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

Thursday, March 29, 2012

Zadroga Benefits Proposed By NIOSH for Some Cancers

A scientific committee has released a draft report recommending [Zadroga Act] compensation for 9-11 first responders. Those cancers include: esophagus, stomach, colon, liver, skin, lungs, kidneys and others.


See March 22, 2012 Master DRAFT for WTC STAC Committee Review
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For over 3 decades the Law Offices of Jon L. Gelman1.973.696.7900 jon@gelmans.com have been representing injured workers and their families who have suffered work related accident and injuries.

Related articles

Wednesday, March 28, 2012

AIG Exits Workers Compensation As Comp Medical Issues Grow

AIG has written, in what maybe, the first of many obituaries for the nation's patchwork of workers' compensation programs. The third largest excess workers' compensation insurance carrier, has announced that it is leaving the market because of instability in medical costs and the advent of national health care.

To read more click here:  BestWeek: Health Care Reforms, Medicare Spending Squeezing Excess Workers’ Comp Line 

Tuesday, March 27, 2012

Cell Phone Hearing Use Results in $1.2 Million in Compensation Benefits

The use of a Blackberry cellphone that reportedly caused tinnitus has resulted in the payment of $1.2 Million in workers' compensation benefits

Cell phone injuries have been linked medically by published studies. "The authors warn users of cell phones to look out for ear symptoms such as ear warmth, ear fullness, and ringing in the ears (tinnitus) as early warning signs of an auditory abnormality."

Tinnitus describes a condition of "ringing in the ears." Individuals often describe the sound as a hum, buzz, roar, ring, or whistle. The predominant cause of tinnitus is long-term exposure to high sound levels, though it can also be caused by short-term exposure to very high sound levels, such as gunshots. Non-acoustic events, such as a blow to the head, dietary issues, stress, jaw joint disorders, debris on the eardrum, or prolonged use of aspirin may also cause tinnitus.The inner ear or neural system produces the actual sound.

Exposure to excessive noise in the workplace has been recognized as a major health hazard, one that can impair not only a person's hearing, but also his physical and mental well-being. workplace first affects the ability to hear high-frequency or high-pitched sounds.  Workers suffering from noise-induced hearing loss may also experience continual ringing in the ears, called "tinnitus".  In addition, workers who are exposed to noise sometimes complain of nervousness, sleeplessness and fatigue.

Other cases have also been reported for workers' compensation benefits as a result of the use of a telephone. An injured worker was employed at New Jersey Manufacturers Insurance Company for approximately six years as a customer service representative who spoke with customers on the telephone.  A pre-employment physical, which included a hearing test, demonstrates no hearing difficulties or other medical issues.  During the course of her employment, renovations were conducted at the employer's office and she testified that she heard loud drilling and that her desk vibrated and she had difficulty hearing customers on the telephone.  While medical evaluations reflected no statutory hearing loss pursuant to the form of the occupational Hearing Loss Act, the expert physician did recognize a 5% loss due to tinnitus.  The trial judge concluded that the tinnitus disability was significant and distracted from the former efficiency of her ears and distracted from her ordinary pursuits of life.  The reviewing Court held that tinnitus and supported by the appropriate proofs was a permanent partial disability and was compensable irrespective of whether the employee also suffers a hearing loss compensable under the OHLA.  Schorpp-Replogle v. New Jersey Manufacturers Insurance Company, 395 N.J.Super. 277, 928 A.2d 885 (App.  Div. 2007).
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For over 3 decades the Law Offices of Jon L. Gelman1.973.696.7900 jon@gelmans.com have been representing injured workers and their families who have suffered work related accident and injuries.

Monday, March 26, 2012

Congress to Hold Hearings on Toxic Cosmetics

The Subcommittee on Health has scheduled a hearing on Tuesday, March 27, 2012, at 10:15 a.m. in room 2322 of the Rayburn House Office Building. The title of the hearing is “Examining the Current State of Cosmetics.” The hearings follow disclosure that various hair products contain formaldehyde, a carcinogen, and that some lipstick contains lead, a neurotoxic substance.

