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

Thursday, February 28, 2013

California, Workers' Compensation and The Nuclear Option

There has been a call among eminent commentators in California to invoke “The Nuclear Option,” abolishment of the Workers’ Compensation Act entirely.  The suggestion was aired in response to proposed legislation (AB 1309) that would implement a statutory limitation on extraterritorial coverage for professional athletes and reflects a trend to emasculate the benefit program by incremental “take backs.”  

An analysis demonstrates that the law, proposed by California Insurance Committee Chairman Henry Peres (D-Fresno), may indeed be the triggering mechanism to implode the entire system both in California and in the Nation. It may very well be the sentinel event.

California has had a logarithmically problematic workers’ compensation program for at least the past 3 decades. It has been literally a political football. The promise to provide a simple, economically conservative and expeditious administrative system of benefits has turned into an outright nightmare. Both labor and Industry have tried, to no avail, to meet those noble goals against a tide of crippling economic downturn, new and costly medical modalities, waves of emerging occupational diseases, and an onslaught of outside vendors who are “eating the lunch” of the system.

Injuries Arising Out of Employment – Is the Concept Shrinking?

Today's post comes from guest author Tom Domer from The Domer Law Firm.

A headline article noted the following: “Virginia Court: Waiter’s choking on quesadilla did not arise out of employment.” The Virginia Court of Appeals ruled a waiter who was injured while working attempting to swallow a piece of quesadilla too big for his esophagus cannot collect worker’s compensation benefits.

The injury caused an esophageal perforation and collapsed lung. The Court, however, found the injury was not as a result of an actual risk of employment.

The claimant worked as a host and waiter at a local T.G.I. Friday’s restaurant and part of his work responsibilities was to make food recommendations. T.G.I. Friday’s conducted food tasting demonstration programs to introduce menu items to its staff so the staff could describe the taste to customers and recommend these items.

The tastings were provided free to the employees and while the employees were on the clock. T.G.I.Friday’s required attendance but no employee was forced to eat anything they did not want to eat. The Worker’s Comp Commission found that since the worker was not required to taste anything, the injury did not arise out of an actual risk of his employment.

E-Filing Is A Good Thing

Workers' Compensation attorneys need to adapt to new technology. A case in point is electronic filing.

The Bob Cummings Show
January 2, 1955 to September 15, 1959
Two jurisdictions recently have sparked efforts for adaptation to new procedures designed to implement more expeditious and cost savings measures.

Over fifty years ago, there was a sit-com on TV, The Bob Cummings Show. The program mocked a GrandPa's ability to adopt to new technology. The aging parent used gifts of an electric blanket as a bread warmer, and an electric rotisserie as a sock dryer.

NJ has adopted e-filing of motion practice that speeds docketing and service of pleadings in the vast majority of cases. While not mirroring the stellar Federal Court Case Management Electronic Filing System with compete exhibit PDF submissions permitted, it does make major improvements to the process.

Florida has reported, that despite offerring an e-filing, parties are still entrenched in their old and wasteful habits of using USPS Certified Mail for process.

Wednesday, February 27, 2013

Knee Replacement Medical Device Recalled

The US Food and Drug Administration  (FDA) has notified healthcare professionals of a Class I recall of the LPS Diaphyseal Sleeve, a manufactured medical device used in human knee replacement surgery.
It has been found that The LPS Diaphyseal Sleeve to Diaphyseal Sleeve Base taper connection may not be sufficient to accommodate potential physiologic loads that may be transferred to the junction during normal gait activities by some patients. This may result in fracture of the sleeve at the taper joint which may also lead to loss of function or loss of limb, infection, compromised soft tissue or death.
The device was manufactured by: DePuy Orthopaedic, Inc, a company owned by Johnson and Johnson.

Tuesday, February 26, 2013

Average Weekly Wage Decides Workers’ Comp Benefits

Guest blog by Jon Rehm of the Nebraska Bar

One of the factors that determines how much you receive in workers’ compensation benefits is the calculation of your average weekly wage. In Nebraska, in most cases, average weekly wage is calculated by:
  1. going back 26 weeks
  2. multiplying your hours times your straight time pay
  3. excluding abnormally low-hours weeks (generally those of 32 hours a week or less)
  4. taking the total amount of wages earned in non-abnormally low work weeks divided by the number of non-abnormal weeks. 
Multiply your average weekly wage by two-thirds, and that is what you should receive for your weekly workers’ compensation benefit. That amount is exempt from federal and state taxes in Nebraska, so your work comp check should oftentimes be close to your actual take-home pay, unless you are working a lot of overtime.

