Category Archives: Workplace Safety

Reversing OSHA Rules Will Undercut Workplace Safety

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

President Trump recently signed a Congressional resolution revoking an Obama administration OSHA rule that required employers to retain records of work injuries for five and that prohibited retaliation against workers for reporting injuries. The revoked OSHA rule would have also limited drug testing of employees who reported injuries.

Debbie Berkowitz of the National Employment Law Project and a former OSHA official criticized the action because limiting the amount of time an employer must retain records about injuries because it doesn’t provide enough information to identify recurring safety issues.

At least in Nebraska, employers are required to file First Reports of Injury with the Nebraska Workers Compensation Court. The information contained in those reports serves a similar function to OSHA logs and would allow workers, unions, attorneys and or regulators to identify recurring safety problems. Those reports are also public records. I recently testified against an insurance industry supported bill in the Nebraska legislature that would have made those reports confidential records.

The recently revoked OSHA rule also would have prohibited retaliation against employees who report OSHA violations. Nebraska already has anti-retaliation laws that protect employees who claim workers’ compensation benefits that would cover many cases where an employer would have to record an injury for OSHA. My opinion is that the OSHA General Duty clause which states that employers have a duty to provide a workplace free of recognizable hazards provides additional anti-retaliation protections to Nebraska employees through our state whistleblower statute. But the revocation of the OSHA anti-retaliation rule may weaken those protections.

The OSHA record keeping/anti-retaliation rule was revoked through the Congressional Review Act. You can read more about that law works here. Congress and President Trump have also revoked an executive order that would have prevented employers who violated fair employment laws from obtaining federal contracts. You can read more about that rule here.

The Safety Hazard Right Under Your Wheels

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

The collapse of the Interstate Highway-35W bridge over the Mississippi River killed 13 people and highlighted the safety hazards related to poor infrastructure. But most drivers face a less dramatic, but no less dangerous, hazard:

Potholes.

According to www.pothole.info, nearly 1/3 of the 33,000 annual truck and auto fatalities are related to poor road conditions. At least 27 percent of the major roads in the United States have been rated to be in poor condition. Though potholes are regarded as a problem – with good reason – in cold-weather states like Nebraska and Iowa, the worst road conditions in the country are in the warm-weather areas like the Bay Area, southern California, and Tucson, Arizona.

Bumpy roads combined with poor suspension can even lead to back injuries. This is especially true for over-the-road-truck drivers who also face health problems from lack of sleep, lack of exercise, and poor diet due to the demands of trucking. Drivers for Crete Carrier Corporation, Shaffer Trucking, Werner and K&B Transportation usually must litigate their workers’ compensation claims in Nebraska. Fortunately, Nebraska would deem a back injury from driving over a pothole to be compensable, even if it were combined with a pre-existing condition. Other states have stricter causation standards that could preclude a driver from collecting benefits for such an injury.

Truckers who, according to one poll, supported President Donald Trump over Hillary Clinton 75 percent to 25 percent, may have some relief from rough road conditions coming. President Trump has announced that he plans to spend $1 trillion on infrastructure, and he has appointed a task force that includes high-level advisers and his influential son-in-law Jared Kushner. Some observers in the trucking industry have raised concerns that the Trump infrastructure plan could lead to more private and toll roads; however, everyone will get some benefit if road conditions improve within the United States.

Another forgotten piece of infrastructure is trucking parking, which I will address in an upcoming post.

Truck Parking: A Forgotten Piece of Infrastructure

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

While bridge collapses make for dramatic footage and almost everybody encounters the more mundane danger of potholes, truck parking is not an infrastructure issue that most people think about, but it is a very important issue for over-the-road truckers.

Lack of truck parking is a safety issue for many reasons. Lack of parking for truckers makes it harder for them to find a place to sleep, which leads to more accidents. Additionally, drivers are forced to park in unsafe locations, like the shoulders of roads, which can lead to even more safety hazards.

I travel quite often on I-80 (which generally follows The Oregon Trail) when I travel between Lincoln and central Nebraska to meet with and represent my clients in places like Grand Island, Hastings, Kearney, Lexington and North Platte. I like the fact that Nebraska has plenty of places to stop for personal comfort, check email or even take a quick nap. But even in a state like Nebraska, where hospitality to overland travelers is an integral part of our state’s history, I still see safety issues with truck parking. The parking lots in many trucks stops are very rough from the weight of the trucks. This can lead to slip and fall injuries. Stops need to be well-maintained so that they remain safe.

