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Rabu, 01 Februari 2012

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]

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."

Kamis, 12 Januari 2012

The Law School's Roll in Workers' Compensation Law To Be Discussed

At the American Bar Association Midwinter Seminar & Conference, Co-sponsored by Tort, Trial and Insurance Practice Section and the Labor Law Section of the ABA, members of The College of Workers' Compensation Lawyers will present a special panel discussion addressing the issue of teaching workers’ compensation in the nation’s law schools. All of the panelists have experience as adjunct professors teaching workers’ compensation. The program is scheduled March 8-12, 2012 in San Antonio, Texas. They will review how many law schools are featuring a workers’ compensation course, how the panelists teach the subject, and they will also provide advice on how to lobby a law school to initiate such a course. The College members will be accompanied by a special guest from Texas, workers’ compensation hearing officer Hon. Patrice Squirewell-Jean, who has taught as an adjunct at Thurgood Marshall School of Law/Texas Southern University.


The College of Workers' Compensation Lawyers has been established to honor those attorneys who have distinguished themselves in their practice in the field of workers' compensation. Members have been nominated for the outstanding traits they have developed in their practice of twenty years, or longer, representing plaintiffs, defendants, serving as judges, or acting for the benefit of all in education, overseeing agencies and developing legislation.


To read more about the conference click here.

Rabu, 11 Januari 2012

Saying "I Do" In Workers' Compensation Court

Just in time for Valentine's Day, a bill was introduced into the NJ Legislature to permit workers' compensation judges (administrative agency employees) and Administrative Law Judges to conduct marriages. 


Read the bill: NJ S.746

Senin, 09 Januari 2012

Hostess Fined $105,000



The U.S. Department of Labor's Occupational Safety and Health Administration has cited Interstate Brands, doing business as Hostess Brands, for eight serious and two repeat alleged violations of workplace safety standards at its Biddeford production plant. The company, which manufactures Hostess products, faces a total of $104,700 in proposed fines following a safety inspection by OSHA's Augusta Area Office.

"Our inspection identified mechanical, electrical, fall and exit hazards, including some similar to those cited at other Interstate Brands facilities," said William Coffin, OSHA's area director for Maine. "Left uncorrected, these violations expose workers to the hazards of electrocution, lacerations, amputation, falls, being caught in operating or unexpectedly activated machinery and being unable to exit the workplace swiftly in the event of a fire or other emergency."

OSHA's inspection found an absence of guardrails to prevent workers from falling into and through hoppers; a locked emergency exit door and an exit route blocked by product racks; unguarded moving machine parts on a conveyor belt, band saw blade, drill press and other equipment; undocumented procedures to prevent the unintended activation of machinery during maintenance; and individuals working on live electrical equipment who were not familiar with the protective equipment needed for such work. These serious violations resulted in citations carrying $42,200 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 recurring violations involve failing to guard chains and sprockets on a cake alignment conveyor and a packaging machine feeder, and provide personal protective equipment to safeguard employees against electrical shocks, arc flashes and arc blasts while working with live electrical parts. The citations carry $62,500 in fines. 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. OSHA cited International Brands in 2010 for similar hazards at plants in Columbus, Ga., and Schiller Park, Ill.

The citations can be viewed at http://www.osha.gov/ooc/citations/InterstateBrands_315672352_1222_11.pdf.*



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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.