Monday, February 25, 2013

Workplace Violence and Sandy Hook Elementary School

Today's post comes from guest author Kristina Brown Thompson from The Jernigan Law Firm.

In light of the horrific elementary school shootings in Newtown, Connecticut last week it may be time to re-evaluate workplace violence, which seems to be increasing at an alarming rate. 

Technically, workplace violence is any act where an employee is abused, threatened, intimidated, or assaulted in the workplace. It can include threats, harassment, and verbal abuse, as well as physical attacks by someone with an assault rifle. 

Two million American workers are victims of workplace violence every year. What's worse is that workplace violence is one of the leading causes of job-related deaths in the United States. Last year, for example, one in every five fatal work injuries was attributed not to accidents but to workplace violence,  and  some employees are at an increased risk for harm. For example, employees who work with the public or who handle money are more at risk (i.e. bank tellers, pizza delivery drivers, or social workers). 

Thursday, February 21, 2013

Out-of-State Work-Related Injuries: What You Need to Know

Today's post comes from guest author Brian M. Wright from Causey Law Firm of  the State of Washington

If you are a Washington resident working for an employer who operates in Washington and you are injured in another state, you probably have a Washington State workers’ compensation claim. Additionally, you might have a valid claim in the other state, as well. 

In all of the above scenarios, you may have the ability to file your claim in multiple states. Generally, you will have the option of filing in:

1)    the state in which you were injured;
2)    the state in which you primarily worked; and
3)    the state in which you entered into your employment contract.

If you are injured outside Washington, or whatever state in which you normally work, it is important to evaluate your options and file wherever you might have a legitimate claim. It is possible that you have remedies available to you in more than one state.

EPA Fines Arizona School Districts for Asbestos Violation

The U.S. Environmental Protection Agency has fined six Arizona school districts a combined total of $94,575 for Asbestos Hazard Emergency Response Act (AHERA) violations. More than 15,000 children attend the 25 schools not in compliance with the federal AHERA in these districts. 

During inspections conducted in 2011, EPA inspectors discovered numerous violations, from failing to inspect facilities for asbestos containing materials, failing to re-inspect campuses with known asbestos containing materials, and failing to have an Asbestos Management Plan. All of the school districts have since taken necessary actions to comply with the law, with the cost of compliance reducing the penalties in most cases to zero. 

“Asbestos in schools has the potential to harm the health of students, teachers, and maintenance workers,” said Jared Blumenfeld, EPA’s Regional Administrator for the Pacific Southwest. “EPA takes these violations seriously, and we are satisfied the schools have now conducted inspections and put their asbestos plans in place.” 

Each school district is allowed to subtract properly documented costs of complying with the regulations from the penalty amount. The six school districts are: 
· Apache Junction Unified School District (Pinal County): fined $21,675, but this was reduced to $7,933 because of the school district’s cost of achieving compliance. 
· St. John’s Unified School District (Apache County): fined $14,195, reduced to $824 by the school district’s cost of achieving compliance.
· Florence Unified School District (Pinal County)fined $31,705, but no cash payment was due because the documented costs of compliance exceeded the penalty. 
· Vernon Elementary School District (Apache County): fined $2,700, but no cash payment was due because the documented costs of compliance exceeded the penalty. 
· McNary Elementary School District (Fort Apache Indian Reservation): fined $14,200, but no cash payment was due because the documented costs of compliance exceeded the penalty.
· Round Valley Unified School District (Apache County): fined $10,100, but no cash payment was due because the documented costs of compliance exceeded the penalty.
Federal law requires schools to conduct an initial inspection using accredited inspectors to determine if asbestos-containing building material is present and develop a management plan to address the asbestos materials found in the school buildings. Schools are also required to appoint a designated person who is trained to oversee asbestos activities and ensure compliance with federal regulations. Finally, schools must conduct periodic surveillance and re-inspections of asbestos-containing building material, properly train the maintenance and custodial staff, and maintain records in the management plan.

Local education agencies must keep an updated copy of the management plan in its administrative office and at the school which must be made available for inspection by parents, teachers, and the general public.

