OSHA Reaches Employer Agreement to Stop Discouraging Employee Accident Reports

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

Statistics regarding the reporting of accidents have historically been challenged for accuracy as employees have been fearful about reporting events, and employers have been reluctant for numerous reasons, including the potential of increased insurance costs. Now OSHA has taken a significant step to legitimize the process by seeking an employer accord not to take adverse actions against employees for reporting injuries in the workplace.

The U.S. Department of Labor’s Occupational Safety and Health Administration has signed an accord with BNSF Railway Co., headquartered in Fort Worth, Texas, announcing BNSF’s voluntary revision of several personnel policies that OSHA alleged violated the whistleblower provisions of the Federal Railroad Safety Act and dissuaded workers from reporting on-the-job injuries. FRSA’s Section 20109 protects railroad workers from retaliation for, among other acts, reporting suspected violations of federal laws and regulations related to railroad safety and security, hazardous safety or security conditions, and on-the-job injuries.

“Protecting America’s railroad workers who report on-the-job injuries from retaliation is an essential element in OSHA’s mission. This accord makes significant progress toward ensuring that BNSF employees who report injuries do not suffer any adverse consequences for doing so,” said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels. “It also sets the tone for other railroad employers throughout the U.S. to take steps to ensure that their workers are not harassed, intimidated or terminated, in whole or part, for reporting workplace injuries.”

The major terms of the accord include:

  • Changing BNSF’s disciplinary policy so that injuries no longer play a role in determining the length of an employee’s probation following a record suspension for a serious rule violation. As of Aug. 31, 2012, BNSF has reduced the probations of 136 employees who were serving longer probations because they had been injured on-the-job.
  • Eliminating a policy that Continue reading »

Careful What You Wish For: Denying Worker’s Compensation for Undocumented Workers

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

Immigration reform is a continual and vexing issue in Washington. While politicians, lobbyists, and service organizations grapple with potential resolutions, there is no disputing the existence of illegal immigrants working for employers in our country. And when there are employees working, work injuries happen.  This may be especially true with the undocumented population who may be more susceptible to significant injuries because many perform more dangerous or hazardous jobs that other may not accept. For further information, see Do Immigrants Work in Riskier Jobs? and the CDC’s report on work-related injury deaths among Hispanics.

…excluding illegal immigrants from worker’s compensation coverage could create a financial incentive for employers to keep hiring illegal immigrants.

When injured, are these undocumented workers eligible for worker’s compensation? Some harshly argue that these workers should receive no benefits, as they are not working legally in the country. However, one of the underlying pillars of worker’s compensation is that the expense of workplace injuries (covered by insurance) should be placed on the employers who profit from the workers’ labors. Additionally, excluding illegal immigrants from worker’s compensation coverage could create a financial incentive for employers to keep hiring illegal immigrants—a practice that is against federal law. 

The worker’s compensation laws in our country do not have a definitive answer to this question—though the trend is toward coverage of undocumented workers. Many states do Continue reading »


Social Security Disability Denied? Don’t Give Up Hope. (Part 1)

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

I’ve handled many Social Security disability cases over the course of my career, and helping people obtain the benefits they deserve is extremely gratifying. Today, I want to tell you about one of my clients who was eventually awarded Social Security disability benefits after a long fight.

This man – I’ll call him John – was injured at work. He was bringing a wheelbarrow loaded with materials up a flight of stairs when he slipped and fell down the stairs. He sustained significant back and shoulder injuries and was taken to the hospital that day. When I met with him, he had been out of work for several months and wanted to get back to work, but was unable to do so. I filed his application and waited for Social Security’s initial decision.

Because John was 48 years old when he was injured, I had to prove that he couldn’t do any type of work, not just the construction work he had done since he graduated from high school. John’s case was denied initially, as most cases are. I filed a request for a hearing in front of an Administrative Law Judge (ALJ) and started to develop John’s case.

In addition to his back and shoulder injuries, John was also depressed due to his chronic pain and inability to live his life the way he used to before his accident.

