Category Archives: Government

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.

Hidden Fees In North Carolina

NBC Nightly News reported on December 9, 2015 that North Carolina is one of the worst states when it comes to charging hidden fees for traffic tickets. The segment reported that hidden fees in NC increased an original traffic ticket of $30 over seven fold to $218. While the State has to find funding for the many services they provide that are not profitable, NBC News reported that some of these “hidden fees” pay partly for court costs. But there might be more appropriate places to assess fines to cover court costs.

In 2014 the UNC School of Government wrote a blog based on the Court of Appeals decision in Tyll v. Berry, stating that a party held in civil contempt for failing to obey a court order can be assessed a fine, not just imprisonment.  However, the State Legislature just passed a law clarifying that when someone is found to be in civil contempt a monetary fine is not an appropriate remedy.

Seems to me that a fine is exactly the appropriate remedy when a party fails to obey a court order and that such a fine, payable to the court rather than the opposing party, could be a valuable source of funding for court-related costs. Fines for civil contempt could also alleviate some of the pressure to assess large “hidden fees” for minor traffic violations.  

Read more here:

Call “Reform” What It Is: Death By A Thousand Cuts For Workers’ Rights

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

This week I attended the 20th anniversary of the Workers’ Injury Law and Advocacy Group (WILG) in Chicago. I am a proud past president of this group – the only national Workers’ Compensation bar association dedicated to representing injured workers.  

As an attorney who has represented injured workers for more than 25 years, I have seen their rights and benefits shrink under the guise of “reform”. After the tragic Triangle Shirtwaist Factory fire in 1911, which killed almost 150 women and girls, workplace safety and Workers’ Compensation laws were enacted. For the next half century or so, many protections and safeguards were implemented. However, many of these reforms were not sufficient, and in 1972, the National Commission on State Workmen’s Compensation Laws, appointed by then-President Nixon, issued a report noting that state Workers’ Compensation laws were neither adequate nor equitable. This led to a decade when most states significantly improved their laws. 

Unfortunately, there has once more been a steady decline in benefits to injured workers, again under the guise of reform. One major argument is that many workers are faking their injuries or they just want to take time off from work. There was even a recent ad campaign in which a young girl was crying because her father was going to jail for faking an injury. Workers’ Compensation fraud does exist, but the high cost of insurance fraud is not as a result of workers committing fraud.

A colleague of mine compiled a list of the top 10 Workers’ Compensation fraud cases in 2014 in which he noted that the top 10 claims of fraud cost taxpayers well more than $75 million dollars with $450,000 of the total amount resulting from a worker committing insurance fraud. That leaves $74.8 million as a result of non-employee fraud, including overbilling and misclassification of workers. We are told that insurance costs are too high; yet, according to the National Council on Compensation Insurance (NCCI) in 2014, estimates show that private Workers’ Compensation carriers will have pulled in $39.3 billion in written premiums, the highest since they began keeping data in 1990. More premiums result in higher net profits. Despite this, many states have implemented changes in their Workers’ Compensation systems aimed at reducing costs to the employer. The end results, however, is that fewer benefits are given to the injured worker and more profits go to the insurance companies.

In New York, one of the reform measures increased the amount of money per week to injured workers but limited the amount of weeks they can receive these benefits with the idea that they will return to work once their benefits run out. Additionally, limitations have been placed on the amount and types of treatment that injured workers may receive. Again, this is with the notion that once treatment ends, injured workers miraculously are healed and will not need additional treatment. In reality, those injured who can’t return to work receive benefits from other sources from state and federal governments at the taxpayer’s expense.  This is what is known as cost shifting, as those really responsible to pay for benefits – the insurance companies who collect the premiums from the employers – have no further liability. The reformers of 100 years ago would be appalled at what is happening to injured workers and their families today. It is time that those who are generating profits at the expense of injured workers do what is fair and just – provide prompt medical care and wage replacement to injured workers for as long as they are unable to work.

To stay on top of important Workers’ Compensation happenings, please visit the Facebook page of Pasternack Tilker Ziegler Walsh Stanton & Romano, LLP and “Like Us.” That way you will receive the latest news on your daily feed.



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.


States with Opt-Out Workers’ Comp System are Strict on Injured Workers

Dallas attorney Bill Minick (Photo credit Dylan Hollingsworth for ProPublica)

Texas and Oklahoma have both adopted an “opt-out” system for Workers’ Compensation. ProPublica along with NPR recently published an in-depth look at the results in these two states. Under this system, employers can opt-out of state mandated workers’ compensation insurance by creating their own policy for injured workers. These employer-written policies give employers 100% control over the terms, the benefits, and even settlements.

