Rabu, 04 Mei 2011

OSHA Announces Photo Contest


What's Your Image of Workplace Safety and Health?

In celebration of our 40th anniversary, OSHA announces the Picture It!: Safe Workplaces for Everyone photo contest. The contest challenges anyone with a passion for photography to capture an image of workplace safety and health and share it with OSHA. The goal of the contest is to kick off a national collaboration that relies on your talent, imagination and creativity to raise awareness of workplace safety and health. You can interpret "image of workplace safety and health" in any way you choose; you are not restricted to particular subjects or themes.

Judging Criteria

Prizes will be awarded for the most outstanding portrayals of occupational safety and health in terms of artistic value and ability to raise awareness of safety and health to the general public. Specifically, photographs will be judged against the following criteria:
  • Quality of photograph
  • Suitability for possible use in OSHA publications
  • Clarity of the safety and health information (or "message") conveyed
  • Originality
  • Creativity
  • Inclusion of worker, employer, or workplace imagery
The open submission period for the OSHA Picture It! Safe Workplaces for Everyone photo contest will run from May 2, 2011, until 11:59 p.m. Friday, August 12, 2011.


Jack McConnell Confirmed by U.S. Senate as US District Court Judge


We are proud to announce that our national asbestos co-counsel, John J. McConnell, Jr., has been confirmed by the U.S. Senate Judiciary Committee following his nomination by President Obama to serve on the federal bench in Rhode Island. If selected, he will replace retiring U.S. District Judge Ernest C. Torres in the U.S. District Court for the District of Rhode Island.  

For over a quarter of a century, Jack has worked with our office in handling many cases, including asbestos litigation matters. His legal brilliance and insight as a trial attorney resulted in a verdict of $5.8 Million in a Federal court trial against Keene Corp., an asbestos producer. It was the largest single damage verdict in the US at the time. His superior negotiation ability coupled with his endless compassion for the victims of asbestos related illnesses, and their families, has resulted in the favorable resolution of hundreds of claims.

Read more about Jack McConnell’s experience and his long history of community involvement and commitment to the pursuit of justice.

Fallen Asbestos Workers Honored at a Memorial Mass

The Trentonian (Trenton, NJ) reports on a memorial mass held at Saint Joachim Church honoring union members who died from asbestos related illnesses as a result of their occupational exposure to asbestos fiber. This was the 8th Annual Memorial Mass held by Insulators Local No. 89.

Fred Dumont, Business Manager of the union said, "The harmful effects of asbestos insulation were hidden by manufacturers and distributors, because they were making such enormous profits...."

Asbestos exposure is causally related to asbestosis, as well as lung cancer, and a rare but fatal carcinoma, mesothelioma.



Related articles

Totally disabled 74 year old denied permanent total benefits


In a recent ICAP case the claimant Lane was 74 years old and admittedly totally disabled. However he was denied permanent total disability benefits after a hearing and this was affirmed by ICAP. The claimant was injured in September 2008 and eventually received an impairment of 13% of an upper extremity which equaled a 8% whole person rating. There was some dispute on his restrictions but both vocational experts provided credible opinions the man was not likely employable. The claimant did have multiple non-work related conditions such as hip pain, hearing loss, balance problems and an abdominal aortic aneurysm. So what happened? The ALJ determined the claimant had failed to show that the industrial injury was a significant causative factor in his inability to earn wages. In the case there was evidence presented that the claimant had no restrictions from his work injury and also evidence he had restrictions. The claimant was working for the employer after maximum medical improvement (MMI see glossary) but was let go for an alleged failure to do something and this was given weight by the hearing judge. So being no longer employable at the conclusion of a workers compensation case does not mean permanent total benefits are awarded. The key is whether the work injury is a significant causative factor. In this case the medical evidence of post injury restrictions was not present so claimants should always focus on obtaining medical restrictions and establishing the work injury was a significant factor in being unemployable. Often with older workers they do have many health problems and actually those problems plus a significant work injury can make for a good case of permanent total disability but it is not an automatic award as the Lane case points out.

Selasa, 03 Mei 2011

Texas Disallows Work Comp Retaliation Suits Against State Based on Sovereign Immunity

Guest Blog by Jon Rehm 

The Texas Supreme Court ruled that that sovereign immunity protects public employers against suits for retaliating against employees who file workers compensation cases. This is an unfortunate decision, but not a surprising decision based on the hostility directed towards public employees in today’s political climate. Legally the Texas case was supported by a broad view of sovereign immunity that covered operational aspects of government in addition to its policy making role. Advocates for injured workers should be aware that employers and insurers will attempt to have other states adopt Texas’ approach to workers compensation retaliation suits against public employers. 

