(c) 2018 Jon L Gelman, All Rights Reserved.

Friday, November 30, 2012

Train Carrying Deadly PVC Crashes In NJ Sickens Workers / Residents

A train carrying deadly Polyvinyl Chloride (PVC) crashed in NJ this morning when a bridge it was traveling on collapsed. The train containing highly toxic cargo crashed while crossing a creek near the Delaware River. 

It has been reported that at least 71 people are being treated for respiratory distress and residents have been ordered to remain indoors. The train remains dangling from the collapsed bridge and and chemicals continue to leak into the creek.

Most vinyl chloride is used to make polyvinyl chloride (PVC) plastic and vinyl products. Acute (short-term) exposure to high levels of vinyl chloride in air has resulted in central nervous system effects (CNS), such as dizziness, drowsiness, and headaches in humans. Chronic (long-term) exposure to vinyl chloride through inhalation and oral exposure in humans has resulted in liver damage. Cancer is a major concern from exposure to vinyl chloride via inhalation, as vinyl chloride exposure has been shown to increase the risk of a rare form of liver cancer in humans. EPA has classified vinyl chloride as a Group A, human carcinogen.

Acute Effects: Acute exposure of humans to high levels of vinyl chloride via inhalation in humans has resulted in effects on the CNS, such as dizziness, drowsiness, headaches, and giddiness. Vinyl chloride is reported to be slightly irritating to the eyes and respiratory tract in humans. Acute exposure to extremely high levels of vinyl chloride has caused loss of consciousness, lung and kidney irritation, and inhibition of blood clotting in humans and cardiac arrhythmias in animals. Tests involving acute exposure of mice have shown vinyl chloride to have high acute toxicity from inhalation exposure.

Chronic Effects(Noncancer): Liver damage may result in humans from chronic exposure to vinyl chloride, through both inhalation and oral exposure. A small percentage of individuals occupationally exposed to high levels of vinyl chloride in air have developed a set of symptoms termed “vinyl chloride disease,” which is characterized by Raynaud’s phenomenon (fingers blanch and numbness and discomfort are experienced upon exposure to the cold), changes in the bones at the end of the fingers, joint and muscle pain, and scleroderma-like skin changes (thickening of the skin, decreased elasticity, and slight edema). CNS effects (including dizziness, drowsiness, fatigue, headache, visual and/or hearing disturbances, memory loss, and sleep disturbances) as well as peripheral nervous system symptoms (peripheral neuropathy, tingling, numbness, weakness, and pain in fingers) have also been reported in workers exposed to vinyl chloride. Animal studies have reported effects on the liver, kidney, and CNS from chronic exposure to vinyl chloride. EPA has established a Reference Concentration (RfC) of 0.1 milligrams per cubic meter, and a Reference Dose (RfD) of 0.003 milligrams per kilogram per day for vinyl chloride. Please see IRIS for current information.

Reproductive/Developmental Effects: Several case reports suggest that male sexual performance may be affected by vinyl chloride. However, these studies are limited by lack of quantitative exposure information and possible co-occurring exposure to other chemicals. Several epidemiological studies have reported an association between vinyl chloride exposure in pregnant women and an increased incidence of birth defects, while other studies have not reported similar findings. Epidemiological studies have suggested an association between men occupationally exposed to vinyl chloride and miscarriages in their wives’ pregnancies although other studies have not supported these findings. Testicular damage and decreased male fertility have been reported in rats exposed to low levels for up to 12 months. Animal studies have reported decreased fetal weight and birth defects at levels that are also toxic to maternal animals in the offspring of rats exposed to vinyl chloride through inhalation.

