training, outreach and education.
More information about OSHA's recent enforcement activity is available on The Workers' Compensation Blog.

Saturday, July 25, 2009

Injured Workers Assert Class Action Claiming Wal-Mart Violated RICO Act

Several injured Wal-Mart workers' have claimed that the company, in defending their workers' compensation claims, violated the Federal RICO Act. The employees of Wal-Mart have alleged that the company conspired with the insurance carrier and claims adjuster to "dictate, withhold, delay, deny and/or interfere with" the type and duration of their medical care.

The employees have filed a motion for class action certification in their Federal RICO claim against: Wal-Mart, Concentra Health Services, Claims Management, Inc. and Home Assurance Co. (the workers' compensation insurance carrier). The complaint alleges the defendants' activity violated the Colorado's Consumer Protection Act [Colo. Rev. Stat. Section 6-1-105(1)(b),(c),(e) and (u)], and that there were also violations of the federal Racketeer Influenced and Corrupt Organization Act [18 U.S.C. Sec. 1961-1968.] The Class Action Complaint was filed on March 24, 2009. Gianzero v Wal-Mart Stores, Inc. , et al., US DCT (D. Colorado) No. 09-cv-00656 REB BNB.

Wal-Mart's workers' compensation has been critically reviewed in the Seattle Weekly. The publication indicates that the Washington Department of Labor and Industries, in an Order, indicated that, .... “Over the last seven years, Wal-Mart has “repeatedly and unreasonably” delayed giving injured workers the benefits they were owed under workers’ compensation laws, and, in some cases, Wal-Mart employees were not allowed to file workers’ comp claims at all.”

The expansion of RICO actions arising out of workers' compensation claims is an issue to be addressed by the US Supreme Court should two pending Petitions for Certiorari be granted in other pending matters. See the Workers' Compensation Blog for additional articles on this topic.


Friday, July 24, 2009

Medical Provider Claims Viable RICO Action Against Insurance Company in Petition to US Supreme Court

A Petition for Certiorari has been filed to the US Supreme Court in a RICO claim involving a medical provider who claims an insurance company committed fraud in processing the provider's bills for services. George Schroedinger, MD has filed a Petition to seek review of a Eight Circuit decision that over turned a favorable RICO action against United Healthcare of the Midwest, Inc.

The medical provider alleges that United's computer system "often inappropriately grouped and down coded, improperly suspended claims, unnecessarily requested plaintiffs claims that United continued to classify" the medical provider.

This Petition follows a Petition for Certiorari has been filed in Brown v. Cassens Transport Co., 546 F.3d 347 (6th Cir. Oct 23, 2008) (NO. 05-2089), following the rehearing and rehearing en banc denied (Jan 05, 2009). Brown is a landmark decision of immense national significance, the US Sixth Circuit Court of Appeals ruled that a RICO claim brought by injured workers against their employer, insurance carrier and employer medical expert could proceed. The Brown case is scheduled for a Supreme Court conference on September 29, 2009.

Thursday, July 23, 2009

NJ Proposes Informal Process for Medical Bill Disputes

The number of disputes concerning the payment/reimbursement of medical bills have increased in workers’ compensation claims in New Jersey. The State has proposed converting the Informal Hearing procedure into a new Informal Process to hear such disputes and other matters previously consider as an Informal Hearing.

In a published article, “ Clearing the Workers’ Compensation Benefit Highway of Medical Expense Land Mines ,” the difficulties of the issue were previously identified. “Medical expenses in contested workers’ compensation cases are now a significant and troublesome issue resulting in uncertainty, delay and potential future liability. The recent NJ Supreme Court decision, University of Mass. Memorial Hospital v. Christodoulou, 180 N.J. 334 (2004) has left the question of how to adjudicate medical benefits that were conditionally paid or paid in error. Presently there is no exclusively defined procedure to determine the allocation, apportionment of primary responsibility for unauthorized medical expenses and reimbursement.” “The new benefit highway that embraces a new paradigm which extends to a new
safety net and the existence of these collateral programs require a modification of the
Workers’ Compensation Act and/or Rules to safeguard the interests of the parties, while
remaining consistent with the social remedial intent of the legislation.”

