On Trade, Don’t Leave Workers Behind

Today’s post was shared by Jon L Gelman and comes from www.nytimes.com

Boeing employees in Renton, Wash., watched Secretary of State John Kerry speak about the Trans-Pacific Partnership on May 19. Credit Pool photo by Saul Loeb

International trade typically produces winners and losers. Consumers benefit when they pay less for imported goods than similar domestic products. Some American workers are clearly hurt when foreign competition leads factories to shut down or move overseas. That’s why economists have long argued that government should help those displaced by the dynamics of freer trade.

But to hear some Republicans tell it, trade only produces winners. Even as President Obama and Congress vigorously debate major trade agreements with Asia, Australia, Europe and Latin America, these legislators are trying to cut back on the few benefits that the government provides to workers hurt by foreign competition.

A longstanding program known as Trade Adjustment Assistance gives displaced workers training for new jobs, extended unemployment benefits, reimbursement for relocation expenses and so on. But the program is quite modest, helping just 84,529 people in the 2013 fiscal year, and less than half of those people received any training.

Congress made it harder for workers to qualify for T.A.A. last year. It is now available only to manufacturing workers; people laid off from service businesses like call centers cannot get help. And it assists only people affected by trade with a country that has a trade agreement with the United…

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The Northwest Seaport Alliance Hits Key Milestone

The Northwest Seaport Alliance hits key milestone as ports of Seattle, Tacoma prepare to unify marine cargo management.

Heralding a key milestone in the formation of a Seaport Alliance, a draft of the final agreement between the ports of Tacoma and Seattle has been released.
The Northwest Seaport Alliance will unify the two ports’ marine cargo terminal investments, operations, planning and marketing to strengthen the Puget Sound gateway and attract more marine cargo for the region.
“We intend to make our organizations stronger and more sustainable to better serve our customers, grow our regional economy and address unprecedented competition facing the shipping industry,” said Don Johnson, Port of Tacoma commission president.
The Alliance is the outgrowth of talks held under the sanction and guidance of the Federal Maritime Commission (FMC), the independent federal agency responsible for regulating the U.S. international ocean transportation system.
“As the state’s two largest container ports, we recognize the value of trade to our state’s economy,” said Stephanie Bowman, Port of Seattle commission co-president. “We are stronger together as we forge a new business model to add jobs and create economic opportunities.”
The agreement outlines The Northwest Seaport Alliance’s governance charter, management and financial structures, a transition plan and a business development strategy.
While the ports will remain separate organizations that retain ownership of their respective assets, they will form a port development authority (PDA) to manage the container, breakbulk, auto and some bulk terminals in Seattle and Tacoma. The airport, cruise business, marinas, such as Fisherman’s Terminal, grain terminals and industrial real estate, such as the Northwest Innovation Works and Puget Sound Energy facilities and Terminal 91 uplands, will remain outside the Alliance.
The PDA will be governed jointly by the two port commissions.
The commissioners expect to hire John Wolfe, current Port of Tacoma chief executive officer, as the CEO of the Seaport Alliance following the FMC’s approval of the agreement. Wolfe would lead both organizations through a transition period of up to five years before handing over his Port of Tacoma duties.
The two port commissions expect to consider submitting the final agreement to the Federal Maritime Commission at a joint public meeting June 5 at Auburn City Hall.
Citizen and stakeholder public review of this agreement will be undertaken throughout May, building on the extensive outreach that has occurred since the proposal was announced last October. The draft agreement, information about public meetings, how to submit written comments and other related news will continue to be updated regularly on the Port of Tacoma and Port of Seattle websites.


Take-home Asbestos Exposure Causes Mesothelioma Decades Later

Today’s guest post was co-authored by my wife, Kaitlin Wright, Associate Attorney with Bergman Draper Ladenburg Hart.  – – BMW

Take-home asbestos exposure through laundering contaminated clothing causes mesothelioma decades later.

