Monthly Archives: August 2013

Paper or Plastic: A Reusable Workplace Hazard From The Grocery Store

Today’s post comes from guest author , from Jon Gelman, LLC – Attorney at Law.

Most people have been driven by guilt or cost into thinking about using a reusable shopping bag from the grocery store. A recent report indicates that sometimes the bags, because they are not sanitized by regular cleaning, become killer bacteria farms that may be transported into the workplace in a casual fashion.

Brought home from the grocery store, reusable and contaminated shopping bags then become storage and transport containers left baking in the car and carried everywhere for convenience from gyms, to libraries, and then into the workplace for lunch.

A recent report reflects that the reusable grocery bags often become contaminated by bacteria, since they are not cleaned properly nor regularly, and that deadly bacteria colonize in the bags resulting human illness and increased emergency room visits.

“Recent studies, however, suggest that reusable grocery bags harbor harmful bacteria, the most important of which is E. coli. If individuals fail to clean their reusable bags, these bacteria may lead to contamination of the food transported in the bags. Such contamination has the potential to lead to health problems and even death.”

Sequester Whacks Injured Workers

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

Injured workers with claims under the Longshore & Harbor Workers Act and the Defense Base Act, who are awaiting hearings by federal administrative law judges (ALJs), have now had their cases seriously impacted by the Sequester.  The Office of Administrative Law Judges (OALJ), with District Offices in seven cities including San Francisco, schedules hearings not only in those cities but in other venues in the District.  The San Francisco office schedules hearings in San Diego, Seattle, Portland, Denver and elsewhere, and so-called Calendar Calls are scheduled in those cities by traveling ALJs. 

The Sequester has caused the San Francisco office…to cancel all travel by ALJs until at least October, when a new fiscal year for OALJ may refresh its travel budget.

The Sequester has caused the San Francisco office, which covers a larger geographical territory than any other, to cancel all travel by ALJs until at least October, when a new fiscal year for OALJ may refresh its travel budget.  No further Calendars in outlying cities will be scheduled until at least October.  In the meantime, the parties may agree to bring their witnesses to San Francisco for hearings (or agree to a telephonic hearing – rarely a good alternative), but both sides must to agree to the alternative process.  The cost of bringing the claimant and expert witnesses to San Francisco, even if jointly agreed to, makes that a mostly unrealistic option.

The cancellation of travel for ALJs makes the system even more unfair to claimants.

The likelihood is that, in claims where the insurance carrier is denying benefits, many carriers will simply choose to wait out the claimants for the many additional months delay the Sequester budget issue gives them.  An terribly-burdensome delay already exists in this system, as ALJ decisions on cases typically take one to two years to issue after the trial.  The cancellation of travel for ALJs makes the system even more unfair to claimants.  Because of the long delay in getting to a hearing and then to a decision, a large number of cases in which hearings are requested ultimately end up settling in an alternative dispute resolution process called “mediation,” as both sides wish to arrive at settlement without the work and expense of getting ready for trial and then a long wait for a decision.  A scheduled hearing is what mostly drives the parties to mediate these cases.  But with six months of cancelled Calendars in non-District Office cities,  claimants attorneys worry that insurance carriers will feel under far less pressure to bring these cases to the mediation table.

 

Photo credit: jaymallinphotos / Foter.com / CC BY-NC

Connecticut Employers Shut Down For Not Paying Workers' Compensation Insurance

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

In these tough economic times, many companies aren’t paying basic requirements for their employees like Social Security, income taxes, unemployment, or workers’ comp. This has led states all over the country to start doing spot-checks on construction sites. Employers beware – protect your workers with workers’ compensation insurance – it’s the law, and states are cracking down.

Just this week Connecticut’s Labor’s Wage & Workplace Standards Division shut down two subcontractors who were helping to build a high-rise in Stamford, CT. According to the state, the Virginia-based contractors couldn’t provide evidence that their employees had workers’ compensation coverage in the state of Connecticut.

With unemployment high and the recession lingering, employers seem to be increasingly taking advantage of the fact that people are willing to work without appropriate coverage. It is a real shame that these days so many people are going to work without the protections that they are due under the law.

My Doctor Says I am Totally Disabled – Can I Get Social Security Diability?

