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

Wednesday, December 28, 2011

OSHA cites Creamer Sanzari Joint Venture for safety hazards at Passaic River bridge project in Clifton, NJ


The U.S. Department of Labor's Occupational Safety and Health Administration has cited Creamer Sanzari Joint Venture of Hackensack for seven alleged serious safety violations found at the Passaic River bridge project in Clifton. 
Proposed penalties total $41,580.

The work site, where the company was installing a replacement bridge as well as making major road improvements along state Route 3, was one of many area construction sites to undergo a planned inspection by OSHA due to the high-hazard nature of the industry.

The following conditions resulted in citations: Ring buoys, a lifeboat and fall protection from a walking surface were not provided for employees exposed to a fall in excess of 12 feet. High-visibility materials were not used to mark the top rails of a guardrail system made of wire rope material. Bidirectional machines were not equipped with an operational horn. All protruding steel was not protected against impalement hazards. Employees were permitted to work with machines that had a deficient lockout/tagout system to prevent unexpected start ups. A serious violation occurs when there is substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known.

"The construction industry continues to remain one of the most dangerous, and heavy highway and bridge work entails a variety of unique hazards," said Lisa Levy, director of OSHA's Hasbrouck Heights Area Office. "The company needs to ensure that violations of this nature are not repeated."

Creamer Sanzari, a heavy highway and bridge construction company, has 15 business days from receipt of the citations to comply, ask for an informal conference with OSHA's area director or contest the citations and proposed penalties before the independent Occupational Safety and Health Review Commission.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA's role is to ensure these conditions for America's working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit http://www.osha.gov.
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For over 3 decades the Law Offices of Jon L. Gelman  1.973.696.7900  jon@gelmans.com have been representing injured workers and their families who have suffered occupational accidents and illnesses. 

Related articles

Monday, December 26, 2011

Mitt Romney Plans to Cut Benefits to Disabled

The Mitt Romney campaign, on the eve of the Iowa Caucuses, is now refining a campaign strategy, to reduce benefits for the disabled. He is beginning to take aim at any and all programs, regardless of funding, that provide assistance to those who are unable to work.

As state workers' compensation programs are,  both substantively and procedurally, entangled into a complex web of Federal subsidies and reimbursements, he too maybe taking aim at state workers' compensation systems.


Read: The Anti-Entitlement Strategy (NYTimes)
"Romney and his aides have designed his rhetoric to define pretty much all spending on entitlements, including provisions for the injured, unemployed, sick, disabled or elderly as benefits to the poor who, Romney implies, are undeserving. And it doesn’t matter whether the money to pay for these programs comes from employer and employee contributions and not just tax revenue — they are all under suspicion."

Wednesday, December 14, 2011

Automobile Mechanics Should Be Cautious About Asbestos Exposure

Many brakes and clutches used in new and recent model automobiles do not contain asbestos. However, it has not been totally eliminated. Some reports have indicated that many mechanics and employees in the automotive repair shops as well as do-it-yourselfers are unaware that asbestos may be present in both old and replacement brakes and clutches.

OSHA’s asbestos standard requires the use of controls and safe work practices when employees work with brake shoes and clutches that contain asbestos. These requirements are detailed in 29 CFR 1910.1001 and specifically 1910.1001(f)(3) and Appendix F of the standard - Work Practices and Engineering Controls for Automotive Brake and Clutch Inspection, Disassembly, Repair and Assembly (http://www.osha.gov/SLTC/asbestos/index.html). The requirements also are discussed in the Federal Register at 59 FR 40964, 40985-87 (August 10, 1994) and 60 FR 33983 (June 29, 1995), as well as in OSHA Directive CPL 2-2.63 (revised).

Asbestos, a naturally occurring mineral fiber that is highly heat resistant, can cause serious health problems when inhaled into the lungs. If products containing asbestos are disturbed, thin, lightweight asbestos fibers can be released into the air. Persons breathing the air may breathe in asbestos fibers. Continued exposure can increase the amount of fibers deposited in the lung. Fibers embedded in the lung tissue over time may result in lung diseases such as asbestosis, lung cancer, or mesothelioma. It can take from 10 to 40 years or more for symptoms of an asbestos-related condition to appear. Smoking increases the risk of developing illness from asbestos exposure.