Though Texas has restricted the ability of public employees to bring workers comp retaliation suits, the majority of states have a cause for action for retaliation for filing for workers’ compensation claims by statute or case law. This cause of action prevents employers from taking the following stand with their injured workers: 

“Although you have no right to a tort action, you have a right to a workmen's compensation claim which, while it may mean less money, is a sure thing. However, if you exercise that right, we will fire you.”Leach v. Lauhoff Grain Co., 51 Ill.App.3d 1022, 366 N.E.2d 1145, 9 Ill.Dec. 634 (1977). 

So how does one know that an employer is retaliating against an injured worker for filing a workers compensation claim? One you have to file for a workers compensation claim. This is usually a given in these cases. However in Kasten v. Saint-Gobain Performance Plastics Corp., the Supreme Court recently held that an oral notice of a wage and hour claim to the employer qualified as a filing a claim for the purpose of an FLSA retaliation claim. 

Then the employer has to retaliate against the employee. Again this is a given if the employee has been fired, but can mean any adverse employment action taken against the employee. However while “less flagrant reprisals by employers may indeed be adverse ... not every unpleasant matter short of discharge or demotion creates a cause of action for retaliatory discharge.” Richardson v. New York State Dep't of Correctional Serv., 180 F.3d 426, 446 (2d Cir.1999) Attorneys need to check the law in their jurisdiction to see how far courts in their particular jurisdiction have stretched retaliation. 

The heart of a workers compensation retaliation case is linking the retaliation to the filing of the workers compensation claim. This is usually done by circumstantial evidence because employers rarely announce retaliation as a motive. Among the factors showing retaliation: 

(1) knowledge of the compensation claim by those making the decision on termination; (2) expression of a negative attitude toward the employee's injured condition; (3) failure to adhere to established company policies; (4) discriminatory treatment in comparison to similarly situated employees; and (5) evidence that the stated reason for the discharge was false. Continental Coffee Products v. Cazarez, 937 S.W.2d 444, 451 (Tex. 1996). 

In addition proximity in time between filing and retaliation and satisfactory job performance are circumstantial evidence of motivation. Riesen v. Irwin Indus. Tool Co., 272 Neb. 41, 717 N.W.2d 907 (Neb. 2006) 

Notice of the workers compensation injury by the employer is usually the easiest element to prove. Though you probably won’t get an employees boss to admit he or she made negative comments about employees injured condition, your client’s testimony that there were negative comments about their injured condition are sufficient for the purposes of defending a summary judgment motion. 

Proving a company failed to adhere to their own policies usually means that counsel for the employee needs to obtain and familiarize him or herself with the defendant’s employee handbook if one exists. Failure to follow their own procedure can also be evidence that an employer’s reason for firing your client was false. 

Proving discriminatory treatment in comparison to other employers requires fact-specific discovery. In the Riesen case, the employee was fired because he falsified his employment application by not listing all of his previous employers. His employment application only listed room for three employers but asked employees to attach another sheet for more employers. Plaintiff only listed three employers on his application, but listed more on his answers to interrogatories which HR manager for the defendant had read. Plaintiff surmounted this hurdle by showing that almost all the employees at the plant did not attach additional sheets for other employers. Plaintiff also showed that plaintiff was only employee terminated for not listing all of his employers in his employment application. 

Proximity in time between filing and retaliation is another element of cause. Just because an employee was fired many months after they initially filed for comp doesn’t defeat proximity. You can still tie retaliation to proximity if you can tie the retaliation to action like hiring a lawyer or having an expensive surgery. 

Satisfactory job performance can also prove retaliation. If a client had good performance reviews and an absence of discipline prior to the work injury, but starts receiving write-ups and poor reviews after the work injury then you have evidence of retaliation. 

In addition to proving a link between the retaliation and the workers comp claim, plaintiffs usually need to prove the defendant’s stated reason for discharge was false. If the plaintiff offers evidence of the elements listed above then they can usually make the case that the reason for retaliation was pre-textual. 

