Understanding The Legionnaires’ Disease Outbreak

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

Most of us have heard the frightening statistics regarding the recent outbreak of Legionnaires’ disease in the Bronx.  As of this date, 12 people have died and more than 120 additional cases have been reported.   But what exactly is this mysterious malady affecting so many at one time and what are its causes?  

Legionnaires’ disease is a common name for a type of pneumonia caused by breathing in water mist containing the bacteria. It was named after a 1976 outbreak in Philadelphia during an American Legion convention that killed more than 30 people and sickened almost 200 more. Most of us rarely hear about this disease unless it is part of a large outbreak, but according to the Centers for Disease Control, anywhere from 8,000-18,000 people are hospitalized each year in the U.S. as a result of Legionnaires’.  The current outbreak in the Bronx seems to point to the building’s cooling towers that are used as part of their air conditioning, ventilation, and heating systems, but the bacteria can be found in almost any warm water system or device that disperses water including humidifiers, spas and whirlpools, and dental water lines. The disease is not contagious and can only be caused by breathing in the bacteria- laden vapor. 

The New York Committee for Occupational Safety and Health (NYCOSH) has put out a fact sheet for workers and unions. Workers performing routine maintenance on or in cooling towers and other water systems may need to wear respiratory protection. The Occupational Safety and Health Administration (OSHA) requires the employer to determine hazards and provide training programs if the use of a protective device is required. Additionally, there are recommendations regarding assessment of work sites for potential Legionnaires’ disease. Cooling towers should be regularly maintained and cleaned with the use of chlorine and unused water lines should be frequently flushed.

In this recent Bronx outbreak, the New York City Health Commissioner issued an order to all owners of buildings with cooling towers to disinfect all of them within 14 days of receiving the order and keep records of the inspection and disinfection. Those workers with the task of cleaning and decontaminating the towers are advised to wear protective respirators as well as rubber gloves, goggles, and protective clothing. 

Every worker is entitled to a safe work place. According to NYCOSH, certain groups of workers are at increased risk of exposure to Legionnaires’ disease, including those who maintain, clean, decontaminate, or work in close proximity to water systems and system components such as cooling towers, evaporative condensers, humidifiers, potable water heaters and holding tanks and pipes that may contain stagnant warm water.

Workers should be aware of Legionnaires’ disease symptoms, which include fever, headache, joint aches, and fatigue, that can deteriorate into difficulty breathing, chills, chest pain, and gastrointestinal symptoms. As Legionnaires’ is a type of pneumonia, it can be diagnosed with a chest x-ray and lab tests to confirm the bacteria. While most in the Bronx outbreak who died had a compromised immune system, early treatment with antibiotics can lessen the symptoms and improve the changes of recovery. 


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.   


LEGISLATIVE ALERT: Worker’s Compensation Destruction Bill?

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

Time to wake up Wisconsinites! In a short timeframe, the current administration and legislature in Wisconsin has altered the landscape of our state in ways too numerous to count. Well, now we face another attempt to make-over and deform a progressive era landmark: Wisconsin’s Worker’s Compensation System.

A recent bill (LRB 1768) proposes direct and major changes to our state’s nationally recognized model worker’s compensation (WC) system. The proposed changes would dramatically alter and potentially devastate the stability of the system for all stakeholders. We urge all legislators not to support LRB 1768. Instead, there will be a separate, reasoned bill produced by the Worker’s Compensation Advisory Council.

Current System Works for All Stakeholders

Under the grand bargain of Wisconsin’s first-in-the-nation WC system from 1911, injured workers gave up the right to court lawsuits in exchange for timely, lesser, defined benefits without having to prove fault. Employer, in turn, are protected from unknown jury damage awards. Employers purchase WC insurance for this administrative dispute resolution process. The system safeguards the concept that work injury expenses appropriately are an employer’s cost of doing business rather than costs shifted to taxpayers through public assistance such as disability payments and Medicare and Medicaid.

The current system is highly effective for all stakeholders—making our system the gold standard compared to the rest of the country. Wisconsin traditionally has low and stable employer premiums. We have over 300 private section WC insurance carriers collecting premiums (in excess of $1.7 billion). We have faster return to work rates than in most states. We have incredibly low litigation costs and low litigation rates (only 10-15% of work injuries).

