Workers' Compensation

Monday, October 3, 2011

Employer Co-Op Pays OSHA Fines after 26 Industry Employee Deaths

US Labor Department's OSHA reaches settlement with Wisconsin-based Cooperative Plus to improve grain bin safety training, abate hazards Cooperative to pay $550,000 in penalties for grain violations

The U.S. Department of Labor's Occupational Safety and Health Administration has filed a settlement agreement with the Occupational Safety and Health Review Commission between the agency and Cooperative Plus Inc., after the farmer-owned Wisconsin cooperative agreed to pay $550,000 in penalties, increase employee grain bin safety training and abate all safety issues at its grain handling facilities in Whitewater, Burlington, East Troy and Genoa City.

"At least 26 workers were killed in grain entrapments nationwide last year, the highest number of any year since researchers started collecting data in 1978, but there are well-known safety practices that can be implemented to prevent these tragedies," said Mike Connors, OSHA's regional administrator in Chicago. "We are pleased to reach this agreement. The procedures and training that Cooperative Plus agreed to implement will ensure that these often deadly entrapments will not happen again."

As part of the settlement agreement, Cooperative Plus will provide site-specific training for all employees exposed to potential hazards identified by OSHA's grain handling, permit-required confined space and lockout standards. The cooperative also will schedule confined space and bin entry rescue drills semiannually, and provide 10 hours of training to newly hired and current employees whose duties expose them to potential hazards addressed by these standards.

Additionally, the cooperative will develop and implement a program to manage the risk of grain handling that includes safe methods to inspect grain and dislodge clumps of grain to empty the bin; develop lockout/tagout procedures for augers, conveyors and other equipment prior to bin entry; and develop engineering controls to abate hazards posed by bridged and castled grain. The company will audit work to ensure that all employees are properly trained in program rules and OSHA safety standards.

Finally, the company agreed to retain at least one independent safety consultant and to comply with OSHA follow-up inspections over a two-year period.

OSHA cited Cooperative Plus Inc. for a total of 14 willful, 23 serious and two other-than-serious safety violations in August 2010 for lacking proper equipment and procedures, thereby exposing workers to the risk of being engulfed and suffocated in grain storage bins.

Since 2009, OSHA has fined grain operators in Wisconsin, Illinois, Colorado, South Dakota, Ohio and Nebraska following preventable fatalities and injuries. In addition to enforcement actions and training, OSHA Assistant Secretary Dr. David Michaels sent a notification letter in August 2010 to grain elevator operators warning them not to allow workers to enter grain storage facilities without proper equipment. For a copy of the letter, visit http://www.osha.gov/asst-sec/Grain_letter.html.

Burlington-headquartered Cooperative Plus has locations throughout southeastern Wisconsin, including in Clinton, East Troy, Elkhorn, Genoa City, Union Grove and Whitewater. The company has a combined member-ownership of more than 10,000 and annual sales of more than $50 million.

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 Milwaukee Area Office at 414-297-3315.

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.

Trade Association Labels Formaldehyde Unsafe & Advocates Removal from Hair Straightening Products

After a long period of deliberation the mostly unregulated cosmetic industry's own trade association, through its reviewing agency, the Cosmetic Ingredient Review Expert Panel (CIR) has declared formaldehyde and methylene glycol unsafe and requested its removal from hair straightening products. US government regulators have labeled the substance as carcinogenic and warned both users and workers of the hazards.

"In concept, therefore, limits on the concentration of formaldehyde/methylene glycol in hair smoothing products, control of the amount of product applied, use of temperature lower than 450 o F, and approaches to mandate adequate ventilation, are among the steps that could be taken to ensure that these products could be used safely in the future. However, in the present practices of use and concentration (on the order of 10% formaldehyde/methylene glycol, heating to 450 o F, inconsistent ventilation, resulting in many reports of adverse effects), hair smoothing products containing formaldehyde and methylene glycol are unsafe."

The CIR continues to advocate that formaldehyde and methylene glycol are safe for use in other products.

Work Injury During Sex: Ridiculous?