Specifically, ProPublica and NPR found that these employer-created policies generally have strict 24-hour reporting requirements or even require an injury to be reported by the end of a shift. This means, if an employee does not report their injury within their shift, or within 24 hours, they are prevented from bringing a claim at all. Period. End of discussion. Employers can also dictate how much benefits will be paid and some employers have capped death benefits for employees who are killed at work at $250,000. Whereas under the State Workers’ Compensation system, if a deceased worker leaves behind minor children, they will continue to receive benefits until they turn 18 (which could easily end up being well over $250,000 when you factor in lost wages until the worker would have been 65). This is potentially detrimental to a young widow or widower who is left with very young children.

Yesterday we tweeted a recent ABC news article that a worker was killed when he fell at a construction site in Charlotte. I’d hate to think that his or her family would be limited to recovering only $250,000 in the event the worker left behind dependent family members and young children. Money can’t begin to replace someone who is lost to us too early from an accident at work, but $250,000 would hardly cover a lifetime of income that the family will lose, especially if young children are left behind.


To read more on how the Opt-Out system is affecting injured workers in Texas and Oklahoma, go to: ProPublica: Inside Corporate America’s Campaign to Ditch Workers’ Comp.

Public Financing Makes Our Justices More Fair

A study titled “Does Public Financing Affect Judicial Behavior?…” was recently published by three political scientists who looked at North Carolina’s Supreme Court. From 2001 until 2013 (for eleven years) North Carolina had an optional public financing system, making it the perfect case study. The conclusion of the study? Yes. Public financing made justices on our Supreme Court more moderate and impartial= better. Specifically, the study showed that justices who opted-in to public financing for their campaigns were 60% less likely to vote in favor of donors who contributed to their campaigns than before they opted-in. That’s a notable change.

The foundation of our judicial system is impartiality and a fair day in court; and according to this recent study, when private donors fund judicial campaigns it threatens that impartiality and fairness. In 2009 the U.S. Supreme Court issued an opinion in Caperton v. Massey Coal Co. Inc., saying that an appellate judge in West Virginia who had recently accepted $3 million from the Massey Coal’s chairman and principal officer in his reelection campaign should have declined to participate in ruling on whether Massey should have to pay a $50 million jury verdict in a lawsuit for fraud. Surprisingly, this was a 5-4 decision. It seems pretty obvious to me that the West Virginia judge’s participation in Massey’s fate was questionable, whether or not he was fair, the appearance of his impartiality is what mattered.

Obviously, from this study it appears that public financing is the better method of judicial elections. Further studies need to be done to confirm the outcome and if this trend is accurate and continues, the legislature should change the election process.


Justice Scalia’s Influence on Legal Writing is Questioned

Dean Erwin Chemerinsky, Dean of the University of California Irvine School of Law School and Constitutional Law Scholar

Erwin Chemerinsky, Dean of the University of California Irvine School of Law School and author of the textbook Constitutional Law, recently wrote an op-ed for the L.A. Times in which he noted a pattern he has seen in his students of mimicking Justice Antonin Scalia’s writing style. He is not pleased.

Justice Scalia is well-known for his confrontational and colorful battles with the left side of the bench, particularly with Justice Ruth Bader Ginsberg. His dissents unabashedly slander the opposing point of view and use such phrases as “gobbledy-gook,” “beyond absurd,” and “mystical aphorisms of the fortune cookie.” He even wrote that if he had shared the opposing side’s opinion he would “hide [his] head in a bag.”

Chemerinksy makes a good point: while we often find Scalia’s opinions and dissents amusing, should attorneys, judges and new students be expressing their opinion in this manner? Lawyers are held to a high standard of ethics in this country and are expected to be respectful of the court and of all parties involved. Is it professional to attack fellow lawyers and judges by ridiculing and demeaning them? Scalia’s colorful dissents might be getting the public more interested in the law but at what cost?

What is Workers’ Compensation?

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

This is the first installment of a series that will educate workers and their families about injury, disease and death resulting from work. The most basic question is: What is workers’ compensation?

Workers’ compensation is a legal system established in all 50 states, Washington, D.C., and for federal employees. Workers’ compensation laws began in the United States in 1912. The laws are different in each state, but the basics of the law are quite similar in all states.

If a worker is injured, contracts a disease or dies as a result of work activities, all of the medical and burial expenses are to be paid by the employer. The employer is also responsible to pay for lost wages, physical disability, and mental disability. Workers’ compensation does not pay for pain and suffering and is generally limited in duration of payments, although some states pay lifetime benefits.

The balance of this series will go through the basic steps of how to obtain workers’ compensation benefit. The goal is to inform, which helps victims of workplace injury, disease or death receive proper compensation.

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 in April 2015.