In addition to his back and shoulder injuries, John was also depressed due to his chronic pain and inability to live his life the way he used to before his accident. He started treatment with a psychiatrist and a psychologist. All conditions count in a Social Security disability benefits case, both physical and emotional. 

As his hearing date approached, I obtained updated medical records from all of John’s doctors and obtained supportive opinions from them as well.  Before the hearing, I prepared John for the questions he was likely to face.  Going into the hearing, I felt confident that John would get the benefits he deserved.  However, at the hearing, the ALJ did not seem to feel the case was as strong as I did. I told John to prepare for a denial from the judge.

While reviewing the decision, I noticed that the judge had made several significant errors…

Sure enough, the judge denied John’s claim. While reviewing the decision, I noticed that the judge had made several significant errors, from improperly evaluating the credibility of John’s statements, to giving improper weight to the opinions of his treating doctors. I met with John to review the decision and talk about our options.  Given the number of errors contained in the judge’s decision and the strength of John’s case, we decided to file an appeal with the Appeals Council. The Appeals Council, located in Falls Church, Virginia, is charged with reviewing appeals from individuals who disagree with the decision made by the judge at their hearing.

The Appeals Council review process can take anywhere from 18 to 24 months, and only about 20 percent of appeals are successful.  Despite these odds, I felt good about John’s chances due to the support of his treating physicians and the multiple errors made by the judge. I prepared a comprehensive legal brief detailing all of the judge’s errors and sent it to the Appeals Council for review. When I sent the appeal, I felt that the Appeals Council would recognize that the judge had issued a flawed decision and vacate it.  When a judge’s decision is vacated, the case is sent back for a new hearing and a new decision. 

In next week’s post we’ll reveal the outcome of John’s case.


Workplace Deaths Substantially Unreported

Today’s post comes from guest author Kristina Brown Thompson from The Jernigan Law Firm.

Earlier this year, North Carolina OSHA released a report stating that job-related deaths were decreasing. In fact, the report stated there were only 35 workplace deaths in North Carolina in 2012. However, as we mentioned in our earlier blog from this year (North Carolina Workplace Deaths Lower in 2012), these statistics appeared artificially low.

The study conducted by the National Council on Occupational Safety and Health (“National COSH”) entitled “North Carolina Workers Dying for a Job,” released in 2012 states that there were at least 83 work-related deaths in 2011 but NC OSHA only reported 53 work-related deaths for that year. Why the disparity? For one, NC OSHA’s report does not account for many fatalities due to car accidents. NC OSHA’s report also doesn’t include fatalities that occur as a result of workplace violence or fatalities suffered by the self-employed.

While it’s reassuring to hear reports that work-related deaths are on the decline, this doesn’t reflect the big picture. A report from the AFL-CIO (“Death on the Job Report”) shows that workplace fatalities vary widely by state (from 12.4 fatalities per 100,000 workers in North Dakota to 1.2 fatalities per 100,000 in New Hampshire). When considering the reported work-related fatalities for your state, keep in mind that this is just a fraction of the true fatality figures.

There is, however, one common underlying trend: Hispanic workers and young workers are disproportionately at a higher risk for job fatalities. For this reason, adequate training and safety protocols are critically important. And, sadly, many of the fatalities in 2011 were largely preventable. The two top reasons for workplace fatalities in 2011 were falls from elevated heights (20%) and machinery hazards (16%). With proper safety measures, those deaths should have been avoided.




Report Your Injury Right Away

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

Truckers especially need to pay attention to this blog post. Most states require you to provide notice of your work injury to your employer as soon as is practicable. Failing to do so might prevent you from getting workers’ compensation benefits.

