All posts by Kit Case

Diesel Fumes and Lung Cancer

Diesel Fumes Cause Lung Cancer

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

Lung cancer is the leading cause of death for men and women in the United States. It’s greater than breast and colon cancer in women and greater than prostate, colon, pancreatic and liver cancer in men. If diagnosed early there is a 70-80% survival rate for 5 years, and a low-dose CT scan of the chest can detect 60-70% of lung cancers at an early stage. Unfortunately, there has been no significant progress in the treatment of lung cancer in 40 years and between 10,000–20,000 occupational lung cancer deaths occur each year in the United States.

One area of concern is the relationship between diesel exhaust exposure and lung cancer. In June of 2012 the International Agency for Research on Cancer (IARC) classified diesel engine exhaust as carcinogenic to humans, and studies of underground miners support that statement and also indicate that others who are around diesel fumes may be at an increased risk. Toxic chemicals in diesel gas are nitrogen oxides, sulfur oxides, carbon monoxide, benzene, PAHS (polycyclic aromatic hydrocarbons), aldehydes and nitro-PAHS.

Railroad workers, miners, truck drivers, bus operators, longshoremen and others who have been heavily exposed to diesel fumes are obviously at greater risk than those with less exposures, but even minimal exposures may cause harm. In urban areas, like lower Manhattan, there is concern that diesel exposures may be a public health hazard and detection systems have been placed in areas to collect exposure data. As for workers who have experienced intense, short-term duration to diesel fumes, a chemical called 1-hydroxypyrene may be elevated in urine, but the test for this marker is not performed by most commercial laboratories. The Mount Sinai – Irving J. Selikoff Center for Occupational & Environmental Medicine is studying diesel exposure and may be a good resource for future information, as well as the National Clean Diesel Campaign:

Ceremony April 23 to Mark Worker Memorial Day

The agency has hosted a ceremony for Worker Memorial Day for 20 years.

A young fisherman, a veteran truck driver, a bridge painter, and an office manager working at her desk – these are among the 66 people who will be honored this year at the 2013 Worker Memorial Day ceremony April 23rd. The parents, spouses, children and other relatives of those who died from a job-related illness or injury last year have all been invited to the Washington State Department of Labor & Industries’ (L&I) annual Worker Memorial Day ceremony.

“We honor those who died last year by pledging to do everything in our power to prevent these tragedies from being repeated.” – Director Joel Sacks

The 66 workers to be honored include young people, such as the 22-year-old college student working as a commercial fisherman, to seniors in their 80s who died from diseases caused by workplace exposure to asbestos while they were in their prime working years. Some worked in jobs considered hazardous, like logging, construction and fishing, and others were in less hazardous professions, such as insurance, research, or sales.

“Worker Memorial Day is a somber reminder that there is still much work to do to make sure every worker in Washington returns home safely at the end of the day,” said L&I Director Joel Sacks. “We honor those who died last year by pledging to do everything in our power to prevent these tragedies from being repeated.”

The ceremony begins at 2 p.m. at L&I’s central building in Tumwater, 7273 Linderson Way S.W. The agency has hosted a ceremony for Worker Memorial Day for 20 years.

Governor Jay Inslee is scheduled to attend, as well as representatives of the Association of Washington Business, the Washington State Labor Council, and the Washington Self-Insurers Association. While the relatives of all the workers who died in 2012 have been invited, the observance is also open to their friends, colleagues, and the general public.

The ceremony includes a reading of the names of the workers who died, accompanied by bell ringers from the Washington State Council of Fire Fighters. After the ceremony, the families are invited to ring the brass bell in the Worker Memorial garden on the grounds of the L&I building.

A book in the lobby of L&I’s Tumwater building contains the names of all the fallen workers. For a complete list of those being honored, visit


To connect with L&I: Facebook ( and Twitter (

Photo credit: Mauigirl 2011 / / CC BY-ND

New Rules Proposed for Prescribing Narcotics to Treat Pain in Injured Workers

Washington has been among the states with the highest rate of prescription opioid-related deaths.

