Monthly Archives: May 2015

Tragic Cannery And Construction Site Deaths Highlight Need For Safety Enforcement

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

I was horrified when I recently read about a worker for a tuna company who was killed when he was cooked to death at the company’s California canning factory. According to the New York Daily News, the worker, Jose Melena, was performing maintenance in the 35-foot oven when a co-worker failed to notice he was still in the oven and turned it on to begin the steaming process of the tuna. The co-worker assumed Melena had gone to the bathroom. 

While there apparently was an effort to locate the worker, his body was not found until two hours later when the steamer was opened after it completed its cooking cycle. As an attorney, my clinical instinct shifts my focus to the mechanics of the accident and to fault. There are so many unanswered questions.  Why didn’t anyone check the machine before it was turned on? Why wasn’t the machine immediately shut down when they realized the worker was missing? As a person with feelings and emotions, I think of the horror and pain he must have gone through and the loss experienced by his family and friends as a result of his death. It is almost too awful to imagine. 

While this terrible tragedy occurred in 2012, it appears the reason that the story is currently newsworthy is that the managers were only recently charged by prosecutors in the worker’s death for violating Occupational Safety & Health Administration (OSHA) rules. Closer to home, more recent and just as unfortunate were the cases of the construction worker in Brooklyn who fell six stories from a scaffold while doing concrete work and a restaurant worker who was killed in Manhattan when a gas explosion destroyed the building he was working in. 

These stories highlight why safety procedures are so important. In some cases, there are no proper safety precautions in place. In others, there are safety measures in place but they may not have been followed. In rarer cases, crimes are committed that result in workplace fatalities. The failure to follow or implement proper safety procedures was a calculated risk, a terrible misstep, or a downright criminal act. In the case of the worker who died when he fell from a scaffold, there has been speculation that he may not have been attached properly to his safety harness. In the tuna factory death, the managers were charged with violating safety regulations; they face fines as well as jail time for their acts. In the gas explosion, there are allegations that the explosion was caused by workers’ illegally tapping into the restaurant gas line to provide heat for upstairs tenants. Prosecutors were trying to determine criminality; whatever the final outcomes, it appears that in these three instances the deaths were preventable. 

According to OSHA rules, employers have the responsibility to provide a safe workplace. They must provide their employees with a workplace free of serious hazards and follow all safety and health standards. They must provide training, keep accurate records, and as of January 1, 2015, notify OSHA within eight hours of a workplace fatality or within 24 hours of any work-related impatient hospitalization, amputation or loss of an eye.  

While this may seem like a small step, anything that results in creating higher standards for employers or encouraging them to keep safety a priority is always a good thing. These three examples are only a small percentage of the workplace deaths that occur each year. While not every death is preventable, everyone is entitled to go to work and expect to leave safely at the end of their shifts.  

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.

Death on the Job Annual Report from AFL-CIO Informative, Useful

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

The AFL-CIO’s annual report about “the state of safety and health protections for America’s workers” has been written about in a previous year on this blog. The recently released 2015 version focuses in an in-depth manner on data from 2013 and includes around 200 pages of text, tables, details and information, along with a bit of jargon.

The report is extremely informative, and Nebraska and Iowa’s numbers will be examined in more detail in future blog posts, as these are states where the firm’s attorneys are licensed.

The report can also feel overwhelming once a person processes through the fact the each numeral on each chart represents the death of one person due to the workplace. There is also a ripple effect, as each person represented here had loved ones who both cared about and relied on that person. And for many involved, their lives changed drastically when their loved one died.

I appreciate the work, funding, thoughtfulness and effort put into compiling and analyzing the data, which includes a methodology section at the end of the report.

Here’s some sobering information from the summary.

“In 2013, 4,585 workers were killed on the job in the United States, and an estimated 50,000 died from occupational diseases, resulting in a loss of 150 workers each day from hazardous working conditions.

“Nearly 3.8 million work-related injuries and illnesses were reported, but many injuries are not reported. The true toll is likely two to three times greater, or 7.6 million to 11.4 million injuries each year.”

States with the highest fatality rate in the nation include a couple of relative neighbors: North Dakota and Wyoming. West Virginia, Alaska and New Mexico round out the top five. Lowest state fatality rates in 2013 were Hawaii, Washington, Connecticut and Massachusetts (tied) and New York and Rhode Island (tied).

Please contact an experienced workers’ compensation lawyer if you or a loved one is hurt on the job or has questions about job safety.

Construction Fall Safety Stand-Down – Pt 2

Today’s post was shared by US Labor Department and comes from experttalk.creativesafetysupply.com

Fall prevention requires employer planning and employee training. Listen to Matt McNicholas of OSHA discuss the annual Construction Fall Safety Stand-Down May 4-15, 2015.

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Matt says employers need to do three things to keep employees safe from falls:

1. Plan ahead to get work done safely.
2. Provide the correct equipment.
3. Train the exposed workers how to safely use equipment.

