NIOSH Supports Efforts To Ban Distracted Driving

The National Institute for Occupational Safety and Health (NIOSH) is following the lead of the US Department of Labor by encouraging employers to ban cell phone use while operating vehicles. An outright prohibition and supporting legislation may lead to the prohibition of workers' compensation benefits in many jurisdictions in the near future unless more global and radical action is taken to re-mediate this dangerous activity.

“While the basic distractions of cell phone calls or text messaging are similar whether one is driving on work time or on personal time, there are sources of distraction and incentives to engage in distracted driving behaviors that are unique to the workplace,” noted John Howard, M.D., Director of the National Institute for Occupational Safety and Health (NIOSH). “Someone driving on personal time has the leisure of waiting to return a friend’s call or text message. In these situations, minimizing risk is a matter of changing personal behavior and habits,” Dr. Howard said. “Workers, however, may be required or pressured by job demands to engage in distracted driving behaviors. Strong employer policies to curb the use of cell phones and in-vehicle technologies while driving are an important tool in creating a safe driving culture within an organization.”

Dr. Howard added, “NIOSH applauds the efforts of the Departments of Transportation and Labor to highlight the important role public and private employers can play in reducing distracted driving. We join them in urging employers to set policies to prohibit text messaging while driving. In addition, NIOSH will continue to work with our federal and other partners to support further efforts to reduce distracted driving in the workplace.”

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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.

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Court Grants Motion to Reconsider Statute of Limitations in CMS Case

In order to avoid any "maifest injustice," the Court that had previously dismissed the Government's case against insurance companies and lawyers for failure to reimburse the Centers for Medicare and Medicaid Services (CMS), has granted a motion to reconsider under the plaintiff's accrual theory.

"As its fourth ground for reconsideration, Plaintiff argues that the court erred in concluding that the Government inadequately raised a theory of continuing accrual against all defendants concerning the annual $2.5 million payments from 2004 through 2014 contemplated in the Abernathy Settlement Agreement. Admittedly, Plaintiff did not address this theory in its responsive briefing to the Defendants’ motions to dismiss. At the September 13, 2010 hearing, the court granted verbal leave for Plaintiff to submit a motion to amend its complaint to more clearly articulate a claim on this issue. For whatever reason, Plaintiff has failed to do so, but argues in its motion to reconsider that it properly pled a theory of continuing accrual in its First Amended Complaint and raised it at the hearing. Though this theory should have been raised and argued in Plaintiff’s brief in response to the multiple motions to dismiss filed by Defendants, the court will allow Defendants an opportunity to respond in full to this issue to avoid any possible clear error. Therefore, the court GRANTS Plaintiff’s motion to reconsider as to the issue raised in part D regarding a continuing accrual theory and ORDERS that Defendants have until Tuesday, November 16, 2010 to respond as to whether the allegations pled in Plaintiff’s First Amended Complaint are sufficient to state a claim for a theory of continuing accrual; and if so, whether the court committed clear error in dismissing Count VI of Plaintiff’s First Amended Complaint.

"Finally, the court RESERVES RULING as to the tolling issue raised in part E of Plaintiff’s motion to reconsider. To avoid any possible clear error and/or manifest injustice, the court will allow Defendants until Tuesday, November 16, 2010 to respond as to: 1) whether the court should reconsider the issue of tolling; and 2) if the court does, whether it committed clear error in application of the appropriate burden of raising or pleading tolling in this context and in granting the motion to dismiss before discovery had yet occurred.

USA v James J. Strickler, et al CV 09=BE-2423-E

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.

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The Election Validates A New Approach to Workers Compensation

The recent election results confirm that a new approach to handling the century old workers' compensation is needed and that some definite trends are developing.

Washington State: The insurance industry initiative for privatization was defeated.

New Jersey: The constitutional amendment to prohibit raiding the Second Injury Fund revenue was passed.

California: Jerry Brown was elected governor and the Republican assault on the state compensation system rejected.

Nevada: Harry Reid was re-elected validating the innovated "Libby Health Care" Plan for medical care for occupational illness and the Federalization of the program and the US Senate's initiative.

New York: Andrew Cuomo was elected governor and revision is likely of the administrative assault on workers' rights.

Nationally, the soaring US deficit, and a State system that continues to fail to deliver health care to occupationally injured workers, will eventually need to be addressed by Congress. The 2008 strong Democratic mandate has not evaporated. The Democrats still control the Senate (51-D v 46-R) and downtown at White House. The newly acquired House Republican majority (234-R v 180-D) is instilled with the chaos of an unsettling newly emerging third party, Tea Party, alliance.

