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

Thursday, June 21, 2012

Trucking Companies Under OSHA Scrutiny


Alabama trucking company cited by US Department of Labor's OSHA for serious safety violations and other hazards; $56,700 proposed in penalties

Transportation injuries at work lead the list of industrial accidents and OSHA is now enforcing safety procedures to hopefully reduce trucking injuries. Historically the trucking and transportation industry has take a "hard line" position in defending workers' compensation claims of truckers. Truckers suffer many work-related claims because of the requirements to lift and carry objects in awkward positions.

The U.S. Department of Labor's Occupational Safety and Health Administration has cited trucking company Alabama Motor Express Inc. in Ashford for 17 safety violations. OSHA opened an inspection in March under the agency's Site-Specific Targeting Program, which directs enforcement resources to workplaces with higher-than-average rates of injuries and illnesses. Proposed penalties total $56,700.

Thirteen serious violations include failing to perform a personal protective equipment hazard assessment; provide an eyewash station for workers exposed to corrosive chemicals; provide fire extinguisher training; provide training for forklift operators; provide guarding on a bench grinder and around an open pit; reduce the pressure on an air hose to less than 30 pounds per square inch for cleaning; store oxygen and acetylene cylinders at least 20 feet apart; and provide a hazard communication program. Additional violations include the improper use of electrical equipment, a missing inner electrical panel and failing to provide weatherproof enclosures for outlets in damp and wet locations. 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. The citations carry $55,800 in penalties.

Four other-than-serious violations involve failing to maintain the OSHA 300 log properly for reporting injuries and illnesses, establish a respiratory protection program, and protect electrical conductors from abrasion and close unused openings in the electrical panel. 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. The citations carry $900 in penalties.

"Employers cannot wait for an OSHA inspection to identify the hazards that expose workers to serious injury," said Joseph Roesler, OSHA's area director in Mobile. "It is good business to implement preventive programs to ensure that such hazards are identified and corrected as part of the company's day-to-day operations."

Alabama Motor Express, a trucking company, provides logistics, maintenance and fleet services. The company has 15 business days from receipt of the citations and proposed penalties to comply, request a conference with OSHA's 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 Mobile Area Office at 251-441-6131.

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.

Wednesday, June 20, 2012

Federal Pre-emption Of Pain Drugs

Senator Joe Manchin III
As state workers' compensation reformers continue to be sidetracked with alleged prescription drug pain-killer abuse, the US Congress has entered the fray with proposed Federal legislation. It has been reported today by Robert Pear in the NY Times today, that, "Senator Joe Manchin III, a West Virginia Democrat who led the push for new controls, said it appeared that his proposal was falling victim to the financial interests of drugstores and related businesses."

It is anticipated that following the US Supreme Court decision on the pending health care legislation, prescription drugs will again gain Federal legislative attention. The issue of dispensing, costs and abuse, and legalization of medical marijuana,  will receive attention and may pre-empt state activities.

Tuesday, June 19, 2012

Too Old For Comp Statute Upheld

An Appellate  Court in Florida has upheld a state law that limits workers' compensation benefits due to age. The Court held:



Section 440.15(1)(b), Florida Statutes (2003),  classifies  the entitlement to PTD benefits by age of the claimant, providing:. . . If the accident occurred on or after the employee reaches age 70, benefits shall be payable during the continuance of  [PTD], not to exceed 5 years following the determination of PTD. . . .Regarding age classifications in section 440.15, the Florida Supreme Court has stated, “[t]he ‘rational basis’ test is the proper standard of review. There is no 3basis to conclude that an  elevated standard of review is appropriate.” 