Cancer Risk: Inhaled vinyl chloride has been shown to increase the risk of a rare form of liver cancer (angiosarcoma of the liver) in humans. Animal studies have shown that vinyl chloride, via inhalation, increases the incidence of angiosarcoma of the liver and cancer of the liver. Several rat studies show a pronounced early-life susceptibility to the carcinogenic effect of vinyl chloride, i.e., early exposures are associated with higher liver cancer incidence than similar or much longer exposures that occur after maturity. EPA has classified vinyl chloride as a Group A, human carcinogen. EPA uses mathematical models, based on animal studies, to estimate the probability of a person developing cancer from breathing air containing a specified concentration of a chemical.

EPA has calculated an inhalation unit risk estimate of 8.8 × 10-6 (µg/m3)-1 for lifetime exposure to vinyl chloride.

Jon L.Gelman of Wayne NJ, helping vinyl chloride victims and their families for over 4 decades, is the author NJ Workers’ Compensation Law (West-Thompson) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson).  

Read more about "vinyl chloride"

Jan 29, 2010
The 5 substances that TSCA mandates regulations for are all known carcinogens: Asbestos, Hexavalent Chromium, Vinyl Chloride, Trichloethylene, Methyene Chloride and Dicloromethene. Since 1976 chronic and terminal ...
Aug 11, 2007
This case involved exposure to poly vinyl chloride at a Pantasote, a Paterson NJ plant, causing disease to former workers which is characteristic of Raynaud's phenomenon ( fingers blanch and numbnessand discomfort are ...
Feb 20, 2008
Secondhand smoke contains hundreds of chemicals known to be toxic or carcinogenic (cancer-causing), including formaldehyde, benzene, vinyl chloride, arsenic, ammonia, and hydrogen cyanide. Secondhand smoke has ...

US sues Los Arcos Mexican Grill & Seafood in Tennessee to recover unpaid minimum and overtime wages for 70 employees

Workers' Compensation payment rates are determined by the wages of the employee at the time of the accident. In fact, so are the premium paid by an employer for workers' compensation coverage. Accuracy in payment and reporting is critical to a favorable claim for benefits.

The U.S. Department of Labor has filed a lawsuit against Los Arcos Seafood & Grill Inc., doing business as Los Arcos Mexican Grill & Seafood in Nashville, and its owners, Jose Gutierrez Jr. and Martin Romo, for allegedly violating the Fair Labor Standards Act. The department is seeking $227,366 in back wages plus an equal amount in liquidated damages for 70 employees.

The suit is based on an investigation by the department's Wage and Hour Division, which found that the employer failed to pay employees at least the federal minimum wage of $7.25 per hour as well as provide overtime compensation at time and one-half employees' regular rates for hours worked beyond 40 in a week. Additionally, the employer failed to maintain accurate records of hours worked and wages paid.

"Low-wage workers deserve the full protection of federal labor laws," said Sandra Sanders, director of the division's Nashville District Office. "The Wage and Hour Division will continue to ensure that these workers, including employees of both full- and limited-service restaurants, receive their full pay, and employers who follow the law do not face unfair competition from those who ignore it. This lawsuit illustrates that the division will use every enforcement tool necessary to resolve cases in which vulnerable workers have been exploited."

The suit has been filed by the department's Office of the Solicitor in the U.S. District Court for the Middle District of Tennessee, Nashville Division.

The FLSA requires that covered employees be paid at least the federal minimum wage of $7.25 for all hours worked, plus time and one-half their regular rates, including commissions, bonuses and incentive pay, for hours worked beyond 40 per week. In general, "hours worked" includes all time an employee must be on duty, or on the employer's premises or at any other prescribed place of work, from the beginning of the first principal work activity to the end of the last principal activity of the workday. Additionally, the law requires that accurate records of employees' wages, hours and other conditions of employment be maintained.

