N.F.L. Makes Open-Ended Commitment to Retirees in Concussion Suit

Barring professional athletes from claiming workers' compensation benefits did not stop the mass filing of civil action claims for intentional harm against the NFL Today's post is shatred from the nytimes.com

The N.F.L. has made an open-ended commitment to pay cash awards to retirees who suffer from dementia and other diseases linked to repeated head hits, according to documents filed in the United States District Court for the Eastern District of Pennsylvania on Wednesday.

The guarantee is part of a revised settlement in the contentious lawsuit filed by about 5,000 retired players who accused the league of hiding from them the dangers of concussions.

In August, the league agreed to pay $765 million to settle the suit with the retired players, with $680 million of that amount set aside for cash awards. But Judge Anita B. Brody rejected the proposal in January because she said she doubted whether there would be enough money to cover all the claims over the 65-year life of the settlement.

Lawyers for the league and the plaintiffs spent the past six months revising the settlement. If the judge approves the new version in the coming weeks, it will be sent to all 18,000 retired players and their beneficiaries, who can then approve the settlement, object or opt out of it. The results of that vote are unlikely to be known for at least several months, and no players will be paid until all appeals are exhausted.

The league’s new promise to compensate all qualified claims could convince retirees who said they would opt out of the original settlement because they felt the league could have set aside more money for players with serious neurological disorders.

“Today’s...
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Intentional Fraud

All fraud is not actionable in workers' compensation. It is similar to discrimination action actions under the workers' compensation act. There is much talk, but few claims succeed, since they are based upon the element of intent.

This case caught my eye because of David DePaolo's recent blog post highlighting the recent, as David calls it, "Truly Imaginative" behavior of an individual playing two sides of the plot line.

The fraud issue struck a note for me as I have been reviewing cases for an upcoming seminar on workers' compensation issues. The decision of Bellino v Verizon, 2014 WL 10301786 (NJ App Div 2014) is a factual situation that seem to draw the ire of many insurance companies and employers. The injured worker failed to disclose some past medical information during a proceeding. The Court held that the element of intent was not proven.

Cases involving fraud are especially fact sensitive. Rarely does someone play both sides of the story line in perpetrating an intentional workers' compensation fraud scheme. Carlos Perry in West Virginia did so as the US Justice Department reports:

Knoxville Man Sentenced To Twelve Years Imprisonment For Workers' Compensation Fraud

Carlos Perry Found to Have Defrauded Six Insurance Companies Out of $401,649 in Benefits

FOR IMMEDIATE RELEASE

May 20, 2014

ABINGDON, VIRGINIA – United States Attorney Timothy J. Heaphy announced today that Carlos Perry, 58, Knoxville, Tenn. was sentenced last week in the United States District Court for the Western District of Virginia in Abingdon to twelve years in federal prison.

Perry was also ordered to pay restitution in the amount of $324,914.70. Perry had previously pleaded guilty to one count of mail fraud.

According to evidence presented at the sentencing and guilty plea hearings by Assistant United States Attorney Zachary T. Lee, between January 2011 and February 2014, Perry developed a scheme in which he defrauded six different insurance companies of workers’ compensation benefits using false business and fictitious employees.  An investigation by the United States Secret Service determined that Perry’s scheme entailed Perry impersonating an owner of six fictitious businesses located in Wise, Va., Johnson City, Tenn., Bristol, Va., and Abingdon, Va., in order to obtain workers’ compensation insurance.  Perry then filed false injury claims on behalf of the fictitious employees. 

Perry received the checks sent by the insurance companies and impersonated the fictitious employees at doctor’s visits and in communications with the insurance companies.  The United States Secret Service discovered that Perry utilized nineteen fictitious identities in the course of his scheme and used the social security numbers of numerous real persons to execute his fraud.  On January 29, 2014, Perry was arrested by the United States Secret Service and the United States Marshals Service at a doctor’s office in Kingsport, Tenn., where he was impersonating one of the fictitious employees.  As a result of Perry’s scheme, six separate insurance companies sustained a combined loss of $401,649.66. 

The investigation of this case was conducted by United States Secret Service, United States Marshals Service, and the Virginia State Police.  Assistant United States Attorney Zachary T. Lee is prosecuting the case for the United States.

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EPA Takes Action to Protect Public from an Illegal Nano Silver Pesticide in Food Containers; Cites NJ Company for Selling Food Containers with an Unregistered Pesticide Warns Large Retailers Not to...

