Workers' Compensation

Saturday, June 21, 2014

OSHA Enforcement Cases Involving Temps On the Rise

Today's post shared from OshOnLine.com illustrates a new efforcement effort by OSHA that will improve the work environment for all Americas.

OSHA's emphasis on the safety of temporary workers is being driven home by a series of enforcement actions. The latest case announcement on June 19 involved the Macon, Ga., facility of a company named California Cereal Products Inc., which OSHA has cited for exposing full-time and temporary workers to electrical, fall, and noise hazards, with proposed penalties totaling $40,600. OSHA opened an inspection last December based on a complaint.

"The employer has failed to protect full-time and temporary workers from easily identified workplace hazards that can result in death or permanent disability," said Bill Fulcher, director of OSHA's Atlanta-East Area Office.

The case against beverage bottling company Maplewood Beverage Packers LLC and temporary employment agency Corporate Resource Services Corp. in Elizabeth, N.J., also began with a December 2013 investigation, but it started with a referral from the Maplewood Fire Department after a temporary worker was injured falling from a ladder. OSHA has proposed $182,270 in penalties. "Host employers and staffing agencies are jointly responsible for ensuring worker safety and health," said Kris Hoffman, director of OSHA's Parsippany Area Office. "Employers must protect all workers from job hazards-both permanent and temporary workers."

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Thursday, June 19, 2014

Why We’re Still Killing Workers in the USA

Today's post comes from guest author Jay Causey, from Causey Law Firm.

The AFL–CIO’s annual report on job fatalities is out, and provides some interesting fodder for thought.

It’s no surprise that North Dakota – – with its “wild West” environment for oil and gas extraction on the Bakken Shale was the most dangerous place – – with 17.7 deaths per 100,000 workers versus the national average of 3.4.

Nationally, 4600 workers died on the job in 2012. While that number has fallen since safety laws were implemented in the 1970s, the decline has flat-lined over the most recent decade. It was 4.2 deaths per 100,000 workers in 2006, now still at 3.4 in 2012.

The AFL–CIO report contains maps that reflect part of the reason for the stall-out: the vast majority of the states with the highest fatality rates contain the 8 million workers in states with no federally approved OSHA safety and health plan. The report graphically portrays another salient fact: the number of federal OSHA inspectors per 1 million workers has fallen from a high of 15 in 1980 to 6.9 in 2013. OSHA has been so underfunded over recent years that it would take an average of 139 years for available OSHA inspectors to visit each workplace in their jurisdiction just once. (In some states that number is even more staggering – – 521 years for South Dakota.)

The AFL-CIO report reflects some other interesting facts concerning the demographics of workplace fatalities – – not surprisingly, being foreign-born or Latino puts a worker at a higher risk of fatality, and homicide was the number one cause of death for women in the workplace in 2012.

But, getting back to the “oil patch” in North Dakota, we see other disturbing trends in the culture of workplace injury that accompany the decreasing application of safety regulation. With job growth tripling in North Dakota’s oil patch since 2007, while workers’ compensation filings are up, many injured workers are encouraged by employers in the extractive industries not to file, with many companies working out sidebar deals with injured workers. Injury rates are being kept artificially low by rewards for not reporting. As the AFL–CIO’s safety chief, Peg Semenario, has said, underreporting warps national safety figures in an industry that is already notoriously opaque.

And the culture of creating false indicators of workplace safety will likely have tremendous implications down the line when the 2000 tons of silica-rich sand used in the cement casing of each fracking well begins to work its way into workers’ lungs. NIOSH reported in 2012 that 92 of 116 air samples at franking sites exceeded the recommended safe levels of silica, which can lead to incurable, irreversible lung disease.

Photo credit: Craig Newsom / Foter / Creative Commons Attribution-NonCommercial-NoDerivs 2.0 Generic (CC BY-NC-ND 2.0)

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Social Security Agency Cuts Services as Demand Grows, Senate Report Says

Today's post is shared from nytimes.com

The Social Security Administration is closing field offices and reducing services to the public even as demand for those services surges with the aging of the baby boom generation, according to a bipartisan Senate committee report.

The report, to be issued Wednesday by the Senate Special Committee on Aging, says the agency has closed more than two dozen field offices in the last year, generally without considering the needs of communities and without consulting beneficiaries or field office managers.

