OSHA finds Metro-North Commuter Railroad retaliated against injured employee

US Labor Department's OSHA finds Metro-North Commuter Railroad

retaliated against injured employee, 

interfered with medical treatment 

Railroad ordered to pay damages, attorney’s fees

An investigation by the U.S. Department of Labor's Occupational Safety and Health Administration has determined that Metro-North Commuter Railroad Co. violated the employee protection provisions of the Federal Railroad Safety Act when it took retaliatory action against an employee at its Harmon Diesel Shop in Croton-on-Hudson who reported a workplace injury. OSHA found that the railroad, which provides commuter rail service in Connecticut, New York and New Jersey, interfered with the worker's medical treatment and forced him to work in violation of his physician's orders.

The employee, a laborer, injured his finger on June 26, 2009, and reported it to management, who first attempted to dissuade him from seeking medical treatment. The worker received sutures at a nearby hospital, where he was instructed to not use his hand until the sutures healed, and to keep the hand clean and dry. The railroad's occupational health service determined that the injury disqualified the worker from duty, but the facilities director of the diesel shop persuaded the health service to change the worker's status to restricted duty. The worker's personal physician excused him from work until the sutures were removed and supplied written notice that he should not lift heavy objects or immerse his hands in chemicals, actions he performed in the normal course of his duties. In spite of these instructions and the employee's restricted work status, management ordered him back to work and required him to perform these duties.

"Metro-North's actions in this case are unacceptable and send a message of intimidation to its workforce," said Robert Kulick, OSHA's regional administrator in New York. "Railroad employees must be free to report injuries without fear that their employers will harass them, ignore medical instructions or force them to work under conditions that could impair the healing process or cause more harm."

OSHA has ordered Metro-North to pay $10,000 in punitive damages to the worker and $8,830 in attorney's fees, and to expunge any adverse references relating to the employee's exercise of his FRSA rights from his personnel, safety and department files. Metro-North also must post an OSHA notice for employees in the Harmon Diesel Shop and on its internal website, and provide all diesel shop employees with information on employee protections for reporting work-related injuries.

Metro-North and the complainant each have 30 days from receipt of the findings to file an appeal with the Labor Department's Office of Administrative Law Judges. Under the FRSA, employees of a railroad carrier and its contractors and subcontractors are protected against retaliation for reporting on-the-job injuries, reporting certain safety and security violations, and cooperating with investigations by OSHA and other regulatory agencies.

OSHA enforces the whistleblower provisions of the FRSA and 20 other statutes protecting employees who report violations of various airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health care reform, nuclear, pipeline, public transportation agency, maritime and securities laws. Under these laws 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 employee rights information is available online at http://www.whistleblowers.gov.

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Workers Compensation Is Quietly Under Attack in America

Guest Blog
by Steve Cooper*

As the economy crawls out of the dumps and more people return to the job site, a strong workers compensation environment is as important as ever. Unfortunately, workers comp appears to be under quiet attack in many states.

In Virginia, a law aimed at stopping Virginia dock workers from “double-dipping” may actually leave longshoremen more vulnerable than workers doing much safer work. HB153 is making its way through assembly and has the International Longshoremen’s Association (ILA) concerned:

“Why in the world should a Virginia harbor worker be denied benefits that are provided for other Virginia citizens who work in a business across the street from the harbor?” said Deborah C. Waters, general counsel for the longshoremen’s union.

Arthur W. Moye Jr., executive vice president of the Virginia Maritime Association, which represents more than 400 member organizations employing more than 70,000 workers in port-related jobs, said the primary reason for seeking the legislation was duplication.

Harbor workers are the only employees in the state who can seek workers’ compensation coverage under both state and federal programs, he said. Most workers in Virginia are eligible for coverage only under the state program.

“We feel the federal act covers the needs of an injured worker and covers it in a far superior way than the Virginia state act does,” Moye said.

