Rabu, 01 Februari 2012

Merit-Based Workers Compensation: The Romney-Gingrich Plan

The Republican presidential primary battle has inadequately defined the debate guidelines for the future of workers' compensation in the US. While both leading Republican candidates are throwing darts at each other on many points, the basic philosophy of both Mitt Romney and Newt Gingrich is to extinguish the so-called "entitlement society." They claim Barack Obama, "the food stamp president," has accelerated the problem. 


Of course, missing from the debate is that fact that the US has changed, in tandem, with the rest of the world. The nation's manufacturing sector left the auditorium, and with it went jobs and premiums for supporting a viable workers' compensation system. What it left was a legacy of industrial illness and disease that is fatally affecting the nation's medical delivery system and burdening the taxpayers of our nation.


If the political debate is to become credible, the medical treatment delivery system must be addressed rather than just throwing around meaningless political rhetoric. While the safety net is slowing deteriorating, there remains still an opportunity to re-design and advance a credible workers' compensation system. If the debate continues along the present path, the opportunity will be lost and the nation will loose.


See The Republican Myth Of Obama’s “Entitlement Society” By Robert Reich
"But they have cause and effect backwards. The reason for the rise in food stamps, unemployment insurance, and other safety-net programs is Americans got clobbered in 2008 with the worst economic catastrophe since the Great Depression. They and their families have needed whatever helping hands they could get."
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For over 3 decades the Law Offices of Jon L. Gelman  1.973.696.7900  jon@gelmans.com have been representing injured workers and their families who have suffered occupational accidents and illnesses. 

California Attorney General Announces Settlement Requiring Honest Advertising over Brazilian Blowout Products

Attorney General Kamala D. Harris today announced a settlement with the manufacturer of Brazilian Blowout products that will require the company to warn consumers and hair stylists that two of its most popular hair smoothing products emit formaldehyde gas. 

The settlement requires GIB, LLC, which does business under the name Brazilian Blowout, to cease deceptive advertising that describes two of its popular products as formaldehyde-free and safe. The company must also make significant changes to its website and pay $600,000 in fees, penalties and costs. 

"California laws protect consumers and workers and give them fair notice about the health risks associated with the products they use," said Attorney General Harris. "This settlement requires the company to disclose any hazard so that Californians can make more informed decisions." 

Today's settlement is the first government enforceable action in the United States to address the exposures to formaldehyde gas associated with Brazilian Blowout products. It is also the first law enforcement action under California's Safe Cosmetics Act, a right-to-know law enacted in 2005. 

In November 2010, the Attorney General's office filed suit against GIB, LLC for violating five state laws, including deceptive advertising and failure to provide consumers with warnings about the presence of a carcinogen in its products. 

The settlement covers two products used in a popular salon hair straightening process, the "Brazilian Blowout Acai Smoothing Solution" and the "Brazilian Blowout Professional Smoothing Solution". 

The complaint alleged the two products contained formaldehyde but were labeled "formaldehyde free." 
Proposition 65 requires businesses to notify Californians about certain exposures to chemicals in the products they purchase. Formaldehyde is on the Proposition 65 list of chemicals known to cause cancer. 

The complaint alleged that that GIB - the manufacturer of the Brazilian Blowout products - did not inform customers or workers that formaldehyde gas was being released during a Brazilian Blowout treatment, and therefore product users did not take steps to reduce their exposure, such as increasing ventilation. Under the terms of the settlement, GIB is required to: 

- Produce a complete and accurate safety information sheet on the two products that includes a Proposition 65 cancer warning; distribute this information to recent product purchasers who may still have product on hand; and distribute it with all future product shipments. The revised safety information sheet -- known as a "Material Safety Data Sheet," or MSDS -- will be posted on the company's web site. 

- Affix "CAUTION" stickers to the bottles of the two products to inform stylists of the emission of formaldehyde gas and the need for precautionary measures, including adequate ventilation. 

- Cease deceptive advertising of the products as formaldehyde-free and safe; engage in substantial corrective advertising, including honest communications to sales staff regarding product risks; and change numerous aspects of Brazilian Blowout's web site content. 