Guest Blog by Thomas M. Domer

Not really. From time to time lurid headlines raise eyebrows about employees who claim workers' compensation for injuries occurred during sex. The most common response is “How ridiculous . . . The employee is not being paid to have sex (unless she is a hooker).”

A most recent headline notes an Australian woman who had hotel sex with an acquaintance and was injured when a wall-mounted light fell on her during the encounter. She sought workers' compensation because the incident occurred during a business trip and she claimed having sex on a business trip is “an ordinary incident of life” that entitles her to payment under workers' compensation law.

Traveling employees receive broad workers' compensation coverage in Wisconsin under a 3-step analysis:

Traveling employees are deemed to be in the course of employment at all times while on a trip (portal to portal);
Except when engaged in deviation for a private or personal purpose;
Acts reasonably necessary for or incidental to living are not deviations.

Skeptics may note that sex may or may not be reasonably necessary for living, but the last clause provides that acts merely incidental to living are not deviations and therefore coverage should be provided.

The traveling employee provision was created to remedy situations in which employees, whose work required them to live away from home for periods of time, were not compensated for injuries sustained during normal activities of daily living on a business trip. Wisconsin Supreme Court has issued a presumption that a traveling employee performs services incidental to employment at all times on a trip, with the burden of proving deviation falling to the employer.

Such widely varied activities as skiing, shopping, drinking, and swimming have been found compensable under the traveling employee statute. Recent court cases confirm that traveling employees may participate in reasonable recreational activities without deviating from their employment.

Many employee trips have a “dual purpose,” both personal and business. The Court’s criteria for coverage: If the business purpose could necessitate the trip even if the personal trip were cancelled, compensation is awarded.

Thomas M. Domer practices in Milwaukee, Wisconsin (www.domerlaw.com). He has authored and edited several publications including the legal treatise Wisconsin Workers' Compensation Law (West) and he is the Editor of the national publication, Workers' First Watch. Tom is past chair of the Workers' Compensation Section of the American Association for Justice. He is a charter Fellow in the College of Workers' Compensation Lawyers. He co-authors the nationally recognized Wisconsin Workers' Compensation Experts Blog.

Employee Death From MRSA Infection Spreads Fear Among Co-Workers

A 28 year old employee's death caused by a MRSA infection has spread fear among co-workers at a NJ Motor Vehicle office. The infection, Methicillin-Resistant Staphylococcus Aureus (MRSA), is a highly contagious disease. Co-workers allege that the dead employee was infected by a customer.

See the NJ Journal Article: http://bit.ly/q9zHwp

Sunday, October 2, 2011

New CMS Policy Announced: Asbestos Exposure, Ingestion, and Implantation Issues and December 5, 1980

The Centers for Medicare & Medicaid Services has consistently applied the Medicare Secondary Payer (MSP) provision for liability insurance (including self-insurance) effective 12/5/1980. As a matter of policy, Medicare does not assert a MSP liability insurance based recovery claim against settlements, judgments, awards, or other payments, where the date of incident (DOI) occurred before 12/5/1980.

When a case involves continued exposure to an environmental hazard, or continued ingestion of a particular substance, Medicare focuses on the date of last exposure or ingestion for purposes of determining whether the exposure or ingestion occurred on or after 12/5/1980. Similarly, in cases involving ruptured implants that allegedly led to a toxic exposure, the exposure guidance or date of last exposure is used. For non-ruptured implanted medical devices, Medicare focuses on the date the implant was removed. (Note: The term “exposure” refers to the claimant’s actual physical exposure to the alleged environmental toxin, not the defendant’s legal exposure to liability.)

In the following situations, Medicare will assert a recovery claim against settlements, judgments, awards, or other payments, and the Medicare, Medicaid, and SCHIP Extension Act of 2007 (MMSEA) Section 111 MSP mandatory reporting rules must be followed:

• Exposure, ingestion, or the alleged effects of an implant on or after 12/5/1980 is claimed, released, or effectively released.

