Injured Workers Suffer As ‘Reforms’ Limit Workers’ Compensation Benefits

Today’s post comes from guest author Jon L Gelman, from Jon L Gelman LLC.

Dennis Whedbee, 52, lost half of his left arm in a drilling accident in North Dakota in September 2012. Several years later he's still fighting with North Dakota's insurance agency to get the help he needs.Dennis Whedbee, 52, lost half of his left arm in a drilling accident in North Dakota in September 2012. Several years later he’s still fighting with North Dakota’s insurance agency to get the help he needs.

Dennis Whedbee, 52, lost half of his left arm in a drilling accident in North Dakota in September 2012. Several years later he’s still fighting with North Dakota’s insurance agency to get the help he needs. Jeff Swensen for ProPublica hide caption

itoggle caption Jeff Swensen for ProPublica

Dennis Whedbee, 52, lost half of his left arm in a drilling accident in North Dakota in September 2012. Several years later he's still fighting with North Dakota's insurance agency to get the help he needs.
Dennis Whedbee, 52, lost half of his left arm in a drilling accident in North Dakota in September 2012. Several years later he’s still fighting with North Dakota’s insurance agency to get the help he needs.

Jeff Swensen for ProPublica

Dennis Whedbee’s crew was rushing to prepare an oil well for pumping on the Sweet Grass Woman lease site, a speck of dusty plains rich with crude in Mandaree, N.D.

It was getting late that September afternoon in 2012. Whedbee, a 50-year-old derrick hand, was helping another worker remove a pipe fitting on top of the well when it suddenly blew.

Oil and sludge pressurized at more than 700 pounds per square inch tore into Whedbee’s body, ripping his left arm off just below the elbow. Co-workers jury-rigged a tourniquet from a sweatshirt and a ratchet strap to stanch his bleeding and got his wife on the phone.

"Babe," he said, "tell everyone I love them."

It was exactly the sort of accident that workers’ compensation was designed…

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Nurse Who Contracted Ebola in the U.S. Sues Her Hospital Employer

Today’s post comes from guest author Jon L Gelman, from Jon L Gelman LLC.

The nurse who was the first person to contract Ebola in the United States filed suit on Monday against the Dallas hospital where she worked, saying it knowingly left workers without the training or equipment needed to handle the disease.

The nurse, Nina Pham, 26, was one of two at Texas Health Presbyterian Hospital who were infected while treating Thomas Eric Duncan, who had the virus when he arrived from the West African country of Liberia.

Ms. Pham’s suit, filed in State District Court in Dallas, accuses the hospital’s parent company, Texas Health Resources, of negligence, fraud and invasion of privacy. Not only did the hospital expose her to a deadly disease, she contends, it also made false statements about her condition and released video of her without her permission.

A Texas Health spokesman, Wendell Watson, said Ms. Pham was “still a member of our team,” and declined to address the specific claims. He added, “We remain optimistic that we can resolve this matter.”

Ms. Pham has been free of Ebola for months, but she has lingering medical and emotional problems, and the long-term consequences remain unclear, said her lawyer, Charla Aldous.

“She still has fatigue and body aches,” and has not been able to return to work, Ms. Aldous said. “She’s been having some liver problems. Her hair started falling out.”

Mr. Duncan went to the hospital’s emergency room on Sept. 25 with fever, nausea and

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Can I Get Workers’ Comp Benefits For My Loss of Sense of Taste and Smell?

What is your sense of smell and sense of taste worth to you? These senses are truly priceless. In a medical malpractice case, the plaintiff – a chef – was awarded $1.5 million in damages when he lost his sense of taste following a tonsillectomy when the surgeon failed to disclose that this was a risk.