Berman v. Dillard's and ESIS, Case No. 1D11-4653 (FL 1st DCT APP) Decided June 14, 2012

OSHA Fines Norfolk Southern Railway $800,000 for Terminating Injured Workers

Norfolk Southern 8921 GE C40-9W (Dash 9-40CW)
Norfolk Southern 8921 GE C40-9W (Dash 9-40CW) (Photo credit: Wikipedia)

Investigation found violations of Federal Railroad Safety Act whistleblower provisions
The U.S. Department of Labor's Occupational Safety and Health Administration has found that Norfolk Southern Railway Co. violated the whistleblower protection provisions of the Federal Railroad Safety Act and consequently has ordered the company to pay three whistleblowers $802,168.70 in damages, including $525,000 in punitive damages and attorneys' fees. Additionally, the company has been ordered to expunge the disciplinary records of the whistleblowers, post workplace notices regarding railroad employees' whistleblower protection rights and provide training to its employees about these rights.
Three concurrent investigations were completed by OSHA's offices in Columbia, S.C.; Nashville, Tenn.; and Harrisburg, Pa. The investigations revealed reasonable cause to believe that the employees' reporting of their workplace injuries led to internal investigations and, ultimately, to dismissals from the company.
A laborer based in Greenville, S.C., was terminated on Aug. 14, 2009, after reporting an injury as a result of being hit by the company's gang truck. The railroad charged the employee, a laborer, with improper performance of duties. OSHA found that the employee was treated disparately in comparison to four other employees involved in the incident. The laborer was the only employee injured and, thus, the only employee who reported an injury. He also was the only employee terminated. OSHA has ordered the railroad to pay punitive damages of $200,000 as well as compensatory damages of $110,852 and attorney's fees of $14,325.
In Louisville, Ky., an engineer at a Norfolk Southern facility was terminated on March 31, 2010, after reporting an injury as a result of tripping and falling in a locomotive restroom. The railroad, after an investigative hearing, charged the employee with falsifying his injury. OSHA found that the investigative hearing was flawed and orchestrated to intentionally support the decision to terminate the employee. OSHA has ordered the railroad to pay the employee $150,000 in punitive damages, $50,000 in compensatory damages and $7,375 in attorney's fees.
On July 22, 2010, a railroad conductor based in Harrisburg, Pa., was terminated after reporting a head injury sustained when he blacked out and fell down steps while returning from the locomotive lavatory. The company, after an investigative hearing presided over by management officials, found the employee guilty of falsifying a report of a work-related injury, failing to promptly report the injury, and making false and conflicting statements. The day before the injury, the employee had been lauded for excellent performance, highlighted by no lost work time due to injuries in his 35-year career. OSHA found that the investigative hearing was flawed, and there was no evidence the employee intended to misrepresent his injury. OSHA is ordering the railroad to pay the employee $175,000 in punitive damages, $76,623.27 in back wages plus interest and $17,993.43 in compensatory damages, as well as all fringe benefits.
"Firing workers for reporting an injury is not only illegal, it also endangers all workers. When workers are discouraged from reporting injuries, no investigation into the cause of an injury can occur," said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels. "To prevent more injuries, railroad workers must be able to report an injury without fear of retaliation. The Labor Department will continue to protect all employees, including those in the railroad industry, from retaliation for exercising these basic worker rights. Employers found in violation will be held accountable."
These actions follow several other orders issued by OSHA against Norfolk Southern Railway Co. in the past year. OSHA's investigations have found that the company continues to retaliate against employees for reporting work-related injuries and has effectively created a chilling effect in the railroad industry.
Any party to this case can file an appeal with the Labor Department's Office of Administrative Law Judges.
Norfolk Southern Railway Co. is a major transporter/hauler of coal and other commodities, serving every major container port in the eastern United States with connections to western carriers. Its headquarters are in Norfolk, Va., and it employs more than 30,000 union workers worldwide.
OSHA enforces the whistleblower provisions of the FRSA and 20 other statutes protecting employees who report violations of various securities laws, trucking, airline, nuclear power, pipeline, environmental, rail, maritime, health care, workplace safety and health regulations, and consumer product safety laws.
Under the various whistleblower provisions enacted by Congress, employers are prohibited from retaliating against employees who raise various protected concerns or provide protected information to the employer or to the government. Employees who believe that they have been retaliated against for engaging in protected conduct may file a complaint with the secretary of labor for an investigation by OSHA's Whistleblower Protection Program. Detailed information on employee whistleblower rights, including fact sheets, is available online at http://www.whistleblowers.gov.
Note: The U.S. Department of Labor does not release names of employees involved in whistleblower complaints.