All automotive brake and clutch repair facilities in the United States must comply with the OSHA asbestos standard. The proper use of engineering controls and work practices by properly trained employees working on automotive brakes and clutches will reduce their asbestos exposure below the permissible exposure level of 0.1 fiber per cubic centimeter of air, expressed as an 8-hour time-weighted average. Respiratory protection is not required during brake and clutch jobs where the control methods described below are used.

The two preferred OSHA methods to control asbestos dust during brake and clutch repair and service are: (1) a negative pressure enclosure/HEPA (high-efficiency particulate air) vacuum system, and (2) the low pressure/wet cleaning method. The employer may use other methods (in conjunction with written procedures), to reduce exposure to levels equivalent to the negative pressure enclosure/HEPA vacuum system. For facilities that inspect, disassemble, reassemble and/or repair five or fewer brake or clutch jobs per week, the wet method (described in paragraph D of Appendix F) can be used. The spray can/solvent system method can be used as an alternative preferred method since it meets the equivalency criterion of the negative pressure enclosure/HEPA vacuum system method. Proper training is essential to ensure that employees use the methods in an effective manner.

More information:
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For over 3 decades the Law Offices of Jon L. Gelman  1.973.696.7900  jon@gelmans.com have been representing injured workers and their families who have suffered occupational accidents and illnesses. 

Tuesday, December 13, 2011

National Highway Safety Board To All States: Ban Cellphone Use in Vehicles

To the 50 states and the District of Columbia:
(1) Ban the nonemergency use of portable electronic devices (other than those designed to support the driving task) for all drivers; 
(2) use the National Highway Traffic Safety Administration model of high visibility enforcement to support these bans; and 
(3) implement targeted communication campaigns to inform motorists of the new law and enforcement, and to warn them of the dangers associated with the nonemergency use of portable electronic devices while driving.

Related articles

Sunday, December 11, 2011

$2 Million Verdict to Plastic Compounder Suffering Mesothelioma - Call For Asbestos Ban

This week a New York state jury awarded $2 Million dolars to a former plastic compounder who was exposed to asbestos fiber and was subsequently diagnosed with mesothelioma. The employee worked in a plastic factory in 1966 and poured raw asbestos fibers to make molds. Some of the asbestos fiber was supplied by Hedman Resources Ltd., a Canadian asbestos mining company.

Mesothelioma is a rare and fatal cancer caused by exposure to asbestos fiber. Hundreds of thousands of lawsuits have been filed against the asbestos manufacturers and producers since the early 1970's in the US seeking benefits. Despite the continuing epidemic of asbestos related disease and massive weight of scientific evidence of the deadly carcinogenic qualities of asbestos, Canada continues to mine asbestos fiber and sell it worldwide. It is estimated that that 107,000 workers die annually from asbestos-related diseases.

To this day there is no asbestos ban in effect in the US. The Canadian asbestos industry still exports asbestos fiber used in the US and other parts of the world. On Thursday, The Asbestos Disease Awareness Organization (ADAO) which combines education, advocacy, and community to provide a unified voice for asbestos victims, today announced with the Canadian Voices of Asbestos Victims the release of the North American Declaration to Eliminate Asbestos-Related Diseases.

The Declaration initiates an enhanced collaboration between the U.S. and Canadian asbestos disease victims and their families, public health organizations, environmental non-governmental organizations, occupational safety and health (OSH) specialists, and politicians. While ADAO has been individually partnering with Canadian counterparts for education, advocacy, and community initiatives for several years now, the North American Declaration for the Elimination of Asbestos-Related Diseases unifies the demands voiced by American and Canadian asbestos victims to eliminate asbestos-caused diseases.


To sign the petition to ban asbestos fiber click here: Petition to Ban Asbestos Fiber 
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For over 3 decades the Law Offices of Jon L. Gelman  1.973.696.7900  jon@gelmans.com have been representing injured workers and their families who have suffered occupational accidents and illnesses. 

