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Showing posts sorted by relevance for query intentional tort. Sort by date Show all posts
Showing posts sorted by relevance for query intentional tort. Sort by date Show all posts

Thursday, December 5, 2019

Better Chemistry Through Regulation

The newly released movie, Dark Waters, provides a dramatic insight into the corporate disregard to human safety and life. The film, to be nationally released this weekend, puts into focus the chemical industry's utter disregard for human life that is compounded by the lack of governmental regulation of an out-of-control business.

Saturday, December 1, 2012

US NTSB Initiates Investigation of NJ Toxic Train Derailment

The US National Transportation Safety Board (NTSB) has now commenced an investigation of the train accident in Paulsboro, New Jersey where a moveable bridge collapsed and the 84 car train, with 4 cars of toxic substance crashed into a creek spilling hazardous vinyl chloride. 
The NTSB is a Federal agency charged with accident investigation. It has begun to collect data, both human and mechanical, to determine the cause of the investigation. A team of investigators has from Washington DC and other areas of the country has now appeared on the scene to commence the investigation. After conclusion of the investigation and analysis as to the its cause, the NTSB will issue
recommendations to prevent further similar accidents.

The same bridge was had collapsed in 2009, when a train pulling coal cars came off its tracks after the railroad bridge over the Mantua Creek collapsed and sent 16 cars into the water. The bridge was “an old structure,” and its original “A” frame dated back to 1873. The train has two locomotives and 83 freight cars.

One tanker containing 25,000 gallons of vinyl chloride. It was breached in the accident. The gas leaked into the air, while the rest turned into a solid and settled into the bottom of the tanker. Elevated levels of vinyl chloride were detected in a 12 block radius and over 500 people were evacuated last night. Approximately 70people have been treated at the local hospital. No fatalities have yet to be reported.

Most vinyl chloride is used to make polyvinyl chloride (PVC) plastic and vinyl products. Acute (short-term) exposure to high levels of vinyl chloride in air has resulted in central nervous system effects (CNS), such as dizziness, drowsiness, and headaches in humans. Chronic (long-term) exposure to vinyl chloride through inhalation and oral exposure in humans has resulted in liver damage. Cancer is a major concern from exposure to vinyl chloride via inhalation, as vinyl chloride exposure has been shown to increase the risk of a rare form of liver cancer in humans. EPA has classified vinyl chloride as a Group A, human carcinogen.


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Jon L.Gelman of Wayne NJ, helping vinyl chloride victims and their families for over 4 decades, is the author NJ Workers’ Compensation Law (West-Thompson) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson).  

Read more about "vinyl chloride"


Jan 29, 2010
The 5 substances that TSCA mandates regulations for are all known carcinogens: Asbestos, Hexavalent Chromium, Vinyl Chloride, Trichloethylene, Methyene Chloride and Dicloromethene. Since 1976 chronic and terminal ...
Aug 11, 2007
This case involved exposure to poly vinyl chloride at a Pantasote, a Paterson NJ plant, causing disease to former workers which is characteristic of Raynaud's phenomenon ( fingers blanch and numbnessand discomfort are ...
Feb 20, 2008
Secondhand smoke contains hundreds of chemicals known to be toxic or carcinogenic (cancer-causing), including formaldehyde, benzene, vinyl chloride, arsenic, ammonia, and hydrogen cyanide. Secondhand smoke has ...

Thursday, April 1, 2010

Bio-Tech Worker Awarded $1.37 Million in Suit Against Pfizer


A former bio-technical scientist of Pfizer was awarded $1.37 Million dollars as a result of being infected by an experimental virus in the company's laboratories. After a 3 week trial, the award was entered in what is  considered to be the first successful employee claims in the biotech and nanotech industry.

While the intentional tort claim was dismissed by the Judge  and injured worker proceeded under the theory that the company, Pfizer, violated whistleblower laws. The plaintiff also alleged that The Occupational Safety and Health Administration failed to thoroughly investigate the matter and take action.

Click here for  a detailed analysis of the case "Prescription for Bioterrorism by Steve Zeltzer.


Click here to read more about nanotechnology and workers compensation.

Friday, November 18, 2011

Claim Permitted Against Employer For Concealment of Chemical Dangers

A Federal Court permitted a claim a claim by the estate of a former worker to advance against an his employer despite the exclusivity bar of the workers compensation act. The employer had not warned the employee of the potential deadly side effects of pesticides.