Unfortunately, many urban areas are less friendly toward truck parking, which forces rural areas to bear more of the burden of truck parking. President Donald Trump has announced a $1 trillion dollar infrastructure plan. Hopefully, sufficient and safe truck parking will be part of that infrastructure plan.

With Beautiful Snow Comes Dangerous Conditions

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

The New York metropolitan area recently got its first significant snow of the season and while it is not unusual to see snow in January, it is significant as it was part of a system that impacted much of the country. Winter Storm Helena started out pounding the western portion of the United States before heading  south and barreling up the east coast. There were a number of fatalities and injuries as a result of this intense storm.

Locally, some areas of Queens and Long Island received up to a foot of snow. While the snow can be beautiful and peaceful when it is falling, it cannot stay on the streets and on the sidewalks once it stops.  Cities, towns, and other municipalities are responsible for snow removal in public areas and roadways, but it is up to home- and business-owners to make sure it is removed from the sidewalks in front of their properties. That means getting out the shovels or snow blowers.  

Unfortunately for many people, this activity can result in serious injury. In 2011, the American Journal of Emergency Medicine published the results of a study that found on average 11,000 people were hospitalized per year as a result of injuries caused by shoveling snow. The most common injuries are back injures caused by lifting the heavy snow, heart issues caused by overexertion, and slip-and-fall injuries. Shoveling snow can be very strenuous depending upon the amount and type of snow. Many people try to shovel as quickly as possible in order to get out of the cold. Unfortunately, this attempt at shortcutting can have serious consequences.

According to experts, you can alleviate some of the stress on your back by using a good shovel and picking up smaller loads of snow. Use your legs instead of your back when lifting, and avoid twisting at your waist to reduce the chance of an injury. Shovel straight ahead to minimize excessive movements, and don’t throw the snow over your shoulder unless you are training for a fitness magazine cover. Take frequent breaks to hydrate and to get warm. Slipping and falling on ice and snow can result in broken bones and other serious injuries. It goes without saying that slip-resistant footwear is a necessity.

Shoveling snow is an aerobic activity that raises your heart rate. Combined with the cold temperatures, it can lead to deadly heart problems. While only 7% of snow injuries were related to heart problems, the majority of the fatalities were heart-related. If you have a heart condition, heed your doctor’s advice regarding strenuous activity. Death can occur to those tasked with the responsibility of shoveling snow while on the job as well. Some employees are directed to remove snow not just on the sidewalks, but on roofs and other structures. In 2012, the Occupational Health and Safety Administration (OSHA) issued a hazard alert as a result of 16 preventable workplace fatalities that occurred in a span of 10 years. The majority of these deaths were as a result of falls from heights.   

Needless to say, precautions need to be taken for both home owners as well as workers. However, if you are on the job, there are steps you need to take if you are the unfortunate victim of an injury. First, seek immediate medical treatment. Make sure you notify your employer within 30 days and file a claim with the New York State Worker’s Compensation board within two years. Your employer has Workers’ Compensation insurance for wage replacement and medical treatment so you should not pay anything either out of pocket or through your own private insurance. The winter season can be fun but it can also be dangerous for you and your friends and co-workers. Help out your elderly neighbor, invest in a good shovel, wear appropriate clothing, and be careful out there. Snow is beautiful, but it can also be dangerous.

 

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.

Finding A Way Forward: How I Am Greeting The New Year With Optimism

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

I recently saw a quote that said “we are all just a car crash, a diagnosis, an unexpected phone call, a newfound love, or a broken heart away from becoming a completely different person. How beautifully fragile are we that so many things can take but a moment to alter who we are for forever”.   

During this holiday season, many of us will get together with our families and friends to celebrate our blessings but never expect that in the blink of an eye our lives can change dramatically. A very good friend of mine was celebrating Thanksgiving with her family when a pot of boiling water fell onto her and she suffered severe burns. After spending nine days in the Burn Center and in weeks of excruciating pain, she is living proof that there are no guarantees in life.  

