Norfolk Southern Railway Co. ordered by US Labor Department's OSHA to pay $1.1 million after terminating 3 workers for reporting injuries

Norfolk Southern Railway Co. has been ordered to pay $1,121,099 to three workers following an investigation by the U.S. Department of Labor's Occupational Safety and Health Administration, which found that the company violated the whistleblower provisions of the Federal Railroad Safety Act. Two investigations, conducted by OSHA staff in Chicago and Pittsburgh, found that three employees were wrongfully fired for reporting workplace injuries. In addition to monetary remedies, the company has been ordered to expunge the disciplinary records of the three whistleblowers, post a notice regarding employees' whistleblower protection rights under the FRSA and train workers on these rights.

Railroad carriers are subject to the FRSA, which protects employees who report violations of any federal law, rule or regulation relating to railroad safety or security, or who engage in other protected activities.

"The Labor Department continues to find serious whistleblower violations at Norfolk Southern, and we will be steadfast in our defense of a worker's right to a safe job – including his or her right to report injuries," said acting Secretary of Labor Seth D. Harris. "When workers can't report safety concerns on the job without fear of retaliation, worker safety and health suffer, which costs working families and businesses alike."

California, Workers' Compensation and The Nuclear Option

There has been a call among eminent commentators in California to invoke “The Nuclear Option,” abolishment of the Workers’ Compensation Act entirely.  The suggestion was aired in response to proposed legislation (AB 1309) that would implement a statutory limitation on extraterritorial coverage for professional athletes and reflects a trend to emasculate the benefit program by incremental “take backs.”  

An analysis demonstrates that the law, proposed by California Insurance Committee Chairman Henry Peres (D-Fresno), may indeed be the triggering mechanism to implode the entire system both in California and in the Nation. It may very well be the sentinel event.

California has had a logarithmically problematic workers’ compensation program for at least the past 3 decades. It has been literally a political football. The promise to provide a simple, economically conservative and expeditious administrative system of benefits has turned into an outright nightmare. Both labor and Industry have tried, to no avail, to meet those noble goals against a tide of crippling economic downturn, new and costly medical modalities, waves of emerging occupational diseases, and an onslaught of outside vendors who are “eating the lunch” of the system.

E-Filing Is A Good Thing

Workers' Compensation attorneys need to adapt to new technology. A case in point is electronic filing.

The Bob Cummings Show
January 2, 1955 to September 15, 1959

Two jurisdictions recently have sparked efforts for adaptation to new procedures designed to implement more expeditious and cost savings measures.

Over fifty years ago, there was a sit-com on TV, The Bob Cummings Show. The program mocked a GrandPa's ability to adopt to new technology. The aging parent used gifts of an electric blanket as a bread warmer, and an electric rotisserie as a sock dryer.

NJ has adopted e-filing of motion practice that speeds docketing and service of pleadings in the vast majority of cases. While not mirroring the stellar Federal Court Case Management Electronic Filing System with compete exhibit PDF submissions permitted, it does make major improvements to the process.

Florida has reported, that despite offerring an e-filing, parties are still entrenched in their old and wasteful habits of using USPS Certified Mail for process.

Knee Replacement Medical Device Recalled

The US Food and Drug Administration  (FDA) has notified healthcare professionals of a Class I recall of the LPS Diaphyseal Sleeve, a manufactured medical device used in human knee replacement surgery.

It has been found that The LPS Diaphyseal Sleeve to Diaphyseal Sleeve Base taper connection may not be sufficient to accommodate potential physiologic loads that may be transferred to the junction during normal gait activities by some patients. This may result in fracture of the sleeve at the taper joint which may also lead to loss of function or loss of limb, infection, compromised soft tissue or death.

The device was manufactured by: DePuy Orthopaedic, Inc, a company owned by Johnson and Johnson.

Out-of-State Work-Related Injuries: What You Need to Know

Today's post comes from guest author Brian M. Wright from Causey Law Firm of  the State of Washington

If you are a Washington resident working for an employer who operates in Washington and you are injured in another state, you probably have a Washington State workers’ compensation claim. Additionally, you might have a valid claim in the other state, as well. 

In all of the above scenarios, you may have the ability to file your claim in multiple states. Generally, you will have the option of filing in:

1)    the state in which you were injured;
2)    the state in which you primarily worked; and
3)    the state in which you entered into your employment contract.