In satisfying the two prong (conduct and context) NJ test for an intentional tort against an employer, the employee's estate set forth that the employer had intentionally and fraudulently concealed information of the hazardous nature of the chemicals and substances that the employee worked with as an exterminator.


The employee, who applied pesticides for 11 years, was not furnished with adequate safety equipment and was not provided with warning materials available to the employer.


The court held that employer's conduct was substantially certain to cause injury or death. The estate filed a certification substantiating the events surrounding the exposure and death; material Safety Data Sheets; and expert reports. Where the conduct of the employer is actively misleading and illness and death were substantially certain to occur the employ can be held liable.


Where the conduct of the employer in not protecting the employee is more than a fact of industrial life and is "plainly beyond anything the Legislature intended the Workers' Compensation Act to immune," the compensation act is not an exclusive remedy against the employer.


The Court held that the employer "understood the hazardous nature of the chemicals but failed to provide the decedent with the equipment necessary to ensure his safety. ".... the employer turned a "blind eye to the risks inherent chemical in the use of the chemicals" and went as far as hiding those risks so that the employee was not aware of their existence. "Concealment is hardly an expected fact of life in industrial
employment."

Click Here For Complete Decision: Blackshear v. Syngenta Crop Protection, Inc., Civ. Action No. 10-3585 (KSH) (USDCT - NJ 2011)


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.

Thursday, September 26, 2013

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)

….

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.



Wednesday, December 19, 2012

Football Concussions – An Epidemic Failure of Safety


Story after story is now emerging of the tragedy of head concussions incurred during the sport of football. While the a battle is brewing over jurisdictional issues involving filing Workers’ Compensation claims in the State of California, a larger epidemic of product liability claims is now emerging against Riddell, the major manufacturer of football helmets.

The Sacramento Bee reported a sad story about Dan the Morann, the former San Francisco 49ers first draft pick, who suffered from tragic dementia.

One would think that workers’ compensation had some economic incentive to provide a safer workplace. Unfortunately, that is not the case.

The workers’ compensation system was crafted  as a social insurance program to provide benefits to workers who were injured in the course of their employment, and a summary and expeditious fashion.  The cost of safety was never placed into the economic equation for workers’ compensation. 

The cost of workers’ compensation is theoretically to be passed upon the consumer as a cost of doing business. It is not a tool to encourage a safe workplace.

On the other hand, the civil justice system affords injured workers and their families another avenue to seek benefits by assessing punitive damages against the manufacturer suppliers and distributors of unsafe products. Unfortunately, very few jurisdictions permit claims against employers to circumvent the exclusive bar incorporated into most state workers’ compensation acts.

Perhaps, it is time to rethink the Worker’s Compensation program entirely and place it into a medical care delivery system that  really works and utilize the civil litigation system as a tool to enhance safety in the workplace to prevent future accidents from happening.
....
Jon L.Gelman of Wayne NJ, helping injured workers and their families for over 4 decades, is the author NJ Workers’ Compensation Law (West-Thompson) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson). 

Read more about the “exclusivity bar” and Worker’s Compensation

Jul 11, 2012
In a Multidistrict Litigation (MDL) case pending in New York, a Federal Court ruled that the New Jersey law governing exclusivity of claims barred an employee from proceeding with an intentional tort claim against the ...
Jun 13, 2012
Court Rules Site of Accident Invokes Exclusivity Rule. English: Motor vehicle accident following a ve... A NJ appeals court ruled that a motor vehicle accident cause by a co-worker in the emplyers' parking lot, before work had ...
Apr 09, 2010
A Federal Judge, who is managing the Multi-District Asbestos Litigation, has ruled that the exclusivity doctrine defeats the application of the dual capacity doctrine where the manufacturer's corporation was merged into the ...
Jun 27, 2012
Willful OSHA Violation Alone Not Enough Alone to Circumvent the Exclusivity Doctrine. "New Jersey's Workers' Compensation Act (the Act), N.J.S.A. 34:15-1 to -128.5, provides a prompt and efficient remedy for an employee's ...

Friday, November 30, 2012

Train Carrying Deadly PVC Crashes In NJ Sickens Workers / Residents

A train carrying deadly Polyvinyl Chloride (PVC) crashed in NJ this morning when a bridge it was traveling on collapsed. The train containing highly toxic cargo crashed while crossing a creek near the Delaware River. 