There are differing opinions about this bill, however. The sticking point is the limitation on what the federal act covers. Worker representatives feel it is hardly sufficient, especially for a worker faced with a serious injury such as a lost limb or a family incurring a costly funeral. It is difficult to classify something as “double-dipping” when the first “dip” doesn’t do enough. Moreover, “double-dipping” is prohibited, making the new law appear obsolete on arrival:

Today, injured maritime workers in Virginia, like those in some other states, are covered under the state’s workers’ compensation program as well as two federal programs: the Longshore and Harbor Workers’ Compensation Act and the Merchant Marine Act, or Jones Act, which applies only to members of crews of vessels under way.

Under the current arrangement, an injured shipyard worker can file claims under the state and federal longshore-act program, though the laws prohibit “double-dipping.”

“There’s a lot of things that the state act does that the longshore act doesn’t cover,” said Stephen Harper, a Richmond attorney and chairman of the workers’ comp section of the Virginia Trial Lawyers Association.

In the event of a fatal injury, for example, the state program offers the family of the victim a $10,000 funeral benefit plus $1,000 in transportation costs, Harper said.

Under the federal program, the maximum funeral benefit is $3,000.

Under the state and federal plans, Harper said, if a worker suffers a permanent injury, such as a crushed ankle, that prevents him from returning to his old job, he is eligible for compensation for a certain period of time, based on a doctor’s evaluation of the degree of impairment.

In most cases, once the payment is made under the federal programs, the insurer’s obligation ends. Through the state workers’ comp program, however, benefits can last as long as 500 weeks, or 9-1/2 years.

“They’re putting the longshore people in a much, much worse situation than the guy working down the street at Walmart,” Harper said. “The same injury, the guy down at Walmart may be able to get lost wages because of that ankle fusion for 9-1/2 years, potentially, but under the longshore act it could be a lot less.”

In Kansas, House Bill 2531 is poised to diminish workers comp as well. The law changes how those appointed to hear workers comp cases are selected. It is alleged that the new selection process skews anti-worker:

Such judges are now chosen by a panel consisting of one member picked by the Kansas Chamber of Commerce and one picked by the Kansas AFL-CIO. The bill would use a seven-member panel composed of the state labor secretary, a person from an employee organization chosen by the labor secretary, and representatives of the Kansas Chamber of Commerce, National Federation of Independent Businesses, Kansas AFL-CIO, Kansas State Council of the Society of Human Resource Management and Kansas Self-Insurers Association. More people at the table may be a good idea, but the proposed lineup is hardly rich with employee representation.

In Pennsylvania, employers successfully won a 5.7% decrease in workers comp funding this week:

The Pennsylvania Insurance Department (PID) recently approved a 5.7 percent overall decrease in workers’ compensation costs. The rate cuts will result in $160 million in savings for Pennsylvania employers, the department estimates.

“At a time when many are feeling a financial pinch and doing more with less, it is a very hopeful sign that the business community may now be able to pay less in workers’ compensation insurance premiums,” said Insurance Commissioner Mike Consedine.

The article makes no mention of the impact this could have on workers, but does suggest that Pennsylvania employers are given an even larger discount when they display superior safety practices:

Businesses enrolled in the Certified Workplace Safety Committee program of Pennsylvania’s Department of Labor and Industry (DOLI) receive an additional 5 percent discount. Currently 9,652 businesses have certified safety committees. Participating businesses have realized insurance premium reductions totaling $432.8 million since the program began, DOLI reports. “Pennsylvania employers are able to benefit from the outstanding job they are doing to provide safer workplaces,” said Labor Secretary Julia Hearthway.

In Wyoming, nearly $1,000,000 in workers compensation has gone unpaid, according to the WyoFile:

Did you know; of Wyoming’s 18,228 employers 1,212 of them are delinquent on their Wyoming Workers’ Compensation premiums — to the tune of $943,498.73, according to state officials? That’s 6.6 percent of Wyoming’s employers who pay into Wyoming Workers’ Compensation — delinquent. $1 million. Yet, those delinquent employers still enjoy legal immunity for their own proven negligence in a worker injury/death — because that’s part of the compromise of workers’ compensation?