In deciding whether to close field offices, the Social Security Administration “excludes both its own managers and the affected public,” and the decisions often appear arbitrary, the report says.

The committee’s chairman, Senator Bill Nelson, Democrat of Florida, said, “Seniors are not being served well when you arbitrarily close offices and reduce access to services.”

He added, “The closure process is neither fair nor transparent and needs to change.”

The field offices served over 43 million people last year. About 10 percent of the visitors filed for benefits, and 30 percent were seeking new or replacement Social Security cards.

In testimony prepared for a committee hearing on the issue on Wednesday, Nancy A. Berryhill, a deputy commissioner at the agency, said its budget and work force had not kept pace with what she described as “a staggering 27 percent increase” in claims for retirement benefits, to 3.3...

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Monday, June 16, 2014

It's A Priviledge

Today's post was shared by WorkCompCentral and comes from daviddepaolo.blogspot.com

We get lost in the world of workers' compensation so deeply, it seems, that we sometimes forget what law really governs our actions.
A recent unpublished (which means that the case is not citable in legal proceedings as authority) opinion by the California Fourth District Court of Appeal reminds us that there are times when the Labor Code, the main governing body of statutes in California workers' compensation, takes a back seat.
One of those times is when it comes to evidence.
Shirley Lappi sustained a workplace injury in 2003 while working as an administrative assistant for the University of California at Irvine. Lappi filed a claim for benefits and demanded that her employer and the insurer produce certain documents related to her claim.
The defendants produced most of the documents, along with a privilege log identifying 205 documents that they asserted were not subject to discovery because of the attorney-client privilege and work-product doctrine.
After reviewing the log, Lappi's attorney objected to the defendants' failure to disclose 47 of the listed documents because they were not communications between the defendants and defendants' attorneys.
A workers' compensation administrative law judge ordered the defendants to provide Lappi with copies of some of the documents.
In her order and opinion, the judge stated that she had determined that the documents, which consisted of communications between claims personnel, were not privileged unless they specifically discussed a...

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Undocumented Aliens Ensnared By Workers' Compensation

Peter Rousmaniere comments today about the problems, threats and fears that undocumented aliens confront with the nation's patchwork of compensation programs. Injured undocumented aliens in states than mandate the submission of a social security number to file an initial application for workers' compensation benefits are particular targets for criminal fraud enforcement.

"The eight million undocumented workers comprise about 6% of the total civilian workforce. By studying estimates of undocumented worker penetration by occupations ranked by injury risk, one can reasonably project that undocumented workers sustain one out of every ten work injuries. This high volume is invisible to almost everyone except for adjusters, case managers, lawyers and others who work directly with injured workers and have learned their work and life patterns. The rate varies greatly, from maybe 2% in West Virginia, a low foreign-born population state, to over half within the fruit and vegetable producing counties of southern California."

Reconciliation of this issue remains uncertain for a multitude of reasons. The future of immediate national reform of immigration laws this election cycle now looks bleak with Eric Cantor's recent primary defeat. States will continue to use Social Security information for tax collection and enforcement, in addition to the reconciliation of other programs such as Medicare and unemployment benefits.

Ironically as Rousmaniere points out in his commentary, the power of the employer over the employee, is a huge challenge to the improvement of safety and health in the workplace. Shifting the burden from employers to US taxpayers is problematic. As the Affordable Care Act is fined tuned in the years ahead, the issue of undocumented aliens will become both a more dominate moral and legal issue in need of reform.

Saturday, June 14, 2014

Amazon Being Investigated for Worker’s Death at U.S. Warehouse

The Occupational Safety and Health Administration is currently looking into the recent death of a worker in an incident at an Amazon warehouse, it revealed in a press release yesterday. The incident occurred on June 1 at an Amazon fulfillment center in Carlisle, Pa., the agency said.

The Associated Press reported that the deceased is Jody Rhoads, a 52-year-old woman who was killed when machinery she was operating to move pallets crashed into shelving and pinned her.

“Our thoughts and prayers go out to Jody’s family and loved ones,” an Amazon spokeswoman said. “We are actively working with OSHA to investigate this tragedy.”

Separately, OSHA yesterday issued its findings on the investigation into the work conditions surrounding the death of 57-year-old Ronald Smith, who died in December after being crushed my machinery at a New Jersey sorting facility owned by Amazon but operated by a separate company.