It has been reported that at least 71 people are being treated for respiratory distress and residents have been ordered to remain indoors. The train remains dangling from the collapsed bridge and and chemicals continue to leak into the creek.

Most vinyl chloride is used to make polyvinyl chloride (PVC) plastic and vinyl products. Acute (short-term) exposure to high levels of vinyl chloride in air has resulted in central nervous system effects (CNS), such as dizziness, drowsiness, and headaches in humans. Chronic (long-term) exposure to vinyl chloride through inhalation and oral exposure in humans has resulted in liver damage. Cancer is a major concern from exposure to vinyl chloride via inhalation, as vinyl chloride exposure has been shown to increase the risk of a rare form of liver cancer in humans. EPA has classified vinyl chloride as a Group A, human carcinogen.

Acute Effects: Acute exposure of humans to high levels of vinyl chloride via inhalation in humans has resulted in effects on the CNS, such as dizziness, drowsiness, headaches, and giddiness. Vinyl chloride is reported to be slightly irritating to the eyes and respiratory tract in humans. Acute exposure to extremely high levels of vinyl chloride has caused loss of consciousness, lung and kidney irritation, and inhibition of blood clotting in humans and cardiac arrhythmias in animals. Tests involving acute exposure of mice have shown vinyl chloride to have high acute toxicity from inhalation exposure.

Chronic Effects(Noncancer): Liver damage may result in humans from chronic exposure to vinyl chloride, through both inhalation and oral exposure. A small percentage of individuals occupationally exposed to high levels of vinyl chloride in air have developed a set of symptoms termed “vinyl chloride disease,” which is characterized by Raynaud’s phenomenon (fingers blanch and numbness and discomfort are experienced upon exposure to the cold), changes in the bones at the end of the fingers, joint and muscle pain, and scleroderma-like skin changes (thickening of the skin, decreased elasticity, and slight edema). CNS effects (including dizziness, drowsiness, fatigue, headache, visual and/or hearing disturbances, memory loss, and sleep disturbances) as well as peripheral nervous system symptoms (peripheral neuropathy, tingling, numbness, weakness, and pain in fingers) have also been reported in workers exposed to vinyl chloride. Animal studies have reported effects on the liver, kidney, and CNS from chronic exposure to vinyl chloride. EPA has established a Reference Concentration (RfC) of 0.1 milligrams per cubic meter, and a Reference Dose (RfD) of 0.003 milligrams per kilogram per day for vinyl chloride. Please see IRIS for current information.

Reproductive/Developmental Effects: Several case reports suggest that male sexual performance may be affected by vinyl chloride. However, these studies are limited by lack of quantitative exposure information and possible co-occurring exposure to other chemicals. Several epidemiological studies have reported an association between vinyl chloride exposure in pregnant women and an increased incidence of birth defects, while other studies have not reported similar findings. Epidemiological studies have suggested an association between men occupationally exposed to vinyl chloride and miscarriages in their wives’ pregnancies although other studies have not supported these findings. Testicular damage and decreased male fertility have been reported in rats exposed to low levels for up to 12 months. Animal studies have reported decreased fetal weight and birth defects at levels that are also toxic to maternal animals in the offspring of rats exposed to vinyl chloride through inhalation.

Cancer Risk: Inhaled vinyl chloride has been shown to increase the risk of a rare form of liver cancer (angiosarcoma of the liver) in humans. Animal studies have shown that vinyl chloride, via inhalation, increases the incidence of angiosarcoma of the liver and cancer of the liver. Several rat studies show a pronounced early-life susceptibility to the carcinogenic effect of vinyl chloride, i.e., early exposures are associated with higher liver cancer incidence than similar or much longer exposures that occur after maturity. EPA has classified vinyl chloride as a Group A, human carcinogen. EPA uses mathematical models, based on animal studies, to estimate the probability of a person developing cancer from breathing air containing a specified concentration of a chemical.

EPA has calculated an inhalation unit risk estimate of 8.8 × 10-6 (µg/m3)-1 for lifetime exposure to vinyl chloride.


....
Jon L.Gelman of Wayne NJ, helping vinyl chloride victims and their families for over 4 decades, is the author NJ Workers’ Compensation Law (West-Thompson) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson).  