Witness List:
Panel One:

Michael M. Landa, J.D.
Director
Center for Food Safety and Applied Nutrition (CFSAN)
U.S. Food and Drug Administration
Witness Testimony (Truth in Testimony)

Panel Two:
Halyna Breslawec, Ph.D.
Chief Scientist and Executive Vice President for Science
The Personal Care Products Council
Witness Testimony (Truth in Testimony)

Peter Barton Hutt, J.D.
Senior Counsel
Covington and Burling, LLP
Witness Testimony (Truth in Testimony)

Ms. Curran Dandurand
Co-Founder and Chief Executive Officer
Jack Black Skincare
Witness Testimony (Truth in Testimony)

Ms. Debbie May
President and Chief Executive Officer
Wholesale Supplies Plus
Witness Testimony

Michael J. DiBartolomeis, Ph.D, CIH
Chief Occupational Lead
Poisoning Prevention Program & California
Safe Cosmetics Program
California Department of Public Health

Saturday, March 24, 2012

Federal Appeals Court Allows Case to Go Forward Against Zurich For Obstruction Of Workers Compensation Claim

The Federal 8th Circuit Court of Appeals has ruled that an employee may be permitted to go forward against an employer and its workers' compensation insurer, Zurich American Insurance Company for the intentional obstruction of a claim. The insurance company, despite conflicting statements, denied the compensability of a claim. 


The Court stated:
"From the  outset of Nunn’s  workers’  compensation  case,  Zurich’s  claims representative Tara Draves-Blandin and its attorneys Kristin B. Maland and Patrick T. Grove understood that if Gibson called the meeting for business purposes, Nunn’s claim was compensable."
***

"Viewing the facts most favorably to Nunn, there are genuine issues of material fact whether Noodles intentionally obstructed her receipt of workers’ compensation benefits through Gibson’s fabrications and its 17-month delay in payment."



Nunn v Noodles & Company; Zurich American Insurance Company, No. 11-1531 (8th Cir Ct 2012) Decided March 22, 2012 __F.3d__, 2012 WL 952759 (C.A.8 Minn.)

Wednesday, March 21, 2012

Employer Assessed $14,947 Counsel Fee For Wrongful Termination

A NJ administrative court awarded back pay to a wrongfully terminated employee and counsel fees to his lawyer as a result of being terminated by his employer for filing a workers' compensation claim. 

"Based upon the applicable law, I CONCLUDE that the uncontested facts as set forth by petitioner establish a prima facie case of retaliation pursuant to N.J.S.A. 34:15-39.1 because they show that Hatley 1) made a claim for Workers' Compensation and 2) he was discharged in retaliation for making that claim. Morris v. Siemens, 928 F. Supp. 486, 493 (D.N.J. 1996), reargument denied, 938 F. Supp. 277 (1996). The employer did not come forward with any legitimate business reason for firing him so it may be inferred and I CONCLUDE, from the circumstances in this case that the two events were causally connected, Hatley's claim was the cause of his discharge.

****

"Accordingly, it is ORDERED that respondent Perfection Contracting, Inc. pay petitioner Hatley back wages in the amount of $26,356.72 because it wrongfully discharged petitioner from his position in violation of N.J.S.A. 34:15-39.1.

IT IS FURTHER ORDERED that respondent Perfection Contracting, Inc. shall also pay legal fees to the law firm of Lawrie, Cozier and Vivenzio in the amount of $14,947.50 incurred by the petitioner as a result of respondent's wrongful termination and statutory violations.

Hatley v Perfection Contracting, Inc., 2012 WL 918966 (N.J. Adm.) Decided March 5, 2012.

US Supreme Court Hears Arguments on The Entitlement of Children's Benefits

The US Supreme Court, in a matter that may have widespread impact on workers' compensation dependency benefits, heard oral arguments in Astrue v Capato concerning whether a child conceived after the death of a biological parent is eligible for survivor benefits under Title II of the Social Security Act [42 USC § 401 et seq.].

Justica report on Circuit Court Split: 
"The US Court of Appeals for the Third Circuit ruled [opinion] that the Social Security Act must provide for claimants' children who were born after their death. Attorney for the Commissioner of Social Security appealed, arguing that the court must defer to state intestacy law, regardless of whether the Social Security Act's definition of child is ambiguous.