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

Many people think that they will easily get Social Security disability benefits because they got a letter from their doctor that states that they are “totally disabled” and cannot work. This is a great first step for obtaining benefits – but it is only a first step. If your doctor is willing to write you a letter that says you are totally disabled, that shows that he or she will support your claim for benefits.  The support of a treating physician is very important to your claim.

Equally important to your claim is how your doctor’s opinion is expressed. A brief statement that you are totally disabled and/or that you cannot work will not be given a lot of consideration by the Social Security Administration (SSA). In order to make sure that your doctor’s opinion is properly considered and given the proper weight, your doctor will need to provide SSA with a “function by function” assessment of your ability to work.  SSA wants your doctor to provide them with an opinion that lists specific restrictions, such as how long you can sit, stand, and walk, how much weight you can lift and carry, and any limitation in your ability to get along with co-workers, the public, or to concentrate and follow instructions. Your doctor must also support his opinion with evidence such as examination findings or the results of diagnostic tests (such as MRIs and CT scans). If your doctor’s opinion is not properly expressed, it may not be given the weight it deserves, making it more difficult for you to get the benefits you’re entitled to.

To make sure that our clients get the benefits that they deserve, we contact the treating physicians to gather all of the evidence we need – including opinion evidence in the format required by SSA. If your doctor has told you that you are totally disabled and/or unable to work, please contact us if you need assistance with your claim.

Worker’s Compensation Advocacy: Playing Fair in the Same Sandbox

Workers’ Compensation hearings tend to be relatively cordial

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

I just completed another semester teaching the worker’s compensation course at Marquette University. Part of my responsibility includes instructing students on the ethical practice of worker’s compensation law. I also recently read an article in the American Bar Association Journal in which a lawyer was chastised by the Judge for inappropriate behavior in a class action lawsuit. 

The lawyer held depositions in a Dunkin Donuts, wore a T-shirt and shorts to the deposition, drew penis cartoons during the deposition, and played Angry Birds on his computer throughout. He also disrespected the opposing counsel, indicating in the presence of the opposing party that the counsel was inadequately trained to handle the case. 

While worker’s compensation claims can be bitterly fought, worker’s compensation attorneys on both sides, in general, remain highly professional and relatively cordial.

While worker’s compensation claims can be bitterly fought, worker’s compensation attorneys on both sides, in general, remain highly professional and relatively cordial. Part of the explanation is the absence of actual “discovery” in worker’s compensation – no depositions, requests for production of documents, etc. that lead to the kind of results discussed above. Injured workers waive physician-patient privilege and worker’s compensation carriers can obtain any and all relevant medical records to defend the claim. Experts’ reports are required to be exchanged by Statute, and depositions are held only in rare circumstances (when parties are unavailable at a hearing). Although this “trial by surprise” can sometimes produce surprising results depending on the testimony, the absence of substantial pre-hearing discovery also means, in general, the absence of gamesmanship present in some other more contentious areas of the law.

Five US Airports that Put Employees and Passengers At Risk For Environmental Tobacco Smoke

Secondhand Smoke Is Deadly

Today’s post comes from guest author Jon Gelman from Jon Gelman, LLC – Attorney at Law.

Air pollution from secondhand smoke five times higher outside smoking rooms and other designated smoking areas than in smoke-free airports

 

Average air pollution levels from secondhand smoke directly outside designated smoking areas in airports are five times higher than levels in smoke-free airports, according to a study by the Centers for Disease Control and Prevention. The study conducted in five large hub U.S. airports also showed that air pollution levels inside designated smoking areas were 23 times higher than levels in smoke-free airports. In the study, designated smoking areas in airports included restaurants, bars, and ventilated smoking rooms.

Five of the 29 largest airports in the United States allow smoking in designated areas that are accessible to the public. The airports that allow smoking include Hartsfield-Jackson Atlanta International Airport, Washington Dulles International Airport, McCarran International Airport in Las Vegas, Denver International Airport, and Salt Lake City International Airport. More than 110 million passenger boardings—about 15 percent of all U.S. air travel—occurred at these five airports last year.

“The findings in today’s report further confirm that ventilated smoking rooms and designated smoking areas are not effective,” said Tim McAfee, M.D., M.P.H., director of CDC’s Office on Smoking and Health. “Prohibiting smoking in all indoor areas is the only effective way to fully eliminate exposure to secondhand smoke.”

