Workers' Compensation

Friday, November 25, 2011

Asbestos, Railroads and The US Supreme Court

For decades railroad equipment, including engines, were heavily insulated with asbestos fiber, a known carcinogen and causally related to mesothelioma, a rare and fatal cancer. Many lawsuits have been filed by victims and their families to recover benefits against the suppliers, manufacturers and distributors of asbestos fiber. This month, The US Supreme Court heard oral argument to determine whether state laws were preempted under Federal law and that state laws were not applicable in judging the lawsuits.

The initial claims for asbestos related diseases were filed as workers' compensation claims in the United States. Soon it was revealed that the suppliers, distributors and health research (trade) organizations were concealing information to the workers as to the deadly dangers of asbestos fiber. As asbestos related disease, including mesothelioma, became epidemic, tens of thousands of civil claims were filed.

As a result of the long latency period from exposure to asbestos fiber to disease manifestation, the claims continue to be filed on behalf of former workers and their estates. While the exposures are usually multi-faceted, the issue regarding which law will cover railroad claims remains unresolved.

Gloria Gail Kurns, Executrix of the Estate of George M. Corson, Deceased, et al., Petitioners v. Railroad Friction Products Corporation, No. 10-879.

US Supreme Court Opinion

SCOTUSblog Coverage

Briefs and Documents

Merits Briefs for Petitioners

Amicus Briefs in Support of the Petitioners

Merits Briefs for the Respondents

Brief for Railroad Friction Products Corp. and Viad Corp.

Amicus Briefs in Support of the Respondents

Certiorari-stage Documents

Petition for certiorari
Brief in opposition for Railroad Friction Products Corp. (unavailable)
Response to petition for VIAD
Supplemental brief for respondent VIAD
Supplemental brief for respondent Railroad Friction Products Corp.

The supplemental briefs in this case make reference to the Solicitor General's brief in Crane v. Atwell, which is available here.

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.

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OSHA fines Paterson, NJ, company $126,000 for failing to guard machines and exposing workers to fall and electrical hazards

The U.S. Department of Labor's Occupational Safety and Health Administration has cited Supply Plus NJ Inc. of Paterson, NJ, with one willful, 25 serious and two other-than-serious safety violations in response to a complaint alleging imminent danger for failing to guard machines and exposing workers to fall and electrical hazards at the company's Paterson facility. Proposed penalties total $126,000.

A May inspection revealed one willful violation, with a $42,000 penalty, for failing to provide machine guarding. 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 serious violations, with $84,000 in penalties, include failing to keep work areas and passageways free of litter; provide guardrail protection, guard machines and electrical boxes; provide an eyewash station; provide personal protective equipment for workers handling chemicals; provide industrial truck and hazardous communication training; ensure exit routes were unobstructed and visibly marked; make sure exit doors could open properly; cover electrical panel boards supplying power for equipment and lighting; properly use flexible cords; implement a lockout/tagout program for energy sources to prevent machines from accidentally starting up during servicing and maintenance; perform workplace hazards assessment and develop a written hazardous communication program. 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 other-than-serious violations, which carry no penalty, are due to record-keeping violations. 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.

"Each of these violations left workers vulnerable to hazards that could cause serious injuries or quite possibly death," said Lisa Levy, OSHA's area director in Hasbrouck Heights. "It's vital that Supply Plus correct these hazards to protect its workers."

The citations can be viewed at http://www.osha.gov/ooc/citations/SupplyPlusNJInc._314678012_and_314678376_1117_11.pdf*.

Supply Plus, a sponge processing company employing about 40 workers at its Paterson location, has 15 business days from receipt of the citations to comply, ask for an informal conference with OSHA's area director or contest the citations and proposed penalties before the independent Occupational Safety and Health Review Commission.

To ask questions, obtain compliance assistance, file a complaint, or report workplace hospitalizations, fatalities or situations posing imminent danger to workers, the public should call OSHA's toll-free hotline at 800-321-OSHA (6742) or the agency's Hasbrouck Heights office at 201-288-1700.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA's role is to ensure these conditions for America's working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit http://www.osha.gov.