Thursday, June 14, 2012

National Experts Call Workers Compensation System Irrational and Unjust

National workers' compensation experts, Law school Dean Emily A. Spieler and Professor John F. Burton, in a recently published article in the American Journal of Industrial Medicine conclude that the present that the present  workers' compensation systems is "irrational" and "unjust." 

Characterizing the program as "....dizzying and frustrating in its complexity, and apparent irrationality,"   they conclude that "a substantial proportion of persons with work-related disabilities do not receive workers' compensation benefits." They review such alternatives as universal medical care, "providing healthcare to workers regardless of the source of injuries or disease."


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Wednesday, June 13, 2012

OSHA Cites Correctional Facility for Exposing Employees to Workplace Violence


Mississippi correctional facility cited by US Department of Labor's OSHA for
workplace violence and other hazards; more than $104,000 in fines proposed

The U.S. Department of Labor's Occupational Safety and Health Administration has cited The GEO Group Inc. with six safety and health violations, including one willful, for exposing employees to workplace violence and failing to take adequate measures to reduce the risk of violence following a December 2011 inspection stemming from a complaint about the Meridian correctional facility. Proposed penalties total $104,100.

"This employer knowingly put workers at risk of injury or death by failing to implement well-recognized measures that would protect employees from physical assaults by inmates," said Clyde Payne, OSHA's area director in Jackson. "Prisons may be inherently dangerous workplaces, but the employer is still required to take every reasonable precaution to protect corrections officers and other staff against safety and health hazards, including assaults."

A willful safety violation has been cited, with a $70,000 penalty, for failing to knowingly provide adequate staffing, fix malfunctioning cell door locks or provide required training to protect employees from incidents of violent behavior by inmates, including stabbings, bites and other injuries. A willful violation is one committed with intentional knowing or voluntary disregard for the law's requirements, or with plain indifference to worker safety and health.

One repeat health violation, with a $16,500 penalty, also has been cited for failing to conduct medical evaluations for workers required to wear respirators. 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 November 2010 at GEO's Pompano Beach, Fla., facility.

Two serious health and one serious safety violation, carrying a total of $17,600 in penalties, include failure to conduct a fit test for employees required to wear respirators, have a written exposure control plan for employees exposed to bloodborne pathogens and complete a personal protective equipment hazard assessment. 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 other-than-serious safety violation has been cited for failing to provide a written energy control procedure for workers exposed to electrical shock hazards. No penalty was assessed. 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.

The GEO Group Inc. is a correctional and detention organization with approximately 80,000 beds and 116 facilities located in the United States, the United Kingdom, Australia and South Africa. The company's East Mississippi correctional facility houses 1,318 low, medium and high security inmates, as well as inmates with mental illness.

Information on workplace violence is available at http://www.osha.gov/SLTC/workplaceviolence/index.html.

The citations can be viewed at
http://www.osha.gov/ooc/citations/The_GEO_Group_Inc_315306803_06_11_2012.pdf*,
http://www.osha.gov/ooc/citations/The_GEO_Group_Inc_315306357_06_11_2012.pdf*.

The company has 15 business days from receipt of the citations and proposed penalties to comply, request a conference with OSHA's 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 http://www.osha.gov.

Diesel Exhaust Linked to Cancer

Diesel smoke from a big truck.
After a week-long meeting of international experts, the International  Agency for Research on Cancer (IARC), which is part of the World Health Organization (WHO), today   classified diesel engine exhaust as carcinogenic to humans (Group 1), based on sufficient evidence  that exposure is associated with an increased risk for lung cancer. 

