Why Employer’s Need to Comply with All Laws
Employer failure to follow all safety and health laws drives workers’ compensation cost UP! It’s really a no-brainer. Cost containment is the single most important KEY to managing workers’ compensation costs. Employers work hard to assess, plan and implement policies designed to specifically lower costs.
Vigilantly following all regulations about safety and health doesn’t require any special input – all the employer has to do is comply. And, if any one is unclear about those rules for states they operate in, the United States Department of Labor Occupational Safety and Health Administration provides them at http://www.osha.gov/
As the following case study shows, it is counter-productive to violate health and safety laws and costs money.
The U.S. Department of Labor’s OSHA cited a Delaware company for alleged safety and health violations, proposing $63,750 in penalties. The company designs, engineers, manufactures and tests nuclear and non-nuclear pressure vessels, employing 30 workers.�
OSHA initiated its investigation in response to a complaint alleging unsafe work conditions. As a result, the company was cited with 33 serious violations, with a penalty of $61,250, and eight other-than-serious violations, with a penalty of $2,500.
A serious citation is issued when there is substantial probability that death or serious physical harm could result and the employer knew, or should have known, of the hazard. In other words, a disaster waiting to happen. They include:
1. Fall hazards
2. Unsafe storage of flammable and combustible liquids
3. Unguarded machinery
4. Lack of welding screens
5. No caution signs
6. Lack of crane and sling inspections
7. Obstructed exits
8. Inadequate training
9. No safety restraints for compressed air hoses
10. Numerous electrical hazards
11. Failure to have a hearing conservation program
12. Failure to have a hazard communication program.
Other-than-serious-violations include blocked fire extinguishers, absence of ‘no smoking’ signs, company’s failure to take air samples to determine employee exposure to hexavalent chromium and the company’s failure to maintain required records.
“These violations leave the Delaware company’s employees vulnerable to workplace accidents that can cause injury and possible death,” said Domenick Salvatore, area director of OSHA’s Wilmington office. “The company is strongly encouraged to abate these hazards as quickly as possible.” (workersxzcompxzkit)
The company has 15 business days from receipt of the citations to comply, request an informal conference with the OSHA area director, or contest the citations and proposed penalties before the independent Occupational Safety and Health Review Commission.
Author Robert Elliott, senior vice president, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers’ Compensation costs, including airlines, health care, manufacturing, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. He can be contacted at: Robert_Elliott@ReduceYourWorkersComp.com or 860-786-8286.
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©2008 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com
OSHA Targets Workplaces Releasing Highly Hazardous Chemicals
Chemical NEP, a one-year pilot program is a national emphasis program (NEP) developed by the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) targeting facilities with potential for releasing highly hazardous chemicals resulting in toxic fire or explosion hazards
“Several catastrophic incidents have been caused by failure to comply with the requirements of the PSM standard,” said acting Assistant Secretary of Labor for OSHA Jordan Barab. “This situation has resulted in loss of workers’ lives. This national emphasis program allows OSHA inspectors to verify that employers are complying with the requirements of the PSM standard.”
The program establishes policies and procedures for inspecting workplaces covered by OSHA’s process safety management (PSM) standard and outlines a new approach for compliance officers who conduct site inspections. The inspection process includes asking detailed questions designed to gather facts related to PSM. requirements and verifying employers’ written and implemented PSM programs are consistent.
The Chemical NEP intent is to conduct quick inspections at a large number of facilities randomly selected from a list of worksites likely to have highly hazardous chemicals in quantities covered by the standard.
During its first year, the Chemical NEP will be piloted in several regions around the country, using programmed inspections. Programmed inspections are planned and do not result from an accident, complaint or referral. (workersxzcompxzkit)
In regions not covered by the pilot, the Chemical NEP will be used to inspect workplaces reporting PSM-related complaints, referrals, accidents or catastrophes, that is, inspections not programmed.
Author: Robert Elliott, J.D. Robert is a Sr. Vice President/Consultant at Amaxx and has 25 years experience helping companies reduce workers compensation and his clients typically reduce workers comp costs 20-50%. Robert can be reached at Robert_Elliott@ReduceYourWorkersComp.com or 860-786-8286.