Work Comp Advisory Council (WCAC) is the bedrock of Wisconsin’s WC system 

Much of the credit for the beneficial metrics in our national model is from the stability offered by the Worker’s Compensation Advisory Council (WCAC). This Council, composed of voting members of labor and management (including the Wisconsin Manufacturers and Commerce, WMC), has typically produced a biennial “agreed upon” bill for approval by the Legislature. The WCAC produced reasoned, incremental changes that maintained the stability of the system for all stakeholders—employers, carriers, and workers. The WCAC generally has immunized the substance of the Wisconsin WC system from partisan politics and election cycle swings commonly found in other states.

Importantly, the WCAC successfully produced a reasoned Agreed Upon bill in the past weeks! (more details below).

The Proposed GOP Bill (LRB 1768) Would Decimate Worker’s Compensation in Wisconsin

A recent video highlights the egregious nature of the proposed bill:



The bill proposed by GOP legislators was not from or considered by the Advisory Council—it is an end-run around the stability-producing model.  LRB 1768 is a direct legislative attack on the WC system, introducing dramatic and foreign concepts to our system. Among the more outlandish proposal are the following:

  • Reducing WC benefits by amount of employee negligence!
    • This proposal eviscerates the “grand bargain” of WC, whereby a worker who suffers an on-the-job injury receives lower, defined benefits without regard to fault and employers, in turn, are protected from unknown jury damage awards.
    • It would force employees to prove the injury was not their fault while still protecting employers with the WC exclusive remedy (and with no corresponding change in benefits for employer negligence/fault)
    • Also, without any method provided for determining negligence, there would be a massive increase in uncertainty, litigation, and claims costs/premium. 
  • Employer-Directed Medical Care
    • Currently, workers have the right to medical providers of their choosing—creating a system where workers have access to timely, specialized medical care. This quality, unrestricted medical care produces great results: faster return to work rates than most states in the country!
    • Proposed employer-directed medical care allows the employer to choose a specific practitioner for an injured worker (e.g., a podiatrist could be designated to address work injuries, including a back claim). As such, a worker may not receive the appropriate specialized medical care, like physical therapy, chiropractor, psychology, or orthopedic specialist.
    • Employer directed medical care likely means a race to the bottom, focusing on which doctors best minimize WC benefits. The focus should be on swift access to quality medical care.
  • Harsh Reduction from 12 year to Two (2)-Year Statute of Limitations (SOL)
    • WC injuries can result in lengthy healing periods and long-term medical care.
    • A 2 year SOL directly cost-shifts the burden for WC injuries to the taxpayers (Medicaid, Medicare, SSDI).  Taxpayers should not be left holding the bag for the cost of work injuries.
    • A 2 year SOL will result in exponential litigation of WC claims.  WC attorneys will be forced to file applications on any/all claims to preserve the SOL.  Wisconsin could turn into Illinois (!) where litigation rates are 80-85%, versus our current 10-15% rate.
  • Elimination of PPD ratings
    • Current law utilizes minimum permanent partial disability ratings, established by an independent panel of physicians decades ago.
    • The GOP proposed bill would eliminate PPD minimums.  Further explosion in litigation would result as previously uncontested claims would now result in disputes between worker and adverse physician ratings.
    • Notably, the recently-produced WCAC bill provided a reasoned approach to any concerns over PPD ratings, by recommending an independent physician panel review of the ratings.
  • Elimination of benefits if misrepresentation on employment application
    • This ill-considered provision precludes benefits if an employee lied about physical condition on employment application.
    • Such a provision introduces potentially discriminatory quizzing of prospective employees.  It further introduces more litigation issues into this no fault system

The cumulative effect of the GOP bill provisions were not adequately deliberated. The result would be an exponential increase in litigation and a destabilizing effect on the WC system—meaning increased litigation costs, lengthy delays in claims, and increased employer premiums. Any crack in the grand bargain could open the floodgates to potential unlimited damages in personal injury liability lawsuits. One major injury could result in significant jury awards (See http://nypost.com/2014/12/18/injured-construction-worker-gets-record-62m-single-plaintiff-award/)

In stark contrast is the recent WCAC bill ….