Thomas H. Hart, III

Kaitlin T. Wright

There are few things in life that seem as mundane and benign as the simple act of doing household chores like laundry. Yet this routine chore, done for her husband, was the source of Barbara Brandes’ unwitting exposure to asbestos that ultimately caused her death decades later.

From 1971 until 1975, Barbara Brandes’ husband Ray worked as an operator at the newly-constructed Atlantic Richfield Company (ARCO) Cherry Point oil refinery in Ferndale, Washington. Defendant Brand Insulations contracted to perform the insulation work during the construction of the ARCO refinery in 1971 and 1972. At a time when there could be little doubt that the world knew asbestos was dangerous and carcinogenic—after the enactment of the Occupational Safety and Health Act and the genesis of the environmental revolution it epitomized—Brand used asbestos insulation in its work at the Cherry Point refinery without warning workers or taking any precautions to reduce hazardous asbestos exposures generated by Brand’s insulation work.

During the early 1970s, Brand insulators worked on-site at the Cherry Point refinery fabricating and installing insulation in the areas where Ray Brandes worked as an operator. The dust generated by Brand’s insulation activities contaminated Ray’s clothing with asbestos fiber. He was also exposed to asbestos when he and other ARCO employees removed the insulation materials Brand had installed when performing repairs to equipment and pipe.

At the end of each shift Ray worked at the Cherry Point refinery, he would return home in the clothes he had worn to work. Barbara would launder that clothing several times a week. When she shook the clothes out before putting them into the washer, asbestos fiber was released and dispersed into the air, exposing Barbara to invisible, imperceptible carcinogenic dust.

More than 40 years after Ray left the ARCO refinery, Barbara was diagnosed in June of 2014 with malignant pleural mesothelioma, a terminal cancer of the lining of the lung. At the time of her diagnosis, Barbara was advised by her physicians that her life expectancy was likely one year. Barbara succumbed to her mesothelioma on April 19, 2015, the evening before closing arguments in her trial against Brand Insulations.

The case was tried over two weeks in April in King County Superior Court before Judge William Downing. Plaintiffs were represented by Tom Hart and Kaitlin Wright of Bergman Draper Ladenburg Hart, PLLC. Brand Insulations, Inc. was represented by David Shaw and Malika Johnson of Williams, Kastner & Gibbs, PLLC. Barbara was 80 years old at the time of trial. The jury found that Brand was negligent, and that Brand’s negligence was a proximate cause of Barbara’s mesothelioma. The verdict included non-economic damages in the amount of $3,500,000.

Discovery Hurdles

One of the challenges in this case was locating witnesses capable of testifying to Ray Brandes’ employment and exposures at the Cherry Point refinery. Due to health issues, Ray was unable to testify or to recall the names of his coworkers so that they could be contacted and interviewed. An ad placed in The Bellingham Herald led to identification of Ray’s former coworkers, some of whom remembered working with him at the refinery back in the 1970s. An ARCO employee who responded to the ad testified at trial, and was one of the most compelling witnesses in the case as he was able to provide direct testimony regarding the work practices and exposures Ray Brandes experienced while Brand was working in his vicinity.

Liability Issues

In pretrial motions practice, the trial court granted summary judgment dismissing Plaintiff’s common law product liability claim against Brand, leaving negligence as the sole theory of liability for trial. Plaintiffs presented evidence that Brand had won the insulation subcontract with the general contractor for construction of the Cherry Point facility by coming in with the lowest lump-sum bid for the job. Brand contracted to perform “installation of thermal insulation of columns, heat exchangers, vessels, reformers, tanks, and piping in the various refinery units” at Cherry Point, procuring and installing all insulation materials on equipment and on the miles of piping required to be insulated throughout the refinery.