Health Benefits, US Supreme Court and Workers Compensation

U.S. Supreme Court building.U.S. Supreme Court building.
(Photo credit: Wikipedia)

On Monday, the US Supreme Court will hear oral arguments concerning the validity of the 2010 Patient Protection and Affordable Care Act. Whatever the US Supreme Court decides in the pending matters, the nation's patchwork of workers' compensation systems will ultimately feel the impact. The implementation of the Act will ultimately have far reaching consequences of the overall operation of both the delivery of workers' compensation medical benefits and the ultimate assessment/apportionment of permanent disability.

Workers' Compensation systems have been struggling with the delivery of medical benefits. As more cases are denied initial compensability determinations, and alterate medical care is sought for the prevention, identification and treatment of underlying, co-existing and pre-existing medical conditions will be even more significant issues  in workers' compensation matters.

Thompson-Reuters News & Insight identifies some of the issues the US Supreme Court will consider:


"* Adult children remaining on their parents' insurance coverage through the age of 26.

* An end to lifetime limits on the dollar value of benefits available to people with serious medical conditions that can lead to astronomical treatment costs.

* Preventive healthcare benefits including free coverage for mammograms and birth control.

* For Medicare beneficiaries stuck in the prescription drug benefit coverage gap known as the "doughnut hole," a 50 percent discount on covered brand name drugs and 14 percent savings on generic drugs.

* A requirement that insurance companies justify unreasonably large healthcare premium increases.

* Tax credits for small employers with no more than 25 employees and average annual wages of less than $50,000 that provide health insurance for employees.

* Temporary insurance coverage programs for retirees who are over age 55 but not eligible for Medicare.

* Temporary insurance coverage for individuals with pre-existing medical conditions who have been uninsured for at least six months.

* A requirement that health plans report the proportion of premium dollars spent on clinical services, quality, and other costs, and provide rebates to consumers if the share of the premium spent on clinical services and quality is less than 85 percent in the large group market and 80 percent in the individual and small group markets.

National Federation of Independent Business v. Sebelius, No. 11-393; U.S. Department of Health and Human Services v. Florida, No. 11-398; and Florida v. Department of Health and Human Services, No. 11-400

Related articles

US Supreme Court Rules When Disability Commences in Longshore Case

Sonia Sotomayor, U.S. Supreme Court justiceSonia Sotomayor, U.S. Supreme Court justice
(Photo credit: Wikipedia)

The US Supreme Court ruled that an employee must be "newly awarded compensation" in a Longshore and Harbor Workers Act (LHWCA) claim when he was injured and not when the award was entered. This determination sets the time frame for the calculation of benefits.


Justica reports:


"In an opinion authored by Justice Sonia Sotomayor, the court held that in order to support an administrable rule "that will result in equal treatment of similarly situated beneficiaries and avoids gamesman ship in the claims process," an employee must be "'newly awarded compensation' when he first becomes disabled and thereby becomes statutorily entitled to benefits under the Act, no matter whether, or when, a compensation order issues on his behalf." The court further concluded that:
'[A]pplying the national average weekly wage for the fiscal year in which an employee becomes disabled advances the LHWCA's purpose to compensate disability, defined as "incapacity because of injury to earn the wages which the employee was receiving at the time of injury." Just as the LHWCA takes "the average weekly wage of the injured employee at the time of the injury" as the "basis upon which to compute compensation" it is logical to apply the national average weekly wage for the same point in time.
Roberts v. Sea-Land Services

Tuesday, March 20, 2012

Workers' Compensation: Are Second Injury Funds Going to be History Soon?

As the Second Injury Fund debate in Missouri becomes more heated,  one must consider the underlying issues challenging its existence. Whatever the outcome, injured workers being denied benefits ordered by judgment should not he held hostage to political motivations.

See Workers' Compensation: Are Second Injury Funds Going to be History Soon?

Monday, March 19, 2012

OSHA proposes $121,000 in fines to Dollar Tree Stores for repeat workplace safety hazards at Newark, NJ store

The U.S. Department of Labor's Occupational Safety and Health Administration has cited Chesapeake, Va.-based Dollar Tree Stores for two repeat safety violations at its Newark location. OSHA opened an inspection in response to a complaint alleging blocked fire exits and the unsafe storage of items in stock. Proposed penalties total $121,000.