WCAC Successfully Produced a Reasoned Reform Bill

The Advisory Council, on October 26, 2015, successfully produced an Agreed-Upon WC Bill. This reasoned WCAC bill was agreed to by labor and management—including the Wis. Manufacturers & Commerce (WMC), who sit on the Council. All stakeholders should get behind this Advisory Council bill. The full statutory language will be available in the upcoming weeks.

As opposed to the GOP bill (LRB 1768), the Advisory Council bill creates WC changes that benefit all stakeholders, especially the employers of our state. Some “employer-friendly” provisions include the following:

  • Worker’s violation of alcohol or drug policy (if related to injury) denies benefits.
  • No lost time benefits (TTD) if terminated for good cause (using recent unemployment standards)
  • A reasonable and manageable reduction in statute of limitations from 12 to 6 years  (vs a 2 year SOL which would drastically alter the system).
  • Establishing DOJ position for investigating/prosecuting WC fraud.
  • Apportionment of functional PPD payments, so employers not responsible for pre-injury disability amounts.

Thus, the Advisory Council produced a bill that addressed many management/employer concerns about the WC system. The Advisory Council listened and—as it has done for decades—successfully produced reasoned changes to the system. The stability of the system is preserved for all stakeholders. The WCAC Agreed-Upon Bill should be supported.


Port of Seattle Commission Passes Paid Parental Leave

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

The Port of Seattle Commission approved a motion to provide four weeks of paid parental leave for non-represented employees during the 12 months following the birth, adoption, or placement of a foster child in the employee’s home – effective Jan. 1, 2016.
“This action ensures that every Port employee will have dedicated paid leave to recover from birth and/or bond with a new child,” said Port of Seattle Commission Co-President Courtney Gregoire. “We recognize those first days and weeks are important to the health of all the members of the family. Not only will paid family leave help the port attract and retain quality employees, it establishes a policy fundamental to supporting more women in the workforce.”
City Councilmember Jean Godden testified in favor of the motion and the positive impact it has had since the City of Seattle implemented a similar program this spring. King County is also expected to begin a paid parental leave program in the coming months.
The proposed parental leave plan will offer four weeks of paid time off to both men and women. The time must be taken in one consecutive block. The estimated annual cost of $250,000 is based on an estimated 32 eligible non-represented employees using the benefit each year.


Photo credit: MandoBarista via Foter.com / CC BY-SA


Oklahoma Commission Says Workers’ Comp “Opt Out” Not OK

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

Ever since Oklahoma employers were allowed to “opt out” of the workers’ compensation system in 2013, nearly 60 big employers have chosen the “opt out” path. By opting out, these large corporations (like Wal-Mart and Big Lots) are no longer constrained by the requirements of the Oklahoma State workers’ compensation laws. Instead they are allowed to create their own internal workers’ compensation system playing under their rules and definitions.

According to a NPR study these opt out plans “ . . . provide fewer benefits, make it easier for employers to deny benefits, give employers control over medical assessment and treatment, and leave appeals in the hands of employers, and force workers to accept lump-sum settlements.”

However, just last week, the Oklahoma Workers’ Compensation Commission unanimously declared two sections of the “Oklahoma Employee Injury Benefit Act” (a/k/a Oklahoma’s Opt Out law) unconstitutional. According to the Commission, the Opt Out provisions deprived injured workers of equal protection and access to the court. The Oklahoma Workers’ Compensation Commission called the opt out plans “a water mirage on the highway that disappears upon closer inspection.”

Here is a link to the Oklahoma Workers’ Compensation opinion filed 26 February 2016. The ruling will likely be appealed and we can expect to hear much more about these Oklahoma opt-out plans in the near future.




Menards Agrees to Work Law Changes After Violations

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

Check out this article about the large Wisconsin home improvement retailer, Menards, and their previous disregard of workers’ rights: Menards Promises Changes After Violations of Federal Labor Laws.

As other stories have outlined,the company’s handbook allegedly threatened penalties for supervisors if they managed stores that unionized.  These tactics show the (sometimes extreme) lengths some employers may go at the expense of their workers.