2006 Surgeon General’s Report concluded that there is no risk-free level of exposure to secondhand smoke. Although smoking was banned on all U.S. domestic and international commercial airline flights through a series of federal laws adopted from 1987 to 2000, no federal policy requires airports to be smoke-free.

“Instead of going entirely smoke-free, five airports continue to allow smoking in restaurants, bars or ventilated smoking rooms. However, research shows that separating smokers from nonsmokers, cleaning the air and ventilating buildings cannot fully eliminate secondhand smoke exposure,” said Brian King, Ph.D., an epidemiologist with CDC’s Office on Smoking and Health and co-author of the report. “People who spend time in, pass by, clean, or work near these rooms are at risk of exposure to secondhand smoke.” 

Secondhand smoke causes heart disease and lung cancer in nonsmoking adults and is a known cause of sudden infant death syndrome or SIDS, respiratory problems, ear infections, and asthma attacks in infants and children. Even brief exposure to secondhand smoke can trigger acute cardiac events such as heart attack. Cigarette use kills an estimated 443,000 Americans each year, including 46,000 heart disease deaths and 3,400 lung cancer deaths among nonsmokers from exposure to secondhand smoke.

For an online version of this MMWR report, visit http://www.cdc.gov/mmwr.  For quitting assistance, call 1-800-QUIT-NOW (1-800-784-8669) or visit www.smokefree.govExternal Web Site Icon.  Also, visit www.BeTobaccoFree.govExternal Web Site Icon for information on quitting and preventing children from using tobacco. For real stories of people who have quit successfully, visit http://www.cdc.gov/tips. For state-specific tobacco-related data, visit CDC’s State Tobacco Activities Tracking and Evaluation System at http://www.cdc.gov/tobacco/statesystem.

Read More About “Secondhand” Environmental Smoke

Apr 23, 2011
“Secondhand smoke (SHS) exposure causes lung cancer and cardiovascular and respiratory diseases in nonsmoking adults and children, resulting in an estimated 46,000 heart disease deaths and 3,400 lung cancer deaths …
 
Feb 20, 2008
An Atlantic City NJ casino card dealer employed at the Claridge Hotel who was exposed to second hand tobacco smoke was awarded workers’ compensation benefits. NJ Judge Cosmo Giovinazzi award $150,00 for lost …
 
Nov 14, 2012
“Secondhand smoke (SHS) exposure causes lung cancer and cardiovascular and respiratory diseases in nonsmoking adults and children, resulting in an estimated 46,000 heart disease deaths and 3,400 lung cancer deaths .
 
Oct 06, 2011
Lubick (2011) discussed the global health burden of secondhand smoke, and Burton (2011)emphasized a new and alarming consequence of smoking in indoor environments—“thirdhand smoke”—a term first coined in 2006 …

Media Portrays Social Security as an Avenue to Benefits for the Unemployed – WRONG! It's Not That Simple…

The Social Security Administration turns down many worthy applicants when they first apply.

Today’s post comes from guest author Susan C. Andrews from Causey Law Firm.

     There is a lot in the news these days about the Social Security Disability Program, with some pundits suggesting people are getting on benefits simply because they are unemployed, or because they claim to be injured or ill when in fact they are able-bodied and fully capable of working. Every day, all day, I work with people filing for Social Security Disability benefits. So I work with the program’s rules – yes, there are rules for deciding these cases – it is not enough just to claim to be disabled. And I come face to face with individuals who are struggling, sometimes with a major health issue such as cancer, or rheumatoid arthritis, or Multiple Sclerosis. Other folks have multiple health problems that have combined to force them from the labor market. All of them have medical records, often reams of them, documenting diagnoses, chronicling surgeries and other treatment regimens. This is one big thing I think the general public does not know: a person must have one or more diagnoses from a qualified physician that could account for the symptoms and limitations he or she is reporting to Social Security. There must be convincing medical documentation. Much of my day is spent obtaining and reviewing the medical records of my clients, and ensuring that the decision-makers at Social Security also see them.

…the medical condition must be not only serious, but also prolonged.