The first violation is permitting exit routes to be obstructed by boxes and product carts. OSHA previously cited Dollar Tree Stores for the same violation at its Bergenfield and Dover, N.J., locations in 2010 and 2008, respectively. The second violation is storing materials in an unsafe manner. OSHA cited this violation at the company's Commack, N.Y.; Watchung, N.J.; and Dover, N.J., locations in 2011, 2010 and 2008, respectively. A repeat violation exists when an employer previously has been cited for the same or a similar violation of a standard, regulation, rule or order at any other facility in federal enforcement states within the last five years.

"These violations are often found at retail stores and can pose a serious risk to workers," said Kris Hoffman, director of OSHA's Parsippany Area Office. "It is imperative that Dollar Tree Stores evaluate all of its locations for these and other potential workplace hazards, and take the appropriate steps to protect workers."

The citations can be viewed at http://www.osha.gov/ooc/citations/DollarTreeStoresInc_315793539_0312_12.pdf*.

"The company can prevent these types of hazards by establishing an injury and illness prevention program in which it works with its employees to identify and eliminate hazardous conditions," said Robert Kulick, OSHA's regional administrator in New York.

Dollar Tree Stores, which employs nine people at the Newark store, 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.

To ask questions, obtain compliance assistance, file a complaint, or report workplace hospitalizations, fatalities or situations posing imminent danger to workers, the public should call OSHA's toll-free hotline at 800-321-OSHA (6742) or the agency's Parsippany Area Office at 973-263-1003.

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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.

National Asbestos Awareness Week - April 1 to 7 2012

Max Baucus, U.S. Senator from Montana.Image via Wikipedia
US Senator Max Baucus (MT)

The US Senate has passed a resolution designating April 1- 7, 2012 as National Asbestos Awareness Week. Introduced by US Senator Max Baucus (MT), the mesure received US Senate approval the same day.

Co-Sponsors were:
Sen Boxer, Barbara [CA] - 3/6/2012 
Sen Durbin, Richard [IL] - 3/6/2012 
Sen Feinstein, Dianne [CA] - 3/6/2012 
Sen Isakson, Johnny [GA] - 3/6/2012 
Sen Murray, Patty [WA] - 3/6/2012 
Sen Reid, Harry [NV] - 3/6/2012 
Sen Tester, Jon [MT] - 3/6/2012



   A resolution (S. Res. 389) designating the first week of April 2012 as ``National Asbestos Awareness Week.''
   There being no objection, the Senate proceeded to consider the resolution.
   Mr. DURBIN. Mr. President, I ask unanimous consent that the resolution be agreed to, the preamble be agreed to, the motions to reconsider be laid upon the table, with no intervening action or debate, and any statements be printed in the Record.
   The PRESIDING OFFICER. Without objection, it is so ordered.
   The resolution (S. Res. 389) was agreed to.
   The preamble was agreed to.
   The resolution, with its preamble, reads as follows:
   S. Res. 389
   Whereas dangerous asbestos fibers are invisible and cannot be smelled or tasted;
   Whereas the inhalation of airborne asbestos fibers can cause significant damage;
   Whereas asbestos fibers can cause cancer such as mesothelioma, asbestosis, and other health problems;
   Whereas asbestos-related diseases can take 10 to 50 years to present themselves;
   Whereas the expected survival time for those diagnosed with mesothelioma is between 6 and 24 months;
   Whereas, generally, little is known about late-stage treatment of asbestos-related diseases, and there is no cure for such diseases;
   Whereas early detection of asbestos-related diseases may give some patients increased treatment options and might improve their prognoses;
   Whereas the United States has substantially reduced its consumption of asbestos, yet continues to consume almost 1,100 metric tons of the fibrous mineral for use in certain products throughout the United States;
   Whereas asbestos-related diseases have killed thousands of people in the United States;
   Whereas exposure to asbestos continues, but safety and prevention of asbestos exposure already has significantly reduced the incidence of asbestos-related diseases and can further reduce the incidence of such diseases;
   Whereas asbestos has been a cause of occupational cancer;
   Whereas thousands of workers in the United States face significant asbestos exposure;
   Whereas thousands of people in the United States die from asbestos-related diseases every year;
   Whereas a significant percentage of all asbestos-related disease victims were exposed to asbestos on naval ships and in shipyards;
   Whereas asbestos was used in the construction of a significant number of office buildings and public facilities built before 1975;
   Whereas people in the small community of Libby, Montana suffer from asbestos-related diseases, including mesothelioma, at a significantly higher rate than people in the United States as a whole; and
   Whereas the establishment of a ``National Asbestos Awareness Week'' will raise public awareness about the prevalence of asbestos-related diseases and the dangers of asbestos exposure: Now, therefore, be it
    Resolved, That the Senate--
    (1) designates the first week of April 2012 as ``National Asbestos Awareness Week'';
    (2) urges the Surgeon General to warn and educate people about the public health issue of asbestos exposure, which may be hazardous to their health; and
    (3) respectfully requests that the Secretary of the Senate transmit a copy of this resolution to the Office of the Surgeon General.
.....
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. 


