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

Monday, April 30, 2012

Privacy: Why Injured Workers Are Stalked With Junk Mail and Nuisance Calls

Data sharing is a major problem and its effect on injured workers is becoming more acute. When injured workers contact providers for "more information" or sign onto what appears as so called "helpful" websites, their information is gathered and disseminated to other vendors and they become targets for advertising. 


As more and more people seek "help" on the Internet or in response to advertisements, the data that they provide is shared and sold in many instances. While the Obama Administration is seeking to remedy the situation through education, that might not be enough to limit on onslaught of junk mail and nuisance call solicitations.

Click here to read more:  Following the Breadcrumbs on the Data-Sharing Trail (NY Times)

"If you have ever felt inundated by such solicitations, by e-mail or by snail mail, you may have wondered what you did to deserve it."

Friday, April 27, 2012

Fatal Occupational Injuries and Workers’ Memorial Day

In 2010, a total of 4,690 workers died from injuries they suffered at work. That works out to one U.S. worker dying every 2 hours from a work-related injury.
The Bureau of Labor Statistics Census of Fatal Occupational Injuries (CFOI) program released its final data for the 2010 reference year on April 25, 2012—just 3 days before Workers’ Memorial Day. Recognized each year on April 28, Workers’ Memorial Day is a day to remember workers who were killed, injured, or made ill at work and to highlight the hazards in the workplace.
The Occupational Safety and Health Administration (OSHA), National Institute for Occupational Safety and Health (NIOSH), and other federal agencies use CFOI data to identify ways to prevent worker deaths and injuries.
This fact sheet provides an overview of fatal occupational injuries in the United States.  For more data on fatal occupational injuries from CFOI, see the CFOI homepage.  For information on nonfatal injuries and illnesses in the workplace, see the BLS Injuries, Illnesses, and Fatalities (IIF) page.
....

on
On Workers' Memorial Day, let us not forget the additional 50,000-60,000 lives lost from occupational diseases every year in our country.
Pat
Patrice Woeppel, Ed.D.

Thursday, April 26, 2012

OSHA Cites NJ Store For Safety Violations - Blocked Exits

The U.S. Department of Labor's Occupational Safety and Health Administration has cited retail clothing chain Forever 21 Inc. with two repeat and five serious safety violations at its store in the Bridgewater Mall. OSHA opened an inspection in November 2011 upon receiving a complaint alleging blocked exit routes and improper storage of merchandise. Proposed penalties total $69,000.

"These violations are indicative of the kinds of safety concerns often found at department stores that put workers at serious risk," said Patricia Jones, director of OSHA's Avenel Area Office. "This company is well aware of OSHA's safety standards and needs to take appropriate steps to prevent these violations from recurring."

The repeat violations, with $50,000 in penalties, are failing to provide adequate workspace around electrical equipment and maintain an exit route free of obstructions. The same violations were cited in January 2010 at a Loan Tree, Colo., store. 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.

The serious violations, carrying $19,000 in penalties, include failing to ensure workers had full access to exits, keep storage areas free from tripping and fire hazards, ensure that a fire extinguisher was not blocked, provide employees with training on the use of fire extinguishers and properly store materials. 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.

"By establishing an injury and illness prevention program, this company can work with its employees to identify and eliminate hazardous conditions," said Robert Kulick, OSHA's regional administrator in New York.

Los Angeles-based Forever 21 Inc. employs 31 workers at the Bridgewater Mall store. The 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.

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 Avenel office at 732-750-3270.

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.

Wednesday, April 25, 2012

A Milestone for Workers' Compensation

Today, marks a significant milestone for this blog. It has had over 250,000 page views. When I launched it about 4 years ago, I wasn't really sure how much interest readers would have in the developments and trends of a system that was almost a century old. 


Community involvement has been very instrumental in making the effort successful. I am very grateful to our readers and  the large number of outstanding guest bloggers who have contributed to reaching this milestone. 


