Occupational Skin Diseases

Occupational skin diseases are one of the most common occupational diseases. The National Institute for Occupational Safety and Health estimates that in the United States more than 13 million workers are potentially exposed to chemicals that can be absorbed through their skin. In 2015, the last year for which data is available, over 15% of the reported occupational diseases were skin diseases.

 

These diseases include, but are not limited to, contact dermatitis (eczema), allergic dermatitis, skin cancers, and infections. Contact dermatitis, which has symptoms of painful and itchy skin, blisters, redness, and swelling, is the most commonly reported occupational skin disease. Workers in food service, cosmetology, health care, agriculture, cleaning, painting, mechanics, and construction industries and sectors are at risk of developing these diseases.

 

This type of occupational disease is clearly preventable. To control and prevent exposure to chemicals that cause occupational skin diseases, OSHA recommends that employers switch to less toxic chemicals, redesign the work process to avoid the splashes or immersion, and have employees wear protective gloves and clothing.

The Safety Hazard Right Under Your Wheels

Today’s post comes from guest author Jon Rehm, from Rehm, Bennett & Moore.

The collapse of the Interstate Highway-35W bridge over the Mississippi River killed 13 people and highlighted the safety hazards related to poor infrastructure. But most drivers face a less dramatic, but no less dangerous, hazard:

Potholes.

According to www.pothole.info, nearly 1/3 of the 33,000 annual truck and auto fatalities are related to poor road conditions. At least 27 percent of the major roads in the United States have been rated to be in poor condition. Though potholes are regarded as a problem – with good reason – in cold-weather states like Nebraska and Iowa, the worst road conditions in the country are in the warm-weather areas like the Bay Area, southern California, and Tucson, Arizona.

Bumpy roads combined with poor suspension can even lead to back injuries. This is especially true for over-the-road-truck drivers who also face health problems from lack of sleep, lack of exercise, and poor diet due to the demands of trucking. Drivers for Crete Carrier Corporation, Shaffer Trucking, Werner and K&B Transportation usually must litigate their workers’ compensation claims in Nebraska. Fortunately, Nebraska would deem a back injury from driving over a pothole to be compensable, even if it were combined with a pre-existing condition. Other states have stricter causation standards that could preclude a driver from collecting benefits for such an injury.

Truckers who, according to one poll, supported President Donald Trump over Hillary Clinton 75 percent to 25 percent, may have some relief from rough road conditions coming. President Trump has announced that he plans to spend $1 trillion on infrastructure, and he has appointed a task force that includes high-level advisers and his influential son-in-law Jared Kushner. Some observers in the trucking industry have raised concerns that the Trump infrastructure plan could lead to more private and toll roads; however, everyone will get some benefit if road conditions improve within the United States.

Another forgotten piece of infrastructure is trucking parking, which I will address in an upcoming post.

MORE changes to Work Comp: Elimination of Court Reporters & Appeals Commission?

Budget Bill Proposes Eliminating Court Reporters

Today’s post comes from guest author Charlie Domer, from The Domer Law Firm.

Wisconsin’s Governor recently proposed significant changes to Wisconsin’s best-in-nation worker’s compensation system.  For the second budget cycle in a row, the Governor’s Budget Bill wants to drastically change the structure of worker’s compensation cases.  

The Budget Bill, revealed on February 8, 2017, proposes two main changes : (1) the elimination of court reporters in litigated worker’s compensation trials; and (2) the elimination of the independent body that reviews judge decisions.  

A base level concern exists, again, because these proposals were made outside the stabilizing force of the Wisconsin Worker’s Compensation Advisory Council.   As mentioned at length in this forum, the Advisory Council, with its balanced membership of labor and management representatives, has produced reasoned, incremental changes historically–creating a beneficial system for all stakeholders.  Hopefully the Advisory Council will weigh in on the potential effects of the unveiled Budget Bill proposals.

Each of the proposals significantly impact the state’s work comp system:

Elimination of Court Reporters:

The Budget proposes eliminating the use of statutorily-required stenographic court reporters in worker’s compensation trials.  The specific proposal is to eliminate necessary court reporters (who ensure decorum in the court room, properly manage exhibits, make sure parties do not talk over each other, and create an accurate and legitimate transcript) in exchange for some type of ill-defined audio recording equipment.

