Johnson & Johnson to reportedly pay $4B in hip implant lawsuit

Today’s post was shared by The Workers’ Injury Law & Advocacy Group and comes from www.chicagotribune.com

CT sc-nw-1016-medical-device-tax MJW

CT sc-nw-1016-medical-device-tax MJW

Johnson & Johnson will pay more than $4 billion to settle thousands of lawsuits over its recalled defective hip implants, Bloomberg reported late on Tuesday, citing three people familiar with the deal.

Johnson & Johnson declined to comment on the report.

The deal will resolve more than 7,500 lawsuits brought against J&J’s DePuy orthopedics unit in federal and state courts by patients who have already had the defective devices removed, the report said.

De Puy recalled thousands of its metal ASR hip systems due to higher-than-expected failure rates. Plaintiffs claim that defective metal-on-metal devices caused pain, discomfort and more serous complications, including increased levels of metal ions in the bloodstream.

The devices were introduced in the United States in 2005, and DePuy recalled the product in 2010 after selling an estimated 93,000 units worldwide. Data from the UK at the time showed that about 12 percent of the implants needed to be replaced after five years.

Metal implants were developed to be more durable than traditional hip implants, which combine a ceramic or metal ball with a plastic socket. All-metal implants can shed metallic debris, potentially damaging bone and soft tissue, according to the U.S. Food and Drug Administration.

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Macy’s Joining Wal-Mart on Thanksgiving Energizes Labor

Today’s post was shared by Gelman on Workplace Injuries and comes from www.bloomberg.com

Macy’s Inc. (M), whose annual Manhattanparade is a cherished Thanksgiving tradition for millions, isstarting a new holiday ritual: It’s asking its employees to showup for work.

Pressured by competition, a shorter shopping season andlackluster consumer spending, at least a dozen U.S. mega-retailers are opening for the first time on Thanksgiving Day,such as Macy’s, or opening earlier that day than in previousyears. They are following Wal-Mart Stores Inc. (WMT), the largest U.S.employer, which has been open for business on Thanksgiving formore than 25 years.

“Another holiday bites the dust in favor of retailers,”Candace Corlett, president of New York consulting firm WSLStrategic Retail, said in a Nov. 12 phone interview. “Ourculture now is to shop, and to get the best deals. Thanksgivingas a day of rest was another culture, another time, not today.”

The expansion of hours will take more than a millionemployees away from their families during the holiday. Organizedlabor has been encouraging low-wage employees to join unions foryears to stem membership losses, and now wants to use theThanksgiving hours to encourage workers to band together toimprove working conditions.

“It plays into the larger themes that we’ve been pushingaround low-wage workers who don’t have a lot of job security,”Amaya Smith, a spokeswoman for the AFL-CIO, said in aninterview. “Thanksgiving, Black Friday is one example of oneholiday…

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How US Business Routinely Steals Your Legal Rights

     You’ve just bought a new car, or signed an employment agreement, or engaged an investment firm to act for you, or made substantial charges on your credit card, or even just bought a Starbucks card.  Now something’s gone wrong, and you’re looking for relief, maybe contemplating a lawsuit.

     Unfortunately, you can probably forget any real legal remedy because chances are you’ve agreed to some fine print in the transaction that forces you into binding arbitration of any claim you have. For years the US Chamber of Commerce has been working behind the scenes to ensure most consumers lose access to the courts through these stealth provisions that hide in most contracts. The Chamber recently convened its annual summit for its Institute for Legal Reform, whose primary goal is to find ways that corporations can eliminate the rights of consumers, small businesses and employees to hold them accountable in court.

     The American Association for Justice (AAJ) calls the Chamber’s efforts “Corporate America’s Trojan Horse” which substitutes big businesses owned dispute resolution mill for the real machinery of justice in the courts. Most Americans are unaware of the some half billion arbitration provisions in transactions they have unwillingly consented to. Forced arbitration by arbitrators selected by big business, not bound by law, and making decisions not subject to any meaningful judicial review, has substantially altered the civil justice system of this country, and what’s left of your legal remedies.

 

For the full report on this go to: License to Steal: How the US Chamber of Commerce Forced Arbitration on America.

 

November 22, 1963 – A Personal Reflection and Alternative History If JFK Had Lived

Jay’s Collection of JFK Memorabilia

     I recall only a sense of numbness during the long walk back to the main campus in New Haven, Connecticut from an outlying athletic field where the Yale-Harvard freshman football game had been going on that Friday.  It had been eerily quiet in the stands for 30 minutes or so before the final announcement, with small transistor radios pressed to the heads of many as events unfolded in Dallas.  Then, but for a random police siren with no apparent purpose, there was mostly silence as people walked slowly away.