Today's post was shared by US EPA News and comes from yosemite.epa.gov

 The U.S. Environmental Protection Agency has issued an order to the Pathway Investment Corp. of Englewood, New Jersey to stop the sale of plastic food storage containers that have not been tested or registered with the EPA, in violation of federal pesticides law. The company’s Kinetic Go Green Premium Food Storage Containers and Kinetic Smartwist Series Containers both contain nano silver as an active ingredient, and the company markets other products as containing nano silver, which the company claims helps reduce the growth of mold, fungus and bacteria. Such claims can only be made on products that have been properly tested and are registered with the EPA.

“Claims that mold, fungus or bacteria are controlled or destroyed by a particular product must be backed up with testing so that consumers know that the products do what the labels say,” said EPA Regional Administrator Judith A. Enck. “Unless these products are registered with the EPA, consumers have no information about whether the claims are accurate. The EPA will continue to take action against companies making unverified public health claims.”

Some pesticides have been linked to various forms of illnesses in people, ranging from skin and eye irritation to cancer. Some pesticides may also affect the hormone or endocrine systems. In many situations, there are non-chemical methods that will effectively control pests.

Under federal pesticide...

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Jon L. Gelman of Wayne NJ is the author NJ Workers’ Compensation Law (West-Thompson) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson). For over 4 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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The findings “underscore the importance of considering pest and pesticide burdens in cities when formulating pesticide use regulations,” the researchers from the city's Department of Health and Mental Hygiene wrote in the ...
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Intentional Tort Claim Against Employer Proceeds for Pesticide
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A US District Court in NJ is allowing a claim of injured agricultural worker to proceed against an employer directly for an intentional tort flowing from a pesticide spraying. The workers, residents of Puerto Rico, were employed ...
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Workers' Compensation: Highly hazardous pesticides should be ...
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The tragic incident in Bihar, India, where 23 school children died after eating a school meal contaminated with monocrotophos, is an important reminder to speed up the withdrawal of highly hazardous pesticides from markets ...
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How ALEC Serves As A 'Dating Service' For Politicians And Corporations

ALEC has endorsed workers' compensation as program to shield corporate liability. " NOW THEREFORE BE IT RESOLVED, that the State of (insert state) specifically reaffirms the principle of workers’ compensation as the exclusive remedy and rejects the rationale for tort liability based on legal theories such as dual capacity/dual persona, intentional injury without proof that the employer acted with deliberate intention to cause the injury, or third party action against employers for work-related injuries." Today's post is shared from NPR.org . A batch of internal documents recently leaked to The Guardian has revealed new insights into the goals and finances of the secretive group called ALEC. The American Legislative Exchange Council is a group that brings together state legislators and representatives of corporations. Together, they develop model bills that lawmakers introduce and try to pass in their state legislatures. Through these model bills, ALEC has worked to privatize public education, cut taxes, reduce public employee compensation, oppose Obamacare and resist state regulations to reduce global warming gas emissions. "ALEC is like an incubator of predominantly conservative legislation," Guardian correspondent Ed Pilkington tells Fresh Air's Terry Gross. "The vast majority of the model bills are conservative in their...

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The Next Wave: N.H.L. Players Sue League Over Head Injuries

Occupational illness claims have been a traditional battleground in workers' compensation for larger and more significant lawsuits and dynamic changes in the safety of the workplace induced by economics.

From the lack of the incorporation of occupational claims in the 1911 model workers' compensation acts, in the 1950's, employers and their insurance companies sought refuge under the "exclusivity bar" of the. workers' compensation act to shield themselves from negligence actions for silicosis and asbestosis claims.

The creativity of claimant's lawyers, and the blatant intentional tort acts of unscrupulous asbestos companies, brought forth a sweeping change in the economic balance as claimants used the civil justice system to establish an avenue for adequate compensation for asbestos victims (lung cancer, asbestosis and mesothelioma claims).

Asbestos litigation, "longest running tort, continues today and is the perfect example of the societal benefits of a working civil justice system.  In fact, the same dynamic existed in: tobacco litigation, lead paint litigation, latex litigation and has been repeated many times over.

The civil justice system, not the workers' compensation system, established an economic incentive establishing a safer workplace for workers and their families.

