Workers' Compensation

Monday, April 23, 2012

NJ Supreme Court To Rule on Several Critical Issues

The NJ Supreme Court has before it three issues of critical importance concerning workers' compensation including: the standard of proof in a fatal heart claim; remedy for the failure of an insurance company to provide medical care, and the "exclusivity rule." These decisions have the potential to be landmark decisions.

1. Standard of Proof in a Fatal Heart Claim: Does the record support this workers' compensation claim under N.J.S.A. 34:15-7.2, which sets the standard of proof governing claims based on injury or death from cardiovascular causes?

Workers' Compensation benefits were awarded for a pulmonary embolism causally related to sedentary work activity. A NJ Appellate Court awarded benefits for the development of a pulmonary embolism precipitated by the inactivity of sitting long hours at a desk job.

Certification granted: 2/14/12

Posted: 2/14/12

A-71-11 James P. Renner v. AT&T (068744)

2. Remedy for the Failure of the Insurance Company to Provide Medical Care:

May an employee who suffered a work-related injury pursue a common-law cause of action against a workers’ compensation carrier for willful failure to comply with court orders compelling it to provide medical treatment when the delay or denial of treatment causes the employee’s condition to worsen?

The NJ Supreme is going to review the procedure to bring bad faith claims against employers and insurance companies in workers' compensation actions. The Court accepted for review a case holding that workers' compensation bad faith claims are within the exclusive jurisdiction of the workers' compensation hearing official.

Certification granted 6/7/11
Posted 6/10/11
Argued: 3/26/12
A-112-10 Wade Stancil v. ACE USA (067640)

3. The Exclusivity Rule:

Under the circumstances of this case, which include a finding by the federal Occupational Safety and Health Administration that the accident was the result of a “willful violation” of its regulations, did the employer’s action constitute an “intentional wrong” that would preclude immunity under N.J.S.A. 34:15-8 of the workers’ compensation statute?

NJ Courts have held that trench accidents were not a mere fact of industrial life and were beyond intent of Act's immunity provision. A claim was permitted directly against the employer in addition to the workers' compensation action.

Certification granted 1/27/11

Posted 1/28/11

Argued: 10/12/11

A-69-10 Kenneth Van Dunk, Sr. v. Reckson Associates Realty Corp. (066949)

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Saturday, April 21, 2012

The New Non-Subscriber Opt-Out Plan Is Emerging As The Alternative to Traditional Workers' Compensation

Given birth by Bechtel in Massachusetts over a decade ago, nurtured by ERISA (Employee Retirement Income Security Act, 29 USCS § 1002) ) and fed by the increasing frustrations of employers and employees throughout the nation, the new non-subscription Opt-Out Plan has emerged as a leading alternative solution to traditional workers' compensation coverage.

It has been reported that since its formal adoption by Oklahoma last week, David DePaolo, the knowledgeable CEO of WorkCompCentral (and cycling enthusiast) reports that other states, including: Colorado, Kansas, Louisiana and Tennessee, will have legislation introduced to statutorily recognize the concept.

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Thursday, April 19, 2012

April 28th - Workers Memorial Day

April 28th is Worker Memorial Day. Observed each year, the event is a time to remember those who have suffered and died on the job, and it is a time to renew efforts to create safer workplaces.

For more information click here to visit the AFL-CIO site and/or The National Council for Occupational Safety and Health site.

Memorial for Workers

I write these words of honor, for those who gave their lives;
And for their families, their husbands and their wives.
For those whose lives were spent, doing what they must
Working for a living like every one of us.
Their time cut short, by things that didn’t have to be;
To make the workplace safer, for people like you and me.
To make sure their stories will never go untold;
To always keep their memories from ever growing cold.
We must remember the price they all had to pay;
When we honor the men and women on Workers Memorial Day.
Mike Baird
Lodge 21, International Association of Machinists and Aerospace Workers
Read April 28, 1995

Worker Fatality in Moorestown NJ Leads to OSHA Citation

The U.S. Department of Labor's Occupational Safety and Health Administration has cited American Biltrite Inc. for one repeat and nine serious safety and health violations at its Moorestown facility. An OSHA investigation was initiated in November 2011 following the death of a worker who was crushed in a coating machine while attempting to clear a jam. The company failed to use energy control, or "lockout/tagout," procedures prior to allowing the employee to enter the machine's danger area.

