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

Thursday, May 31, 2012

California Settlement Protects Hair Salon Workers

A groundbreaking settlement between California’s Attorney General and manufacturers of Brazilian Blowout hair smoothing products that contain a cancer-causing chemical will help protect salon workers and consumers, according to the California Department of Public Health’s Occupational Health Branch.

The settlement with the manufacturer of Brazilian Blowout products requires the company to warn consumers and hair stylists that two of its hair smoothing products emit formaldehyde gas, which is known to cause cancer in humans. The company must also cease deceptive advertising; pay $600,000 in fees, penalties and costs; and report the presence of formaldehyde in its products to California Safe Cosmetics Program (CSCP) (http://www.cdph.ca.gov/programs/cosmetics/Pages/default.aspx). The warning requirements are the maximum penalty that could be achieved under state law.

The January 2012 settlement stemmed from complaints from hair stylists and customers that the product was causing symptoms, including nose bleeds, burning eyes and throat, skin irritation, and asthma attacks.

See http://www.cdph.ca.gov/programs/cosmetics/Documents/BrazilianBlowoutQA.pdf for more on Brazilian Blowout. Email OHW@cdph.ca.gov to subscribe to the monthly Occupational Health Watch e-newsletter.
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Home Hospitalization

An innovated path to medical care is the concept of home hospitalization. It provides both both patient comfort and cost saving. This approach, facilitated by the advent of telecommunications, is being advance in  is now being expanded in many jurisdictions including: Illinois, Rhode Island, New York, Florida and Minnesota. 


With the soaring cost of workers' compensation payments now exceeding 50% of payments, new and innovative approaches are being advanced.


Click here to read more: Some Patients Can Choose To Be Hospitalized At Home

Related articles

China: Employer Pays Compensation After Murdering Employee


The family of a deceased migrant worker was compensation after street protests following the murder of the employee by the Chinese employer.

Click here to read more: Zhejiang protest ends with compensation deal

"Migrant workers' protests that broke out on Monday in east China's Zhejiang province following a peer's death have mostly come to an end and the family of the deceased has received 300,000 yuan (47,298) in compensation, local authorities said Tuesday."


Wednesday, May 30, 2012

Advice needed so employers can reduce risk of female workers developing breast cancer

Commenting on a study published today (Tuesday) on the Occupational and Environmental Medicine website, which found that frequent night shifts are linked to an increased risk of breast cancer, TUC General Secretary Brendan Barber said:

'This study confirms previous research which has shown that shift work is now the second biggest cause of work-related cancer deaths after asbestos.

'We need urgent advice from the HSE and government so that employers can reduce the risk of female workers developing breast cancer, for example by indentifying safer shift patterns.'

- The study is available at http://press.psprings.co.uk/oem/may/oem100240.pdf 



"Conclusions The results indicate that frequent night
shift work increases the risk for breast cancer and
suggest a higher risk with longer duration of intense
night shifts. Women with morning preference who
worked on night shifts tended to have a higher risk than
those with evening preference."


Related articles

Paying For Occupational Medical Care

A recent report in the Journal of Occupational and Environmental Medicine disclosed that the Government and US Taxpayer are paying the majority of the costs for occupational medical care. Even though workers' compensation insurance was designed to pay for such coverage, the majority of the bills incurred for work related accidents and injuries are actually paid by other sources.


Click here to read: Most occupational injury and illness costs are paid by the government and private payers

"UC Davis researchers have found that workers' compensation insurance is not used nearly as much as it should be to cover the nation's multi-billion dollar price tag for workplace illnesses and injuries. Instead, almost 80 percent of these costs are paid by employer-provided health insurance, Medicare, Medicaid, Social Security and other disability funds, employees and other payers."

Tuesday, May 29, 2012

Law Firm Prosperity California Style-Post Dewey & LeBoeuf

Guest Blog by
David Depaolo*


Across the nation the decline in work comp claims have caused scale back in law firms for both injured workers and carrier defense … except in California.

Applicant firms (as they are called in California) have not seen much if any attrition since 2004,when the Terminator reforms were instigated, and several have actually expanded taking up the slack of the less dedicated firms.

