Nanotechnology in the Workplace

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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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NY Roofing Contractor Fined for Falling Short on Fall Protection

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The Occupational Safety and Health Administration (OSHA) works to save workers’ lives throughout New York by fining employers who fail to comply with workplace safety standards. OSHA cites any employer who fails to comply with safety requirements, but one of the top problems that lead to OSHA citations is a failure to provide adequate fall protection.

OSHA reports that one company in New York was fined a total of $159,250 recently for failures to protect workers from falling as they performed work on roofing projects. Our Manhattan work injury attorneys know this employer was just one of many in New York who fail to embrace solutions that would limit or prevent falls in the workplace.

Falls Are a Common & Dangerous Workplace Accident

OSHA assessed the New York roofing contractor a large fine for the lack of fall protection in part because the offense was a repeated violation. The employer knowingly chose not to take steps to protect workers.

Unfortunately, this company is not the only one that fails when it comes to falls. In fact, OSHA reports that falls are the number one killer of construction workers and that many construction sites provide either no fall protection or inadequate fall protection. 

The absence of fall protection contributes to the high number of deaths. In 2011 alone, OSHA reported that there were 251 fall fatalities out of a total of 721 total deaths nationwide on construction sites.  These fatalities were preventable.

OSHA’s Fall Prevention Campaign

With falls as the leading cause of death on construction sites, OSHA has launched a nationwide outreach campaign called Stop Falls in order to raise awareness of the hazards of falls from roofs, scaffolds and ladders.

The campaign focuses on the three steps necessary to prevent falls:

  • Planning: Deciding in advance how a job performed up high must be done. Employers and workers must estimate what safety equipment is necessary in order to complete each task and employers should be sure to factor in the cost of equipment when bidding for a job.
  • Providing: Providing means that employers have to provide safety gear, as well as the right types of ladders and equipment when a worker is working six feet or more up in the air.
  • Training: Safety equipment is only effective if it is used properly. Employers must train workers on how to recognize hazards and on how to use the equipment they need to do their jobs in a safe and effective manner. This means training workers on fall protection systems as well as the use of scaffolds and ladders.

Employers must take responsibility for preventing falls. If a worker gets hurt the employer will be held responsible regardless of whether the employer was negligent or an employee was at fault.

Workers cannot generally sue employers, but they can make workers compensation claims and negligence doesn’t matter in these cases. A worker can be entitled to workers compensation benefits, including payment of medical bills, under any circumstances where his injury arose from a fall at work.

New York also has special scaffolding laws imposing strict liability on property owners and/or project managers in certain cases when scaffolding injuries occur. It is important for workers to understand their rights in scaffolding accidents and when other fall accidents occur.

If you’ve been hurt at work, contact the Law Offices of Pasternack Tilker Ziegler Walsh Stanton & Romano, LLP today for a free evaluation by calling (800) 692-3717.

 

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6 Attorneys Named As 2013 SuperLawyers

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Victor Pasternack, Barbara Doblin Tilker and Jordan Ziegler (top row). Catherine Stanton, Edgar Romano and Robert Saminsky (bottom row).

We are proud to congratulate each of Victor Pasternack, Barbara Doblin Tilker, Jordan Ziegler, Catherine Stanton, Edgar Romano and Robert Saminsky for being named to the New York Super Lawyers list as one of the top attorneys in New York for 2013. This is the 8th consecutive year Ziegler has been selected, the 7th consecutive selection for Tilker and Stanton, the 5th for Pasternack and Saminsky and the 4th for Romano. It is an honor to have so many or our attorneys on this prestegious list, as no more than 5 percent of the lawyers in the state are selected by Super Lawyers.

Additionally, SuperLawyers has selected both Barbara Dolbin Tilker and Catherine Stanton as Top 50 Women Attorneys in New York.

Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a rigorous multi-phased process that includes a statewide survey of lawyers, an independent research evaluation of candidates, and peer reviews by practice area.