Wednesday, November 23, 2011

Dr. Yasunosuke Suzuki, A Pioneer of Mesothelioma Medical Research

I am saddened to report the passing of Dr. Yasunosuke Suzuki. Dr. Suzuki partnered with the late Irving J. Selikoff MD at the Environmental Sciences Laboratory (ESL) of The Mt. Sinai School of Medicine and conducted some of the most famous and pioneering scientific research linking asbestos exposure with mesothelioma. Dr. Suzuki passed away on August 8, 2011, at 82.

I met Dr. Suzuki in the early years of my career when I litigated some of the initial claims involving asbestos exposures at The Union Asbestos and Rubber Company's (UNARCO) plant in Paterson, NJ. Dr. Selikoff, and my late father, a lawyer, both of Paterson, were involved in the "original 17" asbestos worker claims in 1954 before the New Jersey Division of Workers' Compensation.

Following the successful disposition of those claims, Dr. Selikoff expanded his research at the ESL in New York City. Dr. Suzuki became the lead pathologist of that pioneering medical-investigative team. Dr. Suzuki played a critical role in the Paterson Asbestos Control Group that followed up, through autopsy, the cohort of 933 former workers of the UNARCO facility and their families. His analysis of the pathology of the asbestos-related tumors produced, along with Dr. Selikoff and his knowledgeable team, some of the sentinel epidemiological studies linking asbestos-related exposure of workers and their families and bystanders to asbestos exposures.

The following obituary was published by the Collegium Ramazzini

Death of Professor Yasunosuke Suzuki August 8, 2011

It is with great sadness that the Collegium Ramazzini informs its Fellows of the death of one of its most illustrious and beloved colleagues, Professor Yasunosuke Suzuki. Professor Suzuki was an influential member of the Collegium and was honored with the Ramazzini Award in 1993 for his contribution to the scientific knowledge on the pathology of mesotheliomas among asbestos-exposed workers. Upon his retirement from the Mount Sinai School of Medicine in 2006, the Collegium Ramazzini again honored Professor Suzuki with the Irving J. Selikoff Award to recognize his many years of work as a pathologist who meticulously studied the diseases caused by asbestos and who also ventured forth courageously from his laboratory, as a true follower of Ramazzini and Selikoff, to press the urgent need in nations around the world for the banning of all production and use of all forms of asbestos. In fact, Dr Suzuki played a critical role in the decision by the Government of Japan to ban all use of asbestos in Japan.

Collegium Ramazzini President Philip Landrigan remembers the occasion of the Selikoff award noting "(It) was a bittersweet occasion. Dr. Suzuki served as a member of the faculty of the Department of Community and Preventive Medicine at Mount Sinai for 40 years. While there are many of us still at Mount Sinai who worked with Dr. Selikoff as junior faculty, students and trainees, Dr. Suzuki is the last member of the "Selikoff generation" the group of age peers who worked most closely with Dr. Selikoff for so many years in Dr. Selikoff's pioneering studies of other asbestos and other occupational hazards."

Professor Suzuki received his M.D. degree from the Keio University School of Medicine in Tokyo in 1953. He completed one year internship in Tokyo at the Setagaya National Hospital, and was licensed in 1954 by the Japanese Government.

In 1954 he joined the Department of Pathology in the Keio University School of Medicine starting as an "Assistant of Pathology". Dr. Suzuki's early work on the kidney he proved the presence of the mesangium, the third structural element of renal glomerulus. Working with new technology - the electron microscope, he was able to further define the structure of the mesangium.

In 1959, he was awarded the Doctorate of Medical Sciences in the field of Pathology. In 1960 he was sent abroad as an International Post Doctoral Research Fellow at the U.S. National Institutes of Health (NIH) training at New York University School of Medicine under Professor Johannes Rhodin. In 1961 he trained at the Mount Sinai Hospital Renal Pathology Division under Dr. Churg. He returned to Keio University 1962 as a faculty member. In 1966, Dr. Suzuki was invited to re-join Mount Sinai as a Research Associate. In addition to renal pathology with Dr. Churg, he started to investigate pathology of asbestos related diseases with Dr. Dr. Irving J. Selikoff.