Five companies were cited for violations related to Smith’s death, but Amazon wasn’t one of them. One was Genco, the logistics company hired by Amazon to manage the facility as well as four staffing agencies, including one called Abacus that employed Smith. The four staffing agencies each face penalties of $6,000 — yes, only $6,000 — for “failure to perform a hazard assessment of the facility before assigning employees to determine if hazards existed.”

Genco is also facing a $6,000 penalty for failing to confirm that...

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Troubled

Historically California with its huge share of the nation's workers' compensaton market defines the future course of regulation and reform. The analysis offered by David DePaolo is indeed troubling. Today's post is shared from http://daviddepaolo.blogspot.com

The message I heard at the California Workers' Compensation Insurance Rating Bureau's Annual Meeting yesterday in San Francisco was a mixed one, but my ultimate conclusion isn't positive.

The bottom line - frictional costs associated with the most recent reform effort seem to have introduced more frictional costs than savings, and the likelihood is that when Oregon does it's rate normalized bi-annual survey, California may just come out on top as the most expensive state with a troublesome delivery history and questionable profitability for carriers.

Ugh...

Here's a sort of good news, bad news synopsis, not necessarily in any particular order:

While there has been a dramatic reduction in claim frequency (fancy insurance-speak for the number of injuries per given period), down some 80% over the past 40 years, California has seen frequency level off and even grow a small percentage where the rest of the nation continues to experience continuing declines. It seems that this frequency deviation is attributable to the Greater Los Angeles area - a geographic bubble driving the state's negative claims picture.

It seems that the frequency trend in indemnity claims in the LA area is attributable to continuous trauma...

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Friday, June 13, 2014

NJ Senate OKs cost-of-living increases to workers' comp

Today's post is shared from northjersey.com

A bill that would add cost-of-living increases to some workers' compensation payments in New Jersey passed in the state Senate Thursday. The bill had been opposed by the New Jersey Business and Industry Association, which said it would cost the state's private employers $58 million a year.

Prospects are unclear for the proposal, which was sponsored by Senate President Stephen Sweeney and Sen. Fred Madden Jr., both South Jersey Democrats. There is no matching bill in the state Assembly, although other bills address the issue. The bill's sponsors could not be reached Thursday for comment.

Under the bill, which passed 21-15, people who were totally and permanently disabled by work injuries after 1980 would receive a cost-of-living adjustment every year once they turn 65. The increases would start in July 2015. The adjustment would be funded by a surcharge to private employers, on top of the workers' compensation premiums they pay to insurance companies and other payments they already make to a state fund.

According to the state Department of Labor and Workforce Development, the maximum workers' compensation benefit is $843 a week.

Christine Stearns, vice-president of the New Jersey Business and Industry Association, said that under the bill, public employers would not pay into the fund.

"So these cost-of-living adjustments would be shouldered solely by private employers, but all beneficiaries would be eligible for the...

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Thursday, June 12, 2014

Recycling Firm Accused of Wage Violations, Threats Against Workers Agrees to Settlement

Today's post was shared by FairWarning and comes from www.fairwarning.org

A Los Angeles recycling business accused of violating federal minimum wage and overtime rules, and pressuring workers to lie to government investigators, has agreed to pay more than $74,000 in back wages and damages to 13 employees in a settlement with the U.S. Department of Labor.

In a consent agreement filed this week in federal court in Los Angeles, Alkanan, Inc., and an owner of the firm, Karim Ameri, neither admitted nor denied wrongdoing. Ameri declined to comment on the settlement.

As reported by FairWarning, federal authorities in December obtained a restraining order to bar the firm from pressuring workers to mislead investigators, or threatening to report them to immigration authorities if they coooperated with the probe. According to a court document, Ameri “threatened to break an employee’s arm”, though an accountant for the business later told labor officials that Ameri got tripped up by language barriers and didn’t mean it as a threat of violence. Under the names Recycling Innovations and Valley Recycling, Alkanan operates seven bottle-and-can redemption centers in the San Fernando Valley area of Los Angeles.

“We are pleased to have reached a resolution in this case that will provide employees with the wages they worked hard to earn,” said Ruben Rosalez, regional administrator for the Wage and Hour Division’s western region, in a prepared statement. “We will use all available tools, including litigation,…to...

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Compensation denied for false imprisonment type situation

The NJ Court of Appeals affirmed the dismissal of an employee's claim for mental disability based upon confinement by the employer against her will. The reviewing tribunal accepted the rationale of the the compensation court judge that the event was not a material contributing cause of the disability.

