Monthly Archives: February 2013

OSHA-Logo

Let OSHA Do Its Job

OSHA is being prevented from fulfilling its mission.

In 1970, Congress passed the Occupational Safety & Health Act (the Act), which created the Occupational Safety & Health Administration (OSHA). Among other things, the Act requires every employer to provide a safe workplace. To help employers reach this goal, OSHA promulgated hundreds of rules in the decade after it was created. OSHA’s rulemaking process has, however, slowed to a trickle since then.

While the National Institute for Occupational Safety & Health recently identified over 600 toxic chemicals to which workers are exposed, in the last 16 years OSHA has added only two toxic chemicals to its list of regulated chemicals. This is because Congress, Presidents and the courts have hamstrung OSHA. For example, in March 2001 the Bush Administration and a Republican Congress effectively abolished OSHA’s ergonomics rule, a rule the agency had worked on for many years.

These delays and inactions have caused more than 100,000 avoidable workplace injuries and illnesses.

These delays and inactions have caused more than 100,000 avoidable workplace injuries and illnesses. Workers are being injured and killed by known hazardous circumstances and OSHA can’t act.

Congress and the President need to break this logjam – we need to free OSHA to do its job of safeguarding workers.

affordable_care_act

The Obama Agenda: The Road to Workplace Wellness

Today’s post comes from guest author Jon Gelman from Jon Gelman, LLC – Attorney at Law.

As workers compensation programs are being diluted by soaring medical costs, The Obama Administration’s policy makers are taking a bold new step to focus on promoting wellness and disease-prevention efforts in the workplace.

Immediately following the presidential elction last November, the Department of Labor, International Revenue Service and the Department of Health and Human Services proposed regulations to enforce workplace wellness programs under the Affordable Care Act. The proposed regulations will stimulated employer programs to invite healthier workers and may go as far as penalizing those who maintian poor diets and inadequate exercise regiems.

… regulations would increase the maximum permissible reward under a health-contingent wellness program offered in connection with a group health plan (and any related health insurance coverage) from 20 percent to 30 percent of the cost of coverage. The proposed regulations would further increase the maximum permissible reward to 50 percent for wellness programs designed to prevent or reduce tobacco use. These regulations also include other proposed clarifications regarding the reasonable design of health-contingent wellness programs and the reasonable alternatives they must offer in order to avoid prohibited discrimination.”

One analysis of the proposal concludes……

“We are cautiously optimistic about the potential of workplace-wellness programs to help contain healthcare costs and to improve the health and well-being of millions of California’s workers. Preventing illness and injury through workplace-based strategies potentially benefits employees and their families, employers, and public and private insurance providers. There is emerging evidence about the effectiveness of WWPs in improving chronic disease outcomes, and a long history of occupational health and safety practices reducing workplace injury and death. Incentives in the ACA have the potential to serve as a catalyst for expanding WWP’s broadly in California. However, policy solutions need to respond to potential unintended consequences and account for the state’s incredibly diverse communities and businesses in order to make wellness programs work for all Californians.”

Read The Greenlining Institute’s report “Helth, Equity and the Bottom line: Workplace Wellness and California Business.

Comments are due on or before January 25, 2013.

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Bangladesh Garment Factory Fire: Another Triangle Shirtwaist Fire?

A garment fire in Bangladesh killed 112 workers last week

Today’s post comes from guest author Tom Domer from The Domer Law Firm.

A garment fire in Bangladesh killed 112 workers last week, harkening back to the tragic Triangle Shirtwaist fire 100 years ago on March 24, 1911, which claimed the lives of 146 young men and women, mostly immigrant garment workers. The Triangle fire galvanized a broad spectrum of reformers and reforms, one of which was worker’s compensation. In the aftermath of the Triangle fire, many states adopted worker’s compensation laws. (Wisconsin’s was the very first constitutional law in 1911.) Other reforms included workplace safety regulations, child labor laws, and enhanced fire inspections, among others.

There is a growing effort by worker groups to demand safety reforms in Bangladesh where factory fires have killed hundreds of workers in recent years.

An additional tragedy in the Bangladesh fire, whose products are sold here in America Mart, was the revelation that managers may have lowered gates to prevent employees from leaving because they thought it was a false alarm. There is a growing effort by worker groups to demand safety reforms in Bangladesh where factory fires have killed hundreds of workers in recent years. Photos taken by workers showed labels for Wal-Mart’s private label Faded Glory in the remains, along with clothing for a number of other United States labels including work wear brand Dickies.