Novartis Consumer Health Inc. Issues Voluntary Nationwide Recall of Certain Over-The-Counter Products Due to Potential Presence of Foreign Tablets or Chipped or Broken Tablets or Gelcaps

Novartis Consumer Health, Inc. (NCH) announced today that it is voluntarily recalling all lots of select bottle packaging configurations of Excedrin® and NoDoz® products with expiry dates of December 20, 2014 or earlier as well as Bufferin® and Gas-X Prevention® products with expiry dates of December 20, 2013 or earlier, in the United States. NCH is taking this action as a precautionary measure because the products may contain stray tablets, capsules, or caplets from other Novartis products, or contain broken or chipped tablets.
The affected bottle sizes are attached to this release. The Novartis Consumer Health Inc. Lincoln, NE facility has voluntarily suspended operations and shipments to accelerate maintenance and other improvement activities at the site.
This recall is being conducted with the knowledge of the U.S. Food and Drug Administration (FDA).
Mixing of different products in the same bottle could result in consumers taking the incorrect product and receiving a higher or lower strength than intended or receiving an unintended ingredient. This could potentially result in overdose, interaction with other medications a consumer may be taking, or an allergic reaction if the consumer is allergic to the unintended ingredient. NCH is not aware of adverse events reported with the issues leading to the recall.
These over-the-counter products were distributed nationwide to wholesalers and retailers.
Novartis Consumer Health Inc. is notifying its distributors and customers and is arranging for return of all recalled products. Wholesalers and retailers should stop distribution and return the affected product using Novartis Product Return information that is being provided to them.
Consumers that have the product(s) being recalled should stop using the product(s) and contact the Novartis Consumer Relationship Center at 1-888-477-2403 (available Monday-Friday 9 a.m. to 8 p.m. Eastern Time) for information on how to return the affected products and receive a full refund. For more detailed information, consumers should visit our website at www.novartisOTC.com as of January 9, 2012. Consumers should contact their physician or healthcare provider if they have experienced any problems that may be related to taking or using these drug products.
Adverse events that may be related to the use of these products may be reported to FDA’s MedWatch Adverse Event Reporting Program either online, by regular mail or by fax:
These actions announced today, highlight the strong Novartis commitment to a single quality standard for the Novartis Group. The Novartis Group is making the necessary investments and committing the right resources to ensure these are implemented across the entire Novartis Group network. The high quality of Novartis products and operations has been critical to building the Novartis Group reputation over the past 15 years. Novartis Group is committed to ensuring the highest standard for patients who rely on our products and medicines.
Novartis Consumer Health Inc. plans to gradually resume operations at its Lincoln, NE site following implementation of planned improvements and in agreement with the FDA. The Novartis Consumer Health Inc. Lincoln, NE facility produces a variety of products mainly for the US market with annual sales value of less than 2% of Novartis Group sales. At this stage, it is not possible to determine when the plant will resume full operations and the full financial impact of these events. NCH will take a one-time charge currently estimated at USD 120 million in the fourth quarter of 2011, relating to the recalls and improvement work at the Lincoln, NE facility.

Senin, 05 Desember 2011

US Labor Department, Colorado Department of Labor and Employment sign agreement to reduce misclassification of employees as independent contractors

Nancy J. Leppink, deputy administrator of the U.S. Department of Labor's Wage and Hour Division, and Ellen Golombek, executive director of the Colorado Department of Labor and Employment, signed a memorandum of understanding Dec. 5 regarding the improper classification of employees as independent contractors. Following the signing, Leppink and Golombek hosted a press teleconference during which they discussed how the U.S. Department of Labor and the Colorado Department of Labor and Employment will embark on new efforts, guided by this memorandum, to protect the rights of employees and level the playing field for responsible employers by reducing the practice conducted by some businesses of misclassifying employees. This partnership is the 11th of its kind for the U.S. Department of Labor.
"This memorandum of understanding helps us send a message: We're standing united to end the practice of misclassifying employees," said Leppink. "This is an important step toward making sure that the American dream is still available for employees and responsible employers alike."
"Misclassification costs everyone," said Golombek. "It destabilizes the business climate by creating an unlevel playing field and causing responsible businesses to suffer unfair competition. The efforts we will be launching with the U.S. Department of Labor will promote accountability that Colorado employers and employees will welcome."
Employee misclassification is a growing problem. In 2010, the Wage and Hour Division collected nearly $4 million in back wages for minimum wage and overtime violations under the Fair Labor Standards Act that resulted from employees being misclassified as independent contractors or otherwise not treated as employees.
Business models that attempt to change, obscure or eliminate the employment relationship are not inherently illegal, unless they are used to evade compliance with federal labor law. The misclassification of employees as something else, such as independent contractors, presents a serious problem, as these employees often are denied access to critical benefits and protections — such as family and medical leave, overtime compensation, minimum wage pay and Unemployment Insurance — to which they are entitled. In addition, misclassification can create economic pressure for law-abiding business owners, who often find it difficult to compete with those who are skirting the law.Employee misclassification also generates substantial losses for state Unemployment Insurance and workers' compensation funds.
Memorandums of understanding with state government agencies arose as part of the U.S. Department of Labor's Misclassification Initiative, which was launched under the auspices of Vice President Biden's Middle Class Task Force with the goal of preventing, detecting and remedying employee misclassification. Connecticut, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, Missouri, Montana, Utah and Washington have signed similar agreements. More information is available on the U.S. Department of Labor's misclassification Web page at http://www.dol.gov/misclassification.