Accessible and searchable information on enforcement activities by the Department of Labor is available at Publicly available enforcement data are also available through the free mobile application "Eat Shop Sleep," which enables consumers, employees and other members of the public to check if a hotel, restaurant or retail location has been investigated by the Wage and Hour Division, and whether FLSA violations were found. The app is available at

The division's Nashville office can be reached at 615-781-5343. Information on the FLSA and other wage laws is available by calling the division's toll-free helpline at 866-4US-WAGE (487-9243) or by visiting

Solis v. Los Arcos Seafood & Grill Inc., doing business as Los Arcos Mexican Grill & Seafood, and Jose Gutierrez Jr. and Martin Romo

Read More on "Wages"
Nov 14, 2012
The U.S. Department of Labor has recovered more than $213,000 in back wages for 1,028 foreign students employed in summer jobs in Palmyra where they repackaged candies for promotional displays. The settlement with ...
Jan 20, 2012
pilot, pay more than $1 million in back wages and damages. OSHA found airline violated whistleblower protection provision of AIR21. The U.S. Department of Labor's Occupational Safety and Health Administration has ...
May 01, 2012
Wal-Mart Stores Inc., headquartered in Bentonville, Ark., has agreed to pay $4,828,442 in back wages and damages to more than 4,500 employees nationwide following an investigation by the U.S. Department of Labor's ...
May 08, 2011
A lawsuit was filed last week against major players in the dot-com field for fixing employees wages. An employee's wage is a determining factor in workers' compensation claims to ascertain scheduled rates of compensation ...
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OSHA cites Mississippi Phosphates for 40 safety and health violations following 2 worker fatalities

The U.S. Department of Labor's Occupational Safety and Health Administration has cited Mississippi Phosphates Corp. with 40 safety and health violations following the deaths of two workers in separate incidents at the company's Pascagoula facilities. The fatalities led to comprehensive inspections by OSHA.

On May 22, an operator attempting to start up a steam turbine in sulfuric acid plant No. 2 was struck by flying metal debris when the turbine housing ruptured due to apparent overpressurization. In a similar incident on June 1, an operator restarting a tripped steam turbine in sulfuric acid plant No. 3 also was killed by flying metal debris when the turbine housing ruptured due to overpressurization.

OSHA has cited the company for three serious safety violations related to the fatalities, including exposing workers to "struck-by" hazards by not protecting them against overpressurization, and failing to maintain and service equipment in accordance with the company's maintenance program to prevent overpressurization.

An additional 23 serious safety violations involve failing to test and inspect pressure relief devices throughout the facility, provide handrails on fixed stairways, guard floor holes that could cause workers to trip and fall, provide fixed stairs to access tank gauging, address engineering controls during a process hazard analysis, and guard belt roller nip points, horizontal shafts, rotating shafts and horizontal V-belts. The violations also include various electrical hazards such as exposing workers to shocks, missing panel knockouts, broken face plates, unguarded light bulbs and an open ground in an outlet circuit.

Ten serious health violations involve failing to conduct an initial process hazard analysis, update the process hazard analysis every five years, conduct compliance audits for process safety management and determine the presence of asbestos prior to working on equipment, as well as to label hazardous substances such as caustic soda, acid and petroleum products that are used throughout the facility. 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.

One repeat health violation has been cited for a lack of housekeeping. 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 facility in federal enforcement states within the last five years. A similar violation was cited in May 2009.

Three other-than-serious safety violations are failing to mount a fire extinguisher so it is readily available, not labeling circuit breakers, and using flexible cords and equipment cables that do not have strain relief. An other-than-serious violation is one that has a direct relationship to job safety and health, but probably would not cause death or serious physical harm.

"Employers need to be proactive to ensure that all operating equipment is properly maintained and functional," said Clyde Payne, director of OSHA's Jackson Area Office. "Had this employer done so, these tragic events could have been prevented."
Mississippi Phosphates is a producer and marketer of diammonium phosphate, which is used as a fertilizer. The company's manufacturing facilities consist of two sulfuric acid plants, a phosphoric acid plant and diammonium phosphate granulation plant.
The citations for the serious and repeat violations carry total proposed penalties of $165,900. The citations for the other-than-serious violations do not carry monetary penalties. All citations can be viewed at
The company has 15 business days from receipt of the citations and penalties to comply, request an informal conference with the OSHA area director or contest the findings 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 Jackson office at 601-965-4606.