     1963 was a dramatically different time in the perception of the general public about what government could, or should, do.  I had gone to Yale imbued with the dynamic challenge of the inaugural speech in January of 1961 – “Ask not what your country can do for you; ask what you can do for your country.”  I envisioned a potential State Department career, so I loaded up with Russian language, political science, and Russian and Eastern European history in my freshman year.  It was a real and palpable sense of mission experienced by many of us in that period that I’ve never quite seen again among similar age groups in the aftermath of presidential elections, even Barack Obama’s.

I hope that in the not distant future a large cohort of 17 and 18 year-olds will get to experience the same exhilarating inspiration and sense of purpose about the governance of our country that I felt for too brief a time over fifty years ago.

     In hindsight, and with all we now know about John Kennedy’s presidency behind the scenes, it’s perhaps easy to deride the level of enthusiasm and inspiration for change and service to country that a huge number of 17 and 18 year-olds had at the time.  But for me, and I think many, November 22, 1963 was – stealing from Don McLean’s American Pie – the “day the political music died.” With the loss of what the Kennedy “magic” had inspired, I lost the drive sometime later in my freshman year, and wandered off into an American history major, and then to law school with no particular purpose in mind.  I’ve been a political junkie since I was 11, and while still engaged in politics for fifty years following JFK’s death, it’s never felt the same.

     Surfing the internet, you can find quite a number of so-called “alternative histories” – books and articles by historians and political analysts playing out what might have been the course of American history if Kennedy had not been assassinated.  Most of these focus on what would have happened with Vietnam, the civil rights movement, the rise of the counterculture, etc., with differing conclusions.  I have a longer view about how JFK’s death, in my view, likely affected the next generations right up to the current era.  Some of those who have speculated about the future, had President Kennedy not died, haven’t even lived through the entire period, as I have.  Since I’m pretty well-read on Vietnam and our history from the mid-60’s through the 70’s, I’ll take my shot.

     Many think that because Kennedy was, nominally, a “hawk” in the early period of our Vietnam intervention, he would have continued to engage our country in that misadventure — that we would have experienced involvement on a scale not much different than what occurred under President Johnson, since the same so-called “best and the brightest” of the Kennedy administration would still have been forming policy.  I conclude differently.  One core belief of Kennedy’s was that American troops would not be fighting on the ground, contrary to the sabre rattling plans of the Joint Chiefs of Staff.  JFK’s people had essentially faced the Chiefs down in the Cuban missile crisis of October 1962, when they were pounding the table for invasion and nuclear strikes.  And I think with Kennedy controlling Secretary of Defense Robert McNamara, in a way Johnson really couldn’t, with his prior experience holding back the Chiefs, and with his ability to evolve in his thinking on critical matters, we would have de-escalated our involvement in Vietnam in his second term. (Like Johnson did, JFK would have easily swamped Barry Goldwater in the 1964 election.)  I believe as the situation in Vietnam eroded, Kennedy would have sided with the opinion of those in his kitchen cabinet vigorously counseling against increasing American troops on the ground, and that this would have happened well before Walter Cronkite’s famous pronouncement in March of 1968, after seeing Vietnam first hand, that the best we could achieve there was a stalemate, faced with an unwinnable war. 

     So what’s the point of going through the above “alternative history?”  Without the nation being mired in Vietnam in 1968, without an incumbent president consequently withdrawing from another term, and without the disarray of the Democrats due to all of the above, Richard Nixon would not likely have made his comeback and become president.  If no Nixon, then no Watergate, and no  resulting miasma created by the implosion of the executive branch, the final degradation of which being President Ford’s unconditional pardon of Nixon for his “high crimes and misdemeanors.”

     By this point in the mid 70’s, the American public was pretty exhausted by the seeming incompetence and venality of its government and the deceits of the Vietnam debacle then coming to light, and had become largely cynical about what the Beltway-driven federal government could do.  A fairly feckless administration under President Carter — a man of enormous intellect but who would not likely have risen to national prominence as a viable “outside the Beltway” candidate if the table had not been set by the prior eight years — did not help.

