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(c) 2010-2024 Jon L Gelman, All Rights Reserved.

Wednesday, September 7, 2011

Distracted Driving Accidents Echo Intoxication Caused Injuries

The New England Journal of Medicine reports that the activism against driving while intoxicated is beginning to be mirrored in distracted driving crashes. This parallel will probably cause workers' compensation courts and state legislature to shortly revisit the compensability of certain claims caused by employees who engage in distracted driving and will likely bar them from eligibility as workers compensation claims.


"As cell phone technology improved, texting while driving, which necessitates taking one’s eyes off the road, also became a major concern. The new term 'distracted driving' encompasses many behaviors that divert attention from driving, hampering awareness and performance and increasing risk."


The moral outrage being generated from distracted driving behavior will most likely mandate the imposition of technological changes to restrict cell phone use in moving vehicles. While that technology is being developed and deployed, workers and their employers should take heed of the growing public policy against such conduct.
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Turning Over in Bed Not Compensable Event

A NJ Workers' Compensation Court has held that turning over in bed to shut off an alarm clock, an act that aggravating a pre-existing back injury, was not a compensable workers' compensation event. The Court held that the subsequent event, turning in bed, was an intervening, superseding event unrelated to the original work related accident.

The Court enunciated that in workers' compensation claims the injured worker has the burden of proof to establish the causal relationship of the subsequent event to the prior event. This "bridging" of causal relationship is well defined in the law of torts under the so-called "but for rule." The second event, turning in bed, was considered an unrelated intentional act and not compensable.

Judge Philip A. Tornetta stated in his opinion, "... There was not a scintilla of evidence to refute the fact that petitioner’s turning in bed was nothing more than an innocent, unintentional act , which no doctor had restricted him from doing."

Ippolitto v County of Bergen, et al., NJ Division of Workers' Compensation, CP 2007-25283, 2010-17376, Decided August 1, 2011.

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Tuesday, September 6, 2011

9-11 Photographic Remembrance - Photographer Joe McNally Comments on His Project

Joe McNally, an incredibly skilled professional photographer discusses his project commemorating the 10 anniversary of the World Trade Center attack in New York City. Joe's recent blog reveals his dedication, commitment and endurance in photographing the horrific event 10 years ago and then updating the project for the 10th Anniversary. His project is now on display at the Time-Warner Center in New York City.


Click here to read the Blog Post:  http://bit.ly/n7rR7v
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Home Renovation Cited As An Increased Risk for Mesothelioma

This old house is becoming a serious health hazard as renovations are made to asbestos laden homes. A recent study published in the Medical Journal of Australia reports that an increased trend of mesothelioma, a rare and fatal cancer causally connected to asbestos exposure, in exposures related to home renovation. The latency period for the disease's development, time of exposure to time of manifestation of mesothelioma, was found to be shorter than expected.

Even though asbestos was banned in Australia in 2003 the number of claims has continued to increase. This is a typical occurrence in asbestos related illness. The cancer may not develop for 15 to 35 years following exposure.

While workers' compensation have provided some benefit to injured workers and dependents in the US over the last 3 decades, most claims have sought recoveries against the suppliers, manufacturers and health research organizations of asbestos fiber. That litigation is not limited by the narrow and limited recovery caps of a workers' compensation claim.

Old housing stock may contain many asbestos products including: attic insulation, boiler and plumbing insulation, asbestos backed flooring tiles, ceiling tiles, roofing, and spackling and plaster. While asbestos is not yet banned in the US, workers should carefully test old houses before renovations.

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, September 5, 2011

Asbestos: ADAO to Livestream the film -- Breathtaking


Kathleen Mullen’s Documentary Gives Comprehensive Insight into the Tragedy Associated with Commercial Mining

The Asbestos Disease Awareness Organization (ADAO,) which combines education, advocacy, and community to provide a unified voice for asbestos victims, today announced that it will be livestreaming Breathtaking on September 26th. The documentary, directed by Ontario filmmaker Kathleen Mullen, is “a personal investigation into the continued use of asbestos” and details her father’s tragic death due to exposure to asbestos from Canadian mining.

