Category Archives: Workplace Injury

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Texas Trench Collapse Results in $400k OSHA Fine and 16 Safety Violations

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

On July 22, 2015, Hassell Construction Co. was cited by OSHA for 16 safety violations (including 6 egregious willful violations) and given a whopping $423,900 fine. Hassell Construction Co. is a construction company based in Richmond, Texas with about 150 employees that construct water and sewer lines around Houston, Texas. The employer was given 15 business days to comply with each citation, request an informal conference with OSHA’s Houston South area director, or contest the citations and penalties before the OSHA Health Review Commission.

These citations were given after a trench that was 8 feet below the ground collapsed in February crushing an unsuspecting employee. Luckily, the worker was dug out by his co-workers using their bare hands. The minute the worker was freed from the trench, the trench collapsed a second time.

According to OSHA’s regional administrator in Dallas, John Hermanson, “Hassell Construction knew its trenches weren’t safe, but still put its workers in harm’s way.” Due to the fact that trench cave-ins such as the one in February are completely preventable OSHA has also placed the construction company in the Severe Violator Enforcement Program which often inspects employers and mandates follow-up inspections to ensure that they are complying with the law. In North Carolina, a similar incident allowed the employee to sue the employer directly and overcome the exclusivity provision of the North Carolina Workers’ Compensation Act. Woodson v. Rowland. 373 S.E.2d 674 (1988).

Read about the citations here: https://www.osha.gov/ooc/citations/HassellConstruction_1031127_0722_15.pdf

Original Article 7/22/15 posted on WorkersCompensation.com.

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Workers’ Compensation Basics: What is a Workers’ Compensation Accident?

Today’s post comes from guest author Brody Ockander, from Rehm, Bennett & Moore.

This blog post is the third in a series that examines the basics of workers’ compensation.

To be a covered workers’ compensation claim, an employee’s personal injury must be caused by an accident or occupational disease, but what does that mean?

The Nebraska Workers’ Compensation Act defines accident as: “an unexpected or unforeseen injury happening suddenly and violently, with or without human fault, and producing at the time objective symptoms of an injury. The claimant shall have a burden of proof to establish by a preponderance of the evidence that such unexpected or unforeseen injury was in fact caused by the employment. There shall be no presumption from the mere occurrence of such unexpected or unforeseen injury that the injury was in fact caused by the employment. …” Nebraska Revised Statute 48-151 (2)

Of course, many workers’ compensation injuries are not as simple or as clear as a broken arm that was the result of a fall. Some injuries are caused by repetitive motion or cumulative trauma on the job. In those cases, the injuries are still considered workers’ compensation “accidents” under the definition above, even though the injuries did not truly occur “suddenly and violently” as required by the statute. 

As for an occupational disease, the Workers’ Compensation Act defines it as “a disease which is due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation, process, or employment and shall exclude all ordinary diseases of life to which the general public is exposed.” Nebraska Revised Statute 48-151 (3) Examples to think about would be mesothelioma for asbestos workers or black lung for coal miners.

In sum, pretty much any injury or illness that an employee receives from work can fit into the definition of “accident” under the Nebraska Workers’ Compensation Act. However, proving the injury is much more difficult and may require the help of a lawyer.

Read the previous blog posts in the series by clicking on these links: Workers’ Compensation Basics: Are You an Employee? and What is Workers’ Compensation?

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Is a Pulmonary Embolism Compensable under Workers’ Compensation?

Today’s post comes from guest author Brody Ockander, from Rehm, Bennett & Moore.

The short answer is yes, but it could be difficult to prove if it is not directly related to another workers’ compensation injury. In Nebraska, proving a pulmonary embolism and deep vein thrombosis (DVT) requires the same legal and medical causation tests as a heart attack or stroke (see Zissin v. Shanahan and Wingfield v. Hill Brothers Transportation, Inc.).

What that means is legal causation must be proved by showing that exertion or stress encountered during employment is greater than that experienced during the ordinary non-employment life. Then, it must also be proven by medical causation: i.e., show that the employment contributed in some material and substantial degree.

On the other hand, if someone develops DVT as a result of another injury caused by work, it would probably be much easier to meet the causation required to prove compensability. For example, let’s say a worker injures his knee during work and has surgery on that knee. Then, as a result of the surgery, a postoperative complication of DVT arises and eventually becomes a pulmonary embolism. In that scenario, the pulmonary embolism is clearly related to the work injury and clearly compensable.

Absent a prior injury, however, causation must be met by the standards stated above, which will be very fact intensive. An example of this scenario came up in the recent case, Wingfield v. Hill Brothers Transportation, Inc., 288 Neb. 174. In that case, a truck driver for 35 years asserted that his deep vein thrombosis and pulmonary embolism was from sitting while driving a truck so long. The workers’ compensation court dismissed the cases, holding that the truck driver did not adequately prove legal and medical causation.