     During the 70’s, as Watergate dragged the national psyche into the dumpster and we watched the final collapse of Saigon, as the last helos lifted off the U.S. embassy, there was a sense we’d lost our “mojo,” our “toughest kid on the block” status.  In this environment arose a hardened right wing arguing, as many still do, that we failed the troops by not letting them “win the war,” and that, overall, government was the problem, not the solution to any problems.  Of course, the concept of the Vietnam conflict being winnable was, and always has been, an absurdity under the lens of cogent military and historical analysis, but this thesis became a driving force in getting the U.S. military back to a supposed position of supremacy in subsequent years, and the consequential hemorrhaging of the national budget.  More importantly, the “we” that government had traditionally been seen as – spearheading huge national projects – was increasingly replaced in societal hierarchy by the “I” of the supposedly heroic, self-made man or woman, whose success was all their own and which benefitted society more than any collective effort of the people.

Fifty years ago there was consensus among even the most diametrically opposed politicians from opposing political parties that a fully functioning government was an absolute requirement for the country and our democratic processes.

     Cue the rise of Reagan, and Reaganism, which offered the comfort of a new feel-good, Hollywood-like “Morning in America” with the iconography of the mythical cowboy of the American west leading us out of our national torpor.  As Reagan intoned:  “The eight scariest words you’ll ever hear are: ‘I’m the government and I’m here to help’.”  The celebration of the “I”, and the demotion of “we the people” begins with Reagan, as does the inculcation in at least a generation of younger Americans the precept that government can’t, and shouldn’t, interfere with the unfettered functioning of the “free market” (except for the gargantuan outlay for national defense). The political philosophy Reagan, his staff and enablers embraced and the his administration’s policies jump-started the serious erosion of government controls on business and industry, the rampant growth of corporatism and financialization of the economy, and the dismantling of the middle class that continues today.  “Greed was good,” it was encouraged by policy, and made many of the “I”s rich beyond comprehension, as they produced nothing but their own wealth.

     Economists date the stagnation of the middle class beginning about the time of Reagan, when wages for working Americans flattened and are today barely above where they were then, in constant dollars.  Reagan’s firing of the air traffic controllers in 1981 emboldened a broad attack on organized labor that has continued for over thirty years.  The decline of the middle class is directly attributable to the decline of organized labor, its former bulwark, now down to 8-9% of the workforce from well over 30% when I began my practice of workers’ compensation in 1977.  The spread of “right to work” laws (for lower wages) has continued since the Reagan years.  And over the last thirty years wealth has become concentrated in a small sector of the population to an extent not seen since the era of the Robber Barons. 

     Would all of this have happened if the country had not gone through the post-JFK assassination turmoil?  Perhaps some of it was inevitable.  But I think the post-Kennedy era demonization of the role of government in a democracy with a complex market economy has had a far more profound effect on where we find ourselves today than would have happened, absent the assassination of 1963 and its aftermath.

     And what has all of that bred in today’s politics?  The rise of “leaders” on the fringes of the far right so dedicated to the proposition that government is trampling freedoms secured by the founding fathers that they will ensure it doesn’t work by any means necessary.  With galactic ignorance of our history, and spewing scripted sound bites of misinformation on any topic, they come to Washington not to govern but to dismantle government.  But while the extremes they advocate are largely unimaginable even by their political forbearers on the right, their roots are squarely in the anti-government philosophy that erupted on such a wide scale three decades ago.

     Fifty years ago there was consensus among even the most diametrically opposed politicians from opposing political parties that a fully functioning government was an absolute requirement for the country and our democratic processes.  The arguments were principally about which processes, priorities and methodologies to be used, not whether the government was going to run.  Arguments, debates, and analysis of government policies and process were largely substantive and advocated by legislators who mostly knew what they were talking about, not spouting talking points fed to them by media spinmeisters.

     Would we still have some semblance of that today with a different fifty-year history after 1963?  You decide.  I’ve personally come to believe our history, and where we find ourselves in 2013, would be different – and better. I hope that in the not distant future a large cohort of 17 and 18 year-olds will get to experience the same exhilarating inspiration and sense of purpose about the governance of our country that I felt for too brief a time over fifty years ago. 

 

 

How Safe Is Healthcare for Workers?

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

The issue raised by Mr. Rehm was investigated thoroughly in a book given to us by a client, an injured nurse who contributed her story to the effort under a pseudonym: Back Injury Among Healthcare Workers, published by Lewis Publishers. It is a great resource, providing case-studies, statistics and suggestions for improvements for workers in the healthcare field.

The article that today’s blog post is based upon is an in-depth look at how one state’s OSHA office interacts with a sector of the healthcare community: hospitals. Like Iowa, but unlike Nebraska, Oregon is one of 27 states or U.S. territories that has an OSHA office at the state level

The “Lund Report: Unlocking Oregon’s Healthcare System” article talks extensively about nuances within ways that OSHA offices, whether state or federal, can measure the safety of healthcare providers like hospitals and nursing homes. 