The Washington State Department of Labor & Industries (L&I) is seeking public comment on new rules for prescribing opioids (narcotics) to treat pain in injured workers.

Under the proposed rules, doctors who prescribe opioids for injured workers for more than six weeks must use best practices that include monitoring whether workers are recovering their ability to perform normal activities. 

The Department is gathering public comment on the proposed rules and holding a hearing on April 23, at 1 p.m. in Tukwila, WA.  All written comments must be received by 5 p.m. April 23rd.

The rule changes are part of L&I’s ongoing efforts to improve the safety and effectiveness of treatment for pain among injured workers in Washington state. Nationwide, since 2007 opioid-related deaths have exceeded accidental deaths due to motor-vehicles and firearms. Washington has been among the states with the highest rate of prescription opioid-related deaths.

“Our goal is to provide high-quality care and keep injured workers safe while they are recovering,” commented Dr. Gary Franklin, L&I Medical Director. “We’re making progress. We’re seeing fewer deaths among injured workers due to pain medication. The new rules are the next step in reducing ineffective and dangerous use of these powerful drugs.” 

L&I coverage can continue after six weeks when doctors use best practices spelled out in the rules. The new requirements will not apply to the treatment of acute pain following surgery or within six weeks of injury, or to prescriptions for workers being treated for catastrophic injuries. The changes will make L&I’s rules consistent with pain management rules implemented by the Department of Health in 2011 and 2012.

To gather public comment on proposed rules, a hearing will be held on April 23, at 1 p.m. in Tukwila, at the L&I office at 12806 Gateway Drive S. Written comments may be sent by mail to Jami Lifka, Department of Labor & Industries, PO Box 44321, Olympia, WA  98504-4321; by e-mail to; or faxed to 360-902-6315. All comments must be received by 5 p.m. April 23.


Photo credit: massdistraction / / CC BY-NC-ND

Misclassification Fraud Across the Country

North Carolina Governor Bev Perdue Signed Executive Order 125

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

“Misclassification” is a poorly chosen word to describe fraudulent conduct by employers who misclassify the status of their employees. For example, a roofing company may have 30 roofers doing the actual work but these workers are classified as “independent contractors” instead of employees. Why would they do that? At the end of the year these workers are sent a 1099 tax form that reports the wages paid, but the employer does not make any deductions for Medicare or unemployment, and doesn’t pay for workers’ compensation insurance. If you have a roofing company and you properly classify your employees, you are at a competitive disadvantage in bidding on jobs. Honest businesses are hurt by misclassification, and taxpayers are hurt because they pick up medical bills and other expenses created when one of these “independent contractors” gets hurt.

Another form of misclassification is when a construction company with 85 employees reports to its workers’ compensation insurance company that 75 of these people are staff workers, which results in a significantly reduced premium. Obviously, a construction worker is at greater risk of injury than an office worker. Again, the honest company who accurately reports the status of its employees is at a competitive disadvantage with the dishonest employer.

New York, New Jersey, Massachusetts, Virginia, Michigan, Florida, California, Texas and the vast majority of states across the country have been looking into this issue for several years and they have been aggressively prosecuting dishonest employers who try to game the system. North Carolina has finally joined these states. On August 22, 2012, Governor Beverly Perdue issued Executive Order 125, which created a task force to study this issue and try to get different agencies to communicate with each other and share information to identify employers who are failing to pay employee taxes. Hopefully, this task force will figure out how to enforce existing law. This blog will follow the progress of this task force. Stay tuned.

Reversing A Century Of Progress – Are We Back In Upton Sinclair’s Jungle?

Many workers no longer have paid sick days.

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

Health Care Is Just The Beginning

At a time when a flu epidemic is exploding out of control, killing thousands of people, forty-two million Americans have no sick leave. Many of these people are lower paid, often work part time, and continue to work when ill because they can’t stay home to recover without losing their income. I am shocked and dismayed that many hard-working folk are forced to work when sick because staying home is not economically possible. Making matters even worse, these highly vulnerable workers often have no employer-provided health insurance so even serious illnesses go untreated, putting us all at a higher risk for infection from a contagious worker, like a server in a restaurant, for whom taking an unpaid day off is impossible.