Cilantro Recalled for Possible Salmonella Health Risk

Pacific International Marketing (“Pacific”) is working with the Food and Drug Administration (“FDA”) and California Department of Public Health to coordinate a recall of Cilantro for potential contamination with Salmonella. FDA has advised that a sample of Pacific Cilantro has tested positive for Salmonella. A total of 6,141 cartons of Cilantro are being recalled.

Salmonella is an organism which can cause serious and sometimes fatal infections in young children, frail or elderly people, and others with weakened immune systems. Healthy persons infected with Salmonella often experience fever, diarrhea (which may be bloody), nausea, vomiting and abdominal pain. In rare circumstances, infection with Salmonella can result in the organism getting into the bloodstream and producing more severe illnesses such as arterial infections (i.e., infected aneurysms), endocarditis and arthritis.

The product is distributed in Pacific International Marketing cartons of 60 bunches, 30 bunches and 20- 3 bunched sleeves. The product is bunched cilantro with “Pacific” on the twist tie and the UPC code, which is 33383 80104. The UPC code for sleeves is 40695 80104. The product was distributed in California, Arizona, Massachusetts, New Jersey, Indiana, South Carolina, and Missouri through retailers. Consumers should return cilantro purchased after November 16th but before December 10th. The carton codes are as follows:

19 78
111411
19 78
111811
19 84
111811
19 94
111811
19 78
111911
19 84
111911
19 94
111911
19 78

No Illnesses have been reported to date. The recall is the result of a positive FDA Salmonella test taken at the distributor level. The product originates from Salt River Farming, located in the Phoenix, Arizona area. The source of contamination is unknown.

Consumers who have purchased the cilantro are urged to return it to the place of purchase for a full refund. Customers can also contact Pacific International Marketing at 831 755 1398 from 8:00 am PST to 5:00 pm PST Monday through Friday or by mail to: P.O. Box 3737, Salinas, CA 93912-3737
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For over 3 decades the Law Offices of Jon L. Gelman  1.973.696.7900  jon@gelmans.com have been representing injured workers and their families who have suffered occupational accidents and illnesses.

Friday, December 9, 2011

NJ Public Employee Pensions Headed for Major Changes

S3123 Replaces TPAF, PERS, PFRS and SPRS accidental disability benefits with reduced work-related disability benefit; modifies JRS disability benefit. 


12/1/2011 Introduced in the Senate, Referred to Senate State Government, Wagering, Tourism & Historic Preservation Committee
12/9/2011 Reviewed by the Pension and Health Benefits Commission Recommend to enact with changes:


The Commission supports enactment of the bill with suggested modifications: 1) an increase in the work-related disability benefit of 40% should be considered for the most traumatic injuries that result in total disability; 2) a description of the level of medical coverage available in each system would be beneficial; 3) a monitoring of a potential shift to Workers Compensation awards would help identify any unintended costs that might result, and; 4) a change from the words “mental retardation” to “intellectual disability” would appear to be consistent with P.L.2010, c.50.


Read The Pending Legislation: S-3123

"This bill replaces the accidental disability benefit available to members of the Teachers’ Pension and Annuity Fund (TPAF), the Public Employees’ Retirement System (PERS), the Police and Firemen’s Retirement System (PFRS) and the State Police Retirement System (SPRS) with a new work-related disability benefit that is the same as the TPAF, PERS, PFRS and SPRS ordinary disability benefit of 1½% of compensation for each year of service but no less than 40% of compensation.

"In order to qualify for a work-related disability benefit, the member must receive a workers’ compensation award of permanent disability. The requirement for a medical examination may be waived when the Division of Workers’ Compensation in the Department of Labor and Workforce Development has determined that the member is 100% totally and permanently disabled.


Misrepresentation on Pre-Employment Application Not A Bar to Benefits

Brody J. Ockander
The Nebraska Supreme Court has ruled that an employee's misrepresentation on a pre-employment application did not act a defense to bar workers' compensation benefits. The employee failed to include all his prior injuries on the application.

Bassinger v. Nebraska Heart Hospital, (NE. 2011) Decided December 9, 2011.

Claimant's Attorney: Brody J. Ockander or Rehm, Bennett & Moore, P.C. L.L.O

"....we affirmed the Workers’ Compensation Court’s finding that the evidence was insufficient to show a causal connection between the driver’s misrepresentations and this subsequent accident."

