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Wednesday, July 6, 2011

OSHA To Focus on Infections in the Workplace

OSHA schedules meetings to
discuss occupational exposure to infectious diseases

The Occupational Safety and Health Administration has scheduled two informal stakeholder meetings to solicit comments on exposure to infectious diseases in the workplace. OSHA will use information gathered during these meetings to explore the possible development of a proposed rule to protect workers from occupational exposure to infectious agents in healthcare settings where direct patient care is provided and other settings where workers perform tasks with occupational exposure. Both meetings are scheduled for July 29 in Washington, D.C.

On May 6, 2010, OSHA published a Request for Information on Infectious Diseases. OSHA wanted to gather comments on strategies that are currently used to reduce the risk of workplace exposure to infectious agents, and to more accurately distinguish the nature and extent of occupationally-acquired infectious diseases. Based on responses received and an ongoing review of literature on this subject, OSHA is considering development of a proposed program standard to control worker exposures to infectious agents.

"We know that workers in healthcare and related facilities may be exposed to infectious agents, and they deserve to be protected," said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels. "Information gained from these meetings will help us determine the best approach to assure that workers don’t put themselves at risk while caring for patients and doing their job. After all, a good job is a healthy and safe job."

The two meetings will be held July 29, from 9 a.m. to noon and from 1:30 p.m. to 4:30 p.m., at the U.S. Department of Labor, 200 Constitution Ave., N.W., Room N-4437, Washington, DC 20210. To participate in one of the stakeholder meetings, or be a nonparticipating observer, individuals must submit a notice of intent electronically, by facsimile or by hard copy no later than July 22. See the Federal Register notice for details.

Meeting discussions will focus on issues including the advantages and disadvantages of using a program standard to limit occupational exposure to infectious diseases; whether and to what extent an OSHA standard should require employers to develop a written worker infection control plan that documents how employers will implement infection control measures to protect workers; and whether and to what extent OSHA should take alternative approaches to rulemaking to improve compliance with current infection control guidelines issued by the Centers for Disease Control and Prevention, the National Institutes of Health, and other authoritative agencies.

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.

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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Tuesday, July 5, 2011

Employers Prohibited From Seeking Reimbursement From a Public Entity

A New Jersey appeals court has held that an employer or insurance carrier is prohibited from seeking reimbursement from a public entity resulting from a work related claim. Only a direct action may be brought by an employee against a public entity.
"Relying on Travelers, supra, 169 N.J.Super. at 415, Judge Casale held that where, as here, a public entity is the third-party tortfeasor, the Tort Claims Act (TCA), N.J.S.A. 59:9-2(e), bars subrogation by the employer or its worker's compensation carrier. That section provides: "No insurer or other person shall be entitled to bring an action under a subrogation provision in an insurance contract against a public entity or public employee." Ibid.
"It is clear that N.J.S.A. 34:15- 40 not only permits subrogation recovery from the employee, but would allow a lawsuit directly against the third-party tortfeasor. N.J.S.A. 34:15-40(f). However, in enacting the TCA, N.J.S.A. 59:9-2(e), the Legislature intended that the cost of worker's compensation payments should not be shifted to a public entity that happened to be a third-party tortfeasor. Instead, those costs were to be absorbed by the worker's compensation insurer. Travelers, supra, 169 N.J.Super. at 415.
Thomas v The City of East Orange,  Docket No. L-6929-09, 2011 WL 2582550 (N.J.Super.A.D.) Decided July 1, 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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Employers Face Liability For Cell Phone Accidents

Accidents resulting from the use of cell phones at work shift liability to to the employer. Todd Clement, an expert trial lawyer from Dallas TX, in a recent interview, explains why employers are going to paying damages for distracted driving accidents involving their employees.

Multiple claims can be made following a work-related distracted driving accident caused by an employee's use of a cell phone. Those claims include an action by an employee, the who used the cell phone, against the employer for workers' compensation benefits. Since the system is a "no fault" program, the employer becomes liable for the payment of benefits to the employee inclusing: temporary, medical and permanent benefits.