As evidenced in previous blog posts about senior-care workers and lifting injuries, I have continuing concerns for the safety of healthcare workers. 

According to the in-depth article, “A Lund Report review suggests that in Oregon, regulators are de-emphasizing attention to hospital employee safety, despite national data showing that healthcare workers are injured in the U.S. each year at rates similar to farmers and hunters. Most Oregon hospitals have not been inspected by the state Occupational Safety and Health Division in years. And when on-the-job hazards are detected, Oregon’s OSHA office levies the lowest average penalties in the country.”

Should workers get lost as the patients are the focus of these healthcare institutions? Should regulation and inspections or fines by such groups as OSHA be the driving force toward workplace safety for healthcare employees?

It seems to me that healthcare administrators’ emphasis on profit is more important than proper concern for their employees – the nation’s caregivers. And if you or your family member is the healthcare worker who gets hurt on the job, this lack of focus on the worker is more than just a philosophical argument.

Yelp Reviewers File Class-Action Lawsuit Claiming They Are Unpaid Writers

Today’s post was shared by The Workers’ Injury Law & Advocacy Group and comes from www.huffingtonpost.com.

My question: if an Elite reviewer is found to be an employee of Yelp, do they then have exposure to workers’ compensation claims?

A group of irate reviewers have sued Yelp, claiming that they are unpaid writers who are vital to the company’s existence.

The plaintiffs filed a California class action lawsuit in Los Angeles on October 22, referring to themselves as writers and non-wage paid employees at the review site who have earned the company huge sums of money.

“The practice of classifying employees as ‘reviewers’ or ‘Yelpers’ or ‘Elites’ or ‘independent contractors’ or ‘interns’ or ‘volunteers’ or ‘contributors’ to avoid paying wages is prohibited by federal law, which requires employers to pay all workers who provide material benefit to their employer, at least the minimum wage,” the lawsuit reads.

The plaintiffs also claim to have been unjustly “fired” by Yelp when their accounts were suspended, and that they were pressured by the site to write more reviews in order to remain “Elite” Yelpers, a designation the site awards its most active and followed reviewers.

“In order to maintain her ‘Elite’ status, (plaintiff Lily Jeung) was often directed to write more reviews if in Yelp’s opinion her production seemed to slack off,” the lawsuit contends. “Ms. Jeung was fired from her position with no warning, a flimsy explanation, and no opportunity for recourse or appeal rights. Her license to write reviews was revoked; the awards she had attained were taken away;…

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Neuroscience may offer hope to millions robbed of silence by tinnitus

An MRI of the brain of a chronic tinnitus sufferer reveals regions that are affected by the disease. Video still from PBS NewsHour

Today’s post was shared by Gelman on Workplace Injuries and comes from www.pbs.org

In a Washington State workers’ compensation claim, tinnitus can be recognized as a condition presenting permanent impairment at a level that correlates to a Permanent Partial Disability (PPD) award, resulting in a monetary payment at the closure of a claim. The Department of Labor and Industries policy is to pay a PPD award for tinnitus only in conjunction with a measurable level of occupationally-related hearing loss.

If you or a loved one have occupational hearing loss and associated tinnitus, a workers’ compensation claim may be filed for treatment and benefits. Feel free to contact us with any questions in this regard.

On Easter Sunday in 2008, the phantom noises in Robert De Mong’s head dropped in volume — for about 15 minutes. For the first time in months, he experienced relief, enough at least to remember what silence was like. And then they returned, fierce as ever.

It was six months earlier that the 66-year-old electrical engineer first awoke to a dissonant clamor in his head. There was a howling sound, a fingernails-on-a-chalkboard sound, “brain zaps” that hurt like a headache and a high frequency “tinkle” noise, like musicians hitting triangles in an orchestra.

Many have since disappeared, but two especially stubborn noises remain. One he describes as monkeys banging on symbols. Another resembles frying eggs and the hissing of high voltage power lines. He hears those sounds every moment of every day.

De Mong was diagnosed in 2007 with tinnitus, a condition that causes a phantom ringing, buzzing or roaring in the ears, perceived as external noise.

When the sounds first appeared, they did so as if from a void, he said. No loud noise trauma had preceded the tinnitus, as it does for some sufferers — it was suddenly just there. And the noises haunted him, robbed him of sleep and fueled a deep depression. He lost interest in his favorite hobby: tinkering with his ‘78 Trans Am and his two Corvettes. He stopped going into work.