Brand offered testimony from Michael McGinnis, the project engineer who coordinated the Cherry Point job on behalf of Brand. Mr. McGinnis testified that he was just 21 years old when he traveled from Chicago to Ferndale to oversee the job, and conceded that he was equipped only with a high school education and on-the-job experience gained from his work as an apprentice insulator for Brand. On cross-examination by Mr. Hart, Mr. McGinnis acknowledged that the Cherry Point project was Brand’s largest dollar-value job in the company’s history by orders of magnitude. Mr. Hart also elicited from Mr. McGinnis on cross-examination the concession that no one at Brand had reviewed then-applicable Washington regulations identifying asbestos as a hazardous dust and requiring industrial hygiene controls to reduce exposures, nor did Brand make any effort to comply with those regulations.

Plaintiffs offered testimony from workers at the Cherry Point refinery who explained that the work of Brand insulators in the various refinery units manipulating, cutting, sawing, and installing asbestos insulation products generated considerable dust. Additional witnesses explained that ARCO had initially requested an asbestos-free refinery, but the asbestos-free insulation failed, so Brand reverted to asbestos-containing insulation materials part-way through their work at Cherry Point. Under cross-examination by Mr. Hart, Mr. McGinnis conceded that Brand nonetheless never warned workers that they were using asbestos or took any measures to reduce asbestos exposures to bystanders like Ray Brandes.

Brand argued that it did not or could not have known of a risk of take-home asbestos exposure from the insulation work it performed at Cherry Point resulting in mesothelioma among family members of ARCO operators like Ray Brandes. Plaintiff’s expert pathologist Dr. Andrew Churg testified that Mrs. Brandes had malignant mesothelioma of the pleura or lining of the lung, and that her mesothelioma was caused by washing her husband’s asbestos-contaminated work clothing. Plaintiff’s expert industrial hygienist, John Templin, CIH, testified to the industrial hygiene measures and engineering controls available to Brand in the 1971-75 timeframe to protect against Ray and Barbara Brandes’ significant asbestos exposures resulting from Brand’s insulation work. Plaintiffs also called Dr. Barry Castleman who testified regarding the extensive body of scientific and medical literature published throughout the decades leading up to Barbara’s exposures in the early 1970s, which confirmed that asbestos exposure could cause fatal disease, including mesothelioma, and detailed methods of avoiding dangerous exposures to bystanders and family members of exposed workers. Brand called Francis Weir, Ph. D., and Joseph Holtshouser who testified regarding toxicology and industrial hygiene principles. Dr. Weir testified during cross-examination by Mr. Hart that other West Coast insulation contractors were researching the hazards of asbestos by the time Brand began its work at Cherry Point. Mr. Holtshouser testified to the dose reconstruction of Barbara’s asbestos exposures he had performed and opined that her exposures were minimal and insignificant.


Prior to her diagnosis, Barbara had undergone many rounds of chemotherapy in an attempt to slow the progression of her cancer and prolong her life. She was not a candidate for surgical resection of her tumor, nor was radiation therapy recommended. Barbara bravely pursued as aggressive a chemotherapy regimen as her body could tolerate and her oncologist would recommend. She had more than one bout with pneumonia and experienced many other side-effects from the chemotherapy. Plaintiffs elected to forego pursuit of economic damages related to Barbara’s medical treatment, and instead simply asked the jury to decide Barbara’s non-economic damages for her injuries, disability, inconvenience, loss of enjoyment of life, and pain and suffering.

Because Barbara passed away on the eve of closing arguments and submission of the case to the jury, Plaintiffs faced the prospect of quickly converting Barbara’s personal injury action to a survivorship action to allow the case to proceed. This was successfully accomplished and the jury was instructed as to the fact of Barbara’s passing, the change in the case caption, and that future non-economic damages were no longer to be considered in assessing Plaintiff’s damages. In closing, Ms. Wright and Mr. Hart brought together the story of Brand undercutting local insulation companies to win the Cherry Point contract, and Brand’s concomitant sacrifice of safety to maximize profit in the largest job it had ever undertaken. The jury was unanimous in its finding of Brand’s negligence.

Barbara is survived by her eight children and many grandchildren, great-grandchildren, and a great-great-grandchild. While Barbara’s deteriorating health prevented her from being present in the courtroom every day, her daughter Ramona Brandes attended trial and was able to observe her mother’s engrossment in the case even as she approached the end of her life. Ramona explained: “My tales of the trial in her last days were one of the things she sparked on, wanting to hear every last detail. She passed away the day before closing arguments, but I know her verdict is something she would have been so thrilled about because her win will help other families like ours fighting for their own justice.”

