“No Trauma” Does Not Mean No Injury

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Today’s post comes from guest author Thomas Domer from The Domer Law Firm in Milwaukee. Although Nebraska doesn’t require a “single incident or episode” like Wisconsin, the terms “trauma” and “traumatic injuries” most definitely mean different things to different people. Context matters, and most injured workers don’t have a lot of experience with medical terminology and what it means. The legal profession has its share of jargon, but that’s part of the job of an attorney and their staff – to help clients navigate through both the jargon and process of their claims. But I agree with Mr. Domer that it would be much more helpful to injured workers if doctors spent a quick moment explaining what their jargon – especially using words like trauma – really means in the context of a work injury report.

I’ve been investigating Wisconsin and national fraud statistics in worker’s compensation to prepare for a national presentation I am making in Cape Cod in July. One fascinating and recurring basis for denial of worker’s comp claims (and potential claims against employees for fraud) stems from an insurance carrier’s review of the initial medical report.

Often the physician or emergency room nurse, physicians assistant or First Responder will ask an injured worker “Did you have any trauma?” If the answer to the question is “no”, the medical records will routinely indicate “no trauma”. This information is translated by the insurance carrier as a denial that an injury occurred. The level of medical sophistication for an injured worker is routinely limited. Most of my clients (and based on inquiries with other workers’ attorneys, their clients as well) believe a trauma is something akin to getting hit by a bus. They do not equate the notion of trauma with lifting a heavy object such as a table or a box. The criteria for traumatic injuries in most states, including Wisconsin, is that a single incident or episode caused the injury or aggravated a pre-existing condition beyond a normal progression. In many cases a lack of “traumatic injury” at the initial medical presentation is not an accurate indication of whether a traumatic injury actually occurred.

Can I Get Fired For Filing Bankruptcy?

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Low and middle income people are the last people to benefit from any economic recovery. For many economic recovery means a return to work the opportunity to put their household finances in order with steady income provided by a job. Unfortunately unpaid debts often mean that employees get garnished  or even having to file bankruptcy.

Congress intended for bankruptcy to allow for people to get a fresh start so they prohibited discrimination based on bankruptcy and even let employees sue employers for such discrimination. But this law is not as strong as other laws prohibiting discrimination on factors such as race or sex for two reasons.

First of all, your status as a debtor in bankruptcy must by the sole cause of job loss. Discrimination is difficult enough to prove already under either a motivating factor or proximate cause standardsole cause is more exacting than even the difficult proximate cause standard. If your employer has any other legitimate reason to fire you besides your bankruptcy, then a court will likely find the termination was lawful. The only way for an employee to preserve any type of discrimination case is not to give the employee a reason to terminate them because of their poor performance , attendance or poor attitude. But even good employees can get fired legitimate reasons such as restructuring and economic reasons.

Secondly most courts do not believe that bankruptcy discrimination prohibits employers from failing to hire employees based on bankruptcy.

Title VII and most state anti-discrimination laws state that a failure to hire based on certain protected categories is unlawful activity.

Finally in any discrimination claim, the employer needs to be aware of your protected status. In a bankruptcy discrimination case this means that your employer had to have known about your bankruptcy status prior to firing you. Some employees get fired because  employer doesn’t want to deal with a garnishment.  Most people, me included, think that such an action is wrong or unfair. But unless your employer knows that garnishment is linked to your bankruptcy status, then firing you based on that garnishment is legal  – unless the garnishment is a cover or pre-text for another unlawful reason.

I would encourage anyone reading this post to contact their U.S. Senator or Congressperson and ask them to change the bankruptcy discrimination statute to mirror other federal anti-discrimination laws such as Title VII.

National Prescription Drug Take Back Day Set for April 26

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Mark your calendars! As part of spring cleaning duties, I know people are sorting through the stuff in their homes, donating what they can, and figuring out how to recycle or dispose of what can’t be donated. As a mom of a child with food allergies who requires the use of epinephrine auto-injectors, I realize the challenge in making sure expired or no-longer-needed prescriptions are exposed of appropriately, because of the needles and strong medicine involved in this type of prescription. Many prescriptions should not be thrown away or, worse, flushed down the toilet to affect the water supply. Unused prescription drugs can also be dangerous to people for whom they are not prescribed, so it’s essential to dispose of these prescription drugs properly.