The course ahead still remains promising for enacting a unified and coordinate program to help injured workers obtain medical care for occupational diseases on a timely and effective basis without breaking the bank. The vision of a coordinated epidemiological research program to prevent occupational disease and  insure safe working conditions remains hopeful.

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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.

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Asbestos Danger Closes Madison Square Garden

Asbestos falling from the ceiling of Madison Square Garden (MSG) resulted a cautious closing of the arena because of the potential health hazards. On going construction and renovation of the facility resulted in workers dislodging the known cancer producing substance.

In a statement issued by MSG management, caution was stressed:
"Out of an abundance of caution, we are postponing tonight's Knicks v. Magic game. We will be working with the city and independent experts, ATC Associates and GCI Environmental Advisory, to evaluate and determine the most appropriate course of action. As the safety of our customers and employees are our top priority, we will not reopen the Garden until we are absolutely assured the Arena is safe.

Asbestos is a known carcinogen and exposure results in asbestosis, lung cancer and a rare and fatal disease, mesothelioma. There is no minimum safe dose level of exposure to asbestos. The disease manifests decades after the exposure to fiber occurs. The use of asbestos in the past has resulted in an epidemic of illness.

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 asbestos related disease.

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NJ Rejects Broad Medicare Release Language in Judgments

The NJ Division of Workers Compensation has indicated that broad release "language should not be included as part of a settlement order, attached to a settlement order or placed or part of the settlement record."

Specifically the following sample language was rejected, The claimant, , agrees to indemnify defendant, hold harmless the respondent from any action by Medicare seeking payment of past, current or future medical expenses for the claimant. Claimant shall further hold the respondent harmless from any and all adverse consequences in the event the settlement results in the loss of right to Social Security and/ Medicare benefits to the extent claimant would have been entitled to those benefits in the absence of the settlement agreement."

A memo was issued on October 28, 2010, by the Director and Chief Judge, The Honorable Peter J. Calderone.
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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.

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Workers Compensation and Nanotechnology - The New Frontier

NIOSH research has revealed that breathing nanoparticles may result in damaging health effects.

"Nanotechnology has the potential to revolutionize countless products, create computers smaller and faster than once could be imagined, and fight diseases such as cancer. According to the Project on Emerging Nanotechnology, by the summer of 2009 there were 1,015 consumer products using nanotechnology. That represents nearly a 19-fold increase over the 54 products listed in 2005. Nanotechnology involves the manipulation of matter at a near-atomic scale. Nanoparticles measure from 1 to 100 nanometers in size, with 1 billion nanometers forming a meter. For comparison, a billion inches would nearly circle the Earth 2 times."

• A 2004 survey estimatedthat nearly 25,000 U.S. workers were employed at businesses that exclusively produced nanotechnology products.
• Nanoparticles can enter the body through many routes including inhalation, swallowing, ingestion, and absorption through the skin.
• Nanotechnology may present health risks but it can also be used to protect workers. New respirator designs, for instance, use nanotechnology to create more effective filters to block harmful substances.

Authors of Inhalation Versus Aspiration of Single-Walled Carbon Nanotubes in C57BL/6 Mice: Inflammation, Fibrosis, Oxidative Stress, and Mutagenesis—Anna Shvedova, Elena Kisin, Ashley Murray, Victor Johnson, Olga Gorelik, Sivaram Arepalli, Ann Hubbs, Robert Mercer, Phouthone Keohavong, Nancy Sussman, J. Jin, J. Yin, Samuel Stone, The-hsun Chen, Gregory Deye, Andrew Maynard, Vince Castranova, Paul Baron, and Valerian Kagan; Health Effects Laboratory Division; NIOSH—received the 2009 Alice Hamilton Award in the Biological Sciences category.

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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.

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A New Wave of Disease - Cleaners Asthma

Workers exposed to chlorine agents have been diagnosed with respiratory impairments. A recent study has reported that "suggest that bleach inhalation at a concentration of 0.4 ppm—a concentration below 8-hr permissible occupational exposure level—brings about a substantial decrease in FEV1 in subjects."

"Included in the study were thirteen cleaning employees with work-related asthma-like symptoms, three asthmatic controls and three atopic subjects without bronchial hyperresponsiveness (BHR) who had no exposure to cleaning products. The study protocol consisted of a methacholine test, sputum induction and fraction of exhaled nitric oxide measurement (FENO) both at baseline and 24 hr after a 1-hr inhalation challenge with either placebo or bleach at a concentration of 0.4 ppm of chlorine."

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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.

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