Previously legislation was proposed that would have given the NJ Division of Workers Compensation exclusive jurisdiction over medical bills. A-2501 That legislation was never enacted.

The proposed process would allow medical providers, or their representatives, to appear, without the need of an attorney, to informally discuss their disputes with the parties in an effort to seek a consent agreement for resolution. The proposed rule also repeals the need for registration of party representative.

The proposed rules were published on Monday, July 20, 2009 (41 N.J.R. 2768(a) and a public hearing is scheduled on Monday, August 17, 2009 from 9:00 to 12:00 noon NJ Department of Labor and Workforce Development, Trenton, NJ.

Wednesday, July 22, 2009

Overseas Workers Not Covered by State Mandated Workers' Compensation Insurance

In a novel decision the New Jersey Appellate Division ruled that overseas employees are not entitled to coverage even though the workers' compensation act in New Jersey mandates compensation insurance for all employees. The court, utilizing the full faith and credit doctrine, rationalized that insufficient contacts existed between the State of New Jersey and the employees to require insurance.

The employer, a corporation headquartered in NJ, whose business was to employ volunteers to work overseas in an educational program, made an inquiry to the New Jersey Compensation Rating and Inspection Bureau (NJCRIB) for a determination as to whether or not coverage should be afforded to the employees who were based outside of New Jersey, not hired in New Jersey, and not actively engaged in the employment of the respondent in New Jersey. After the NJCRIB notified the employer that insurance was required, the employer sought a declaratory action and judicial interpretation.

International School Services, Inc. v. NJ Department of Labor and Workforce Development, ___ A2d _____ Docket No. A-5722-07T3 (App.Div. 2009). Approved for publicatoion July 10, 2009.

Tuesday, July 21, 2009

Declining Salaries and Unemployment Challenege Workers' Compensation

The decline of wages is yet another major factor in the determination of the health of the workers' compensation system. Recently released surveys reflect that the increase in salaries is the lowest in decades.

The US Department of Labor has reported that the average workers' salary has only increased 2.2% in last year. The demonstrates a fall of 3.2%.

Most workers' compensation systems are based upon the Sate Average Weekly Wage (SAWW). The SAAW establishes the limits for benefit payouts. Usually States mandate that both minimum and maximum payments are a percentage of the SAWW. Compounding that predicament is the fact that the recession has eliminated 6.5 million jobs since 2007.

Both higher levels of unemployment and a reduction in salary increases impact have a fiscal impact of the workers' compensation system. Wages are the basis for the calculation of premiums collected. Few employees and lower wages reflect in lower incomes for insurance companies.

Of course lower employer gives rise to declining claims and lower salaries give rise to lower rates. However, medical costs, the driving force in workers' compensation continue to rise. As the economy continues to decline and fewer businesses remain afloat, the challenge to keep the workers' compensation system afloat will become more acute.





Friday, July 17, 2009

Hot Topics in Workers' Compensation 2009 Seminar


Wednesday, October 07, 2009
5:00 PM to 9:00 PM
New Jersey Law Center, New Brunswick


This seminar will provide practitioners with new strategies and techniques to handle workers' compensation cases in the changing economy.This fast-paced program features a panel of some of the most respected New Jersey Workers' Compensation Judges and attorneys, who will review and provide insight on the top issues and cases that have emerged during the past year.

As an attendee, you’ll pick up practical pointers that have proven successful in matters ranging from jurisdictional issues through coverage of employment. The program will expand your horizons and broaden your practice potential into expanding in developing areas of the law. Make plans to register today!

Program Agenda:
• The New Rules For Preparing, Defending and Processing Motions For Emergent Medical Care That Require A Showing Of “Irreparable Harm.” - Hon. Peter J. Calderone

• The Standard Of Proof Required To Establish Liability In A Multiple Employer And/Or Successive Insurance Carrier Orthopedic Claim - Nancy J. Johnson, Esq.

Differences Among Jurisdictions in Cash Benefits - Professor Emeritus John F. Burton, Jr.

• What Should Be Considered In Addressing Injured Workers’ Needs For Adapting A Home As A Barrier-Free Environment - Jerome L. Eben, AIA. PP. CID

• The Evidence Burden Required To Successfully Establish Compensability In A Claim Involving Secondary Fragrance Exposure In The Workplace - Kenneth A. DiMuzio, Sr., Esq.