Creative Legal Argument Leads To An Award of Lifetime Diability Benefits

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

Good lawyering requires both creativity and a deep knowledge of the law. Last week I obtained a ruling of Permanent Total Disability for a client. The ruling entitles her to much-deserved lifetime weekly compensation benefits. This is especially important because in 2007 the Workers Compensation Law was changed to put limits on the time period for which you can receive benefits. There is now a 10-year limit on benefit duration unless you had a 100% Medicial Disability or a 100% Loss of Wage Earning Capacity (ability to work and earn money).

My client is a 55 year-old woman with a severe back condition. All of the doctors she consulted with conculded that she has a 60% medical disability. Most attorneys would have accepted that rating as is, entitling her to just 350 weeks of compensation benefits. But that would have been the wrong outcome.

Because of my client’s educational level and work experience, I knew that she was entitled to more. She only has a high school education and does not know how to use a computer. My client has never worked in any other position other than house cleaning.

All of the doctors who testified conceded that my client’s injury prevented her from doing her job – the work of a house cleaner. In fact, they all conceded that she could not do any type of physical labor. I then took my client’s testimony and established her lack of transferrable skills, focusing on her education and work experience. In essence I showed that there was no other work that she could successfully perform.

The judge agreed with my argument — my client has only a 60% Medical Disability, but has a 100% loss of her Wage Earning Capacity. The judge awarded my client Total Disability benefits, which allowed an award of a lifetime of benefits, not just a 10-year benefit period. This was a huge, and much-deserved, victory for my client.

When representing clients it is important to know your client and to know their background. This is how we practice. We strive to obtain the best outcome for out clients by knowing them, knowing the law and knowing how to obtain the maximum benefits for them.


Workers’ Compensation Fraud – North Carolina Statistics for 2014 – 2015

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

Several months ago, the North Carolina Industrial Commission published their Annual Report for 2014 – 2015. Based on the Annual Report, employer fraud was by far the overwhelming majority of investigated fraud in the North Carolina workers’ compensation system.


The Annual Report tracked investigations of suspected fraud and violations related to workers’ compensation involving employees, employers, insurers, health care providers, attorneys, and rehabilitation providers. The total figure of fraud investigations for 2014 – 2015 was 1,474 cases. Of those 1,474 cases, 1,336 cases related to employer fraud. That means that 90.64% of the investigated workers’ comp fraud was fraud on the part of the employer.  Whereas there were 129 cases of suspected employee fraud (i.e. 8.75% of the total investigated fraud cases).


The silver lining? Of the employer fraud that was prosecuted, the State of North Carolina was able to collect nearly $1,000,000 in revenue just in 2014 – 2015 in fraud penalties paid by noncompliant employers. 


CNBC: If you’re sitting at your desk, GET UP NOW!

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

Causey Law Firm has taken small steps to implement ergonomic planning in our office.  We have one Varidesk sit/stand desktop conversion in use, like the one shown in the video, as well as a fully convertible sit/stand desk and adjustable-height rolling cart in our file room.  Several people use a FitBit or similar device to encourage and track movement throughout the day. It’s not easy to integrate motion into a desk job, but it can really help!  Take a look at this great piece from CNBC for inspiration:

If you’re reading this article at your desk and you’re sitting, get up. It is one of the best things you can do for your health. If you don’t want to stand, then do something active while you’re sitting. Millions of workers are choosing to do both, thanks to a slew of new office products that are gaining traction — and dollars — fast.

“This is no longer just a one off, it’s a product category,” said Thompson Research Group’s Kathryn Thompson, an analyst who covers the office furniture industry. “Fitness equipment is a critical part of the new office, and it’s really a critical part of the office of the future.”

The “healthy office segment” is the fastest growing sub-sector of the $10 billion office furniture industry, and Thompson estimates it could grow to one-third of the industry in the next three to five years. Workers and employers alike are demanding it. 

“Good health makes good economic sense,” Thompson said.

Attention to workplace fitness really ramped up in just the last few years, after the Mayo Clinic published a study on the detrimental effects of sitting for long periods of time. Mayo’s Dr. James Levine is credited with coining the term “sitting is the new smoking.” He is also inventor of a treadmill desk.

Read the rest of the article here…