Claims can also be made by the passenger (co-employee) against the employer under the workers' compensation act. Also, anyone else injured may also file a liability claim against the employer for their employee's distracted driving conduct.

In some jurisdictions claims may also exist an employer directly by an employee for the employer's failure to maintain a safe workplace. In many jurisdictions, if The US Occupational Safety and Health Administration (OSHA) cites an employer for maintaining an unsafe workplace, the employee may also be subject to OSHA files. Those violations may also be evidence used against the employer to establish proof that the employee did indeed maintain an unsafe workplace.
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Monday, July 4, 2011

Have A Happy and Safe 4th of July

Fireworks during the Fourth of July are as American as apple-pie, but did you know that more fires are reported on that day than on any other day of the year in the United States? Nearly half of these fires are caused by fireworks. The good news is you can enjoy your holiday and the fireworks, with just a few simple safety tips:

FACTS 
  • Each July Fourth,  thousands of people, most  often children and teens, are injured while using  consumer fireworks. 
  • The risk of fireworks injury is more than twice as high  for children ages 10–14 as  for the general population. 
PROCEED WITH CAUTION!
  • Leave fireworks to the professionals. Do not use consumer fireworks. 
  • The safest way to enjoy fireworks is to attend a public display conducted by trained professionals. 
  • After the firework display, children should never pick up fireworks that may be left over, they may still be active.
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Sunday, July 3, 2011

Florida Rules Illegal Aliens Entitled to Workers Compensation

A Florida Court has ruled that illegal aliens are entitled to workers' compensation benefits. This follows the acceptance of a majority of States to offer workers' compensation status to workers regardless of their immigration status and is in conformity with public policy and legislative intent. 

The Court reasoned that the employer knew or should have known of the illegal status of the employee at the time of hiring then the employer is subsequently responsible to pay workers' compensation benefits following a work-related injury.

The Court stated in its opinion:

"Although there is no shortage of debate that can be had on the issue of illegal labor and its effect on our state, there is no dispute that the Florida Legislature has expressed an unyielding, textual intent that aliens, including those who are illegal and unlawfully employed, be covered and compensated under the Florida Workers’ Compensation Law. See § 440.02(15)(a), Fla. Stat. (2007) (defining “employee” to include any person who receives remuneration from an employer, including aliens, whether “lawfully or unlawfully employed”); see also Safeharbor Employer Servs., Inc. v. Velazquez, 860 So. 2d 984 (Fla. 1st DCA 2003) (“Therefore, we conclude that the Florida legislature's right to enact workers' compensation benefits for illegal aliens is not preempted by federal action.”). Indeed, the purpose of workers’ compensation law is to place on industry, rather than the general taxpaying public, the expense incident to the hazards created by industry. Gore v. Lee County Sch. Bd., 43 So. 3d 846, 849 (Fla. 1st DCA 2010) (explaining workers’ compensation legislation is designed to relieve society in general of expenses created by industry). Moreover, because the employer stands to benefit and profit from its employment of labor, and further is in the best position to avoid the risk of loss, the courts have uniformly recognized the impropriety of foisting on society the costs of a “broken body” and “diminished income” created by industry. Mobile Elevator Co. v. White, 39 So. 2d 799, 800 (Fla.1949).
"Accordingly, the Florida Legislature has long recognized that although the employment of illegal aliens is prohibited by federal and state law, violation of these laws is an unfortunate reality, and the cost of injuries sustained by unlawful workers, being no less real than those suffered by lawful workers, should be borne by the industry giving rise to the risk (and best positioned to avoid the loss), not the general taxpaying public. In the instance of employers that employ illegal workers, this court has held that such an employer is precluded from asserting the status of an illegal alien as a defensive matter so as to avoid liability for disability benefits otherwise due only when the employer “knew or should have known of the true status of the employee.” Candelo, 478 So. 2d at 1170 (“This holding prevents unauthorized aliens from suffering at the hands of an employer who would knowingly hire the alien and then conveniently use the unauthorized alien status to avoid paying wage loss benefits.”). The holding in Candelo, in addition to being binding authority on this court, advances the principle that an entity that knowingly employs unlawful labor should not be able to shirk the cost of the injuries it creates – and in turn, shift the cost of the damages that it has knowingly created on the taxpaying public – ultimately placing it in a unfairly superior financial position to those employers who operate lawfully. Accordingly, here, we find no error in the JCC’s application of Candelo so as to preclude the E/C from raising Claimant’s illegal status, a concern that it waived when hiring and continuing to employ Claimant, as a defensive mechanism to avoid responsibility for an individual who is, based on the factual findings of the JCC, permanently and totally disabled under the Workers’ Compensation Law."
HDV Construction Systems, Inc. v. Aragon, Case No. 1D10-6401 (2011 FL Ct of Appeals 1st District) Decided June 30, 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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Saturday, July 2, 2011