Employees in Wyoming do not enjoy the same leniency when it comes to delinquency. If an injured worker files 1 day late, no case, no benefits. No matter.

To make matters worse, workers compensation legislation can often be misleading. In Missouri, workers comp was recently “expanded” to include many job-related diseases. What this means is that the state is now on the hook, rather than businesses, for harm done to employees by employers. This appears to be a win for workers on the surface, but is actually a Republican-driven move aimed at making Missouri more “business friendly”:

In a move that Republicans contend will make Missouri more attractive to businesses, the state Senate has approved legislation to expand the workers’ compensation program.

The measure, SB572, approved with a largely party-line 28-6 vote, would cover occupational diseases under the workers’ compensation program — freeing businesses from potentially costly litigation.

But this bill tucked in some very questionable caveats, including lumping together disparate diseases and the exclusion of immigrants and prisoners:

St. Louis County Democratic Sen. Tim Green drafted — but did not offer — an amendment that would have excluded occupational diseases from the compensation program. He said curable injuries like carpal tunnel syndrome aren’t similar to lethal diseases such as mesothelioma, a type of cancer that can be caused by exposure to asbestos.

“I don’t think they should be treated the same,” Green said. “Putting it back in the workers compensation system isn’t right and that’s what this bill did.”

The legislation would also prevent illegal immigrants or people who are in prison from collecting workers’ compensation benefits.

The bill is expected to breeze through the Missouri House.

A surprising bright spot is South Carolina which is attempting to make up the decrease in workers comp responsibility that business owners have witnessed since 2009:

South Carolina employers could see their workers’ compensation premiums increase next year if state regulators go along with a proposed 7.3 percent increase in the state’s loss cost rates.

The National Council on Compensation Insurance filed for the proposed increase earlier this month, making it the first such proposed increase since 2008. Most recently, the state has seen three loss cost decreases totaling 13.4 percent.

Based on 2009 and 2008 policy year data, the rate filing calls for a 5.3 percent increase in experience, a 2.2 percent increase in trend, a 0.1 percent increase in benefits, and a slight decrease of 0.4 percent in loss adjustment expenses.

Even if the current proposed rate change is approved as filed by South Carolina Acting Insurance Commissioner Gwendolyn Fuller McGriff, employers will still have seen a cumulative decrease of 7.1 percent since 2009.

On the national level, reports are emerging of a disproportionate number of workers in need of disability compensation, especially for mental illness. Typically anti-worker source The New York Post suggests that workers are grasping at safety net straws due to the country’s economic decline:

“It could be because their health really is getting worse from the stress of being out of work,” Matthew Rutledge, a research economist at Boston College, told the paper. “Or it could just be desperation — people trying to make ends meet when other safety nets just aren’t there.”

The paper said that, according to recent research by JPMorgan Chase, the government was mailing out disability checks to about 10.5 million people, including 2 million to spouses and children of disabled workers, at a cost of about $200 billion annually.

The stagnant economy has grown those ranks. About 5.3 percent of the population between the ages of 25 and 64 are collecting federal disability payments, a jump of 4.5 percent since the recession hit in 2009.

There is no question these numbers represent a drastic leap, but how our system treats the injured and disabled is not to be taken lightly. JPMorgan and The New York Post have been champions of the austerity that has been the enemy of many a necessary program from a worker standpoint. Workers compensation can ill-afford to be next on the chopping block.

Steve Cooper (E.m. Ployd) lives in Washington, DC, and is the editor of We Party Patriots. He educates union members on the benefits of social media, offering instruction on engaging on Facebook and Twitter. When not ruining his posture and finger muscles through endless computer use, Cooper is an avid chef and musician. The We Party Patriots has an active on Facebook page that is "A bold, accessible online approach to achieving the Labor Movement's goals and defeating the powers that Tea."