Because truckers are always on the go, sometimes they may not remember to report their injuries right away. Instead, maybe the trucker will simply finish the route and decide to get checked out later, completely forgetting to inform the employer. This can become a problem later and potentially could give your employer a reason to deny paying work comp benefits or paying for treatment for your work injury. Unfortunately, this is a fairly common mistake, as pointed out on one of the firm’s websites, www.truckerlawyers.com

The moral of the story is if you’re hurt, tell your employer immediately. Communicate via your Qualcomm, call in, radio, email, or do whatever it takes, even if you have to call from the doctor’s office. Even if your injury seems insignificant at first, you’ll still want to give your employer notice. You’ll be better off in the long run.


Does the Media Comprehend the Tragedy of Mass Worker Death?

Shadows on the Triangle Shirtwaist Factory Fire Memorial

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

On March 25, 1911 a fire broke out at the Triangle Shirtwaist factory in New York City.  In 18 minutes 146 garment workers, mostly young women, were dead.  The hideous circumstances of the tragedy – widely depicted by the media with front-page pictures of the corpses of women who had jumped from the building windows to avoid being burned to death – incited a wave of public revulsion that contributed to New York’s enactment of one of the nation’s first workers’ compensation statutes.  This occurred in the so-called “Progressive” era of American political history – now largely a distant memory – when within the next decade the majority of states followed suit.

One hundred years later, similar tragedies in the world-wide garment industry, which feeds U.S. corporations like WalMart, H&M, and Gap, occur with scant media attention other than the possible effect of such disasters on corporate business operations.  In November of 2012, 112 garment workers died in a fire at a Bangladeshi factory producing WalMart clothing. (A manager had reportedly closed an exit gate after the fire alarm sounded, telling workers nothing was wrong and to just keep working.)  In another Bangladeshi factory on January 26, 2013, a fire killed seven garment workers who could not escape due to a blocked exit.

Rather than expressing outrage over these circumstances, U.S. media, including the New York Times, characterized these incidents not as human tragedies, inexcusably occurring in the 21st century industrial world, but as “blows to the Bangladeshi garment industry.”  The fact is that with the globalization of that industry, these Bangladeshi workers are essentially “our” workers, making the clothes Americans wear, sold to us by U.S. corporate behemoths competing to do this at the lowest price possible they think will be acceptable to the American consumer.  The media is complicit in disconnecting these tragedies from our consciousness as intolerable – just as was the sense of our citizenry after Triangle – by focusing it’s reporting on the economic impact to the garment business and blandly parroting the boilerplate disclaimers of responsibility given them by the industry.

The garment corporations could easily afford to ensure their foreign contractors increase workers’ wages and institute workers’ safety measures with a minimal impact on the final price and their bottom line.

These incidents are almost never reported in a way that puts the question to the American consumer as to whether we’d pay a bit more per unit of clothing to ensure the safety of these workers rather than participate in the race to the lowest possible price.  Labor cost as a component of garment retail price is miniscule – one to two percent.  The garment corporations could easily afford to ensure their foreign contractors increase workers’ wages and institute workers’ safety measures with a minimal impact on the final price and their bottom line.

As it turns out, however, when plans were being developed in 2011 to improve fire safety at Bangladeshi factories, those efforts were quashed by WalMart and Gap, who determined that preventing worker deaths from fire would cost too much: “It is not financially feasible for the brands to make such investment.”

Don’t expect to hear much more about all this from the corporate media.

Source:  www.fair.org

Photo credit: Photo credit: Madison Guy / Foter.com / CC BY-NC-SA


Loss of Health Insurance Access: The Personal Toll on the Unexpected Uninsured.

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

Access to health insurance is under attack. President’s Obama’s comprehensive health care reform law, intended to increase health care coverage for millions of Americans, faced extreme scrutiny by the U.S. Supreme Court last week. Congressman Paul Ryan’s federal budget plan is a cynical and careless proposal that would slash Medicaid programs, while providing tax cuts for the wealthy. In Wisconsin, Governor Walker and his fellow Republicans also propose gutting funds to the state’s vital Medicaid program. The ultimate goal is hard to deny: certain politicians and interest groups actually want a country with more uninsured citizens. The personal toll on the uninsured is devastating, especially for those dealing with work injuries.