A number of the firm’s clients are injured workers who are often prescribed medication as a consequence of a work injury. But not all of these medications are used or needed, and some even expire, and then sit at home taking up space because folks don’t know what to do with them.

Please extend your spring cleaning to April 26 from 10 a.m. to 2 p.m. It’s National Prescription Drug Take Back Day. This program is coordinated with local law enforcement through the U.S. Department of Justice’s Drug Enforcement Administration Office of Diversion Control.

The Office of Diversion Control website gives a couple of search options to find a site near you that accepts “unused or expired medication for safe disposal.” Either search by zip code or by county/city and state via either of the two links on the site listed above.

The direct link to the search tends to “time out” and essentially sends you back to the site above, so it’s easiest to click through where it mentions “Locate collection sites” or “Click here for a collection site near you.” In addition, an 800 number, 1-800-882-9539, is available for people to ask questions about the program by speaking to customer-service representatives. But believe me when I say it’s easier to find this information on the website than it is to try to speak with someone. After a couple of easy searches on the website, I am pleased that there are what I consider a reasonable number of sites available in both Nebraska and Iowa.

Why should you and I care to make the effort of participating in a drug take-back day? This informative website from the U.S. Food and Drug Administration explains in general terms about disposing unused medicine, and it seems that dropping the drugs off at an approved site on April 26 is one of the easier options. In addition to the general good feeling people get from the act of reducing clutter, returning unused, unneeded medicines to a take-back event means we all don’t have to worry about the medicine getting into the water supply, which sometimes happens through flushing, or getting into the hands of a person who might abuse it, which can happen when meds are thrown away. See the site above for additional “Guidelines for Drug Disposal” if there’s not a drug take-back day available close by, so people can make sure medications are disposed of safely.

Thanks in advance for keeping us all safer by disposing of unneeded prescription medicine properly.

Night Shift Work Causally Linked to an Increase in Breast Cancer

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Today’s post comes from guest author Jon Gelman, from Jon L Gelman LLC, a respected colleague in New Jersey. Various authors of this blog have covered some of the risks that workers are exposed to on a regular basis. Those risks can lead to occupational diseases, which include certain types of cancer.

This study is one that makes some conclusions about how long-term night shift work can be linked to some breast cancers. So in addition to shift work causing sleep deficits, there is also concern about other effects shift work can have on a person’s physical body, especially in the long-term sense.

If someone you know has a medical condition that they think is work-related, it may be covered by workers’ compensation. But the relationships that the medical condition or even a worker’s death has to the workplace must be proven, attorney Brody Ockander wrote in a previous blog post. Please contact an experienced workers’ compensation attorney with questions about a specific situation.

Regardless of the shift you work, have a safe and productive week.

Working at night increases the risk of breast cancer according to a recent study.

Objectives The potential mechanisms that link night-shift work with breast cancer have been extensively discussed. Exposure to light at night (LAN) depletes melatonin that has oncostatic and anti-estrogenic properties and may lead to a modified expression of estrogen receptor (ER) α. Here, we explored the association between shift work and breast cancer in subgroups of patients with ER-positive and -negative tumors.

Methods GENICA (Gene–ENvironment Interaction and breast CAncer) is a population-based case–control study on breast cancer with detailed information on shift work from 857 breast cancer cases and 892 controls. ER status was assessed by immunohistochemical staining. Associations between night-shift work and ER-positive and -negative breast cancer were analyzed with conditional logistic regression models, adjusted for potential confounders.

Results ER status was assessed for 827 cases and was positive in 653 and negative in 174 breast tumors. Overall, 49 cases and 54 controls were “ever employed” in shift work including night shifts for ≥1 year. In total, “ever shift work” and “ever night work” were not associated with an elevated risk of ER-positive or -negative breast tumors. Night work for ≥20 years was associated with a significantly elevated risk of ER-negative breast cancer [odds ratio (OR) 4.73, 95% confidence interval (95% CI) 1.22–18.36].