The serious violations include failing to provide a lockout/tagout program for the energy sources of equipment, provide appropriate working space around electrical equipment, provide an eyewash station, ensure that proper equipment guards were in place to prevent workers from coming into contact with moving parts, ensure the proper use of flexible cords, take adequate precautions to prevent the ignition of flammable vapors and require employees to wear goggles when handling corrosive chemicals. 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 repeat violation is permitting Class I flammable liquids to be dispensed into containers without the nozzle and the container being electrically connected, which creates the potential for ignition. The company was cited for the same violation in 2010. A repeat violation exists when an employer previously has been cited for the same or a similar violation of a standard, regulation, rule or order at any other facility in federal enforcement states within the last five years.

"This company continues to compromise the safety of its workers by disregarding OSHA's safety and health standards," said Paula Dixon-Roderick, director of OSHA's Marlton Area Office. "Employers are responsible for ensuring safe and healthful workplaces, and will be held legally accountable when they fail to do so."

Wellesley Hills, Mass.-based American Biltrite Inc. manufactures and distributes commercial flooring and performance sheet rubber throughout America, and employs 130 workers at the Moorestown site. Proposed penalties total $51,300.

The company has 15 business days from receipt of the citations to comply, request an informal conference with the OSHA area director, or contest the citations and proposed penalties before the independent Occupational Safety and Health Review Commission.

Wednesday, April 18, 2012

New OSHA directive explains communications with victims' families following a workplace fatality

A new Occupational Safety and Health Administration directive guides OSHA representatives in communicating investigation procedures with family members following a workplace fatality. The guidance ensures that OSHA representatives speak to the victim's family early in the inspection process, establish a point of contact, and maintain a working relationship with the family.

"OSHA is committed to working with families to explain the circumstances surrounding the deaths of their loved ones," said Assistant Secretary of Labor for Occupational Safety and Health, Dr. David Michaels. "This directive ensures that OSHA receives the necessary information from the family to assist in the investigation, and keeps the family informed throughout the investigation and settlement processes."

Under the new directive, OSHA representatives will contact the victim's family to explain the investigation process, timeline, and provide the family with updates throughout the investigation. Once the investigation is closed, OSHA will explain findings to the family and address any questions. If an employer has been issued citations, OSHA will provide a copy of the citation(s) to the family.

More information about the new directive is available on OSHA's directive page (PDF*). Employers must notify OSHA within eight hours of a workplace fatality, including fatal heart attacks that occur at work. These reports may be made by telephone or in person to the nearest area office or by calling OSHA's toll-free number, 1-800-321-OSHA [6742].

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 assure 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.

Saturday, April 14, 2012

Maine Passes Laws Restricting Workers Compensation Benefits

The The Bangor Daily reports that the State of Maine is in the process of legislatively restricting workers ' compensation benefits. The law overhaul's the system with the following changes:

The main elements of the program overhaul include:

• Altered eligibility requirements and the creation of a 10-year cap for employees who are permanently impaired with partial incapacity.

• The elimination of a requirement that employers must continue paying benefits during an appeal.

• A new appeals divisions with authority to create rules of procedure.

• A shortened time period in which a notice of injury must be given, from 90 days to 30 days.

• A changed maximum benefit, from 80 percent of an employee’s net weekly wages to 66 percent of gross weekly wages.

Friday, April 13, 2012

Facebook Creating Even A Greater Problem in Comp Claims

(Photo credit: Wikipedia)

Facebook's new announcement today creates even a greater problem for workers' compensation claimants. Providing even greater historical information about an unsophisticated Facebook user puts even more information, out of context, into the hands of the employer during litigation which can be detrimental to a claim.

See Facebook Privacy Blog

"Starting today, you will be able to download an expanded archive of your Facebook account history. First introduced in 2010, Download Your Information lets you get a copy of what you've shared on Facebook, such as photos, posts, messages, a list of friends and chat conversations. Now you can access additional categories of information, including previous names, friend requests you've made and IP addresses you logged in from. This feature will be rolling out gradually to all users and more categories of information will be available for download in the future. Download Your Information is available from your Facebook Account Settings."

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