Sabtu, 07 Mei 2011

Largest Verdict in US Asbestos History $322 Million Awarded by a Jury

A Mississippi jury has awarded a worker injured by asbestos $322 Million last week. This is the largest single asbestos award in the history.

The worker filed claims against Chevron Phillips Chemical (CP Chem and Carbide Corporation. He was employed in the oil fields in 1979 (at age 16) and mid 1980's and exposed to asbestos fiber. The worker was diagnosed with asbestosis, a progressive lung disease, caused by the exposure to asbestos fiber. 


Asbestos, for decades, has been linked to asbestosis, lung cancer and mesothelioma. Mesothelioma remains an incurable and fatal disease. Asbestos is one of the modern world’s most historic occupational medical disasters. Not only is it well documented, it continues not to be banned in the US.

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 asbestos related disease.


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Worker Alleging Workers Compensation Discrimination Awarded $361,000

A worker in Minnesota was awarded $361,000 against his employer for being discriminated against for filing a workers' compensation claim. The worker alleged that the employer terminated him after he suffered a work related accident and filed a claim for workers' compensation benefits.

The worker was injured on the job when a car lost control and struck the truck that the worker was driving. The employer alleged that the employee did not disclose previous injuries on his job application and terminated him. A jury subsequently awarded the injured employee $111,000 in dames for lost wages and emotional distress and another $250,000 for punitive damages.

In New Jersey a discrimination complaint may be filed with the Division of Workers' Compensation as an administrative remedy, which is separate from any common law action which might be instituted against the employer. The Division of Workers' Compensation shall conduct an investigation and forward the complaint and the results of the investigation to the Commissioner of the Department of Labor within 30 days of filing. The Commissioner will then act in accordance with the statutory provisions to determine whether or not there has been an unlawful discharge of, or discrimination against, the employee as a result of an application for workers' compensation benefits or as a result of the employee's testimony in a workers' compensation claim. An employee who has been discriminated against will be restored to his employment and will be compensated by his employer for any loss of wages arising out of the discrimination, as long as he is still qualified to perform his job duties.

Jumat, 06 Mei 2011

Do We Need Another Teddy Roosevelt?



Leonard T. Jernigan, Esq.
Guest Blog by Leonard T. Jernigan, Jr.  

On September 14, 1901 at 2:15 a.m. President William McKinley took his last breath and became the second President since Lincoln to die from an assassin’s bullet. To the horror of many New York politicians, Theodore Roosevelt, the former activist governor of New York who had been shuffled into the vice-presidency to keep him from further meddling in New York politics, became President. 


In Edmund Morris’ excellent book, Theodore Rex (2001, Random House, 555 pages), the grim reality of a worker’s plight at the turn of the century is disclosed through exhaustive research and a bird’s eye view of what was happening. In reviewing Standard Oil Company’s kickback contract with the Pennsylvania railroad (the railroad company got rebates from Standard Oil when transporting that company’s oil, but got “drawbacks” when they transported oil from other companies), Roosevelt began to see “a new and dark power” that shadowed every aspect of life in America. 

This new concept of “privilege in commerce” went against the grain of free enterprise and to some was un-American. As Standard Oil swallowed up smaller companies, John D. Rockefeller (who owned 90% of the oil-refining business in the United States) was unrepentant. In his view, interdependent industries needed less competition and “more cooperation.” 

Although President McKinley saw this development as merely an economic trend, ordinary Americans began to see the effects of this dark power. Morris stated it succinctly: “ . . . whatever corporate executives might say about increased efficiency and reduced waste, the historic inclination of Monopoly was to raise prices and lower wages.”

Although the Sherman Anti-trust Act had been passed in 1890, the United States Supreme Court decision of U.S. v. E. C. Knight Co., 156 U.S. 1 (1895) rendered the law ineffective. That decision held that a trust controlling 98% of the national sugar-refining business did not violate the anti-trust provisions of the law, since refining was not itself an interstate activity, and therefore such companies were exempt from regulation. 

Andrew Carnegie created U.S. Steel when he merged his company with nine others, and J. Paul Morgan controlled several banks, Western Union, the Pullman Car Company, Aetna Life Insurance, General Electric and 2-1 railroad companies. Businessmen like to operate in private, and believe that combinations were best put together quietly. 

In reviewing these developments, Roosevelt asserted that the nation had to respond to these new conditions and he argued that the United States “ . . . has got to possess the right of supervision and control and regards the great corporations which are its creatures.” J. P. Morgan’s response was simple: “I owe the public nothing.” 