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

Read more about OSHA

Nov 08, 2012
"Falls are the leading cause of death for workers in residential construction," said Brian Sturtecky, OSHA's area director in Jacksonville. "Employers must take responsibility for ensuring that workers have and wear proper ...
Nov 05, 2012
"Storm recovery workers are working around the clock to clean up areas impacted by the storm," said Robert Kulick, OSHA's New York regional administrator. "We want to make sure that workers are aware of the hazards ...
Sep 21, 2012
Forklift injuries produce serious workers' compensation claims, so it is no surprise that the U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) is acutely concerned about forklift safety rule ...
Sep 14, 2012
"Asbestos is an extremely hazardous material that can potentially cause lifelong, irreversible health conditions," said John Hermanson, OSHA's regional administrator in Dallas. "It is imperative that OSHA's safety and health ...

Thursday, November 29, 2012

A Single Payer System Will Solve the Fiscal Cliff

As time marches on to yet another US fiscal crisis, the politicians continue to attempt to direct public attention between the nation's rich and the poor. It has become yet another well produced political campaign of sound bites with no real substance.

The most important issue is not whether the country has "guns or butter," for in the end it will have both. The question is whether the nation will recognize that the US needs tol take the bold step previously taken by the European Community, finally adopt a single payer medical care program.

The perpetual cost generator that continues to rage out of control in workers' compensation programs is the medical component. Medical costs are crashing the system to failure across the country, with no hope in sight for relief.

Robert Reich clearly stated the issue today in a posting on his blog:

"What worries me most about the tactical maneuvers over the "fiscal cliff" and "grand bargain" is that official Washington seems to be losing sight of the larger picture: We still have a huge number of unemployed, and many of those who have jobs continue to lose ground. If we were a sane society, we'd raise taxes on the rich in order to afford a first-rate system of public education for all our people, starting with early-childhood and extending through four-year college or technical; we'd borrow at historically-low rates (the yield on the ten-year Treasury is still below 1.4 percent) to put millions to work upgrading our crumbling infrastructure; and we'd turn our extraordinarily inefficient and costly healthcare system -- the single biggest driver of future budget deficits -- into a single-payer system focused on prevention and on healthy outcomes. Instead, we're locked into a game of chicken over the budget deficit, and preparing to cut public investments and safety nets.
Jon L.Gelman of Wayne NJ, is the author NJ Workers’ Compensation Law (West-Thompson) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson).  

Read more about "single payer systems" and workers' compensation
 NJ Urged to Adopt Single Payer System for Workmens Comp
Jun 06, 2011
NJ Urged to Adopt Single Payer System for Workmens Comp. A coalition that has been formed in NJ is urging that the Garden State follow the lead of Vermont and establish a single-payer system. Single-payer movements ...
Apr 03, 2011
The proposed state based Vermont Single-Payer health care system, that would embrace workers' compensation medical care, is gaining momentum. A recent article in the New England Journal of Medicine, citing increased ...
Mar 22, 2011
Vermont's proposed single payer system would seperate medical care from indemnity. Vermont's single proposed single-payer system would likely also provide a primary care doctor to every resident of Vermont. This would ...
Mar 05, 2011
The legislation " proposes to set forth a strategic plan for creating a single payer and unified health system. It would establish a board …. ; establish a health benefit exchange for Vermont as required under federal health care ...

"Under the Magnifying Glass" -- US Supreme Court Hears Arguments in ERISA Equitable Reimbursement Claim

The US Supreme Court this week heard arguments in the dispute over whether ERISA claims are subject to equitable reimbursement.