Matt is a Safety And Health Specialist with OSHA in Chicago. In this podcast, he tells stories of surprise jobsite inspections during his 12 years as an inspector.

Hear Matt also tell about warning lines, designated areas, anchorage points and control zones.

This is the second Safety Experts Talk featuring fall prevention experts.

TRANSCRIPT

(:00)
Brandon Nys: Welcome to Safety Experts Talk. Take a look at our website at CreativeSafetySupply.com/podcast for related links in the transcript of this podcast.

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OSHA

(intro music)

Matt McNicholas: I’ve seen leaps and bounds, quite frankly, in terms of fall protection used over the course of my career here. But the bottom line is that, it’s still a leading cause of fatalities in construction, and it’s always in the top 10 issued violations of OSHA citations.

(:33)
Dan Clark: Falls from height kill more people in construction than any other type of accident—almost 300 fatalities annually—prompting the Construction Fall Safety…

[Click here to see the rest of this post]

Workers’ Compensation: The Man-made Quagmire (Part 1 of 3)

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

I’m starting here a three-part series explaining why workers should claim their rights under workers’ compensation laws.  The three parts are, in summary: 

  1. How the employer makes it tough to claim work comp;
  2. How the insurer makes it tough to claim work comp; and
  3. Summary:  Why it’s Important to You and your Family that you Claim Work Comp when You are Hurt on the Job. 

Below is the first installment.

 


Workers’ compensation [“work comp”] is every workers’ right. Yet, researchers years ago determined that many employers and most work comp insurers try their best to persuade workers to not make claims. That “persuasion” takes many forms. It’s important that workers know that this “persuasion” is calculated and how to deal with it. Why? Because workers’ compensation benefits are your right and those benefits are important to you, your family and the overall safety of your workplace.

Part 1: Dealing with the Employer’s Persuasion Tactics 

  1. Suppressing Reporting of Work Injuries: Pizza-Bingo Party!! — Nancy Lessin (the MA AFL-CIO Health & Safety Coordinator) taught me years ago that giving workers some type of prize for so many hours without a reported injury is NOT based on generosity. No, it’s based on cost cutting. It’s also completely contrary to public policy!

    Work comp is required by law. One of work comp’s basic purposes is to make workplaces safer. How? By making employers pay higher work comp premiums in circumstances in which there are high rates of injuries, thus giving the employer financial incentives to implement safety measures to keep injury rates low, leading to lower premium costs. Some sly employer offer such things as pizza parties, small bonuses, gift-drawings and the like knowing full well that doing so puts pressure on the workers to not report work injuries.

    Why? Because the more a worker cares about her/his brothers and sisters, the more likely the worker will — when hurt at work — do the wrong thing.  What’s the wrong thing? It’s preserving your friends’ pizza party or “prize” by putting the accident as “personal,” and putting the costs on health insurance, LTD and lost sick/vacation time. The problem with this is often not discovered until too late. What do I mean “too late?” I mean when the health insurance company investigates and finds the injury was caused by work and thus denies coverage under the standard health insurance exclusion for work injuries. And when the time missed due to the work injury outstrips the amount of sick and vacation you’ve banked for the last 13 years. Even that does not account for what happens years later.

    First, you work injury may be “the gift that keeps on giving.” It may require 2 or even 3 surgeries, leading to even more medical expenses and time off work. Only work comp pays this.  No LTD or health insurance comes close. Bottom line: Don’t be misled by the “gifts” for no reported work injuries. The only entity getting that “gift” is your employer.

  2. Termination—Yes, we all know the employer who makes up an excuse — ANY excuse — and fires the injured worker within days of the injury.  This is illegal under all public policy, Iowa law (Springer v. Weeks) and U.S. law (the Americans with Disabilities Act).
  3. Return to work at a job that is not within even the company doctor’s work restrictions. Remember — not trying a tendered job — any job — sets up the argument that the worker is “insubordinate,” “refusing work” or “no-call/no-show.” One must try any job, whether the job’s tasks are within restrictions or not. One need not, however, continue to do any tasks that cause worsening of the work-injury condition. If asked to do something outside restrictions set by the doctor:
    1. report that the job’s outside your restrictions;
    2. when told to do the job anyway (which will likely happen), perform the job the best you can and hope for the best; and
    3. if the job does what is feared — worsens your injury condition — go to the company workers’ compensation officer and demand a return to the company doctor immediately, before your injury is permanently worsened.

Stay tuned next week for Part 2: Dealing with the Insurance Company’s Persuasion Tactics.

What is Legal Aid and Who Does It Help?

Legal Aid (LANC) is a non-profit law firm that provides free legal services in civil matters to low-income North Carolina residents. LANC has 24 offices throughout the state and provides services to residents in all 100 counties.

