Category Archives: workplace safety

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Chemical Exposure in Chicken Plants

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

Several members of Congress have written to Secretary of Labor Tom Perez, Secretary of Agriculture Tom Vilsack and Secretary of Health and Human Services Sylvia Burwell regarding the danger of the chemical PAA, which is used to sanitize chickens in poultry plants.

According to The Pump Handle blog written by occupational health expert Celeste Monforton, the increase in the use of PAA is linked to the Department of Agriculture’s “modernized inspection” system. Though meatpacking is well known for the prevalence of musculoskeletal injuries, chemical exposure is a less well-known, but similarly serious hazard, to meatpacking workers, which has been recognized by the Occupational Safety and Health Administration.

The hazards of chemical exposure are not limited to meat-processing workers. Chemical exposure fatalities are too common in rural America. Recently, a worker on an industrial cleaning crew in Beatrice, Nebraska, was killed from inhaling industrial cleaning chemicals. In October, a resident of northeast Nebraska was killed after inhaling chemicals from a leak in anhydrous ammonia pipeline. That same month, 125 residents of Atchison, Kansas, sought treatment for inhalation of chlorine gas from an explosion at a distiller.

While chemical exposure can often result in sudden death, ongoing exposure to chemicals can also create injuries that may not be apparent for years after the exposure. Unfortunately, Nebraska limits the ability of workers to recover for such injuries.

The letter about the hazards of PAA was written to outgoing cabinet members. The new Trump administration is expected to have a less-aggressive approach toward regulating the workplace. Hopefully the new administration will take the threat posed by hazardous chemicals in the workplace seriously.

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In Complicated Times, Police Who Risk Their Lives Still Need Support

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

Last week was a very bad one for police officers across the country, starting with the separate police shooting of two unarmed men. These shootings – days apart in different parts of the country – sparked widespread outrage and protests throughout the country. 

While the investigation continues into the circumstances surrounding these civilian shootings, video evidence suggests the outrage over these shootings appears to be justified. The week ended with the assassination of five police officers in Dallas who were providing protection to citizens engaged in a peaceful protest over the shootings of the unarmed men. The gunman indicated he had killed the police officers in retaliation for the shooting deaths. This was the worst loss of life for the police department since September 11, 2001.  Additionally, seven police officers were injured in the attack.

These horrific events highlight the difficult job that police face every day. While not all police officers are perfect (in fact, who amongst us is?), most don’t begin their shifts with the mindset that they are going to kill a civilian. Most see their role as keeping the peace and protecting citizens. They do, however, wonder many times whether they will make it through their shift safely and return home to their loved ones.    Unfortunately, they are not always immune to death and injury.   

As an attorney who has represented many law enforcement officers injured on the job, I know the majority of them receive medical treatment and may have a period of convalescence, but then are able to return to work. However, some sustain serious and career-ending injuries. Most police officers in New York City and Long Island are likely a member of a Civil Service Retirement System. If so, and they become permanently disabled from performing their specific job duties, they may be eligible for a life-long disability pension.

There are many pension systems in the state, all with different applications, rules, procedures, and guidelines. Each disability pension has its own statute of limitations and guidelines for eligibility. There are different pensions available, ranging from one-third to three-quarters. Just because you were injured on the job does not mean you are automatically entitled to the three-quarter pension, which would enable you to receive 75% of your previous year’s earnings. 

Although not always relevant, how police officers are injured on the job can impact whether they are entitled to a three-quarter disability pension. Additionally, just because they were injured while working does not automatically mean they are entitled to a three-quarter disability pension. Factors that get taken into account are issue of causation, medical evidence from the officer’s own doctor, and the retirement system’s medical board. It is not always an easy process for our law enforcement personnel to receive reasonable retirement benefits, but it should be. Day in and day out, they protect the citizens of our cities and our states, putting their own lives at risk simply because they are dressed in blue. 