Thursday, March 15, 2012

John Sciortino, 52

John Sciortino passed away suddenly, at much too young an age, Monday evening at his home in Penfield. John was born in Buffalo and grew up in Schenectady where he graduated from Mohonasen High School in 1977. John is deeply mourned by the many he so profoundly touched. He was a man of many varied and diverse passions and talents. He loved life and lived it large in every way. He possessed the rare qualities of a good listener and great storyteller. He was funny. Above all, he was a loving husband to Michele and a doting father to his teenage daughter Andrea.

He loved music, particularly jazz, and was accomplished with the trumpet and piano. He never missed the Rochester Jazz Festival. He was an avid fan and supporter of the Gregory Kunde Chorale, headed by his good friend and world renowned tenor, Gregory Kunde.

He loved sports of every kind and was always a familiar figure at Frontier Field rooting on the Red Wings or the many teams who completed at the Blue Cross Arena. Through thick and thin, and last year very thick, the Boston Bruins were his team and to his tremendous delight, finally brought home the Stanley Cup.

His home in Cape Cod was his refuge where he escaped to enjoy the pleasures of his family. He was an avid fisherman and boater.

John served tirelessly on the Boards to advance the needs of others through his service with many not-for-profit organizations. At St. Joseph's Catholic Church of Penfield he was chair of the Parish Pastoral Council and led an involved and successful expansion project. He is past Chairman of the Board of Governors for Seniorsfirst Communities & Services. He is a member of Wakan-Hubbard Lodge No. 154 F.&A.M. He served for almost 25 years on the Boards at Valley Manor and Kirkhaven Nursing Home. 

His recent appointment to the Board of Trustees at his alma mater, Union College, capped a lifetime of study, financial support and service to the institution that provided him invaluable guidance and purpose.

After graduating from Union, John earned his law degree from Albany Law School in 1986 and was a founding partner in the law firm of Segar & Sciortino. His distinguished service in the bar was dedicated solely to advancing the needs of injured workers. At the time of his death, he was President of the New York State Injured Workers' Bar Association, a founding member of the Board of Governors of the New York Injured Workers' Alliance and founding member and former State Co-Chair of the New York Workers' Compensation Alliance. He was a member of the Board of Directors of the Triangle Shirtwaist Factory Fire Memorial, a non-for-profit organization devoted to commemorating the early 20th century sweatshop conflagration which provided the impetus for the enactment of New York State's Workers' Compensation Law. Each year, under John's guidance, more than a dozen Triangle Scholarships are awarded to children of permanently disabled workers attending college across New York State.

Described as "one of the foremost advocates for Workers' Compensation reform", John was invited in 2006 to participate as a panelist at a NYS Senate Workers' Compensation Reform Round Table to offer insight into ways to improve the Workers' Compensation system. In 2007, John served as an advisor to the New York State Department of Insurance Task Force appointed to make recommendations to improve the resolution process for disputed Workers' Compensation cases. 

In 2008, he was awarded a Clara Lemlich Public Service Award for his outspoken efforts on 
behalf of the rights of injured workers in New York State. The recognition is named in honor of the noted 20th century sweatshop labor activist who inspired a massive strike for the New York City garment workers in 1909 which lead to improved working conditions in the garment industry. John has been annually recognized by Super Lawyers. Last weekend he was inducted as a Fellow of the College of Workers' Compensation Lawyers

John was truly one of a kind - bigger than life. He lived to help and serve others. He was - in the most special way - heaven sent and loved by all. He is survived by his wife of 25 years, Michele, daughter Andrea, mother Hermine Sciortino, sister Linda DiGiralamo, sister-in-law and brother-in-law David and Maureen McDaniel, mother-in-law Shirley Hudson, Uncle/Aunt Dominick and Kathleen Sciortino, Aunt Isabel Sciortino, nieces Nicole DiGiralamo and Ismay English, nephew Matthew Hudson and several cousins. He is also survived by his best friend and law partner, Stephen A. Segar and family. He was predeceased by his loving father Anthony Sciortino and dear friend - brother-in-law Mark Hudson.