Defense firms have exploded with more and more defense attorneys being hired and more and more defense billable hours being charged since the prosperous 1980s.

The reason appears to be unsettled law just now coming to a point of stabilization and ancillary issues that have been generated as a consequence of regulatory changes - e.g. California's "lien laws" have created increased litigation as, in my opinion, short-sighted regulators implement strategies to treat the symptoms rather than the underlying disease.

The Dewey & LeBoeuf bankruptcy was a long time coming as the firm simply failed to curtail its spending and partner dividends when clients were pulling back in the face of the recession.

So I don't see Dewey & LeBoeuf  as really representative of lower work comp filing rates.


David DePaolo is CEO, President, Editor-in-Chief of WorkCompCentral. He holds a J.D. from Pepperdine University School of Law (1984), a Masters in Business Administration from California Lutheran University (1997) and a Bachelor of Arts, English, from San Diego State University (1981). Mr. DePaolo is a frequent lecturer and author his own blog, DePaolo's Work Comp World.

Kim Presbrey, A Founder of the Workplace Injury Litigation Group


Injured workers and their representatives lost a leader of the legal profession with the passing of Kim Presbrey of Illinois. Kim was one of the charter founders of the Workplace Injury Workers Litigation Group (WILG).

Throughout his career, Kim sought justice for his clients. He assisted other attorneys through his guiding leadership to advance the interests of a safer work environment.

My friendship with Kim began in the formative days of WILG and lasted throughout his entire career. He would often zealously call me late at night on the weekend just to keep me updated on important issues concerning workers' compensation so that readers of this blog could be updated on urgent developments of major significance.

Kim's passing is a major loss to the workers' compensation community. Our sincere sympathies go out to his family and friends, all of which he dearly loved.



Law Firm Bankruptcy: The Saga of Dewey & LeBoeuf


The downward spiral of workers' compensation filings has had severe economic impact throughout the legal profession.  Dewey & LeBoeuf's collapse signals a major change in employment law. It is a contributing consequence of the continued decline workers' compensation claims.

Yesterday headlines announced the largest  law firm bankruptcy filing in the history of the United States. Dewey & LeBoeuf. It was a law firm with a significant employment litigation practice.

The firm handled the defense of employment related matters including: discrimination complains, sexual harassment and discrimination claims. It assisted employers in the defense of claims arising out of mass layoffs and plant closing, age discrimination and disability matters. These claims are usually intertwined with workers' compensation matters, which have been the genesis for many collateral employment law related claims.

As workers' compensation laws become more restrictive, fewer employment law claims emerge. The present downward trend of workers' compensation claims continues. The consequences of this decline will impact the the practice of employment law forever.



Click here to read: Dewey's Post-Mortem Is Likely to Drag On

"Client bills can be tough enough to collect when a firm is in business. But once a firm goes under and the client-law firm relationship dissolves, collection suddenly gets much harder, say legal experts. "Suddenly, clients start complaining that the fees were too high; that the firm committed malpractice," said Jerome Kowalski, a New York-based consultant to law firms and expert on law-firm dissolutions."

Friday, May 25, 2012

The Race To The Top Is Fatal

The rush to built-out America's cellular network has left a trail on injury and death . Watch the upcoming special on PBS concerning this American tragedy.


Click here to read: In Race For Better Cell Service, Men Who Climb Towers Pay With Their Lives

"An investigation by ProPublica and PBS “Frontline” shows that the convenience of mobile phones has come at a hefty price: Between 2003 and 2011, 50 climbers died working on cell sites, more than half of the nearly 100 who were killed on communications towers."

Related articles

Thursday, May 24, 2012

Occupational Exposure to Silica During Hydraulic Fracking

While focus has been on environmental concerns with the advent of fracking, a process to release oil and gas, a new concern has emerged over the potential occupational exposure to silica by workers who are involved in the process. The National Institute for Occupational Safety and Health has published information focusing on these safety concerns.