There is a huge spotlight this week on police, and rightfully so, as there is so much mistrust and anger regarding the recent events. There needs to be an honest, open dialogue where those aggrieved are given the opportunity to be heard without fear of reprisal, just as the police department needs to be given the opportunity to have investigations completed before a rush to judgment. While the majority of police officers are honest and hardworking, those who fail to uphold their oath should be punished.

Police officers are sworn to protect and serve; they run toward trouble when we run away from it. They patrol neighborhoods that are dangerous, riddled with crime, where we are taught to avoid them. They put their lives on the line every day, knowing they might never return to their families. Yes, this has been a very tough week. Let’s hope that future discussions help bridge the gap between our police and the citizens they are sworn to protect.

 

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.

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The High Cost of Fat

Today’s post comes from guest author Thomas Domer, from The Domer Law Firm.

We have reported regularly on the impact of obesity on workers’ compensation (see WFW October 2005 “Diabetes and Work Injuries” Alan B. King, M.D. and WFW Winter 2009 “The Rising Impact of Obesity on Workers’ Compensation” book review).

A recent study in the Journal of Occupational and Environmental Medicine, the official publication of the American College of Occupational and Environmental Medicine, in September 2016 reported that obese and overweight workers are more likely to result in higher costs related to workers’ compensation claims, especially for major injuries.

In a study analyzing 2,300 workers in Louisiana, Dr. Edward Bernacki of the University of Texas—Austin found that workers’ compensation costs and outcomes for obese workers (defined as a Body Mass Index of 30 or higher) incurred higher costs related to their workers’ compensation claim. This study noted that after three years about 10% of claims for significant injuries were still open, meaning the worker had not yet returned to work. Obesity and overweight did not play a role in the delayed return to work. However, for workers with major injuries, overweight was associated with higher workers’ compensation costs. In the group with the higher Body Mass Index, costs averaged about $470,000 for obese workers, $270,000 for overweight workers compared to $180,000 for normal weight workers (with a Body Mass Index between 25 and 30). The study made adjustments for other factors including the high cost of spinal surgeries and injections and, after making the adjustment for these factors, obese or overweight workers with major injuries were twice as likely to incur costs of $100,000 or more. Significantly, Body Mass Index had no effect at all on costs for closed claims or less severe injuries.

Previous studies (including a study in the Journal of Occupational and Environmental Medicine in 2015 linked obesity to a higher rate of workplace injuries and a longer time off. However, the cost effects were not studied until this recent assessment. The new results indicate obesity is a significant risk factor for higher costs in major workers’ compensation injuries.

One significant finding in the study was that more than three-fourths of the workers’ compensation claimants were overweight or obese. Further studies are planned. Previous studies include those from the National Council on Compensation Insurance, Inc. (NCCI) “How Obesity Increases the Risk of Disabling Workplace InjuriesEditor’s Note:  According to most studies, there is a strong correlation between Body Mass Index and injuries such as ankle fracture severity and increase risk of osteoarthritis. For workers’ compensation practitioners, one wonders whether these studies are a prelude to an assault on the “as is” doctrine. Each of us in our own practice can recognize some of the wide-ranging effects in costs of obesity, from special procedures for hospital treatment of obese patients such as open MRIs and more extensive surgical procedures to a reduced fuel economy in commercial vehicles due to fat drivers. Additionally, the cost of treatment for obese patients with work-related injuries increases the work-related injury potential to medical staff (lifting, transferring, etc.). Increasing admissions of severely obese patients leads to a corresponding increase in medical workplace injuries related to lifting and maneuvering obese patients. Workers’ compensation practitioners may see obesity as yet another “pre-existing condition” to surmount in future causation and extent of disability battles.

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Phillips 66 Refinery Fined Nearly $325,000 for Workplace Violations

Phillips 66 Refinery has been fined $324,000 for failing to correct serious workplace safety and health violations. A Department of Labor & Industries (L&I) inspection of the Ferndale, WA facility found the violations put refinery workers at great risk in case of a fire or explosion.

