Workers' Compensation

Wednesday, March 27, 2013

Should Employers Hire Smokers?

Workers' Compensation claims seem to increase with both complexity and severity when a worker is a smoker and suffers an occupational exposure. The class case is the synergistic effect that smoking has with some carcinogenic substance such as asbestos.

The ethical implications are reviewed this week in the New England Journal of Medicine

where the authors seem to take the position that smokers should not be punished, but rather reformed.

"Finding employment is becoming increasingly difficult for smokers. Twenty-nine U.S. states have passed legislation prohibiting employers from refusing to hire job candidates because they smoke, but 21 states have no such restrictions. Many health care organizations, such as the Cleveland Clinic and Baylor Health Care System, and some large non–health care employers, including Scotts Miracle-Gro, Union Pacific Railroad, and Alaska Airlines, now have a policy of not hiring smokers — a practice opposed by 65% of Americans, according to a 2012 poll by Harris International. We agree with those polled, believing that categorically refusing to hire smokers is unethical: it results in a failure to care for people, places an additional burden on already-disadvantaged populations, and preempts interventions that more effectively promote smoking cessation."

Ciba, Toms RIver NJ and a Cancer Epidemic

Early in my workers' compensation career, during the 1980's, I was asked by a local attorney to participate in the prosecution of 3 brain cancer workers' compensation claims. The cases arose out of an alleged exposure to toxic substances while working at the Ciba-Geigy's chemical plant in Toms River, NJ.

Being a notoriously zealous attorney, I undertook the claims. They were being defended personally by named partner in a mega-NJ liability firm. After several hearing dates, and my motion being granted for an on-site inspection of the premises with Judge being present, the claims were ended to the satisfaction of my clients.

The story of Ciba-Geigy and the plight of the employees and the community is now the subject of an insightful book, Toms River, A story of Science and Salvation authored by Dan Fagin.

Click here to hear the NPR Story - For Toms River, An Imperfect Salvation

The Going and Coming Rule: Parking Lot Injury Held Not Compensable

English: Symbol of interchange parking. Italia...

A NJ appellate court ruled that an employee who was severely injured in a parking lot as a result of a slip and fall was not entitled to workers’ compensation benefits since the injury occurred “off the premises” and the employer did not control the employee’s parking.

The Court also ruled, that even though a separate corporation that owned the parking lot, the corporate veil could not be pierced in absence of the proof of fraud by the employer. The employer merely rented the store premises and not the parking lot.

Cottone v Medical Supply Corp. and NJ Manufacturers (Intervener)
2013 WL 1136114 (N.J.Super.A.D.) Decided March 20, 2013

California: Million Dollar Verdict Reinstated in Asbestos Case

Court rules granting a Motion Not Withstanding the Verdict was premature in mesothelioma / asbestos exposure case.

"The trial court erred, both procedurally and substantively, by granting judgment notwithstanding the jury’s verdict. The judgment must be reversed, automatically reinstating the original judgment entered on the jury’s verdict.

"Because the judgment must be reinstated in the Webbs’ favor, we do not consider their appeal from the jury’s verdict denying their consumer-expectation products-liability claim, which they made expressly contingent on this court’s failure to “otherwise reverse and order judgment” on the failure-to-warn or general negligence claims.

Webb v Special Electric Company Inc.
www.courts.ca.gov/opinions/documents/B233189.DOC

Related articles

Wednesday, March 20, 2013

Laundry in Paterson NJ Fined $165,000 by OSHA for Safety and Health Violations

Commercial laundries are the cause of many workers' compensation claims from toxic exposures and machine accidents. Enforce of safety and health laws goes a long way to prevent accidents at commercial laundry facilities.

The U.S. Department of Labor's Occupational Safety and Health Administration has cited Brite Services Inc., doing business as Star Laundry, for 39 serious safety and health violations found at its commercial laundry facility in Paterson. Inspectors were prompted by a complaint alleging the company would not allow workers to leave the building during an emergency. Proposed penalties total $164,700.