• How And When An Employer Or Subsidiary Can Assert A Lien On Settlement Proceeds From A Third Party Recovery - John J. Jasieniecki, Esq.; James Jude Plaia, Esq.

Moderator:

JON L. GELMAN, ESQ.
Author: “New Jersey Workers’ Compensation Law” (3rd Ed., Thompson-West)
Law Offices of Jon Gelman (Wayne)

Speakers include:
HON. PETER J. CALDERONE
Director and Chief Judge, Division of Workers’ Compensation (Trenton)

JOHN F. BURTON, JR.
Former Chair, National Commission on State Workmen’s Compensation Laws
Professor Emeritus, School of Management & Labor Relations (SMLR),
Rutgers University (New Brunswick)

JEROME L. EBEN, AIA, PP, CID
Past President, New Jersey Society of Architects
Jerome Leslie Eben - Architect (West Orange)

JOHN J. JASIENIECKI, ESQ.
Green, Jasieniecki & Riordan (Florham Park)

NANCY J. JOHNSON, ESQ.
Certified by the Supreme Court of New Jersey as a Workers’ Compensation Attorney
Weston, Stierli & McFadden (Piscataway)
(at New Brunswick)

JAMES JUDE PLAIA, ESQ
Offices of James Jude Plaia (Verona)

KENNETH A. DiMUZIO, SR., ESQ
Hoffman DiMuzio (Woodbury)

Click here to print paper registration form.
Register online

Tuition feesReg. FeeReg. Type
Early Registration Discount!
Register by 8/14/09
$119.00EB
General Tuition$169.00REG
NJICLE Season Tickets1 Season Ticket(s)STX
MEMBERS, NJSBA Co-Sponsoring Section$125.00COS
MEMBERS, NJSBA$135.00NJB
MEMBERS, NJSBA YLD$125.00YLD
Recent admittees (last 2 years)$145.00YL
Paralegals$115.00PAR
Law Students (with Student ID)$0.00STU
Full Time Judges$0.00JUD


Credit TypeCredit Amount
CT or CrT:3.75
credits pending
WCM:1.0
credits
PAS:2.5
($16 fee for all PA credits)
PAE:1.0
(Included in PA credit fee)
NYP (t&n/t):3.5
credits
NYE (t&n/t):1.0
credits
MG:2.75
credits pending
MP:1.0
credits pending
WCG:2.75
credits



DOOR REGISTRATIONS: $189

Advance registration closes at noon of the day preceding the program.
After that time you may still register, space permitting, for the Door
Registration Fee. PLEASE CALL FIRST to confirm the seminar schedule
and space availability.
* NJSBA Member Price – To qualify for this reduced price, you must provide
your NJSBA Member# at the time you place your order. If you place your
order without providing your NJSBA Member#, you will be charged
the regular price.

Cancellation policy

Presented in cooperation with The New Jersey Society of Architects
CAN'T ATTEND?
HOT TOPICS IN WORKERS' COMPENSATION LAW 2009
Seminar Materials and Audio Packages
More Details

New Jersey Institute for Continuing Legal Education
The non-profit continuing education service of:
The New Jersey State Bar Association
Rutgers - The State University of New Jersey
Seton Hall University

One Constitution Square, New Brunswick, New Jersey 08901-1520
Phone: (732)214-8500 Fax: (732)249-0383 • CustomerService@njicle.com


NJ Employer Indicted for Failing to Have Workers' Compensation Coverage

A NJ employer who failed to have workers' compensation insurance was criminally indicted the NJ Attorney General announced. The owner of Accurate Paving, Mack Setvens, was alleged not to have insurance coverage.

The NJ Uninsured Employers' Fund (UIF) is required to make payments to injured workers when no coverage is maintained by the employer. In this instance the UIF paid $253,000 in payment to the injured worker.

New Jersey Looking to Hire Attorneys to Work For Free

Relief from the hiring freeze that has stalled some cases before the NJ Division of Workers' Compensation maybe thawing. The Division has been barred from replacing vacancies in the staff of Deputy Attorney Generals who staff the Second Injury Fund.

Recently it was reported in Newark Star Ledger that the freeze has been lifted and the State will hire attorneys who will work for free, About 400 lawyers are registered in the unemployment system.