Read more about "vinyl chloride"


Jan 29, 2010
The 5 substances that TSCA mandates regulations for are all known carcinogens: Asbestos, Hexavalent Chromium, Vinyl Chloride, Trichloethylene, Methyene Chloride and Dicloromethene. Since 1976 chronic and terminal ...
Aug 11, 2007
This case involved exposure to poly vinyl chloride at a Pantasote, a Paterson NJ plant, causing disease to former workers which is characteristic of Raynaud's phenomenon ( fingers blanch and numbnessand discomfort are ...
Feb 20, 2008
Secondhand smoke contains hundreds of chemicals known to be toxic or carcinogenic (cancer-causing), including formaldehyde, benzene, vinyl chloride, arsenic, ammonia, and hydrogen cyanide. Secondhand smoke has ...

Wednesday, June 9, 2021

The Exclusivity Rule Is Not A Bar to a Discrimination Action

The New Jersey Supreme Court ruled that an employer could be liable under both the Law Against Discrimination Act [LAD] and the Worker's Compensation Act (WCA). Court reasoned that the dual remedies can work in harmony as they are both statutory claims. The Court noted that the common law remedies of the LADs are not prohibited by the WCA since they are statutory in nature. By allowing both claims to go forward, a worker is not limited to the statutory caps for recovery under the Worker's Compensation Act.

Wednesday, July 18, 2012

Workers Compensation Rates in New York to Decrease

Mario Cuomo,
Governor of the State of New York
Governor Cuomo Announces First Reduction in Workers' Compensation Rates Since 2008

After Compensation Board Recommends Rate Increase, Administration Review Determines No Increase is Needed, Helping NY Businesses to Remain Competitive

Governor Andrew M. Cuomo today announced that for the first time in four years, New York State employers will see a reduction in workers' compensation premium rates. The Governor asked for a reconsideration of the original recommendation in order to find ways to reduce the proposed increase.

Rates to policyholders will actually see a decrease of 1.2 percent – the first reduction in rates since 2008. The Governor also announced that the last measures of the 2007 Workers' Compensation Reform Law, which secured necessary benefit increases for injured workers and cost reductions for businesses, have now been fully implemented by the state. The rate reduction and the expedited implementation of the reforms are a result of efforts by the Governor's administration over the past 18 months to modernize, improve efficiency and decrease waste in the workers' compensation system.

"To create jobs and get our state's economy back on track it is essential that New York's businesses remain in a competitive position to succeed in the global marketplace," Governor Cuomo said. "For years, the workers' compensation system has been too costly for businesses and ineffective for injured workers. With the new measures implemented by the state, and our continued work together with the business and labor communities, we will remain on track to create a system that works better for both employers and employees."

This year, the New York Compensation Insurance Rating Board, a non-governmental rate service organization, recommended a cost increase in their annual loss cost filing. After reviewing all filings and written submissions, the administration deemed the rate increase was not to be necessary. As a result of the decision, workers' compensation rates will actually decrease in the upcoming policy year. The rates are determined on an annual basis, and are informed by a variety of factors, including but not limited to experience in the marketplace, implementation of any cost cutting measures, and implementation of any new policies and procedures. 

Benjamin M. Lawsky, Superintendent of Financial Services, said, "Under the Governor's leadership, New York has taken dramatic steps that ultimately will benefit workers' compensation insurers, claimants, and businesses -- both large and small -- throughout the state. At a time when many states are gutting their workers' compensation systems, New York is working to continually improve our workers' compensation system for employers and employees. This is the right decision on rates at the right time."

The DFS decision was due in part to a variety of developments which are altering the workers' compensation landscape, including the completion of the workers' compensation reforms. Last year, Governor Cuomo directed the Workers' Compensation Board to deliver on the components of the reforms and implement any outstanding provisions. Although the savings from the reforms were immediately realized by businesses, the implementation of the measures supporting those savings proceeded at a slower pace. The January 1, 2012 release of the Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity and the recent adoption of diagnostic testing network regulations marked the completion of the reform.

Having finished the process for capping the number of years certain benefits are paid, instituting medical treatment guidelines and improving the calculation of loss-of-wage earning capacity, the Workers' Compensation Board will now focus on creating comprehensive guidelines for the treatment of chronic pain and modernizing its systems using technology and industry best practice to speed benefit delivery, improve service to injured workers, and reduce waste, fraud, and abuse by employers, medical providers, and employees in the system. 