- Retest the two products for total smog-forming chemicals (volatile organic compounds) at two Department of Justice-approved laboratories, and work with DOJ and the Air Resources Board to ensure that those products comply with state air quality regulations. 

- Report the presence of formaldehyde in its products to the Safe Cosmetics Program at the Department of Public Health. 

- Disclose refund policies to consumers before the products are purchased. 

- Require proof of professional licensing before selling "salon use only" products to stylists. 

GIB will also pay $300,000 in Proposition 65 civil penalties, and $300,000 to reimburse the Attorney General's office fees and costs. 

A copy of the settlement is attached to the online version of this release at www.oag.ca.gov.


Consent Judgement PDF logo [PDF 531 kb / 42 pg]

Senin, 30 Januari 2012

NFL Players Tackling Heart Disease

Many football players are essentially paid to be big—really big—especially those whose job is to block or stop the big guys on the other team.  They also suffer from medical conditions that are work related and claim medical benefits and other benefits available under the Workers' Compensation Act. 
There is a good chance that these players weigh in at sizes that are classified as obese as defined by body mass index (BMI).  In the general population, high BMI generally correlates with high body fat, and we know that high body fat is a risk factor for death (mortality) and heart disease.  Is the same true for elite athletes, for whom high BMI may relate to increased muscularity rather than increased body fat?  What if the athlete plays a position where size simply matters, regardless of whether size is related to muscle or to body fat?   And what happens when former athletes are no longer conditioning at their playing-day levels?  Do professional football players die earlier than or more often from heart disease or cancer than the average American male?   New research from the National Institute for Occupational Safety and Health (NIOSH) helps answer these and other questions.
In 1994, NIOSH published research examining death rates and risk factors for former National Football League (NFL) players.1  At that time the research was based on all deaths that had occurred through 1991.   After following these players for an additional 16 years, NIOSH has just published new researchExternal Web Site Icon. on the topic in the American Journal of CardiologyExternal Web Site Icon..  
The study included 3,439 retired NFL players from the 1959 through 1988 seasons.  The study found that:
  • Players had a much lower overall rate of death compared to men in the general U.S. population of similar age and racial mix. On average, NFL players are actually living longer than the average American male. Out of the 3,439 players in the study, 334 were deceased. Based on estimates from the general population, we anticipated roughly 625 deaths.
  • Players also had a much lower rate of cancer-related deaths compared to the general U.S. population. A total of 85 players died from cancer when we anticipated 146 cancer-related deaths based on estimates from the general population.
  • Players who had a playing-time BMI of 30 or more had twice the risk of death from heart disease compared to other players. Similar findings have been noted in other studies. Offensive and defensive linemen were more likely to have a BMI greater than 30. A BMI of 30 or more is considered obese in the general population whereas a healthy BMI is between 18.5-24.9.
  • African American players had a 69% higher risk of death from heart disease compared to Caucasian players.   The study controlled for player size and position and determined that those factors are not the reason for this difference.
  • Defensive linemen had a 42% higher risk of death from heart disease compared to men in the general population. A total of 41 defensive linemen died of heart disease, when we anticipated 29 deaths based on estimates from the general population.  Among the 41 defensive linemen who died of heart disease, 8 deaths were due to cardiomyopathy (a specific kind of heart disease that causes the heart to enlarge and can lead to heart failure). We anticipated fewer than two deaths from cardiomyopathy. We saw this increased risk only among the defensive linemen.
Source The NIOSH Science Blog

Read Also: 
Body Mass Index, Playing Position, Race, and the Cardiovascular Mortality of Retired Professional Football Players
"The initial cohort included 3,732 NFL players but 292 players with unknown race and 1 “player” who was actually a trainer were excluded. By the end of follow-up in 2007, the final cohort of 3,439 players contributed 104,776 person-years at risk and 334 deaths. On average the cohort was followed for 26.8 ± 8.7 years (mean ± SD) after retirement from the NFL. For players still alive, the median age at the study end date was 57 years; 60% of the players were white (including 15 Hispanics) and 39% were African-American..."

