Today we have a guest post from our colleague Tom Domer or Wisconsin.
We get calls every day from angry injured workers who want to sue their employer for negligence. It could be an employer removing a guard on a machine, a foreman ignoring a safety rule, or an injury caused by an employer’s failure to train an employee. Many employees are genuinely and bitterly disappointed when we explain a worker cannot sue his employer for negligence and that his only “exclusive” remedy is through worker’s compensation.
In liability suits filed by hundreds of former pro football players who suffer from concussion-related injuries, the players claim the league negligently mislead them about the dangers of concussions. Attorneys for the injured players indicate it is likely the NFL will argue that football players should be covered exclusively by worker’s compensation.
The deal cut by employers and workers in Wisconsin in 1911 still stands: Employers give up the right to common law defenses (contributory and co-employee negligence, assumption of risk) for a fixed schedule of benefits; employees give up the right to sue their employer in tort (and to recover tort-like damages) in return for worker’s compensation benefits. No matter how nefarious the employer or Continue reading →
I just returned from a yearly meeting of about 50 workers’ compensation lawyers who are approved by the National Football League Players’ Association (NFLPA) to represent NFL players in the workers’ compensation field. My firm helps the Carolina Panthers players if they need advice or legal representation in a claim, which are rarely made, but are sometimes filed if there is an injury that ends a professional career.
What would you think about an employer who paid its employees to intentionally injure you? Accidents happen and no one wants those in the workplace, but a deliberate injury is another mattter. That happened with the New Orleans Saints. Coaches paid athletes to intentionally hurt others and knock them out of games. Stiff sanctions have been imposed by the NFL and there will be more fallout from this action by the Saints.
On April 14 The New York Times reported that many professional athletes have been given shots of Toradol, a non-steroidal anti-inflammatory drug that is given in emergency rooms to relieve pain. It numbs the affected area and allows the player to play and ignore the warning signs (pain and inflammation) of injury. A lawsuit has been filed claiming the NFL knew or should have known that the indiscriminate use of Toradol could cause further injury, and the NFL has denied the claims. Stay tuned for a follow up article on these allegations.
Today’s guest post comes to us from Tom Domer of Wisconsin.
The connection between unsafe workplaces and the increased frequency of work injuries seems like a no brainer. A study released by NCCI Holdings indicated worker’s compensation claims rose by 3% during 2010 (the first rise in frequency in over a dozen years). The study attributed the increased frequency to several factors including increases in employment since the onset of the recession in 2008, workers possibly being less fearful of losing their jobs for filing claims, and a lack of light duty jobs to which injured workers could return because of the poor economy.
Because of these repeat violations,OSHA cited United Contracting and placed the firm on its “Severe Violator Enforcement Program”
One factor not referenced is the connection between increasingly unsafe work environments and work injuries. Two recent news stories in Wisconsin underscored this connection. OSHA fined a Wisconsin contractor $150,000
for violations while working on two bridges along highways in Wisconsin. The violation is more alarming because the contractors were working under a State contract to repaint the bridges. OSHA charged that the company did not have proper scaffolding at the bridges exposing workers to falls, and in fact one worker was injured in June after falling from a scaffold at one of the bridges. Because of these repeat violations, Continue reading →
He had fallen from a ladder about 15 feet and landed squarely on his hands and broke both arms. No one was holding the base of the ladder and the ladder was more than 15 years old. Wires and metal bars were now holding his bones in place, and workers’ compensation benefits were holding him financially in place. However, since he was only making $11 dollars an hour his weekly compensation benefits were small. As you probably know, the Workers’ Compensation Act does not provide money for pain and suffering, or lost income from other jobs (think about the man who takes on two jobs to maintain a higher standard of living for his family; if he is hurt while working at one job, he is only paid for the income loss at that job, not both).
The employer has a duty to train and teach its employees how to use a ladder. Many employees (particularly young ones) have no idea how dangerous ladders can be: they assume the ladder will hold the load and will be secure when placed in position, and that it is free of defects, no matter how old. OSHA has a list of safety considerations and these tips can be found at the Department of Labor’s web page (click here for a PDF version).
Click through for a graphic video of a ladder accident published by prevent-it.ca, a website run by the Province of Ontario (Canada)’s Ministry of Labor. Be warned that this mock-up video is a public service announcement intended to teach safety. It is scary and not for the faint of heart. Continue reading →
Following basic safety precautions woud keep employees like these injury-free.