A recent report by Fox News USA shows that unintentional shootings spike during the holidays and are more likely to occur than at any other time of the year due to a number of factors, including increased use of alcohol, holiday gifts of firearms, and children and teens being home from school with more free time. Many of us now rely on online shopping for our holiday gifts, which increases the amount of delivery vehicles on the road. Car crashes spike, as the December holiday season is one of the busiest travel times of the years. Factor in weather that does not always cooperate, and impaired drivers on the road as a result of holiday gatherings, and it is a recipe for disaster. Those who drive for a living are at an increased risk of injury or even death. 

Those who work in the retail industry are not immune from increased risk of injury either. Many of us won’t forget the Black Friday stampede in 2008 when a worker was trampled to death in a Long Island Walmart. In response to that tragedy, the company was fined, they agreed to adopt new crowd management techniques, and  the Occupational Safety and Health Administration (OSHA) issued Crowd Management Safety Guidelines for retailers. The stress of the holidays can cause depression, less sleep, and financial woes that can translate into violence. OSHA notes that workplace violence has remained among the top four causes of occupational death. 

But the promise of tomorrow brings optimism. As we embark on a brand new year, many of us will feel a sense of relief as 2016 was a year filled with turmoil. The presidential election was polarizing for many Americans. Friends became enemies and family members would not speak to one other. Many of us will look to the new year with a sense of a new beginning – a chance to have a fresh start, a renewal of sorts. Many of us will make resolutions to lose weight, to end a bad habit, to become a better parent, spouse or friend. Many will donate to charities. Despite our differences and shortcomings, Americans are among the most charitable nation in the world. According to Giving USA’s annual report in 2015, Americans gave an estimated $358 billion to charity the prior year. There are so many things we can do to improve our lives and the lives of those in our community and our nation. The list of possibilities is endless. For those of us who represent injured workers, we resolve to make workplaces safer and ensure that medical and indemnity benefits are available in the future. Wishing you all Peace, Love, and Good Health in the upcoming year.

 

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.

Chemical Exposure in Chicken Plants

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

Several members of Congress have written to Secretary of Labor Tom Perez, Secretary of Agriculture Tom Vilsack and Secretary of Health and Human Services Sylvia Burwell regarding the danger of the chemical PAA, which is used to sanitize chickens in poultry plants.

According to The Pump Handle blog written by occupational health expert Celeste Monforton, the increase in the use of PAA is linked to the Department of Agriculture’s “modernized inspection” system. Though meatpacking is well known for the prevalence of musculoskeletal injuries, chemical exposure is a less well-known, but similarly serious hazard, to meatpacking workers, which has been recognized by the Occupational Safety and Health Administration.

The hazards of chemical exposure are not limited to meat-processing workers. Chemical exposure fatalities are too common in rural America. Recently, a worker on an industrial cleaning crew in Beatrice, Nebraska, was killed from inhaling industrial cleaning chemicals. In October, a resident of northeast Nebraska was killed after inhaling chemicals from a leak in anhydrous ammonia pipeline. That same month, 125 residents of Atchison, Kansas, sought treatment for inhalation of chlorine gas from an explosion at a distiller.

While chemical exposure can often result in sudden death, ongoing exposure to chemicals can also create injuries that may not be apparent for years after the exposure. Unfortunately, Nebraska limits the ability of workers to recover for such injuries.

The letter about the hazards of PAA was written to outgoing cabinet members. The new Trump administration is expected to have a less-aggressive approach toward regulating the workplace. Hopefully the new administration will take the threat posed by hazardous chemicals in the workplace seriously.

The High Cost of Fat

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

We have reported regularly on the impact of obesity on workers’ compensation (see WFW October 2005 “Diabetes and Work Injuries” Alan B. King, M.D. and WFW Winter 2009 “The Rising Impact of Obesity on Workers’ Compensation” book review).

A recent study in the Journal of Occupational and Environmental Medicine, the official publication of the American College of Occupational and Environmental Medicine, in September 2016 reported that obese and overweight workers are more likely to result in higher costs related to workers’ compensation claims, especially for major injuries.