Minggu, 29 Januari 2012

Wage Miscalculations Can Result In Incorrect Low Temporary Disability Payments

Universally workers' compensation temporary disability benefits are set calculating wages at the time of the accident. If an employer miscalculates an employee's wages then the payment of temporary disability benefits paid may be too low. Employers use many techniques to report low wages.

Click here to read more: Don’t Get Short-Changed On Your Work Comp Disability Payments by attorney Brody Ockander
"While off work for your injury, make sure you are getting the proper amount of money you are entitled to. Employers use many techniques to manipulate your wages to pay you less than you are legally entitled to."

The New Mental Workplace Stress : Loneliness

Workers' Compensation claims have been increasing for mental stress claims as technology evolves and more workers are feeling more isolated and estranged from their co-workers by technology. Mental disability attributed to psychological stressors have for decades been recognized as a compensable event in workers' compensation.  Stress claims are on the upswing as employees work alone and the declining economy forced limitations on  employer generated social activity.


Click here to read Building a Bridge to a Lonely Colleague (nytimes.com)
"...sometimes loneliness can be built into the fabric of an organization. An atmosphere of distrust, suspicion and fear can cause workers to feel estranged from one another...."

Sabtu, 28 Januari 2012

Nursing Home Abuse: Drugging of Patients

Many seriously injured workers end up living in nursing homes for convenience and care. Workers compensation act usual pay for nursing home care, but do they really know what they are funding? Just published is a report indicting nursing homes for pharmaceutical abuse. 

"Today, CANHR is releasing "In a Stupor: What California’s Antipsychotic Drug Collaborative Reveals About Illegal Nursing Home Drugging." The report analyzes the findings of the Department of Public Health's Antipsychotic Drug Collaborative with which the Department has investigated 24 nursing homes and found 147 violations of state rules regarding the use of antipsychotics on residents. The Department's investigations confirm that misuse of antipsychotics is rampant in California nursing homes and deserves immediate remedial action...."
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For over 3 decades the Law Offices of Jon L. Gelman  1.973.696.7900  jon@gelmans.com have been representing injured workers and their families who have suffered occupational accidents and illnesses. 
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OSHA fine metal finishing plant $51,680 after employee burned

The seal of the United States Department of LaborImage via Wikipedia
US Labor Department's OSHA cites Syracuse, NY, metal finishing plant

for repeat and serious safety violations after employee burned


The U.S. Department of Labor's Occupational Safety and Health Administration has cited Anthony River Inc. for nine serious and three repeat violations of workplace safety standards after an employee was burned at the metal finisher's Syracuse plant.

"While it is fortunate that no life was lost here, this is a graphic example of the harm that workers and businesses can suffer when basic, common-sense and legally required safeguards are neglected," said Christopher Adams, OSHA's area director in Syracuse.

On Sept. 20, flammable vapors ignited in a storage room holding more than 800 gallons of flammable liquids, and a plant employee who tried to extinguish the fire sustained burns that were not life-threatening. OSHA's inspection identified several safety deficiencies involving the storage and dispensing of flammable liquids, including a lack of ventilation in the storage room. Additionally, the room was not constructed to meet the National Fire Protection Association's required fire-resistance rating, numerous containers of flammable liquids were open and uncovered, flammable liquids were dispensed without the nozzle and container being electrically bonded, and a lighter was allowed to be ignited in the storage room.

Other serious hazards include a lack of fire extinguisher training, blocked fire extinguisher access, ungrounded electrical equipment, unlabeled containers of hazardous chemicals, and uninspected and unrated overhead hoists and lifting devices. The serious violations carry a total of $33,000 in fines. A serious violation occurs when there is substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known.

The repeat violations, carrying $18,680 in fines, involve hazards similar to those cited against the company by OSHA in 2010 and 2011, including the lack of an operating sprinkler system for a paint spray booth where flammable paint was used, the accumulation of combustible residue on paint spray booths and the use of an extension cord in place of fixed wiring. A repeat violation exists when an employer previously has been cited for the same or a similar violation of a standard, regulation, rule or order at any other facility in federal enforcement states within the last five years.

