Category Archives: workplace accidents

Workers’ Comp Covers Work-Related Motor Vehicle Accidents

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car accidentDo you drive a company vehicle as part of your job?

Many find themselves in the situation where they travel regularly, or on a special errand from time to time, as part of their job.

In the unfortunate scheme of things, if you are involved in an accident while driving, whether it is your fault or not, you are covered by and entitled to workers’ compensation benefits just as any other employee who suffers an accident on the premise of an employer.

More importantly, if the cause of the accident was not due to negligence of your own, but that of a third party, you have a right to bring a third-party negligence action against the party responsible for causing the vehicle accident. This right is separate and distinct from the workers’ compensation benefits that you are entitled to. Further, you also potentially have the right to bring an underinsured motorist coverage claim under your employer’s motor vehicle coverage as well as your own underinsured motorist vehicle coverage. These, too, are separate and distinct from the workers’ compensation benefits you are entitled to.

It is important to note that the employer would have a subrogation right to be reimbursed for workers’ compensation benefits paid on your behalf against that of any third-party negligence claim where you obtained a recovery. However, as underinsured motorist coverage is typically viewed as contractual benefits in nature, there is no subrogation right from your employer if underinsured benefits are obtained in Nebraska.

If you or someone you know was injured in a motor vehicle accident that arose out of and in the course of one’s employment, there are significant issues to be aware of in order to obtain a recovery that meets your needs. If you have any questions or uncertainty when dealing with this point of law, please seek the advice of an experienced attorney who can help steer you in the best course of action.

Workers’ Comp Covers Heat Injuries

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The Great Plains is nearing the calendar start of summer. Please be aware of the heat and what its effects can be on workers, on children and the elderly, and on pets. No one is safe in a closed-up car, for example.

Prolonged exposure to excessive heat and humidity can result in injuries and diseases covered by the workers’ compensation laws. Workers with heat exhaustion, strokes, heart attacks and skin conditions may be entitled to lost-time benefits, medical expenses and permanent disability benefits if the condition is serious.

It also appears that extreme weather is going to continue into this summer season, with some damage already to homes, crops and property. When storms do come, be sure it’s someone’s job to keep the crew safe from sudden weather, regardless of the industry. Enjoy the summer, and contact an experienced workers’ compensation attorney if there are questions about a specific incident that occurred at work.

It has been a roller coaster of a May here on the Great Plains. Nebraska and Iowa have both been hit with weather extremes. For example, “Two days after Lincoln recorded a record low temperature and less than two weeks after the city saw significant snow, thermometers soared Tuesday.” And I saw on Facebook via Radio Iowa News, that “Sioux City reports 106 on Tuesday afternoon, beating the old record of 97, set in 2001.” Because the Journal Star says this is the earliest Lincoln’s ever hit 100 degrees (a new record), I will go out on a limb to say that we’re done with freezes for a while, which makes me think about the next season: summer and heat.

Did you know that heat issues can be covered by workers’ compensation? But prevention is preferred, so here are some links with lots of resources for those who work outside, no matter the weather, and also for those who play, garden, golf, exercise, and enjoy the outdoors. In addition, just like one’s body adjust somewhat to cold, the body also adjusts to heat, so a person who spends the summer in the air conditioning will have less tolerance for the heat than someone who spends all day outdoors. In addition, pay attention to prescription medicines, as some can cause sunburn or heat problems quicker than a person not taking that medication would experience them. The heat can also affect folks who may not be considered the traditional “outside” worker, as, for example, if one is unloading cargo from a truck to a warehouse in 100 degree heat, it can be much hotter than that in both the truck and warehouse.

One term that is mentioned on a regular basis in the media once the humidity kicks in is the “heat index,” which is defined as followed, according to http://www.weather.com/outlook/health/fitness/tools/heat: “The Heat Index is the temperature the body feels when heat and humidity are combined.” Of course this means that what it feels like isn’t the actual temperature, as it only felt like 95 when it was 100 recently because of a “dry heat.”