The research on asbestos-related diseases included seminal work on pulmonary asbestosis, the development and formation of asbestos bodies and electron microscopy of human malignant mesothelioma. In 1973, Dr. Suzuki again returned to Japan to serve as Chairman and Professor of Anatomy at Fujita-Gakuen University School of Medicine.

He returned to Mount Sinai in 1975 as Research Professor of Community Medicine and Research Associate Professor of Pathology. For the next 31 years, from 1975 to 2006, he devoted his time solely to the investigating the pathology of asbestos-related diseases. One of his most significant contributions was providing support to Selikoff's ground-breaking epidemiological study on asbestos insulation workers. Slide by slide, he reviewed the pathologic autopsy and biopsy samples taken from approximately 5,000 cases of insulation workers and confirmed the diagnosis of asbestos-related diseases.

He was promoted to Professor of Pathology in 1989 and in 1991 to Professor of Community and Preventive Medicine.

Dr. Suzuki published 171 peer review scientific papers. Dr. Suzuki estimated that over the course of his career in research, he had examined and written up approximately 538,000 individual slides.

Suzuki received several honors in addition to those conferred by the Collegium Ramazzini. Other awards include the honorary title of Guest Professor at Tokai University School of Medicine (1993-1996) and Honorary Visiting Professor of Pathology at Keio University School of Medicine (1999-2000).

Tuesday, November 22, 2011

Lack of Medical Evaluators Delays Social Security Claims Processing

Guest blog by Rodger D. Moore
of the Nebraska Bar

Recently, the Waal Street Journal reported that the Social Security Administration (SSA), frustrated by the backlog of applications for disability benefits, started pressuring the 140 doctors the agency uses to help evaluate some of the claims. In an effort to encourage the quick processing of claims doctors were paid a flat rate of $80/case in stead of the previous $90/hour to review the cases. Many times these cases have hundreds of pages of records to be reviewed and can turn on a few sentences.

Also, doctors were assigned to evaluate conditions that were not in their areas of expertise. One of the more interesting quotes came from Neil Novin, former chief of surgery at Baltimore's Harbor Hospital, who worked for Social Security part time for about 10 years. He said "People who shouldn't be getting [disability] are getting it, and people who should be getting it aren't getting it".

In my experience this has always been the case, but now, with agency doctors being pressured to evaluate these cases quicker, we’ll likely see less competent and thorough evaluations. This in turn will lead to longer delays, more cases waiting for a hearing and more money spent to evaluate more cases by administrative personnel within the SSA.

Although I’ve never thought the agency doctors do a good job evaluating these cases, the situation will get worse now that 1/3 of the 140 doctors have either quit or been fired over this shift in philosophy. In this setting it’s every more important to seek the help of a treating physician in offering a supportive report.

See the complete article:

Doctor Revolt Shakes Disability Program (wsj.com)

NIOSH Warns: Erionite: An Emerging North American Hazard

Erionite is a naturally occurring mineral that belongs to a group of silicate minerals called zeolites. It is usually found in volcanic ash that has been altered by weathering and ground water. Like naturally occurring asbestos, deposits are present in many Western states. Erionite can occur in a fibrous form. Disturbance of this material can generate airborne fibers with physical properties and health effects similar to asbestos. For example, it has long been known that residents of some Turkish villages where erionite-containing rock was used to construct homes have a remarkably high risk for development of malignant mesothelioma. Erionite has been used in road work.

Click here for Map of Erionite Occurrences

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.

Gingrich Calls for More Child Labor, Calls Laws "Stupid"

Newt Gingrich's poll numbers are soaring for the US Presidential nomination. He has announced that he will offer radical proposals including the elimination of child labor laws. For decades child labor laws and penalties have been integrated into state workers' compensation acts acting as a safety deterrent to accidents.