Silica exposure has long been recognized as a compensable occupational condition in a majority of jurisdictions. A sandblaster who was required to use several 100 pound bags of silica each day and who, as a result of the inhalation of silica dust, developed silicosis was awarded compensation benefits in the form of both disability and medical benefits. Sharp v. Paterson Monument Co., 9 N.J.Super. 476, 75 A.2d 480 (Co.1950). The increased risk for occupational exposure to tuberculosis (TB) is recognized among healthcare and other workers exposed to persons with active TB and workers exposed to silica or other agents that increase the progression from latent to active TB. CDC Proportionate Mortality from Pulmonary Tuberculosis Associated With Occupations—28 States, 1979–1990. MMWR 1995; Vol. 44/No. 1:14-19.

Click here to read more: Worker Exposure to Crystalline Silica During Hydraulic Fracturing

"Hydraulic fracturing or “fracking” is the process of injecting large volumes of water, sand, and chemicals into the ground at high pressure to break up shale formation allowing more efficient recovery of oil and gas. This form of well stimulation has been used since the late 1940s, but has increased substantially over the last 10 years with the advent of horizontal drilling technology that greatly improves access to gas deposits in shale. Approximately 435,000 workers were employed in the US oil and gas extraction industry in 2010; nearly half of those workers were employed by well servicing companies, which includes companies that conduct hydraulic fracturing (BLS)."
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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.

Related articles

Whose to Blame for Opioid Abuse in Workers' Compensation Claims?

English: From: United States Department of Jus...
(Photo credit: Wikipedia)
A recent Texas case  holding an employer liable holding an employed liable for a fatal opioid overdose arising out of work-related event highlights again that, the workers' compensation medical delivery system just isn't working. Efforts by Industry to "reform" the system. by limiting benefits. is a misdirected knee-jerk reaction, and not one that will address the symptoms of the problem, a failed medical delivery system.

Click here to read more: Opioid death liability falling on employers--Court rulings compel benefits payments

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Wednesday, May 23, 2012

Are You My Mother?



Sorting out dependency status in a workers' compensation claim can be as confusing as the questions classic novel posed in P.D. Eastman's children's story, "Are You My Mother?" The US Supreme Court ruled, (Astrue v. Capato) that for the eligibility requirements of Social Security, that children conceived after a father's death are not to be considered a dependent. In Vitro Fertilization (IVF) will pose yet another intriguing question for the multitude of state workers' compensation programs to sort out.

Click here to read more: Supreme Court Denies Benefits for Children Conceived After Father's Death (Jurist)

Related articles

OSHA Targets Fall at New Jersey Companies


US Department of Labor's OSHA issues 'call to action' to
New Jersey construction companies to prevent worker falls

Robert Kulick, OSHA regional administrator in New York
Following four recent construction incidents that took place in Northern New Jersey, the U.S. Department of Labor's Occupational Safety and Health Administration is calling on construction companies to ensure that employees working above 6 feet have the proper equipment to protect themselves from falls on the job.

OSHA has opened investigations following a worker fall through a roof into a vat of acid in Clifton, N.J.; a worker fall from the roof on a residential construction site in Bayonne, N.J.; a worker fall while installing a steel frame in Madison, N.J.; and a worker fall from an aerial lift in Secaucus, N.J.

"This is a call to action for every contractor in the state," says Robert Kulick, OSHA regional administrator in New York. "These incidents are tragic reminders of the dangers posed to workers when they are not adequately protected from fall hazards."

There are a number of ways to protect workers from falls, including guardrail systems, safety net systems and personal fall arrest systems, including properly anchored body harnesses and lanyards, as well as the use of safe work practices and thorough training. "Whether working on a roof, a scaffold or in an aerial lift, all workers must have and correctly use the proper equipment to prevent falls," Kulick adds.

In April, Secretary of Labor Hilda L. Solis announced a new campaign to provide employers and workers with lifesaving information and educational materials about working safely from ladders, scaffolds and roofs in an effort to prevent deadly falls in the construction industry. In 2010, more than 10,000 construction workers were injured as a result of falling while working from heights, and more than 250 workers were killed. OSHA's fall prevention campaign was developed in partnership with the National Institute of Occupational Safety and Health and NIOSH's National Occupational Research Agenda program. More detailed information is available in English and Spanish on fall protection standards at http://www.osha.gov/stopfalls.