Access to health insurance alters this equation. If the worker had adequate access to health insurance, especially Medicaid, he could obtain the medical care that could allow a return to work, regardless of whether the worker’s compensation insurer accepted or denied the claim. 

As a worker’s compensation attorney, the following scenario plays out on a daily basis: A hard-working individual—who is lucky enough to have health insurance through the employer—is injured at work through no fault of his own. The injury is severe enough Continue reading »


The Vanishing Concept of a Job

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

While reviewing some historical cases today, I realized that what is missing from the workplace is the concept of “a job.” America’s economy has dramatically changed, and so have jobs that were once available its workforce.

Even clearer is the fact that the concept of a job has disappeared. The idea of getting up in the morning and going regularly to a job has even vanished. The evolution changed slowly with the young generation claiming that a job cycle transformed from a lifetime position to one lasting two years. Then the next stage in the evolution occurred, where the employee became a transient worker and daily the job changed and no stable employer really exists.

This evolution has eroded the underlining framework of a functional workers’ compensation program and the delivery of benefits. The injured worker becomes lost to the system, and a safe and secure workplace becomes an illusion. Lost in the complexity is the adequate reporting of accidents and occupational disease, and the ability to accurately follow the evolution of latent diseases and medical conditions.

“A new trend in the U.S. labor market is reshaping how management and workers think about employment, while at the same time reshaping the field of occupational safety and health. More and more workers are being employed through “contingent work” relationships. Day laborers hired on a street corner for construction or farming work, warehouse laborers hired through staffing agencies, and hotel housekeepers supplied by temp firms are common examples, because their employment is contingent upon short term fluctuations in demand for workers. Their shared experience is one of little job security, low wages, minimal opportunities for advancement, and, all too often, hazardous working conditions. When hazards lead to work-related injuries, the contingent nature of the employment relationship can exacerbate the negative consequences for the injured worker and society. The worker might quickly find herself out of a job and, depending on the severity of the injury, the prospects of new employment might be slim. Employer-based health insurance is a rarity for contingent workers, so the costs of treating injuries are typically shifted to the worker or the public at large. Because employers who hire workers on a contingent basis do not directly pay for workers’ compensation and health insurance, they are likely to be insulated from premium adjustments based on the cost of workers’ injuries. As a result, employers of contingent labor may escape the financial incentives that are a main driver of business decisions to eliminate hazards for other workers.”

Click here to read “At the Company’s Mercy: Protecting Contingent Workers from Unsafe Working Conditions”


National Constitutional Museum

National Constitutional Museum

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

When most Americans visit Philadelphia they go to see the Liberty Bell and Independence Hall where the U.S. Constitution was signed on September 17, 1787 by our founding fathers. 42 individuals signed the Constitution in this room after vigorous debate for months. At the other end of Independence Mall sits the impressive National Constitutional Museum and on the front of the building the words “We The People” are prominently displayed. In this facility there is a “theater in the round” where a live actor makes a presentation about the Constitution and the beginning of our democracy. This museum also has a room called Signers’ Hall (see photo attached) which has life-sized bronze statues of the 42 signers, including George Washington, Ben Franklin, James Madison, and Thomas Jefferson. When you stand next to these statues you notice the relatively small height of these men.

The museum also has a display showing Supreme Court briefs involving a workers’ compensation case out of Pennsylvania, which passed a law allowing insurance companies additional time in which to review medical treatment decisions. The claimant alleged a constitutional violation and a U.S. Circuit Court of Appeals agreed. The case eventually went to the U.S. Supreme Court, but the Court disagreed.

Each state has its own constitution, usually modeled after the U.S. Constitution, and the Pennsylvania claimant may have had a claim for a due process violation under its state constitution. As more and more changes are made to Workers’ Compensation Acts across the country, there may be more constitutional challenges, both state and federal. A visit to the National Constitutional Museum helps individuals, as well as lawyers, appreciate and understand the history of this country and the development of our unique constitutional system, and I encourage all readers to visit this unique museum.