Breathtaking addresses the asbestos industry through a moving and personal investigation into the death of Mullen’s father, and the baffling present-day use, pubic mining, and incessant export of asbestos in spite of decades of scientific evidence that asbestos kills people. Commercially mined since the Industrial Revolution, asbestos was nicknamed the ‘magic mineral’ for its fabric-like, and fire retardant properties and has been used in everything from brake pads to oven mitts. Although it has been discovered to be carcinogenic, and asbestos use has been banned in many countries and limited in others. However, Canada, Russia and several other countries, still mine asbestos and export it for use in developing nations.

Mullen uses heartbreaking clips of her dying father’s legal testimony, together with family photos, and home movies to take the audience on an investigative journey. From her family home in British Columbia to Quebec, India and Detroit, Mullen paints a global, yet still personal picture of the many lives affected by the continued use of asbestos.

“As I began Breathtaking, everyone to whom I mentioned I was making the film responded with a personal story of their own,” Mullen says. “I soon realized that this story was a lot bigger than just my own family’s grief.”

The Asbestos Disease Awareness Organization (ADAO) recognizes the global and negative impact of the Canadian asbestos industry and has partnered with Mullen to hold a first-ever, international livestreaming of Breathtaking on September 26th, 2011 at 6:30 pm EST from the ADAO website.

The 45 minute screening will begin with a short introduction from Mullen and conclude with a thirty minute question and answer session via Twitter with the filmmaker and ADAO President and Co-Founder, Linda Reinstein.

“ADAO is thrilled to be able to bring this critical issue to the forefront through the incredible film,Breathtaking. It is through the new avenues of digital technology and social media that we are seeing awareness about asbestos hazards expand rapidly around the globe,” said Reinstein about the livestreaming event.

Click Here To View Trailer: http://tinyurl.com/4yznj99

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, September 2, 2011

When the Boss Calls

The use of cells phones while driving still remains a serious problem as drivers continue to ignore laws throughout the country. Unenforced and unenforceable laws throughout the nation aren't meeting the well intentioned goal of restricting their use. A major excuse is the need to use it for work and my "boss" required the employee to use it.

The epidemic of distracted driving continues to spread. Economic consequences are not yet frequent enough and severe enough to change the culture of abuse. Industry still hasn't taken the bold steps required to solve the problem.

Even though the genie of the "car phone" is out of the bottle, carefully engineered technology can resolve the problem. The same companies that brought us the unhealthy combination of cell phones and distracted driving can engineer the cure.

Employers seem to lack the economic motivation to take action. Employers who insit on their use for employment reasons can be compared to those employers who remove a machine guard to increase production at the cost of injury. It is senseless and tragic to insist that employees are required to us cellphones for employment. It is time that mandatory technology safeguards be implemented to curb abuse and avoid trajic and unnecessary accidents.
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Thursday, September 1, 2011

Who Is Paying the Premiums for Workers Compensation Anyway

Employes have been subject to "give backs" and "add on" costs for decades, but now employers want to shift the cost of workers compensation insurance to employees. The intent of the workers' compensation act was to shift the costs of workers' compensation coverage to the consumer of the product and/or user of the service and not the employee.


A recent Massachusetts Judge reiterated that principle, but left open the question as to whether the employee could consensually contract to accept the costs of workers' compensation coverage. If this occurs, it is ultimately a "deal breaker."


Cost shifting of workers' compensation coverage is a dangerous precedent going to the heart of the initial promise made to workers in creating the system. Is is against  "public policy," and defeats the Legislative intent of the act. While the economy is soft and the workers' compensation system in a weakened condition it is not time to abandon ship unless a more creative approach for reform of the entire system comes into play. As jobs remain scarce, the process would not be consensual, but merely coercion. Shifting the cost would ultimately remove the deterrent effect for unsafe workplaces, and yet is another reason why employers and ultimately consumers should remain responsible for workers compensation  costs.


See: Awuah v. Coverall North America, Inc.,--- N.E.2d ----, Mass. , 2011 WL 3805255, Mass., August 31, 2011 (NO. SJC-10829)

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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