Employers and carriers in our state—facing six to seven figure exposures—will have concerns about facing such liability based on questionable audio technology.  Imagine if at a critical point in trial, a witness talks to softly or inaudibly, resulting in a blank area in the transcript.  No stakeholder wants this, and our live court reporters ensure that it does not.  

Also, the circuit court (and further appellate courts) want an accurate, undisputed transcript of the lower trial proceedings.   If the audio is poor, unclear or inaccurate, we may be forced to re-litigate the trial.  A redo will increase system costs.  Further, if court reporters are eliminated, the private parties will bear the costs by hiring their own court reporters.  We then may face disputes about the “real” transcript between the state’s audio recording (which will need to be transcribed for appeals) and the privately-hired court reporter transcript.  

Wisconsin is not alone in its use of court reporters in worker’s compensation trials, as an informal poll revealed the use of court reporters in IN, PA, CT, IA, NC, MT, NE, WY, SC, CA, MA, GA, KS, IL, LA, NY, WA…and the list goes on.

Near universal opposition exists to this unnecessary proposal to eliminate live court reporters.  The State Bar litigation section board voted unanimously to oppose this proposal.  Moreover, all of the three main groups of attorneys that represent clients in worker’s compensation proceedings oppose this proposal.   The Wisconsin Defense Counsel (defense attorneys), the Wisconsin Association of Justice (injured worker attorneys), and the Wisconsin Association of Workers’ Compensation Attorneys (bi-partisan group) jointly drafted a letter to the Governor voicing their opposition.    

All parties to litigation want a fair and accurate depiction of the trial proceedings, and court reporters help secure that justice.  This proposal faces stiff opposition.

Elimination of the Appeals Commission

Traditionally, the Labor and Industry Review Commission (LIRC) is an independent body of three political appointees that rule on worker’s compensation, unemployment, and equal rights appeals.  The cases are litigated in front of administrative law judges and then the appeal is to LIRC, who have a virtual de novo review.  The appeal from LIRC is direct to circuit court, which has a very deferential standard and will uphold the LIRC decision if there is any “credible and substantial evidence.”  Barring a legal issue, the circuit court upholds the factual and credibility findings of LIRC.  

LIRC has been in existence in some form since the inception of the worker’s compensation act in 1911.  LIRC actually serves to define much of the worker’s compensation case law—for over one hundred years.  When I look at our treatise, I’d guess 80% of the cited cases are LIRC cases.  Judges use the LIRC decisions in making determinations.

The current Budget proposal is the complete elimination of LIRC.  However, as opposed to a direct appeal from a judge determination to circuit court, the proposal is to substitute the Division Administrator for LIRC.  Thus, litigants would trial cases to the administrative law judge, with an appeal to the state Division of Hearings and Appeals Administrator (currently Brian Hayes) as the intermediate level of appeal.  Appeal from the Administrator’s decision would be to circuit court–with no apparent change in the standard of review by circuit court.

The upshot is to give much authority and discretion back to the actual administrative law judges–the ones who actually observed the witness and heard the evidence.  One of the statutory proposals indicates that the “findings of fact” by the judge “shall, in the absence of fraud, be conclusive.” That appears to give even less discretion to the Administrator’s ability to review judge decisions.

There is much ambiguity about the reasoning behind these proposals, as well as the potential impact.  I’ve already heard from a number of individuals that the proposal comes from issues within the unemployment insurance arena (and unemployment appeals fill up the majority of LIRC’s docket).  If true, worker’s compensation appeals are being swept up with the issues within unemployment.

However, if implemented, the practical effects are drastic.  Presumably, the Division Administrator would likely be more deferential to the sitting administrative law judges (i.e., approve more ALJ decisions) and probably produce a faster appeal turnaround time than the current LIRC process.   The catch is that it remains unknown how the Adminstrator would handle the influx of worker’s compensation appeals. Would there need to be additional staff?  (if so, budgetary costs need to be considered).  If no new staff, the simple time constraints lead to the likelihood of rubberstamping judge determinations.   

In the future though, the Administrator position changes.  Future appointees could have their own political proclivities that could impact the system.  Also, the proposal may have just eliminated 100 years of case law as guidance for future judicial determinations.  The budget is devoid of what happens to the precedential value of past LIRC decisions.  

Accordingly, further details really need to be revealed about the proposed plan before the stakeholders can weigh in.

