OSHA's Intent Is Not To Preempt State Tort Law Claims by the HazCom Standard

My thanks to attorney, Steven H. Wodka of Little Silver, NJ, for sending this information:

"Those of you who handle toxic torts may have seen defense motions to dismiss your

clients’ failure to warn claims based on the argument that such claims are preempted by OSHA’s hazard communication standard.  Their argument is based on an unpublished NJ Appellate Division decision, Bass v. Air Products & Chemicals Inc., et al., Docket No.  A-4542-03T3, decided May 25, 2006.

Forecasters Predict Increased Hurricane Activity Raising Concern for Worker Saftey

On the heels of last year's Superstorm, Hurricane Sandy, some of the nation's top storm forecasters are now predicting yet another year of above average storms. The dire prediction raises concerns over the prospects on ensuring worker safety, and whether the workers' compensation system is capable of delivering benefits in an efficient and effective manner during recurrent natural disasters.


"We anticipate that the 2013 Atlantic basin hurricane season will have enhanced

activity compared with the 1981-2010 climatology. The tropical Atlantic has anomalously warmed over the past several months, and it appears that the chances of an El Niño event this summer and fall are unlikely. We anticipate an above-average probability for major hurricanes making landfall along the United States coastline and in the Caribbean. Coastal residents are reminded that it only takes one hurricane making landfall to make it an active season for them, and they need to prepare the same for every season, regardless of how much or how little activity is predicted."

Read the complete report: "EXTENDED RANGE FORECAST OF ATLANTIC SEASONAL HURRICANE ACTIVITY AND LANDFALL STRIKE PROBABILITY FOR 2013"

Protecting Healthcare Workers is a Goal of NIOSH

In the US there are over 14 million healthcare workers and many are not adequately protected from hospital and nursing home infections. Now NIOSH is going on the education offensive to alert healthcare workers on how to use respiratory protection at work.

Over the last few months, I have seen first hand how hospitals struggle to stop the spread of Staph
and Strep infections to little avail.Many healthcare professional don't know how to properly take an efficient culture while swabbing the patient's skin leading to alarming rates of incorrect diagnosis and frantic use of high powdered antibiotics that merely stress that patient more.

"Poor compliance with respiratory protection requirements and proper use recommendations in healthcare settings remains a vexing problem."

Click here to read the complete NIOSH announcement.

New DSM Criteria Manual Challenged by Expert for Lack of Validity

Setting standards for the assessment of psychiatric criteria in workers' compensation claims has been a major challenge. Subjective criteria has been difficult for the experts, evaluators and courts to yield an objective analysis.

With a new version of the Diagnostic and Statistical Manual of Mental Disorders, or

D.S.M., to be published a new challenge to the assessment tool has been made.

"Just weeks before the long-awaited publication of a new edition of the so-called bible of mental disorders, the federal government’s most prominent psychiatric expert has said the book suffers from a scientific 'lack of validity.'"

Read the complete article "Psychiatry’s Guide Is Out of Touch With Science, Experts Say" NY Times

Oklahoma Opt-Out Workers' Compensation Law Enacted

Governor Mary Fallin today signed into law Senate Bill 1062, a bill that reforms the workers’ compensation system in Oklahoma by removing it from the judicial system and making it an administrative process. The bill, by Senate President Pro Tem Brian Bingman and House Speaker T.W. Shannon, seeks to reduce costs for businesses by providing for an opt-out of the program.

It moves the state from a court-based workers’ compensation system to an administrative system, allowing for more timely processing of claims and reducing the adversarial nature of the process for both workers and employers. 

“For decades, Oklahoma has had one of the most expensive and inefficient workers’ compensation systems in the country, a constant obstacle for business owners looking to expand operations or create more jobs,” Fallin said.  “Senate Bill 1062 completely overhauls our flawed workers’ comp system, dramatically reducing the costs to businesses and freeing up private-sector resources that can be invested in jobs rather than lawsuits. Additionally, our reforms ensure injured workers are treated fairly and given the medical care needed to return to work.  This is an important pro-growth policy that will help us attract jobs and build a stronger and more prosperous Oklahoma.  My thanks go out to Pro Tem Bingman, Speaker Shannon and the entire Legislature forsending this bill to my desk.”

Private Sector Workers Compensation Costs Down For 7th Year

Professor Emeritus John F. Burton Jr., reports in his latest research report that private sector costs for workers' compensation costs are down for the 7th year straight. This gives rise to the next question as to whether workers' are just being denied workers' compensation benefits and the system has eroded.

"Issue 6 of the Workers’ Compensation Resources Research Report (WCRRR) examines

Professor Emeritis
John F. Burton Jr.

the employers’ costs of workers’ compensation. Part I relies on data from the Bureau of Labor Statistics (BLS) to examined national trends from 1986 to 2012. For private-sector employers, costs dropped for the seventh year in a row and represented 1.80 percent of payroll in 2012, the lowest figure since 1986. For all non-federal employers, costs of workers’ compensation dropped to 1.79 percent of payroll in 2012, the lowest figure since the data series began in 1991.

"Part II examines BLS data on the differences in the employers’ costs of workers’ compensation due to factors such as geographical location, industry, union status, and occupations of the firm’s employees. The variations of workers’ compensation costs among industries were significant in 2012, ranging from 4.47 percent of payroll in construction to 0.63 percent of payroll in the financial industry.

Sequester Whacks Injured Workers

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

Injured workers with claims under the Longshore & Harbor Workers Act and the Defense Base Act, who are awaiting hearings by federal administrative law judges (ALJs), have now had their cases seriously impacted by the Sequester.  The Office of Administrative Law Judges (OALJ), with District Offices in seven cities including San Francisco, schedules hearings not only in those cities but in other venues in the District.  The San Francisco office schedules hearings in San Diego, Seattle, Portland, Denver and elsewhere, and so-called Calendar Calls are scheduled in those cities by traveling ALJs. 

The Sequester has caused the San Francisco office...to cancel all travel by ALJs until at least October, when a new fiscal year for OALJ may refresh its travel budget.

The Sequester has caused the San Francisco office, which covers a larger geographical territory than any other, to cancel all travel by ALJs until at least October, when a new fiscal year for OALJ may refresh its travel budget.  No further Calendars in outlying cities will be scheduled until at least October.  In the meantime, the parties may agree to bring their witnesses to San Francisco for hearings (or agree to a telephonic hearing – rarely a good alternative), but both sides must to agree to the alternative process.  The cost of bringing the claimant and expert witnesses to San Francisco, even if jointly agreed to, makes that a mostly unrealistic option.

The cancellation of travel for ALJs makes the system even more unfair to claimants.