As corporate wealth grew, working conditions deteriorated, particularly in the coal fields of Pennsylvania, where men worked in the mines for ten hours a day, six days a week, and were lucky if they made $500.00 in a year. By age 40 or 45, most were disabled from black lung disease and were reduced to menial jobs like picking up slate with their grandchildren. Union membership had doubled over the past five years, and the United Mine Workers (UMW) had its first strike in 1900. Roosevelt realized that “ . . . Today’s contempt for the unskilled worker was tomorrow’s likely revolution,” and William Jennings Bryan, during his last run for the presidency in 1900, kept saying “The extremes of society are being driven further and further apart.” 

Roosevelt knew his history, and was aware of the vulnerability of the republics that had failed to preserve a social balance: [T]he death-knell of the republic had rung as soon as the active power became lodged in the hands of those who sought, not to do justice to all citizens, rich and poor alike, but to stand for one special class and for its interest as opposed to the interest of others. 

Roosevelt began to evaluate a course of action until he was able to consolidate his power and run on his own in 1904. Morris summarized it as follows: 

[H]ow, in the meantime, to care for those millions of Americans out there in the twilight? How to articulate their vague feelings that despite general peace and prosperity, something deep down was wrong with the United States? Here was his challenge as president: To put into speech, and political action, what they felt in their hearts, but could not express. In Roosevelt’s first message to Congress he acknowledged the abounding prosperity of the country and gave credit to the captains of industry who, on the whole, had done great good for the people. He then stated: 
"It is no limitation upon property rights or freedom of contract to require that when men receive from government the privilege of doing business under corporate form . . . they shall do so upon absolutely truthful representations. . . . Great corporations exist only because they are created and safeguarded by our institutions; and it is therefore our right and duty to see they work in harmony with these institutions. . . . The first essential in determining how to deal with the great industrial corporations is knowledge of the facts – publicity."
He also argued that the United States should conserve its natural resources, for the protection of future generations. He documented the irresponsibility with which Americans had abused water, mineral and forest resources, leading to the loss of more than half the nation’s original timber and other signs of exhaustion of natural resources. He argued that the Bureau of Forestry should be given total control over forest reserves, aired public lands should be reclamated, and interstate irrigation systems should be developed by the national government. “The doctrine of private ownership of water apart from land cannot prevail without causing enduring wrong.” 

Roosevelt began his trust busting by instructing his Attorney General, Philander Chase Knox (described by Roosevelt as “The best attorney general this government has ever had”), to file a lawsuit against the Northern Security Company for violating the Sherman Anti-Trust Law in creating a railroad monopoly in the Northwest that was, according to Knox, “infinite in scope, perpetual in character.” J. P. Morgan was one of the named defendants. The public was now aroused. 

On December 14, 1903, Knox masterfully argued before the United States Supreme Court that any obstruction to commerce should be removed by the government and that the Northern Security Company, as it currently existed, was uncontrollable by the individual states. On March 14, 1904, in a 5-4 decision, the court affirmed a lower court ruling that the Sherman Act had been violated. 

Roosevelt’s popularity soared as he approached the upcoming election in November, and millionaires “stood in line” to make contributions for his campaign as soon as they realized he would be easily elected. He had been born to wealth and sincerely believed it must be repaid with public service, not money-seeking power. He became increasingly repulsed by men who abused the privilege of wealth: “It tired me to talk to rich men. You expect a man of millions, the head of a great industry, to be a man worth hearing; but as a rule they don’t know anything outside their own businesses.” 

In 1905-1906 he began looking at employer liability. He called for a comprehensive Congressional study of the subject, sought an investigation into child-labor abuses, wanted legislation to maintain sanitary standards in the food industry, and advocated governmental supervision of insurance corporations. Eventually he enacted three new laws in these areas: (1) a re-enacted Federal Employers’ Liability Act, (2) the Workmans Compensation Act for federal employees, and (3) the Child Labor Act for the District of Columbia. 

Roosevelt was a voracious reader, a student of history, culture and science. His moral compass was secure and he held strong convictions about a “square-deal” for all parties. He knew how to lead the nation, in both politics and rhetoric. 

He left us with the well-known mantra, “Speak softly but carry a big stick,” which was a West African proverb. On one occasion he explained in a speech: If a man continually blusters, if he lacks civility, a big stick will not save him from trouble; but neither will speaking softly avail, if back of the softness there does not lie strength, power. 

