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(c) 2010-2026 Jon L Gelman, All Rights Reserved.

Wednesday, April 11, 2012

Federal RICO Claim Not Preempted by a State Workers Compensation Act

The US 6th Circuit Court of Appeals, in a landmark case of widespread significance,  has held that a State may not preempt a Federal cause of action under the RICO [Racketeer Influenced and Corrupt Organizations Act] statute by asserting that workers' compensation claims are exclusive to State jurisdiction. In long and convoluted history, workers in Michigan have asserted that their employer and its workers' compensation carrier, Crawford & Company, and its experts, ie. "cut off doctor," sought to conspire to defeat their pending claims, "property interest," for benefits under the Michigan state workers' compensation act.


Click here to read: Brown et al. v. Cassens Transport Co. et al., 6th Cir Ct of Appeals,http://www.ca6.uscourts.gov/opinions.pdf/12a0095p-06.pdf Decided, April 6, 2012 (Michigan).

"The flaw with the defendants’ argument is that the predicate offense for the RICO action is mail fraud, not the denial of worker’s compensation. “The gravamen of [a] RICO cause of action is not the violation of state law, but rather certain conduct, illegal under state law, which, when combined with an impact on commerce, constitutes a violation of federal law. Therefore, it is not alleged that [the defendants are] subject to ‘liability under’ the [state law]; their liability . . . stems from RICO.” Williams v. Stone, 109 F.3d 890, 895 (3d Cir.), cert. denied, 522 U.S. 956 (1997). The district court here erred when it stated that this case does not “involve[] a separate and independent tort (theft or conversion or some similar claim)” because the plaintiffs “cannot disentangle their RICO claim from their underlying claim for benefits.” 743 F. Supp. 2d at 666, 668."


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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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Tuesday, April 10, 2012

April is Distracted Driving Awareness Month

April is National Distracted Driving Awareness Month, and from Virginia to California, the traffic safety community has a simple message for drivers: One Text or Call could Wreck it All.


Workers' Compensation Court will be challenged to deal with injuries caused by distracted driving especially as employers come on board and ban their use while driving and Federal Regulations prohibit such use.

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Trending: Opting-Out of Workers' Compensation

Opting-out of workers' compensation coverage is now a significant national trend. The opt outs are  both through a legitimate elective process and a de-facto scheme.

The opt-out process arose through a  legislative process over a decade ago when Massachusetts legislation permitted the option to elect out of the mandatory workers' compensation system. Since then it has grown through both legitimate and illegitimate expansion. Some legislators have proposed that religious organizations should now be permitted to not obtain coverage.

In March the expanding trend to opt-out of the workers' compensation system took a major leap as large employers began to leave the system and offer less benefits to injured workers. Walmart, one of the largest employers in Texas has made the election to leave the system. Within the last two years other large employers have exited the system, including Target, seeking to reduce costs through a private non-workers' compensation plan.

Some states have reported increasingly high rates of uninsured workers. The enforcement and collection activities, are unfortunately both time consuming and expensive and are usually conducted after the fact.

A de-facto opt-out process is also occurring nationally through a process of misclassification of workers. Employees are designated by employers as independent contractors and consultants to avoid mandatory coverage and taxes. In North Carolina  it has been reported that 30,000 business do not have mandatory workers' compensation coverage. The system attempts to avoid the tedious and time consuming process to seek workers' compensation benefits, and instead employees seek benefits from alternative sources including major medical plans, Medicare and social security. Temporary disability plans and major medical plans act as coverage for loss time and treatment. Employee are willing to fore go permanent disability inorder to get certain and immediate medical care and lost time benefits. Many employees have no idea that workers' compensation pays for permanent disability. The aging workforce assumes that Social Security Disability is a more user-friendly system to navigate.

The growing trend of opting out of the workers' compensation system is of concern to all. Why this is occurring in a system that was designed to protect both the worker and the employer needs to be identified and addressed.

Friday, April 6, 2012

Heart Disease Linked to Asbestos Exposure

The occupational exposure to asbestos fiber has now been linked to fatal heart disease. A recent report associates asbestos exposure at work to a higher risk of dying from cardiovascular disease.

Cardiovascular disease mortality among British asbestos workers (1971–2005)
Anne-Helen Harding,  Andrew Darnton,  John Osman, Occup Environ Med oemed-2011-100313 Published Online First: 2 April 2012doi:10.1136/oemed-2011-100313

"Objectives Asbestos is an inflammatory agent, and there is evidence that inflammatory processes are involved in the development of cardiovascular disease. Whether asbestos is a risk factor for cardiovascular disease has not been established. The objective of this study was to investigate cardiovascular disease mortality in a large cohort of workers occupationally exposed to asbestos.

"Methods Cardiovascular disease mortality in a cohort of 98 912 asbestos workers, with median follow-up of 19 years, was analysed. Unadjusted and smoking-adjusted standardised mortality ratios (SMRs) were calculated. The association between indicators of asbestosexposure and mortality was analysed with Poisson regression models, for deaths occurring during the period 1971–2005.

"Results Altogether 15 557 deaths from all causes, 1053 deaths from cerebrovascular disease and 4185 deaths from ischaemic heart disease (IHD) occurred during follow-up. There was statistically significant excess mortality from cerebrovascular disease (SMR: men 1.63, women 2.04) and IHD (SMR: men 1.39, women 1.89). Job and birth cohort were associated with the risk of cerebrovascular and IHD mortality in the Poisson regression model including sex, age, smoking status, job, cohort and duration of exposure. For IHD only, duration of exposure was also statistically significant in this model.