  • Welcome to OSHA’s Campaign to Prevent Heat Illness in Outdoor Workers
    There is a lot of information on here, and looking through some of it is a reminder that employers should expect and encourage workers to be safe when it comes to working in the heat. Employers should make an effort to encourage this safety focus by both talking about and acting on recommendations to help employees be safer and more productive.
  • Using the Heat Index: A Guide for Employers
    “Water. Rest. Shade. The work can’t get done without them.” This quote from the website is a very useful safety reminder. It looks like there are lots of opportunities through these links for conversations to occur between workers and employers about taking heat index into account when planning work.
  • NIOSH Workplace Safety and Health Topics: Heat Stress
    This site includes an overview; types of heat stress; recommendations for employers; recommendations for workers; and many other links that share resources and research about being in the heat.
  • Heat Safety Tool
    Although I’m generally easily amused, I am sincerely happy to say that there’s an app for that! Because so many people are connected with mobile technology, I am looking forward to downloading this app on my phone for the summer for personal use.
  • OSHA Quick Card
    Here’s a Quick Card resource from OSHA that folks can print out for reference points. And as neat as mobile apps are, from a practical perspective, paper does make a better fan.

So regardless of why you’re outside, enjoy, take care, and be safe!

The Right to a Safe Workplace

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Workplace SafetyUnder federal law, every employee has the right to a safe workplace. If you believe your workplace is dangerous and changes in safety policy are ignored, you can request an inspection from OSHA (Occupational Safety and Health Administration).

Workers’ compensation, which is regulated on a state-by-state level, covers medical bills, lost wages, disability and vocational rehabilitation services for employees injured on the job. If you have any questions regarding these benefits, please contact an experienced lawyer in your area.

If you believe you work in an unsafe work area, here are some tips to be aware of to make sure your workplace is as safe as possible, and you protect yourself from significant injury:

  1.  Know the hazards in your workplace.
  2. While in a seated position, keep your shoulders in line with your hips. Use good form when lifting.
  3. Injuries occur when workers get tired. Take breaks when you’re tired.
  4. Do not skip safety procedures just because it makes the job easier or quicker. Using dangerous machinery is the one of the leading causes of work injuries.
  5. Be aware of where emergency shutoff switches are located.
  6. Report unsafe work areas.
  7. Wear proper safety equipment.

If you are injured due to an unsafe workplace, and you are unsure of the benefits that you are entitled to, contact an experienced attorney in your area.

Safety Begins at Home: Riddell All-American Sports Cited for Serious Safety Violations by OSHA

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Riddell-The Official Helmet of the NFL

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

August and September mean more than back-to-school for many high schools and colleagues in Nebraska and Iowa. This also means the fall sports season and the start of high-risk and high-reward football, too. As more knowledge is gathered about the risks of concussion and injuries to student athletes, there is also more awareness and people working hard to lessen those risks and keep players safer.

In fact, according to a previous blog post, Nebraska – A Rare Example Of How To Treat Student Athletes Better, Nebraska actually has a system akin to workers’ compensation that is meant to protect student athletes in college who get hurt or die.

“Since 1984, Nebraska law has provided additional protection for college athletes. Our schools offer a rare exception among college athletics programs by offering students a form of workers’ compensation.

This difference is because in 1984 the Nebraska Legislature enacted a law (Neb. Rev. Stat. § 85-106.05), which mandated that the University of Nebraska establish an insurance program to provide coverage to student athletes for personal injury or death while participating in university- organized games or practice in an intercollegiate athletic event.

This law covers students in ways similar to workers’ compensation, providing medical coverage and some monetary benefit to athletes who become disabled while participating in an official collegiate game or a practice.”

Essentially, State Sen. Ernie Chambers worked hard to advocate for students, and it looks like, according to Mr. Gelman, the Riddell sports equipment company could definitely learn from our state’s protections. Although businesses should uphold safety standards as a best practice, it is reassuring that OSHA helps protect workers, often retroactively, but sometimes proactively, serving as a referee in the also high-risk and high-reward game of business.

Recently there have been many discussions and lawsuits about NFL player safety arising out of serious brain concussions from football. In a ironic turn, a company who manufactures football safety gear has itself been cited for serious safety violations at its own manufacturing facilities. The apple certainly doesn’t fall far from the tree.