Conclusions Our case–control study suggests that long-term night-shift work is associated with an increased risk of ER-negative breast cancers. Further studies on histological subtypes and the analysis of other potentially relevant factors are crucial for discovering putative mechanisms

The report:  Rabstein SHarth VPesch BPallapies DLotz AJustenhoven CBaisch C,Schiffermann MHaas SFischer H-PHeinze EPierl CBrauch HHamann UKo Y,Brüning T, “Night work and breast cancer estrogen receptor status – results from the German GENICA study”, Scand J Work Environ Health 2013;39(5):448-455 doi:10.5271/sjweh.3360,  2010;36(2):163-179 2010;36(2):134-141
Read more ablout “breast cancer” and workers’ compensation:
Jul 02, 2013
Objectives Long-term night work has been suggested as a risk factor for breast cancer; however, additional studies with more comprehensive methods of exposure assessment to capture the diversity of shift patterns are …
Dec 15, 2012
A semiconductor plant worker, who had been exposed to solvents and radiation while working 5 years at a semiconductor factory in South Korea has been held to have suffered an compensable disease related to her …
Mar 18, 2011
Fire fighters in Canada are supporting legislation that would establish a legal presumption that breast cancer is an occupationally related illness. The legislation also creates a presumption that 3 other cancers (skin, prostate …
Dec 05, 2012
Breast Cancer and the Environment: A Life Course Approach – Institute of Medicine: “With more than 230,000 new cases of breast cancer expected to be diagnosed in the United States in 2011, many wonder about the role …

Remember Workers’ Memorial Day on April 28

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The writers of this blog spend a lot of time encouraging readers to reflect by thinking about the lives of others who are less fortunate, where each individual reader has been, and where they are headed. We often encourage advocates for workers’ rights and safety. This encouragement does sometimes come at the expense of business profits. But keeping workers safe is always the right thing to do.

Observing Workers’ Memorial Day on Monday, April 28, is one way to take the time to reflect, act as an advocate, and help workers and their loved ones. This AFL-CIO fact sheet included the thought-provoking quotation below, along with some specific points that encourage action.

“This year we will come together to call for good jobs in this country for all workers. We will seek stronger safeguards to prevent injuries and save lives. We will stand for the right of all workers to raise job safety concerns without fear of retaliation, and for the freedom to form unions and speak out and bargain for respect and a better future.”

By reflecting on the risks that all workers take and acting to promote safety, we think Workers’ Memorial Day will be even more successful. And most importantly, all of our loved ones will have safer workplaces.

There are many resources to access to find out more about Workers’ Memorial Day events near you. Today’s blog post was written a couple of weeks in advance of the events so people can plan ahead to attend.

Here are some links, along with the specific information for Nebraska and Iowa:


Nebraska has three separate events available to the public this year. 

  • USMWF’s 5K Family Fun Run/Walk Fundraiser
    Sunday, April 27, 1:30 p.m., Registration Starts
    Holmes Lake Park, Lincoln
    via http://www.usmwf.org/NE5KRUN.htm to sign up, learn about fees, and get more details about the event
  • Nebraska’s 3rd Annual Safety Expo
    Monday, April 28, 8 a.m.-3:30 p.m.
    IBEW Local 265 Union Hall, 6200 S. 14th St., Lincoln
    Via http://www.usmwf.org/NE5KRUN.htm
    The event is free, but space is limited, and registration is required by printing out or emailing this form http://www.usmwf.org/safety_expo_form.pdf As of April 9, there were still spaces available to attend.
  • 5th Annual Workers’ Memorial Day Candlelight Vigil
    Monday, Apr. 28, 7 p.m.
    Nebraska State Capitol, Lincoln
    via http://www.usmwf.org/NE5KRUN.htm This event is also free, and no registration is needed.
    According to the Lancaster County Democratic Party, via email in 2013, “representatives from State, Federal, United Support Memorial for Workplace Fatalities (USMWF), Unions, Co-workers, Employers and the community come together and honor the men and women that have been injured or killed in a preventable work related incident.”

Please see the websites below for more general details about Workers’ Memorial Day: http://www.workermemorialday.org/WMD2014.htm  

A Real Mess

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

Does fraud really matter?