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Investigations of Foxconn Claimed to be a PR Stunt

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Workers' Compensation systems are programs base benefits on wages converted to rates of payment and that is the basis for the payment by an employer for workers' compensation coverage. Honest employer reporting enforced by random retroactive insurance company audits  guard against employer fraud.

The US laws for workers' compensation work as a mechanisim to encourage safer working conditions. Additionally, the exploitation of child labor triggers penalties against the employer. The penalties are both civil and criminal in nature.

On February 23, the occasion of Apple's 2012 annual shareholders' meeting, the IMF, GoodElectronics and makeITfair call on Apple shareholders to do the right thing in an open letter. Apple has recently joined the Fair Labour Association (FLA), but recent developments point to this being no more than a PR stunt.

FLA is currently conducting an investigation of labor conditions at Apple supplier Foxconn in China. Although the FLA report is only due in March, it has already been reported that the FLA has formed a positive opinion of conditions at Foxconn, without yet interviewing workers. This casts doubts on the independence of the investigation (FLA is directly funded by Apple) and the credibility of its final report. Contrary to FLA's standard methodology, the Foxconn investigation was not unannounced which has allowed the company to hide abuses by banning illegal overtime for 16-17 year olds during the period of the investigation.

Apple's initiative in joining FLA was appreciated, however, misusing the initiative as a PR stunt will reflect very badly on Apple's sustainability initiatives and statements. The open letter tells shareholders that in addition to proper auditing, Apple also needs to look into improving its purchasing practices by ensuring fair prices and well-planned lead times, allowing workers to work normal hours and earn a living wage.

The IMF, GoodElectronics and makeITfair are among a growing group of concerned trade unions and other civil society organisations calling upon Apple to improve its act and stamp out persistent violations of labour rights in its supply chain.

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Premium Fraud: North Carolina Man Sentenced on Workers’ Compensation Insurance Scam

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Wifredo A. Ferrer, United States Attorney for the Southern District of Florida, John V. Gillies, Special Agent in Charge, Federal Bureau of Investigation (FBI), Miami Field Office, and Dan Anderson, Director, Department of Financial Services, Division of Insurance Fraud, announce yesterday’s sentencing of defendant Carl Dale Fuller, 52, of Wake Forest, North Carolina. U.S. District Court Judge Donald L. Graham, sitting in Ft. Pierce, Florida, sentenced Fuller to five years in prison, to be followed by three years of supervised release. In addition, Fuller was ordered to pay $2, 859,067 in mandatory restitution.

Fuller previously pled guilty to mail fraud in connection with a scheme to defraud National Employees Services (NES) of more than $2.8 million in what the company believed were insurance premiums for workers compensation insurance. NES, a Florida Corporation located in Avon Park, Florida, is a provider of cost-effective services for businesses that out-source employee insurance, including workers compensation insurance.

To execute his scheme, Fuller used the name David Walters in e-mails and phone calls and held himself out to NES as an insurance broker. Fuller falsely claimed that he would obtain workers compensation insurance policies for NES and the companies they represented. Instead, Fuller kept the payments and never provided insurance coverage.

From mid-2005 through September 2008, Fuller received more than $2 million of NES premium payments, which he used to fund his extravagant lifestyle in Wake Forest and Pinehurst, North Carolina. NES sent the premiums to Fuller under the name of Southeast Services, a company created and controlled by Fuller. The checks were deposited into numerous accounts all controlled by Fuller.

Mr. Ferrer commended the investigative efforts of the FBI and the Department of Financial Services, Division of Insurance Fraud. This case is being prosecuted by Assistant U.S. Attorneys Adrienne Rabinowitz, Emalyn Webber and Ellen Cohen.

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BP and plaintiffs reach Gulf oil spill settlement

The Associated Press: BP, plaintiffs reach Gulf oil spill settlement: "BP PLC and a committee representing plaintiffs suing over the 2010 Gulf oil spill have reached an agreement, a federal judge said late Friday night. Specific terms have not been released."