The first Super Lawyers list was published in 1991.

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My Friend Got SSD Right Away. Why Is My Case Taking So Long?

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Many people currently applying for Social Security disability benefits know someone who has been through the process before and is currently receiving benefits.  In fact, many of our current clients were referred to us by former clients who were pleased with how we handled their case.  This means we often hear the question “Why is my case taking so long?  My friend was awarded disability right away and didn’t have to wait.”

The short answer to this question is that every case is different.  Each case is assigned to someone at the Social Security Administration to handle, and some people work faster than others, or have less cases to work on.  If the person handling your case at SSA get sick or goes on vacation, you may wait longer for a decision.  If you are treated by several doctors, it may take SSA longer to get your records, and the more records there are to review, the longer the case can take.  Make sure you tell your doctors that you have filed your application so that their office staff will be aware that SSA’s request for records will be forthcoming.  The faster your doctors respond to SSA’s requests, the sooner a decision can be made.

The SSA does the best they can, given the increase in claims and decrease in staff members, to make decisions in a timely manner.  The best way to get a quick decision is to make sure that you give SSA all the information they need to process your claim and get your records.  If SSA is not told about a doctor that you see until they have already started the process, it may take them longer to get those records, delaying your decision.  You should also make sure that you respond to letters and phone calls from SSA as soon as possible.  Make sure that you promptly report any changes in your medical condition or care, such as a new doctor, a new medication, or a hospital visit. 

If you want assistance with your Social Security disability claim, please contact our office and speak with a member of our staff.  We’ll be happy to set up a free consultation so that we can discuss your case, either in one of our offices or over the phone.

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OSHA Reaches Employer Agreement to Stop Discouraging Employee Accident Reports

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

Statistics regarding the reporting of accidents have historically been challenged for accuracy as employees have been fearful about reporting events, and employers have been reluctant for numerous reasons, including the potential of increased insurance costs. Now OSHA has taken a significant step to legitimize the process by seeking an employer accord not to take adverse actions against employees for reporting injuries in the workplace.

The U.S. Department of Labor’s Occupational Safety and Health Administration has signed an accord with BNSF Railway Co., headquartered in Fort Worth, Texas, announcing BNSF’s voluntary revision of several personnel policies that OSHA alleged violated the whistleblower provisions of the Federal Railroad Safety Act and dissuaded workers from reporting on-the-job injuries. FRSA’s Section 20109 protects railroad workers from retaliation for, among other acts, reporting suspected violations of federal laws and regulations related to railroad safety and security, hazardous safety or security conditions, and on-the-job injuries.

“Protecting America’s railroad workers who report on-the-job injuries from retaliation is an essential element in OSHA’s mission. This accord makes significant progress toward ensuring that BNSF employees who report injuries do not suffer any adverse consequences for doing so,” said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels. “It also sets the tone for other railroad employers throughout the U.S. to take steps to ensure that their workers are not harassed, intimidated or terminated, in whole or part, for reporting workplace injuries.”

The major terms of the accord include:

  • Changing BNSF’s disciplinary policy so that injuries no longer play a role in determining the length of an employee’s probation following a record suspension for a serious rule violation. As of Aug. 31, 2012, BNSF has reduced the probations of 136 employees who were serving longer probations because they had been injured on-the-job.
  • Eliminating a policy that Continue reading »
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My Doctor Says I am Totally Disabled – Can I Get Social Security Diability?

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Many people think that they will easily get Social Security disability benefits because they got a letter from their doctor that states that they are “totally disabled” and cannot work. This is a great first step for obtaining benefits – but it is only a first step. If your doctor is willing to write you a letter that says you are totally disabled, that shows that he or she will support your claim for benefits.  The support of a treating physician is very important to your claim.