• A specified length of exposure or ingestion is required in order for the claimant to obtain the settlement, judgment, award, or other payment, and the claimant’s date of first exposure plus the specified length of time in the settlement, judgment, award or other payment equals a date on or after 12/5/1980. This also applies to implanted medical devices.

• A requirement of the settlement, judgment, award, or other payment is that the claimant was exposed to, or ingested, a substance on or after 12/5/1980. This rule also applies if the settlement, judgment, award, or other payment depends on an implant that was never removed or was removed on or after 12/5/1980.

When ALL of the following criteria are met, Medicare will not assert a recovery claim against a liability insurance (including self-insurance) settlement, judgment, award, or other payment; and MMSEA Section 111 MSP reporting is not required. (Note: Where multiple defendants are involved, the claimant must meet all of these criteria for each individual defendant in order for a settlement, judgment, award, or other payment from that defendant to be exempt from a potential
MSP recovery claim and MMSEA Section 111 reporting):

•All exposure or ingestion ended, or the implant was removed before 12/5/1980; and

•Exposure, ingestion, or an implant on or after 12/5/1980 has not been claimed and/or specifically released; and,

•There is either no release for the exposure, ingestion, or an implant on or after 12/5/1980; or where there is such a release, it is a broad general release (rather than a specific release), which effectively releases exposure or ingestion on or after 12/5/1980. The rule also applies if the broad general release involves an implant.

For Specific Examples Click Here To Read the CMS Memo

REPORTING REMINDER:

Information related to the MMSEA Section 111 MSP reporting requirements can be found at
www.cms.hhs.gov/MandatoryInsRep. When reporting a potential settlement, judgment, award, or other payment related to exposure, ingestion, or implantation, the date of first exposure/date of first ingestion/date of implantation is the date that MUST be reported as the DOI. This is true for purposes of individual self-identification of a pending claim to the Centers for Medicare & Medicaid Services’ Coordination of Benefits Contractor, as well as for MMSEA Section 111 reporting.
Related articles

Friday, September 30, 2011

CMS Announced Status Update and Future Changes

As part of the Centers for Medicare & Medicaid Service (CMS) efforts to continuously improve its Medicare Secondary Payer (MSP) program; CMS has posted the following information to the MSP websites:

1) An ALERT delaying the Medicare, Medicaid, and SCHIP Extension Act of 2007 (MMSEA) Section 111 MSP reporting requirement for certain liability insurance (including self-insurance) settlements, judgments, awards, or other payments is now posted at www.cms.gov/MandatoryInsRep.

2) Policy guidance related to Exposure, Ingestion, and Implantation issues, and December 5, 1980, is now posted at www.cms.gov/MandatoryInsRep and www.cms.gov/COBGeneralInformation.

3) An ALERT related to Qualified Settlement Funds, under Section 468B of the Internal Revenue Code, is now posted at www.cms.gov/MandatoryInsRep.

4) A policy memorandum, for liability insurance (including self-insurance), on the acceptance of the treating physician's certification, and its impact on the issue of protecting Medicare's interests with respect to future medicals is now posted at www.cms.gov/COBGeneralInformation.

In addition, on September 30, 2011, the MSPRC will implement a self-service information feature to its customer service line. This feature gives callers the ability to get the most up-to-date Demand/Conditional Payment amounts, and the dates that those letters were issued, without having to speak to a customer service representative. The self-service feature will be available for extended hours, and callers will have the option of requesting information on multiple cases during one phone call.

Beginning in October 2011, CMS will implement an option to pay a fixed percentage of certain physical trauma-based liability cases with settlement amounts of $5000 or less. Detailed information on this option will be posted as an ALERT, on or before October 21, 2011, on the MSPRC website at www.MSPRC.info.

Upcoming improvements to the MSP program, expected within the next 3-9 months, include the following:

• The implementation of a MSPRC portal, where the beneficiary/representative can obtain information about Medicare's claim payments, demand letters, etc., and input information related to a settlement, disputed claims, etc.

• The implementation of an option that allows for an immediate payment to Medicare for future medical costs that are claimed/released/effectively released in a settlement.