Our current analytics reflects that there is a strong interest in the health and safety of workers, and the benefit system know as workers' compensation. It exists every single jurisdiction in the nation, and around the globe. The spectrum of story interest is as widely diverse as the multitude of programs in existence. 


It is very encouraging to know that the expanding readership base has a growing concern about worker's health and safety. Hopefully, as workers' compensation programs continue to mature and develop, there will also remain a strong desire to create a healthier work environment. Hopefully this blog can continue to provide a forum for creative ideas.  

Monday, April 23, 2012

Federal Court Dismisses Lawsuit to Preserve Missouri Second Injury Fund

A Federal Judge in Missouri dismissed a Federal lawsuit that was filed to forced the State of Missouri to fund its Second Injury Fund for workers' compensation beneficiaries.


The Court held:
“'Decisions over what programs to fund or not to fund generally represent a basic right and power possessed by the legislative branch....'  'Plaintiffs have cited no case law, and the Court is not aware of any, which stands for the proposition that a legislative decision to de-fund a program can represent a taking of a plaintiff’s entitlement.'”
Hon. Nanette Kay Laughrey


Click here to read the decision, Pettet v. May, No. 2:11-CV-04049-NKL (USDC W.D.Mo) Decided April 19, 2012


Click here to read the report in The Kansas City Business Journal

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NJ Supreme Court To Rule on Several Critical Issues

The NJ Supreme Court has before it three issues of critical importance concerning workers' compensation including: the standard of proof in a fatal heart claim; remedy for the failure of an insurance company to provide medical care, and the "exclusivity rule." These decisions have the potential to be landmark decisions.


1. Standard of Proof in a Fatal Heart Claim: Does the record support this workers' compensation claim under N.J.S.A. 34:15-7.2, which sets the standard of proof governing claims based on injury or death from cardiovascular causes?


Workers' Compensation benefits were awarded for a pulmonary embolism causally related to sedentary work activity. A NJ Appellate Court awarded benefits for the development of a pulmonary embolism precipitated by the inactivity of sitting long hours at a desk job.


Certification granted: 2/14/12
Posted: 2/14/12
A-71-11 James P. Renner v. AT&T (068744)

2.  Remedy for the Failure of the Insurance Company to Provide Medical Care:
May an employee who suffered a work-related injury pursue a common-law cause of action against a workers’ compensation carrier for willful failure to comply with court orders compelling it to provide medical treatment when the delay or denial of treatment causes the employee’s condition to worsen?

The NJ Supreme is going to review the procedure to bring bad faith claims against employers and insurance companies in workers' compensation actions. The Court accepted for review a case holding that workers' compensation bad faith claims are within the exclusive jurisdiction of the workers' compensation hearing official.

Certification granted 6/7/11
Posted 6/10/11
Argued: 3/26/12
A-112-10 Wade Stancil v. ACE USA (067640)


3. The Exclusivity Rule:

Under the circumstances of this case, which include a finding by the federal Occupational Safety and Health Administration that the accident was the result of a “willful violation” of its regulations, did the employer’s action constitute an “intentional wrong” that would preclude immunity under N.J.S.A. 34:15-8 of the workers’ compensation statute?

NJ Courts have held that trench accidents were not a mere fact of industrial life and were beyond intent of Act's immunity provision. A claim was permitted directly against the employer in addition to the workers' compensation action. 

Certification granted 1/27/11
Posted 1/28/11
Argued: 10/12/11
A-69-10 Kenneth Van Dunk, Sr. v. Reckson Associates Realty Corp. (066949)


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Saturday, April 21, 2012

The New Non-Subscriber Opt-Out Plan Is Emerging As The Alternative to Traditional Workers' Compensation

Given birth by Bechtel in Massachusetts over a decade ago, nurtured by ERISA (Employee Retirement Income Security Act, 29 USCS § 1002) ) and fed by the increasing frustrations of employers and employees throughout the nation, the new non-subscription Opt-Out Plan has emerged as a leading alternative solution to traditional workers' compensation coverage.