10 Worst Toys for 2011

A consumer group in Boston, W.A.T.C.H., has published its "10 Worst Toys for 2011" list. The toys nominated represent toys with the potential to cause childhood injuries, or even death. W.A.T.C.H.'s annual "Toy Conference" has generated extensive national press and media coverage. Because of these efforts, and the positive response from both the media and the public, there have been many toy and product design changes.

1. TWIST ‘n SORT

Price: $13.35
Manufacturer or Distributor: Guidecraft, Inc.
Purchased: WonderBrains.com
Age Recommendation: “Ages 3+”
Warnings: “WARNING: CHOKING HAZARD – Small parts. Not for children under 3 yrs.”
HAZARD: POTENTIAL FOR CHOKING INJURIES!
This play set consisting of a “brightly colored geometric block and solid wood base” is sold to provide “years of developmental fun” with “problem solving challenges” and “fine motor practice.” On October 20, 2011, certain lots of these toys were recalled because “[t]he small pegs on three of the four posts can detach, posing a choking hazard to young children”. After issuance of the recall, a newly purchased Twist ‘n Sort toy exhibited the same “choking hazard” identified in the government’s recall notice.

2. POWER RANGERS SAMURAI MEGA BLADE

Price: $26.99
Manufacturer or Distributor: Bandai
Purchased: Toys R Us (also available Kmart.com and Walmart.com)
Age Recommendation: “4+” and “Ages 4 and up”
Warnings: Package insert: “CAUTION: PLEASE READ BEFORE PLAYING WITH TOY.
Do not: (1) aim toy at anyone, (2) hit anyone with toy, (3) poke anyone with toy, (4) swing toy at anyone….”; and other cautions and warnings.
HAZARD: POTENTIAL FOR IMPACT INJURIES!
Young children are encouraged to pull a release and flip-open this rigid plastic Power Rangers Samurai “sword”, which “extends 2 feet!” according to the packaging. The blade has the potential to cause serious facial or other impact injuries.

3. FOLD & GO TRAMPOLINE

Price: $99.99
Manufacturer or Distributor: The Original Toy Company
Purchased: Stellabella Toys (also available Sears.com)
Age Recommendation: “ages 3+ YEARS”
Warnings: “WARNING: CHOKING HAZARD – Small parts. Not for children under 3 years”, and other safety information including: “Misuse and abuse of this trampoline is dangerous and can cause injuries.”
HAZARD: POTENTIAL FOR HEAD, NECK AND OTHER BODILY INJURIES!
This trampoline is sold in the toy aisle for children as young as 3-years-old. Remarkably, the package insert instructs, in part, as follows:
“Never attempt any other functions or gymnastic functions or rough play on the trampoline, this trampoline is designed for young children ONLY. The only function on this trampoline should be a controlled bounce (exercise), for young children. No other functions should occur other then [sic] controlled bounce.” The many hazards associated with trampoline use should make it apparent to manufacturers and retailers that such equipment should not be sold as a playtime activity for young children.

4. PULLING ANIMAL DUCK
Price: $29.99
Manufacturer or Distributor: Haba
Purchased: Creatoyvity
Age Recommendation: “Age 1+”
Warnings: “WARNING: Do not make a knot or grip in the string.” (stick-on label on box only).
HAZARD: POTENTIAL FOR STRANGULATION INJURIES!
This wooden duck, which “[w]addles amusingly when pulled”, is sold as a pull toy for 1-year-old babies. The duck’s cord is approximately 33” long, presenting a serious potential strangulation hazard. The industry’s standard limits strings on crib and playpen toys to 12” in length.

5. SCHOOL BUS

Price: $4.00
Manufacturer or Distributor: Schylling
Purchased: Toy Shop of Concord (also available online retailers)
Age Recommendation: “Not for children under 3 years.” (stick-on label only).
Warnings: “WARNING: CHOKING HAZARD – Small parts. Not for children under 3 years.” (stick-on label only).
HAZARD: POTENTIAL FOR CHOKING INJURIES!
These miniature yellow school buses are sold with a “choking hazard” warning on a removable, stick-on label. The firm rubber tires, mounted on plastic wheels, can be removed, presenting the potential for a serious choking injury for oral age children.