Respected colleague Leonard Jernigan from North Carolina writes a yearly blog post about fraud in workers’ compensation. His current record over the five years he’s written this post is that for each top 10 list, the largest dollar amounts stolen are in the category of employer fraud, except for one employee incident, which happened this last year, so the record is 49 employers, 1 employee.

The very complicated article below definitely falls into the employer fraud category. David DePaolo writes about an incredibly complex situation that affected workers, employers and the greater society in a number of states, including Oklahoma, which made a major change to the workers’ compensation system last year.

“And who knows how much of the failure of Park Avenue and Imperial Casualty and Indemnity Co. contributed to that state’s abysmal rate work comp insurance cost ranking leading up to last year’s historic opt-out legislation,” he wrote in the article.

My point is that when anyone commits fraud in a workers’ compensation system, regardless of the state, there can be far-reaching consequences for society being stuck with the bills of that fraud and for injured workers and also employers who play by the rules. In addition, absorbing the cost of that fraud can also be far-reaching, even potentially contributing to changes to an entire workers’ compensation system.

Just ask Oklahoma.

Corporate fraud is a major problem in the workers’ compensation system. Today’s guest post authored by David DePaola is shared from http://daviddepaolo.blogspot.com and highlights a very serious problem with the nation’s workers’ compensation system.
What do Oklahoma, New York, Washington, Kentucky and Florida have in common?

If it’s workers’ compensation, then the connection is a far reaching scheme involving millions of dollars, failed insurance companies and professional employer organizations.

A federal grand jury in New York back in October 2012 indicted Wilbur Anthony Huff, principal behind a couple of professional employer organizations, Matthew Morris, Park Avenue Bank’s former senior vice  president, and Allen Reichman, the former director of investments at New York investment house Oppenheimer & Co. 

that Huff and Morris engaged with former bank president and Chief Executive Officer Charles Antonucci in an elaborate conspiracy to plunder Park Avenue Property and Casualty, formerly known as Providence Property and Casualty Insurance Co., and its subsidiary, Imperial Casualty and Indemnity, and artificially inflate the bank’s assets to secure funding from the federal Troubled Asset Relief Program.

U.S. Attorney Preet Bharara said in a press release that Huff, who secretly controlled South Florida PEOs O2HR and Certified HR Services, was at the “vortex of fraud” in a series of schemes involving more than $100…

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Proposed Silica Standard Needs to Be Strengthened

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

Strengthening the silica standard has been discussed and delayed for far too long. In fact, I have written about this issue on Facebook and other social media, but more work needs to be done to make these proposed standards both stronger and implemented.

In the past 18 months or so, National Public Radio has also had a couple of excellent in-depth reports on the dangers of silica in the workplace. While this discussion over updating standards from the 1970s has been ongoing, a relatively new industry, fracking, has been identified as being a likely problem for exposure that “has been shown to sometimes lead to serious diseases like silicosis and cancer,” according to this NPR report. Although workers wore respirators, there was a lot of silica dust in the air at job sites studied relatively recently. “… About one-third of the air samples they collected had such high levels of silica, the type of respirators typically worn wouldn’t offer enough protection.”

This issue is important to folks in Nebraska and Iowa because of the sand and gravel industries in our states and the exposure that workers have from other industrial uses. “A number of employer groups in such industries as sand and gravel, brick, fracking where silica dust is prevalent, the U.S. Chamber of Commerce and other corporate groups have or will testify against the proposed rule …”

I think this rule is essential to protecting workers’ health. And it needs to be as strong as scientific best practices suggest. I would urge OSHA to implement the proposals after years of discussion. Because, as the article below says, “Every day that a final standard is delayed, workers will continue to be at increased risk of disease and death.”

Trying to prevent those tragic results calls for action now.


While the AFL-CIO “strongly supports” a proposed new rule that would limit workers’ exposure to silica dust, AFL-CIO Safety and Health Director Peg Seminario outlined several areas that should be strengthened to provide better worker protection from deadly silicosis and other diseases caused by silica exposure.

Testifying before an Occupational Safety and Health Administration (OSHA) hearing, Seminario noted that changes to the current exposure standard—now more than 40 years old—were first proposed in 1997 and that when the proposed new standard was sent for review to the Office of Management and Budget in 1991, it lingered there for two-and-a-half years.