Mario Cilento, President of the New York State AFL-CIO, said, "The Labor Movement's priority in the 2007 Workers' Compensation reform was to ensure that workers who suffer injury or illness while at work receive the timely treatment they need and adequate benefit levels to support themselves. The reform led to the indexation of the benefit at two-thirds of the state's average weekly wage so that never again would injured workers suffer an erosion of their benefits through inflation. I thank Governor Cuomo for finally implementing these reforms thereby ensuring that the benefit levels remain indexed and injured workers receive essential care. The New York State AFL-CIO will continue to work with the Administration to ensure that the system is appropriately funded and administered to serve injured workers and pay their benefits."

Heather Briccetti, President and CEO of the New York State Business Council, said, "The 2007 legislation was a good faith effort to balance benefit increases, reduced employer cost, and improved claims administration. Five years after the 2007 reforms, we need to evaluate its actual impacts on both benefits and costs. The cost of workers' compensation coverage remains a significant competitiveness issue for New York State business, and we look forward to working with the Administration and other stakeholders on next steps in improving the system."

Robert Beloten, Chair of the Workers' Compensation Board, said, "Prior to the reform, lost wage benefits were insufficient for injured workers yet the system has had uncontrollable medical and indemnity costs. It was an unsustainable system that did not work for the employer or the injured worker. Working with business and labor we have put this system on a more sustainable path. We will continue to work with our key stakeholders to improve benefit delivery and weed out waste, fraud, and abuse in the system."

Peter M. Rivera, Commissioner of Department of Labor, said, "Improvements in New York's workers' compensation system is a benefit to all the hard working people in the State of New York."

Related Blogs - New York
Jul 11, 2012
In a Multidistrict Litigation (MDL) case pending in New York, a Federal Court ruled that the New Jersey law governing exclusivity of claims barred an employee from proceeding with an intentional tort claim against the ...
Jun 08, 2012
The New York Times is reporting this afternoon that The National Institute for Occupational Safety and Health (NIOSH) has approved for compensation payments 50 types of cancers from the $4.3 Billion Zadroga 9-11 Fund.
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Thursday, February 10, 2011

AIG Reaches For Its Wallet to Cover $4.1 Billion in Work Comp Claims and Asbestos Liabilities

American International GroupImage via Wikipedia
The American International Group (AIG), the huge insurance company that the US Government bailed out financially, is still hard pressed to raise funds to cover on going claims. AIG has announced that it will need to raise another $4.1 Billion dollars to cover such costs as primary and excess workers' compensation claims and asbestos liability claims.

AIG's long and troubled history was the subject of investigative reporting in the Academy Award nominated film, Inside Job. The Many factors have impact on an insurance company's solvency including the ability to collect premiums in a down economic cycle, the investment of the premiums collected and colateral bad investments the have a massive economic impact of the financial worth of the company in general.

Workers' compensation claims continue despite  a low employment cycle. Latent diseases, such as asbestos related lung cancer, asbestosis and mesothelioma, may be dormant for decades before  manifesting into a chronic and  terminal medical condition.

The industry continues to struggle on how workers' compensation should be employed to insure industries and employers from these condition. Originally the workers' compensation acts did not cover occupational conditions such as silicosis or asbestosis. In the 1950s acts were amended, at industries insistence to bring these occupational conditions under the umbrella of coverage and shield employers from civil lawsuits. With the expansion of products liability claims, based on the intentional concealment of information of the hazards of these conditions, as well as low economic recoveries from struggling workers' compensation systems put the boat back into the bottle, "the longest running tort", asbestos litigation, was born.

Industry continues to try to put the genie back into the bottle, which is reflected in the latest attempt in Missouri to bar liability claims against employers and co-workers. One of the incentives of a workers' compensation program is to prevent industrial accidents, but the system continues to struggle both economically and procedurally in achieving that objective.

The need for AIG to raise additional cash to pay claims raises a concern as to whether premium dollars to pay claims are being adequately protected in the first place, and whether those premiums ared being directed to injured workers and victims of occupational illness. Instead of trying to figure how to further restrict the payment of benefits, perhaps more attention should be paid to making a safer workplace by banning asbestos use, and providing more convenience access through universal medical care.

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