     Many people are not familiar with Social Security’s definition of disability or the program’s rules, so they do not realize that the disabling medical condition or conditions must be serious enough to have prevented the person from working for AT LEAST 12 continuous months. If the individual has not yet been out of the labor market for a period of at least one year, it must be very clear that this will be the case. In situations where there is doubt about this, Social Security typically turns down the claim. I have had callers who have been unable to work for a few months while going through chemotherapy treatment for cancer, but have been able to get back to work in less than one year. They do not qualify for Social Security Disability benefits. So the medical condition must be not only serious, but also prolonged.

     One broadly held belief about Social Security Disability is, in fact, true: The Social Security Administration turns down many worthy applicants when they first apply. It is necessary to appeal (the first appeal is called a Request for Reconsideration). Often, a second denial follows. Then it is necessary to request a hearing in front of a judge. For a person who is too sick to work, not feeling well, and home alone trying to navigate this system, it can be daunting. One of the joys of my practice is our capacity to lend support to such individuals, to take the reins of the case and drive it forward, so my client can concentrate on taking care of herself or himself while I and my staff handle the legal stuff.

     We are able to offer representation to people at any stage in the process, including initial application. We are happy to talk with callers who are weighing their options, and simply need information in order to know whether to apply for benefits in the first place. There is no charge for such calls, so do not hesitate to contact us if you have questions about Social Security Disability.

Photo credit: Thomas Hawk / Foter.com / CC BY-NC

Bill's Bad Provision Would Subject NC Judges To Political Winds

Today’s post comes from guest author Leonard Jernigan, from The Jernigan Law Firm.

A wise person once told me: “Don’t worry about doing things right; just do the right thing.” Have you ever wanted to do the right thing but didn’t because you might lose your job? That’s a gut-wrenching tension. Here’s how this tension works in theory and how the legislature has made it a reality for judges in workers’ compensation claims starting in 2015.

Many years ago, as a relatively young lawyer, I experienced what losing independence as a judge looks like. I was hired by a state agency on a one-time contract basis to act as a hearing officer.

The case involved a dispute between a public nonprofit entity and a private corporation. The hearing lasted a full week, with expert testimony and many witnesses. I ruled in favor of the private corporation, believing it would provide better services and be more efficient. Afterward, it became quite apparent the agency did not like that outcome. It quickly reversed my decision, and the agency got the outcome it wanted. I was never hired again. I got the message loud and clear.

My livelihood was not dependent on this type of employment, but I often thought, “What if I were an employee of that agency? Would I be calling balls and strikes fairly and doing the right thing, or would I start to favor one team over the other to make sure I kept my job?” That thought disturbed me then, and it disturbs me now.

On July 26, the legislature passed House Bill 74, a 58-page bill that has not yet been signed into law by Gov. Pat McCrory. At the bottom of the last page, a provision was inserted that removed the independence of judges at the N.C. Industrial Commission, effective July 1, 2015. If you have an accident or develop an occupational disease on the job, these judges (called Deputy Commissioners) hear your case and decide whether you are entitled to partial lost wages and medical benefits until you get back to work.
Most of these judges are competent and dedicated public servants, but if any of these Deputy Commissioners are not performing up to acceptable standards, the State Personnel System has a method for firing these employees. HB 74 has removed them from this system, and in 2015 they can be fired for any reason, without any meaningful review or recourse. True and unvarnished independence will evaporate.

A new administration is totally justified in taking a close look at performance levels and taking corrective action, if necessary. In fact, such oversight is welcome. However, impartiality and independence of these judges are absolutely crucial to the process. Without the protection of the State Personnel System, these judges would be subject to the pressure of political winds (real or imagined but always present).

Unlike many other countries, we are a nation of laws (as President Nixon found out), and respect for our legal system is a foundation stone of this country. We should make no law, take no action and support no policy that would put a crack in that foundation.

Unfortunately, HB 74 has done just that.

I am confident that some legislators voted for this bill and did not appreciate the significance of it or that they were just following the leadership to get along. Will new Deputy Commissioners follow suit and do what has to be done just to get along (and keep their jobs, too)?
I wonder what people would do if their child were playing in a little league baseball game or a Friday night football game in which they knew the umpire or referee might lose his job if he made the wrong call against their opponent.

Would they do anything about it? The governor can. He can do the right thing. I hope he does.