Monthly Archives: December 2012

From Hand to Mouth – Workers Need to Concerned About Chemical Safety

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The inadvertent and dermal conceptual model

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

As workers gear up for the new year, I think it’s a good idea to take a step back to think about what went well in 2012 and what could have gone better. Did you take any risks or shortcuts that put your safety in jeopardy? We are human, so there is much error involved, but I would encourage you to slow down in 2013 and think about the safety equipment and attitude you need to do each job. And then make sure your employer has the resources available for being safe.

In addition to equipment and time to plan for safety, knowledge is another tool that can enhance safety! Almost every industry (even those who see themselves as office workers) uses chemicals. Have you considered how accidental “inadvertent ingestion” leading to chemical exposure can happen? Sadly, it can happen to anyone and even lead to cancer or other long-term health problems. The firm recently completed successful litigation against chemical manufacturers that provided chemicals to a local plant where industrial solutions were used to make rubber products. One of the inadvertent ways the workers were exposed to the chemicals was through the skin, as gloves were not always worn when handling the industrial solutions. So please be aware and be safe in 2013!

A recently published a paper about the inadvertent ingestion of chemicals at work from contact between the mouth and contaminated hands or objects highlights how dangerous exposure could occur at work.  The inadvertent ingestion is a potentially significant source of occupational exposure, and there needs to be a greater focus on assessment of risks from hand-to-mouth contacts and more done to control such risks.

“The latest research is part of a project to develop a predictive model to estimate inadvertent ingestion exposure. To better understand this route of exposure, we developed a new integrated conceptual model for dermal and inadvertent ingestion. It consists of eight compartments (source, air, surface contaminant layer, outer clothing contaminant layer, inner clothing contaminant layer, hands and arms layer, perioral layer, and oral cavity) and nine mass transport processes (emission, deposition, resuspension or evaporation, transfer, removal, redistribution, decontamination, penetration and/or permeation, and swallowing) that describe event-based movement of substances between compartments (e.g. emission, deposition, etc.). We plan to use the conceptual model to guide the development of predictive exposure models for both the dermal and the inadvertent ingestion pathways.”

Gorman Ng M, Semple S, W Cherrie J, et al. The Relationship Between Inadvertent Ingestion and Dermal Exposure Pathways: A New Integrated Conceptual Model and a Database of Dermal and Oral Transfer Efficiencies. Ann Occup Hyg Published Online First: 23 July 2012. doi:10.1093/annhyg/mes041

Cherrie JW, Semple S, Christopher Y, et al. How important is inadvertent ingestion of hazardous substances at work?Ann Occup Hyg 2006;50:693–704.

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For over 3 decades the
 Law Offices of Jon L. Gelman  1.973.696.7900  jon@gelmans.com have been representing injured workers and their families who have suffered occupational accidents and illnesses.

Read more about “Chemical Exposures:

Dec 18, 2009
Chemical Exposure in Iraq Claims Soldier. The death of an Indian National Guard member has been alleged to have been caused by a chemical exposure at an Iraq worksite. The terminal cancer of Lt. Colonel Jim Gentry, age 
Mar 26, 2011
Chemical exposures continue to impact health and result in an enormous burden on human life. Over 4.9 million deaths world-wide and 86 million Disability-Adjusted Life Years were attributed to environmental exposure and
Oct 05, 2012
The extent and nature of potential health effects depend on many factors, including the level and length of exposure to the pollution. From the 1940s to 1980, what is now referred to as the Scientific Chemical Processing site 
Jul 10, 2010
A lawsuit was filed alleging that a former chemical operator at Hoffman-LaRoche in Nutley, New Jersey was exposed to asbestos fiber and died of mesothelioma. The lawsuit filed in New Jersey Superior Court asserts that he

Hazards exist in the surface refinishing business

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Today’s post comes from guest author Jon Gelman from Jon Gelman, LLC – Attorney at Law in New Jersey. Unfortunately, I think we have seen too many articles about the problem of not having proper ventilation or respiratory protection. This happens in so many industries, including agriculture. And realize that it’s most likely a much bigger problem, because the articles only result from those who die or get hurt from this practice, not workers who face these challenges every day. It is so important for companies to provide their employees with the information, knowledge, and safety equipment needed to carefully do their jobs.

University of Iowa, College of Public health, recently reported the death of a bathtub refinishing technician who died from the inhalation of paint stripper vapors.

The apartment manager and first responders reported a strong chemical odor in the second story apartment.

