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Friday, May 20, 2011

Nail Salon Workers at Risk for Occupational Exposures

Assorted cosmetics and toolsImage via Wikipedia

Nail salon workers are at risk for exposures to hazardous chemicals at work reports a recently published study. The report in the American Journal of Public Health concludes that workers at nail salons may be at higher risk of exposure to chemical toxins that may be harmful to their health. 


Researchers set out to measure personal and area concentrations of solvents among Vietnamese women working in various California nail salons through a community-based participatory research study. Researchers collected data from 80 Vietnamese female nail salon workers from 20 different nail salons. They measured work-shift concentrations of toluene, ethyl acetate and isopropyl acetate and found that measured levels of these solvents were higher than recommended guidelines to prevent frequently reported health symptoms frequently reported. One-third of workers reported that they experienced certain health symptoms such as irritations, headaches, nausea and breathing problems after entering the workforce. Irritations of the nose, throat, lungs, skin and eyes were the most common symptoms, reported by 26.5 percent of workers. 


“Our findings underscored the need for more attention to preventive public health strategies for his workforce. Recommendations to promote worker health and safety include policy changes to update occupational exposure limits that take into account various chronic health conditions, better regulatory oversight of chemicals in cosmetic products, and more research focused on the health of understudied and vulnerable worker populations,” said the study’s authors.

The Campaign for Safe Cosmetics and several other lobbying groups are supporting the passage of The Safe Cosmetics Act. The pending legislation calls full labeling of salon and cosmetic products and a phase out of those hazardous products that contain products that cause cancer or birth defects. It would allow the US Food and Drug Administration regulatory powers over the manufacture of cosmetics. The proposed legislation would require all ingredients to be listed on the product labels.

Concern has not only been expressed recently by nail salon workers, but various government agencies have issued health alerts concerning the presence of formaldehyde in hair straightening products. The State of New York was the latest to issue a health warning for those who use or are exposed to hair straightening products. 

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

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Thursday, May 19, 2011

NY State Issues Health Alert for Hair Straightening Products and Formaldehyde

The Department of Health of the State of New York has issued a health alert advisory to workers and consumers about a group of hair straightening products known as "Brazilian Keratin Treatment" (BKT) that may contain formaldehyde

The warning advises those exposed that:
  • Exposure to formaldehyde can cause irritation of the eyes, nose, throat, and skin.
  • People with asthma or other respiratory diseases may be more sensitive than others to the effects of breathing formaldehyde.
  • Formaldehyde is classified as a probable human carcinogen (cancer-causing chemical).
  • The Department tested some products, and cautions that others in the market may also contain also formaldehyde. 
A list of 22 products containing formaldehyde include:
  1. BioIonic Kera Smooth Anti Frizz
  2. Brazilian Blowout Solution
  3. Brazilian Blowout Acai Professional Smoothing solution
  4. Brazilian Gloss Keratin Smoothing Gloss
  5. Cadiveu Brazilian Thermal Reconstruction
  6. Coppola Keratin Complex Smoothing Therapy, Natural Keratin Smoothing Treatment
  7. Coppola Keratin Complex Smoothing Therapy, Natural Keratin Smoothing Treatment, Light Wave
  8. Coppola Keratin Express Brazilian Smoothing Treatment
  9. Coppola Keratin Complex Smoothing Therapy
  10. Global Keratin Functional Keratin Hair Taming System Light Wave Chocolate
  11. Global Keratin Taming System Strawberry
  12. Global Keratin Taming System with Juvexin Strawberry Resistant
  13. Global Keratin Taming System with Juvexin Strawberry Light Wave
  14. IBS Beauty IStraight Keratin Advanced Keratin Treatment
  15. JKS International Smoothing Treatment
  16. Kera Green Keratin and Protein Hair
  17. Marcia Teixeira Advanced Brazilian Keratin Treatment
  18. Marcia Teixeira Brazilian Keratin Treatment
  19. Marcia Teixeira Chocolate, extreme de-frizzing treatment
  20. Pravana Naturceuticals Keratin Fusion
  21. Pro-Collagen RX Keratin Treatment
  22. QOD GOLD Solution
Oregon OSHA (health and safety program), Health Canada and the European Directorate-General of Health and Consumer Affairs did the testing and found formaldehyde in each of the products they tested. They also conducted air tests during application of one of the products in two salons and found that formaldehyde had been released into the air.