• The implementation of a process that provides Medicare's conditional payment amount, prior to settlement in certain situations.

How To Determine If A Substance Causes Cancer at Work

The National Institute for Occupational Safety and Health (NIOSH) is seeking public input to determine what substances cause cancer and at what level of occupational exposure.

"The National Institute for Occupational Safety and Health (NIOSH) of the Centers for Disease Control and Prevention (CDC) intends to review its approach to classifying carcinogens and establishing recommended exposure limits (RELs) for occupational exposures to hazards associated with cancer. As part of this effort, NIOSH is requesting initial input on these issues (including answers to the 5 questions in the following section), to be submitted to the NIOSH Docket number 240, for a comment period lasting through September 22, 2011. This information will be taken under consideration and used to inform NIOSH efforts to assess and document its carcinogen policy and REL policy regarding occupational hazards associated with cancer. NIOSH has also created a new NIOSH Cancer and REL Policy Web Topic Page [see http://www.cdc.gov/niosh/topics/cancer/policy.html] to provide additional details about this effort and progress updates."

"NIOSH is announcing a Request for Information on key issues identified and associated with the NIOSH Carcinogen and REL policies. Special emphasis will be placed on consideration of technical and scientific issues with the current NIOSH Cancer and REL Policies that require further examination including the following:Show citation box

(1) Should there explicitly be a carcinogen policy as opposed to a broader policy on toxicant identification and classification (e.g.carcinogens, reproductive hazards, neurotoxic agents)?Show citation box

(2) What evidence should form the basis for determining that substances are carcinogens? How should these criteria correspond to nomenclature and categorizations (e.g., known, reasonably anticipated,etc.)?Show citation box

(3) Should 1 in 1,000 working lifetime risk (for persons occupationally exposed) be the target level for a recommended exposure limit (REL) for carcinogens or should lower targets be considered?Show citation box

(4) In establishing NIOSH RELs, how should the phrase “to the extent feasible” (defined in the 1995 NIOSH Recommended Exposure Limit Policy) be interpreted and applied?Show citation box

(5) In the absence of data, what uncertainties or assumptions areappropriate for use in the development of RELs? What is the utility of a standard ”action level” (i.e., an exposure limit set below the REL typically used to trigger risk management actions) and how should it be set? How should NIOSH address worker exposure to complex mixtures?

Public Comment Period: Comments must be received by September 22, 2011.

The concept of a compensable industrial disease has developed only recently and its acceptance has lagged far behind that of industrial accidents. The original Workers' Compensation Acts, as promulgated from the year 1911 forward by many of the states, did not provide for the recognition of occupational illness and disease as compensable events. As demands have been placed upon the medical system to treat and to prevent occupational illness, the legal system, under social, economic, and political pressure, has sought to provide a remedy for the thousands of injured workers who have suffered and who are continuing to suffer from occupational illness and disease.

Sunday, September 25, 2011

SeaWorld killer whale attacks expose incomplete incident reporting

Guest Blog By Edgar Romano*

This week a trial began in Florida between SeaWorld theme parks and the Occupational Safety and Health Administration(OSHA). The trial is over several citations and a fine stemming from incidents in which killer whales (also known as orcas) killed or injured trainers at SeaWorld water parks. Most recently, on February 24, 2010, a giant killer whale named Tilikum gruesomely killed trainer Dawn Brancheau by grabbing her ponytail and pulling her under the water in front of a horrified audience.

In August of 2011, SeaWorld was fined $75,000 by OSHA for three safety violations, including one in connection with Brancheau’s death. The agency’s investigation “revealed that SeaWorld trainers had an extensive history of unexpected and potentially dangerous incidents involving killer whales at its various facilities,” the OSHA statement said.

Prior to Brancheau’s death, California OSHA had issued a citation against SeaWorld, coming to the conclusion that if procedures at the parks didn’t change, eventually somebody was going to die. SeaWorld used political lobbying to have the citation withdrawn. Just a few years later Dawn Brancheau was killed.

In yesterday’s hearing, OSHA asserted that, although SeaWorld does walk each trainer through all recorded dangerous incidents between whales and humans (98 incidents since 1988), there are many dangerous incidents that just don’t make it into the incident reports.