"Conclusions Cerebrovascular and IHD mortality was significantly higher among theseasbestos workers than in the general population and within the cohort mortality was associated with indicators of asbestos exposure. These findings provide some evidence that occupational exposure to asbestos was associated with cardiovascular disease mortality in this group of workers.

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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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Wednesday, April 4, 2012

The Great Asbestos Trial - The Call For More Criminal Prosecutions

Documentary Film Highlights the Global Health and Environmental Crisis of Asbestos; Call for Further Criminal Prosecutions

Anti-asbestos campaigners have urged more criminal prosecutions against the global directors of asbestos corporations following the recent conviction of European industrialists Stephen Schmidheiny and Baron Cartier de Marchienne in Italy. The call was made this weekend at the 8th Annual International Asbestos Awareness Conference put on by the Asbestos Disease Awareness Organization (ADAO) and attended by activists from around the world.

ADAO has organized a special screening of the documentary film, Dust: The Great Asbestos Trial. The screening, made possible with the help of the USC School of Cinematic Arts, will take place Wednesday, April 4th at 7 pm at the Ray Stark Theatre at the University of Southern California (USC) in Los Angeles, CA. Directed by Niccoló Bruna and Andrea Prandstaller, the film tells the story of the groundbreaking Eternit trial in Italy, in which Schmidheiny and Cartier de Marchienne were sentenced to prison for having caused the deaths of over 1,000 asbestos victims.

“ADAO is delighted to present this daring and groundbreaking documentary at USC to bring attention to both the superb film and the global issue of asbestos, which has caused the largest manmade occupational and environmental disaster in history,” commented Linda Reinstein, President/CEO, ADAO. ”Other countries should follow Italy’s example and prosecute these people, who have knowingly exposed tens of thousands of people to lethal doses of a product they know kills.”

Following the screening will be a panel discussion hosted by ADAO that includes Dr. Michael Renov (Professor of Critical Studies and SCA Vice Dean, Academic Affairs), Niccoló Bruna (“Dust” Director), and Linda Reinstein (President/CEO, ADAO).

“Dust: The Great Asbestos Trial is a very accomplished film on a tough topic. I have seen many films on comparable topics but rarely have I seen such a broad and complex topic or such diverse locations and characters handled with such grace and concision,” comments Michael Renov, author of Theorizing Documentary (1993) and The Subject of Documentary (2004) and professor at the University of Southern California.

Asbestos is a known human carcinogen and exposure can cause mesothelioma and lung, gastrointestinal, laryngeal, and ovarian cancers, as well as non-malignant lung and pleural disorders. The World Health Organization estimates that 107,000 workers around the world will die each year of an asbestos-related disease, equaling 300 deaths per day.

Film info and trailer: http://www.graffitimultimedia.it/GraffitiDoc/Scheda.aspx?ID=5

Campaign website: http://asbestosinthedock.ning.com/

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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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Thursday, March 29, 2012

Zadroga Benefits Proposed By NIOSH for Some Cancers

A scientific committee has released a draft report recommending [Zadroga Act] compensation for 9-11 first responders. Those cancers include: esophagus, stomach, colon, liver, skin, lungs, kidneys and others.


See March 22, 2012 Master DRAFT for WTC STAC Committee Review
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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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Tuesday, March 27, 2012

Cell Phone Hearing Use Results in $1.2 Million in Compensation Benefits

The use of a Blackberry cellphone that reportedly caused tinnitus has resulted in the payment of $1.2 Million in workers' compensation benefits

Cell phone injuries have been linked medically by published studies. "The authors warn users of cell phones to look out for ear symptoms such as ear warmth, ear fullness, and ringing in the ears (tinnitus) as early warning signs of an auditory abnormality."

Tinnitus describes a condition of "ringing in the ears." Individuals often describe the sound as a hum, buzz, roar, ring, or whistle. The predominant cause of tinnitus is long-term exposure to high sound levels, though it can also be caused by short-term exposure to very high sound levels, such as gunshots. Non-acoustic events, such as a blow to the head, dietary issues, stress, jaw joint disorders, debris on the eardrum, or prolonged use of aspirin may also cause tinnitus.The inner ear or neural system produces the actual sound.

Exposure to excessive noise in the workplace has been recognized as a major health hazard, one that can impair not only a person's hearing, but also his physical and mental well-being. workplace first affects the ability to hear high-frequency or high-pitched sounds.  Workers suffering from noise-induced hearing loss may also experience continual ringing in the ears, called "tinnitus".  In addition, workers who are exposed to noise sometimes complain of nervousness, sleeplessness and fatigue.

Other cases have also been reported for workers' compensation benefits as a result of the use of a telephone. An injured worker was employed at New Jersey Manufacturers Insurance Company for approximately six years as a customer service representative who spoke with customers on the telephone.  A pre-employment physical, which included a hearing test, demonstrates no hearing difficulties or other medical issues.  During the course of her employment, renovations were conducted at the employer's office and she testified that she heard loud drilling and that her desk vibrated and she had difficulty hearing customers on the telephone.  While medical evaluations reflected no statutory hearing loss pursuant to the form of the occupational Hearing Loss Act, the expert physician did recognize a 5% loss due to tinnitus.  The trial judge concluded that the tinnitus disability was significant and distracted from the former efficiency of her ears and distracted from her ordinary pursuits of life.  The reviewing Court held that tinnitus and supported by the appropriate proofs was a permanent partial disability and was compensable irrespective of whether the employee also suffers a hearing loss compensable under the OHLA.  Schorpp-Replogle v. New Jersey Manufacturers Insurance Company, 395 N.J.Super. 277, 928 A.2d 885 (App.  Div. 2007).
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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.