One further item is known, based on the intersection of the two proposals.  If the system eliminates LIRC and provides more deference to the underlying judge determination, the value of court reporters increases exponentially.  If the judge factual determination is conclusive, a reviewing circuit court certainly wants an accurate, credible, and decipherable transript of those all-important findings.  

We will explore the further Budget process and these proposals as they progress…

For further information:

The full statutory text of the Budget Bill (2017 Assembly Bill 64/ 2017 Senate Bill 30) can be found here, with a summary found here.

Finding A Way Forward: How I Am Greeting The New Year With Optimism

Today’s post comes from guest author Catherine Stanton, from Pasternack Tilker Ziegler Walsh Stanton & Romano.

I recently saw a quote that said “we are all just a car crash, a diagnosis, an unexpected phone call, a newfound love, or a broken heart away from becoming a completely different person. How beautifully fragile are we that so many things can take but a moment to alter who we are for forever”.   

During this holiday season, many of us will get together with our families and friends to celebrate our blessings but never expect that in the blink of an eye our lives can change dramatically. A very good friend of mine was celebrating Thanksgiving with her family when a pot of boiling water fell onto her and she suffered severe burns. After spending nine days in the Burn Center and in weeks of excruciating pain, she is living proof that there are no guarantees in life.  

A recent report by Fox News USA shows that unintentional shootings spike during the holidays and are more likely to occur than at any other time of the year due to a number of factors, including increased use of alcohol, holiday gifts of firearms, and children and teens being home from school with more free time. Many of us now rely on online shopping for our holiday gifts, which increases the amount of delivery vehicles on the road. Car crashes spike, as the December holiday season is one of the busiest travel times of the years. Factor in weather that does not always cooperate, and impaired drivers on the road as a result of holiday gatherings, and it is a recipe for disaster. Those who drive for a living are at an increased risk of injury or even death. 

Those who work in the retail industry are not immune from increased risk of injury either. Many of us won’t forget the Black Friday stampede in 2008 when a worker was trampled to death in a Long Island Walmart. In response to that tragedy, the company was fined, they agreed to adopt new crowd management techniques, and  the Occupational Safety and Health Administration (OSHA) issued Crowd Management Safety Guidelines for retailers. The stress of the holidays can cause depression, less sleep, and financial woes that can translate into violence. OSHA notes that workplace violence has remained among the top four causes of occupational death. 

But the promise of tomorrow brings optimism. As we embark on a brand new year, many of us will feel a sense of relief as 2016 was a year filled with turmoil. The presidential election was polarizing for many Americans. Friends became enemies and family members would not speak to one other. Many of us will look to the new year with a sense of a new beginning – a chance to have a fresh start, a renewal of sorts. Many of us will make resolutions to lose weight, to end a bad habit, to become a better parent, spouse or friend. Many will donate to charities. Despite our differences and shortcomings, Americans are among the most charitable nation in the world. According to Giving USA’s annual report in 2015, Americans gave an estimated $358 billion to charity the prior year. There are so many things we can do to improve our lives and the lives of those in our community and our nation. The list of possibilities is endless. For those of us who represent injured workers, we resolve to make workplaces safer and ensure that medical and indemnity benefits are available in the future. Wishing you all Peace, Love, and Good Health in the upcoming year.

 

Catherine M. Stanton is a senior partner in the law firm of Pasternack Tilker Ziegler Walsh Stanton & Romano, LLP. She focuses on the area of Workers’ Compensation, having helped thousands of injured workers navigate a highly complex system and obtain all the benefits to which they were entitled. Ms. Stanton has been honored as a New York Super Lawyer, is the past president of the New York Workers’ Compensation Bar Association, the immediate past president of the Workers’ Injury Law and Advocacy  Group, and is an officer in several organizations dedicated to injured workers and their families. She can be reached at 800.692.3717.

NYTimes: 2 Years, 31 Dead Construction Workers. New York Can Do Better.

Today’s post comes from guest author Kit Case, from Causey Wright.

On Dec. 23, on the Upper East Side of New York City, yet another construction worker died. His name has not yet been released, but he was the 31st to die on the job in the city in the past two years. He was working on a nonunion work site, as were 28 of the 30 others. Fabian Para, who worked nearby, explained that “he was on the third floor, and he was wearing a harness but wasn’t hooked to a cable, and when he fell, he just went down.”