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©2008 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com
The U.S. Department of Labor reported it paid more than $5 billion in compensation and medical benefits to more than 52,600 claimants nationwide under the “Energy Employees Occupational Illness Compensation Program Act” (EEOICPA).
This milestone coincides with the eighth anniversary of the Labor Department’s administration of the EEOICPA, providing compensation and medical benefits to employees who became ill while working in the nuclear weapons industry.
The Labor Department began administering Part B of the EEOICPA on July 31, 2001. Part B covers current or former workers who diagnosed with cancers, beryllium disease or silicosis, and whose illness was caused by exposure to radiation, beryllium or silica while working directly for the U.S. Department of Energy, that department’s contractors or subcontractors, designated Atomic Weapons Employers or beryllium vendors.
The EEOICPA also provides additional compensation to uranium workers who worked at Section 5 uranium mines, uranium mills and ore buying stations covered under the Radiation Exposure Compensation Act. Certain survivors of nuclear weapons industry workers are also eligible for benefits under Parts B and E.
Since 2001, the Labor Department delivered compensation to more than 37,200 claimants under the Act’s Part B provisions.
Part E, created by an amendment to the Act on October 28, 2004, provides federal compensation and medical benefits to contractors and subcontractors of the Department of Energy who worked at covered facilities and sustained an illness as a result of exposure to toxic substances. Under the Labor Department’s administration, the Part E benefit payout has exceeded $1.6 billion.
During fiscal year 2009, the Labor Department continued to assist the nuclear weapons community by expanding its claimant services and outreach initiatives across the country.
The department’s Traveling Resource Center was in Washington, Pa., last week to inform workers and their survivors about new special exposure cohorts at Vitro Manufacturing and Westinghouse Atomic Power Development Plant.
The Traveling Resource Center goes monthly to Kayenta, Ariz., and Shiprock, N.M., to assist individuals filing claims under the EEOICPA. Eleven stationary resource centers continue to play an active role in outreach efforts and provide personal assistance to claimants with filing claims, conducting occupational health interviews and answering questions concerning medical bills. (workersxzcompxzkit)
For additional information about how to file a claim under the EEOICPA, call 866-888-3322 toll-free.
Author: Robert Elliott, J.D.
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Do not use this information without independent verification.
All state laws vary.
©2008 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com
Apparently not accordingly to Tom Robinson, J.D., writer for Lexis-Nexis Workers’ Comp Law Center. Here’s what he reveals . . .
Here’s What Happened
Wilson, a Clark County (Nevada) firefighter, filed a workers’ compensation claim with his employer for prostate cancer. Prior to the filing of Wilson’s claim, three other Clark County firefighters filed similar claims for prostate cancer and received compensation for an occupational disease.
Wilson worked with the three firefighters for seventeen years and was exposed to similar conditions, chemicals, and carcinogens. Unlike the three other firefighters, however, Wilson’s claim was denied.
Wilson appealed the Hearing Officer’s denial of his workers’ compensation claim. Appeals Officer Richins denied Wilson’s claim because (1) an independent medical examiner offered persuasive medical evidence contradicting Wilson’s allegations, and (2) Wilson failed to prove that he was exposed to carcinogens that were reasonably associated with the development of prostate cancer as required by NRS 617.453.
Wilson then filed a complaint pursuant to 42 U.S.C. § 1983 in federal court alleging Ayers, Stephens, and Richins-who apparently had prior knowledge of the three other firefighters’ successful claims-denied Wilson of his civil rights and conspired to do the same [while it is clear from the reported decision that Richins was the Appeals Officer who denied Wilson's claim, it is unclear what relationship Ayers and Stephens had to Wilson's workers' compensation claim].
All three defendants moved to dismiss on the grounds that Wilson failed to serve Defendants within 120 days after the complaint was filed [Federal Rule of Civil Procedure 4(m)]. Additionally, Richins argued Wilson’s claims should be dismissed because they were barred by 42 U.S.C. § 1983′s statutory language, judicial immunity, and the exclusive remedy provisions of Nevada’s workers compensation statutes.