If you are injured outside Washington, or whatever state in which you normally work, it is important to evaluate your options and file wherever you might have a legitimate claim. It is possible that you have remedies available to you in more than one state.

EPA Fines Arizona School Districts for Asbestos Violation

The U.S. Environmental Protection Agency has fined six Arizona school districts a combined total of $94,575 for Asbestos Hazard Emergency Response Act (AHERA) violations. More than 15,000 children attend the 25 schools not in compliance with the federal AHERA in these districts. 

During inspections conducted in 2011, EPA inspectors discovered numerous violations, from failing to inspect facilities for asbestos containing materials, failing to re-inspect campuses with known asbestos containing materials, and failing to have an Asbestos Management Plan. All of the school districts have since taken necessary actions to comply with the law, with the cost of compliance reducing the penalties in most cases to zero. 

“Asbestos in schools has the potential to harm the health of students, teachers, and maintenance workers,” said Jared Blumenfeld, EPA’s Regional Administrator for the Pacific Southwest. “EPA takes these violations seriously, and we are satisfied the schools have now conducted inspections and put their asbestos plans in place.” 

Each school district is allowed to subtract properly documented costs of complying with the regulations from the penalty amount. The six school districts are: 
· Apache Junction Unified School District (Pinal County): fined $21,675, but this was reduced to $7,933 because of the school district’s cost of achieving compliance. 
· St. John’s Unified School District (Apache County): fined $14,195, reduced to $824 by the school district’s cost of achieving compliance.
· Florence Unified School District (Pinal County): fined $31,705, but no cash payment was due because the documented costs of compliance exceeded the penalty. 
· Vernon Elementary School District (Apache County): fined $2,700, but no cash payment was due because the documented costs of compliance exceeded the penalty. 
· McNary Elementary School District (Fort Apache Indian Reservation): fined $14,200, but no cash payment was due because the documented costs of compliance exceeded the penalty.
· Round Valley Unified School District (Apache County): fined $10,100, but no cash payment was due because the documented costs of compliance exceeded the penalty.
Federal law requires schools to conduct an initial inspection using accredited inspectors to determine if asbestos-containing building material is present and develop a management plan to address the asbestos materials found in the school buildings. Schools are also required to appoint a designated person who is trained to oversee asbestos activities and ensure compliance with federal regulations. Finally, schools must conduct periodic surveillance and re-inspections of asbestos-containing building material, properly train the maintenance and custodial staff, and maintain records in the management plan.

Local education agencies must keep an updated copy of the management plan in its administrative office and at the school which must be made available for inspection by parents, teachers, and the general public.

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.

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CMS Announces New WCMSA Re-Evaluation Procedure

February 12, 2013

Effective immediately, if a WCMSA proposal amount was originally submitted via the web-portal,  a re-evaluation of an approved WCMSA amount can be requested through the WCMSA web portal, if the claimant or submitter believes that a CMS determination:

• contains obvious mistakes, such as mathematical errors or a failure to recognize that medical records already submitted show a surgery CMS priced has already occurred, or
• misinterpreted evidence previously submitted, a re-evaluation maybe requested.  

Please refer to  Question # 12 of the July 11, 2005, procedure memorandum located in the “downloads” section of this page for detailed information regarding when a  re-evaluation request maybe submitted.  The CMS Regional Offices will continue to review the requests submitted through the portal.

Posted on CMS Workers Compensation Agency Services

Read more about WCMSA and workers' compensation 

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Workers' Compensation: CMS Publishes WCMSA Operating Rules

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The Centers for Medicare and Medicaid Services (CMS) has now published a copy of its Operating Rules regarding the evaluation of set-aside proposals. CMS cited that distribution of this material may reduce review time by ...

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Workers' Compensation: CDC in Reviewing WCMSA Limits Review ...

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CDC in Reviewing WCMSA Limits Review to One Life Expectancy Table. Effective July 1, 2008 the Centers for Medicare and Medicad (CMS) will exclusively use the Centers for Disease Control (CDC) Table 1 (Life Table for ...

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Workers' Compensation: CMS Lists How to Avoid 10 Top WCMSA ...

Sep 10, 2009

CMS Lists How to Avoid 10 Top WCMSA Errors. The Centers for Medicare and Medicaid Services has now posted the 10 top errors on Workers' Compensation Set Aside Agreement submissions and how to avoid them: 1.

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