In a study analyzing 2,300 workers in Louisiana, Dr. Edward Bernacki of the University of Texas—Austin found that workers’ compensation costs and outcomes for obese workers (defined as a Body Mass Index of 30 or higher) incurred higher costs related to their workers’ compensation claim. This study noted that after three years about 10% of claims for significant injuries were still open, meaning the worker had not yet returned to work. Obesity and overweight did not play a role in the delayed return to work. However, for workers with major injuries, overweight was associated with higher workers’ compensation costs. In the group with the higher Body Mass Index, costs averaged about $470,000 for obese workers, $270,000 for overweight workers compared to $180,000 for normal weight workers (with a Body Mass Index between 25 and 30). The study made adjustments for other factors including the high cost of spinal surgeries and injections and, after making the adjustment for these factors, obese or overweight workers with major injuries were twice as likely to incur costs of $100,000 or more. Significantly, Body Mass Index had no effect at all on costs for closed claims or less severe injuries.

Previous studies (including a study in the Journal of Occupational and Environmental Medicine in 2015 linked obesity to a higher rate of workplace injuries and a longer time off. However, the cost effects were not studied until this recent assessment. The new results indicate obesity is a significant risk factor for higher costs in major workers’ compensation injuries.

One significant finding in the study was that more than three-fourths of the workers’ compensation claimants were overweight or obese. Further studies are planned. Previous studies include those from the National Council on Compensation Insurance, Inc. (NCCI) “How Obesity Increases the Risk of Disabling Workplace InjuriesEditor’s Note:  According to most studies, there is a strong correlation between Body Mass Index and injuries such as ankle fracture severity and increase risk of osteoarthritis. For workers’ compensation practitioners, one wonders whether these studies are a prelude to an assault on the “as is” doctrine. Each of us in our own practice can recognize some of the wide-ranging effects in costs of obesity, from special procedures for hospital treatment of obese patients such as open MRIs and more extensive surgical procedures to a reduced fuel economy in commercial vehicles due to fat drivers. Additionally, the cost of treatment for obese patients with work-related injuries increases the work-related injury potential to medical staff (lifting, transferring, etc.). Increasing admissions of severely obese patients leads to a corresponding increase in medical workplace injuries related to lifting and maneuvering obese patients. Workers’ compensation practitioners may see obesity as yet another “pre-existing condition” to surmount in future causation and extent of disability battles.

Workers Risk Injury During Holiday Shopping Season

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

The day after Thanksgiving, or Black Friday as it is known, is anticipated by millions of Americans as a fun holiday shopping tradition that marks the beginning of the Christmas season. But crowded stores and the hunt for bargains can create hazards for shoppers and retail workers. For example, in 2008, a Wal-Mart employee was trampled to death outside a store in New York City.

But leaving aside the extreme examples of hazards, the holiday shopping season poses many less-publicized risks to retail workers.

The first risk posed to holiday workers, especially on a day like Black Friday, is the additional risk of injuries on overnight shifts. The National Institutes of Health reported that the risk of injury on an overnight shift is 30 percent higher than during a day shift. That same report also quoted a British report that showed that work injuries increased exponentially for every hour worked in a shift after eight hours. This is a risk when employees work long hours over the Black Friday weekend and when employees, many who are working another job, come to their holiday jobs after they have already worked a full day. Finally, new and temporary employees, including many holiday workers, face a higher risk for injury.

Today marks the so-called Cyber Monday, when shoppers traditionally place online orders. Online shopping has increased the need for delivery drivers. Delivery driving can be a hazardous job, due to lifting and the risk of motor-vehicle accidents. The risk of delivery driving is compounded by the fact that many delivery drivers are misclassified as independent contractors, so they lack protections like workers’ compensation. One recent story from The Indpendent out of the U.K. revealed that contract delivery drivers for Amazon.com were paid less than the minimum wage and were forced to urinate and defecate in their vehicles to make their deliveries in a timely manner.

Holiday workers face all of these risks for pay that is generally low. Plus, if an injury from a temporary holiday job prevents a person from working their regular, full-time job, that employee faces difficult issues maintaining both employment and benefits with the main, full-time employer.

If there is anything positive about the coverage of Black Friday, it’s helpful that workplace violence among low-wage workers gets covered. Among the most vulnerable to violence are convenience store clerks working overnight shifts. The Indiana Department of Labor did a study that showed 32 convenience store clerks were killed on the job in 2010. Last summer, a clerk was shot at a northwest Lincoln Kwik Shop, here in Nebraska. That murder was covered as a crime story here in Lincoln. However, that murder and the murders like it all across the country should also be covered as workplace-safety stories.