Thomas H. Hart, III, Partner – Bergman Draper Ladenburg Hart, PLLC

Tom Hart was a pioneer in asbestos litigation in the United States and continues work on behalf of injured shipyard workers, former Navy personnel, pipe fitters, carpenters and others ravaged by asbestos disease. Since 1980, Tom has successfully represented asbestos victims in over 40 States and Territories. Tom has won verdicts and settlements totaling hundreds of millions of dollars for his clients and their families. In 1986, Tom filed and served as Lead Counsel in the first Nation-wide Class Action Settlement for asbestos victims.

Kaitlin T. Wright, Associate – Bergman Draper Ladenburg Hart, PLLC

Kaitlin Wright joined Bergman Draper Ladenburg Hart as an associate in 2013 after graduating from Seattle University School of Law, magna cum laude. Prior to joining Bergman Draper Ladenburg Hart, Kaitlin externed with the Honorable Stephen J. Dwyer at the Washington Court of Appeals in Seattle. Kaitlin also worked during law school as a Rule 9 legal intern with the Snohomish County Prosecutor’s Office in Everett. In her two years at Bergman Draper Ladenburg Hart, Kaitlin has represented mesothelioma victims in litigation in Washington and Oregon and has tried cases to verdict in both states.


Photo credit: Tabsinthe / Hampton Patio / CC BY



Focus on Preventing Falls During “Safety Stand-Down”

In the first three months of 2015, three construction workers in Washington state died from falls. Falls account for the highest number of deaths among construction workers nationally and more than half of all worker hospitalizations across all industries in Washington.

Because of the high number of construction-related falls, the Washington State Department of Labor & Industries (L&I) has teamed up with the federal Occupational Safety and Health Administration for the second year to sponsor a “Safety Stand-Down.” The work site safety focus started last week and runs through Friday, May 15.

“It’s time to be proactive as opposed to reactive to help prevent all accidents on our job sites—especially life threatening accidents from falls.”

A safety stand-down is a voluntary event where employers take time at a construction site to discuss potential hazards and how to prevent injuries. It could be a short toolbox talk, refresher training, reviewing safety bulletins or watching a safety video.

“Fatal falls are preventable but it takes a dedicated effort by employers and workers to make it an important part of every workplace safety plan,” said Anne Soiza, assistant director for L&I’s Division of Occupational Safety and Health. “We’re asking all construction employers to pause in their workday and talk with their workers about preventing these tragedies.”

As part of the effort, L&I sent educational materials to all construction employers, is running bus ads in several communities, and is promoting the event through social media.

Construction is really picking up in our state, so it’s more important than ever to reinforce the importance of fall prevention, according to John Erwin, owner of John Erwin Remodeling Inc., and former president of Olympia Master Builders.  “Three construction workers have died this year in our state, which is tragic. None of us would want that to happen on our job sites. It’s time to be proactive as opposed to reactive to help prevent all accidents on our job sites—especially life threatening accidents from falls,” said Erwin.

As part of his safety stand-down, Erwin directed his staff to inspect all their ladders and ended up taking two of the more well-used but questionable ladders out of service and replaced them with new approved ladders.

Participating employers can print out a certificate of participation and add their name to a list of safety stand-down supporters. For ideas and resources or to get a certificate of participation, visit www.Lni.wa.gov/StopFalls.


4 Ways to Avoid the Most Common Warehouse Incidents

Today’s post was shared by Workers Comp Brief and comes from www.ulworkplace.com


Employees working in a warehouse are exposed to a number of strenuous activities that can threaten their well-being. According to OHSA, the number of forklift-related accidents reaches close to 100,000 per year (100 fatal accidents, 34,900 serious injury accidents, and 61,800 non-serious accidents). As a result, those who handle heavy material handling equipment such as forklifts need to take special precautions to ensure that the materials they transport are properly handled. Here are four most common warehouse incidents you can easily avoid to prevent injuries and increase workplace productivity.