This brings up an important point that all employers would be smart to take note of: without comprehensive reporting, working conditions will remain unsafe.

EDGAR ROMANO received his undergraduate degree cum laude from Brandeis University and his Juris Doctorate from The John Marshall Law School. He is a Senior Partner in the Workers' Compensation Department and has been with the firm since 1995. Mr. Romano is actively engaged in litigating workers compensation claims including those claims arising out of occupational exposure to asbestos and industrial irritants. He has lectured extensively to labor unions and medical providers. Mr. Romano isPresident of the Workers Injury Law and Advocacy Group and is on the Board of Directors of the New York State Workers' Compensation Bar Association. He is a member of the Leader's Forum of the American Association of Justice and Vice-President of the Workers' Compensation Section. He is a member of theNew York State Bar Association, the New York State Trial Lawyers Association, the Jewish Lawyer's Guild, and NYCOSH. Mr. Romano serves on the Advisory Committee of the World Trade Center Medical Monitoring Program at Mt. Sinai Hospital. He is listed in "Who's Who in American Law"..

Mr. Edgar Romano was selected as one of the "Workers' Compensation Notable People for 2008". He blogs regularly atWorkers' Law Watch where this posted appeared originally on September 23, 2011.

Friday, September 23, 2011

Bad Cases Make Bad Law

Guest Blog by Thomas M. Domer

The Illinois legislature just passed a law in response to a notorious claim in which a Sheriff Deputy, driving more than 100 miles per hour while using his cell phone, crossed a median and slammed into a car, killing two teenage sisters.

The claim drew regional and national attention and ultimately resulted in a revision in Illinois’ workers' compensation claims that would prevent any State employee hurt at work from being eligible for workers' compensation if the injury happened during a forcible felony, an aggravated DUI, or reckless homicide, if any of those crimes killed or injured another person.

The law is much more restrictive than the initial media summaries blaring “State law bars State employees injured while committing crimes from receiving worker’s comp.”

This is another example of bad cases creating bad law. The Sheriff filed a workers' compensation claim for his injuries but an arbitrator concluded that his high speed and cell phone use was a “substantial and unjustifiable risk resulting in gross deviation” barring his claim. The Illinois legislature reacted to the media and public outcry.

In other states, notably Wisconsin, an advisory council meets annually to deal with such perceived excesses, and to change the law accordingly.

A few years ago I represented a worker who, despite his employer’s offer to re-employ him with his disability, chose instead to obtain vocational rehabilitation, which was ordered by a judge and the Commission. His claim seemed to run afoul of the express purpose of worker’s compensation in Wisconsin and other states, which is to restore the injured worker to a job.

After the case was reported, the employer and insurance carrier representatives on Wisconsin’s Advisory Council recommended (appropriately) this perceived loophole be closed, and the new law barred the employer’s liability for vocational rehabilitation benefits if the employer offered a job to the injured worker which was refused.

Since the early days of workers' compensation in Wisconsin the courts have liberally construed “in the course of employment.” Absent evidence of abandonment of employment, it is presumed employment continues, except if a deviation can be proved.

Poor judgment or negligence is not synonymous with deviation and an employee must willfully abandon job duties to be excluded. If an employee is injured while engaging in an activity and disobedience of an order of the employer solely for the employee’s own benefit, workers' compensation benefits will be denied. However, if the disobedient actions were in furtherance of the employer’s interest rather than the employee’s, compensation is granted.

As one workers' compensation veteran judge has noted, “even bad employees get compensation.” The no-fault nature of workers' compensation sometimes produces hard-to-swallow results.

Wednesday, September 21, 2011

World Trade Center dust and 9/11 first responders with cancer, time for U.S. Government to stop withholding benefits

Guest Blog By Edgar Romano*

Many courageous first responders, who saved lives at Ground Zero, have since been diagnosed with cancer, and yet the U.S. government does not pay for their treatment. This Saturday, September 10, CNN will air Terror In The Dust, an investigation by chief medical correspondent Dr. Sanjay Gupta into the consequences of the deadly dust produced by the World Trade Center’s collapse. Gupta speaks with 9/11 heroes and medical experts about the consequences of the carcinogen-filled dust.