It is more than obvious that contact sports are seeing the next wave of litigation as the employers and their insurance companies accelerate the cycle, by barring professional athletic players from even seeking workers' compensation benefits, ie. California.

Since it appears that no safe helmet can be manufactured to protect the mayhem of some contact sports, the business of sports will be the next "industry" to experience economic incentives to make the workplace safer. The higher education system will just have to find another economic engine to fund colleges and university and stop luring students to play dangerous sports in hope of winning the professional sports lottery.

First football, now hockey, are emerging targets of the civil justice system as the economics of safety takes hold and the need for safety takes hold. Today's post is shared from the nytimes.com.

Ten former N.H.L. players sued the league Monday for negligence and fraud, saying the sport’s officials should have done more to address head injuries but instead celebrated a culture of speed and violence.

The players, who were in the league in the 1970s, ’80s and ’90s, filed their suit in federal court in Washington. One of the lead lawyers is Mel Owens, a former N.F.L. player who has represented scores of other retired players in workers’ compensation cases.

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Jon L. Gelman of Wayne NJ is the author NJ Workers’ Compensation Law (West-Thompson) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson). For over 4 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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Klickitat County Lumber Company Fined

Today's post comes from guest author Kit Case, from Causey Law Firm.

By Kit Case from Causey Law Firm

William Arthur Cooper: Lumber Industry, 1934

     The Washington State Department of Labor and Industries announced that a Klickitat County lumber company was fined nearly a quarter of a million dollars after worker gets caught in machinery.

     The SDS Lumber Company of Bingen, Wash., has been fined $244,600 for 69 workplace safety and health violations after a worker was seriously injured in March. The Department of Labor & Industries (L&I) cited the employer for one willful, 54 serious and 14 general violations of safety and health rules. A willful violation is cited when L&I alleges that the violation was committed with intentional disregard, plain indifference, or when employers substitute their own judgment for safety and health regulations.

     L&I determined that a lack of training and proper safety procedures left the lumber mill worker with severe injuries when his arms became entangled in machinery while trying to clear a jam. L&I began an investigation on March 9m 2013 after being notified that the worker had been hospitalized. By law, all employers are required to report to L&I within eight hours anytime a worker is hospitalized or dies due to work-related causes.

     “This incident shows the importance of Washington’s hospitalization reporting rule,” said Anne Soiza, assistant director for L&I’s Division of Occupational Safety and Health. “In most other states, a hospitalization involving only one worker does not have to be reported and the serious hazards could continue unabated. In our state, we are able to send inspectors right away to ensure the safety of the other workers.”

     The investigation found that managers and supervisors were aware that workers routinely bypassed machinery safety guards to try and clear jams while the machinery was still in motion.

     Consequently, the company was cited the maximum penalty allowed by law, $70,000, for a willful violation. Additionally, because the willful violation was associated with a worker’s serious injuries, the company will now be part of the Severe Violator Enforcement Program, an OSHA program that monitors severe safety violators.

     The injury incident prompted comprehensive safety and health inspections of the entire plant. In addition to the machinery violations, the department found serious hazards related to chemicals, hazardous and flammable substances, bloodborne pathogens, confined work spaces, electrical and fall protection. Many of the violations were corrected during the inspections. 

     The company has appealed the citations.

Photo credit: americanartmuseum / Foter / CC BY-NC-ND

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OSHA cites Nebraska Cold Storage for 14 safety violations including ammonia exposure

Proposed fines total $132,800; company placed in Severe Violator Enforcement Program

Nebraska Cold Storage Inc. has been cited for 14 safety violations and fined $132,800 by the U.S. Department of Labor's Occupational Safety and Health Administration for exposing workers to anhydrous ammonia at its Hastings facility. The company has been placed in OSHA's Severe Violator Enforcement Program.

"Ammonia is considered a high health hazard because it can be corrosive to the skin, eyes and lungs. It is flammable at varying concentrations," said Bonita Winingham, OSHA's area director in Omaha. "Businesses that handle hazardous materials must take precautions to protect workers from exposure to chemicals, explosions and fire hazards."

The March inspection was initially conducted under OSHA's high-hazard local emphasis program. It expanded to include all items within the agency's national emphasis program for process safety management for covered chemical facilities. The company provides basic storage and shipping services for the frozen, refrigerated and perishable food industries.