Workers Compensation on Drugs - Tenn Supreme Court Allows Fatal Case to Proceed

A major complaint of the failure of medicine is that sick people are sent to the pharmacy for pain relief without adequate evaluation instead of sent to the the physician's office for more costly medical treatment. The Tennessee Supreme Court has permitted a death claim to go forward against his employer where the employee died following an overdose of pain killers.

Click here to read Kilburn v Granite State (Tenn 2011)
".... the medical records show that on August 31, 2009, and November 2, 2009, Dr. Schwarz, the surgeon, found that Mr. Kilburn was plagued with lower extremity pain and lower back pain for which he recommended L4-S1 fusion surgery, but Employer denied treatment. " read more
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Rabu, 19 Oktober 2011

The Culture of Workers Compensation Needs to Change

Workers' Compensation has become a "scapegoat" for a failing American economy. As David J. DePaolo points out in his recent blog, industry has raised the banner of reform in an effort to save dollars rather than to save workers' and their lives.

The financial reports this week from the business rating agencies reflect a deepening crisis of the economic integrity of the entire workers' compensation system nationally. The financial downturn has resulted in an estimated 11% predicted falloff in the collection of premiums. Workers' Compensation should not be turned into a great Ponzi scheme where it cannot meet its obligations and collapses.

Meanwhile as the system fails to be funded, medical delivery expenses and pharmaceutical expenditures soar with the advent of  more individualized medical treatment protocols based on genetic targets as better science becomes available. Likewise, the withdrawal of medical treatment under the claim of saving dollars has de-railed the system even further. NCCI reports that workers' compensation is on drugs. Pain medical expenditures have soared as the program fails to provide treatment necessary to cure conditions. Workers have become expendable as cheap and unskilled labor is now plentiful  around the world.

Safety is considered an unnecessary expense as evidenced by the homebuilders, who decry OSHA safety regulations. Workers' compensation numbers have become a statistic, reporting the failure of safety in the workplace rather than a factor in protecting workers and saving lives.

The social movement, "Occupy Wall Street," mirrors the 99% who labored to build American. They are outraged.

The century old experiment of workers' compensation should not be a culture based upon dollars alone. Americans are creative and industrious. The country can have both, safe jobs and a robust economy. The workers' compensation system's culture must change if the century old  promised agreement between Labor and Industry is to survive.

Sabtu, 10 September 2011

What Congress Really Needs To Do To Solve the Asbestos Epidemic

The Republican House Majority is again putting on its old and tired dog and pony show to blame the victims of asbestos disease for their occupational illness that were in fact caused by employers and manufactures of asbestos products. The Industry is pulling out the old fraud card and soap box at a scheduled Congressional hearings next week.