Theodore Rex helps us to remember the lessons of the past and should be required reading for all those who seek an understanding of workplace safety issues and the dynamics between corporate wealth, labor and politics.

Leonard T. Jernigan, Jr. practices in Raleigh, North Carolina (The Jernigan Law Firm). Mr. Jernigan is the author of North Carolina Practice, Workers Compensation Law and Practice 4th ed. He has been recognized by Best Lawyers in Americaand Super Lawyers. Leonard T. Jernigan, Jr. is an Adjunct Professor of Workers Compensation Law at North Central University School of Law. He is one of only 48 workers' compensation attorneys in the United States authorized by the National Football League Players Association (NFLPA) to represent its members. He is also authorized to represent players in the National Hockey League (NHL) and the Professional Hockey Players Association (PHPA) as well as other professional athletes.

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Bilateral Carpal Tunnel Results in Workers' Compensation Total Disability

A NJ Court of Appeals has affirmed a decision awarding total disability workers' compensation benefits to an injured worker who suffers from bilateral carpal tunnel injuries. The 61 year old punch press operator was deemed unable to work as a result of the repetitive motion injury.

The trial court, on remand, found that that the injured worker was unemployable taking into consideration this injuries, and personal factors under the Odd Lot Doctrine, a law law that was adopted from the British common law. Additionally, the trial court , in accordance with NJ State statues, deemed that the loss of use of two major (hands) members, made the worker totally disabled.

The Appellate Division approved the award which also include additional fee to be assessed against the employer. The injured worker is eligible to receive benefits for the his entire life.

Rambough v. C.V. Hill Refrigeration, 2011 WL 1675195 (N.J.Super. A.D.) Decided May 5, 2011.

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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Ignoring The Doctor Orders is OK in Workers' Compensation

An employee who decided to ignore his doctor's orders and continue to do welding work was permitted to receive workers' compensation benefits. The Court held that the employee's action in disregarding his physician did not constitute a wilful self-exposure.


The Court reasoned..."Here, Worker possessed knowledge of his special sensitivity to fumes and received generalized warnings regarding the dangers of continued employment as a welder. There is no evidence he was ever definitively advised to end his career as a welder prior to October 2002, and it is similarly clear that he had sometimes worked as a welder without the occurrence of a fume exposure or a flare-up of his lung condition. Worker's choice in continuing to weld therefore does not present the type of situation in which he wilfully faced almost certain injury. His actions, though they may fall below a standard of ordinary care, are at most negligent."


Pearson v. Johnson Controls, Northern N.M., LLC __P3d___ (N.M. App. Div. 2011 ) 2001 WL 1660631



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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Kamis, 05 Mei 2011

New Facebook Address for Injured Workers Law and Advocacy Group

Keeping up with the times is important. Facebook has changed its group services and the Injured Workers Law and Advocacy Group is moving forward with them. Please make note of our new address and join us to keep updated on new developments, exchange information and observe and participate in discussions.


Click here to join us to our new address. http://tinyurl.com/4xzdbrh

Zadroga Health Fund Benefits Scheduled to Begin in October

Charles Schumer, United States Senator from Ne...Image via Wikipedia

Senator Charles Schumer has announced that Zadroga Health Fund benefits will be paid out to survivors of the September 11, 2001 attack on the World Trade Center, beginning in October. Schumer received this invitation from US Attorney General Eric Holder.The announcement comes on the eve of visit to New York City by President Barack Obama.

On January 2, 2010, President Barack Obama signed the James Zadroga 9/11 Health and Compensation Act establishing the World Trade Health Program and extends and expands eligibility for compensation under the September 11th Victim Compensation Fund of 2001.

It is probable that cancers resulting from the exposures will be covered under the legislation. Historically, occupational and environmental exposures to carcinogens, such as asbestos, may take many years to progress and manifest into conditions as asbestosis, mesothelioma and lung cancer.

Additionally, various respiratory and digestive diseases are being reported including:1. Interstitial lung diseases.
2. Chronic respiratory disorder--fumes/vapors.
3. Asthma.
4. Reactive airways dysfunction syndrome (RADS).
5. WTC-exacerbated chronic obstructive pulmonary disease (COPD).
6. Chronic cough syndrome.
7. Upper airway hyperreactivity.
8. Chronic rhinosinusitis.
9. Chronic nasopharyngitis.
10. Chronic laryngitis.
11. Gastroesophageal reflux disorder (GERD).

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 asbestos related disease. Please contact our office if you require assistance in filing a claim under the newly enacted James Zadroga 9/11 Health and Compensation Act.