"....We have previously explained that workers’ compensation laws reflect a compromise between employers and employees. Under these statutes, employees give up the complete compensation that they might recover under tort law in exchange for no-fault benefits that they quickly receive for most economic losses from work-related injuries. So we have consistently held that the act’s intent is to provide benefits for employees who are injured on the job, and we will broadly construe the act to accomplish this beneficent purpose."

read more...


The Times They Are Changing

This year fall athletics have seem to be taking center field reflecting the problems of an inadequate workers' compensation system. The issues of safety, compensatibility, venue, benefit rates and medical care, are symptoms of a greater problem and are becoming a catalyst for change.

Today, David DePaolo, the President & CEO of WorkCompCentral, has editorialized of the lack of the ability of the workers' compensation system to meet present needs is now a major concern and that generally workers' compensation is just no longer relevant.

Click here to read his recent post: Professional Sports and the Relevancy of Comp
"I see all of this as evidence that things are changing, and that the pace of change is quickening. Obviously such things don't change overnight, but I would wager that the work comp world is going to be a much different landscape in 20 years, or even 10."

Related articles

Thursday, December 8, 2011

US Department of Labor continues to cite beauty salons and manufacturers for formaldehyde exposure from hair smoothing products

OSHA urges salon owners to implement protective measures
The U.S. Department of Labor's Occupational Safety and Health Administration is continuing its efforts to protect workers from the dangers of formaldehyde exposure.

In November, OSHA issued citations and fines to two salons for failing to implement precautions to protect workers from exposure to formaldehyde when using certain hair-smoothing products. Formaldehyde can irritate the eyes and nose; can cause allergic reactions of the skin, eyes and lungs; and is a cancer hazard. Salon owners who decide to use products that may contain or release formaldehyde must follow the requirements of OSHA's formaldehyde and hazard communication standards to keep workers safe.

"We want to make sure that salon owners are aware that if they use these products, they have to implement protective measures such as air monitoring and training," said Assistant Secretary of Labor for OSHA Dr. David Michaels. "What is very troubling to the agency is that some of these products clearly expose workers to formaldehyde even when the label states they are ‘formaldehyde free.'"

OSHA continues to respond to complaints and referrals of formaldehyde exposure in salons, beauty schools and manufacturing facilities. To date in calendar year 2011, federal OSHA has issued citations to 23 salon owners and beauty schools in Connecticut, Massachusetts, Pennsylvania, Florida, Illinois, New York, New Jersey and Ohio, with fines ranging up to $17,500 for failing to protect workers from overexposure and potential exposure to formaldehyde.

Some of these violations include failing to communicate the hazards of exposure to formaldehyde, provide needed protective equipment and test air levels. The requirements of OSHA's formaldehyde standard can be viewed at http://s.dol.gov/KW. In three separate salons, OSHA's tests showed that workers were exposed to formaldehyde levels above the agency's 15-minute short-term exposure limit, which is 2.0 parts of formaldehyde per million parts of air. In one case, OSHA determined that a hair stylist was exposed to more than five times the allowable amount with an actual exposure reading of 10.12 ppm. In another instance, the exposure reading was 4.73 ppm.

OSHA also has issued citations to two Florida manufacturers and two Florida-based distributors of hair products containing formaldehyde for failing to protect their own workers from possible formaldehyde exposure as well as to communicate the hazards of formaldehyde exposure to salons, stylists and consumers. The violations of OSHA's formaldehyde and hazard communication standards include failing to list formaldehyde as a hazardous ingredient on the material safety data sheet, the hazard warning sheet provided to users such as salon owners and stylists; include proper hazard warnings on product labels; and list the health effects of formaldehyde exposure on the MSDS. Labels must include ingredient and health hazard warning information, and the MSDS must provide users with information on the chemicals in a product, the hazards to workers and how to use the product safely.

"The best way to control exposure to formaldehyde is to use products that do not contain formaldehyde. Salons should check the label or product information to make sure it does not list formaldehyde, formalin, methylene glycol or any of the other names for formaldehyde," said Michaels. "If salon owners decide to use products that contain or release formaldehyde, then they must follow a number of protective practices — including air monitoring, worker training and, if levels are over OSHA limits, good ventilation or respirators."