It has been reported that since its formal adoption by Oklahoma last week, David DePaolo, the knowledgeable CEO of WorkCompCentral (and cycling enthusiast) reports  that other states, including: Colorado, Kansas, Louisiana and Tennessee, will have legislation introduced to statutorily recognize the concept.

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Friday, April 20, 2012

North Carolina: Jail Time for Uninsured Employers

The State of North Carolina is going to take a tough stance on uninsured employers and and put them in jail for failing to obtain workers' compensation coverage and pay Court Orders. The Charlotte Observer reports that the first contempt hearing is scheduled for May 22 when 125 uninsured employers have been noticed to appear in court.


Click here to read the The Charlotte Observer.



"Leonard Jernigan, a workers’ compensation lawyer and national expert on employer fraud, said Young’s efforts are a step in the right direction. “I’m delighted that they are in fact going after this,” Jernigan said. “It’s been greatly needed.”

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Thursday, April 19, 2012

April 28th - Workers Memorial Day

April 28th is Worker Memorial Day. Observed each year, the event is a time to remember those who have suffered and died on the job, and it is a time to renew efforts to create safer workplaces.

For more information click here to visit the AFL-CIO site and/or The National Council for Occupational Safety and Health site.

Memorial for Workers
I write these words of honor, for those who gave their lives; 
And for their families, their husbands and their wives. 
For those whose lives were spent, doing what they must 
Working for a living like every one of us. 
Their time cut short, by things that didn’t have to be; 
To make the workplace safer, for people like you and me. 
To make sure their stories will never go untold; 
To always keep their memories from ever growing cold. 
We must remember the price they all had to pay; 
When we honor the men and women on Workers Memorial Day. 
Mike Baird
Lodge 21, International Association of Machinists and Aerospace Workers
Read April 28, 1995

Worker Fatality in Moorestown NJ Leads to OSHA Citation

The U.S. Department of Labor's Occupational Safety and Health Administration has cited American Biltrite Inc. for one repeat and nine serious safety and health violations at its Moorestown facility. An OSHA investigation was initiated in November 2011 following the death of a worker who was crushed in a coating machine while attempting to clear a jam. The company failed to use energy control, or "lockout/tagout," procedures prior to allowing the employee to enter the machine's danger area.

The serious violations include failing to provide a lockout/tagout program for the energy sources of equipment, provide appropriate working space around electrical equipment, provide an eyewash station, ensure that proper equipment guards were in place to prevent workers from coming into contact with moving parts, ensure the proper use of flexible cords, take adequate precautions to prevent the ignition of flammable vapors and require employees to wear goggles when handling corrosive chemicals. 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 repeat violation is permitting Class I flammable liquids to be dispensed into containers without the nozzle and the container being electrically connected, which creates the potential for ignition. The company was cited for the same violation in 2010. 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.

"This company continues to compromise the safety of its workers by disregarding OSHA's safety and health standards," said Paula Dixon-Roderick, director of OSHA's Marlton Area Office. "Employers are responsible for ensuring safe and healthful workplaces, and will be held legally accountable when they fail to do so."

Wellesley Hills, Mass.-based American Biltrite Inc. manufactures and distributes commercial flooring and performance sheet rubber throughout America, and employs 130 workers at the Moorestown site. Proposed penalties total $51,300.

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.

Wednesday, April 18, 2012

New OSHA directive explains communications with victims' families following a workplace fatality

A new Occupational Safety and Health Administration directive guides OSHA representatives in communicating investigation procedures with family members following a workplace fatality. The guidance ensures that OSHA representatives speak to the victim's family early in the inspection process, establish a point of contact, and maintain a working relationship with the family.