L&I cited the refinery for three instances of not correcting violations that it was previously cited for in September and October of 2014. These are considered “failure to abate” serious violations.

The 2014 citations are under appeal to the Board of Industrial Insurance Appeals. State law requires employers to correct hazards even if the violations are under appeal, unless a “stay of abatement” is granted to allow a delay in making the corrections. The company’s stay of abatement request was denied by the board.

Two of the violations, each with a penalty of $108,000, involve the refinery’s firefighting and fire suppression systems. Phillips did not inspect or follow recognized and generally accepted good engineering practices in respect to the firefighting water tank or the buried firefighting water distribution piping. Inspection and maintenance of these systems is required by state regulation and the National Fire Protection Association. The company also failed to address the potential loss of firefighting water, which puts employees and emergency responders at risk of serious injuries, disability or death if the system were to fail during a fire or explosion.

L&I cited Phillips for a third “failure to abate” serious violation for not consulting established, peer-reviewed industry references before writing a policy related to opening chemical piping. This violation also comes with a $108,000 penalty.

The company’s hazard assessment allowed workers to be potentially exposed to hydrogen sulfide, a poisonous gas, and explosive flammable hydrocarbon vapors at much higher concentrations than considered safe. Employers in high-hazard chemical industries are expected to make sure that their internal policies and guidelines reflect current good engineering practices across those industries and that they meet local regulations, which may be stricter than national regulations.

The employer has 15 days to appeal the citation. Penalty money paid as a result of a citation is placed in the workers’ compensation supplemental pension fund, helping workers and families of those who have died on the job.

 

Photo credit: RVWithTito via Foter.com / CC BY

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Tile and Granite Company Fined – Silica Dust Exposure

Wall to Wall Tile & Stone of Vancouver, Wash. has been fined $261,000 for failing to protect workers from exposure to silica dust and other health hazards associated with stone slab grinding. 

The Department of Labor & Industries (L&I) cited the employer for multiple instances of “failure to abate” serious violations after a follow-up inspection found that the employer had not corrected violations that it was cited for in November 2014.

An L&I inspection found that employees were exposed to silica quartz dust at more than three (3.4) times the permissible limit during stone slab grinding operations. Over time, breathing in silica dust can cause silicosis (a disabling lung disease), as well as lung cancer, pulmonary tuberculosis and airway diseases.

The employer was cited for seven “failure to abate” serious violations. These are violations that the company had been previously cited for but had not corrected, including:

  • Failing to use feasible controls to reduce employee exposure to silica dust — $40,500.

  • Not developing a written respiratory protection program to protect employees from inhaling silica dust — $40,500.

  • Failing to provide fit testing for workers required to wear full-face respirators — $40,500.

  • Not providing effective training for employees who wear full-face respirators —$40,500.

  • Not providing noise and hearing protection training to affected employees — $22,500.

  • Not providing annual hearing tests for workers exposed to excess noise — $22,500.

  • Failing to develop, implement and maintain a written Chemical Hazard Communication Program for employees using a variety of chemicals — $40,500.

Wall to Wall Tile & Stone was also cited for two “failure to abate” general violations, each with a penalty of $2,700. These violations were for not providing medical evaluations for employees who wear full-face respirators, and for not creating a list of chemicals used in the workplace.

In addition, L&I cited the company for two serious violations that were not associated with the 2014 inspection. One of the citations was for not ensuring that employees who wear full-face respirators don’t have facial hair. Respirators may not seal properly on workers with beards or other facial hair. The company was also cited for not providing appropriate respirators for employees grinding stone slabs. Each violation has a penalty of $4,050.

Serious violations are cited for hazards where there’s a possibility of serious injury or death. General violations are the lowest-level citation, involving safety issues where there is no possibility of serious injury or death.

The employer has 15 days to appeal the citation. Penalty money paid as a result of a citation is placed in the workers’ compensation supplemental pension fund, helping workers and families of those who have died on the job.

For a copy of the citation, please contact L&I Public Affairs at 360-902-5413.