Hopefully this article has given some guidance for how workers compensation practitioners can prosecute retaliatory discharge cases. With aggressive lawyering and creative thinking, workers compensation practitioners can get good results for their clients and discourage employers from interfering with injured workers rights to receive workers compensation benefits in their jurisdictions.

Jon Rehm practices in Lincoln, Nebraska (Rehm, Bennett & Moore, PC, LLO). He concentrates his practice on representing injured workers and their families. He hold a  degree in journalism from Northwestern University(B.S.) and a law degree from Nebraska College of Law(J.D.).  Jon is a member of the Nebraska State Bar Association, the Nebraska Association of Trial Attorneys and the Workplace Injury Law Advocacy Group.

Senin, 02 Mei 2011

Inconsistent Enforcement of State Wage and Hour Laws Could Lead to "Regulatory Race to The Bottom, " New Study Finds

The National State Attorneys General Program at Columbia Law School has issued a report on state wage and hour law enforcement, analyzing survey responses from 37 states and the District of Columbia. Workers' compensation benefits are usually determined by the amount of wages paid to the injured worker at the tie of the accident. Low wage reduce the amount of workers' compensation benefits to be paid.

The study is the first of its breadth and depth to be conducted on a national scale, and includes an objective analysis of wage and hour enforcement on the state level, measuring the methods and extent of enforcement, and the ability of states to track and share data on wage and hour enforcement. It is based on data available in the fall of 2010.

As the report notes, while 45 states have minimum wage laws, the mere existence of such laws does not mean they are followed. “Without meaningful enforcement by state regulators, some employers will simply disregard their legal obligations if doing so allows them to save time, money or effort, putting the majority who wish to abide by the law at a significant competitive disadvantage,” the report warns. “This creates a regulatory race to the bottom by states as they seek to compete to attract businesses.”

Among the study’s key findings:
·        Most states surveyed saw a significant increase in the number of low-wage workers in 2009. That increase was often matched by corresponding cuts or freezes in resources devoted to wage and hour enforcement. Alleged violations over pay for low-wage workers generate the most wage and hour complaints.
·        The degree and scope of wage and hour enforcement varies widely among the states. Some state labor departments have more comprehensive mandates, which include oversight of child labor, worker training, and employment discrimination, while Alabama, Georgia, Louisiana, Mississippi and Florida have no state agency that enforces wage and hour standards. In these states, complaints are referred to the federal government or private attorneys.
·        The most common way that states identify potential wage and hour violations is via individual complaints by employees. Of the few states that engage in more proactive enforcement, their primary focus was violations of prevailing wage laws—which establish wages for public works projects—and employee misclassification laws—which aim to prevent employers from evading wage and hour and other labor laws.
·        The number of complaints trailed off as the recession began in 2008, which the study suggests could be linked to employees being more hesitant to challenge employers in the midst of harsh economic conditions. Wisconsin noted specifically that it had experienced lower complaint totals during prior economic slowdowns.

The study was conducted by attorneys Jacob Meyer ’09 and Robert Greenleaf, under the direction of James Tierney, director of the National State Attorneys General Program. Funding for the study came from the United Brotherhood of Carpenters, International Brotherhood of Electrical Workers and other unions, as well as employer groups such as the National Electrical Contractors Association.

The report does not issue any recommendations other than to call for more research by states and other stakeholders about how to improve wage and hour enforcement, especially in the face of sharply curtailed state budgets.

“We realize the fiscal realities faced by the state, but this is one area that can’t be ignored,” said Tierney, who served as Maine’s attorney general from 1980-1990. "But without sufficient enforcement, families, law abiding businesses and the communities where they live in will be hurt. That would only be a further drag on the economy. We hope that this report will stimulate discussion and result in increased state-by-state research on the effectiveness of state wage and hour enforcement."

The report can be found below:

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.

Atlantic Mutual Placed into Liquidation

The once viable workers' compensation insurance carrier has been placed into liquidation. An Order of Liquidation was filed to terminate Atlantic Mutual Insurance Company (AMIC) and Centennial Insurance Company on April 26, 2011.


The Court converted the rehabilitation proceeding into a liquidation action by the filing of the Order. The companies were previously the subject of a Rehabilitation Order that was entered on September 16, 2010. AMIC was found to be insolvent and efforts to rehabilitate the company were deemed futile.


Click here to view The Order of Liquidation. 
http://www.nylb.org/Documents/AMIC-L.pdf

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.