A new study released earlier this week by the New York City Fire Department provides good evidence of a link between 9/11 first responders and cancer. The study showed a 32% greater incidence of cancer among firefighters who worked at Ground Zero than those who did not.

"The NIOSH study concluded that the 9/11 debris did contain known carcinogens."

The U.S. government does not pay for cancer treatments of 9/11 first responders. This is because the administrators of the James Zadroga 9/11 Health and Compensation Act made a determination not to cover cancer, based on a study by the National Institute for Occupational Safety and Health (NIOSH). The NIOSH study, published in July 2011 concluded that while the 9/11 debris did contain known carcinogens, first responders were not exposed to dangerous levels. The New York City Fire Department study provides new evidence that, hopefully, will cause lawmakers to reevaluate their decision.

"It took 25 years to draw that connection between asbestos and mesothelioma, and in that time a lot of people died who might otherwise have been screened, treated, and might otherwise have been saved."

In an interview yesterday with John Stewart, a long-time supporter of the first responders and their cause, Dr. Gupta noted that “It took 25 years to draw the connection between asbestos and mesothelioma” and in that 25-year period, many people died without proper care or screening.

Dr. Gupta expressed hope that the Zadroga bill administrators would immediately acknowledge the newly released scientific evidence and give the go-ahead to compensate first responders who have since been diagnosed with cancer. Dr. Gupta also stated that if the link between the World Trade Center’s dust and cancer were officially acknowledged by the Zadroga bill administrators, early screenings for other responders could be authorized, potentially saving lives.

Representatives Charles Rangel, Carolyn Maloney, Jerrold Nadler, Peter King, and Steve Israel have filed a petition with the Zadroga bill Program Administrator that will require him to consider within 60 days whether or not to add coverage for cancers under the Zadroga Act. NIOSH does not plan to release a follow up study until July 2012.

We all owe a debt of gratitude to these first responders. We encourage everyone out there to watch Terror In The Dust, Dr. Gupta’s documentary on environmental hazards at Ground Zero, on September 10, 9:00 p.m. ET.

Mr. Edgar Romano was selected as one of the "Workers' Compensation Notable People for 2008". These selections are made by the LexisNexis Workers' Compensation Law Center, who state that "These exceptional people have worked tirelessly on behalf of their clients and others and have made significant contributions to the workers' compensation system and/or the workplace". For the complete story go to LexisNexis Workers' Compensation. He blogs regularly at Workers' Law Watch where this posted appeared originally on September 8, 2011.

Work Comp Premiums Linked to Stock Market Swings and Not Claims

While it was the intent of the crafters of workers' compensation legislation to past the costs of workers' compensation claims along to the consumer, a new study reveals that work comp rates are actually associated with the swings of the stock market. A report released by the University of California’s UC Davis Center for Healthcare Policy Research reveals the starling finding based on a recent analysis that while accidents and injuries have decreased for the past two decades rates have only risen.

The study, of what it calls "skyrocketing rates" yielding higher premiums, reveals that higher premiums are instead associated with decreases in the Dow Jones Industrial Average and interest rates on U.S. Treasury bonds.

"Insurance companies appear to have been setting premiums according to their returns on the stock and bond markets, not according to the number of claims they have," said J. Paul Leigh, UC Davis professor of public health sciences and senior author of the study. "They invest because they need a financial cushion to pay for claims and, if they lose, raise premiums to recoup their losses."

The analysis of trends was an essential part of the report and was provided so that policy makers would have information available to understand why why regulations should be enacted to protect workers. In 2009 California workers sustained between 3 and 4 million occupational injuries amounting to a cost to employers of $74 billion.