Photo credit: The Worlds of David Darling

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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.

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OSHA Claims Backlogged Due to Increased Online Filing

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

OSHA’s recent decision to allow employees to file whistleblower cases online has led to a large increase in filings. According to OSHA investigators, this increase in filings hasn’t been met with a proportionate increase in staff. There is now a large backlog in OSHA claims. One investigator estimated it takes over 400 days for OSHA to conclude investigating claims.

The delay created by the backlog hurts investigations for many reasons. Witnesses become unavailable, and recollections of events change. Unscrupulous employers also can use the delay to hide or destroy documents and intimidate witnesses.

Of course, employees who feel they have been retaliated against oftentimes have the option of filing a state or local fair employment agency claim on the basis of retaliation. Employees might also have the option of filing for retaliatory discharge without filing a fair-employment case, as is oftentimes the case if they are fired for filing workers’ compensation. However, this summer the U.S. Supreme Court likely made many types of retaliation cases more difficult to win with their decision in the Nasser case. The court ruled in Nasser that employees claiming retaliation cases under federal Title VII must prove that exercising their rights under Title VII was a “but for” cause of their termination.

But under whistleblower laws under OSHA – such as the Surface Transportation Assistance Act (STAA), which protects interstate truckers, and Dodd-Frank, which protects workers in the financial services industry – an employee must only show that their report of illegal conduct was a contributing factor to their termination.

Employees with a retaliation case should consult with an experienced employment attorney to determine the best forum for any wrongful-termination case.

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The Right to a Safe Workplace

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

Under federal law, every employee has the right to a safe workplace. If you believe your workplace is dangerous and changes in safety policy are ignored, you can request an inspection from OSHA (Occupational Safety and Health Administration).

Workers’ compensation, which is regulated on a state-by-state level, covers medical bills, lost wages, disability and vocational rehabilitation services for employees injured on the job. If you have any questions regarding these benefits, please contact an experienced lawyer in your area.

 If you believe you work in an unsafe work area, here are some tips to be aware of to make sure your workplace is as safe as possible, and you protect yourself from significant injury:

  1.  Know the hazards in your workplace.
  2. While in a seated position, keep your shoulders in line with your hips. Use good form when lifting.
  3. Injuries occur when workers get tired. Take breaks when you’re tired.
  4. Do not skip safety procedures just because it makes the job easier or quicker. Using dangerous machinery is the one of the leading causes of work injuries.
  5. Be aware of where emergency shutoff switches are located.
  6. Report unsafe work areas.
  7. Wear proper safety equipment.

If you are injured due to an unsafe workplace, and you are unsure of the benefits that you are entitled to, contact an experienced attorney in your area.

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Nanotechnology in the Workplace

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

During cancer research in 1986 an accident created the first man-made nanoparticle, an incredibly small particle which can absorb radiant energy and theoretically destroy a tumor. One type of nanoparticle is 20 times stronger than steel and is found in over 1,300 consumer products, including laptops, cell phones, plastic bottles, shampoos, sunscreens, acne treatment lotions and automobile tires. It is the forerunner of the next industrial revolution.

What is the problem? Unfortunately, nanoparticles are somewhat unpredictable and no one really knows how they react to humans. A report out of China claims that two nano-workers died as a result of overexposure, and in Belgium five males inhaled radioactive nanoparticles in an experiment and within 60 seconds the nanoparticles shot straight into the bloodstream, which is a potential setup for disaster. In a survey of scientists 30% listed “new health problems” associated with nanotechnology as a major concern.

Lewis L. Laska, a business law professor, wrote an article in Trial Magazine (September, 2012) in which he advised lawyers to become knowledgeable about nanoscience and be aware of the potential harm to workers and others who come in contact with this new technology, particularly because the EPA, FDA and OSHA have neither approved nor disapproved the use of nanostructures in products. It has been said that workers are like canaries in the cage (in mining operations), and if nanoscience is a danger then workers’ compensation lawyers will be the first to see it and appreciate it.

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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.