…the trend toward low pay, long hours and few benefits is getting stronger.

I fear that if the current trends continue, the lives of the millions of Americans who struggle at low-paying jobs will remain miserable, desperate and be lacking in real hope. It appears that the trend toward low pay, long hours and few benefits is getting stronger. At the turn of the 20th century when Upton Sinclair wrote “The Jungle,” describing immigrants struggling in Chicago, the jobs were more physical, dangerous and just plain disgusting. However, millions of “New Jungle” workers still struggle and suffer today.

Class Warfare

After over 100 years of progress, the American middle and lower classes are under constant attack. The efforts to limit rights of workers are ongoing and supported by big business. Every day I read of measures being introduced in state legislatures to limit access to and decrease the benefits of workers’ compensation. The right to collective bargaining is being attacked as well. Local elections are overrun by anonymous innocent-sounding Super PACs funded by 21st Century versions of robber-barons who are using their wealth and power to squeeze out a few more dollars in profits to add to the tens of billions of dollars already sitting in their bank accounts. These are not job creators, they are their own personal wealth creators. Income equality is at an all-time low in the United States, and the trends are getting worse.

How can this be happening in 21st century America? How can we call ourselves civilized? Can we really allow such maltreatment of workers and disregard public health in what we call an “advanced,” “modern,” and frequently, an “exceptional” county?

A Path Forward

We are not without hope, though. Crusaders like Senator Elizabeth Warren are working hard to reverse the trends and preserve the American Dream for future generations. But our protectors are few. We cannot assume that someone else is looking out for us. We must engage with government at the local, state and federal levels so that the voices of regular working folk are not drowned out by a cabal of rogue billionaires trying to keep score by increasing their own personal fortunes at the expense of working people. I fear that if we sit by passively, our children will all be working in the New Jungle, America will have lost its middle class, and with it, the American Dream will be a distant memory. The time to act is now.

Let OSHA Do Its Job

OSHA is being prevented from fulfilling its mission.

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

Urge Legislators to REJECT Pending Workers’ Comp “Reforms”

The Washington State Labor Council posted the following in their Legislative Update newsletter on March 29, 2013. We couldn’t have said it better ourselves. Please contact your legislators and share your story (or your parent’s or sibling’s or friend’s story) of your experience with the workers’ compensation system. Urge your legislator to hold off on approving any more “reforms” until the impact of the last round of “reforms” is fully realized.

Stay on top of the issues that effect Washington workers.  Check out the Washington State Labor Council’s Legislative Tracker™ for updates on many of the key bills of concern to the WSLC and its affiliated unions.  Read the latest news at, WSLC’s online newsletter.


FRIDAY, MARCH 29, 2013

4 Reasons Why Our Current Workers’ Compensation System WORKS

OLYMPIA — One of the first legislative priorities of the State Senate’s Republicans-Plus-Two Coalition was to pass bills that undermine Washington State’s safety net for middle-class families: our unique — and popular — workers’ compensation system. SBs 5112, 5127 and 5128 all grant employers more control over injured workers and/or seek to “cut costs” by reducing benefits injured workers receive. And all three are based on the myth that our state-run workers’ compensation system is costly and overly generous. It is neither.

It is unique. Washington is the only state where workers share in the system’s costs, is one of only a handful of states that does not allow private workers’ compensation coverage, and is the only state that bases rates on exposure to risk (hours on the job) as opposed to wages, so premiums don’t automatically go up as wages rise.

It is popular. Advocates for the above-mentioned Senate bills — conservative legislators, corporate lobbying groups and sympathetic newspaper editorial boards — also support privatizing our workers’ comp system. But in 2010, their initiative to do this failed miserably, by an 18-point margin, and was rejected by voters in every county in the state — east and west of the mountains. That didn’t stop Republican Rob McKenna from vowing to privatize the system in his campaign for governor. He lost.