In conducting the study, Leigh and UC Davis postdoctoral scholar Abhinav Bhushan examined U.S. Bureau of Labor Statistics data on incidence rates for injuries and illnesses, along with data from the National Academy of Social Insurance on workers' compensation costs (to employers) and benefits (to workers and medical providers) from 1973 through 2007. Beginning in 1992, the Bureau of Labor Statistics began identifying cases involving more than 30 days away from work, providing the study team with the opportunity to evaluate the impact of more severe work-related injuries and illnesses on premiums. That information was compared with Dow Jones Industrial Average indices and Treasury bond interest rates.

The researchers found that while premiums increased from 1992-2007, claims decreased 1 to 2 percent each year. Claims for serious illnesses and injuries varied, but decreased overall.

The team also discovered that for the entire 35-year timeframe of the study, rising premium rates were closely linked with the Dow Jones Industrial Average or Treasury bonds. As either the Dow or interest rates on Treasury bonds fell, premiums rose, and vice versa.

"The association of premiums with the stock market and Treasury bonds was consistent and strong," said Leigh. "Increasing premiums had nothing to do with the number of injured workers, who often are incorrectly blamed for increasing premiums for employers."

The study also explored the decline in workers' compensation claims over the last two decades. This trend is often linked with the establishment of the Occupational Safety and Health Administration, created by Congress to ensure safe working conditions nationwide. The agency, however, was established in 1970, and the downward trend in claims was not evident until 1993.

Leigh suspects the decline may be related to the transition of some high-injury jobs, such as construction and janitorial services, from large companies to smaller companies, where employees may not belong to unions and could be more fearful of losing their jobs if they complain of work-related injuries or illnesses. According to Leigh, small companies are also less likely to keep complete records, so injuries are recorded and reported less often.

"Insurance commissioners and legislators who regulate premium increases should pay greater attention to trends in claims rather than to insurance companies' returns on investments in allowing premium increases," Leigh said. "More effort should also be directed toward policing contractors and smaller businesses to assure they aren't circumventing workers' compensation laws."

Workers compensation has dramatically changed since its enactment a century ago. The system should not be an economic engine to sustain Industry and the cottage industries that evolved. The policymakers need to focus on maintaining the intent of the original crafters, which was to equally balance the costs upon both labor and Industry so that the costs of the program could be passed along to the consumer. Workers compensation is best served if the system is an economic engine for a safer work environment rather than a monument to a failed manufacturing economy.

For over 4 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.

Tuesday, September 20, 2011

US CDC Publishes Safety Nanotechnology Guidance

Citing concern over the occupational risks that potentially exist in nanotechnology, the US CDC has issued a safety guidance manual for the nanotechnology.

"Research has shown that materials on this small scale begin to exhibit physical, chemical, and biological behaviors that are quite unique. These unique properties raise concerns about the health impacts of nanotechnology, particularly among workers employed in nanotechnology-related industries."

References

U.S. National Nanotechnology Initiative. Nano.gov: size of the nanoscale [http://www.nano.gov/nanotech-101/what/nano-size

U.S. National Nanotechnology Initiative. Nano.gov: Nanotechnology and you, benefits and applications. [http://www.nano.gov/you/nanotechnology-benefits

NIOSH [2010]. Nanotechnology Overview[ http://www.cdc.gov/niosh/topics/nanotech/].

International Organization for Standardization [2008]. ISO Standard 12885:2008 Nanotechnologies-Health and safety practices in occupational settings relevant to nanotechnologies.

Dahm MM, Yencken MS, Schubauer-Berigan, MK [in press]. Exposure control strategies in the carbonaceous nanomaterial industry. Journal of Occupational and Environmental 53(6S).

Roco M, Mirkin C, Hersam M [2010]. Nanotechnology research directions for societal needs in 2020: retrospective and outlook. Boston and Berlin: Springer. [http://wtec.org/nano2/

NIOSH [2009]. Approaches to safe nanotechnology: managing the health and safety concerns associated with engineered nanomaterials. Cincinnati, OH: U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, National Institute for Occupational Safety and Health, DHHS (NIOSH) Publication Number 2009-125. [http://www.cdc.gov/niosh/docs/2009-125/].