OSHA already has conducted significant outreach to salons, beauty schools and manufacturers to alert them about the hazards of hair smoothing products and the requirements of OSHA's standards. In late September, OSHA issued a second hazard alert to hair salon owners and workers about potential formaldehyde exposure from working with certain hair smoothing and straightening products, which can be viewed at http://www.osha.gov/SLTC/formaldehyde/hazard_alert.html. This alert, which revised the initial alert issued last spring, was prompted by the results of additional agency inspections, a warning letter issued by the U.S. Food and Drug Administration, and factually incorrect information recently sent to salons by Brazilian Blowout, a company that manufactures hair products.

In response to the Aug. 24 letter sent by Brazilian Blowout to salon owners claiming that all OSHA air tests performed on the company's Brazilian Blowout Professional Acai Smoothing Solution yielded results below OSHA's standard for exposure, the agency sent a letter to the company refuting that assertion. OSHA's letter can be viewed at http://www.osha.gov/SLTC/formaldehyde/brazilian_blowout_letter.pdf*.

For more information on formaldehyde exposure in salons, visit http://www.osha.gov/SLTC/hairsalons/index.html.

For small businesses in all states across the country, OSHA's On-site Consultation Program offers free and confidential advice for employers seeking help to identify and prevent job hazards or improve their safety and health management systems. In fiscal year 2010, the program provided free assistance to more than 30,000 small businesses covering more than 1.5 million workers across the nation. For more information, visit http://www.osha.gov/dcsp/smallbusiness/consult.html.

"These consultation services are separate from enforcement and do not result in penalties or citations," said Michaels. "Consultants from state agencies or universities work with employers to identify workplace hazards, provide advice on compliance with OSHA standards, and assist in establishing safety and health management systems."

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA's role is to ensure these conditions for America's working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit http://www.osha.gov.


The Workers' Compensation Medicare Set-aside Portal (WCMSAP)

The Workers' Compensation Medicare Set-aside Portal (WCMSAP) application has gone "live" and is now available for users. Prior to attempting to register, you should read the New Registration section of the User guide. The URL for the WCMSAP may be found under the "Related Links Outside CMS," on the WCMSAP section page. The WCMSAP User Guide may be found in the "Reference Material" section of the WCMSAP application.

Instructions on how to register for the Computer Based Training (CBTs) may be found in the "Workers' Compensation Medicare Set-aside Portal (WCMSAP) Computer Based Training (CBT) document under the "Downloads Links" on the WCMSAP section page (click the "How to Register for WCMSAP Computer Based Training (CBT) Modules hyperlink.") These courses are designed to assist submitters of Workers' Compensation Medicare Set-Aside Arrangements (WCMSAs) with the registration and use of the WCMSAP.


This site provides an interface for entry of Workers' Compensation Medicare Set-Aside Arrangements (WCMSA) proposals. Attorneys, Medicare beneficiaries, claimants, insurance carriers and WCMSA vendors may use this site to enter the case information directly. The site also provides attorneys, Medicare beneficiaries, claimants, insurance carriers, and WCMSA vendors with the ability to track their submitted cases and the statuses without inquiry to the Coordination of Benefits Contractor (COBC) or the Centers for Medicare & Medicaid Services (CMS).

Wednesday, December 7, 2011

It is Time To Do The Right Thing



A recent decision by the NJ Courts illustrates the weaknesses of the present workers' compensation system when dealing with occupational exposures. The social remedial system called workers' compensation was designed before recognition of the compensability occupational illnesses. 


The initial system was to furnish benefits without fault and in a summary and remedial fashion to injured workers. For the most part, that system worked from 1911 until the 1950's when the legacy of asbestos, used in World War II to insulate ships, came back to haunt the American worker by the manifestation of latent asbestos diseases including mesothelioma, a rare and fatal cancer.


Recently a NJ court denied the compensability of an asbestos related condition based upon the claimant's own knowledge of the causal relationship of an asbestos related medical condition and his own occupational exposure. Additional the court held that medical expert testimony was not required to support a motion to dismiss for the failure to meet the requirement of the statute of limitations.