 

Unfortunately, sometimes an injured worker may suffer a head injury or other type of injury that causes him or her to lose his/her sense of smell and/or taste. While no amount of money will ever make a person whole after losing one of their senses, North Carolina workers’ compensation law allows for an injured worker to be awarded some compensation for the loss of sense of smell and taste if the loss was a result of compensable workplace injury. Under North Carolina General Statute § 97-31(24), the “loss or permanent injury to any important organ or part of the body for which no compensation is payable under any other subdivision of this section. . .”. The maximum award for the loss of both senses (combined) is capped at $20,000 in North Carolina.

 

North Carolina law treats the “loss of sense of taste and smell” as the loss of an important internal organ.” See Cloutier v. State, 57 N.C. App. 239, 291 S.E.2d 362 (1982).  In 1997, the North Carolina Court of Appeals (Bess v. Tyson Foods, Inc., 125 N.C. App. 698, 482 S.E.2d 26 (1997) held that the injured worker was entitled to compensation for permanent damage to the olfactory organ but not for compensation for two separate compensable injuries. As a result, in North Carolina the most a plaintiff can receive for losing his or her sense of taste and smell is $20,000.

 

Based on a brief look at other states, it appears that many states do not compensate injured workers for their loss of sense of taste or smell at all. When compensation is allowed, the states have compensation caps less than North Carolina’s cap.  For example, Connecticut allows 17 weeks (max) compensation for loss of sense of taste, and 17 weeks (max) for loss of sense of smell. Minnesota allows a 1% disability rating for total loss of taste and 1% rating for total loss of sense of smell. Washington caps the total body impairment for the loss of taste and smell at 3% (or a max award of $5,977.41). Finally, Wisconsin has a cap of 2.5% for permanent total disability for losses of taste and smell. 

How to File a Safety and Health Complaint

Today’s post comes from the US Dept. of Labor.

The Occupational Safety and Health Act of 1970 gives employees and their representatives the right to file a complaint and request an OSHA inspection of their workplace if they believe there is a serious hazard or their employer is not following OSHA standards. Workers do not have to know whether a specific OSHA standard has been violated in order to file a complaint.

Complaints from workers or their representatives are taken seriously by OSHA. OSHA will keep your information confidential.

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Let OSHA Do Its Job

OSHA is being prevented from fulfilling its mission.

Today’s post comes from guest author Paul McAndrew, from the Paul McAndrew Law Firm.

In 1970, Congress passed the Occupational Safety & Health Act (the Act), which created the Occupational Safety & Health Administration (OSHA). Among other things, the Act requires every employer to provide a safe workplace. To help employers reach this goal, OSHA promulgated hundreds of rules in the decade after it was created. OSHA’s rulemaking process has, however, slowed to a trickle since then.  

While the National Institute for Occupational Safety & Health recently identified over 600 toxic chemicals to which workers are exposed, in the last 16 years OSHA has added only two toxic chemicals to its list of regulated chemicals. This is because Congress, Presidents and the courts have hamstrung OSHA. For example, in March 2001 the Bush Administration and a Republican Congress effectively abolished OSHA’s ergonomics rule, a rule the agency had worked on for many years. 

These delays and inactions have caused more than 100,000 avoidable workplace injuries and illnesses.

These delays and inactions have caused more than 100,000 avoidable workplace injuries and illnesses. Workers are being injured and killed by known hazardous circumstances and OSHA can’t act.

Congress and the President need to break this logjam – we need to free OSHA to do its job of safeguarding workers.

Steel company fined $115,400 by US Labor Department’s OSHA for failing to abate workplace hazards

Today’s post comes from guest author Jon Gelman, from Jon L Gelman LLC.

The U.S. Department of Labor’s Occupational Safety and Health Administration has cited Jersey Shore Steel for four violations, including three failure-to-abate citations, at its Jackson facility. Proposed penalties total $115,400 after OSHA’s follow-up inspection opened in April.

“By not abating past violations, Jersey Shore Steel keeps its employees vulnerable to hazards that can cause injuries and, possibly, death,” said Paula Dixon-Roderick, director of OSHA’s Marlton Area Office. “It’s vital to correct all hazards immediately to protect workers at the facility.”