Jurist summaries the case and background:

"The case [SCOTUSblog backgrounder] concerns a former employee of US Airways, James McCutchen, who was injured in a car accident. McCutchen, as an employee, had a self-funded health plan that ended up paying out approximately $66,000 for his injuries. Through insurance payouts and a settlement from the negligent driver, even with a hefty attorney's fee levied against him, McCutchen ended up approximately $66,000 ahead. US Airways then demanded reimbursement of its health plan's payout, since McCutchen's medical care was covered by other insurance options, based on language in the plan itself. The US Court of Appeals for the Third Circuit, in defiance of several other circuits held [opinion] that "appropriate equitable relief" did not include revoking the payment to McCutchen.

Interestingly enough at oral argument justice Breyer directed the parties to the historia; implications of an equitable claim:

"JUSTICE BREYER: Well -- well, let me tell
you what I'm thinking of. The -- there is a contract
all written down. They forgot to put a seal on it.
They forgot to put a seal on it, so I guess it's now
1463 or some year like that. So they go into equity.
And now, they are in equity. And the
plaintiff says, judge, I want you to enforce this
contract. He says, I'm a judge in equity. He says, I
know, but we've agreed, and you enforce it in equity.

"The contract says give Smith all the wheat,
and equity says, you know, there are other people who
would like some of this wheat, too, so we are not going
to follow the contract. We are going to modify the
contract according to equitable principles, which, as
you say, they can do. And the other side says, no, they
wouldn't. They'd follow the contract. They are just in
equity because they forgot the seal.

"Okay. What is your best case to show they
did, indeed, modify it with the Common Fund Doctrine or
some other doctrine? I want to be sure to read it with
a magnifying glass

U.S. Airways v. McCutchen (11-1285)
Jon L.Gelman of Wayne NJ, is the author NJ Workers’ Compensation Law (West-Thompson) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson).  

More about "ERISA" and "workers' compensation"
Nov 13, 2012
ERISA health reimbursement claims asserted in Workers' Compensation claims may be subject to equitable relief depending on the upcoming decision in a case pending before the US Supreme Court. Oral argument is ...
May 27, 2010
The ERISA plan administrator originally, in October 2004 determined that no offset of workers' compensation benefits would be permitted based upon a specific loss date. In December 2007 the beneficiary was by the plan ...
Aug 15, 2008
2008) ,that held that an employee's state law negligence claim against her employer for the failure to maintain a safe workplace were not preempted by the Employee Retirement Income Security Act (ERISA]. The employee's ...

Reserves for Asbestos Losses Anticipated to be Deficient

Fitch Ratings estimates industry asbestos reserves to be deficient by $2 billion to $8 billion at year-end 2011. Asbestos reserves make up approximately 4% of total property/casualty industry reserves with approximately 50% of reserves concentrated in five insurers.

In a new report, Fitch examines a range of loss scenarios and future payments for asbestos losses up to an ultimate industry loss of $85 billion. Based on recent development experience and its latest analysis of loss payment scenarios, Fitch's target industry survival ratio is 11x-14x.

The reported industry survival ratio for asbestos liabilities increased modestly to 10.3x in 2011 from 10.1x in 2010 and 9.9x in 2009, indicating that incurred losses have expanded at a faster rate than paid losses in recent years.

Fitch's analysis reveals that the (re)insurance industry remains strongly capitalized with the capacity to absorb future asbestos claims without risk of material capital depletion. While Fitch does not anticipate broad rating actions related to asbestos, the ratings of individual companies could be adversely affected by the severity of reserve deficiencies relative to capital.

The full report is available on the Fitch web site at ''.