The New York State Department of Health is monitoring the situation and they are in contact with other states about their experiences with these products. Through this fact sheet, they are taking the precautionary step of alerting salon workers and consumers about the hazards. At this time, they know that 51 companies market a total of 156 products. Over 100 of those are widely distributed in New York. This year alone, seven new products have come on the market. At this time they have no reliable way, at this time, to know which ones contain formaldehyde. The U.S. Food and Drug Administration (FDA), responsible for regulating cosmetic products, is gathering reports from consumers and salon professionals about eye irritation, breathing problems and headaches.

Many other agencies have issued health alerts and taken action. The Oregon Department of Consumer Business Services and the Connecticut Department of Public Health issued alerts on the release of formaldehyde from these products. The Attorney General of the State of California filed a lawsuit against a California-based manufacturer of one of these products (Brazilian Blowout's Acai Professional Smoothing Solution) alleging that the manufacturer failed to warn users about the presence of formaldehyde, as required by California regulations. Health Canada issued an advisory about the release of formaldehyde from the Brazilian Blowout product. Health Canada also received complaints of burning eyes, nose and throat, breathing difficulties and a report of hair loss. The European Directorate-General of Health and Consumer Affairs banned the sale of some products and recalled others.

New York State advises that the following action should be taken if a consumer or professional is concerned about these products: First, consider not having your hair treated with the products.

  • Seek medical attention, if you are experiencing health problems.
  • Consumers and salon professionals are urged to report adverse experiences to FDA in either of the following ways:
  • Report to the nearest FDA district office. The phone number for the New York State Complaint Coordinator is (866) 446-9055.
  • Report online to FDA's MedWatch adverse event reporting system. You also may call Medwatch at (800) 332-1088 to request a reporting form by mail.
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 accidents and injuries.

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Wednesday, May 18, 2011

Attorney General Holder Names Sheila L. Birnbaum as Special Master of September 11th Victim Compensation (Zadroga) Fund


Attorney General Eric Holder today announced that he has chosen Sheila L. Birnbaum to head the September 11th Victim Compensation Fund program. Birnbaum, a life-long New Yorker, has decades of experience resolving complicated litigation.  Birnbaum, a defense attorney,  gained recognition and regard from the victims community for her work mediating a settlement of $500 million for 92 families of victims of the September 11th terrorist attack on the World Trade Center.  

Birnbaum will administer the fund created under the James Zadroga 9/11 Health & Compensation Act, signed into law by President Obama on Jan. 2, 2011. The bill reactivates the September 11th Victim Compensation Fund that operated from 2001-2003, expanding the pool of applicants to include first responders and other individuals who experienced latent physical injuries associated with the attacks or with debris removal.

“Sheila Birnbaum brings extensive experience, credibility and unique insight to this important role,” said Attorney General Holder. “She has worked closely with, and won the trust of, the families of 9/11 victims with whom she worked. I know that under her direction, the fund will be administered in a manner that is sensitive and fair to those who have suffered so much from the September 11th attacks.”

“As a life-long New Yorker, the opportunity to serve the country and the 9/11 community in this way is a tremendous honor,” Birnbaum said.   “My first priority will be to sit down with the people who will be most affected by the program, and see how we can design a program that is fair, transparent and easy to navigate.   The fund needs to get up and running quickly.   At the same time, I want to make sure we do it right.

Ken Feinberg laid a great foundation during the fund’s first iteration, and I plan to build upon it,” continued Birnbaum.  

The fund is expected to become fully operational after funding appropriated for its administration becomes available on Oct. 1, 2011.   Birnbaum indicated that she will publish proposed regulations to govern the program as soon as possible, and take public comment on those proposed regulations over the summer before finalizing them.

In 2006, 9/11 victims and corporate defendants jointly asked Judge Alvin K. Hellerstein to appoint Birnbaum to mediate 95 wrongful death and personal injury cases.   Birnbaum successfully mediated 92 of them.   Judge Hellerstein called her work “extraordinary” and noted that she had gained credibility with the 9/11 community.   In a March 5, 2009, order Hellerstein wrote, “She allowed each of the plaintiffs’ families to express their loss and the quality of the lives lost on September 11.   She absorbed their losses and their pain with empathy. . . .   She gained plaintiffs’ confidence.”