Exposure to diesel exhaust has previously been held to be a causative factor in contributing to a compensable occupational heart condition. Recognizing that the the Workers' Compensation Act required an occupational exposure to be “characteristic” of and peculiar to a particular employment, that there be restricted compensability for disability due to “deterioration of a tissue, organ or part of the body in which the function of the tissue, organ or part of the body is diminished due to the natural aging process,” and that the disease be “due in a material degree to causes or conditions” peculiar to the place of employment, the court concluded that a truck driver may suffer cardiovascular disability as a result of exposure to carbon monoxide even though the employee had other pre-disposing risk factors including smoking, obesity, and a genetic predisposition. The court referred to the example of a teacher who develops asbestosis from working in a classroom with a flaking asbestos ceiling where the disability arising from the asbestos exposure was recognized as being compensable under the New Jersey Workers' Compensation Act. Fiore v. Consolidated Freightways, 140 N.J. 452, 659 A.2d 436 (1995).

Background

In 1988, IARC classified diesel exhaust as probably carcinogenic to humans (Group 2A). An Advisory Group  which reviews and recommends future priorities for the IARC Monographs Program had recommended  diesel exhaust as a high priority for re-evaluation since 1998. 

There has been mounting concern about the cancer-causing potential of diesel exhaust, particularly based  on findings in epidemiological studies of workers exposed in various settings. This was re-emphasized by  the publication in March 2012 of the results of a large US National Cancer Institute/National Institute for  Occupational Safety and Health study of occupational exposure to such emissions in underground miners,  which showed an increased risk of death from lung cancer in exposed workers..

Evaluation

The scientific evidence was reviewed thoroughly by the Working Group and overall it was concluded that  here was sufficient evidence in humans for the carcinogenicity of diesel exhaust. The Working Group  found that diesel exhaust is a cause of lung cancer (sufficient evidence) and also noted a positive  association (limited evidence) with an increased risk of bladder cancer (Group 1).  The Working Group concluded that gasoline exhaust was possibly carcinogenic to humans (Group 2B), a  finding unchanged from the previous evaluation in 1989.

Public health

Large populations are exposed to diesel exhaust in everyday life, whether through their occupation or  through the ambient air. People are exposed not only to motor vehicle exhausts but also to exhausts from  other diesel engines, including from other modes of transport (e.g. diesel trains and ships) and from power  generators.

Given the Working Group’s rigorous, independent assessment of the science, governments and other  decision-makers have a valuable evidence-base on which to consider environmental standards for diesel  exhaust emissions and to continue to work with the engine and fuel manufacturers towards those goals.  Increasing environmental concerns over the past two decades have resulted in regulatory action in North  America, Europe and elsewhere with successively tighter emission standards for both diesel and gasoline  engines. There is a strong interplay between standards and technology – standards drive technology and  new technology enables more stringent standards. For diesel engines, this required changes in the fuel  such as marked decreases in sulfur content, changes in engine design to burn diesel fuel more efficiently and reductions in emissions through exhaust control technology.

However, while the amount of particulates and chemicals are reduced with these changes, it is not yet clear how the quantitative and qualitative changes may translate into altered health effects; research into this question is needed. In addition, existing fuels and vehicles without these modifications will take many years to be replaced, particularly in less developed countries, where regulatory measures are  currently  also less stringent. It is notable that many parts of the developing world lack regulatory standards, and data on the occurrence and impact of diesel exhaust are limited.

Conclusions
Dr Christopher Portier, Chairman of the IARC working Group, stated that “The scientific evidence was compelling and the Working Group’s conclusion was unanimous: diesel engine exhaust causes lung cancer in humans.” Dr Portier  continued: “Given the additional health impacts from diesel  particulates, exposure to this mixture of chemicals should be reduced worldwide.“ Dr Kurt Straif, Head of the IARC Monographs Program, indicated that “The main studies that led to this  conclusion were in highly exposed workers. However, we have learned from other carcinogens, such as  radon, that initial studies showing a risk in heavily exposed occupational groups were followed by positive  findings for the general population. Therefore actions to reduce exposures should encompass workers  and the general population.”

Dr Christopher Wild, Director, IARC, said that “while IARC’s remit is to establish the evidence-base for  regulatory decisions at national and international level, today’s conclusion sends a strong signal that  public health action is warranted. This emphasis is needed globally, including among the more vulnerable  populations in developing countries where new technology and protective measures may otherwise take 
many years to be adopted.”

....
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 accident and injuries.