In 2012, a 37-year-old female technician employed by a surface-refinishing business died from inhalation exposure to methylene chloride and methanol vapors while she used a chemical stripper to prep the surface of a bathtub for refinishing. The technician was working alone without respiratory protection or ventilation controls in a small bathroom of a rental apartment. When the technician did not pick up her children at the end of the day, her parents contacted her employer, who then called the apartment complex manager after determining the victim’s personal vehicle was still at the refinishing company’s parking lot. The apartment complex manager went to the apartment unit where the employee had been working and called 911 upon finding the employee unresponsive, slumped over the bathtub. City Fire Department responders arrived within 4 minutes of the 911 call. The apartment manager and first responders reported a strong chemical odor in the second story apartment. There was an uncapped gallon can of Continue reading

To Grandmother’s House We Go: Drive Safely Please!

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Over the river and through the woods to Grandmother’s house we go ….

Whatever your version of this song is, very few people are taking a horse and sleigh “over the river” anymore, and many would be taxing their horses’ abilities because they live so far away from family! Today’s reality is that with more than 93 million people traveling, which approaches a 2006 record, folks will have to be patient with each other. “AAA expects 84.4 million people to travel by car more than 50 miles from home at the height of the season,” which officially started last Saturday and lasts through Jan. 1, 2013, according to the USA Today article.

Nebraska and Iowa still have snow on the ground while recovering from last week’s blizzard. So the roads will be even more treacherous to drive in the next few days because of weather conditions. It always bears repeating that especially during the holidays, folks should take extra time, drive defensively, and watch out for the other driver. This blog post written by firm owner Rod Rehm last year includes tips on How to Stay Safe on Snowy Roads, which will definitely be useful for the current conditions.

But there is another group of dedicated people who I think holiday drivers take for granted and don’t always respect for the professionals they are: truckers. These two groups on Facebook, Land Line Magazine – The Official Publication of OOIDA, and the Federal Motor Carrier Safety Administration both recently shared the following blog post from the United States Department of Transportation: It’s not a holiday for everyone; America’s freight never stops moving. A quote from Federal Motor Carrier Safety Administrator Anne Ferro from the blog post said it very well, I thought, and was exactly the concern on which I wanted to focus when I started writing today’s blog post.

“Let’s give these drivers back a gift we can all live with. When driving near a large truck, please keep out of their ‘no- zones,’ the areas alongside or behind a truck where the driver can’t see your car. Letting them see your vehicle will help all of us stay a little safer this holiday, and every day,” Ferro said.

And I would add that in addition to being a safer way to travel, it also is a way to be respectful of the good job that the vast majority of truckers do day in and day out to deliver their loads to us for our convenience and consumption. This is often at risk to themselves and their work also keeps them away from their families for weeks or months at a time.

So because we all want to get home safely to family, please be careful and take care traveling wherever you’re headed. And a special thank you to all, truckers, nurses, first responders and folks in other occupations who can’t be with their families because they are serving the public and keeping us safe. Have a great holiday season and safe 2013!

Happy Holidays!

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We hope that this holiday season brings peace to so many who are hurting and hurt, especially families and innocent children. May each of you have the opportunity to visit with folks who are held dear and take the time to appreciate those relationships, whether they are friends or family. I hope that we can be mindful through our joy and celebrations to reach out to those who are alone but also respect those who want or need to be alone. And in this season of merriment, let’s appreciate our comfortable lives and good health and strive to help those who go without. Know every happiness this holiday season and throughout the coming year. Take care!

Truck Drivers Beware – Your Insurance May Not be What You Think

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Today’s post comes from guest author Leonard Jernigan from The Jernigan Law Firm in North Carolina. I found this an extremely helpful blog post for truckers and other independent contractors. Rehm, Bennett & Moore has represented truckers since the mid-1990s. Attorneys at the firm have helped truckers from all over the United States whose injuries are covered by Nebraska’s or Iowa’s laws. Generally, Nebraska and Iowa’s laws may be in effect if the accident the trucker is involved in happens here or if the trucking company’s corporate headquarters are here. As you read about the situation below, consider the following: an attorney will most likely be happy to look over a contract before you sign it; be sure to get a copy of any contract that you sign; and if you are in an accident, an attorney can make sure your rights and health are as protected as possible in your specific situation.

There is a scam out there and truck drivers are the victims, especially if they are seriously injured in a trucking accident. It works like this: an out of work driver hears about a job and fills out an application with a national trucking company. He then gets a call saying he has been accepted as a driver, contingent on a physical exam and a drug test. The driver is then asked to show up at work on an appointed date for his first delivery job. When he shows up he is asked to “sign papers” which allow him to lease/own the truck as he drives it across the country, and he signs a contract that declares that he is an independent contractor (although in reality the trucking company controls the deliveries and is the only source of revenue for the driver). Further, he is required to purchase accident insurance through a broker designated by the trucking company and the premiums are taken out of his paycheck. Because the driver is anxious to work again and is not particularly experienced in reviewing legal documents the driver signs the papers, gets in the truck and begins working again as an interstate truck driver.