Birnbaum, the daughter of a grocery store owner in Harlem, N.Y., attended James Monroe High School, and graduated from Hunter College as the first person in her family to attend college.   She taught the fourth grade at P.S. 62 in the Bronx, N.Y., before attending New York University School of Law.   Since law school, she has taught at both Fordham University School of Law and NYU School of Law, where she became Associate Dean.   She is now a partner at Skadden, Arps, Slate, Meagher & Flom, and the chair of the firm’s Mass Torts Litigation Group. That firm represents and defends corporations in products liability actions. Ms. Birnbaum represented Metropolitan Life Insurance Company in the nations longest running tort case, asbestos litigation.

Birnbaum has an extensive career in public service.   Among other positions, she has served as the first president and founding member of Judges and Lawyers Breast Cancer Alert; as a member on the New York State Judicial Commission on Minorities; as Executive Director for the U.S. Court of Appeals for the Second Circuit’s Task Force for Racial, Ethnic and Gender Fairness; as Chair for the Commission on Fiduciary Appointments; and as President of the New York Women’s Bar Association.

Federal Court Enjoins CMS From MSP Recovery Procedures

A US District Court Judge in Arizona has certified a putative class, composed of a nationwide class of Medicare recipients challenging the recovery procedures utilized by The Centers for Medicare and Medicaid Services (CMS). The Court also issued an Order enjoining CMS from certain collection activities.

This follows a broad discovery ordered issued by the Court a year ago. Haro v. Sebelius, 2010 WL 1452942 (A. Ariz.) CV 09-134 TUC DCB, Decided April 12, 2010.The plaintiffs were permitted discovery beyond the administrative record. The class action is challenging the recovery procedures of CMS under the Medicare Secondary Payer Act (MSP). The discovery permitted will included depositions and expert evidence .

The Court Order enjoins CMS from certain actions:
"IT IS FURTHER ORDERED that Defendant's demand for payment of her MSP reimbursement claims, under threat of collection actions before there has been a resolution of an appeal regarding the amount of the Defendant's MSP claim or a waiver request, exceeds her authority under the Medicare statute, and Defendant is enjoined from demanding payment of a MSP reimbursement claim with threats of commencing collection actions before there is a resolution of an appeal or waiver request. 
"IT IS FURTHER ORDERED that the Defendant's demand that attorneys withhold liability proceeds from clients pending payment of amounts claimed by the Defendant as MSP reimbursement exceeds her authority under the Medicare statute, and Defendant is enjoined from demanding that attorneys withhold liability proceeds from their clients pending payment of disputed MSP reimbursement claims.
In reaching its decision to allow discovery, the Court held that the putative class, that is challenging the recovery methods of Medicare, is permitted to extend discovery beyond the limited administrative record action without the necessity of the exhaustion of administrative remedies since constitutional and due process were collateral to any individual claim.

The issues reviewed by the court were:
"1) whether Defendant [CMS] can require prepayment of an MSP recovery claim before the correct amount is determined through the administrative appeal procedures, and
2) whether Defendant [CMS] can make plaintiffs' attorneys financially responsible if they do not hold or immediately turn over to the Defendant [CMS] their clients' litigation proceeds.

These questions involve a due process analysis, which consists of a three part balancing test:
1) the private interest affected;
2) the risk of erroneous deprivation and probable value of additional safeguards, and
3) the government or public interest in current procedures. "


Haro v. Sebelius, (A. Ariz.) CV 09-134 TUC DCB

Tuesday, May 17, 2011

Workers Compensation Act Does Not Bar A Negligence Action Against A General Partnership

In a recent court decision, an injured worker was permitted, in addition to her workers' compensation claim, to file an action against the general partnership for negligent conduct. The Court found that even though the workers' compensation is no-fault, the employee has a right to proceed and recover damages directly against the general partnership.

The injured employee was employed by Time Warner Entertainment Co., L.P. and slipped on black ice in the parking lot. The employee filed and claimed benefits from the employer in workers' compensation. Additionally, the employee filed a civil action against, among others, the Time Warner EntertainmentAdvance/Newhouse Partnership.

The court held that the employee could pursue an action in negligence against a general partnership after receiving workers' compensation benefits from her employer.