The Second Injury Fund is represented by the State of NJ. Those cases involve some of the most complicated cases in the state as they all involve allegations total disability matters. The lack of attorneys to represent the Second Injury Fund has resulted in the cancellation of some lists. It is unknown whether paid attorneys could be shifted to this work or whether the State plans to allow the attorneys who are hired for free to to this this assignment.

Disease in a Bottle-Phthalate Exposure at Work

What appears as an ordinary plastic bottle used for fragrances, cosmetics, hair conditions,water, toys and many other items, may actually be concealing a source for illness and disease. Phthalates, commonly found in plastic bottles, are know to suppress male hormones and sometimes mimic female hormones.

In a recent letter to the editor in the NY Times Nicholas D. Kristof commented, "If terrorists were putting phthalates in our drinking water, we would be galvanized to defend ourselves and to spend billions of dollars to ensure our safety. But the risks are just as serious if we’re poisoning ourselves, and it’s time for the Obama administration and Congress to show leadership in this area."

ADAO honors asbestos victim and nurse for 2010 Asbestos Awareness Day

The Asbestos Disease Awareness Organization (ADAO) announced that June Breit, a pleural mesothelioma victim since 2002, is its 2010 ADAO Alan Reinstein Memorial Award Honoree. Since her diagnoses, Breit has been a major player in political and educational advocacy related to public health.
The ADAO also announced that its 6th Annual Asbestos Disease Awareness Conference will be held April 9-10, 2010 in Chicago, IL. The purpose of this conference is to provide the latest occupational, medical and environmental information about asbestos-related illness. Registration and sponsorship opportunities will be announced in September 2009.

Read more about asbestos and asbestos-related diseases.

New Jersey's New Workers' Compensation Enforcement Statute

Governor Corzine has now signed into law a new enforcement statute for workers' compensation coverage in New Jersey. The law amend NJSA 34:15-79 and allows the Director of the Division of Workers' Compensation a stop-work order and impose penalties of between $1,000 to $5,000 per day for non-compliance.

The broad legislation makes it a violation for an employer to misrepresent the status of an employee as an "independent contractor" or to knowingly provide misleading, incomplete or false information.

The Division is in the process of promulgating administrative rules and regulations for implementation of this legislation.

Monday, July 13, 2009

Asbestos Do-It-Yourself Test Kit Avaiable

Asbestos is a know carcinogen. It is present at work sites, schools and in homes. It was frequently used, and in fact required, on various construction sites before 1980. Some examples include popcorn ceilings, insulation material and floor tile.

A $29.95 kit is now being marketed to test for asbestos fiber. The kit is being sold through many hardware stores including Home Depot and Lowes.

The CDC has not yet banned asbestos use is not yet banned in the United States and continues reduce potential years of life.

Saturday, July 11, 2009

Firefighters Required to Stop Smoking On And Off Duty

In many jurisdictions firefighters are allowed a presumption under the law that their pulmonary disability is causally related to their employment under workers' compensation. Now firefighters hired after January 1, 2010 in St. Louis County will be told that they must not smoke on or off duty.

"We felt we owed it to our taxpayers to be in the best shape we possibly could," said Rich Minda, West County fire captain and a vice president of the local firefighters' union. "We just don't feel that it's proper to be doing something so bad for yourself when you're viewed as a role model."

Ordinances allowing presumptions have unique interpretations. A local ordinance provided for an irrefutable presumption that an illness suffered by a firefighter was related to his employment was not deemed to be a payment under the "Workman's Compensation Act" within the meaning of the Internal Revenue Code. Therefore the payments received by the firefighter were not excluded from income tax. Take v. Commission of Internal Revenue, 804 F.2d 553 (9th Cir.1986).

Also, firefighters are also entitled to benefits under the Public Safety Officers Benefit Program (PSOB), administered by the Department of Justice. The death of a volunteer firefighter who died of heart failure in the course of his duties while responding to a house fire was not deemed compensable. There was a lack of evidence as to smoke or carbon monoxide inhalation that would have triggered the heart attack. The volunteer firefighter was 70 years of age and had a history of heart trouble including prior hospitalizations for coronary insufficiency and for congestive heart failure. North v. United States, 1 Cl.Ct. 93, 555 F.Supp. 382 (1982).