This case illustrates how difficult the causation standard is for pulmonary embolism cases that are not directly linked to a work injury. These types of cases will almost certainly require the assistance of a lawyer. 

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“Experts Provide Tips to Become More Resilient”

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

Original post titled “Bounce Back” in Time Magazine June 1, 2015 (subscription required).

For almost two decades, Dr. Stephen Southwick, professor of psychiatry at the Yale School of Medicine, and Dr. Dennis Chaney, Dean at Ichan School of Medicine, have been studying what makes some people “bounce back” faster than others after a traumatic or stressful experience. Their main conclusion is that having a set of learned skills, not a disposition or personality type, helps people thrive during and after hard times.

Some tips to help strengthen your resiliency are:

  1. develop a core of set beliefs that nothing can shake,
  2. try to find meaning in whatever stressful or traumatic thing has happened,
  3. try to maintain a positive outlook, and
  4. take cues from someone who is especially resilient.

Other helpful tips are to attempt to face your fears instead of running from them, and remember not to beat yourself up over or dwell on the past.

While all of these tips can help strengthen your ability to bounce back during a particularly tough time, finding the one that works for you is the key to being able to bend rather than break. Whether that is finding an exercise plan that works with your life style (exercise helps the development of new neurons which are damaged by stress according to Southwick) or facing your fears for the first time, there are several ways to strengthen your mind to be able to cope better with stressful events.

Read more about training the brain to be more resilient in the June 2015 issue of Time magazine.

 

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Tragic Cannery And Construction Site Deaths Highlight Need For Safety Enforcement

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

I was horrified when I recently read about a worker for a tuna company who was killed when he was cooked to death at the company’s California canning factory. According to the New York Daily News, the worker, Jose Melena, was performing maintenance in the 35-foot oven when a co-worker failed to notice he was still in the oven and turned it on to begin the steaming process of the tuna. The co-worker assumed Melena had gone to the bathroom. 

While there apparently was an effort to locate the worker, his body was not found until two hours later when the steamer was opened after it completed its cooking cycle. As an attorney, my clinical instinct shifts my focus to the mechanics of the accident and to fault. There are so many unanswered questions.  Why didn’t anyone check the machine before it was turned on? Why wasn’t the machine immediately shut down when they realized the worker was missing? As a person with feelings and emotions, I think of the horror and pain he must have gone through and the loss experienced by his family and friends as a result of his death. It is almost too awful to imagine. 

While this terrible tragedy occurred in 2012, it appears the reason that the story is currently newsworthy is that the managers were only recently charged by prosecutors in the worker’s death for violating Occupational Safety & Health Administration (OSHA) rules. Closer to home, more recent and just as unfortunate were the cases of the construction worker in Brooklyn who fell six stories from a scaffold while doing concrete work and a restaurant worker who was killed in Manhattan when a gas explosion destroyed the building he was working in. 

These stories highlight why safety procedures are so important. In some cases, there are no proper safety precautions in place. In others, there are safety measures in place but they may not have been followed. In rarer cases, crimes are committed that result in workplace fatalities. The failure to follow or implement proper safety procedures was a calculated risk, a terrible misstep, or a downright criminal act. In the case of the worker who died when he fell from a scaffold, there has been speculation that he may not have been attached properly to his safety harness. In the tuna factory death, the managers were charged with violating safety regulations; they face fines as well as jail time for their acts. In the gas explosion, there are allegations that the explosion was caused by workers’ illegally tapping into the restaurant gas line to provide heat for upstairs tenants. Prosecutors were trying to determine criminality; whatever the final outcomes, it appears that in these three instances the deaths were preventable. 

According to OSHA rules, employers have the responsibility to provide a safe workplace. They must provide their employees with a workplace free of serious hazards and follow all safety and health standards. They must provide training, keep accurate records, and as of January 1, 2015, notify OSHA within eight hours of a workplace fatality or within 24 hours of any work-related impatient hospitalization, amputation or loss of an eye.  

While this may seem like a small step, anything that results in creating higher standards for employers or encouraging them to keep safety a priority is always a good thing. These three examples are only a small percentage of the workplace deaths that occur each year. While not every death is preventable, everyone is entitled to go to work and expect to leave safely at the end of their shifts.  

Catherine M. Stanton is a senior partner in the law firm of Pasternack Tilker Ziegler Walsh Stanton & Romano, LLP. She focuses on the area of Workers’ Compensation, having helped thousands of injured workers navigate a highly complex system and obtain all the benefits to which they were entitled. Ms. Stanton has been honored as a New York Super Lawyer, is the past president of the New York Workers’ Compensation Bar Association, the immediate past president of the Workers’ Injury Law and Advocacy Group, and is an officer in several organizations dedicated to injured workers and their families. She can be reached at 800.692.3717.

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Death on the Job Annual Report from AFL-CIO Informative, Useful

Today’s post comes from guest author Rod Rehm, from Rehm, Bennett & Moore.