Just three weeks earlier, Wilfredo Enriques fell to his death at the old Domino Sugar Factory in Brooklyn. Deaths 27 and 28 occurred on Nov. 22, when a steel beam fell four stories at a Queens job site, crushing George Smith and Elizandro Enriquez Ramos. Mayor Bill de Blasio said that the workers’ deaths were a “tragedy” and that “we need to know, of course, right away whether it was mechanical, or was it human error? We don’t know yet.”

Actually, we do know; it is abundantly clear: We are in the midst of a public health epidemic brought on by inadequate safety regulations and public inattention. Construction-safety lapses happen because it pays for companies to run the risk of letting them happen. When the dead are largely foreign born and, in many cases, undocumented, no one much cares.

Spending in the construction industry is at a record high. And yet many contractors can’t be bothered to pay for training programs and safety measures, even those required by law, such as installing “fall protection” systems like nets and railings. The federal agency tasked with enforcing such safety protocols, the Occupational Safety and Health Administration, is severely understaffed. Between 2011 and 2014, the number of building permits issued in New York City jumped by more than 18 percent, but the number of OSHA inspectors for all of New York State dropped by more than 13 percent (as of 2014, there were only 71 left in the state).

Because there are so few inspectors, only a small fraction of construction sites are ever inspected. When sites are inspected, not surprisingly, OSHA finds a high level of violations. And even when sporadic inspections lead to fines for violations, the fines are too small to deter misconduct. According to records kept by the New York Committee for Occupational Safety and Health, a nonprofit group that lobbies for worker safety, of the city contractors that were inspected from 2009 to 2014, 73 percent had at least one “serious” OSHA violation, mostly of “fall protection” standards — precisely the violation responsible for the most deaths.

Predictably, the number of construction injuries and fatalities has soared. The Department of Buildings recorded a 250 percent increase in construction injuries from 2011 through 2015, with construction fatalities increasing each year as well.

Read the full story on NYTimes.com

Photo credit: pennstatenews via Foter.com / CC BY-NC

Repeal of ACA Would Undercut Doctor Choice in Workers’ Compensation Claims

Today’s post comes from guest author Jon Rehm, from Rehm, Bennett & Moore.

The repeal of the Affordable Care Act (President Barack Obama’s health care law) is a real possibility in the Trump administration. It will be difficult to know how a repeal would affect workers’ compensation without having an idea about what alternative plan, if any, would replace the Affordable Care Act. But it seems certain that if Americans lose health insurance, they will have less control over their own medical care if they are hurt at work.

In 2011, Vermont passed a single-payer health care plan. In a blog post I wrote for Jon Gelman’s blog, I observed that if all employees had their own doctors, it would be next to impossible for employers to route injured workers to occupational-medicine clinics. A blogger for Lynch Ryan made a similar observation. Doctor choice is critical, because some employers go so far as to unlawfully conspire with claims adjusters and doctors to undermine the value of an employee’s workers’ compensation claim. A single-payer system decouples health insurance from employment, which makes employers less influential in the system

The ACA is not a single-payer system, but millions of Americans gained health insurance through public Medicaid programs in states that chose to expand Medicaid after the Supreme Court struck down the mandated Medicaid expansion in 2012. This coverage was decoupled from employment. Insurance obtained through an exchange is also not tied to individual employers either. People who lacked health insurance tended to not have doctors, which meant that they had no choice but to see whomever their employer wanted them to for a work injury.

The workers most vulnerable to injury are often the workers least likely to have health insurance. Younger people are more likely not to have health insurance. As Milwaukee lawyer Charlie Domer pointed out in a blog post last fall, younger workers are more likely to get hurt on the job. New employees are often unable to enroll in company health insurance plans right away. Last fall, I wrote a post about how employees within the first few months of their employment are more likely to get hurt on the job.

A silver lining to the gray cloud of a prospective ACA repeal is that even if an employee loses health insurance, Nebraska workers’ compensation court Rules 49 and 50 still allow an injured worker to choose a doctor who treated them before – presumably when that worker had health insurance. Unfortunately, Nebraska did not expand Medicaid, so there would be a smaller proportion of Nebraskans of who gained health insurance under the ACA than in states, like Iowa, where Medicaid was expanded.

Dollar Tree Store Cited and Fined for Willfully Exposing Workers to Safety Hazards

Today’s post comes from guest author Kit Case, from Causey Law Firm.