Friends may call Friday, 2-4, 6-8 PM at the funeral chapel (2305 Monroe Ave.). Friends are invited to bring a written memory or photo for the family's Memory Book. A Funeral Mass will be held Saturday, 1 PM at St. Joseph's Church, 43 Gebhardt Rd., Penfield. Interment at Oakwood Cemetery. Contributions in John's name may be made to Union College, 807 Union Street, Schenectady, New York 12308. To share a memory or photo of John visit www.anthonychapels.com.

Wednesday, March 14, 2012

OSHA finds Metro-North Commuter Railroad retaliated against injured employee

US Labor Department's OSHA finds Metro-North Commuter Railroad
retaliated against injured employee, 
interfered with medical treatment 
Railroad ordered to pay damages, attorney’s fees


An investigation by the U.S. Department of Labor's Occupational Safety and Health Administration has determined that Metro-North Commuter Railroad Co. violated the employee protection provisions of the Federal Railroad Safety Act when it took retaliatory action against an employee at its Harmon Diesel Shop in Croton-on-Hudson who reported a workplace injury. OSHA found that the railroad, which provides commuter rail service in Connecticut, New York and New Jersey, interfered with the worker's medical treatment and forced him to work in violation of his physician's orders.

The employee, a laborer, injured his finger on June 26, 2009, and reported it to management, who first attempted to dissuade him from seeking medical treatment. The worker received sutures at a nearby hospital, where he was instructed to not use his hand until the sutures healed, and to keep the hand clean and dry. The railroad's occupational health service determined that the injury disqualified the worker from duty, but the facilities director of the diesel shop persuaded the health service to change the worker's status to restricted duty. The worker's personal physician excused him from work until the sutures were removed and supplied written notice that he should not lift heavy objects or immerse his hands in chemicals, actions he performed in the normal course of his duties. In spite of these instructions and the employee's restricted work status, management ordered him back to work and required him to perform these duties.

"Metro-North's actions in this case are unacceptable and send a message of intimidation to its workforce," said Robert Kulick, OSHA's regional administrator in New York. "Railroad employees must be free to report injuries without fear that their employers will harass them, ignore medical instructions or force them to work under conditions that could impair the healing process or cause more harm."

OSHA has ordered Metro-North to pay $10,000 in punitive damages to the worker and $8,830 in attorney's fees, and to expunge any adverse references relating to the employee's exercise of his FRSA rights from his personnel, safety and department files. Metro-North also must post an OSHA notice for employees in the Harmon Diesel Shop and on its internal website, and provide all diesel shop employees with information on employee protections for reporting work-related injuries.

Metro-North and the complainant each have 30 days from receipt of the findings to file an appeal with the Labor Department's Office of Administrative Law Judges. Under the FRSA, employees of a railroad carrier and its contractors and subcontractors are protected against retaliation for reporting on-the-job injuries, reporting certain safety and security violations, and cooperating with investigations by OSHA and other regulatory agencies.

OSHA enforces the whistleblower provisions of the FRSA and 20 other statutes protecting employees who report violations of various airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health care reform, nuclear, pipeline, public transportation agency, maritime and securities laws. Under these laws enacted by Congress, employers are prohibited from retaliating against employees who raise various protected concerns or provide protected information to the employer or to the government. Employees who believe that they have been retaliated against for engaging in protected conduct may file a complaint with the secretary of labor for an investigation by OSHA's Whistleblower Protection Program. Detailed employee rights information is available online at http://www.whistleblowers.gov.

Tuesday, March 13, 2012

Workers Compensation Is Quietly Under Attack in America

Guest Blog
by Steve Cooper*


As the economy crawls out of the dumps and more people return to the job site, a strong workers compensation environment is as important as ever. Unfortunately, workers comp appears to be under quiet attack in many states.

In Virginia, a law aimed at stopping Virginia dock workers from “double-dipping” may actually leave longshoremen more vulnerable than workers doing much safer work. HB153 is making its way through assembly and has the International Longshoremen’s Association (ILA) concerned:

“Why in the world should a Virginia harbor worker be denied benefits that are provided for other Virginia citizens who work in a business across the street from the harbor?” said Deborah C. Waters, general counsel for the longshoremen’s union.