More about asbestos
Nov 14, 2012
In an effort to protect workers and public from deadly asbetsos fiber, the Canadian Province of Saskatchewan has now mandated that builings containing asbestos fiber be publically listed and the list published to the Internet.
Nov 04, 2012
The path of destruction to buildings caused by hurricane Sandy has created a potential threat of deadly asbestos exposure. Many structures destroyed and damaged by the storm contained asbestos fiber and those were ...
Nov 08, 2012
Today in Boston a steam pipe burst near Boston City Hall exposing the population to cancer causing asbestos fiber. Asbestos continues to be a major health hazard since it remains in construction material exposuing workers ...
Sep 04, 2012
The Canadian Journal of Medicine had also endorsed a ban on Canadian asbestos production. "Canada's government must put an end to this death-dealing charade. Canada must immediately drop its opposition to placing .

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Imagining A World With No Workers' Compensation Lawyers

Today's post comes from guest author Leonard Jernigan from The Jernigan Law Firm.

On January 13, the North Carolina Department of Labor announced that 53 people died on the job in North Carolina in 2011. Labor Commissioner Cherie Berry was quoted as saying: "the real tragedy is that all of the these fatalities could have been avoided." I wholeheartedly agree. 53 deaths is 53 too many. 

When I see news stories about explosions and other tragic events that needlessly harm or kill workers, often spewing toxic chemicals into the surrounding environment harming entire communities, I can't help but think about how it all could be avoided if companies embraced a culture that puts safety first and simply followed the proper guidelines and procedures. I see companies spend a lot of time and money to fight the Occupational Health and Safety Administration (OSHA) over fines and penalties but rarely see the same effort being put into protecting their workers in the first place.

Employers, I challenge you to make safety as much of a priority as profits. Stop wasting time and money fighting against worker safety and instead focus your efforts on saving lives.

It may be hard to believe given my chosen profession as a workers' compensation lawyer but if I had my way, workers' compensation lawyers like me would be obsolete. We'd go the way of horse-drawn carriages and 8-tracks. 

We exist because many companies treat worker safety as an afterthought. The workers' compensation system provides employers with immunity from lawsuits for most on the job injuries -- they are required to buy workers' compensation insurance, so why bother spending more to protect workers if they get no return on that money spent?

OSHA's inspections are few and far between, so unsafe conditions go unreported for too long. We all see how big corporations are expected to deliver increasing profits each quarter. Annual reports do not list dead workers, even as footnotes. 

In the classic novel To Kill A Mockingbird by Harper Lee, attorney Atticus Finch tells his daughter Scout that she needs to walk around in another man's shoes before passing judgment on him. I try to do likewise with employers and have tried this intellectual exercise. I know that if I ran a big plant, I could not live with myself unless I was trying my hardest to make sure my employees had the safest possible environment to work in, and to make sure that my company was obeying the law. 

When I imagine having the deaths or illnesses employees on my conscience, those proverbial "shoes" get so heavy that it is impossible for me to empathize with many company owners and leaders. Employers, I challenge you to make safety as much of a priority as profits. Stop wasting time and money fighting against worker safety and instead focus your efforts on saving lives. 

Workers, if your workplace has an unsafe working condition, or if you are being ordered to act in a way that is unsafe or in contradiction of the printed safety warnings on machinery, contact the Department of Labor immediately. It's a call that could save your life. Working together, we can eliminate workplace injuries and send me into early retirement.

More about "safety"
Nov 16, 2012
Hostess Brands, who has failed to meet OSHA safety requirements in the past and was fined by OSHA, has now decided to just call it quits. The company, who makes junk food, had no shelf life left, and has announced that it ...
Oct 25, 2012
NJ has issued an immediate warning concerning power generator safety and back-feeding of electric current through the use of generators. At a press conference Governor Christie warned the residents of NJ to be cautious ...
Nov 02, 2012
In the aftermath of Hurricane Sandy, Northern Jersey 1st responders are confronting serious safety issues as these heros go forward with the rescue and recovery process. While some are acts of nature cause near fatal and ...
Oct 24, 2012
From a fall resulting in a dislocated shoulder, to an open flame resulting in second degree burns, each year the US Consumer Product Safety Commission (CPSC) receives reports of injuries involving Halloween-related ...