The Washington State Labor Council, AFL-CIO urges legislators to REJECT all efforts to undermine the workers’ compensation safety net for injured workers. Please OPPOSE Senate Bills 5112, 5127 and 5128. No more “reforms” until we see how the changes currently being implemented are working!

Here are four reasons why our system works as it stands and legislators should reject SBs 5112, 5127, 5128 and any other attempts to undermine this middle-class safety net:

  1. Premium costs are shared

Washington is the only state where workers pay a share of the costs of workers’ compensation coverage — between 25% and 30%. Workers pay half the cost of the fund that pays medical expenses for workers who suffer job-related injuries or illnesses and half the cost of the fund that partially replaces lost wages when workers are unable to work due to their injury or illness. Our workers’ compensation system is truly of, by and for the workers.

 2. Recessions (not benefits) raise rates

An objective look at the history of workers’ compensation rate increases shows that rate increases happen during and immediately after recessions. There is no evidence that rate increases are related to increased benefits or pensions. In fact, rate increases from the Great Recession of 2008-10 were actually lower than those caused by previous recessions, despite the fact that this most recent recession was long and deep, and employment levels have yet to fully recover.

In addition, in 2007 — the year before the recession hit — Gov. Chris Gregoire granted a rate decrease of 2% and a 6-month “rate holiday” where employers and workers paid nothing for the medical portion of their insurance. If not for those poorly timed rate cuts, the subsequent 2008-11 recession-generated rate increases would have been even lower. The 2007 rate cuts cost the system $315 million, or the 2007 equivalent of a 35% rate decrease. By comparison, the 12% rate increase in 2011 brought in $196 million.

Despite all this, and despite continuing medical cost inflation, our workers’ compensation system has had an actual average rate increase of ZERO in both 2012 and 2013.

 3. Employer costs are competitive

The Oregon Department of Consumer and Business Services conducts a biannual state-by-state study of workers’ comp premiums that is widely cited not only among public policy experts and state labor agencies across the nation, but also by private insurance professionals. The latest edition, published in October 2012, found that Washington State had the 13th highest overall premiums in the nation.

But the news is actually better for employers here because Washington is the only state where workers pay a portion of the premiums. When that fact and the cost of supplemental pensions are factored in — which the Oregon study does not — Washington ranks 22nd in the nation. So, right in the middle.

Proponents for cutting workers’ compensation benefits don’t like to talk about the actual evidence that our rates are competitive. Instead of talking about employers’ costs, they focus on injured workers’ benefits, noting that our state has the 2nd highest benefits per $100 of payroll, according to the latest report from the National Academy of Social Insurance.

But in Washington’s case, higher benefits don’t mean higher costs. Our state-run workers’ compensation system — one of only five such systems remaining in the U.S. — is viewed as a national model for its efficiency. It can afford good benefits while charging competitive premiums because there are no profit margins, commissions or brokerage fees, as there are in privatized systems. It has significantly lower claims administration costs and no marketing or advertising costs. Voters overwhelmingly rejected the 2010 privatization initiative and its false promises of lower costs because they recognized this and value this state-run institution.

4. 2011 changes are saving $1.5 billion

In 2011, the Legislature approved changes to the workers’ compensation system. The Department of Labor & Industries estimates that savings from those changes are beating expectations, with the state now projected to save $1.5 billion over four years, $200 million higher than originally estimated. And these changes have not even been fully implemented yet.

The Washington State Labor Council, AFL-CIO urges legislators to REJECT all efforts to undermine the workers’ compensation safety net for injured workers. Please OPPOSE Senate Bills 5112, 5127 and 5128. No more “reforms” until we see how the changes currently being implemented are working!

Retrain injured workers… don’t cut them off

And let’s also remember that these decisions affect real people who have suffered real injuries and illnesses that change their lives — and affect their entire family’s well-being.