Note: A quick Google search led me to Glassdoor’s page covering Dollar Tree stores.  Many photos, mostly posted by managers and bemoaning their impossible working conditions, clearly show that the problem identified in Washington is widespread. The caption for the above photo reads “3,000 cartons in per week…” – kc

Dollar Tree Stores Inc., faces a $145,200 fine for workplace safety violations that knowingly put workers at risk.

The Department of Labor & Industries (L&I) recently cited the Virginia-based employer after an inspection at its Aberdeen store found serious, repeat safety hazards.

The company was cited for two willful safety violations, each with the maximum legal penalty of $70,000. Dollar Tree also received a $5,200 fine for a repeat-serious violation. The employer was previously cited for the same violations at its Chehalis location.

The first willful violation was for storing merchandise in a way that created a serious hazard. The inspection found the storage room was a crowded jumble of stacked boxes, bundles and containers that weren’t secured and could topple over at any moment. The haphazard stacks stood as high as nine feet, with heavy boxes piled on top of light ones. Some were leaning due to collapsed boxes or crushed corners.

Improperly stored merchandise can fall on employees causing serious injuries including contusions, broken bones, concussions or even death if the boxes cause an employee to fall and strike their head on the floor. Additionally, lifting heavy boxes into nine-foot stacks is likely to cause strains and sprains or serious back injuries.

The second willful violation cited was for not ensuring that exit routes were free of obstructions. At the time of the inspection, several aisles and passageways were blocked with merchandise. Employees did not have clear paths to emergency exits, and a doorway with two swinging doors couldn’t be exited because it was obstructed by stacks of merchandise or carts full of products.

In addition, there were hazardous products stored in the area, including helium cylinders that are explosive when heated, lighters, and plastic merchandise that would emit toxic fumes in a fire, increasing the danger to employees.

Dollar Tree was cited for a repeat-serious violation for not installing protective guarding or covers over light fixtures that could be struck and broken by the stacked merchandise. Breakage of overhead bulbs is likely to cause eye injuries or cuts from falling glass.

A serious violation exists in a workplace if there is a substantial probability that worker death or serious physical harm could result from a hazardous condition. A willful violation can be issued when L&I has evidence of plain indifference, a substitution of judgment or an intentional disregard to a hazard or rule.

The employer had 15 business days to appeal the citation.

Penalty money paid as a result of a citation is placed in the workers’ compensation supplemental pension fund, helping injured workers and families of those who have died on the job.

Photo credit: Glassdoor submission

Why an Obscure Securities Law Case Could Affect SSDI

Today’s post comes from guest author Jon Rehm, from Rehm, Bennett & Moore.

Social Security Disability Insurance (SSDI) cases are largely decided by administrative law judges (ALJs). A decision questioning the role of ALJs in another area of the law could cause some major complications for SSDI applicants and SSDI beneficiaries.

The 10th U.S. Circuit Court of Appeals recently set aside a conviction for securities fraud by the Securities and Exchange Commission (SEC) because the ALJ who decided the case should have been appointed under the Appointments Clause rather than hired by the SEC. The 10th Circuit’s decision directly conflicts with a recent decision made by the District of Columbia  Circuit Court of Appeals, which means the U.S. Supreme Court could take up the issue.

This matters to SSDI applicants, their attorneys and even present SSDI beneficiaries because the vast majority of administrative law judges, roughly 1,200 of 1,400, have been hired by the Social Security Administration to hear Social Security Disability appeals. Similar to ALJs from the SEC, ALJs who hear SSDI appeals are hired on merit and are federal employees.

If the U.S. Supreme Court followed the recent 10th Circuit decision and applied it to ALJs who heard Social Security Disability appeals, at least 1,200 ALJs would have to be appointed by the president and confirmed by the Senate. This could lead to further delays and uncertainty related to SSDI appeals. If the 10th Circuit decision were applied to SSDI judges, it is uncertain as to whether awards of disability would still be valid if they were made by unconstitutionally chosen ALJs. In 2014, in National Labor Relations Board v. Noel Canning, the Supreme Court held that the NLRB’s decision made by commissioners who were appointed by constitutionally invalid recess appointments was invalid.

The Social Security Administration has recently moved to abolish the treating physician rule in an effort to decrease claim payments. Uncertainty over whether the awards of SSDI benefits are constitutional would add additional hurdles to those needing SSDI benefits. If you are applying for Social Security Disability or thinking about it, contact an experienced attorney. Also, contact your lawmakers to express your concerns about the SSDI system to them.