Injured Worker Sues Insurance Company for Malicious Prosecution

A workers' comp claimant has been allowed by the Massachusetts Supreme Court to sue AIG for malicious prosecution as a result of the insurance companies fraud investigation. The workers' compensation insurance company conducted a fraud investigation of the injured worker and forwarded it onto the State agency for prosecution.

"In this proceeding we consider the appeal of AIG Domestic Claims, Inc. (AIGDC), from the denial of its motion for summary judgment. Jesse Maxwell, a workers' compensation claimant, brought suit against AIGDC regarding the company's conduct in referring his claim to the insurance fraud bureau (IFB), communicating with fraud investigators and prosecutors regarding his activity and claim, and using criminal processes to gain leverage in dealings with him. Maxwell sought recovery on theories of malicious prosecution, infliction of emotional distress, abuse of process, and violation of G.L. c. 93A and G.L. c. 176D. In July, 2007, AIGDC filed a special motion to dismiss the suit pursuant to G.L. c. 231, § 59H, the so-called “anti-SLAPP” statute. That motion was denied and AIGDC's appeal was unsuccessful. See Maxwell v. AIG Domestic Claims, Inc., 72 Mass.App.Ct. 685, 893 N.E.2d 791 (2008). On remand, the parties conducted discovery and AIGDC filed a motion for summary judgment in August, 2009. Summary judgment was denied. AIGDC appealed under the doctrine of present execution, and we granted its application for direct appellate review.

"We conclude that AIGDC enjoys qualified immunity regarding its reporting of potentially fraudulent activity but that summary judgment is inappropriate because all of Maxwell's claims rely, at least in part, on conduct falling outside the scope of the immunity. We also conclude that portions of Maxwell's claims may be barred by workers' compensation exclusivity under G.L. c. 152, but that not one of Maxwell's counts is barred entirely such that the Superior Court would be without subject matter jurisdiction. Accordingly, we affirm the order of the Superior Court denying summary judgment and remand the case for further proceedings consistent with this opinion.

Maxwell v. AIG Domestic Claims, Inc., Mass. , --- N.E.2d ----, 2011 WL 2556944 (Mass 2011) Decided June 30, 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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Friday, July 1, 2011

CDC Seeks to End Needle Stick Injuries

Infections caused by transmission through needle-stick injuries have plagued work comp systems for decades. Today the US Centers for Disease Control (CDC) has launched a public relations effort to prevent needle stick injuries.


Sharps injuries are a significant injury and health hazard for health care workers and also result in a number of direct and indirect organizational costs. The Centers for Disease Control and Prevention (CDC) estimates that about 385,000 sharps-related injuries occur annually among health care workers. More recent estimates from The Exposure Prevention Information Network (EPINet™) indicate this number may have been increasing steadily during the past nine years. It is estimated about one third of these injuries go unreported. Most reported sharps injuries involve nursing staff, but laboratory staff, physicians, housekeepers, and other health care workers are also injured.

Workers' Compensation benefits include temporary, medical and permanent disability awards. On many occasions, medical monitoring is ordered by the Court for the duration of the life of the injured workers. If the infections results in a fatality, then the employer may be responsible for dependency benefits payable to to surviving dependents.

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

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