Following the World Trade Center attack, many firefighters who were involved in the event and rescue were killed and those who survived suffer from respiratory conditions. The World Trade Center attack created an acute environmental disaster of incredible magnitude. It has been reported that the WTC dust was found to consist predominantly (95%) of coarse particles composed of cement, glass fiber, asbestos, lead, polycyclic aromatic hydrocarbons, polychlorinated biphenyl and polychlorinated furans and dioxins. Due to potential latent disease consequences, the population's greatest risk of exposure, including firefighters, police, paramedics an other first responders as well as construction workers and volunteers who initially aided in the rescue and recovery and then for many months thereafter cleaned the rubble at Ground Zero, are considered to have an elevated risk and should be studied. Philip J. Lendrigan, et. al., "Health and Environmental Consequences of the World Trade Center Disaster," 112 Environmental Health perspectives 6 (May, 2004).

Friday, July 10, 2009

OSHA Adds Hexavalent Chromium to Shipyards Standards

Hexavalent chromium [Chromium (VI) [hexavalent chromium or Cr(VI)]”means chromium with a valence of positive six, inany form and in any compound.] has been added to the list of air contaminants whose concentrations should not exceed stated exposure levels in the OSHA guidance document Shipyard Industry Standards.

"The Maritime Advisory Committee on Occupational Safety and Health recommended that OSHA update and republish the shipyard and longshoring industry digests," said acting Assistant Secretary of Labor for OSHA Jordan Barab. "The revised document is now up-to-date with current standards and will continue to serve as another resource for protecting the safety and health of shipyard workers."

Shipyard Industry Standards revises the existing Shipyard Industry Digest and incorporates new shipyard employment requirements that have been developed and finalized since the booklet was last published in 1998. It lists the guidelines for safety and health programs in the industry and incorporates topics such as management commitment; employee participation; hazard identification, assessment and control; and program evaluation.

Thursday, July 9, 2009

NCCI Reports Workers Compensation Claims Continue to Decline

A report issued by a national workers' compensation rating organization, NCCI Holdings, Inc (NCCI) disclosed that workers' compensation claims frequency is declining.

"Preliminary results indicate a decline of 4.0% for 2008. This is on the heels of a 2.6% drop in claim frequency in 2007 and it extends a trend that started in the 1990s. While the overall decline is widespread .... high-cost Permanent Total claims have emerged recently as a noticeable exception to this decline."

The key finding of their analysis were:
  • Over the last five years, there were significant declines in total lost-time claims frequency for all industries, geographic regions, and employer sizes
  • The number and frequency of Permanent Total claims have increased significantly over the last four years, with all major causes of injury contributing to the rise
  • The rise in Permanent Total claims appears to be driven primarily by workers age 50 or under
  • While claim frequency generally decreases as risk size increases, single-state risks in some classes have higher claim frequency at the higher payroll sizes than at lower payroll sizes

Tuesday, July 7, 2009

EPA Warns of Asbestos Exposures From Attic Insulation

Asbestos exposures in attics has become a major area of concern of the US EPA (Environmental Protection Agency). Loose vermiculite was commonly used in attics to insulate home. Asbestos is a known carcinogen.

Recently the US EPA declared asbestos in Libby Montana as a public health emergency. EPA is launching a public awareness campaign to notify the public, including individuals whose jobs routinely put them in attic spaces, about the potential for vermiculite insulation to be contaminated with asbestos fibers. A new EPA guidance document, targeted for the general public, is available athttp://www.epa.gov/asbestos/pubs/verm.html.

Additional information concerning asbestos exposures and asbestos claims is avialable at: http://www.gelmans.com

e-mail Communications of Employee Are Privileged

Emails that were exchanged by employee and her attorney through her personal, password-protected web-based email account were protected by the attorney-client privilege, even though emails were sent on the employer's computer and a version of employer's handbook purported to transform private emails into company property.

"Finding that the policies undergirding the attorney-client privilege substantially outweigh the employer's interest in enforcement of its unilaterally imposed regulation, we reject the employer's claimed right to rummage through and retain the employee's emails to her attorney."