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

CMS Announces New WCMSA Re-Evaluation Procedure

February 12, 2013

Effective immediately, if a WCMSA proposal amount was originally submitted via the web-portal,  a re-evaluation of an approved WCMSA amount can be requested through the WCMSA web portal, if the claimant or submitter believes that a CMS determination:

• contains obvious mistakes, such as mathematical errors or a failure to recognize that medical records already submitted show a surgery CMS priced has already occurred, or
• misinterpreted evidence previously submitted, a re-evaluation maybe requested.  

Please refer to  Question # 12 of the July 11, 2005, procedure memorandum located in the “downloads” section of this page for detailed information regarding when a  re-evaluation request maybe submitted.  The CMS Regional Offices will continue to review the requests submitted through the portal.

Posted on CMS Workers Compensation Agency Services

Read more about WCMSA and workers' compensation 

Jan 03, 2012
Address for submitting annual accounting documentation to CMS' Medicare Secondary Payer Recovery Contractor (MSPRC). Please send your completed annual Workers' Compensation Medicare Set-aside Arrangement ...
Dec 19, 2008
The Centers for Medicare and Medicaid Services (CMS) has now published a copy of its Operating Rules regarding the evaluation of set-aside proposals. CMS cited that distribution of this material may reduce review time by ...
Jun 06, 2008
CDC in Reviewing WCMSA Limits Review to One Life Expectancy Table. Effective July 1, 2008 the Centers for Medicare and Medicad (CMS) will exclusively use the Centers for Disease Control (CDC) Table 1 (Life Table for ...
Sep 10, 2009
CMS Lists How to Avoid 10 Top WCMSA Errors. The Centers for Medicare and Medicaid Services has now posted the 10 top errors on Workers' Compensation Set Aside Agreement submissions and how to avoid them: 1.

Wednesday, February 20, 2013

State Audit Reveals North Carolina Needs To Combat Employer Fraud

North Carolina needs to do more to combat employer fraud according to a recent State of NC audit. Business in NC are just not complying with the law to have workers' compensation insurance coverage. They are placing citizens of NC at risk.

NC Official State Audit
The report concludes that, "....the Commission does not have the complete, accurate, and reliable data necessary to proactively identify noncompliant businesses......the Commission does not follow up on workers’ compensation insurance cancellations and lapses that the Rate Bureau reports to the Commission....the Commission has not strictly enforced penalty assessments and collections on businesses that fail to comply with the Workers’ Compensation Act."
Workers' Compensation insurance is a requirement for companies doing business in NC. Companies can comply by maintaining workers' compensation insurance, self-insuring, or becoming a member of or contributing to a self-insured fund.

Click here to read the complete report: Performance Audit NC Industrial Commission - Workers' Compensation Program - February 2013

Click here to read more about NC and Employer Fraud at the North Carolina Workers' Compensation Journal (Leonard Jernigan member of the NC Bar)

All Forms of Asbestos Cause Cancer

In a joint statement the World Health Organization (WHO) and the International Agency for Research on Cancer (IARC) again declared all forms of asbestos cause cancer.

Joint WHO/IARC Statement
19 February 2013
In response to allegations in the recent Lancet article, IARC in the dock over ties with asbestos industry (The Lancet, doi:10.1016/S0140-6736(13)60152-X), WHO and IARC (International Agency for Research on Cancer) state the following:
  • All forms of asbestos are carcinogenic to humans (IARC Monographs Volume 100C) and stopping the use of all forms of asbestos is the most efficient way to eliminate asbestos-related diseases (WHO Fact Sheet No 343).
  • The study on cancer in chrysotile workers in Asbest, Russian Federation, for which IARC is providing its epidemiological expertise, will supply important scientific information to better quantify the risk of cancers already known to be related to chrysotile as well as additional cancers suspected to be related to chrysotile, the asbestos fibre is the most commonly produced.
  • WHO and IARC take conflict of interest seriously and use a rigorous process to protect our research and development of norms, standards and guidelines from undue influence.
  • IARC confirms the completeness and accuracy of all data and statements of scientific results published in the British Journal of Cancer (Estimating the asbestos-related lung cancer burden from mesothelioma mortality, doi:10.1038/bjc.2011.563) and presented at a conference in Kiev.
IARC, as WHO’s cancer research agency, remains committed to providing the most reliable, independent scientific evidence on which public health decisions can be based.