That month, De Mong visited an ear doctor, who told him he had high frequency hearing loss in both ears. Another doctor at the Stanford Ear,…

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Small Increase Predicted for Social Security COLA

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

Social Security benefits are slated to go up, but not by much. “The cost-of-living adjustment in Social Security for 2014 is likely to be very small, marking the fourth year in the last five that recipients receive little or no increase in benefits,” according to a recent CNNMoney article

The American Institute for Economic Research estimates the increase to be 1.4% to 1.6%.  Last year’s increase was 1.7%, and the 2012 increase of 3.6% was the only “significant rise in benefits in recent years,” according to the article.

If there are questions about your specific legal situation, please contact the firm.

The Affordable Care Act, brought to you by ……… the Republicans!

Many might now welcome a Nixon ticket.

     Looking for information in the media that is supportive of the nation’s transition to the Affordable Care Act (ACA), aka “Obamacare?”  At the moment Republican and right wing noise is drowning out much of the lower–decibel cheerleading by the Administration on why this is a good thing.

In 1974, Pres. Richard Nixon proposed what is essentially the 2010 healthcare act – all but the smallest employers would provide medical insurance to their employees or pay a penalty, expansion of Medicaid would insure the poor, and subsidies would be provided to low–income citizens and small employers.

     In a recent op-ed piece, former Secretary of Labor under President Clinton and leading economic expert, now at the University of California, Berkeley, Robert Reich summed up the history of the origin of “Obamacare,” pointing out the irony of the right wing’s fuss over it.

     In 1974, Pres. Richard Nixon proposed what is essentially the 2010 healthcare act – all but the smallest employers would provide medical insurance to their employees or pay a penalty, expansion of Medicaid would insure the poor, and subsidies would be provided to low–income citizens and small employers. While private insurers liked this plan, Democrats favored a system more like Social Security and Medicare, so there was no consensus.

     Fast-forward to 1989, and the right–leaning Heritage Foundation proposed a plan that would mandate all households obtaining adequate insurance. This plan worked its way into several bills introduced by Republicans in 1993, supported by Senators Hatch (R–Utah) and Grassley (R–Iowa), along with subsequent Speaker of the House, Newt Gingrich, all now vocal opponents of the ACA.

     When in 2004 Massachusetts Gov. Mitt Romney made the original Nixon plan the law in his state, with the same mandate to buy private insurance, he said, “we got the idea of an individual mandate from Newt Gingrich, and he got it from the Heritage Foundation.”

     Health insurance companies, now retooling their policies around the individual mandate, are jubilant about the possibilities of long–term membership growth through the insurance exchanges. These giant corporations have traditionally supported conservative and Republican politics.

     So as Reich notes – – why are Republican spending so much energy trying to sabotage the ACA, and act they designed and about which a huge sector of their patrons are wildly enthusiastic? The answer: it is the singular achievement of the Obama Administration, the head of which is still considered by a large segment of the right to Illegitimately occupy the White House.

     Reich goes on to observe that had the Democrats prevailed on the idea of a system built on the Social Security and Medicare model – – cheaper, simpler, and more widely accepted by the citizenry – – Republicans would nevertheless be making the same noise.

Student Safety and Health Video Wins First Place

School presentations have been made throughout the state.
School presentations have been made throughout the state.

Erik Soper, from Shelton, a student at the New Market Skills Center in Tumwater, took first place in a student safety and health video contest sponsored by the Department of Labor & Industries (L&I). Soper’s 60-second video, “The Teen Worker’s Survival Guide,” used computer generated graphics to highlight the hazards, responsibilities, and rights that teen workers have in the workplace. The first-place winner received a $500 gift card.

A second-place $300 gift card was awarded to Megan Bowlen, from Olympia, also from the New Market Skills Center, for her “Twitter Safety” video.  Her entry used social media in both humorous and serious ways to bring attention to workplace safety for young workers.

The video contest is part of L&I’s Injured Young Worker Speakers Program, a young worker safety campaign that reached over 3,000 students and young workers across Washington State this spring with important messages about workplace safety.

The video contest was one element of L&I’s program to raise workplace-safety awareness among young people by using a “peer-to-peer” approach in which young workers who have been seriously injured on the job talk to students and other young workers about their life-changing experiences.  Survey results have indicated that 70 percent of the students said their awareness of workplace safety significantly increased after listening to the presentations.

Published by Causey Wright