Here’s How the Court Ruled
In Wilson v. Ayers, 2009 U.S. Dist. LEXIS 57692 (D. Nev. July 7, 2009), the federal district court, finding that Richins, Ayers, and Stephens were eventually served, that it was highly unlikely that the defendants would be prejudiced by continued litigation, and that Ayers and Stephens failed to advance any additional arguments supporting dismissal, denied Ayers’ and Stephens’ motions (although the district court granted the defendants 30 days to file additional motions).
The district court granted Richins’ motion to dismiss on multiple grounds.
First, it indicated that because Wilson sued Richins in her official capacity as an employee of a state agency, Wilson effectively sued the state. Under § 1983, a plaintiff may bring a suit only against a “person.” The court said that the state, however, was not a “person” under 42 U.S.C. § 1983 and a state employee sued in her official capacity was also not a “person.”
Second, because Richins was a Hearing Officer who hears appeals and renders decisions, Wilson’s claim was barred by judicial immunity. The purpose of judicial immunity was to ensure an objective and independent judiciary by relieving judges from the threat of civil liability and protecting the finality of their judgments from collateral attacks by disgruntled litigants. (workersxzcompxzkit)
Third, to the extent that Wilson was also asserting a state claim for workers’ compensation benefits, his suit was barred by the exclusive remedy provisions of NRS 617.017 and NRS 617.200. Finally, Wilson’s suit against Richins was barred by the Eleventh Amendment. The state of Nevada had not waived immunity from suit conferred by the Eleventh Amendment.
See generally Larson’s Workers’ Compensation Law, §§ 100.01, 100.03.
Tom Robinson, J.D. is the primary upkeep writer for Larson’s Workers’ Compensation Law (LexisNexis) and Larson’s Workers’ Compensation, Desk Edition (LexisNexis). He is a contributing writer for California Compensation Cases (LexisNexis) and Benefits Review Board – Longshore Reporter(LexisNexis), and is a contributing author to New York Workers’ Compensation Handbook(LexisNexis). Robinson is an authority in the area of workers’ compensation and we are happy to have him as a Guest Contributor to Workers’ Comp Kit Blog. Tom can be reached at: compwriter@gmail.com.
http://law.lexisnexis.com/practiceareas/Workers-Compensation
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The U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) announced publication of a notice of proposed rulemaking in the Federal Register to approve a new Illinois state public employee protection plan. The Occupational Safety and Health Act of 1970 at 29 CFR Part 1956 allows states and territories to establish plans covering only state and local government employees, who are excluded from federal coverage. Once a state plan is approved federal OSHA funds up to 50% of the program's operating costs. To be eligible for initial (developmental) approval as a public employee-only state plan, a state must be able to operate an occupational safety and health program that is, or will be, at least as effective as the federal program. Illinois has applied for approval to develop a public employee-only occupational safety and health program to be administered by the Illinois Department of Labor. The Federal Register notice provides a 30-day comment period and offers an opportunity to request an informal public hearing. If the plan is approved, Illinois will become the fourth state, along with Connecticut, New Jersey and New York, and the Virgin Islands to operate a safety and health program specifically for public employees. An additional 21 states and Puerto Rico have programs covering both public and private sector workplaces. "The Illinois Department of Labor is to be commended for taking this step forward to provide protection for its public sector workers," said acting Assistant Secretary of Labor for OSHA Jordan Barab. "This should serve as a model for other states interested in maintaining the safety and health of their public workforces." The plan, if approved, will cover more than 1 million public workers, including approximately 161,200 state government workers and roughly 690,000 municipal workers, and workers in the public education sector. Private sector workers will remain under the jurisdiction of federal OSHA. Author: Robert Elliott, J.D.