"Hazards can be eliminated by an effective illness and injury prevention program in which management and employees work together to identify and prevent hazardous conditions," said Robert Kulick, OSHA's New York regional administrator.

Proposed penalties total $51,680. Anthony River Inc. has 15 business days from receipt of the citations and proposed penalties to comply, meet with OSHA or contest the findings before the independent Occupational Safety and Health Review Commission. To ask questions, obtain compliance assistance, file a complaint, or report workplace hospitalizations, fatalities or situations posing imminent danger to workers, the public should call OSHA's toll-free hotline at 800-321-OSHA (6742) or the agency's Syracuse Area Office at 315-451-0808.


.....
For over 3 decades the Law Offices of Jon L. Gelman  1.973.696.7900  jon@gelmans.com have been representing injured workers and their families who have suffered occupational accidents and illnesses. 

Workplace Violence: Workers Compensation Judge Removed For Taking a Gun To Work


I once walked into a workers' compensation court and the Judge was using a 3 foot sledge hammer as a gavel. How far a field one can go before crossing the line of what is appropriate conduct for a judge was the subject of a recent court decision.

A Court in Pennsylvania has ruled that it is unlawful for a workers' compensation judge to bring a gun to work. The judge was removed from office and terminated.


Click here to read: Peter E. Perry v. State Civil Service Commission, No. 2751 C.D. 2010 (PA 2011)


"....the Commission credited L&I‟s evidence regarding the existence of its policies concerning weapons in the workplace and Perry‟s 14  violations of those policies. The Commission‟s supported findings reveal the following. L&I issued its employees a Weapons Policy Statement, which specifically prohibited the possession of weapons, including, among other things, all forms of firearms, “while in or on property owned or leased by [L&I].” F.F. No. 9; R.R. at 134a. The policy specifies that violations “may lead to disciplinary action up to and including termination from employment.” R.R. at 134a. Perry received this policy. F.F. No. 10; R.R. at 136a-37a. Perry also received a copy of Management Directive 205.33 relating to workplace violence, issued by the Governor‟s Office, Secretary of Administration, which applied to all agencies under the Governor's jurisdiction. R.R. at 125a-32a, R.R. at 136a-37a."


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Kamis, 26 Januari 2012

Carolina Asbestos Textile Industry Risk High Mortality

SEM photo of Chrysotile.Image via WikipediaStudies of workers in two US cohorts of asbestos textile workers exposed to chrysotile (North Carolina (NC) and South Carolina (SC)) found increasing risk of lung cancer mortality with cumulative fibre exposure. However, the risk appeared to increase more steeply in SC, possibly due to differences in study methods. The authors conducted pooled analyses of the cohorts and investigated the exposure-disease relationship using uniform cohort inclusion criteria and statistical methods.

Increased rates of lung cancer were significantly associated with cumulative fibre exposure overall and in both the Carolina asbestos-textile cohorts. Previously reported differences in exposure-response between the cohorts do not appear to be related to inclusion criteria or analytical methods.

EPA Issues Annual Report on Chemicals Released Into Land, Air and Water in New Jersey

The U.S. Environmental Protection Agency  issued its 25th annual report on the amount of toxic chemicals released in 2010 to the land, air and water by industrial facilities in New Jersey. The Toxics Release Inventory (TRI) report covers 411 New Jersey facilities that are required to report their releases to the EPA. Total releases of chemicals in New Jersey were higher in 2010 than in 2009. A significant portion of the 2009-2010 increase was due to increases in wastewater being discharged from the DuPont Chambers Works, Conoco Phillips and Paulsboro Refining Co. LLC.

“Transparency is a powerful tool,” said EPA Regional Administrator Judith A. Enck. “The Toxics Release Inventory allows the public and policymakers to better understand the pollutants released to our air, water and land each year and gives them the information they need to take action in their communities. The data that was released is a reminder of how important TRI has been in helping us create a healthier environment, and the work still needed to be done to reduce industrial pollution.”