Skilled Maintenance Services Can Be Covered by Medicare

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

A settlement was recently reached in a pending Federal Court case tht will benefit Medicare beneficiaries who require skilled services. The Centers for Medicare and Medicaid Services (CMS) will no longer require that a patient “improve” inorder to be entled to services. Jimmo v. Sebelius, No. 11-cv-17 (D.Vt.), filed January 18, 2011

“New policy provisions will state that skilled nursing and therapy services necessary to maintain a person’s condition can be covered by Medicare.”

See: “Settlement Reached to End Medicare’s “Improvement Standard”

Read more about Social Security

Aug 11, 2012
The Social Security Administration has added to its list of compassionate allowances a pulmonary condition that has been identified as arising out of exposures to burn pits fumes and dusts in Iraq and Afghanistan.
Aug 03, 2012
“If a worker becomes eligible for both workers’ compensation and Social Security disability insurance benefits, one or both of the programs will limit benefits to avoid making excessive payments relative to the worker’s past …
Aug 13, 2012
An employer cannot stop paying workers’ compensation benefits merely because the injured worker was awarded Social Security Disability benefits. In fact, the premature termination of temporary disability benefits was …
Nov 03, 2012
The Social Security Administration has added to its list of compassionate allowances a pulmonary condition that has been identified as arising out of exposures to burn pits fumes and dusts in Iraq and Afghanistan.



How Does Social Security Help Me Get Back to Work?

The SSA has programs to help disabled people rejoin the workforce.

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

As I discussed in a previous post, you don’t have to be on Social Security Disability (SSD) forever. Many people find that their medical conditions improve and they want to try to get back to work. However, it’s hard to get back into the workforce after being out of it for a long time, and people are worried about losing their eligibility for benefits if they try to go back to work but are unsuccessful.

Social Security recognizes that it can be difficult for people to get back into the labor market and that people would be reluctant to go back to work if they would automatically lose entitlement to their disability benefits. To address these concerns, Social Security runs several programs to help people transition back into the workforce while maintaining financial eligibility.

Social Security has many programs and policies to help people return to work, but I will discuss two of these programs in some detail. These are the Ticket to Work program and the Trial Work Period.

The Ticket to Work program gives disabled individuals access to a network of services that offer retraining and vocational rehabilitation. This is a free, completely voluntary program. Once you reach out to them, you will Continue reading How Does Social Security Help Me Get Back to Work?

Holding Individuals Accountable For Workplace Safety Violations

Today’s post comes from guest author Leila A. Early from The Jernigan Law Firm.

British Petroleum (BP) supervisors Donald J. Vidrine and Robert Kaluza were indicted on manslaughter charges in the deaths of 11 fellow workers in connection with the 2009 Deepwater Horizon explosion in the Gulf of Mexico. David Rainey, a BP deepwater explorer, was charged with obstruction of Congress and lying about the size of the spill. These indictments were in addition to a record $4.5 billion in criminal fines that BP agreed to pay for the disaster, which will be paid out over 5 years.

Mr. Vidrine and Mr. Kaluza were negligent in their supervision of key safety tests performed on the drilling rig, and they failed to phone engineers on shore to alert them of problems in the drilling operation. These charges carry maximum penalties of 10 years in prison on each “seaman’s manslaughter” count, 8 years in prison on each involuntary manslaughter count and a year in prison on a Clean Water Act count. Mr. Rainey obstructed Congressional inquiries and made false statements by underestimating the flow rate to 5,000 barrels a day even as millions were gushing into the Gulf. He faces a maximum of 10 years in prison.

By charging individuals, the government was signaling a return to the practice of prosecuting officers and managers, and not just their companies, in industrial accidents where reckless and wanton conduct is involved. The practice of charging individuals was more prevalent in the 1980s and 1990s but has recently been a rare occurrence, with company fines being the only penalty sought. Some wonder if the $4.5 billion criminal settlement is enough to penalize a corporation after 11 people were killed, and that if a culture of  disregard for safety exits in a corporation that is “too big to fail” then the only way to stop that culture is to send those who knew about it to jail. We shall see.