6. Z-CURVE BOW

Price: $25.05
Manufacturer or Distributor: Zing Toys, Inc.
Purchased: Amazon.com
Age Recommendation: “DESIGNED FOR KIDS 8+”
Warnings: “WARNING: Do not aim at eyes or face. Do not aim or shoot at people or animals”; “WARNING: Arrows should not be pulled back at more than half strength… Anyone within close distance to intended target should be alerted prior to firing….”; and other warnings on packaging.
HAZARD: POTENTIAL FOR EYE INJURIES!
This “high-performance” bow and arrow set is sold with three “long-range” foam arrows, which are marketed as being able to fly “over 125 FEET!” Remarkably, among the many “warnings” for children is an instruction that arrows not be pulled back “more than half strength”, and that people nearby “should be alerted” prior to firing.

7. STEPPER “LOW RISE” STILTS

Price: $10.99
Manufacturer or Distributor: JJI Toys
Purchased: Ben Franklin
Age Recommendation: “Ages 5 and up”
Warnings: None.
HAZARD: POTENTIAL FOR HEAD AND OTHER IMPACT INJURIES!
These colorful plastic platforms with attached, adjustable “hand ropes” are sold as “perfect ‘low rise’ stilts.” The manufacturer provides no warnings or cautions. The instruction on the throw-away tag invites children, as young as five years old, to “[j]ust step on the platform, pull the ropes up tight, and begin to walk around” while balancing on top of the cups.

8. SWORD FIGHTING JACK SPARROW
Price: $15.98
Manufacturer or Distributor: Jakks Pacific
Purchased: Toys R Us
Age Recommendation: “4+”
Warnings: “WARNING: CHOKING HAZARD – Small parts. Not for children under 3 years” (on box).
HAZARD: POTENTIAL FOR EYE AND OTHER IMPACT INJURIES!
The Jack Sparrow action figure, from the popular Pirates of the Caribbean movie franchise, is sold for children as young as four years old. The pirate’s right hand is armed with a 4 ½”-long rigid, plastic sword, which activates in an upward motion at the push of a lever. No warnings are provided regarding the potential for eye or other impact injuries.

9. THE INCREDIBLE SHRINKY DINKS MAKER
Price: $29.99
Manufacturer or Distributor: Big Time Toys, LLC
Purchased: Kmart
Age Recommendation: “Ages 8+”
Warnings: “CAUTION: ELECTRIC TOY” and many more warnings on package, package insert and product.
HAZARD: POTENTIAL FOR ELECTRIC SHOCK AND BURN INJURIES!
This oven uses standard 120-volt house current and shrinks a “shrinky dink” in a “heating chamber” with a 60-watt light bulb. A parent or caregiver needs no further indication that this oven could be dangerous than the litany of warnings and cautions on the toy itself and the packaging, including:

“CAUTION-ELECTRIC TOY: As with all electric products, precautions shall be observed…to prevent electric shock.”
“WARNING: SHOCK HAZARD. Pull plug before changing light bulb.”
“DANGER – To prevent electric shock, do not immerse in water….”
“CAUTION – SUPERVISION REQUIRED - ELECTRIC TOY- UNPLUG WHEN NOT IN USE.”

A product with so many inherent hazards does not lend itself to use in a home environment with children.

10. “GIGAN” GODZILLA FIGURE
Price: $22.99
Manufacturer or Distributor: Bandai
Purchased: Toys R US
Age Recommendation: “4+”
Warnings: “WARNING: CHOKING HAZARD – Small parts. Not for children under 3 years.”
HAZARD: POTENTIAL FOR IMPACT AND PUNCTURE WOUND INJURIES!
This “12[-inch] Classic Godzilla Figure”, referenced on the packaging as the character “Gigan”, features rigid, pointed fins and wings, as well as sharp, dagger-like attachments on its arms. Such unforgiving, plastic protrusions present the potential for penetrating and impact injuries.

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