Workers' Compensation

Wednesday, June 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 commenced for the day, limited the injured workers' recovery to workers' compensation benefits. The "Exclusivity Rule" embodied in the Workers' compensation Act barred a separate cause of action by the injured worker against the co-employee.

"The causal nexus between the accident and plaintiff's employment is manifestly established. It is inconsequential that she, like the plaintiff in Ramos, had arrived early to drink her morning coffee and ease into her workday before performing her work functions. The nexus to plaintiff's employment is more than sufficient here to conclude that the Act provides the exclusive means to compensate her for her injuries."

TAWANNA FLOYD v.CAROL VON NEUDECK, DOCKET NO. A–3855–10T2, Not Reported in A.3d, 2012 WL 2094063 (N.J.Super.A.D.) Decided June 12, 2012.

Related articles

OSHA cites Wal-Mart Super Center for repeat and serious safety hazards - proposes $52,600 in fines

The U.S. Department of Labor's Occupational Safety and Health Administration has cited Wal-Mart Stores Inc. for alleged repeat and serious violations of workplace safety standards at the Wal-Mart Super Center store located at 139 Merchant Place in Cobleskill. The retailer faces a total of $52,600 in proposed fines following inspections by OSHA's Albany Area Office.

OSHA found that emergency exit access from a receiving and storage area was obstructed by the storage of pallets containing merchandise and equipment, and employees were not able to safely operate pallet jacks in aisles and passageways that were obstructed by stacked merchandise. In addition, portable fire extinguishers were not mounted and located in safely accessible areas, and the lack of a protective fitting and strain relief for an electrical conduit entering a control box presented an electrical hazard.

These conditions resulted in the issuance of citations with $48,200 in proposed fines for three repeat violations. 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. In this case, OSHA had previously cited Wal-Mart for similar hazards at stores in Newington, Conn.; Chelmsford and West Boylston, Mass.; Centralia and Joliet, Ill.; Coshocton, Ohio; and Lewisville, Texas.

"The recurring nature of these hazards is disturbing and needs to be effectively addressed," said Kimberly Castillon, OSHA's area director in Albany. "An employer with multiple locations, such as Wal-Mart, needs to ensure that hazards are identified, corrected and prevented at all of its workplaces."

Additionally, a citation with a $4,400 fine has been issued for a serious violation involving a lack of eye, face and hand protection as well as safety training for employees operating cardboard balers. 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.

"One step an employer can take to protect its workers against on-the-job hazards is to develop and maintain an effective illness and injury prevention program in which management and employees work together to proactively identify and prevent hazardous conditions," said Robert Kulick, OSHA's regional administrator in New York.

Arkansas-based Wal-Mart has 15 business days from receipt of its citations and proposed penalties to comply, meet with OSHA's area director or contest the findings 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 Albany office at 518-464-4338.

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.

Tuesday, June 12, 2012

Nanomaterials: NIOSH Publishes Safe Practices Guide

NIOSH (The National Institute for Occupational Safety and Health) has published safety recommendations on engineering controls and safe practices for handling engineered nanomaterials in laboratories and some pilot scale operations. This guidance was designed to be used in tandem with well-established practices and the laboratory’s chemical hygiene plan. The introduction of nanoparticles into the workplace has created a new dimension in workers' compensation occupational exposure claims.

"Nanotechnology, the manipulation of matter at a nanometer scale to produce new materials, structures, and devices having new properties, may revolutionize life in the future. It has the potential to impact medicine through improved disease diagnosis and treatment technologies and to impact manufacturing by creating smaller, lighter, stronger, and more efficient products. Nanotechnology could potentially decrease the impact of pollution by improving methods for water purification or energy conservation. Although engineered nanomaterials present seemingly limitless possibilities, they bring with them new challenges for identifying and controlling potential safety and health risks to workers. Of particular concern is the growing body of evidence that occupational exposure to some engineered nanomaterials can cause adverse health effects.

"As with any new technology or new material, the earliest exposures will likely occur for those workers conducting discovery research in laboratories or developing production processes in pilot plants. The research community is at the front line of creating new nanomaterials, testing their usefulness in a variety of applications and determining their toxicological and environmental impacts. Researchers handling engineered nanomaterials in laboratories should perform that work in a manner that protects their safety and health. This guidance document provides the best information currently available on engineering controls and safe work practices to be followed when working with engineered nanomaterials in research laboratories.

....
For over 3 decades the Law Offices of Jon L. Gelman1.973.696.7900 jon@gelmans.com have been representing injured workers and their families who have suffered work related accident and injuries.

Monday, June 11, 2012

OSHA fines Clifton, NJ, stucco contractor more than $108,000 for exposing workers to fall hazards

The seal of the United States Department of Labor (Photo credit: Wikipedia)

The U.S. Department of Labor's Occupational Safety and Health Administration has cited DD Stucco and Renovation LLC for six safety — including two willful — violations related to fall hazards at a Mountain Lakes work site. OSHA opened an inspection in November 2011 as part of its local emphasis program on falls and proposed a total of $108,240 in penalties.