Asbestos has been known to be a fatal carcinogen for decades. It is a cause of latent disease that may take decades to manifest after the initial exposure. Minimal exposure to asbestos may be fatal. Asbestos has been linked to asbestosis, and malignancies such as mesothelioma and lung cancer. There is no universal ban on the use of asbestos fiber in the US. Asbestos victims have been held hostage by Congress to give up more rights for compensation as the debate for imposition of a national ban on asbestos continues.


Decades of litigation, originating in US workers' compensation claims, and  liability claims, has revealed that employers and manufacturers concealed important information from employees who were exposed to deadly asbestos fiber. That malfeasance has resulted in benefits and awards to injured workers and their families through the US civil justice system and bankruptcy claim process.


Asbestos litigation has evolved in waves or surges of claims over the decades. It is very long term litigation. Sometimes amounting to  decades of processing after manifestation of the disease  process. Recently there has been an upswing in the number of bystanders and household contacts who suffer disease. This is caused by  yet another generation of workers, their family members and bystanders who have been exposed to asbestos fiber. Some has been the result of mere home demolition and rehabilitation. Ironically, many of the victims, first responders and innocent bystanders of  The September 11th Attack were exposed by the pulverization of asbestos containing building materials on the attack on the World Trade Center.


It is an unfortunate turn of events when the Republican dominated Congress points the finger at the innocent asbestos victims. The nation would be better served if the focus were on the real culprits, those who manufactured the epidemic of asbestos disease, and an effort made to increase research for a cure to asbestos related illness. It is hopefully time for Congress to help the victims get access to benefits, invest in medical research, and to impose a universal ban of asbestos in the nation.

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.

Kamis, 25 Agustus 2011

Census of Fatal Occupational Injuries Summary, 2010

A preliminary total of 4,547 fatal work injuries were recorded in the United States in 2010, about the same as the final count of 4,551 fatal work injuries in 2009, according to results from the Census of Fatal Occupational Injuries (CFOI) program conducted by the U.S. Bureau of Labor Statistics. The rate of fatal work injury for U.S. workers in 2010 was 3.5 per 100,000 full-time equivalent (FTE) workers, the same as the final rate for 2009. Over the last 3 years, increases in the published counts based on information received after the release of preliminary data have averaged 174 fatalities per year or about 3 percent of the revised totals. Final 2010 CFOI data will be released in Spring 2012. 

 Economic factors continue to play a role in the fatal work injury counts. Total hours worked were up slightly in 2010 in contrast to the declines recorded in both 2008 and 2009, but some historically high-risk industries continued to experience declines or slow growth in total hours worked. Key preliminary findings of the 2010 Census of Fatal Occupational Injuries: - The number of fatal work injuries among the self-employed declined by 6 percent to 999 fatalities, more than the decline in their hours worked. 

Rabu, 24 Agustus 2011

What to Do During an Earthquake

Workers' Compensation provides for benefits for workers who suffer injuries, physical and emotional, from natural disasters such as earthquakes, floods, storms. The recent earthquake in the northeast US highlights that workers become aware of what to do in case a hurricane strikes.

Stay as safe as possible during an earthquake. Be aware that some earthquakes are actually foreshocks and a larger earthquake might occur. Minimize your movements to a few steps to a nearby safe place and if you are indoors, stay there until the shaking has stopped and you are sure exiting is safe.
If indoors

DROP to the ground; take COVER by getting under a sturdy table or other piece of furniture; and HOLD ON until the shaking stops. If there isn’t a table or desk near you, cover your face and head with your arms and crouch in an inside corner of the building.

Stay away from glass, windows, outside doors and walls, and anything that could fall, such as lighting fixtures or furniture.

Stay in bed if you are there when the earthquake strikes. Hold on and protect your head with a pillow, unless you are under a heavy light fixture that could fall. In that case, move to the nearest safe place.

Use a doorway for shelter only if it is in close proximity to you and if you know it is a strongly supported, loadbearing doorway.

Stay inside until the shaking stops and it is safe to go outside. Research has shown that most injuries occur when people inside buildings attempt to move to a different location inside the building or try to leave.