The AFL-CIO’s annual report about “the state of safety and health protections for America’s workers” has been written about in a previous year on this blog. The recently released 2015 version focuses in an in-depth manner on data from 2013 and includes around 200 pages of text, tables, details and information, along with a bit of jargon.

The report is extremely informative, and Nebraska and Iowa’s numbers will be examined in more detail in future blog posts, as these are states where the firm’s attorneys are licensed.

The report can also feel overwhelming once a person processes through the fact the each numeral on each chart represents the death of one person due to the workplace. There is also a ripple effect, as each person represented here had loved ones who both cared about and relied on that person. And for many involved, their lives changed drastically when their loved one died.

I appreciate the work, funding, thoughtfulness and effort put into compiling and analyzing the data, which includes a methodology section at the end of the report.

Here’s some sobering information from the summary.

“In 2013, 4,585 workers were killed on the job in the United States, and an estimated 50,000 died from occupational diseases, resulting in a loss of 150 workers each day from hazardous working conditions.

“Nearly 3.8 million work-related injuries and illnesses were reported, but many injuries are not reported. The true toll is likely two to three times greater, or 7.6 million to 11.4 million injuries each year.”

States with the highest fatality rate in the nation include a couple of relative neighbors: North Dakota and Wyoming. West Virginia, Alaska and New Mexico round out the top five. Lowest state fatality rates in 2013 were Hawaii, Washington, Connecticut and Massachusetts (tied) and New York and Rhode Island (tied).

Please contact an experienced workers’ compensation lawyer if you or a loved one is hurt on the job or has questions about job safety.

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Are Concussions Worth the Risk for Hockey Players?

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

Professional hockey, much like football, is considered to be a dangerous, high contact sport. With recent news of San Francisco 49er’s linebacker Chris Borland’s decision to retire at age 24 due to concussions, a lot of NHL players are feeling pressure to step-back and reevaluate if game-related concussions are worth the risk to their long-term health.

Carolina Hurricane’s 22 year-old forward Jeff Skinner has been side-lined three times for concussions since his first season in 2010-2011. Skinner’s teammate Brad Malone, a 25 year-old forward, considers his multiple concussions to be just “situations” and has made the decision to keep playing despite the risk of acquiring a long-term brain injury. According to the News & Observer, Malone stated, “If that situation was affecting my life at home and the people around me, then I think that’s when I sit down and sort of reevaluate.”

The danger of having too many concussions is that they can cause players to develop Chronic Traumatic Encephalopathy (CTE). CTE is a progressive degenerative disease of the brain that is caused by repetitive brain injuries, and according to Sportsmd.com CTE can cause symptoms and behaviors similar to Alzheimer’s disease and Parkinson’s disease. CTE is considered to be the only preventable form of dementia. Hockey players are faced with a serious issue: continue to play professionally or quit the sport for the sake of future quality of life.

Original post in the News and Observer by Chip Alexander 3/31/15

Read more about CTE here: http://www.sportsmd.com/concussions-head-injuries/chronic-traumatic-encephalopathy-cte-2/

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Is Your Job Causing Asthma or Making It Worse?

Today’s post comes from guest author Jon Rehm, from Rehm, Bennett & Moore.

The spring allergy season that also causes asthma concerns is upon us, and this is especially evident in the Great Plains, where the wind blows dust and pollen throughout most days. 

A recent study from the Centers for Disease Control and Prevention (CDC) showed that 16 percent of American adults had asthma that was either caused or aggravated by conditions at work. According to the National Institutes of Health, workers who are regularly exposed to chemicals and dust, such as millers, bakers, woodworkers and farm workers, are most vulnerable to work-related asthma. The Asthma and Allergy Foundation of America states that adults lose 14 million work days per year because of asthma. 

In terms of Nebraska, this means that approximately 134,400 days of work are missed in Nebraska due to work-related asthma. In Iowa, that number is closer to 224,000 days of work that are missed because of work-related asthma. This is an estimate of missed days nationwide in proportion to the population of the states. 

Workers should make sure their employers are providing safety equipment that protects against respiratory injury. Employees should make sure they are carrying inhalers in the workplace if they have been prescribed them by a doctor for asthma. 

But if a worker suspects their work is causing breathing problems or making pre-existing asthma worse, they should report that as a workers’ compensation injury and seek treatment with a specialist in treating breathing conditions. Medical bills for treating asthma should be covered like any other work injury, and any lost time because of work-related asthma should entitle an employee to temporary disability for lost time and permanent disability for permanent breathing problems. 

Work-related asthma would also be a disability under the Americans with Disabilities Act (ADA) and under similar state laws. Further, an employee has protection against retaliation under most states’ laws, including Nebraska and Iowa, as well as under federal law, for reporting work conditions that cause asthma and/or from claiming workers’ compensation benefits for work-related asthma.