OSHA found electrical hazards and an obstructed and improperly marked exit route. Additional violations include: allowing employees to potentially be struck by traffic while transporting laundry bins from one building to another while crossing a public street; failing to provide a cover and guardrails for open pits; provide a handrail for the stairway; evaluate the workplace for permit-required confined spaces; post signs informing workers of confined spaces; and develop a written confined space permit program. Other violations include failing to establish an energy control program for performing maintenance/servicing work; train power industrial truck operators; take powered industrial trucks in need of repair out-of-service; insulate or cover steam pipes less than 7 feet from the floor; properly guard machines; implement a hearing conservation program for workers exposed to noise levels at 88 and 89 decibels; ensure safety goggle usage; provide an unblocked eyewash station; develop a written hazard communication program; and provide hazard communication training.

"The vast number and range of safety and health hazards observed by OSHA at this facility indicates the lack of a functioning safety and health management system," said Lisa Levy, director of OSHA's area office in Hasbrouck Heights. "Each employer is responsible for ensuring a safe and healthful work environment, which Brite Services did not do. This company has the opportunity now to educate itself, correct these hazards and protect its workers."

The citations can be viewed at http://www.osha.gov/ooc/citations/briteservices_641138and658718_0314_13.pdf*.

Brite Services Inc. has 15 business days from receipt of the citations to comply, request an informal conference with the OSHA area director in Hasbrouck Heights, or contest the citations and proposed penalties before the independent Occupational Safety and Health Review Commission.

Tuesday, March 19, 2013

The Hazards of Alcohol-Based Hand Sanitizers

Alcohol-based hand sanitizers now proliferate the workplace. Concern has been raised over medical issues created by their use, especially for pregnant women who are health care workers. Additionally the fragrances used may be toxic.

Virginia Evans and Peter Orris from the University of Illinois authored a Letter to the Editor on this topic in the Journal of Occupational and Environmental Medicine ( Vol 54(1):3, Jan 2012).

“…exposure to alcohol-based hand sanitizers would, at most, lead to very low blood alcohol levels… if an additional risk reduction is desired by pregnant health care workers, work practices should be modified to allow the use of soap and water as a substitute for the alcohol-based hand sanitizer.”

OSHA Cites NJ Recycling Company for Safety Violations Following Worker Amputation

The U.S. Department of Labor's Occupational Safety and Health Administration has cited Lieze Associates, doing business as Eagle Recycling of New Jersey, with one repeat and three serious safety violations after a worker's fingers were amputated in December 2012 at the company's North Bergen recycling transfer station. OSHA's investigation was initiated in response to a referral by the North Bergen Police Department and has resulted in proposed fines of $70,070.

"This incident should have been prevented by simply locking out the machine's power source," said Kris Hoffman, director of OSHA's Parsippany Area Office. "Eagle Recycling of New Jersey's continued disregard for complying with OSHA safety standards will not be tolerated."

OSHA inspectors found that procedures were not used to lock out the energy source of a conveyor belt system while the worker was clearing a cardboard jam, which resulted in the amputation. OSHA cited the company with a serious violation for failing to implement a lockout/tagout program to control potentially hazardous energy. Another violation includes failing to ensure a ladder placed with the two top rails was supported and placed with secure footing. A serious violation occurs when there is substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known.

The repeat violation was cited for exposing workers to 8-foot fall hazards while working on unguarded platforms. A repeat violation is issued when an employer previously has been cited for the same or similar violation of a standard, regulation, rule or order at any other facility in federal enforcements states within the last five years. A similar violation was cited in 2009 and 2010.

The company has 15 business days from receipt of the citations to comply, ask for an informal conference with OSHA's area director in Parsippany, or contest the citations and proposed penalties before the independent Occupational Safety and Health Review Commission.

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