The costs of this workplace injury are now shifted from the employer/insurer to the taxpayer.

Like most of us, these drivers never expect to be in a serious accident. If they unfortunately do have an accident while driving the truck, they look to the accident policy they purchased. If they are disabled, it pays the same benefits as workers’ compensation and provides medical coverage. Many drivers think they are actually on workers’ compensation. The catch is that all benefits stop after 104 weeks (2 years). If after that time if the driver is still disabled and still needs medical care, it is a shock to find out none is available under this contract.

Is there no hope for the truck driver under these circumstances?

Why 104 weeks? Most states have workers’ compensation systems that require the claim be filed within 2 years. Since the 2-year period has run, the driver is out of luck and cannot file for workers’ compensation under state law. What happens if the driver needs additional surgery and continues to remain disabled? Most likely federal assistance programs like Medicaid or Medicare enter the picture and the costs of this workplace injury are now shifted from the employer/insurer to the taxpayer.

If involved in a serious accident, be aware of the 104-week provision and file a workers’ compensation claim before that time period expires.

Is there no hope for the truck driver under these circumstances? Although it might be a tough fight, most workers’ compensation statutes specifically state that an employer cannot contract away its obligations under the Workers’ Compensation Act. Thus, the truck driver’s legal argument is that the contract designating the driver as an independent contractor was void as a matter of law. If the employee has been the subject of fraud, equity may allow the driver to go ahead and file a claim and pursue the action even through the 2-yr period has run. Under these circumstances, certainly in North Carolina, the driver would have an opportunity to pursue this claim.

The lesson to be learned by truck drivers is not to assume that the contract you have innocently signed is valid. If involved in a serious accident, be aware of the 104-week provision and file a workers’ compensation claim before that time period expires. Finally, if you are asked to sign one of these contracts and you have options of other employment, you may want to decline this job offer and work for a company that is more ethical. Your livelihood and the welfare of your family may depend on this important decision.

2013: Centennial Year for Workers’ Compensation in Nebraska

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100 Years of Nebraska Workers’ Compensation

The year 2013 will mark 100 years of workers’ compensation law in Nebraska. This state was a leader in adopting the new protections and benefits for workers. The first workers’ compensation laws in the United States were enacted two years earlier, and few states had followed by 1913. Workers’ compensation laws were hailed as social progress, if not outright human-rights triumphs. Nebraska was a leader in protecting workers’ rights. Much has changed since then.

 

The current workplace is not the workplace that existed 100 years ago. The jobs then were much more physically demanding and dangerous. The injuries and diseases are not the same. Repetitive-motion injury was not contemplated or compensated. Cancer from industrial solvents was not contemplated or compensated. Mental disease was stigmatized by society and essentially not compensated. Medical practice was less specialized, and treatment options were much more limited.

 

Interested parties have long been working to keep the law in sync with the times. The law has changed from time to time, but some of the bedrock concepts, such as requiring “accident” have resulted in some rules that lawyers call legal fictions, for instance. Medical benefits that experts consider the most basic protection are the most costly part of the system, and cost increases are an area of constant concerns.

 

Competing legislation is presented each year with incremental changes resulting. The last major revisions happened 20 years ago. The annual arguments sometimes get heated, but the law seems to advance. The big picture is something we can be proud of.

 

Nebraska law has the highest rating of any state under presidential-commission guidelines established in 1972. Premiums and costs are in the mid-range of the states, as are worker benefits. Nebraska is rated as the 2nd-best state legal climate by the U.S. Chamber of Commerce. Nebraska is one of few states that has robust vocational rehabilitation benefits for injured workers. Hopefully we can continue working together to maintain and improve Nebraska’s workers’ compensation law in ways that benefit all of the competing interests.

 

Bottom-line conclusion: Nebraska law is doing well for a centenarian. Let’s keep cooperating to ensure progress.

Suicide – Recognize the Signs Before It’s Too Late

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Today’s post comes from guest author Leonard Jernigan from The Jernigan Law Firm in North Carolina. Dealing with chronic illness or work injuries around the holidays can be very challenging and overwhelming. Unfortunately, sometimes people think that their best choice is suicide. This important blog post assists readers with recognizing the signs and directing folks who are struggling towards getting professional help. Because in this time of year where people are supposed to care for each other, sometimes it’s also important to listen and take care of each other.

Several years ago I had declined to represent an injured truck driver until his wife called me and said she found a suicide note and asked me to reconsider. I did and was able to help him. I believe there is a connection between suicide and workers’ compensation. Clearly the pain of an injury, coupled with the stress of not being able to return to work can cause tremendous psychological strain.

One Texas doctor actually testified at a legislative hearing that prolonged decisions on workers’ compensation coverage in the state had lead to an increase in work’ comp’ related suicides in recent years. “The incidence of those reports has been astonishingly high compared to five years ago,” he told the legislators, “when they were, to my knowledge, nonexistent.”