The failure-to-abate notices, which carry $111,000 in penalties, relate to the company’s failure to develop and implement a written lockout/tagout program that prevents inadvertent machine start-up; require fork truck operators to have their performance evaluated at least once every three years; and train workers to use portable fire extinguishers. A failure-to-abate notice applies to a condition, hazard or practice, found upon reinspection, that the employer was originally cited for and failed to correct.

The company was also cited for one repeat violation, with a $4,400 penalty, due to the lack of machine guarding on a press brake. 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. A similar violation was cited in November 2012.

The citations can be viewed at: http://www.osha.gov/ooc/citations/jersey_shore_steel_insp_900106_sept30.pdf*.

Jersey Shore Steel has requested an informal conference with the OSHA area director in Marlton.

FLSA – Minimum Wage & Overtime

The Fair Labor Standards Act (FLSA) establishes minimum wage, overtime pay, and youth employment standards. The FLSA establishes a federal minimum wage of $7.25 per hour and requires overtime pay at a rate not less than 1.5 times the regular rate of pay after 40 hours of work in a workweek for covered nonexempt workers. Many states also have minimum wage laws and where a worker is subject to both federal and state minimum wage laws, the employee is entitled to the higher minimum wage.

Bona fide administrative, executive, professional, and outside sales employees are exempted from minimum wage and overtime pay under Section 13(a)(1) of the FLSA. However, a job title does not exempt an employee from those provisions. Instead employees must meet certain tests regarding their job duties and receive a salary of at least $455 per week ($23,600 per year). President Obama drew attention to the low salary standard in a 2014 Presidential Memorandum directing the Department of Labor to update the minimum wage and overtime standards. Effective December 1, 2016, the standard salary level will increase to $913 per week and will automatically update every three years to reflect economic changes.

Many employees are often unaware of minimum wage and overtime pay laws until it is too late. Generally, under the FLSA an employee cannot recover back pay more than two years after it is due to him. However, if the employer willfully violates the FLSA, an employee has three years to assert his claim. To file a complaint under the FLSA, contact the U.S. Department of Labor’s Wage and Hour Division.

North Carolina Labor Commissioner Race

North Carolina needs a Commissioner of Labor who is fair to workers. Certainly cooperation between employers and employees is key. However, when thousands of workers are not being paid their duly-earned wages, we have a problem.

 

In 2014, the News & Observer published an article entitled “For Many Workers Cheated out of Wages, NC Department of Labor Offers No Help.” The article stated that “[f]or at least 2,011 workers, more than half of the 3,694 who asked for help in the past fiscal year, the agency took no action. Employers didn’t get fined. No one was charged with a crime for not compensating the workers’ time and labor.” When Berry ran for office in 2000, her campaign platform centered on how “[g]overnment should tread lightly in the lives of people and business . . . [w]hen her agency must get involved, Berry favored working in consultation with businesses rather than confronting them.” (see N&O article from 2014, and from 2015 “At NC Department of Labor, Little Help for Unpaid Workers”).

 

Fast-forward to 2016. Cherie Berry is now being criticized for accepting “improper contributions” from corporate executives who have cases pending before her agency. Berry accepted $20,000 from at least four companies which were recently being investigated by the Labor Department. In particular, one donor, Ronald Cameron, is chairman and CEO of Montaire Farms which investigated for a workplace fatality. Berry responded to the criticism by saying that “everyone gets treated the same.”

 

Former Raleigh mayor, Charles Meeker, is running against Berry for Labor Commissioner. Meeker’s campaign focuses on improving worker safety, accurate classification of workers, and making sure that workers are paid what they are owed. Meeker also would like to remove Berry’s photo from all elevators and, in its place, put up photos of working people. Both candidates deserve serious consideration. I encourage you to evaluate them and be sure to vote for the candidate of your choice.