The U.S. Department of Labor’s Occupational Safety and Health Administration has cited Riddell All-American Sports Co. with eight alleged serious violations following an investigation that began in August 2012 from a complaint for exposing workers to multiple safety and health violations at its Alamo Downs Parkway facility in San Antonio. Proposed penalties total $44,000.

The serious violations include failing to ensure electrical equipment was free from recognized hazards, provide adequate machine guarding while operating industrial sewing machines, provide a fall protection program to prevent fall hazards from the basket of a powered industrial truck and implement a respiratory program. A serious violation occurs when there is substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known.

“It is the employer’s responsibility to assess the hazards in the workplace and provide a safe and healthful environment for its workers,” said Kelly Knighton, OSHA’s area director in San Antonio. “In this case, it is fortunate that no one was hurt.”

Elyria, Ohio-based Riddell, which employs about 25 workers at the San Antonio site, paints helmets for various sports, such as football and hockey. The company has 15 business days from receipt of the citations to comply, request an informal conference with OSHA’s San Antonio office or contest the citations and penalties before the independent Occupational Safety and Health Review Commission.

To ask questions, obtain compliance assistance, file a complaint, or report workplace hospitalizations, fatalities or situations posing imminent danger to workers, the public should call OSHA’s toll-free hotline at 800-321-OSHA (6742) or the agency’s San Antonio office at 210-472-5040.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit http://www.osha.gov.

“Opting Out” of Worker’s Compensation Hurts Workers and Employers (Part 2)

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Today’s post comes from guest author Tom Domer, from The Domer Law Firm in Wisconsin. It is a follow-up to a post last week. There is a disturbing trend among states to essentially gut workers’ compensation systems and laws by being “business friendly” and then calling that practice variations of “alternative worker’s compensation programs.” I always thought businesses were more profitable and successful when their employees worked in a safe environment and were taken care of if they happened to get injured on the job. And the reality is that in the race for a bigger profit, the injured workers pay in human capital. The wisely written “cautionary note to employers” below is the workers’ consolation prize, apparently.

Last week we explained Wisconsin’s rich history of protecting injured workers through its mandatory workers’ compensation system. This week we’ll look at what is happening in Texas and Oklahoma, where it is not mandatory for employers.

Alternative worker’s compensation programs( like that of Texas’—and now Oklahoma— non-subscriber / “Opt Out” scheme) have the potential to significantly reduce workplace safety. Since experience rating is a fundamental component of worker’s compensation insurance systems, the comp system provides economic incentives to employers through reduced insurance costs to companies with reduced injury rates and safe workplaces.  Texas’ “opt out” option  means that an employer can choose to be self insured or become a non-subscriber and opt out of worker’s compensation insurance entirely. Those employers opting out of worker’s compensation systems are not experience rated and there is no economic incentive to reduce workplace injuries and ensure safe work environments for their employees.

Most recently on April 17, 2013 a fertilizer plant exploded in Texas, killing 15 and injuring approximately 200 people. EMS workers, firefighters, and other first responders were among the casualties.  The West Fertilizer Company was approved to have no more than 400 pounds of ammonium nitrate in the plant, but instead, 270 tons were reported to be on site. West Fertilizer failed to inform the Department of Homeland Security of the amount of fertilizer it had. Texas had as well the worst recorded industrial accident in America in 1947 when 3,200 tons of ammonium nitrate resulted in almost 600 deaths and 3,500 injuries.

Texas has the worst work-related fatality rate in the nation.

Texas has the worst work-related fatality rate in the nation. According to the Bureau of Labor Statistics, 433 reported fatalities occurred in 2011 alone in Texas with the highest (4.79 per 100,000 workers) for the last ten years. (Oklahoma is in line to follow).

Oklahoma’s worker’s compensation measure was signed into law May 5 and it drastically changes how Oklahomans are compensated for on the job injuries. Republican Governor Mary Fallin has tried to change the worker’s compensation system for over 20 years in State politics.  She indicated the bill would reduce costs for businesses. The law changes worker’s compensation system from a judicial to an administrative one, allowing businesses to opt out of the worker’s compensation systems as long as they provide “equivalent” benefits to injured workers. Opponents of the law indicate that it is unfair to injured workers because it will reduce their benefits. The implementation of “equivalent” benefits, and what kind of injuries are covered or uncovered by those who “opt out” of the system is yet to be determined.