A recent blog post (below) by Jon Gelman about OSHA violations at the Anthony River, Inc plant is another example of why we need to change the lax culture of safely compliance in America. It’s human nature to pick out articles in newspapers, magazines and on-line that interest you, and when I see articles about plant explosions (like the chemical plant explosion in Apex, NC or the chicken processing fire in Hamlet, NC), or mine disasters (West Virginia), or oil spills (Louisiana), I have a heightened awareness because I have represented people in similar tragedies and I know what they are going though.
People die and families are devastated, and the really sad thing is that it didn’t have to happen. Most of us may notice these events, but until it happens to you it’s usually just a news item and not much more. Employers don’t want these things to happen, but unfortunately some of them are willing to gamble with heath and safety. They have liability insurance and workers’ compensation to clean up the mess they make, and some times they actually think the risk is worth it. No life is worth that risk.
People die and families are devastated, and the really sad thing is that it didn’t have to happen.
Here is Jon’s post (reprinted with permission):
The U.S. Department of Labor’s Occupational Safety and Health Administration has cited Anthony River Inc. for nine serious and three repeat violations of workplace safety standards after an employee was burned at the metal finisher’s Syracuse plant.
“While it is fortunate that no life was lost here, this is a graphic example of the harm that workers and businesses can suffer when basic, common-sense and legally required safeguards are neglected,” Continue reading →
Survivors express their sorrow after a deadly and preventable mining accident in W. Virginia.
On January 13, the North Carolina Department of Labor announced that 53 people died on the job in North Carolina in 2011. Labor Commissioner Cherie Berry was quoted as saying: “the real tragedy is that all of the these fatalities could have been avoided.” I wholeheartedly agree. 53 deaths is 53 too many. When I see news stories about explosions and other tragic events that needlessly harm or kill workers, often spewing toxic chemicals into the surrounding environment harming entire communities, I can’t help but think about how it all could be avoided if companies embraced a culture that puts safety first and simply followed the proper guidelines and procedures. I see companies spend a lot of time and money to fight the Occupational Health and Safety Administration (OSHA) over fines and penalties but rarely see the same effort being put into protecting their workers in the first place.
Employers, I challenge you to make safety as much of a priority as profits. Stop wasting time and money fighting against worker safety and instead focus your efforts on saving lives.
It may be hard to believe given my chosen profession as a workers’ compensation lawyer but if I had my way, workers’ compensation lawyers like me would be obsolete. We’d go the way of horse-drawn carriages and 8-tracks. We exist because many companies treat worker safety as an afterthought. The workers’ compensation system provides employers with immunity from lawsuits for most on the job injuries — they are required to buy workers’ compensation insurance, so why bother spending more to protect workers if they get no return on that money spent? Continue reading →
We normally focus on workplace safety, but during the holidays, many of our readers will spend time at home with their families. Holiday decorations are an important tradition, but these decorations, both new and old, can turn a festive holiday into a dangerous one. These important tips will show you how to make your holiday a safe holiday.
Keep trees away from radiators
If you decide to buy an artificial Christmas tree, it should be fire resistant. Check the tags or labels for this. While “fire resistant” doesn’t mean “fire proof,” it is a step in the right direction.If you buy a natural Christmas tree, check to make sure it is fresh. You can tell a tree is fresh if its needles are green and don’t bend of break between your fingers. Also, the bottom of a fresh tree will have sticky resin and, if you tap the tree on the ground, won’t shed too many needles. Keep your natural tree watered. This means checking the stand every day, especially in a heated room.
No matter what kind of tree you have, do not place it near fireplaces, vents and radiators. Continue reading →
In this guest post our colleague Jon L. Gelman of New Jersey highlights a worrisome recent ruling. In the state of Missouri, if an employee does not follow their employers’ safety rules and is injured, their award may be significantly reduced. He points out that this logic works in opposition of what the workers’ compensation act was originally supposed to do, which is to protect workers. With that as its goal, “It would be far more logical to… prevent the unsafe work in the first place.”
An employee’s workers’ compensation award maybe be reduced for failing to follow an employer’s safety rules.
An employee’s workers’ compensation award maybe be reduced for failing to follow an employer’s safety rules. A Missouri Court ruled that reducing an injured employee’s award by 25% to 50% for failing to follow an employer’s safety rules was not unconstitutional. Continue reading →