Whitfield v. Bononno Real Estate Group, et al., 2011 WL 1798874 (N.J.Super. A.D.) Decided May 12, 2011.

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


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Monday, May 16, 2011

FDA Orders Surveillance of Hip Implants

FdaImage via Wikipedia
Hip replacements are utilized through the workers' compensation medical delivery system in an effort to cure and relieve medical conditions arising out of employment injuries and exposures. The US Food and Drug Administration (FDA) has recently announced that it is widening its roll in monitoring the hip implants. This follows a recent recall of defective hip implants.
"The FDA is continuing to gather and review all available information about currently marketed metal-on-metal hip systems, including information related to adverse events that may be associated with increase levels of cobalt and chromium in the bloodstream. To that end, on May 6, 2011 the FDA issued orders for postmarket surveillance studies to manufacturers of metal-on-metal hip systems. The FDA sent 145 orders to 21 manufacturers. Manufacturers will be required to submit a research protocol to the FDA that addresses specific safety issues related to these devices. Data from the studies conducted will enable the agency to better understand these devices and their safety profiles.

Friday, May 13, 2011

Court Orders Workers Compensation Insurance Carrier to Comply With OSHA Subpoena

The workers’ compensation insurance company, who provided coverage to an employer where a double fatality occurred when a grain elevator exploded, has been order by a US Federal Court Judge, to comply with a subpoena issued by The Occupational Safety and Health Administration [OSHA] directed to obtain information about the safety of the facility. The opinion entered by Judge Philip G. Reinhard, adopts the report and recommendation of the magistrate judge, requires that custodian of records of the workers’ compensation insurance company testify and present documents concerning inspections and reports it prepared as to the employer, Haasbach LLC.


The Court reasoned that OSHA had the authority under Federal law to conduct inspections and investigation including requesting attendance and testimony of witnesses. 29 U.S.C. 657(b). The Court also held that OSHA’s request for loss control reports for 4 years prior to the accident were reasonably related to the investigation. The workers’ compensation insurance company will also be required to produce: site safety inspections, applications for insurance coverage for the site, and correspondence between the insurance carrier, Grinnell Mutual Reinsurance Co., and the the employer, Hassbach, concerning the site.

OSHA had issued 25 citations ($555,000 penalty) to the Illinois grain elevator operator, Haasbach LLC, following an investigation into the deaths of two young workers, Wyatt Whitebread and Alex Pacas (ages 14 and 19 years old, respectively), at the company’s grain elevator in Mount Carroll, Illinois. A third worker was injured at the time of the accident, when they were “walking down the corn” to make it flow while while machinery used for evacuating the grain was running.

Grain entrapments kill workers. All employers, especially those in high-hazard industries, must prevent workers from being hurt or killed as a result of recognized hazards,” said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels. “There is absolutely no excuse for any worker to be killed in this type of incident.”

OSHA Assistant Secretary Dr. David Michaels praised the decision. “The court affirmed OSHA’s authority to obtain relevant information from an employer’s workers’ compensation insurance company. This is not surprising legally, but it does illustrate that workers’ compensation and OSHA are not separate worlds divorced from each other,” he said. “Workers’ compensation loss control activities overlap with OSHA’s efforts to bring about safe and healthful workplaces, and in order to achieve a safe and healthful working environment for all Americans, all efforts of business, insurance, labor and government must move forward together.”

Judge Reinhard held that disclosure of the information into the public domain was permissible unless a federally recognized attorney-client privilege existed due to a pending state court action. If such a privilege was to be asserted as to certain materials that would be required to be produced, then the parties may submit a privilege log to the magistrate judge for consideration.

Solis v. Grinnell Mut. Reinsurance Co., 2011 WL 1642534 (N.D. Ill) Decided May 2, 2011
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· OSHA Anniversary April 21, 2011 10:00am C-Span Event (workers-compensation.blogspot.com)

· OSHA To Fine Employers for Distracted Driving Accidents (workers-compensation.blogspot.com)

· Video of The History of US OSHA (workers-compensation.blogspot.com)

· OSHA at 40 (workers-compensation.blogspot.com)

· US OSHA Warns Workers of Brazilian Blowout Formaldehyde Hazards (workers-compensation.blogspot.com)