Since the amendment to the NJ workers' compensation act in 1979, an employer is not responsible for a condition that is not materially contributing by the employment. Prior to 1979 the standard was that the employer took the employee as they found him or her. If the work related event was the "straw that broke the camel's back," the employer was then responsible for the end result.

In this instance, the trial judge had found that the employee had a pre-existing mental disability following from childhood sexual abuse and that condition was the sole material contributing cause of the injured workers' mental disability. The employment episode was deemed unrelated.

The Court held: "Here, the judge found appellant's history of childhood sexual abuse was in fact the true source of her disability; this finding is similar to Goyden, where the court found the appellant's compulsive personality and childhood problems caused his unfortunate reactions to his work environment. Id. at 458–59. Here, the testimony of Dr. Pipchick yields a similar analysis; she clearly stated that without the childhood sexual abuse, appellant would not have had the disabling response to the incident. Even though the incident may have “triggered” the appellant's PTSD, it did not cause the disability, and thus there is no basis for compensation."

For additional analysis of workers' compensation psychiatric disability claims see Gelman, Workers' Compensation Law, 38 NJ Practice 9.12 Psychological Disability--Harassment: "In Goyden the NJ Supreme Court rendered a split decision regarding the standard for awarding permanent disability for psychological illness arising out of stressful work conditions. The Court affirmed the opinion of the Appellate Division which stated that stress must stem from objectively proven stressful work conditions rather than from conditions the petitioner found stressful. The Court required the establishment of conditions “peculiar” to the workplace, conditions which justified the medical opinion that they were the “material” causes of the petitioner's disability.....“That Goyden's particular characteristics as a person may have made him more sensitive or susceptible to the influences of stress or even predisposed to develop a psychological illness does not impugn the Court's conclusion that his disability arose out of and in the course of employment,” the minority wrote. Goyden v. State, Judiciary, 128 N.J. 54, 607 A.2d 622 (1992)."

Rizzo v. Kean University, Not Reported in A.3d, 2014 WL 2590281 (N.J.Super.A.D.) June 12, 2014

Monday, June 9, 2014

Summer Means Safety Reminders for Teen Workers

Today's post comes from guest author Kit Case, from Causey Law Firm.

L&I urges workplace safety for teens as summer hiring season nears

Teens are gearing up to search for summer jobs and the Washington State Department of Labor & Industries (L&I) is urging employers, parents and others to support safety during “Safe Jobs for Youth Month” in May.
A total of 477 youth ages 12-17 were injured in the workplace in 2013, making this year’s observance more important than ever, said Mary E. Miller, occupational nurse consultant with L&I and a youth employment expert. Of the total, 156 were in the food and hospitality industries. The next largest total, 66, occurred in the retail trades. There were no fatalities.
“Teens are eager to work and may not question a workplace situation that doesn’t seem right,” Miller said. “We’re trying to ensure youth perform safe and appropriate work and employers, parents and teachers can all help.”
Gov. Jay Inslee signed a proclamation making May “Safe Jobs for Youth Month” across the state. More information is available at www.TeenWorkers.Lni.wa.gov. The agency also offers presentations from injured young workers for students. Miller can provide a separate talk for employers and teachers.
In recent years, the number of injuries has increased despite an overall decrease the past decade. Injuries in 2003 totaled 1,135. In 2011, injuries reached a low of 425 before increasing the next two years. Injuries range from lacerations, strains and sprains to more serious fractures and concussions, Miller said.
“Employers are eager to give young workers a start in the world of work” Miller noted. “The result is we need to continue to help employers provide teens with tasks appropriate to their age.”
In general, 14- and 15-year-olds may perform lighter tasks, such as office work, cashiering and stocking shelves. Work assignments for 16- and 17-year-olds can be less restrictive and can include cooking, landscaping, and some use of powered equipment and machinery. The limits on the hours of work for all minors vary by age.
Generally, if safety equipment other than a hard hat, eye protection or gloves is required, then it’s not an appropriate job for minors. All minors are prohibited from working with powered equipment such as meat slicers and forklifts, Miller noted.
In agriculture jobs, restricted job duties differ for youth. The agency has specific information on its website at its Agricultural Jobs for Teens page.