Equally important to your claim is how your doctor’s opinion is expressed. A brief statement that you are totally disabled and/or that you cannot work will not be given a lot of consideration by the Social Security Administration (SSA). In order to make sure that your doctor’s opinion is properly considered and given the proper weight, your doctor will need to provide SSA with a “function by function” assessment of your ability to work.  SSA wants your doctor to provide them with an opinion that lists specific restrictions, such as how long you can sit, stand, and walk, how much weight you can lift and carry, and any limitation in your ability to get along with co-workers, the public, or to concentrate and follow instructions. Your doctor must also support his opinion with evidence such as examination findings or the results of diagnostic tests (such as MRIs and CT scans). If your doctor’s opinion is not properly expressed, it may not be given the weight it deserves, making it more difficult for you to get the benefits you’re entitled to.

To make sure that our clients get the benefits that they deserve, we contact the treating physicians to gather all of the evidence we need – including opinion evidence in the format required by SSA. If your doctor has told you that you are totally disabled and/or unable to work, please contact us if you need assistance with your claim.

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PTSD and Police Officers at the Newtown Massacre

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

Post-Traumatic Stress Disorder (PTSD) is a type of anxiety disorder that can occur after a person has seen or experienced a traumatic event that involved the threat of injury or death. In civil war battles a soldier may be sitting next to his best friend when a cannonball takes off his friend’s head. The horror of such events put some soldiers out of action. Similarly, police officers have a higher incidence of PTSD/Anxiety Disorders than the general public due to the gruesome scenes and situations that they witness in their occupation. Classic symptoms of PTSD fall into three main categories: (1) reliving the event (such as nightmares and flashbacks); (2) avoidance (including feeling detached, numb, and avoiding things that remind them of the event); and (3) arousal (including difficulty concentrating, startling easily, and difficulty falling asleep).

Some of the police officers who responded to the shootings in Newtown, Connecticut are suffering from PTSD, calling it the worst crime scene they ever walked into. They are suffering from severe emotional distress and shock and have been unable to return to work due to the trauma they witnessed. Unfortunately, PTSD is not covered by workers’ compensation in Connecticut. Therefore they have been forced to use vacation and sick time to cope with the situation.

Our law firm has represented multiple police officers who have developed PTSD as a result of the gruesome scenes and situations they have been involved in at work. Fortunately, PTSD may qualify as an occupational disease under North Carolina workers’ compensation law. Hopefully the Connecticut legislature will amend their statutes in light of the school shootings to help these police officers get medical care and get back to work as quickly as possible.

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Buying a Cheap Shirt at Wal-Mart? Consider the real cost (in lives).

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Wal-Mart’s low prices have led to unsafe working conditions.

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

The recent Bangladesh factory fire killed over 100 workers.  The factor produced goods for Wal-Mart.  Wal-Mart now concedes it “needs to do more to control its supply chain.” 

Wal-Mart’s Vice President of “Ethical Sourcing” (irony noted here) said the company control could “only go so far” in preventing an unauthorized factory producing its goods.  Wal-Mart said its Faded Glory clothing should not have been produced in the factory, which Bangladesh officials said was not safe.

Wal-Mart’s “factory certification” program focused on Bangladesh and China was allegedly “dedicated to improving the status of foreign labor.” Tell that to the families of the workers who died.

At a meeting last year where Wal-Mart’s Vice President of Ethical Sourcing was in attendance, the Bangladeshi Garment Workers Union proposed that producers such as Wal-Mart help ensure prices are high enough to provide for safety measures for their workers.

Wal-Mart’s Vice President indicated Wal-Mart could not support such a program because of the high cost.  Consider that next time you buy a cheap shirt at Wal-Mart.

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

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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. 

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Holding Individuals Accountable For Workplace Safety Violations

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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. 

 

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Seattle Shooting – Another Case of Workplace Gun Violence, and Another Call to Action

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By working together we can bring an end to gun violence in America

Today’s post comes from guest author Kit Case from Causey Law Firm.