"OSHA is committed to working with families to explain the circumstances surrounding the deaths of their loved ones," said Assistant Secretary of Labor for Occupational Safety and Health, Dr. David Michaels. "This directive ensures that OSHA receives the necessary information from the family to assist in the investigation, and keeps the family informed throughout the investigation and settlement processes."

Under the new directive, OSHA representatives will contact the victim's family to explain the investigation process, timeline, and provide the family with updates throughout the investigation. Once the investigation is closed, OSHA will explain findings to the family and address any questions. If an employer has been issued citations, OSHA will provide a copy of the citation(s) to the family.

More information about the new directive is available on OSHA's directive page (PDF*). Employers must notify OSHA within eight hours of a workplace fatality, including fatal heart attacks that occur at work. These reports may be made by telephone or in person to the nearest area office or by calling OSHA's toll-free number, 1-800-321-OSHA [6742].

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 assure 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.

Saturday, April 14, 2012

Maine Passes Laws Restricting Workers Compensation Benefits

The The Bangor Daily reports that the State of Maine is in the process of legislatively restricting workers ' compensation benefits. The law overhaul's the system with the following changes:

The main elements of the program overhaul include:
• Altered eligibility requirements and the creation of a 10-year cap for employees who are permanently impaired with partial incapacity.

• The elimination of a requirement that employers must continue paying benefits during an appeal.

• A new appeals divisions with authority to create rules of procedure.

• A shortened time period in which a notice of injury must be given, from 90 days to 30 days.

• A changed maximum benefit, from 80 percent of an employee’s net weekly wages to 66 percent of gross weekly wages.

Friday, April 13, 2012

Facebook Creating Even A Greater Problem in Comp Claims

Česky: Logo Facebooku English: Facebook logo E... (Photo credit: Wikipedia)
Facebook's new announcement today creates even a greater problem for workers' compensation claimants. Providing even greater historical information about an unsophisticated  Facebook user puts even more information, out of context, into the hands of the employer during litigation which can be detrimental to a claim.

See Facebook Privacy Blog

"Starting today, you will be able to download an expanded archive of your Facebook account history. First introduced in 2010, Download Your Information lets you get a copy of what you've shared on Facebook, such as photos, posts, messages, a list of friends and chat conversations. Now you can access additional categories of information, including previous names, friend requests you've made and IP addresses you logged in from. This feature will be rolling out gradually to all users and more categories of information will be available for download in the future. Download Your Information is available from your Facebook Account Settings."

Related articles

Thursday, April 12, 2012

Tobacco Industry Argues Against New Cigarette Warnings

Big Tobacco continues to argue against the Federal requirement of new dramatic warnings of cigarette packs. Tobacco is the a leading contributing cause for death in the workplace.

Click here to read more from Jurist blog....

"A panel of judges for the US Court of Appeals for the District of Columbia Circuit [official website] heard oral arguments on Tuesday over the constitutionality of newFood and Drug Administration (FDA) [official website] regulations [text] requiring cigarette packaging and advertisements to display more prominent graphic health warning labels [materials]. A federal judge issued a permanent injunction [JURIST report] last month prohibiting the warnings as unconstitutional. The new requirements of graphic image and textual warning labels were imposed by the Family Smoking Prevention and Tobacco Control Act (FSPTCA) [HR 1256 text].



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Washington Workers' Advisor Blog Launched



A new blog, Washington Workers' Advisor, has been launched to provide information about law, policy and safety in the workplace. Jay Causey, of the Causey Law Firm said, that the "blog will apply decades of legal experience and expertise to keep the reader informed about trends and developments in workers' compensation law, social security disability, maritime claims, and other legal issues important to working people."

Attorney Jay Causey has practiced for over 30 years in the area of workers' compensation and disability law, including Washington State workers' compensation claims, Social Security Disability cases, Longshore and Harbor workers' Act cases, Defense Base Act claims, and maritime injury. The Causey Law Firm, located in Seattle, Washington, is a nationally recognized firm serving clients in Washington State. It exclusively represents individuals who have been injured or have become disabled.