The analogies to the Triangle Shirtwaist fire are striking. In that fire, people on the 10th floor, mostly in administrative offices, were able to escape to the roof of an adjoining building. Workers on the 8th floor fled using the stairs, the fire escape and elevators. However, Continue reading

Truck_Accident

Truck Drivers Beware – Your Insurance May Not be What You Think

Today’s post comes from guest author Leonard Jernigan from The Jernigan Law Firm.

There is a scam out there and truck drivers are the victims, especially if they are seriously injured in a trucking accident. It works like this: an out of work driver hears about a job and fills out an application with a national trucking company. He then gets a call saying he has been accepted as a driver, contingent on a physical exam and a drug test. The driver is then asked to show up at work on an appointed date for his first delivery job. When he shows up he is asked to “sign papers” which allow him to lease/own the truck as he drives it across the country, and he signs a contract that declares that he is an independent contractor (although in reality the trucking company controls the deliveries and is the only source of revenue for the driver). Further, he is required to purchase accident insurance through a broker designated by the trucking company and the premiums are taken out of his paycheck. Because the driver is anxious to work again and is not particularly experienced in reviewing legal documents the driver signs the papers, gets in the truck and begins working again as an interstate truck driver.

The costs of this workplace injury are now shifted from the employer/insurer to the taxpayer.

Like most of us, these drivers never expect to be in a serious accident. If they unfortunately do have an accident while driving the truck, they look to the accident policy they purchased. If they are disabled, it pays the same benefits as workers’ compensation and provides medical coverage. Many drivers think they are actually on workers’ compensation. The catch is that all benefits stop after 104 weeks (2 years). If after that time if the driver is still disabled and still needs medical care, it is a shock to find out none is available under this contract.

Is there no hope for the truck driver under these circumstances?

Why 104 weeks? Most states have workers’ compensation systems that require the claim be filed within 2 years. Since the 2-year period has run, the driver is out of luck and cannot file for workers’ compensation under state law. What happens if the driver needs additional surgery and continues to remain disabled? Most likely federal assistance programs like Medicaid or Medicare enter the picture and the costs of this workplace injury are now shifted from the employer/insurer to the taxpayer.

If involved in a serious accident, be aware of the 104-week provision and file a workers’ compensation claim before that time period expires.

Is there no hope for the truck driver under these circumstances? Although it might be a tough fight, most workers’ compensation statutes specifically state that an employer cannot contract away its obligations under the Workers’ Compensation Act. Thus, the truck driver’s legal argument is that the contract designating the driver as an independent contractor was void as a matter of law. If the employee has been the subject of fraud, equity may allow the driver to go ahead and file a claim and pursue the action even through the 2-yr period has run. Under these circumstances, certainly in North Carolina, the driver would have an opportunity to pursue this claim.

The lesson to be learned by truck drivers is not to assume that the contract you have innocently signed is valid. If involved in a serious accident, be aware of the 104-week provision and file a workers’ compensation claim before that time period expires. Finally, if you are asked to sign one of these contracts and you have options of other employment, you may want to decline this job offer and work for a company that is more ethical. Your livelihood and the welfare of your family may depend on this important decision.

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Previously-Denied Claims for Some Hanford Workers to be Reviewed

Today’s post comes from guest author Kit Case from Causey Law Firm.

Annette Cary of the Tri-City Herald reported on a change in the way that some claims will be handled for exposures at the Hanford Nuclear Site, including a review of more than 800 previously denied or pending claims for ill Hanford workers that are being reconsidered or put on a fast track for a decision after federal compensation rules were recently eased.

All those claims are for cancers covered by a newly designated special exposure cohort for workers at Hanford from July 1972 through 1983. Workers received that designation if inadequate information existed to estimate their radiation exposure.

The classification allows workers or their survivors to claim $150,000 in compensation plus medical coverage without an estimate showing they received enough radiation to likely cause the cancer. They also may be eligible for up to an additional $250,000 for impairment and wage loss.

Read Ms. Cary’s full story here for more details.

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Chamber of Commerce Attempts to Injure Asbestos Victims Further

Deadly Asbestos

Today’s post comes from guest author Jon Gelman from Jon Gelman, LLC – Attorney at Law.

The US Chamber of Commerce is now trying to take privacy rights of asbestos victims and their families. After Industry knowingly exposed millions of innocent workers, and their families to deadly asbestos fiber for purely economic greed, they now want to add insult to injury by requring the bankruptcy court to publicly disclose their settlements.

Asbestos is a known carcinogen for decades, not yet banned in the US. Exposure to asbestos is cusally linked to: asbestos, lung caner and mesothelioma.

The indiscriminate manufacture and use of asbestos fiber in the US, and worldwide,has resulted in an epidemic of workers’ compensation claims throughout the US, and the longest running tort claims in the nations’ history. Millions of innocent asbestos victims, and their families, have suffered unfortunate illness and needless illness and death.