Asbestos Victims in Libby Settle Case for $43 Million

The asbestos victims in Libby, Montana, have settled their case against the State of Montana for $43 Million. The case alleged that Montana had failed to take proper action to curb the asbestos production at the WR Grace vermiculite plant.

Asbestos is a known carcinogen causally related to asbestosis, lung cancer and mesothelioma. WR Grace manufactured asbestos containing vermiculite as an insulation product. The production process contributed to the toxic contamination of the geographical area and both the workers and the residents developed asbestos related illness on a massive scale. The US Environmental Protection Agency designated Libby, MT, as a Superfund Site for cleanup and remediation.

Additionally, the Obama health care reform legislation, extended universal medical care (Libby Care) through Medicare to all residents of Libby who were exposed to fiber. This innovated medical insurance program can be extended to other areas designated as a national health emergency areas. Eventually all occupational disease claims in workers' compensation could be encompassed by the program.

The costs for medical benefits extended to the residents of Libby will be reimbursed through the Medical Secondary Acts as directed by The Centers for Medicare and Medicaid Services. This concept is already in place throughout the US.

For over 4 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.

Monday, September 19, 2011

US Dept of Labor Moves Aggressively on Misclassification of Employees

The misclassification of workers by employers directly impacts the calculation of workers' compensation benefits. The US Department of Labor today has moved aggressively to co-ordinate actives with the US IRS to co-ordinate enforcement and education.

Generally, employees classified as independent contrators are not entitled to workers' compensation benefits Employers sometime commit fraud and designate employees as independent contractors and avoid paying both taxes and benefits such as workers' compensation.

11 state agency leaders also sign, agree to memorandums of understanding

Secretary of Labor Hilda L. Solis today hosted a ceremony at U.S. Department of Labor headquarters in Washington to sign a memorandum of understanding with the Internal Revenue Service that will improve departmental efforts to end the business practice of misclassifying employees in order to avoid providing employment protections. In addition, labor commissioners and other agency leaders representing seven states signed memorandums of understanding with the department's Wage and Hour Division and, in some cases, its Employee Benefits Security Administration, Occupational Safety and Health Administration, Office of Federal Contract Compliance Programs and Office of the Solicitor. The signatory states are Connecticut, Maryland, Massachusetts, Minnesota, Missouri, Utah and Washington. Secretary Solis also announced agreements for the Wage and Hour Division to enter into memorandums of understanding with the state labor agencies of Hawaii, Illinois and Montana, as well as with New York's attorney general.

The memorandums of understanding will enable the U.S. Department of Labor to share information and coordinate law enforcement with the IRS and participating states in order to level the playing field for law-abiding employers and ensure that employees receive the protections to which they are entitled under federal and state law.

"We're here today to sign a series of agreements that together send a coordinated message: We're standing united to end the practice of misclassifying employees," said Secretary Solis. "We are taking important steps toward making sure that the American dream is still available for all employees and responsible employers alike."

"This agreement takes the partnership between the IRS and Department of Labor to a new level," said IRS Commissioner Doug Shulman. "In this new phase of our relationship, we will work together more efficiently to address worker misclassification issues, and better serve the needs of small businesses and employees."

Business models that attempt to change, obscure or eliminate the employment relationship are not inherently illegal, unless they are used to evade compliance with federal labor laws — for example, if an employee is misclassified as an independent contractor and subsequently denied rights and benefits to which he or she is entitled under the law. In addition, misclassification can create economic pressure for law-abiding business owners.

These memorandums of understanding arose as part of the department's Misclassification Initiative, which was launched under the auspices of Vice President Biden's Middle Class Task Force with the goal of preventing, detecting and remedying employee misclassification.

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.

Related articles

Copyright

Monday, October 3, 2011

Related articles

Related articles

Sunday, October 2, 2011

Friday, September 30, 2011

Related articles

For over 4 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.

Related articles

Sunday, September 25, 2011

Related articles

Friday, September 23, 2011

Wednesday, September 21, 2011

Related articles

Related articles

Tuesday, September 20, 2011

References

Related articles

Related articles

Monday, September 19, 2011