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Wednesday, April 11, 2012

GAO Releases Report on Medicare Secondary Recovery Procedures

The US Government Accounting Office has released a report concerning the efficiency of the Medicare Secondary Recovery process.


Identified Issues:

  • Contractor performance. Challenges related to the timeliness of the MSPRC and WCRC were identified, including significant increases in the time required to complete important tasks. CMS reported taking steps to address the challenges with each of these contractors’ performance.
  • Demand and recovery issues. Challenges were identified related to the timing of demand amounts, the cost-effectiveness of recovery efforts, and the amounts of Medicare demands from liability settlements. CMS reported taking steps to address some, but not all, of these challenges.
  • Mandatory reporting. Key challenges were identified with certain aspects of mandatory reporting: determining whether individuals are Medicare beneficiaries, supplying diagnostic codes related to individuals’ injuries, and reporting all liability settlement amounts. CMS reported taking steps to address some, but not all, of these challenges.
  • CMS guidance and communication. Key challenges were identified related to CMS guidance and communication about the MSP process, guidance on Medicare set-aside arrangements, and beneficiary rights and responsibilities. CMS has taken few steps to address these challenges.

"To improve the MSP program, GAO is making recommendations to improve the cost-effectiveness of recovery, decrease the reporting burden for NGHPs, and improve communications with NGHP stakeholders. CMS agreed with these recommendations."

Company Faces Fine for Failing to Inform Residents about the Presence of Lead-based Paint and its Dangers

Lead paint at worksites remains a clear and present danger to workers. The U.S. Environmental Protection Agency has issued a complaint against CRM Rental Management, Inc. of Rome, N.Y. for not informing residents of its buildings about potential lead-based paint in their apartments. 


It is estimated that three-quarters of U.S. residential dwellings built before 1978 contain some lead-based paint. Infants and young children are especially vulnerable to lead-based paint exposure, which can cause IQ deficiencies, reading and learning disabilities, impaired hearing, reduced attention spans, hyperactivity and behavioral problems. CRM Rental Management faces over $140,000 in potential fines for 43 instances in which the company failed to properly inform residents of four buildings in New Hartford and Rome, New York about the potential presence of lead-based paint. 

“Lead paint is a serious threat to children’s health and disclosure can arm families with information they need to protect their kids,” said Judith A. Enck, EPA Regional Administrator. "Rental agents, property managers and building owners are required to follow EPA lead paint disclosure requirements and make sure people are aware of potential lead hazards in homes.”

Lead poisoning remains one of the most prevalent threats to children's well-being but it is also one of the most preventable. Under federal law, families have the right to know whether there are any potential lead-paint hazards in a prospective home, and must be informed about the harm lead can inflict on small children. Pregnant women and children younger than age six are among the most vulnerable to adverse health risks from lead-based paint.

EPA regulations require real estate management companies and property owners that sell or rent housing built before 1978 to provide renters or buyers with a form that contains a warning about the dangers of lead-based paint and discloses information about its presence. People renting or buying an apartment or home must verify that they received the required warning and disclosure information, including the EPA pamphlet, Protect Your Family from Lead in Your Home.Prospective purchasers have a 10-day opportunity to assess the property for risks for the presence of lead-based paint.

The complaint against CRM Rental Management alleges that the company failed to provide residents with lead-based paint warning and disclosure statements, making them aware of records or reports that would alert them to potential lead-based paint hazards, and secure required signatures verifying that the required information was received.

In collaboration with the U.S. Department of Housing and Urban Development and the Centers for Disease Control, EPA operates the National Lead Information Center, including a toll-free hotline that can be reached at 1-800-424-LEAD (5323).

For more information on lead and the risks posed by lead paint, visit: http://www.epa.gov/lead.
.....

For over 3 decades the Law Offices of Jon L. Gelman 1.973.696.7900jon@gelmans.com have been representing injured workers and their families who have suffered work related accident and injuries.