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).

Under the Occupational Safety and Health Act of 1970, OSHA's role is to promote safe and healthful working conditions for America's working men and women by setting and enforcing standards, and providing training, outreach and education. For more information, visit http://www.osha.gov.

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.


Employers Now Banning Cell Phone Use

A recent survey reflects increase employer concern over cell phone use while driving. Such written policies may encourage courts to bar employees who engage in such activity from recovery under workers' compensation laws.


Click here to read the survey results: 

Companies Increasingly Concerned About Employee Use of Cell Phones While Driving

"The number of commercial fleet operators that have adopted written policies pertaining to employee use of cell phones while driving on-the-job has increased 29% in the past year – from 62% to 80% – according to the second annual survey of more than 900 transportation and fleet professionals conducted by ZoomSafer."

Tuesday, May 22, 2012

ICD-10 Is Coming

CMS will initiate enforcement action after June 30, 2012 to enforce compliance to ICD-10 coding.


1.  The compliance date for upgrading to Version 5010 standards for electronic health transactions was January 1, 2012; CMS enforcement discretion is in place until June 30, 2012.
2.  The transition to ICD-10 for medical diagnosis and inpatient procedure coding is coming.

CMS utilizes ICD data for Medicare Secondar Payer Act (MSP) enforcement.


Monday, May 21, 2012

Too Big To Fail?

Seal of Missouri.
Seal of Missouri. (Photo credit: Wikipedia)
Is the  Missouri Second Injury Fund too big to fail? It appears not. Stagnation and indecision has really become a phase-out of the program and that wind-down process was initiated 7 years ago.


Read more: No changes made for Missouri injured worker fund
Southeast Missourian
In addition, more than 31000 cases are pending against the Second Injury Fund. The fund is financed through a surcharge that employers pay on their workers' compensation insurance. That charge was capped at 3 percent under a 2005 workers' compensation ...

Saturday, May 19, 2012

Fracking: Vermont Become The First State to Outlaw



Vermont Governor Peter Shumlin signed into law on Thursday a bill [H 464 materials] outlawing hydraulic fracturing, or fracking, making Vermont the first US state to ban the controversial technique used to extract natural gas from the ground.


Click here to read more from The Jurist

Thursday, May 17, 2012

CMS Waiver Denied Where Medical Negligence Alleged

Alleged negligent medical care does give rise to a waiver o Medicare Secondary Recovery of a Conditional Payment.
Salveson v. Sebelius, 2012 WL 1665424, D.S.D.,2012., May 11, 2012

Friday, May 11, 2012

OSHA Proposes Fines for NJ Uniform & Laundry Company

The U.S. Department of Labor has cited Wilmington, Mass.-based UniFirst Corp., a uniform and laundry service, for seven serious safety and health violations, including some involving bloodborne pathogen and lead exposure hazards, at its West Caldwell facility. A complaint alleging hazards prompted OSHA's inspection. Proposed penalties total $186,000.

"The violations at this facility compromise the safety and health of UniFirst's workers," said Kris Hoffman, director of OSHA's Parsippany Area Office, which conducted the inspection. "It is vital that the company take appropriate steps to eliminate all identified hazards."

Three willful violations involve a failure to conduct proper training and provide hepatitis B vaccinations, as well as to have engineering and work practice controls in place to eliminate or minimize exposure to bloodborne pathogens. A willful violation is one committed with intentional knowing or voluntary disregard for the law's requirements, or with plain indifference to worker safety and health. The citations carry $165,000 in penalties.

Four serious violations involve a locked emergency door, a lack of training on fire extinguisher use, lead-contaminated surfaces, inadequate training on OSHA's lead standard and not providing gloves to workers exposed to potentially contaminated clothing. 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 citations carry $21,000 in penalties.

"A first step toward a safer, healthier workplace is to develop and implement an illness and injury prevention program in which management and workers proactively identify and eliminate hazardous conditions," said Robert Kulick, OSHA's regional director in New York.