Last year marked the 25th Anniversary of the Toxic Release Inventory. In 1986, New Jersey Senator Frank R. Lautenberg authored the legislation that established TRI, which was signed into law as part of the Emergency Planning and Community Right-to-Know Act. Since that time, TRI data has been provided to the public annually to inform the public about the chemicals present in their local environment and gauge environmental trends over time. The inventory contains the most comprehensive information about chemicals released into the environment reported annually by certain industries and federal facilities. Many of these facilities are required to install and maintain pollution controls to meet the limits on pollution set forth in their permit.

Facilities must report their toxic chemical releases by July 1 of each year. EPA made a preliminary set of data for 2010 available in July 2011, the month the reported data was collected. Nationally, over 20,000 facilities reported on approximately 650 chemicals for calendar year 2010.

EPA has improved this year’s TRI national analysis report by adding new information on risks, facility efforts to reduce pollution and details about how possible economic impacts could affect TRI data. With this report and EPA’s Web-based TRI tools, the public can access information about the disposals and releases of toxic chemicals into the air, water, and land that occur in their communities.

To view an area fact sheet, visit: http://www.epa.gov/triexplorer/statefactsheet.htm

US Asbestos Imports Increases in 2011

The United States has yet to ban asbestos, a known carcinogen, and in 2011 the amount of asbestos that the US imports increased according to US government statistics. It is axiomatic, that the legacy from the this increase of asbestos imports will cause an increase in asbestos related illness in the US 30 years down the road as asbestosis and malignancies such as lung cancer and mesothelioma rise.

The following statement was issued today by Linda Reinstein, Co-Founder, President & CEO of the Asbestos Disease Awareness Organization, regarding the 2012 United States Geological Survey report about the dramatic increase in asbestos importation to the United States:

"As a Mesothelioma widow and asbestos awareness advocate, I was appalled and shocked to discover today that the 2012 United States Geological Survey (USGS) Mineral Commodity Summaries reported asbestos consumption from January through July of 2011 to be 1,100 metric tons; however, when comparing a previous report from January through July of 2010, asbestos consumption was reported to be 820 metric tons. This difference of 280 metric tons represents a 25% increase in consumption. For more than three decades, asbestos has been a known human carcinogen, yet occupational and environmental exposure continues throughout the United States.


There is no safe limit for asbestos exposure. Asbestos should be banned in the US.  The introduction and use of asbestos fiber into the US environment will only perpetuate a legacy of fatal disease for future Americans. 

Click here to read: USGS Mineral Commodity Summaries 2012
"Domestic Production and Use: Asbestos has not been mined in the United States since 2002. The United States is dependent on imports to meet manufacturing needs. Asbestos consumption in the United States was estimated to be 1,100 tons, based on asbestos imports through July 2011. Roofing products were estimated to account for about 60% of U.S. consumption; the chloralkali industry about 35%; and unknown applications, 5%."

Selasa, 24 Januari 2012

Privacy Limits for Social Networking: The Right To Be Forgotten

The explosive use of social media information as a discovery and an investigatory tool in workers' compensation matters may soon be reaching its limits as the European Union is proposing privacy data regulations. The proposed regulations would allow users to shut down and literally expunge their social media records. It would be enforceable with heavy economic sanctions against social media providers.


Click here to read : Europe Weighs Tough Law on Online Privacy (NYTimes.com)
"The proposed law strikes at the heart of some of the knottiest questions governing digital life and commerce: who owns personal data, what happens to it once it is posted online, and what the proper balance is between guarding privacy and leveraging that data to aim commercial or political advertising at ordinary people."

Workers Compensation Fails to Cover Most Occupational Disease Claims

A just published study reports that only 25% of occupational disease claims are covered by US workers' compensation programs.

Click here to read the entire report: Economic Burden of Occupational Injury and Illness in the United States  Get PDF (611K)
"The medical and indirect costs of occupational injuries and illnesses are sizable, at least as large as the cost of cancer. Workers’ compensation covers less than 25 percent of these costs, so all members of society share the burden. The contributions of job-related injuries and illnesses to the overall cost of medical care and ill health are greater than generally assumed."