Be aware that the electricity may go out or the sprinkler systems or fire alarms may turn on.

DO NOT use the elevators.

If outdoors

Stay there.

Move away from buildings, streetlights, and utility wires.

Once in the open, stay there until the shaking stops. The greatest danger exists directly outside buildings, at exits and alongside exterior walls. Many of the 120 fatalities from the 1933 Long Beach earthquake occurred when people ran outside of buildings only to be killed by falling debris from collapsing walls. Ground movement during an earthquake is seldom the direct cause of death or injury. Most earthquake-related casualties result from collapsing walls, flying glass, and falling objects.

If trapped under debris

Do not light a match.

Do not move about or kick up dust.

Cover your mouth with a handkerchief or clothing.

Tap on a pipe or wall so rescuers can locate you. Use a whistle if one is available. Shout only as a last resort. Shouting can cause you to inhale dangerous amounts of dust.

Following the earthquake, if you have suffered an injury, physical and emotional, seek medical attention and provide a report to your employer that you have been injured and seek workers' compensation benefits.

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.

Rabu, 17 Agustus 2011

Scientific Evidence: What Literature to Rely Upon

The admission of scientific evidence to support causal relationship is critical in workers' compensation cases. Generally, the courts have held that reliable evidence is necessary to support the scientific propositions asserted. Now a recent article challenges the validity of peer reviewed publications, especially in the wake of the flood of papers being published.

"The differences between the scientific and legal processes lead to misunderstandings on both sides, and this editorial reflects our recent frustrations over the way publications have been used. The differences have surfaced in the understanding of peer review but probably lie deeper."

Workers' Compensation hearing officials have become the gatekeepers to evaluate what is reliable evidence for admission. Their dual role of both gatekeeper and fact-finder complicates the even handiness of the judicial process further as the Daubert issues are adjudicated.

The dilatory process invoked to sort this material strains judicial economy, and creates yet another level of delay to what was envisioned as a summary and remedial process. This only further the highlights the need to review the entire workers' compensation system and determine if it can at all function as intended by its crafters a century ago.


Related articles

Jumat, 05 Agustus 2011

Bad Faith Claims Maybe Going to the Jury

The NJ Supreme is going to review the procedure to bring bad faith claims against employers and insurance companies in workers' compensation actions. The Court accepted for review a case holding that workers' compensation bad faith claims are within the exclusive jurisdiction of the workers' compensation hearing official.

The case involves an injured worker who filed a civil action against his employer's workers' compensation insurance company for failing to comply with the Division of Workers' Compensation Order that medical treatment should proceed. The employee alleged that the delay and denial of medical care caused harm. The lower court had rejected the case and dismissed it holding that the jurisdiction for bad faith is exclusively within the purview of the Division of Workers' Compensation. Stancil v. ACE USA, 418 N.J. Super. 79, 12 A. 3rd 223 (App. Div. 2011), ___A.3d___, 2011 WL 3342730 (NJ). Decided June 7, 2011.

In another decision, the NJ Supreme Court held that bad faith, in a negligence action,  was a contractual issue giving rise to a factual question that could only be decided by a jury.

"We conclude that a Rova Farms claim that an insurer in bad faith failed to settle a claim within the policy limits, thereby in fact exposing its insured to liability for any excess, represents a traditional contract claim that the insurer breached the implied covenant of good faith and fair dealing and to which the right to trial by jury attaches." Wood v. New Jersey Manufacturers Insurance Company, 21 A.3d 1131, 2011 WL 2314954 (NJ), Decided June 14, 2011.

The Stancil
case highlights one of the most serious and costly issues in Workers' Compensation, both in NJ and the nation, the adequate and efficient delivery of medical care. While the courts are struggling with this issue that is compounded by arguments over reimbursement  and treatment paths, the compensation system continues to be bogged down and unresponsive to the urgency of the need to delivery medical care to injured workers.

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.