In the 1970's the US Department of Labor was concerned with the same weaknesses and unavailability of benefits. The US DOL commissioned the Environmental Sciences Center at the Mt. Sinai School of Medicine under the leadership of the late Irving J. Selikoff, MD to study and analyze the problem. The weaknesses of the system, even though less dramatic than present, led to the conclusion that the workers' compensation systems just didn't work for occupational disease conditions. Additionally, costs for medical treatment of asbestos related conditions were being shifted at an estimated $10 Billion dollars, at that time, to the Medicare system.


Dr. Selikoff studied two major cohorts in analyzing the inadequacies of the  workers' compensation system. One group were insulators, and another group were 933 former plant workers at The Union Asbestos and Rubber Company of Paterson NJ who worked in war production between 1942 and 1944. Strikingly, the dormant medical conditions caused by the occupational exposure to asbestos fiber, and the latent condition of the disease for decades, caused major problems in filing claims. Those included the statute of limitation and diagnosis by medical professionals. Some professional were Grade B readers certified by The National Institute of Occupational Safety and Health (NIOSH) and even those experts in the field were challenged in Court. 


The report, that was submitted to the US Congress, concluded that the failure of the workers' compensation system to provide benefits to many who were exposed to asbestos, and the inadequate benefits to others. Their low rates were based on extremely low wages at the time of exposure. For these and other reasons, the report concluded, that the workers' compensation had failed to adequately provide treatment and other benefits. Since workers' compensation was not meeting the needs, claimants flocked to the tort system in epidemic proportion resulting in "the longest running tort" in American judicial history, "asbestos litigation." That litigation continues to this day. Even scores of companies that have reorganized under bankruptcy to avoid liability exposure are now providing benefits under a claims procedure.


While the NJ Court's decision may have been on point with regard to the Rules adopted to govern workers' compensation cases, it is time to revisit whether the Rules are too strict and defeat the social and remedial goals of the system that was envisioned by the creators in 1911. On a global scale, the failure of the workers' compensation to provide benefits results in the inequitable shift of responsibility to the general taxpayer. 


To meet the needs of those exposed occupationally, Congress needs to act now upon a global and unified solution. One path to the goal of correcting inequities of the system is to advance a system of universal medical care.  The US government must do the right thing. The medical delivery system for occupational diseases must come under a national universal medical care program. Additionally Congress must meet its moral and social responsibility and finally ban asbestos use in the US once and for all.


Read the decision: Russo v. Hoboken Board of Education, A-1861-10T4 (App. Div. November 29, 2011)

"...the WCJ found that he knew asbestos could cause lung disease and other medical problems as early as "the 70s." She noted that Russo "made complaints about the exposures to harmful substances . . . while still teaching." The WCJ further found that Russo "was well aware of the potential harmful effects of asbestos exposure," and she rejected his claim that the petition was not time-barred "because he was never informed by any of his treating physicians that his cancer was related to this exposure."

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For over 3 decades the Law Offices of Jon L. Gelman  1.973.696.7900  jon@gelmans.com have been representing injured workers and their families who have suffered occupational accidents and illnesses.

Gingrich: Workers' Compensation is History

The NY Times reports today that presidential hopeful, Newt Gingrich is taking the lead in the Iowa state Caucus poles. Over the past years, during his absence from Washington politics, Gingrich has been involved in lobbying for change in the nation's medical delivery system. 

His statement before the National Governor's Conference in 2010 reflects that he will definitely advocate for the abolishment of the patchwork of State workers' compensation laws:

"Replace litigation-focused workers compensation with a rehabilitation and capabilities focused program that maximizes the speed of helping people medically, and focuses on retraining and focusing on what they can do rather than on what they can't do."


Read more about his increase in popularity:
In Iowa, Gingrich Is Gaining Favor, New Poll Shows
"Newt Gingrich enters the final four weeks of campaigning before the Iowa caucuses with Republican voters in the state viewing him as more prepared to be president than Mitt Romney, more attuned to their concerns and just as capable of defeating President Obama, according to the latest New York Times/CBS News Poll." read more.......