Federal RICO Claim Not Preempted by a State Workers Compensation Act

The US 6th Circuit Court of Appeals, in a landmark case of widespread significance,  has held that a State may not preempt a Federal cause of action under the RICO [Racketeer Influenced and Corrupt Organizations Act] statute by asserting that workers' compensation claims are exclusive to State jurisdiction. In long and convoluted history, workers in Michigan have asserted that their employer and its workers' compensation carrier, Crawford & Company, and its experts, ie. "cut off doctor," sought to conspire to defeat their pending claims, "property interest," for benefits under the Michigan state workers' compensation act.


Click here to read: Brown et al. v. Cassens Transport Co. et al., 6th Cir Ct of Appeals,http://www.ca6.uscourts.gov/opinions.pdf/12a0095p-06.pdf Decided, April 6, 2012 (Michigan).

"The flaw with the defendants’ argument is that the predicate offense for the RICO action is mail fraud, not the denial of worker’s compensation. “The gravamen of [a] RICO cause of action is not the violation of state law, but rather certain conduct, illegal under state law, which, when combined with an impact on commerce, constitutes a violation of federal law. Therefore, it is not alleged that [the defendants are] subject to ‘liability under’ the [state law]; their liability . . . stems from RICO.” Williams v. Stone, 109 F.3d 890, 895 (3d Cir.), cert. denied, 522 U.S. 956 (1997). The district court here erred when it stated that this case does not “involve[] a separate and independent tort (theft or conversion or some similar claim)” because the plaintiffs “cannot disentangle their RICO claim from their underlying claim for benefits.” 743 F. Supp. 2d at 666, 668."


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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 work related accident and injuries.

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Tuesday, April 10, 2012

April is Distracted Driving Awareness Month

April is National Distracted Driving Awareness Month, and from Virginia to California, the traffic safety community has a simple message for drivers: One Text or Call could Wreck it All.


Workers' Compensation Court will be challenged to deal with injuries caused by distracted driving especially as employers come on board and ban their use while driving and Federal Regulations prohibit such use.

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Trending: Opting-Out of Workers' Compensation

Opting-out of workers' compensation coverage is now a significant national trend. The opt outs are  both through a legitimate elective process and a de-facto scheme.

The opt-out process arose through a  legislative process over a decade ago when Massachusetts legislation permitted the option to elect out of the mandatory workers' compensation system. Since then it has grown through both legitimate and illegitimate expansion. Some legislators have proposed that religious organizations should now be permitted to not obtain coverage.

In March the expanding trend to opt-out of the workers' compensation system took a major leap as large employers began to leave the system and offer less benefits to injured workers. Walmart, one of the largest employers in Texas has made the election to leave the system. Within the last two years other large employers have exited the system, including Target, seeking to reduce costs through a private non-workers' compensation plan.

Some states have reported increasingly high rates of uninsured workers. The enforcement and collection activities, are unfortunately both time consuming and expensive and are usually conducted after the fact.

A de-facto opt-out process is also occurring nationally through a process of misclassification of workers. Employees are designated by employers as independent contractors and consultants to avoid mandatory coverage and taxes. In North Carolina  it has been reported that 30,000 business do not have mandatory workers' compensation coverage. The system attempts to avoid the tedious and time consuming process to seek workers' compensation benefits, and instead employees seek benefits from alternative sources including major medical plans, Medicare and social security. Temporary disability plans and major medical plans act as coverage for loss time and treatment. Employee are willing to fore go permanent disability inorder to get certain and immediate medical care and lost time benefits. Many employees have no idea that workers' compensation pays for permanent disability. The aging workforce assumes that Social Security Disability is a more user-friendly system to navigate.

The growing trend of opting out of the workers' compensation system is of concern to all. Why this is occurring in a system that was designed to protect both the worker and the employer needs to be identified and addressed.