New Jersey's New Workers' Compensation Enforcement Statute

Governor Corzine has now signed into law a new enforcement statute for workers' compensation coverage in New Jersey. The law amend NJSA 34:15-79 and allows the Director of the Division of Workers' Compensation a stop-work order and impose penalties of between $1,000 to $5,000 per day for non-compliance.

The broad legislation makes it a violation for an employer to misrepresent the status of an employee as an "independent contractor" or to knowingly provide misleading, incomplete or false information.

The Division is in the process of promulgating administrative rules and regulations for implementation of this legislation.

Asbestos Do-It-Yourself Test Kit Avaiable

Asbestos is a know carcinogen. It is present at work sites, schools and in homes. It was frequently used, and in fact required, on various construction sites before 1980. Some examples include popcorn ceilings, insulation material and floor tile.

A $29.95 kit is now being marketed to test for asbestos fiber. The kit is being sold through many hardware stores including Home Depot and Lowes.

The CDC has not yet banned asbestos use is not yet banned in the United States and continues reduce potential years of life.

Firefighters Required to Stop Smoking On And Off Duty

In many jurisdictions firefighters are allowed a presumption under the law that their pulmonary disability is causally related to their employment under workers' compensation. Now firefighters hired after January 1, 2010 in St. Louis County will be told that they must not smoke on or off duty.

"We felt we owed it to our taxpayers to be in the best shape we possibly could," said Rich Minda, West County fire captain and a vice president of the local firefighters' union. "We just don't feel that it's proper to be doing something so bad for yourself when you're viewed as a role model."

Ordinances allowing presumptions have unique interpretations. A local ordinance provided for an irrefutable presumption that an illness suffered by a firefighter was related to his employment was not deemed to be a payment under the "Workman's Compensation Act" within the meaning of the Internal Revenue Code. Therefore the payments received by the firefighter were not excluded from income tax. Take v. Commission of Internal Revenue, 804 F.2d 553 (9th Cir.1986).

Also, firefighters are also entitled to benefits under the Public Safety Officers Benefit Program (PSOB), administered by the Department of Justice. The death of a volunteer firefighter who died of heart failure in the course of his duties while responding to a house fire was not deemed compensable. There was a lack of evidence as to smoke or carbon monoxide inhalation that would have triggered the heart attack. The volunteer firefighter was 70 years of age and had a history of heart trouble including prior hospitalizations for coronary insufficiency and for congestive heart failure. North v. United States, 1 Cl.Ct. 93, 555 F.Supp. 382 (1982).

Following the World Trade Center attack, many firefighters who were involved in the event and rescue were killed and those who survived suffer from respiratory conditions. The World Trade Center attack created an acute environmental disaster of incredible magnitude. It has been reported that the WTC dust was found to consist predominantly (95%) of coarse particles composed of cement, glass fiber, asbestos, lead, polycyclic aromatic hydrocarbons, polychlorinated biphenyl and polychlorinated furans and dioxins. Due to potential latent disease consequences, the population's greatest risk of exposure, including firefighters, police, paramedics an other first responders as well as construction workers and volunteers who initially aided in the rescue and recovery and then for many months thereafter cleaned the rubble at Ground Zero, are considered to have an elevated risk and should be studied. Philip J. Lendrigan, et. al., "Health and Environmental Consequences of the World Trade Center Disaster," 112 Environmental Health perspectives 6 (May, 2004).

OSHA Adds Hexavalent Chromium to Shipyards Standards

Hexavalent chromium [Chromium (VI) [hexavalent chromium or Cr(VI)]”means chromium with a valence of positive six, inany form and in any compound.] has been added to the list of air contaminants whose concentrations should not exceed stated exposure levels in the OSHA guidance document Shipyard Industry Standards.

"The Maritime Advisory Committee on Occupational Safety and Health recommended that OSHA update and republish the shipyard and longshoring industry digests," said acting Assistant Secretary of Labor for OSHA Jordan Barab. "The revised document is now up-to-date with current standards and will continue to serve as another resource for protecting the safety and health of shipyard workers."

Shipyard Industry Standards revises the existing Shipyard Industry Digest and incorporates new shipyard employment requirements that have been developed and finalized since the booklet was last published in 1998. It lists the guidelines for safety and health programs in the industry and incorporates topics such as management commitment; employee participation; hazard identification, assessment and control; and program evaluation.

NCCI Reports Workers Compensation Claims Continue to Decline

A report issued by a national workers' compensation rating organization, NCCI Holdings, Inc (NCCI) disclosed that workers' compensation claims frequency is declining.

"Preliminary results indicate a decline of 4.0% for 2008. This is on the heels of a 2.6% drop in claim frequency in 2007 and it extends a trend that started in the 1990s. While the overall decline is widespread .... high-cost Permanent Total claims have emerged recently as a noticeable exception to this decline."

The key finding of their analysis were:

• Over the last five years, there were significant declines in total lost-time claims frequency for all industries, geographic regions, and employer sizes
• The number and frequency of Permanent Total claims have increased significantly over the last four years, with all major causes of injury contributing to the rise
• The rise in Permanent Total claims appears to be driven primarily by workers age 50 or under
  
• While claim frequency generally decreases as risk size increases, single-state risks in some classes have higher claim frequency at the higher payroll sizes than at lower payroll sizes

EPA Warns of Asbestos Exposures From Attic Insulation

Asbestos exposures in attics has become a major area of concern of the US EPA (Environmental Protection Agency). Loose vermiculite was commonly used in attics to insulate home. Asbestos is a known carcinogen.

Recently the US EPA declared asbestos in Libby Montana as a public health emergency. EPA is launching a public awareness campaign to notify the public, including individuals whose jobs routinely put them in attic spaces, about the potential for vermiculite insulation to be contaminated with asbestos fibers. A new EPA guidance document, targeted for the general public, is available athttp://www.epa.gov/asbestos/pubs/verm.html.

Additional information concerning asbestos exposures and asbestos claims is avialable at: http://www.gelmans.com

e-mail Communications of Employee Are Privileged

Emails that were exchanged by employee and her attorney through her personal, password-protected web-based email account were protected by the attorney-client privilege, even though emails were sent on the employer's computer and a version of employer's handbook purported to transform private emails into company property.

"Finding that the policies undergirding the attorney-client privilege substantially outweigh the employer's interest in enforcement of its unilaterally imposed regulation, we reject the employer's claimed right to rummage through and retain the employee's emails to her attorney."

Stengart v. Loving Care Agency, Inc., --- A.2d ----, 2009 WL 1811064(N.J. App. Div. 2009)