"This company is risking worker injury and possible death by failing to provide proper fall protection," said Kris Hoffman, director of OSHA's Parsippany Area Office, which conducted the inspection. "Employers need to know that falls are the leading cause of fatalities in the construction industry, and proper precautions must be taken."

The willful violations carry a $92,400 penalty and are due to a lack of fall protection for employees working on a scaffold that was not fully planked. 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.

Four serious violations, which carry a $15,840 penalty, are for a scaffold that was not secured to the structure or supported on an adequate firm foundation, unstable objects used to support the scaffold and employees climbing across braces to access the scaffold. 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.

In April, Secretary of Labor Hilda L. Solis announced a new campaign to provide employers and workers with life-saving information and educational materials about working safely from ladders, scaffolds and roofs in an effort to prevent deadly falls in the construction industry. In 2010, more than 10,000 construction workers were injured as a result of falling while working from heights, and more than 250 workers were killed. OSHA's fall prevention campaign was developed in partnership with the National Institute of Occupational Safety and Health and NIOSH's National Occupational Research Agenda program. More detailed information is available in English and Spanish on fall protection standards at http://www.osha.gov/stopfalls.

"Fall hazards involving these and other safety issues can be avoided when an illness and injury prevention program is developed and implemented, and management and workers proactively identify and eliminate hazardous conditions," said Robert Kulick, OSHA's regional administrator in New York.

The citations can be viewed at http://www.osha.gov/ooc/citations/DDStucco_316089713_0521_12.pdf*.

DD Stucco and Renovation is headquartered in Clifton and had three workers at the Mountain Lakes site. 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.

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 Parsippany office at 973-263-1003.

Under the Occupational Safety and Health Act of 1970, OSHA's role is to promote safe and healthful working conditions for America's working men and women by setting and enforcing standards, and providing training, outreach and education. For more information, visit http://www.osha.gov.

Saturday, June 9, 2012

EPA Encourages the Public to Comment on Plan for Cleanup at Evor Phillips Superfund Site in Old Bridge, New Jersey

The U.S. Environmental Protection Agency has proposed a plan to clean up contaminated ground water at the Evor Phillips Leasing Company Superfund site. The six-acre vacant site is in an industrial area of Old Bridge Township, New Jersey. Past industrial activities contaminated the ground water with volatile organic compounds, which can have serious health effects. The proposed plan calls for the ground water to be treated to break down the contaminants to protect people’s health and the environment.

The EPA will hold a public meeting on June 19, 2012 to explain the proposed plan and is encouraging public comments. The meeting will be held at 6:00 p.m. at the Old Bridge Central Library, 1 Old Bridge Plaza, Municipal Center, Old Bridge, New Jersey. Comments will be accepted until July 9, 2012.

Some volatile organic compounds can cause cancer. The extent and nature of potential health effects depend on many factors, including the level and length of exposure to the pollution.

“The chemicals in the ground water at the Evor Phillips Superfund site pose health risks,” said EPA Regional Administrator Judith A. Enck. “Removing them is the best way to protect the health of people who live and work in the area. The EPA encourages the public to attend the June 19 meeting and share their views on the proposed plan.”

From the early 1970s to 1986, the Evor Phillips site was used for industrial waste treatment and metal recovery operations. Liquid waste was treated on site and two waste disposal areas were used to neutralize acidic and caustic wastewater. The site also contained 19 small furnaces for incinerating photographic film and printed circuit boards to recover silver and other precious metals. The New Jersey Department of Environmental Protection closed down the liquid waste treatment operations in1975 after the operators failed to comply with state environmental requirements. All operations at the site stopped in 1986 with the shutdown of the metal recovery furnaces.

The Evor Phillips site was listed on the EPA’s Superfund list of the nation’s most hazardous waste sites in 1983. Because of the nature and complexity of the contamination at the site, the cleanup is being conducted in three phases. The first phase, conducted by NJDEP, involved the removal of approximately 40 buried drums and soil contaminated by metals, and the construction of a ground water treatment system to prevent the contaminated ground water from moving off site. In 2002, several companies responsible for the contamination began operating the ground water treatment system, with NJDEP oversight. The companies also demolished office buildings and furnaces, and removed buried drums, contaminated soil and underground storage tanks.

The EPA took the lead in overseeing the cleanup in 2008. The removal of contaminated soil, which will begin this summer, is the second phase of the cleanup. The third phase, which is currently proposed by the EPA, is the long-term treatment of the ground water using a process known as chemical oxidation. Chemical oxidation uses chemicals to destroy pollution in soil and ground water, breaking down the harmful chemicals into water and carbon dioxide. The oxidants are pumped into the ground water at different depths in the polluted area. Each injection is followed by monitoring to evaluate the effectiveness of the treatment. Samples of the ground water would be collected and analyzed to ensure that the technology is effective. The ground water will be monitored for several years after the cleanup goals have been met to demonstrate that the ground water is no longer a source of contamination.