Slips & Trips
The warehouse is a place with lots of stuff. Its narrow aisles, tall stacks of goods, and poor lighting are the exact ingredients that can compromise visibility. Slipping and tripping over materials or spilled liquid are common accidents that can be avoided if the warehouse maintains adequate lighting and equips dark corners with special lights that can be easily switched on and off. Remove unnecessary steps or ridges and encourage employees to never leave any cargo, box, and goods unattended on the floor.

If a warehouse worker needs to temporarily leave the floor, it is important for him or her to move materials away from the center of the aisle while keeping lights on. In cases when something is spilled, employees should take the proper steps to close the area with visible signs and clean up as soon as possible.

Duties in the warehouse sometimes take…

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Insurance Information Institute Challenges Our Workers’ Comp Investigation. We Respond

Today’s post was shared by Jon L Gelman and comes from www.propublica.org

After John Coffell hurt his back at an Oklahoma tire plant last year, his wages dropped so dramatically that he and his family were evicted from their home. (Brett Deering/AP for ProPublica)

Last Thursday, the Insurance Information Institute sent ProPublica and NPR a letter challenging our investigation into workers’ compensation reform laws and the impact they’ve had on some workers.

The stories reported that since 2003, more than 30 states have cut benefits, created hurdles to getting medical care, or made it more difficult for injured workers to qualify. At the same time, we reported, employers are paying the lowest workers’ comp rates since the 1970s. And in 2013, insurance companies had their most profitable year in over a decade.

Robert P. Hartwig, president of the institute, wrote that the stories were based on “unsubstantiated assertions, incorrect interpretations and subsequent erroneous conclusions.”

He pointed to no specific errors, however, and demanded no corrections.

We’ve posted a summary of the institute’s letter here. This is our response:

1. “The very title of the ProPublica/NPR is at best misleading and at worst erroneous. ‘The Demolition of Workers Comp’ is hyperbole of the highest order. The fact of the matter is that workers’ compensation insurers today provide some $40 billion in benefits annually to hundreds of thousands of injured workers and to the families of those killed on the job…

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Florida Supreme Court Thwarts Attempt to Circumvent “Exclusive Remedy” Provision

Today’s post was shared by Workers Comp News and comes from www.jdsupra.com

Most states limit a worker’s remedies for work-related injuries to a workers’ compensation claim against the employer. Such "exclusive remedy" provisions codify a longstanding compromise whereby employers trade liability, regardless of fault, for protection from large tort awards, and employees surrender a cause of action in return for swift but limited financial benefits.

Plaintiffs’ attorneys and like-minded reformers seeking to challenge exclusive remedy provisions have made some progress in recent years. For instance, in August 2014, a judge in Miami-Dade County, Florida ruled that Florida’s workers’ compensation statutes were "unconstitutional" on their face because they no longer provided adequate benefits to injured workers in exchange for them giving up their constitutional rights to pursue civil litigation. In Padgett v. State of Florida, which is currently on appeal, the trial judge declared that statutory changes in Florida had eroded benefits for injured workers to the point that it was no longer a "grand bargain" for the injured workers.

In Morales v. Zenith Ins. Co., however, the Florida Supreme Court recently rejected an attempt to evade the exclusive remedy provisions of Florida’s workers’ compensation law, holding that the challenged provisions barred the estate of a worker killed on the job from collecting a $9.5 million wrongful death judgment against the deceased worker’s former…

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Comp reporting plan would increase employer burden

Today’s post was shared by Workers Comp Brief and comes from www.businessinsurance.com

Photo by BLOOMBERG A sign marks the entrance to the headquarters of the Social Security Administration located on Security Boulevard in Baltimore, Maryland.

The Social Security Administration’s proposal that workers compensation benefits be reported annually to the agency would increase insurers’ and employers’ paperwork and costs.