Below are some signs that you or somebody you know may be at risk. This list of warning signals comes from the website of the American Psychological Association. If you see any of these signs, seek help from a doctor or therapist, or call the National Suicide Prevention Lifeline at 1-800-273-TALK (8255). Continue reading

Legal Avenues Exist for Dealing with Workplace Bullying

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Bullying isn’t limited to the schoolyard. Bullying in the workplace is also a hot topic among employment lawyers and human-resource professionals.  One study states that 35 percent of employees are bullied at work. In general, if you are being bullied at work, you should document the bullying, try to constructively confront the bully and speak with HR if the bullying continues. If bullying is persistent, you should also consider looking for other employment.

Currently there are no state or federal laws in Nebraska that specifically address workplace bullying. However, in many situations, there are laws in place that employees can use to protect themselves against workplace bullying, from a legal perspective. Exercising your rights under these laws may not stop the bullying. But by exercising your rights under the laws described below you could force a smart employer to take some action against a bully. And by using these legal tools, you could also possibly expose your employer to a retaliation suit if you are fired after trying to stop a workplace bully.

1. Title VII and the Nebraska Fair Employment Practices Act:  Both of these laws make it unlawful to harass a worker based protected classes such as sex, race, nationality, disability, age, and religion. If you are being harassed based on one of these factors, the law forces you to address these complaints with management in order for you to successfully bring suit. While it is difficult to win a harassment case in Nebraska, the fact that you must bring the harassment to the attention of management at least forces management to address the situation. If management is smart they will realize that they need to address the harassment or else they could be subject to legal liability. If management is enlightened, they will realize the cost of employee turnover and address the situation regardless of any potential legal liability.

Many people believe that harassment based on sexual orientation is not against the law in Nebraska.  However, gays and lesbians in Nebraska may be protected from harassment in some situations under the legal theory of “sex plus” discrimination.

So what if workplace bullying is not based on a protected class?  Even then, employees might have legal protections under three laws: the National Labor Relations Act; the Americans with Disabilities Act; and the Family and Medical Leave Act.

2. The National Labor Relations Act. The NLRA protects workers’ rights to act together to address workplace conditions. The NLRA applies regardless of whether a workplace is unionized. If a boss or co-worker truly is a bully, then other people will likely believe they are being bullied as well. By acting collectively, employees stand a better chance of remedying the situation. For example, in the case of Teetor v. Dawson County Public Power District, employees essentially forced management to fire a longtime supervisor who was notorious for bullying subordinates. The supervisor’s bullying was one of the reasons why employees tried to unionize. Since the employer did not want their employees to unionize, they fired the bullying supervisor.

Also by acting collectively, employees give themselves legal protections against retaliation by complaining against a bullying boss. Employees have no protection if they complain individually against a boss. The absence of other people complaining about a workplace bully could also lead a court to believe that what one person views as workplace bullying is really just evidence of a personality conflict or oversensitivity on the part of the employee.

3. The Americans with Disabilities Act and the Family and Medical Leave Act. If bullying is severe enough to either cause or aggravate a mental illness, an employee may be able to invoke the ADA and the FMLA. The ADA forces employers to make reasonable accommodations to employees with disabilities. In theory, an employee should be able to suggest an end to bullying on the part of the co-worker or boss as the reasonable accommodation. Also, by asking for an accommodation, an employee gives themselves legal protection against retaliation by their employer. Under the FMLA, an employee can take job-protected leave to treat a serious medical condition. Asking for FMLA leave can leave your employer open to legal liability if they wrongfully deny you FMLA leave or retaliate against your taking FMLA leave.

I hedge a little bit on the use of the ADA and the FMLA as anti-bullying tools. Employees who use the ADA and FMLA as an anti-bullying tools need to be confident that their situation is more than just a personality conflict with a boss or co-worker. An honest counselor or psychologist should be able to tell you this. It would also be helpful to get some confirmation of the bullying from co-workers and trusted friends. Employees also need to make sure that they aren’t using the ADA as an excuse for unsatisfactory performance and poor attendance. Defense lawyers are expert at sniffing out people using the ADA and the Family Medical Leave Act to cover up for bad attendance and poor performance.

But if an employee can clear those hurdles, it can make sense to ask for an end to bullying as a reasonable accommodation under the ADA. I think the NLRA is a better tool to deal with workplace bullies than the ADA, but sometimes co-workers are too afraid to support a colleague who confronts management.

Not every incidence of bullying can be remedied by these laws. Also, if you work for a small employer, your employer may not have to comply with fair-employment laws. However, before a bully forces you to quit, or before you do something out of anger that causes you to get fired, you should consult with a knowledgeable employment-law attorney.