The Superfund program operates on the principle that polluters should pay for the cleanups, rather than passing the costs to taxpayers. After sites are placed on the Superfund list of the most contaminated waste sites, the EPA searches for parties responsible for the contamination and holds them accountable for the costs of investigations and cleanups. The cleanup of the Evor Phillips site is being conducted and paid for by the responsible parties with oversight by the EPA.

Written comments may be mailed or emailed to:
Rich Puvogel, Remedial Project Manager
U.S. Environmental Protection Agency – Region 2
290 Broadway – 19^th Floor
New York, N.Y. 10007-1866
(212) 637-4410
puvogel.rich@epa.gov

For more information on the Evor Phillips Leasing Company Superfund site, go to:http://www.epa.gov/region02/superfund/npl/evorphillips/.

For a Google Earth aerial view of the Evor Phillips Leasing Company Superfund site, go to:http://www.epa.gov/region02/kml/evor_phillips_leasing.kml. (You must have Google Earth installed on your computer to view the map. To download Google Earth, visithttp://earth.google.com/download-earth.html).

Friday, June 8, 2012

NJ Suggests Restrictions on Counsel Fees for CMS Claim Reimbursements

The New Jersey Division of Workers' Compensation set forth a policy statement defining the parameters for potential counsel fee recovery where The Centers for Medicare and Medicaid (CMS) is reimbursed for claims conditional payments by consent versus a judicial Order.

Click here to read the memo.

50 Cancers To Be Covered Under the 9-11 Zadroga Health Claim Fund

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. The announcement was made by NIOSH WTC Program Director John Howard MD, whose agency was responsible for reviewing Petition 001 regarding the addition of cancer, or types of cancer, to the List of World Trade Center-Related Health Conditions.

The Fund was established to provide medical surveillance, treatment and care (WTC Health Program) for first respondents and those who were in close proximity to the 9-11 blast in New York City and who suffered medical conditions and diseases as a result of the tragic event.

The World Trade Center Health Program (WTC Health Program) was established by the James Zadroga 9/11 Health and Compensation Act of 2010. Right now, the program provides services for responders, workers, and volunteers who helped with rescue, recovery, and cleanup at the World Trade Center and related sites in New York City. It also provides services for survivors who lived, worked, or were in school in the area. The WTC Health Program soon will also serve responders to the 9/11 attacks at the Pentagon in Arlington, VA, and the Flight 93 crash site in Shanksville, PA.

Medical clinics are maintained throughout the New York metropolitan area. For a list of clinics click here.

Next Steps:

Once the Administrator receives the Advisory Committee’s recommendation he has 60 days to publish in the Federal Register either a notice of proposed rulemaking regarding the recommendation or a determination not to propose a rule and the basis for that determination.

If the Administrator publishes a notice of proposed rulemaking to add cancer, or certain types of cancer, to the List of WTC-Related Health Conditions, the WTC Health Program must follow the normal regulatory process, including a minimum 30 day public comment period and review of those comments, before issuing a final rule.

If the Administrator determines not to add a certain type of cancer to the List of WTC-Related Health Conditions at this time there would still be the possibility that the type of cancer could be added to the List of WTC-Related Health Conditions in the future. Such potential future additions could be initiated through new petitions to the Administrator or at the Administrator’s discretion.

List of Cancers:
▪ Malignant neoplasms of the lip, tongue, salivary

gland, floor of mouth, gum and other mouth, tonsil,
oropharynx, hypopharynx, and other oral cavity and
pharynx
▪ Malignant neoplasm of the nasopharynx
▪ Malignant neoplasms of the nose, nasal cavity,
middle ear, and accessory sinuses
▪ Malignant neoplasm of the larynx
▪ Malignant neoplasm of the esophagus
▪ Malignant neoplasm of the stomach
▪ Malignant neoplasm of the colon and rectum
▪ Malignant neoplasm of the liver and intrahepatic
bile duct
▪ Malignant neoplasms of the retroperitoneum and
peritoneum, omentum, and mesentery
▪ Malignant neoplasms of the trachea; bronchus and
lung; heart, mediastinum and pleura; and other illdefined sites in the respiratory system and
intrathoracic organs
▪ Mesothelioma
▪ Malignant neoplasms of the soft tissues (sarcomas)
▪ Malignant neoplasms of the skin (melanoma and nonmelanoma), including scrotal cancer
▪ Malignant neoplasm of the breast
▪ Malignant neoplasm of the ovary
▪ Malignant neoplasm of the urinary bladder
▪ Malignant neoplasm of the kidney
▪ Malignant neoplasms of renal pelvis, ureter and
other urinary organs
▪ Malignant neoplasms of the eye and orbit
▪ Malignant neoplasm of the thyroid
▪ Malignant neoplasms of the blood and lymphoid
tissues (including, but not limited to, lymphoma,
leukemia, and myeloma)
▪ Childhood cancers
▪ Rare cancers

....
For over 3 decades the Law Offices of Jon L. Gelman1.973.696.7900 jon@gelmans.com have been representing injured workers and their families who have suffered work related accident and injuries.

Click here to contact us for further information or assistance.

For more information about the 9-11 Zadroga Fund click here.

Copyright