Tuesday, February 19, 2013

When Should A Disabled Worker Take Social Security Benefits

Disabled workers are faced with complex decisions on when they should take Social Security benefits. The senario is complicated with the addition of  workers' compensation benefits and pensions, especially if they are married and/or have dependent children.

Answers to maximizing Social Security benefits are now available on-line as reported by the PBS Newshour. Several versions, including a free basic version, of software is available from Laurence Kotlikoff, Professor of Economics at Boston University. A version called, Maximize My Social Security is available for a licensing fee of $40.00 per year.

Monday, February 18, 2013

What is the Most Common Mistake People Make When They File for Unemployment?

Cooperating with the unemployment claims adjudicator can help you get benefits.

Today's post comes from guest author Jon Rehm from Rehm, Bennett & Moore.

Answer your phone.

This is the advice a friend of mine who works as an unemployment claims adjudicator would give to people filing unemployment.

Oftentimes people are denied unemployment benefits they earned through their employer because they neglect to cooperate in the initial investigation of their claim. An adjudicator is assigned to determine eligibility for unemployment benefits. In short, they talk to you and your employer about why you are no longer employed. If the adjudicator determines that your were fired for intentionally disregarding reasonable work-related expectations of your employer or that you quit without good cause, then you will be found not to be eligible for unemployment benefits. Of course, you can appeal that decision, but that will lead to a delay in you receiving benefits, and it might also mean finding a lawyer to represent you in the appeal hearing.

Sunday, February 17, 2013

The Missouri Compromise - 2013

It looks like Missouri is not going to ditch their Second Injury Fund (SIF) after all. The Missouri Senate did a turn around and passed legislation to fund the insolvent SIF.

Part of the compromise was to limit liability of occupational disease claims against employers and re-establish the exclusivity bar. Albiet, the SIF would provide additional monetary benefits to those exposed at work.

While it sounds nice on paper, the problem, of using a band-aide to permanently correct the overall concerns of both Industry and Labor, will not work in the long-run. Actually this has been tried before and already failed. Employers notoriously dodge the bullet and delay and deny occupational claims even though they are difficult to defend against.

When the going gets tough, down the road, Industry will end up further restricting the benefit flow to injured workers, and medical delivery will then remain non-existent. Consequentially, the end result is that the general taxpayer and not the consumer, ends up paying for the continued unsafe work practices of Industry.

The Missouri Compromise 2013 is only a first step in recognizing a problem exists. It demonstrates that legislators from different parties can reach a compromise. The real fix would be even greater OSHA enforcement of safety procedures, new Federal regulation and, a universal health care system.

George Washington, Born February 22, 1732

"Labour to keep alive in your breast that little spark of celestial fire, called conscience."
GEORGE WASHINGTON, Rules of Behavior

The Father of Our Country
George Washington (22 February 1732 – 14 December 1799) was the  Commander-in-Chief of the Continental Army in theAmerican Revolutionary War from 1775 to 1783, and later became the first President of the United States, an office to which he was elected, unanimously, twice and remained in from 1789 to 1797. 

Thursday, February 14, 2013

Obama to Increase Workers' Compensation Benefits

President Obama announced a plan this week that will increase benefits paid to injured workers though workers' compensation insurance. Obama intends to increase the minimum wage from $7.25 to $9.00 per hour and "index" future increases.

The majority the nation's patchwork of workers' compensation systems are based on a payment scheme linked to wages. The State Average Weekly Wage (SAAW) establishes the foundation upon which temporary disability and permanent disability payments are determined. As wages increase so will benefits.

President Barack Obama
Delivering The State of The Union
White House Photo: Chuck Kennedy
A White House spokesperson announced that, "The President’s plan strengthens the middle class by making America a magnet for jobs, equipping every American with the skills they need to do those jobs, and ensuring hard work leads to a decent living."

"The President believes that no one who works fulltime should have to raise their family in poverty. But right now, a full-time minimum wage worker makes $14,500 a year – which leaves
too many families struggling to make ends meet, with a family of four with a minimum wage worker still living below the poverty line. That’s why the President is calling on Congress to raise the Federal minimum wage for working Americans in stages to $9 in 2015 and index it to inflation thereafter."