Bill Introduced in US Senate to Expand Rights of Injured Service Members

The Carmelo Rodriguez Military Medical Accountability Act (S. 1347 / H.R. 1478), sponsored by Sen. Charles Schumer (D-NY) and Rep. Maurice Hinchey (D-NY) has been introduced in the US Senate. The legislation would permit members of the US armed services to file claims for medical malpractice.

Saturday, July 4, 2009

Have you ever wondered what happened to the 56 men who signed the Declaration of Independence ?

Five signers were captured by the British as traitors, and tortured before they died.

Twelve had their homes ransacked and burned.

Two lost their sons serving in the Revolutionary Army; another had twocsons captured.

Nine of the 56 fought and died from wounds or hardships of the Revolutionary War.

They signed and they pledged their lives, their fortunes, and their sacred honor.

What kind of men were they?

Twenty-four were lawyers and jurists. Eleven were merchants, nine were farmers and large plantation owners; men of means, well educated, but they signed the Declaration of Independence knowing full well that the penalty would be death if they were captured.

Carter Braxton of Virginia, a wealthy planter and trader, saw his ships swept from the seas by the British Navy. He sold his home and properties to pay his debts, and died in rags.

Thomas McKeam was so hounded by the British that he was forced to move his family almost constantly. He served in the Congress without pay, and his family was kept in hiding. His possessions were taken from him, and poverty was his reward.

Vandals or soldiers looted the properties of Dillery, Hall, Clymer, Walton, Gwinnett, Heyward, Ruttledge, and Middleton.

At the battle of Yorktown , Thomas Nelson, Jr., noted that the British General Cornwallis had taken over the Nelson home for his headquarters. He quietly urged General George Washington to open fire. The home was destroyed, and Nelson died bankrupt.

Francis Lewis had his home and properties destroyed. The enemy jailed his wife, and she died within a few months.

John Hart was driven from his wife’s bedside as she was dying. Their 13 children fled for their lives. His fields and his gristmill were laid to waste. For more than a year he lived in forests and caves, returning home to find his wife dead and his children vanished.

Remember this 4th of July: Freedom is never free!

Friday, July 3, 2009

Owner of Asbestos Mine Agrees to Address Contamination

The U.S. Department of Justice announced that as part of a multi-site settlement, G-I Holdings Inc. has agreed to address asbestos contamination caused by its past operation of the largest chrysotile asbestos mine and mill in the country.

The 1,673-acre abandoned mine site in Vermont, known as the Vermont Asbestos Group Mine Site (VAG Site) is the most significant of the contaminated sites covered by the settlement, which includes 12 other industrial sites across the country where G-I may have disposed of hazardous waste.

"The cornerstone of this settlement is that G-I is responsible for completing extensive work at the Vermont Asbestos Group Mine Site, focusing on site security, air monitoring and investigating and sampling certain mine tailings," said John C. Cruden, Acting Assistant Attorney General for the Justice Department's Environment and Natural Resources Division. "G-I will also pay for its share of cleanup costs for this Site and nine other contaminated sites around the country."

The consent decree was filed in the U.S Bankruptcy Court for the District of New Jersey and is subject to a 30 day public comment period and approval of the Federal Court. A copy of the consent decree is available on the Department of Justice Web site at http://www.usdoj.gov/enrd/Consent_Decrees.html.

Claims for asbestos related disease have played a significant roll in the national workers' compensation system. Additional information concerning asbestos exposure is available on our website: http://www.gelmans.com/

Thursday, July 2, 2009

Mother's Occupational Exposure to Pesticide Increases Child's Risk of Leukemia

A recent study by the McLaughlin Centre for Population Health Risk Assessment of the University of Ottawa finds that an increased risk of childhood leukemia is associated with the mother's exposure at work to pesticides.

"Childhood leukemia was associated with prenatal maternal occupational pesticide exposure in analyses of all studies combined and in several subgroups. Associations with paternal occupational pesticide exposure were weaker and less consistent. Research needs include improved pesticide exposure indices, continued follow-up of existing cohorts, genetic susceptibility assessment, and basic research on childhood leukemia initiation and progression."