“There is a potential here of an extra burden … and potentially extra costs for employers and carriers around the country,” said Rafael Gonzalez, Tampa, Florida-based vice president of strategic solutions at Helios Settlement Solutions, a unit of pharmacy benefit manager Helios.

The requirement likely would be similar to reporting rules implemented by the Centers for Medicare and Medicaid Services in 2009, said Brad Peterson, a shareholder at law firm Heyl, Royster, Voelker & Allen P.C. in Urbana, Illinois.

“It would require insurers or others covered under this proposed rule to determine the Social Security status of a particular workers compensation claimant. So it would certainly add a burden in that regard,” Mr. Peterson said.

The mandate is a single paragraph in the Social Security Administration’s proposed fiscal 2016 budget published in February. The administration says it would require “states, local governments and private insurers that administer” workers comp and public disability benefits to report data on those benefits to the administration.

The proposal also would “provide for the…

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WA State Agency Asks for Criminal Charges in Teen’s Workplace Death

By Nick McGurk, KIRO TV

The Department of Labor and Industries is pushing for criminal charges against a company after a teenager was found dead in the blades of an auger last July. 

Bradley Hogue, 19, was on his second day of work last July at a landscaping job he’d taken with Everett-based Pacific Topsoils. 

Hogue, found by a co-worker, was tangled in the blades of an auger on a wood-chipping truck. 

L&I’s director wrote a letter this week to the King County Prosecutor’s Office asking for charges to be filed – a move so rare it only happens once every couple of years. 

“This situation is horrible, and tragic, and nobody would ever want it to happen to anyone they know,” said Tim Church with Department of Labor and Industries. 

“It’s rare for us to ask for criminal charges in a workplace safety incident, but we believe this one warrants it,” added Church. 

The L&I letter states that Hogue never should have been in that truck with machinery on, and that the only place he could stand was a moving conveyor belt. 

He didn’t receive any training, the letter says. 

In late December, L&I also fined Pacific Topsoils nearly $200,000—a fine the company has since appealed. 

L&I says they conduct thousands of inspections every year in the state of Washington. 

Last year they reported 89 workplace related deaths. 

Pacific Topsoils didn’t respond to KIRO 7’s voicemail or emails for comment on Friday night.


Contracting Scams Result in Jail Time and Fines

Seattle – A contractor who scammed two building owners has been sentenced to four months in King County Jail and ordered to pay more than $25,000 in restitution.

Collin Patrick Chester, 43, pled guilty in December 2014 to two felony charges of first-degree theft. Superior Court Judge Theresa B. Doyle ordered Chester into custody immediately after sentencing March 27 and filed a 10-year no-contact order with the owners or buildings.

“Justice for consumers is important,” said Elizabeth Smith, assistant director of the Fraud Prevention & Labor Standards Program for the Washington State Department of Labor & Industries. “This is sadly another example of someone trying to take advantage of people who simply wanted to get needed work accomplished.”

In one case, in the spring of 2012, the owner of the Quality Inn on Maple Valley Highway in Renton agreed to pay Chester $70,000 to replace the roof. The only work Chester did was to hire an unregistered subcontractor who tore off a portion of the roof and then abandoned the job because he was not paid, leaving an open roof that resulted in water damage to the hotel when it rained.

In the second case, Chester was contracted to build a new roof for a building in Shoreline. He said he would do the work for $16,000, but no work occurred from May to September 2013, when it was supposed to take place.

In both cases, the building owners paid for some of the work in advance and faced additional expenses to complete the projects. Chester’s previous criminal history included three cases of contracting without a license, a gross misdemeanor.

L&I can help building owners hire smart. Go online to www.protectmyhome.net to verify contractor registration, report fraud, and find agency representatives at many home shows around the state. Upcoming events include the Spokane SHBA Premier Home Improvement Show April 10 – 12, at the Big Home & Garden Show April 18 – 19 in Lacey, and at the Clark County Home & Garden Idea Fair in Ridgefield, April 24 – 26.

Published by Causey Law Firm