Related articles

Just Published - 2013 Update to Gelman on Workers' Compensation Law

Jon Gelman’s newly revised and updated treatise on Workers’ Compensation Law has just been published by West Group of Egan, MN. The treatise is the most complete work available on NJ Workers’ Compensation law.

The work offers an in-depth and insightful analysis that provides a quick and accurate guidance to those who practice workplace injury law. Time-saving comments and instructions shorten the claims process and expedite handling of issues.

Gelman on Workers’Compensation Law is exclusively integrated into the entire world-wide leading legal research network of West Group-Reuters-Thomson publications.

It is now available, in print, on CD-Rom and online via Westlaw™ and WestlawNext™.

Click here now to order your copy.

Jon L. Gelman is nationally recognized as an author, lecturer and skilled trial attorney in the field of workers’ compensation law and occupational/environmental disease litigation. Over a career spanning more than three decades he has been involved in complex litigation involving thousands of clients challenging the mega-industries of: asbestos, tobacco and lead paint. Gelman is the author NJ Workers’ Compensation Law (West-Thompson) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson). He is the former Vice-President of The Workers Injury Law & Advocacy Group (WILG) and a charter member of The College of Workers' Compensation Lawyers. Jon is a founder of the Nancy R. Gelman Foundation Inc., which seeks to fund innovative research to cure breast cancer. He is also an avid photographer.

Surprising Findings On Baby Boomers and Worker’s Compensation (part 1)

Today's post comes from Tom Domer of the Wisconsin Bar.

What is the impact on worker’s compensation from aging Baby Boomers who have postponed their retirement, working much longer than the previous generation? In a recent study by the NCCI (National Council on Compensation Insurance, Inc.) some interesting and surprising conclusions resulted. It is not surprising that the number of older workers is increasing. The study looked at the frequency and severity across age groups and tried to identify factors that accounted for the severity of injuries between older and younger workers. Among the key findings are the following:
  • The major difference among age groups occurs between the 25-34 and the 35-44 age groups. All workers 35-64 appeared to have similar costs per worker. These reassuring findings suggest an aging workforce may have a less negative impact on the lost cost per worker than many analysts originally thought.
  • Many workers’ compensation professionals have the belief that younger workers have a much higher injury rate. That appears not to be true any longer. Differences in frequency by age have virtually disappeared.
  • The major factor involving older workers involves severity. Older workers tend to have more shoulder rotator cuff claims and knee injuries while younger workers have more back and ankle sprains.
  • Higher wages for older workers are a key factor leading to higher costs for older workers. On the medical side, more treatment per claim has increased medical costs.
The study indicated that older workers account for an increasing share of the U. S. workforce. In particular, the share of workers age 55-64 has been growing steadily. The number of workers

Tuesday, February 12, 2013

Abraham Lincoln


Abraham Lincoln
b. February 12, 1809

Gettysburg Address (November 19, 1863)
by Abraham Lincoln
Note: There are 5 known versions of the Getty's Address.
This is the version of the text inscribed on the walls at the Lincoln Memorial in Washington D.C.

Do I Have to Take a Drug Test?

Guest post by Jon Rehm of the Nebraska Bar.

I recently received the following inquiry from a potential client via the Internet:

“I had an accident at work and broke my hand. I went to the doctor the same day and was treated for it. While I was there I never gave a urine or blood sample. The next day my boss asked if I would take a random test and I declined because they can’t prove I was under the influence at the time of the accident, not saying I was. So was that the right or wrong thing to do?”

Before responding to this worker’s situation, I would ask questions that included the following thoughts, depending on where the worker was within the workers’ compensation and employment process:
Where was the worker from, as laws vary from place to place?
Who is/was the worker’s employer?
What was the worker doing when injured?
What is the employer’s policy on random drug testing?
Is the worker still employed at the company?
Is the worker receiving workers’ compensation benefits?

Get Sodium Out Of Workers' Diets

Today NYC Mayor Mike Bloomberg announced that 21 companies are voluntarily reducing sodium in packaged or restaurant foods. 

The indirect beneficiaries are both employers and employees who are served or purchase prepackage foods in employer cafeterias and restaurants  Sodium has been causally connected to risk of increased illness and disease. 

Monday, February 11, 2013

Jobs, Growth & Universal Healthcare

Robert Reich, in a 3 minute video, states the reasons why jobs, growth and universal healthcare are needed to expand the US economy. 