Arthur W. Moye Jr., executive vice president of the Virginia Maritime Association, which represents more than 400 member organizations employing more than 70,000 workers in port-related jobs, said the primary reason for seeking the legislation was duplication.

Harbor workers are the only employees in the state who can seek workers’ compensation coverage under both state and federal programs, he said. Most workers in Virginia are eligible for coverage only under the state program.

“We feel the federal act covers the needs of an injured worker and covers it in a far superior way than the Virginia state act does,” Moye said.

There are differing opinions about this bill, however. The sticking point is the limitation on what the federal act covers. Worker representatives feel it is hardly sufficient, especially for a worker faced with a serious injury such as a lost limb or a family incurring a costly funeral. It is difficult to classify something as “double-dipping” when the first “dip” doesn’t do enough. Moreover, “double-dipping” is prohibited, making the new law appear obsolete on arrival:

Today, injured maritime workers in Virginia, like those in some other states, are covered under the state’s workers’ compensation program as well as two federal programs: the Longshore and Harbor Workers’ Compensation Act and the Merchant Marine Act, or Jones Act, which applies only to members of crews of vessels under way.

Under the current arrangement, an injured shipyard worker can file claims under the state and federal longshore-act program, though the laws prohibit “double-dipping.”

“There’s a lot of things that the state act does that the longshore act doesn’t cover,” said Stephen Harper, a Richmond attorney and chairman of the workers’ comp section of the Virginia Trial Lawyers Association.

In the event of a fatal injury, for example, the state program offers the family of the victim a $10,000 funeral benefit plus $1,000 in transportation costs, Harper said.

Under the federal program, the maximum funeral benefit is $3,000.

Under the state and federal plans, Harper said, if a worker suffers a permanent injury, such as a crushed ankle, that prevents him from returning to his old job, he is eligible for compensation for a certain period of time, based on a doctor’s evaluation of the degree of impairment.

In most cases, once the payment is made under the federal programs, the insurer’s obligation ends. Through the state workers’ comp program, however, benefits can last as long as 500 weeks, or 9-1/2 years.

“They’re putting the longshore people in a much, much worse situation than the guy working down the street at Walmart,” Harper said. “The same injury, the guy down at Walmart may be able to get lost wages because of that ankle fusion for 9-1/2 years, potentially, but under the longshore act it could be a lot less.”

In Kansas, House Bill 2531 is poised to diminish workers comp as well. The law changes how those appointed to hear workers comp cases are selected. It is alleged that the new selection process skews anti-worker:

Such judges are now chosen by a panel consisting of one member picked by the Kansas Chamber of Commerce and one picked by the Kansas AFL-CIO. The bill would use a seven-member panel composed of the state labor secretary, a person from an employee organization chosen by the labor secretary, and representatives of the Kansas Chamber of Commerce, National Federation of Independent Businesses, Kansas AFL-CIO, Kansas State Council of the Society of Human Resource Management and Kansas Self-Insurers Association. More people at the table may be a good idea, but the proposed lineup is hardly rich with employee representation.

In Pennsylvania, employers successfully won a 5.7% decrease in workers comp funding this week:

The Pennsylvania Insurance Department (PID) recently approved a 5.7 percent overall decrease in workers’ compensation costs. The rate cuts will result in $160 million in savings for Pennsylvania employers, the department estimates.

“At a time when many are feeling a financial pinch and doing more with less, it is a very hopeful sign that the business community may now be able to pay less in workers’ compensation insurance premiums,” said Insurance Commissioner Mike Consedine.

The article makes no mention of the impact this could have on workers, but does suggest that Pennsylvania employers are given an even larger discount when they display superior safety practices:

Businesses enrolled in the Certified Workplace Safety Committee program of Pennsylvania’s Department of Labor and Industry (DOLI) receive an additional 5 percent discount. Currently 9,652 businesses have certified safety committees. Participating businesses have realized insurance premium reductions totaling $432.8 million since the program began, DOLI reports. “Pennsylvania employers are able to benefit from the outstanding job they are doing to provide safer workplaces,” said Labor Secretary Julia Hearthway.