The US Chamber of commerce is actively supporting in the US Congress,  and in state legislatures, laws to require disclose of private settlements made in asbestos bankruptcy claims. While the Federal law is pending in Congress, the state legislation is actively being advanced.

See H.R.4369 Furthering Asbestos Claim Transparency (FACT) Act of 2012

Click on this link to registered your OPPOSITION to the legislation.

Read more about “asbestos”

Reserves for Asbestos Losses Anticipated to be Deficient

Nov 29, 2012

Fitch Ratings estimates industry asbestos reserves to be deficient by $2 billion to $8 billion at year-end 2011. Asbestos reserves make up approximately 4% of total property/casualty industry reserves with approximately 50%…

Canadian Asbestos Register of Public Buildings Now On-Line

Nov 14, 2012

In an effort to protect workers and public from deadly asbetsos fiber, the Canadian Province of Saskatchewan has now mandated that builings containing asbestos fiber be publically listed and the list published to the Internet.

Workers’ Compensation: Asbestos Exposure Occurs When Old Pipe…

Nov 08, 2012

Today in Boston a steam pipe burst near Boston City Hall exposing the population to cancer causing asbestos fiber. Asbestos continues to be a major health hazard since it remains in construction material exposuing workers…

Deadly Asbestos Exposure Threat Left by Hurricane Sandy

Nov 04, 2012

The path of destruction to buildings caused by hurricane Sandy has created a potential threat of deadly asbestos exposure. Many structures destroyed and damaged by the storm contained asbestos fiber and those were…

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Why Are Worker’s Comp Claims Down

The number of worker’s compensation claims has dropped dramatically

Today’s post comes from guest author Charlie Domer from The Domer Law Firm.

The Wisconsin Association of Worker’s Compensation Attorneys (WAWCA) just held its tenth annual worker’s compensation seminar in Madison, Wisconsin. (I presented the annual case law update.)  A report on the economic health of Wisconsin worker’s compensation (presented by a colleague on the defense side, Paul Riegel) noted reported worker’s compensation claims have dropped from 55,000 in 2001 to less than 35,000 in 2011.  Based upon the first five months of 2012 reporting, 30,000 reported claims are anticipated to be made in 2012.

Applications for hearing on those claims have also diminished, from 7,000 in 2001 to about 5,500 in 2011.  Again based upon projections, the 2012 number of Applications for Hearing will be about 5,600.

Several potential explanations for this drop were provided including:

  1. The days of asbestosis, silicosis, and similar disease may have ended due to the aging population of those of exposed before the implementation of OSHA in 1970 and the lessening amounts of these substances in the workplace.
  2. Employers argue that workplaces are simply safer, resulting in lesser claims.
  3. The safer workplaces argument is rebutted by employee and Union data that fewer people are willing to make claims in a depressed economy for fear of losing their jobs.  While Wisconsin law assesses a “one year’s wages” penalty against an employer who fires or refuses to rehire an injured worker, in tough economic times, that may not be a risk an injured worker is willing to make.  Anecdotal evidence from a variety of sources indicates viable claims, specifically for “wear and tear” type injuries are simply not being made.
  4. The impact of extending Unemployment Compensation benefits from its initial 26 weeks through multiple extensions may diminish worker’s compensation claims since another “safety net” exists.  Additionally, the availability of Social Security may diminish worker’s compensation claims.  General employment trends also suggest Continue reading
preexisting_injury

Does A Pre-Existing Injury Mean I Can’t File A Claim?

A preexisting injury does not stop a claim

Today’s post comes from guest author Matthew Funk from Pasternack Tilker Ziegler Walsh Stanton & Romano.

QUESTION: I HAVE A PREEXISTING INJURY TO THE SAME BODY PART I HURT AT WORK. DOES THIS MEAN I CANNOT CLAIM WORKERS COMPENSATION BENEFITS?

ANSWER: A PREEXISTING INJURY DOES NOT STOP A CLAIM.  FILE THAT CLAIM!    

Joe Worker was a high school quarterback.  Until that knee injury sidelined his dreams of playing for the NFL.  So he became one of the best construction workers New York City could ask for.  Until one day, on the job, Joe tripped over stuff somebody should have put away, and landed on that bad knee. Now, if his knee hadn’t been so screwed up in the first place, Joe would have been fine.  He would have dusted himself off and gone on with the day.  But the old injury flared up and Joe was sidelined again.  Joe didn’t know what to do.  It was, after all, his bad knee that made things worse, not a minor trip and fall on the job.  So he hesitated filing a new claim.  What should he do?

Continue reading