In order to be considered eligible for their services your household income must fall approximately 125% below federal poverty guidelines. According to the U.S. Department of Health and Human Services, the federal poverty level in 2015 for a family of four is $36,375. If the legal assistance needed involves a domestic violence case or if the client is a senior citizen then the poverty guidelines may not apply.

Examples of cases being handled by Legal Aid in N.C. are bankruptcy, student rights, unemployment compensation, Medicaid/Medicare and/or health insurance issues, foreclosures, housing discrimination, family violence, wage theft, and tax assistance.

To read more about their services offered go to: http://www.legalaidnc.org/

Click here to learn more about the HHS 2015 Poverty Guidelines.

Stop Work Orders In Massachusetts Created $1.4 Million In Fines And Obtained Coverage For Over 5,000 Workers

The Massachusetts Workers’ Compensation Advisory Council has released its Fiscal Year 2014 Annual Report (PDF link). This report contains some eyebrow-raising statistics. Between 2008 and 2014, Massachusetts was able to help over 50,000 workers receive coverage due to Stop Work Orders (SWOs). In 2014 alone the Agency was able to obtain insurance for over 5,000 workers who previously had no workers’ compensation coverage.

Stop Work Orders are issued to employers who are operating without workers’ compensation insurance. An investigator is sent to the worksite and if an order is issued, the employer must cease business operations immediately. Fines will then be given starting at $100 per day until penalties are paid and the company secures insurance.

In Fiscal Year 2014, there were 5,785 Field Investigations resulting in 2,150 SWOs issued and $1,430,599 in fines collected. While SWOs are in effect, employees are still paid for the first ten days out-of-work due to the order and the days missed are considered “days worked.” In addition to the fines that the employer receives, they will be added to a debarment list preventing them from bidding or participating in any state or municipal contracts for three years.

 

Original post on www.mass.gov/lwd/workers-compensation in April 2015.

 

Measuring Our Progress Since The Triangle Shirtwaist Factory Fire

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

As an attorney who practices in the field of Workers’ Compensation, there are some events that are seminal in the history of workplace safety. One of those events was the Triangle Shirtwaist Factory fire, which occurred on March 25, 2011. The Triangle Shirtwaist Factory was one of the largest factories in New York and employed 500 mostly Italian and Jewish immigrant women between the ages of 13 and 23.

These women worked long hours for low wages in this cramped sweatshop at sewing machines to produce women’s blouses, known in those days as shirtwaists. In order to protect themselves from their claim of thefts by the workers, the factory owners would lock the doors to one of the stairways leading to the street. While the union movement in New York was very strong and some of the workers had joined the International Ladies’ Garment Workers’ Union, the factory itself was a non-union shop; many believed the owners would lock their doors to keep organizers out. Whatever the reason, locking those doors had devastating effects. 

On that fateful day in March, a fire broke out that was fueled by thousands of pounds of fabric. Many were able to escape to the roof and then to adjoining buildings. Unfortunately for those on the ninth floor, there was very little means of escape. The elevator proved inadequate as it was only able to accommodate 12 people at a time, and the operator was only able to make four trips before it broke down totally. Bodies of many of the workers were found at the bottom of locked stairwells or in the elevator shaft when they tried to escape. The fire escape was flimsy and when it became overloaded with panicked women, it broke and sent dozens to their death. Those trapped in the factory by the fire were left with the agonizing choice of jumping to their deaths or being burned alive. Many chose to jump. Bystanders recounted stories of seeing victims kiss each other or hold hands as they jumped two and three at a time; they described the horrific thud as bodies landed on the stone streets below. When the final tally was taken, 146 people had perished. The catastrophe sent shockwaves throughout New York City and the immigrant communities of Manhattan’s Lower East Side, where families struggled to recognize the charred remains of their loved ones in makeshift morgues. 

On March 24, 1911, the New York Court of Appeals declared the state’s compulsory Workers’ Compensation law unconstitutional. The next day, 146 people were dead from that Triangle Shirtwaist fire. With no Workers’ Compensation system in place, family members and dependents had to turn to the courts in an attempt to force Triangle to compensate the injured and the families of the deceased. A civil suit brought by 23 victims’ families against the owners netted a whopping $75 in damages per victim! New Yorkers were appalled and angry at the greed and negligence of the owners and managers. 

The Triangle Shirtwaist Factory Fire was a preventable tragedy caused by unsafe work conditions and was a catalyst for change. New York finally adopted a Workers’ Compensation law in 1913. This law was intended to protect workers from unsafe working conditions and afford them with wage replacement benefits and medical treatment in exchange for giving up their right to sue. Unfortunately, we see an erosion of many of these benefits under the guise of reform, while insurance companies have made record profits. This month, while we acknowledge this grim anniversary, we need to make sure that these women’s deaths were not in vain. Let us never forget the reason Workers’ Compensation laws were enacted, and let’s be sure the system is not watered down to the point that injured workers and their families go back to getting $75 for a preventable death.

  

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.