Photo credit: The Library of Congress / Foter / No known copyright restrictions

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New research links Iraq dust to ill soldiers

Dozens of Iraqi veterans have been diagnosed with constrictive bronchiolitis, a narrowing of the lung's smallest passageways.(Photo: Jim Watson, AFP)

WASHINGTON — Titanium and other metals found in dust at a base in Iraq have been linked to the dust found in six sick soldiers' lungs, according to a study set to be released Monday.

"We biopsied several patients and found titanium in every single one of them," said Anthony Szema, an assistant professor at Stony Brook School of Medicine who specializes in pulmonology and allergies. "It matched dust that we have collected from Camp Victory" in Iraq.

The dust is different from dust found elsewhere in that human lungs are unable to dispel it through natural immune-system processes. The Iraq dust comes attached to iron and copper, and it forms polarizable crystals in the lungs, Szema said. The particles — each bit 1/30th the size of a human hair — have sharp edges.

"They've inhaled metal," Szema said. "It's not a little; it's a lot."

All of the veterans came in for help because they were short of breath, said Szema, who also heads the allergy clinic at the Veterans Affairs Medical Center in Northport, N.Y. Dozens have been diagnosed with constrictive bronchiolitis, a narrowing of the lung's smallest passageways that occurs only after exposure to an environmental toxin or in lung-transplant patients.

There are several theories as to why the dust is different, said Szema, who will...

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Friday, May 30, 2014

Equal Work, Less-Equal Perks; Microsoft Leads the Way in Filling Jobs With 'Permatemps'

Today's post was shared by Steven Greenhouse and comes from www.nytimes.com

By STEVEN GREENHOUSE
Published: March 30, 1998
They hold high-prestige, high-technology jobs at Microsoft's plush campus. They often do the same work as the Microsoft Corporation's permanent employees, developing CD-ROM's, designing World Wide Web sites and writing software manuals. Yet they do not qualify for Microsoft's coveted stock options, and their health and vacation benefits are pale imitations of those enjoyed by regular Microsoft workers.
They are long-term temps -- a seeming oxymoron, but in fact a new and growing phenomenon in the American work force, embraced by many corporations, especially high-tech ones, including Microsoft, AT&T, Intel, Hewlett-Packard and Microsoft's Seattle neighbor, Boeing.
Microsoft is perhaps the leading practitioner of the trend, employing about 5,000 temps, including 1,500 long-term ones, meaning they have worked for the software colossus for at least one year. These temps work next to Microsoft's 17,000 domestic employees.
Some prefer the flexibility and the higher take-home pay that temp status affords, but many assail temping as a backdoor way to create a two-tier work force. The benefits that the lower tier loses out on, many temps say, far outweigh whatever extra pay they take home.
''It's a system of having two classes of people and instilling fear and inferiority and loathing,'' said Rebecca Hughes, who worked for three years as a temp at Microsoft, helping edit its CD-ROM on health care.
With work lives strung together by...

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California Senate votes to raise minimum wage to $13 an hour in 2017

Today's post was shared by Steven Greenhouse and comes from www.latimes.com

The state Senate on Thursday approved a measure that would gradually raise the minimum wage in California from the current $8 an hour to $13 in 2017, despite warnings from the California Chamber of Commerce that the bill is a “job killer.”
Sen. Mark Leno (D-San Francisco) said his bill is necessary to help lift many of the 7.9 million Californians being paid minimum wage out of poverty. “Income inequality has been spoken of by our president as the defining challenge of our time,” Leno told his colleagues.

He said the current minimum wage is so low it allows many who receive it to get public assistance. “It is our tax dollars that are subsidizing the largest corporations paying these poverty wages.” Leno said. No other state has a minimum wage of $13 an hour.
Republican lawmakers said the increase will result in businesses raising prices or cutting their workforce. They noted that the Legislature last year approved a bill that would raise the minimum wage from $8 an hour to $9 on July 1 and to $10 on Jan. 1, 2016.
Leno’s bill would raise the minimum wage to $11 an hour on Jan. 1, 2015, to $12 a year later, and to $13 per hour on Jan. 1, 2017. After that, the minimum wage would increase automatically with the consumer price index.
The bill was approved by a bare-majority 21-12 vote and sent to the Assembly for consideration.
“The minimum wage is meant to be for entry-level jobs,” said Sen. Tom Berryhill (R-Modesto), who opposed...

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