This is reflective of the issues plaguing the nation's workers' compensation system, especially soaring medical delivery costs (administrative, clinical and pharmaceutical).  

Read more about "universal healthcare" and workers' compensation:

Feb 01, 2013
Medical care afforded by workers' compensation delivery systems will ultimately be merged into a universal national program, despite all the opposition along the way. My friend, and cycling inspiration, who keeps me trying to ...
Nov 09, 2012
Going forward it is imperative that a universal medical program be established to provide medical treatment for all work-related occupational injuries and exposures. The delay and denial of medical benefits to those who suffer ...
Jul 05, 2012
Those efforts demonstrate a commitment to bring the nation ever closer to a universal care medical program incorporating the entire patchwork of workers' compensation medical delivery systems. The US Supreme Court has ...
Mar 05, 2011
Vermont Universal Health Care to Embrace Workers Compensation. A two-stage bill in Vermont is geared to establishing a single-payer medical health care system that would include medical for workers' compensation ...

Last Day to Sign: Protect American workers from exposure to silica on the job.

For about 100 years workers have been dying from exposure to silica on the job. Silica can cause both lung disease (silicosis) and cancer. The government have been talking about regulating exposures ever since the 1940s and sponsored a campaign to prevent silicosis in the 1990s. OSHA has drafted a proposal to reduce silica exposures in the workplace but it has been sitting at the White House OMB for almost 2 years! It is about time to move forward and promulgate a silica standard to protect American workers. Please sign this petition if you want to see action.
Click here to sign the The Whitehouse Petition

Read more about "silica" and workers' compensation

11 hours ago
A foundry worker, who was exposed to silica for over 35 years, was held by a NJ Workers' Compensation Judge, to have contracted a fatal lung cancer as a result of his employment. His spouse was awarded dependency ...
Feb 05, 2013
The Laborers International Union (LIUNA) has set up petition to the White House, urging the executive to move forward on the proposed OSHA rule to reduce silica exposures. You can join the 2700 other people who have ...
Jun 22, 2012
Because large quantities of silica sand are used during hydraulic fracturing, NIOSH began a cooperative effort in January 2010 to collect data regarding silica exposure at hydraulic fracturing operations. NIOSH worked in ...
Jan 03, 2010
"Crystalline silica is a significant component of the earth's crust, and many workers in a wide range of industries are exposed to it, usually in the form of respirable quartz or, less frequently, cristobalite. Chronic silicosis is a ...

National Constitutional Museum

National Constitutional Museum
Today's guest post comes from Leonard Jernigan of the North Carolina Bar.

When most Americans visit Philadelphia they go to see the Liberty Bell and Independence Hall where the U.S. Constitution was signed on September 17, 1787 by our founding fathers. 42 individuals signed the Constitution in this room after vigorous debate for months.

At the other end of Independence Mall sits the impressive National Constitutional Museum and on the front of the building the words "We The People" are prominently displayed. In this facility there is a "theater in the round" where a live actor makes a presentation about the Constitution and the beginning of our democracy.

Sunday, February 10, 2013

Silica Linked to a Fatal and Compensable Lung Cancer

A foundry worker, who was exposed to silica for over 35 years, was held by a NJ Workers' Compensation Judge, to have contracted a fatal lung cancer as a result of his employment. His spouse was awarded dependency benefits.

Compensation Judge, Philip A. Tornetta, in a recently published decision (Johnson v. Campbell CP NO. 2007-11564), found that a worker's adenacarcinoma was related to his exposure at on the job. The Judge based his decision upon a review of the death certificate, Material Data Safety Sheets, hospital records, oral testimony from the surviving spouse, and expert medical testimony.

Following the landmark NJ Supreme Court decision in Fiore v. Consolidated Freightways, 140 NJ 452 (1995) [an occupational heart claim], and Lindquist v. City of Jersey City Fire Department, 175 NJ 244 (2003) [mandating evidential review of scientific evidence], the Court reasoned "the preponderance of the credible evidence" proven the exposure to caused a compensable and fatal medical condition.

The Obama Administration is reviewing proposed rules to reduce exposure to silica in the workplace. It is anticipated that they will be adopted shortly. Judge Tornetta's decision reflects the urgency of the need to promulgate silica regulations immediately. 