The citations can be viewed at http://www.osha.gov/ooc/citations/UnifirstCorporation_315956458_04_12.pdf*.

UniFirst Corp., which employs 35 workers at the West Caldwell facility, 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.

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 office at 973-263-1003.

Under the Occupational Safety and Health Act of 1970, OSHA's role is to promote safe and healthful working conditions for America's working men and women by setting and enforcing standards, and providing training, outreach and education. For more information, visit http://www.osha.gov.

OSHA Fines NJ Employer For Unsafe Conditions


US Labor Department's OSHA cites Wisconsin-based food and beverage
manufacturer for repeat safety hazards at Flemington, NJ, facility

The U.S. Department of Labor's Occupational Safety and Health Administration has cited Kerry Ingredients & Flavours Inc., headquartered in Beloit, Wis., for three repeat violations at its Flemington facility. Proposed penalties total $50,000 following an inspection conducted under OSHA's Site-Specific Targeting Program for industries with high injury and illness rates.

"Not using proper safeguards leaves workers at risk of serious injury," said Patricia Jones, director of OSHA's Avenel Area Office. "Employers have a legal responsibility to ensure a safe and healthful workplace."

The violations involve amputation and laceration hazards due to a lack of lockout procedures for the energy sources of specific equipment, and the improper adjustment of bench rests and guards on a bench grinder. Similar violations were cited at the company's Chicago facility in May and October 2008. 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.

"Employers can take proactive steps alongside workers to identify and eliminate hazardous conditions by establishing an injury and illness prevention program," said Robert Kulick, OSHA's regional administrator in New York.

Kerry Ingredients & Flavours Inc. manufactures cereal, soft drinks and seasonings, and employs 45 workers at the Flemington site. 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.
Related articles

Law to Ban Medical Expense Claims Proposed

Legislation (A-2652) [introduced May 10, 2012] has been proposed in NJ that would ban charging workers’ compensation claimants for medical expenses and gives the Division of Workers’ Compensation sole jurisdiction over work-related medical claims. The law would be a positive initiative for all parties as it will subject medical provider claims to an exclusive remedy and consolidate the claims before a single administrative agency for resolution.


The legislation will be the subject of consideration by the NJ Assembly Labor Committee on Monday, May 14, 2012.


Click here to read: Clearing the Workers' Compensation Benefit Highway of Medical Expense Land Mines

By John H. Geaney and Jon L. Gelman
"Medical expenses in contested workers’ compensation cases are now a significant and troublesome issue resulting in uncertainty, delay and potential future liability. Th recent NJ Supreme Court decision, University of Mass. Memorial Hospital v. Christodoulou, 180 N.J. 334 (2004) has left the question of how to adjudicate medical benefits that were conditionally paid or paid in error. Presently there is no exclusively defined procedure to determine the allocation, apportionment of primary responsibility for unauthorized medical expenses and reimbursement."



Statement of the Bill

"This bill prohibits the charging of workers’ compensation 
claimants for medical expenses that have been authorized by the 
employer or its carrier or its third party administrator, that have 
been paid by the employer, its carrier or third party administrator 
pursuant to pursuant to the workers’ compensation law, or which 
been determined by the Division of Workers’ Compensation to 
be the responsibility of the employer, its carrier or third party 
administrator.  The bill gives the division sole jurisdiction over 
disputed work-related medical claims, and directs the division to 
provide procedures to resolve those disputes, including procedural 
requirements for medical providers or any other party to the 
dispute.  Finally, the bill provides that the treatment of an injured 

worker or the payment of workers’ compensation to an injured 

worker or dependent of an injured or deceased worker shall not be 
delayed because of a claim by a medical provider. "


Further Reference:
NJ Task Force Report on Medical Provider Claims


Related articles

Unsustainable

NCCI, a national workers' compensation rating company, reported yesterday that the workers' compensation industry is in trouble and that "NCCI's current analysis shows that the combined ratios for workers compensation remain at unsustainably high levels, and investment returns are not high enough to generate operating returns near the cost of capital." One on the major soaring costs was reported to be medical costs.

Click here to read the entire report: Complete State of the Line Presentation from AIS 2012