Every day that a final standard is delayed, workers will continue to be at increased risk of disease and death.

Every year some 2 million workers are exposed to silica dust and, according to public health experts, more than 7,000 workers develop silicosis and 200 die each year as a result of this disabling lung disease. Silicosis literally suffocates workers to death. Silica is also linked to deaths from lung cancer, pulmonary and kidney diseases.

Seminario said that permissible exposure limit in the proposed standard while set at half the current level is still too high. She urged that a stricter standard be included in the final and said that other provisions in the standard should be strengthened, including:

  • Establishing regulated work areas to limit the…

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A preventable work-related death is not “totally an accident”

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

This article is an excellent perspective on how people’s gut reactions can cloud a situation. First, I have to say it’s tragic that we need to talk so much about work-related fatalities, but it’s also important to remember that they happen to real people doing real work in real towns, just like ours, and yes, even in ours. I realize that people talking to the press are human and make slips of the tongue, but words are important, and how a person describes a situation is also important. That’s why I think this article is so important. Because describing a work-related fatality as an accident devalues the situation and the worker’s death. There is power in words.

I also appreciated the article’s comments section. Mr. Mark Catline from Maryland wrote, “Does OSHA ever contact local public safety agencies after such public comments? What if this was turned around and a Federal or State OSHA inspector commented to the press on police matters, ‘that (this incident) does not seem to be a criminal act’? I suspect the Area OSHA office would be hearing from the local police department.”

Although OSHA’s ability for enforcement is limited to safety violations, its representatives have referred company incidents to the Department of Justice for criminal sanctions. This process most likely involves local law enforcement as part of the investigation, so for them to declare an “accident” early on – when there may eventually be criminal charges – can’t be helpful to anyone’s investigations.

In a recent special report by Lincoln’s channel 10-11 about grain elevator fatalities, Bonita Winingham, OSHA Area Director for Nebraska, noted OSHA’s safety focus, saying “‘Our penalties do not reflect what someone’s life is worth at all.’”

She “says they make citations after each incident investigation, but they can lower those fines if the employer gets rid of the hazard or makes extra safety improvements.”

“‘When we talk to them about these cases we’re looking for abatement of the hazard, correction of the violation so that employees are no longer exposed to those hazards,’” says Wingingham. “‘That’s the main thing, we want to make sure that no one else is exposed to those hazards so everyone goes home safe.’”

“Wingingham says they can, and have, made recommendations to the Department of Justice if they find a company has willingly disregarded safety. Two companies, Crossroads Cooperative in 2009 and Farmers Union Coop of Stanton in 2012, have pled guilty to criminal sanctions for Nebraska grain-related deaths.”

The full text of the article below includes this information.

“Having an employee killed on the job is no doubt a shock. But after the shock subsides, most reasonable people recognize that fatal and non-fatal work-related injuries and illnesses are largely preventable.”

So please do not call these preventable tragedies accidents anymore.

What would it take to get police departments to refrain from calling work-related fatalities “just an accident”? I read it all the time. A 60 year-old mechanic falls 50 feet through an unguarded floor opening, and it’s an “accidental death.” Or a 30 year-old production clerk gets pulled into a machine, and it’s a “tragic accident.”

The latest example I read involved a 23 year-old man, Erik Deighton, who was crushed a few weeks ago at Colonial Plastics. The small suburban Detroit manufacturing plant fabricates specialty parts for automakers. Shelby Township Police Captain Stephen Stanbury told the press, “This is totally an accident.”

In a few months, I bet we’ll hear something different from Michigan OSHA (MIOSHA) about what happened on March 5 at Colonial Plastics. I’ll be surprised if they conclude “it was just an accident.” In reality, it’s a rare thing when on-the-job fatalities are “accidents.”

The news accounts relying on Captain Stanbury’s comments indicate that the 23 year-old worker was trying to clear an obstruction from a press machine. The machine cycled to stamp a part and he was fatally crushed. Catherine Kavanaugh of Plastics News writes:

The police did not indicate “…the exact kind of press involved but officers described it as a large machine with doors on two sides. The victim and a co-worker were operating the press together but…

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