Read more about "silica" and workers' compensation:

Feb 05, 2013
The Laborers International Union (LIUNA) has set up petition to the White House, urging the executive to move forward on the proposed OSHA rule to reduce silica exposures. You can join the 2700 other people who have ...
Jun 22, 2012
Because large quantities of silica sand are used during hydraulic fracturing, NIOSH began a cooperative effort in January 2010 to collect data regarding silica exposure at hydraulic fracturing operations. NIOSH worked in ...
Jan 03, 2010
"Crystalline silica is a significant component of the earth's crust, and many workers in a wide range of industries are exposed to it, usually in the form of respirable quartz or, less frequently, cristobalite. Chronic silicosis is a ...
Jan 21, 2010
Insofar as silica dust impairs cellular defense, silica-exposed workers (without silicosis) may be at increased risk for fungal infections, as they are for mycobacterial infections." Concurrent Silicosis and Pulmonary Mycosis at ...

Friday, February 8, 2013

What To Do Before A Major Snow Storm Strikes

As weather forecasters begin to label the impending Northeast Snowstorm as "The Snowstorm of the Century" employers and employees at taking preparations to avoid adverse exposures and serious injurieis during a time of cold and stress.The US Centers for Disease Control has announced a preparatory list of things to be done in advance of the storm.

Stock up on emergency supplies for communication, food, safety, heating, and car in case a storm hits.

Communication Checklist

  • Make sure you have at least one of the following in case there is a power failure:
  • Find out how your community warns the public about severe weather:
    • Siren
    • Radio
    • Television
  • Listen to emergency broadcasts.
  • Know what winter storm warning terms mean:
    • Winter Weather Advisory: Expect winter weather conditions to cause inconvenience and hazards.
    • Frost/Freeze Warning: Expect below-freezing temperatures.
    • Winter Storm Watch: Be alert; a storm is likely.
    • Winter Storm Warning: Take action; the storm is in or entering the area.
    • Blizzard Warning: Seek refuge immediately! Snow and strong winds, near-zero visibility, deep snow drifts, and life-threatening wind chill.

Thursday, February 7, 2013

Unsafe to Travel – "America is one big pothole”

Outgoing US Secretary of  The Department  of Transportation (DOT) , Ray LaHood, described the deteriorating safety conditions of the nation’s transportation system. Reverberating are the statistics demonstrating  increased  dangers to workers who utilize it.

Employees and employers would be wise to start pressing Congress to update the transportation system which is now falling to the level of a third world country. Health, welfare and reduced workers' compensation claims would result.

LaHood: ‘America is one big pothole’ "America is one big pothole right now," LaHood said in an interview on "The Diane Rehm Show" on National Public Radio.

"At one time ... we were the leader in infrastructure," LaHood continued. "We built the interstate system. It's the best road system in the world, and we're proud of it. But we're falling way behind other countries, because we have not made the investments."

... "The next decisions that will be made by this Congress, by this administration will have to be bold if we're going to continue our efforts to fix up our roads, keep our highways in a state of good repair, to fix up unsafe bridges," he said. "We need a bold plan, and a bold way to fund it."

Nursing Facilities Have Higher Incidence Of Workplace Injury Than Construction

Today's post comes from guest author Nathan Reckman from Paul McAndrew Law Firm.

According to the U.S. Department of Labor Bureau of Labor Statistics “Workplace Injuries and Illnesses – 2010” report, the United States is becoming a safer place to work. In 2010, there were 3.1 million non-fatal work injuries reported. This translates to 3.5 injuries per 100 full-time equivalents, a slight decrease from the 2009 rate of 3.6 injuries per 100 full-time workers. The rate of injuries per 100 workers has been decreasing every year since 2002. In 2010, Iowa reported an above average number of work injuries, averaging 4.4 injuries per 100 full-time equivalent workers.

Tuesday, February 5, 2013

Misclassification Fraud Across the Country

Today’s guest post comes from guest author Leonard Jernigan from the North Carolina Bar.

“Misclassification” is a poorly chosen word to describe fraudulent conduct by employers who misclassify the status of their employees. For example, a roofing company may have 30 roofers doing the actual work but these workers are classified as “independent contractors” instead of employees. 

Why would they do that? At the end of the year these workers are sent a 1099 tax form that reports the wages paid, but the employer does not make any deductions for Medicare or unemployment, and doesn’t pay for workers’ compensation insurance. 