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©2008 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com
Here’s What Happened
Smith brought claims under the Federal Tort Claims Act and Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971) against the U.S. government and various prison officials, alleging that he was exposed to asbestos in 2003 while an inmate at the federal prison at Leavenworth. Smith alleged that during his incarceration, he worked as an electrician for the prison’s Custodial Maintenance Services and in the course of that work received a work order to install a new light fixture in a closet in the prison’s education department. According to Smith, the closet lacked any ventilation. Smith alleged in relevant part that while he was installing the light fixture, another inmate, who had been instructed to clean the closet, entered the confined space and on two occasions pulled insulation from the pipes, creating clouds of irritating dust. Smith alleged that during the incident his throat and lungs were irritated by the dust, that ten years prior to the dust incident an engineering survey established the presence of asbestos in the insulation in that portion of the prison, that various prison officials knew of the dangerous environmental conditions within the closet, and that as a result of exposure to the asbestos dust, Smith suffered from a cough, shortness of breath, difficulty with his throat and eyes, and that he had also suffered emotional distress. The federal district court dismissed Smith’s multiple claims and he appealed.
Here’s How the Court Ruled
In Smith v. United States, 2009 U.S. App. LEXIS 6949 (10th Cir., March 31, 2009), the federal district court held that Smith’s claim under the Federal Tort Claims Act (“the federal tort claim”) could be advanced only against the federal government and not the individual defendants, that the federal tort claim was barred by the exclusive remedy provisions of the Inmate Accident Compensation Act (“IACA”), 18 U.S.C. § 4126, which provides specified compensation for a federal inmate who suffers a work-related injury or improper medical treatment of a work-related injury, and that Smith’s Bivens claim could be brought only against federal officials in their individual capacities; it could not be asserted directly against the United States.
Practitioners should recall that the IACA (and the regulations promulgated thereunder) provides two types of “workers compensation” for a qualifying federal inmate.
1- The first type of compensation is available only when the inmate is ready to be released from prison and reenter the workforce [28 C.F.R. §§ 301.101(a), 301.301-.319]. If the inmate still suffers a residual physical impairment as a result of the work-related injury, then within forty-five days of his or her release date, he or she can submit a claim for compensation [§ 301.303(a)]. If, however, the inmate has fully recovered from the injuries while incarcerated, he or she is not entitled to any compensation [§ 301.314(a)].
2- The second type of compensation is for wages the inmate actually loses while he or she is prevented from doing his or her work assignment due to the injury [§§ 301.101(b), 301.201-.205].
In the instant case, Smith argued that the IACA should not be the exclusive remedy against the government for a prisoner like himself, who had a very long sentence, that IACA likely would afford him little, if any, relief because he might die before he was within forty-five days of his release date. The circuit court noted that the issue had arisen before and indicated it was up to Congress to make any changes that were required; the court could not legislate.
See generally Larson’s Workers’ Compensation Law § 100.03[3].
_____________________________________________________________________________________
Tom Robinson, J.D. is the primary upkeep writer for Larson’s Workers’ Compensation Law (LexisNexis) and Larson’s Workers’ Compensation, Desk Edition (LexisNexis). He is a contributing writer for California Compensation Cases (LexisNexis) and Benefits Review Board – Longshore Reporter(LexisNexis), and is a contributing author to New York Workers’ Compensation Handbook(LexisNexis). Attorney Robinson is an authority in the area of workers’ compensation and we are happy to have him as a Guest Contributor to Workers’ Comp Kit Blog. Tom can be reached at: compwriter@gmail.com.
http://law.lexisnexis.com/practiceareas/Workers-Compensation
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WC Cost Calculator to show the REAL COST of workers www.ReduceYourWorkersComp.com/calculator.php
Do not use this information without independent verification. All state laws are different. Consult with your corporate legal counsel before implementing any cost containment programs.
©2008 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com
Riverboat Casino Dealer Seeks Recovery Under Jones Act
Here’s what happened.