In Wyoming, nearly $1,000,000 in workers compensation has gone unpaid, according to the WyoFile:

Did you know; of Wyoming’s 18,228 employers 1,212 of them are delinquent on their Wyoming Workers’ Compensation premiums — to the tune of $943,498.73, according to state officials? That’s 6.6 percent of Wyoming’s employers who pay into Wyoming Workers’ Compensation — delinquent. $1 million. Yet, those delinquent employers still enjoy legal immunity for their own proven negligence in a worker injury/death — because that’s part of the compromise of workers’ compensation?

Employees in Wyoming do not enjoy the same leniency when it comes to delinquency. If an injured worker files 1 day late, no case, no benefits. No matter.

To make matters worse, workers compensation legislation can often be misleading. In Missouri, workers comp was recently “expanded” to include many job-related diseases. What this means is that the state is now on the hook, rather than businesses, for harm done to employees by employers. This appears to be a win for workers on the surface, but is actually a Republican-driven move aimed at making Missouri more “business friendly”:

In a move that Republicans contend will make Missouri more attractive to businesses, the state Senate has approved legislation to expand the workers’ compensation program.

The measure, SB572, approved with a largely party-line 28-6 vote, would cover occupational diseases under the workers’ compensation program — freeing businesses from potentially costly litigation.

But this bill tucked in some very questionable caveats, including lumping together disparate diseases and the exclusion of immigrants and prisoners:

St. Louis County Democratic Sen. Tim Green drafted — but did not offer — an amendment that would have excluded occupational diseases from the compensation program. He said curable injuries like carpal tunnel syndrome aren’t similar to lethal diseases such as mesothelioma, a type of cancer that can be caused by exposure to asbestos.

“I don’t think they should be treated the same,” Green said. “Putting it back in the workers compensation system isn’t right and that’s what this bill did.”

The legislation would also prevent illegal immigrants or people who are in prison from collecting workers’ compensation benefits.

The bill is expected to breeze through the Missouri House.

A surprising bright spot is South Carolina which is attempting to make up the decrease in workers comp responsibility that business owners have witnessed since 2009:

South Carolina employers could see their workers’ compensation premiums increase next year if state regulators go along with a proposed 7.3 percent increase in the state’s loss cost rates.

The National Council on Compensation Insurance filed for the proposed increase earlier this month, making it the first such proposed increase since 2008. Most recently, the state has seen three loss cost decreases totaling 13.4 percent.

Based on 2009 and 2008 policy year data, the rate filing calls for a 5.3 percent increase in experience, a 2.2 percent increase in trend, a 0.1 percent increase in benefits, and a slight decrease of 0.4 percent in loss adjustment expenses.

Even if the current proposed rate change is approved as filed by South Carolina Acting Insurance Commissioner Gwendolyn Fuller McGriff, employers will still have seen a cumulative decrease of 7.1 percent since 2009.

On the national level, reports are emerging of a disproportionate number of workers in need of disability compensation, especially for mental illness. Typically anti-worker source The New York Post suggests that workers are grasping at safety net straws due to the country’s economic decline:

“It could be because their health really is getting worse from the stress of being out of work,” Matthew Rutledge, a research economist at Boston College, told the paper. “Or it could just be desperation — people trying to make ends meet when other safety nets just aren’t there.”

The paper said that, according to recent research by JPMorgan Chase, the government was mailing out disability checks to about 10.5 million people, including 2 million to spouses and children of disabled workers, at a cost of about $200 billion annually.

The stagnant economy has grown those ranks. About 5.3 percent of the population between the ages of 25 and 64 are collecting federal disability payments, a jump of 4.5 percent since the recession hit in 2009.

There is no question these numbers represent a drastic leap, but how our system treats the injured and disabled is not to be taken lightly. JPMorgan and The New York Post have been champions of the austerity that has been the enemy of many a necessary program from a worker standpoint. Workers compensation can ill-afford to be next on the chopping block.


Steve Cooper (E.m. Ployd) lives in Washington, DC, and is the editor of We Party Patriots. He educates union members on the benefits of social media, offering instruction on engaging on Facebook and Twitter. When not ruining his posture and finger muscles through endless computer use, Cooper is an avid chef and musician. The We Party Patriots has an active on Facebook page that is "A bold, accessible online approach to achieving the Labor Movement's goals and defeating the powers that Tea."