Jumat, 20 Januari 2012

IAIABC Partnering with Self-Insurance Guaranty Funds

The International Association of Industrial Accident Boards and Commissions (IAIABC) and Self-Insurance Guaranty Funds of America (SIGFA) announced their partnership in 2012. Working together, the two groups hope they will foster greater discussion among members of U.S. guaranty funds and workers’ compensation regulators. This collaboration will enable the sharing of collective knowledge and expertise on common interests, particularly self insurance regulation.

Beginning in 2012, SIGFA will host its annual meeting in conjunction with the IAIABC 98th Annual Convention. “We are excited about this agreement as there is a natural alignment between the two groups,” commented Alan McClain, IAIABC Past President. “We look forward to welcoming fund administrators from across the nation to our annual meeting.” Guaranty funds play an important role in the U.S. workers’ compensation system and their participation will enrich conference discussions.

Charles Hough, SIGFA Chairperson remarked, “While our meeting will be run independently of the IAIABC conference, we can benefit from the perspectives offered by the regulatory community. At the same time, our members can take advantage of IAIABC programming that may interest them.” Having access to administrators and self insurance directors speaks directly to SIGFA’s guiding principles to educate, internally and externally, and share critical information. Additionally, when topics of common interest are identified, SIGFA and the IAIABC look forward to sharing resources to address them.

SIGFA will first meet with the IAIABC at the 98th Annual Convention on October 1-4, 2012 in Newport, Rhode Island. A schedule of events and program details will be released in January 2012 and can be found at www.iaiabc.org/convention2012


$1 Million Ordered in Wages and Damages for Retailiation

English: I took this photo of an Airtran Airwa...Image via Wikipedia

US Department of Labor's OSHA orders AirTran Airways to reinstate
pilot, pay more than $1 million in back wages and damages
OSHA found airline violated whistleblower protection provision of AIR21


The U.S. Department of Labor's Occupational Safety and Health Administration has ordered AirTran Airways, a subsidiary of Dallas, Texas-based Southwest Airlines Co., to reinstate a former pilot who was fired after reporting numerous mechanical concerns. The agency also has ordered that the pilot be paid more than $1 million in back wages plus interest and compensatory damages. An investigation by OSHA's Whistleblower Protection Program found reasonable cause to believe that the termination was an act of retaliation in violation of the whistleblower provision of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, known as AIR21.

"Airline workers must be free to raise safety and security concerns, and companies that diminish those rights through intimidation or retaliation must be held accountable," said OSHA Assistant Secretary Dr. David Michaels. "Airline safety is of vital importance, not only to the workers, but to the millions of Americans who use our airways."

The pilot's complaint alleged that the airline removed him from flight status on Aug. 23, 2007, pending an investigative hearing regarding a sudden spike in the pilot's mechanical malfunction reports, or PIREPS. The airline held an internal investigative hearing on Sept. 6, 2007, that lasted 17 minutes. Seven days later, the airline terminated the pilot's employment, claiming that he did not satisfactorily answer a question regarding the spike in reports. OSHA found that the pilot did not refuse to answer any questions during the hearing, answers to questions were appropriate, and the action taken by the airline was retaliatory.

"Retaliating against a pilot for reporting mechanical malfunctions is not consistent with a company that values the safety of its workers and customers," added Michaels. "Whistleblower laws are designed to protect workers' rights to speak out when they have safety concerns, and the Labor Department will vigilantly protect and defend those fundamental rights."

Either party to the case can file an appeal with the Labor Department's Office of Administrative Law Judges, but such an appeal does not stay the preliminary reinstatement order.

AirTran Airways is a subsidiary of AirTran Holdings Inc. with headquarters in Orlando. On May 2, 2011, Southwest Airlines completed the acquisition of AirTran Holdings Inc. and now operates AirTran Airways as a wholly-owned subsidiary.

OSHA enforces the whistleblower provision of AIR21, as well as 20 other statutes protecting employees who report violations of various securities, trucking, workplace health and safety, nuclear, pipeline, environmental, rail, maritime, health care, consumer product and food safety laws.

Employees who believe that they have been retaliated against for engaging in protected conduct may file a complaint with the secretary of labor for an investigation by OSHA's Whistleblower Protection Program.

Detailed information on employee whistleblower rights is available online at http://www.whistleblowers.gov.