A Systematic Review and Meta-analysis of Childhood Leukemia and Parental Occupational Pesticide Exposure, Donald T. Wigle, Michelle C. Turner, and Daniel Krewski
doi: 10.1289/ehp.0900582 (available at http://dx.doi.org/)
Online 19 May 2009

C-Span TV: David Michaels Author of "Doubt is Their Product"

David Michaels, former Assistant Secretary of Energy for Environment, Safety, and Health during the Clinton administration contends that corporations hire their own scientists to skew the safety records of certain products. He recently spoke at an event was hosted by the Center for American Progress in Washington, DC. The speech was broadcast by C-Span TV.

David Michaels directs the Project on Scientific Knowledge and Public Policy at the George Washington University School of Public Health and Health Services. Mr. Michaels was formerly Assistant Secretary of Energy for Environment, Safety and Health during the Clinton administration. He received the American Association for the Advancement of Science's Scientific Freedom and Responsibility Award in 2006. Michael authored Doubt is Their Product: How Industry's Assault on Science Threatens Your Health.

National Grassroots Alliance Supports Improved Working Conditions

A swell of grassroots enthusiasm has been embodied in the recently formed Protecting Workers Alliance (PWA). The national coalition to protect workers’ health and safety is sweeping the country and being embraced by organizations from coast to coast as it advances its supports efforts to make the workplace safer.

Since its formation in February, PWA has established a unified agenda and begun has advocating for administrative and legislative changes that will help create good jobs in a safe occupational environment.

PWA is advancing a strong national policy agenda:

1. Put worker health and safety first by making the Protecting Workers on the Job agenda a top priority of the President and Congress.

2. Ensure health and safety protection of all workers through tough enforcement of existing regulations, new worker protections, and research.

3. Count all occupational injuries and illnesses and increase funding for Federal and State-based public health tracking programs.

4. Increase worker participation in workplace safety and health programs and protect workers from retaliation.

5. Eliminate disparities in the high rates of deaths, injuries and illnesses among all workers.

6. Reform workers’ compensation programs to ensure appropriate and equitable remedies for the costs of occupational injuries and illnesses for all workers.

7. Reduce or eliminate widespread use of toxic chemicals to protect workers on the job and to safeguard the communities in which we all work and live.

The group’s legislative agenda includes supporting, among other legislation:

Protecting America's Workers Act: HR 2067 to amend the Occupational Safety and Health Act of 1970 to expand coverage under the Act, to increase protections for whistleblowers, to increase penalties for certain violators, and for other purposes.

National Commission on State Workers' Compensation Laws Act of 2009 HR 635 Introduced by Rep. Joe Baca, D-CA, Jan. 21, 2009.

Corporate Injury, Illness, and Fatality Reporting Act of 2009: HR 2113. To require the Secretary of Labor to prescribe regulations requiring employers with more than one establishment and not fewer than 500 employees to report work-related deaths, injuries, and illnesses.

HR 242: A bill directing OSHA to issue regulations requiring "site-controlling" employers to record all injuries that occur on their sites, including temporary and contract workers. Sponsored by Rep. Gene Greene, D-TX. Introduced Jan 7, 2009.

HR 849 Worker Protection Against Combustible Dust Explosions and Fires Act of 2009. To require the Secretary of Labor to issue interim and final occupational safety and health standards regarding worker exposure to combustible dust, and for other purposes.

The PWA steering committee is composed of wide spectrum of interests and causes from across the US who are all interested in creating a safer and healthier workplace. The PWA offers a newsletter service for those who wish to be kept up to date of the groups efforts.

NIOSH Proposes Special Cohort to Include Linden NJ Workers

The National Institute for Occupational Safety and Health (NIOSH), Department of Health and Human Services (HHS) published a notice of a decision to designate a class of employees for the Standard Oil Development Company in Linden, New Jersey, as an addition to the Special Exposure Cohort (SEC) under the Energy Employees Occupational Illness Compensation Program Act of 2000. On June 18, 2009, the Secretary of HHS designated the following class of employees as an addition to the SEC:

All AWE employees of the Standard Oil Development Company in Linden, New Jersey, during the period from August 13, 1942 through December 31, 1945, while working for a number of work days aggregating at least 250 work days, either solely under this employment or in combination with work days within the parameters established for one or more other classes of employees in the SEC.

This designation will become effective on July 18, 2009, unless Congress provides otherwise prior to the effective date.

Federal Register: June 30, 2009 (Volume 74, Number 124 Page 31279-31280