Four willful violations were cited. Some involve PSM violations, including the failure to develop and implement written, safe operating and mechanical integrity procedures and measures to take for physical contact or airborne exposure to anhydrous ammonia. The remaining violations involve failing to correct deficiencies in equipment and to document responses to 2010 compliance audit findings, including 12 of 22 deficient audit items that remained uncorrected. A willful violation is one committed with intentional, knowing or voluntary disregard for, or plain indifference to, employee safety and health.

A total of 10 serious safety violations include lack of emergency action planning; failing to maintain the original ammonia refrigeration systems process hazard analysis; exposing workers to crushing hazards by failing to remove and/or repair damaged storage racks; and failing to evaluate the performance of a powered industrial truck operator every three years. The other violations include failing to prevent electrocution from ice buildup encasing electrical junction boxes; operating equipment within 30 inches of a fork truck charging station; and install fixed wiring and provide strain relief for power cords. 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 current citations may be viewed at http://www.osha.gov/ooc/citations/Nebraska_Cold_Storage.pdf*

OSHA's Severe Violator Enforcement Program focuses on recalcitrant employers that endanger workers by committing willful, repeat or failure-to-abate violations. Under the program, OSHA may inspect any of the employer's facilities if it has reasonable grounds to believe there are similar violations.

The company has 15 business days from receipt of the citations and notice of proposed penalties to contest the citations and proposed penalties before the independent Occupational Safety and Health Review Commission. If a company does not file or contest within that period, it must abate the cited conditions within the period ordered in the citations and pay the proposed penalties.

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Exclusivity Rule: Court Holds Risk of Death Contemplated by Legislature

A NJ Appellate Court has ruled that the Exclusivity Bar prohibits the estate of a fatally injured trash truck driver from proceeding with an intentional tort claim against his employer. Even though the employer may have defeated the neutral safety switch and was cited for violations by OSHA, the Court ruled that the industry risk of being fatally injured was contemplated by the Legislature when promulgating the NJ Workers' Compensation Act.

Sellino v Pinto Brothers Disposal, Docket No. A-2064-12T1, 2013 WL 5300076 (Decided: September 23, 2013)

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Jon L. Gelman of Wayne NJ is the author NJ Workers’ Compensation Law (West-Thompson) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson). For over 4 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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Jersey City, NJ, theatrical equipment company cited by OSHA for exposing workers to workplace safety and health hazards

The U.S. Department of Labor's Occupational Safety and Health Administration has cited Acadia Scenic Inc., which builds scenery for the entertainment industry, with 22 safety and health violations, including two willful. The citations followed an April inspection, prompted by the agency's Health-High-Hazard Top 50 Local Emphasis Program and its Amputations and Combustible Dust Emphasis Program. Proposed penalties total $49,600.

The willful violations, with $28,000 in penalties, were cited for a lack of guarding on hand-fed circular ripsaws and crosscut table saws. A willful violation is one committed with intentional, knowing or voluntary disregard for the law's requirements, or with plain indifference to worker safety and health.

The 19 serious violations, with $21,200 in penalties, include the company's failure to keep the workplace clean and orderly; prevent accumulations of explosive dust; provide railings on stairs; establish or implement a written respiratory protection program for workers required to wear respirators; have fire extinguishers mounted and readily accessible for use; and provide an educational program on the general principles of fire extinguisher use and hazards involved for workers expected to fight incipient stage fires.

The company was also cited for failing to provide machine guarding for a miter saw; provide spreaders and nonkickback devices on two hand-fed circular ripsaws; properly adjust a work rest on grinding machinery; determine each employee's exposure to methylene chloride; provide appropriate gloves and eyewash facilities for workers using methylene chloride-containing adhesives; and develop and implement a written hazard communication program that includes training for workers exposed to hazardous chemicals. A serious violation occurs when there is a substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known.

"Each of these hazards threaten the company's ability to provide employees with a safe and healthful work environment, and should be corrected immediately," said Kris Hoffman, director of OSHA's Parsippany Office. "OSHA will continue to hold employers responsible when they fail to protect their workers."

Inspectors also cited the company for one other-than-serious violation, which carries a $400 penalty, for not recording a workplace injury on the employer's OSHA Form 300 Log of Work-Related Injuries and Illnesses. An other-than-serious violation is one that has a direct relationship to job safety and health, but probably would not cause death or serious physical harm.

Acadia Scenic Inc. 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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