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COPD: The 3rd Leading Cause of Death

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A large number of disabled workers suffer from Chronic Obstructive Lung Disease (COPD). This compensable workers' compensation condition has now been recognized as the third leading cause of death in the US.

See Chronic Obstructive Pulmonary Disease and Associated Health-Care Resource Use — North Carolina, 2007 and 2009 MMWR 61(08)

"Chronic obstructive pulmonary disease (COPD), including emphysema and chronic bronchitis, is a progressive condition in which airflow becomes limited, making it difficult to breathe. Chronic lower respiratory diseases, primarily COPD, are the third leading cause of death in the United States (1), and 5.1% of U.S. adults report a diagnosis of emphysema or chronic bronchitis (2). Smoking is the primary cause of COPD, and at least 75% of COPD deaths are attributable to smoking in the United States (3). Information on state-specific prevalence of COPD is sparse (4), as are data on the use of COPD-related health-care resources. To understand how COPD affects adults in North Carolina and what resources are used by persons with COPD, 2007 and 2009 data from the North Carolina COPD module of the Behavioral Risk Factor Surveillance System (BRFSS) were analyzed. Among 26,227 respondents, 5.7% reported ever having been told by a health professional that they had COPD. Most adults with COPD reported ever having had a diagnostic breathing test (76.4% in 2007 and 82.4% in 2009). Among adults with COPD, 43.0% reported having gone to a physician and 14.9% visited an emergency department (ED) or were admitted to a hospital (2007) for COPD-related symptoms in the previous 12 months. Only 48.1% of persons reported daily use of medications for their COPD (2007). These results indicate that many adults with COPD might not have had adequate diagnostic spirometry, and many who might benefit from daily medications, such as long-acting bronchodilators and inhaled corticosteroids, are not taking them. Continued and expanded surveillance is needed to evaluate the effectiveness of prevention and intervention programs and support efforts to educate the public and physicians about COPD symptoms, diagnosis, and treatment."

.....
For over 3 decades the Law Offices of Jon L. Gelman1.973.696.7900 jon@gelmans.com have been representing injured workers and their families who have suffered work related accident and injuries.

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Falling Asleep On The Job: Insufficient Sleep Is A Compensable Condition

National Sleep Awareness Week — March 5–11, 2012

During March 5–11, 2012, National Sleep Awareness Week will be observed in the United States. The National Sleep Foundation recommends that U.S. adults receive, on average, 7–9 hours of sleep per night (1); however, 37.1% of adults report regularly sleeping <7 hours per night (2).

Persons reporting sleeping <7 hours on average during a 24-hour interval are more likely to report unintentionally falling asleep during the day at least 1 day out of the preceding 30 days (46.2% compared with 33.2%) and nodding off or falling asleep at the wheel during the previous 30 days (7.3% compared with 3.0%) (3). Frequent insufficient sleep (14 or more days in the past 30 days) also has been associated with self-reported anxiety, depressive symptoms, and frequent mental and physical distress (4).

Such findings suggest the need for greater awareness of the importance of sufficient sleep. Further information about factors relevant to optimal sleep can be obtained from the National Sleep Foundation (http://www.sleepfoundation.org) and CDC (http://www.cdc.gov/sleep).

References

1. National Sleep Foundation. How much sleep do we really need? Arlington, VA: National Sleep Foundation; 2011. Available athttp://www.sleepfoundation.org/article/how-sleep-works/how-much-sleep-do-we-really-need. Accessed February 24, 2012.
2. CDC. Effect of short sleep duration on daily activities—United States, 2005–2008. MMWR 2011;60:239–42.
3. CDC. Unhealthy sleep-related behaviors—12 states, 2009. MMWR 2011;60:233–8.
4. Strine TW, Chapman DP. Associations of frequent sleep insufficiency with health-related quality of life and health behaviors. Sleep Med 2005;6:23–7.

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