If you have a roofing company and you properly classify your employees, you are at a competitive disadvantage in bidding on jobs. Honest businesses are hurt by misclassification, and taxpayers are hurt because they pick up medical bills and other expenses created when one of these “independent contractors” gets hurt.

Protect American workers from exposure to silica on the job

At least 1.7 million construction workers could be protected from cancer-causing silica if an OSHA protection – stalled for two years – is put into action.

The Laborers International Union (LIUNA) has set up petition to the White House, urging the executive to move forward on the proposed OSHA rule to reduce silica exposures.  You can join the 2700 other people who have signed on here:

Sign the petition.

In the time it takes to create an account at the White House website – about three minutes – at least three more workers will have been exposed to silica. 

Monday, February 4, 2013

World Cancer Day 2013

1.5 million premature cancer deaths could be prevented per year if targets set to reduce NCDs are met by 2025

On World Cancer Day, UICC and International Agency for Research on Cancer (IARC) reveal real-life impact of achieving goal

Monday 4 February 2013 – World Cancer Day: Geneva, Switzerland – The Union for International Cancer Control (UICC) and the International Agency for Research on Cancer (IARC) today announced that 1.5 million lives which would be lost to cancer, could be saved per year if decisive measures are taken to achieve the World Health Organization’s (WHO) ‘25 by 25’ target; to reduce premature deaths due to non-communicable diseases (NCDs) by 25% by 2025.[i]

Currently, 7.6 million people die from cancer worldwide every year, out of which, 4 million people die prematurely (aged 30 to 69 years).i So unless urgent action is taken to raise awareness about the disease and to develop practical strategies to address cancer, by 2025, this is projected to increase to an alarming 6 million premature cancer deaths per year.

“The estimate of 1.5 million lives lost per year to cancer that could be prevented must serve to galvanise our efforts in implementing the World Health Organization’s (WHO) ‘25 by 25’ target,” said Dr Christopher Wild, Director of IARC. “There is now a need for a global commitment to help drive advancements in policy and encourage implementation of comprehensive National Cancer Control Plans. If we are to succeed in this, we have a collective responsibility to support low- and middle-income countries who are tackling a cancer epidemic with insufficient resources.”

The 1.5 million lives lost per year represent 25% of the estimated 6 million premature cancer deaths that will occur by 2025, and the 6 million figure is itself based on population projections of current numbers and aging.[1]

Russian Money Interests Are Milking the Asbestos Cash Cow

The International Ban Asbestos Secretariat today reports about the corrupt connection between the Russian asbestos industrry and the IARC (the International Agency for Research on Cancer). To advance the mining and exportation of a known carcinogen, asbestos, and furthering the sufferring from asbestosis, lung cancer and mesothelioma is an uncontionable act.
"Far from being coincidental, the research being conducted, the conferences being held and the papers being published are part of a long-term, orchestrated plan by asbestos stakeholders to counter all attempts to tarnish the image of chrysotile asbestos, a substance which continues to be sold in large quantities around the world. As long as money is to be made, the industry will leave no stone unturned in its quest to milk the asbestos cash cow. It is sad to see that they may now have new allies to help them do so."
Click here to read the complete article: The Lancent Highlights the IARC Controversey

Pro Athletes Need Workers' Compensation Too

Today's post comes from guest author Tom Domer of the Wisconsin Bar. The timely post highlights an important issue facing professional athletics. Throughout the US the professional sports franchises have made a concerted effort to prohibit injured players from filing claims for workers' compensation benefits. JLG

Most of us do not associate a professional athlete’s injury with workers’ compensation. Because of pro athletes’ generous contract wages, and the relatively modest recoveries available under workers’ compensation, most fans don’t recognize that when it comes to receiving workers’ compensation, professional athletes are just like other office or factory workers who can recover worker’s compensation when injured.
Not every professional athlete, however, has a contract worth millions of dollars. Some of the athletes injured on minor league teams literally make no more than minimum wage, and receipt of workers’ compensation benefits is significant for those athletes.
Not every professional athlete, however, has a contract worth millions of dollars. Some of the athletes injured on minor league teams literally make no more than minimum wage, and receipt of workers’ compensation benefits is significant for those athletes. Wisconsin law places a cap on the amount of money an athlete can receive for his injury. The maximum weekly wage for 2012 is $1,281, yielding a temporary disability rate of $854.