    

 

     A man entered a Seattle bar late Sunday night, January 27, 2013, and confronted his ex-girlfriend, brandishing a gun.  The gunman shot both his ex-girlfriend and the doorman before the gunman was fatally shot by Seattle police.  Both the ex-girlfriend and the doorman were taken to Harborview Hospital with non-life-threatening injuries.  Both were victims of senseless gun violence, but the doorman is also a workers’ compensation claimant due to this occurring while he was on-the-job.

 

2012 has been the worst year for these events in modern US history, with 151 victims injured and killed.

 

       Quoting an article published by Mother Jones (Mother Jones Investigates: The NRA Myth of Arming the Good Guys), Washington CeaseFire shared that there have been at least 62 mass shootings in the last three decades, attacks in which the killer took the lives of four or more people (the FBI’s baseline for mass murder) in a public place—a school, a workplace, a mall, a religious building. Seven of them have occurred this year alone. Along with three other similar though less lethal rampages—at a Portland shopping mall, a Milwaukee spa, and a Cleveland high school—2012 has been the worst year for these events in modern US history, with 151 victims injured and killed.

    On Tuesday, January 22nd, Washington CeaseFire presented the results of a statewide poll conducted by Alison Peters Consulting. The poll of 600 randomly selected registered Washington voters reveals a strong preference for stronger gun safety laws on both Eastern and Western sides of the state. The poll has a margin of error of plus or minus 4 percent. Findings included :

  • 76% of state residents support tighter gun laws;
  • 87% support a state law to require that everyone who buys a gun at a gun show undergo a background check;
  • 66% support a state law to ban semi-automatic assault weapons;
  • 68% are in support of a state law to increase mandatory penalties for youth firearm possession, starting with house detention at the first offense ;
  • 68% would support a state law to limit ammunition clips on guns to 10 bullets;  and,
  • 66% of respondents are in support of a state law requiring the signature of local police on every concealed weapons permit application.

     Washington CeaseFire states that it’s time to end gun violence in America, noting that gun deaths outnumber traffic fatalities in Washington and nine other states.  Now is the time to make our voices heard.  Please consider participating in a candlelight vigil and march on February 9, 2013 in Seattle, Washington, co-sponsored by CeaseFire.  More than 1000 people attended a similar march held in January (see prior post for details) and it is hoped that the upcoming vigil and march will draw more attention to this issue.

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I Filed For SSD on My Own and Got Turned Down – What Should I Do Next?

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If you get a denial notice from Social Security after filing your application for benefits on your own, don’t be surprised. Most people are turned down the first time they apply for benefits. Social Security recently released a study showing that people who filed on their own were slightly more likely to get denied initially, although they received their initial decision a little sooner. Many people make one of two common mistakes when they get turned down – they either don’t do anything or they file a new application. People who don’t do anything will, of course, not receive Social Security disability benefits. Those that file a new application are just as likely to get turned down again, and may lose entitlement to benefits they otherwise would have gotten.

When you get a denial, you should file an appeal of that decision.

When you get a denial, you should file an appeal of that decision. Filing an appeal is different than filing a new application. Depending on where you live, you will either file a request for reconsideration or a request for a hearing. A request for reconsideration means that someone else at Social Security reviews your file and makes a new decision. If you get denied at reconsideration (and about 90% of people do) you should file a request for a hearing.

After you file a request for a hearing, you’ll be scheduled for a hearing held by an Administrative Law Judge (ALJ). The ALJ will ask you questions and issue a written decision after the hearing. People who appear at a hearing before an ALJ are much more likely to get SSD than those who file a new application after getting denied.

Once you receive a denial, you should contact our office right away to discuss your options. You only have sixty (60) days to file an appeal, so it’s important to act fast. Our staff will be able to handle the appeals process for you, and one of our attorneys will appear at the hearing with you. The most important thing is to not get discouraged and continue your medical treatment so that you’ll have the medical evidence you need to prove your disability.

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