A dealer on a riverboat casino filed a Jones Act claim against the riverboat owner/operator, contending that she sustained repeated flea bites while working on defendant’s gambling casino riverboat, that she was required to take large doses of steroids for the flea bites, and that the steroids caused her to suffer a heart attack. At issue was whether the riverboat casino was a “vessel in navigation” for purposes of the Jones Act. The dealer contended that the riverboat casino was, in fact, a vessel in navigation, pointing out that it was registered with and regularly inspected by the United States Coast Guard, and had its own engines and machinery, as well as navigation, life-saving, and fire-fighting equipment. The employer contended that the riverboat was not a qualifying vessel in as much as since August 2002, the casino began exclusively conducting dockside gambling pursuant to amendments to Indiana state law that allowed casinos to stop cruising and conduct gaming while in a stationary position.
Was the riverboat casino a “vessel in navigation” for purposes of the Jones Act?
In RDI/Caesars Riverboat Casino, Inc. v. Conder, 896 N.E.2d 1172, 2008 Ind. App. LEXIS 2542 (November 25, 2008), the Indiana Court of Appeals reversed a decision by the trial court that had granted the dealer’s partial summary judgment on the Jones Act jurisdictional issue. Observing that since 2002, the riverboat had been moored and stationary–with the exception of rare tests conducted in compliance with federal regulations–that it was connected to the dock by eight mooring lines, two double-up lines, three fuel hoses, a sewage and water hose, and seven power cables, and that a majority of decisions on the issue had refused to grant vessel in navigation status to moored riverboats, the court held that the riverboat casino was not a vessel in navigation, that while it was theoretically capable of being in navigation, the actual intention had been to remove the boat from navigation, except in emergency situations.
See generally Larson’s Workers’ Compensation Law § 146.02.
_____________________________________________________________________________________
Tom Robinson, J.D. is the primary upkeep writer for Larson’s Workers’ Compensation Law (LexisNexis) and Larson’s Workers’ Compensation, Desk Edition (LexisNexis). He is a contributing writer for California Compensation Cases (LexisNexis) and Benefits Review Board – Longshore Reporter(LexisNexis), and is a contributing author to New York Workers’ Compensation Handbook(LexisNexis). Attorney Robinson is an authority in the area of workers’ compensation and we are happy to have him as a Guest Contributor to Workers’ Comp Kit Blog. Tom can be reached at: compwriter@gmail.com.
http://law.lexisnexis.com/practiceareas/Workers-Compensation
_____________________________________________________________________________
WC Cost Calculator to show the REAL COST of workers www.ReduceYourWorkersComp.com/calculator.php
WC 101 for the basics about workers comp. www.ReduceYourWorkersComp.com/workers_comp.php
Do not use this information without independent verification. All state laws are different. Consult with your corporate legal counsel before implementing any cost containment programs.
©2008 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com
LowerWC.com has many visitors from governmental agencies such as NASA, the TSA, the Department of Labor, the National Park Service, the U.S. Postal Service, the Department of the Interior, the U.S. House of Representatives, the U.S. Army, Air Force, Navy, and Marines. These visits are from military installations around the world, not just U.S.-based operations. Doctors Hutchinson and Leffingwell have done work for the CDC and Dept of Labor/Employment.
Leslie J. Hutchinson, M.D., MPH, FACOEM, and Sanford S. Leffingwell, MD, MPH, FACOEM, are among a number of physicians nationwide working with the Department of Labor's Energy Employee Occupational Illness Compensation Program (EEOICP). Congress concluded several years ago that former workers at U.S. federal nuclear facilities were suffering the effects of exposure to toxic substances, but were having difficulty obtaining compensation for their illnesses through existing channels.
Doctors Hutchinson and Leffingwell are also ongoing medical consultants for the U.S. Public Health Service, Region IV, Federal Occupational Health (FOH). For FOH, they evaluate, diagnose, and recommend preventive and treatment strategies for a wide spectrum of diseases and injuries that arise in federal workplaces. They have served as experts on chemical and biological weapons effects for the U.S. Army's Army Materiel Command (AMC) and Chemical Material Agency (CMA). In that role, they have evaluated workers who have had possible or actual chemical or biological weapons agent exposures.
Author Robert Elliott, executive vice president, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers Compensation costs, including airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. See www.LowerWC.com for more information. Contact: Info@ReduceYourWorkersComp.com.
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.
©2011 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com.
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