Cautionary note to employers: since those employers that “opt out” of worker’s compensation are no longer allowed the benefit of the exclusive remedy provision of worker’s compensation, workers who are not covered by worker’s compensation can sue their employers. For example, in a recent Colorado case where an undocumented worker (who by Statute in Colorado was not covered under worker’s compensation) received over a $1 million verdict against the negligent employer.

http://en.wikipedia.org/wiki/List_of_industrial_disasters

Worker’s compensation systems benefit both employers and workers, and the dangers of opting out of the system means a retreat to harsh industrial conditions, producing  the same kind of inequities  that workers’ comp remedied over a century ago. The situation calls to mind the maxim that those who don’t remember history are doomed to repeat it.

“Opting Out” of Worker’s Compensation Hurts Workers and Employers (Part 1)

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Our good friend Tom Domer posted the following article about the history of workers compensation in America. Nebraska, like Wisconsin, was an early pioneer. Our Workers Compensation law was effective in 1913. Current efforts to allow business to opt of workers compensation protection for workers seems to be gaining momentum. Going back to the 19th century in treatment of workers is not acceptable. We can’t let the forces of big business and greed take us back to the robber baron days of old. Reading the history and understanding how important workers compensation protection is essential and I thank Tom for his well written and thoughtful discussion.

More than a century ago, Wisconsin’s initial efforts in worker’s compensation led the nation. In 1911 Wisconsin became the first state in the nation to place a broad constitutionally valid worker’s compensation system into operation. Recent events, specifically Oklahoma’s passing legislation to allow employers to “opt out” of worker’s compensation (following the “lead” of Texas) calls into question the great bargain made between employers and workers over a century ago. Prior to the enactment of worker’s compensation in the early 20th Century, workers who were injured on the job had to overcome three common law obstacles in order to recover from their employer.

Under contributory negligence, a worker could not recover from the employer if the worker had been negligent in any way and that negligence contributed to the accident, regardless of how negligent the employer may have been.

Under assumption of risk, if a worker knew or should have known of the danger inherent in the task at issue before undertaking it, the employer was not liable for an accident arising from the task even if the employee was not negligent.

Under the fellow servant rule, employers could not be held liable for accidents caused by fellow employees.

The combined effect of these common law defenses served to deny Continue reading

OSHA settles with Nebraska-based ConAgra Foods to protect workers from anhydrous ammonia

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con_agra_foods

Today’s post comes from guest author Jon Gelman from Jon Gelman, LLC – Attorney at Law in New Jersey. This settlement is an example of what can happen when OSHA visits one plant and the settlement is implemented throughout the company, or “corporate-wide.” According to the story, “The agreement is the result of an inspection conducted at the company’s American Falls, Idaho, facility, initiated under OSHA’s PSM Covered Chemical Facilities National Emphasis Program, established to reduce or eliminate the workplace hazards associated with the catastrophic release of highly hazardous chemicals.” So the benefit of the company’s implementation is that workers in a number of plants in a number of states will now be safer.

ConAgra Foods, Inc. dba Lamb Weston, Inc. has signed a settlement agreement with the U.S. Department of Labor’s Occupational Safety and Health Administration to protect workers at five of its facilities from the release of anhydrous ammonia from refrigeration systems.

The agreement protects workers at Idaho, Arkansas, Missouri and Ohio facilities of the Nebraska-based company. It requires ConAgra to implement controls to reduce hazards associated with release of ammonia from low pressures receivers.

“This agreement ensures that ConAgra will protect workers from releases of ammonia by enclosing older LPRs that were not already enclosed, and by providing other controls such as normal and emergency ventilation to prevent exposure,” said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels. “OSHA’s corporate-wide settlement agreements are highly effective tools for ensuring that companies take a systemic approach to addressing hazards that can injure or kill their workers.”

OSHA’s Process Safety Management standard requires employers to document that equipment that was designed to meet codes and standards no longer in general use is still safe to operate under OSHA standards. OSHA originally cited ConAgra for failing to determine whether these older LPRs were being operated safely.

Under the agreement, ConAgra will implement administrative and engineering controls at the covered LPRs to control hazards associated with the release of ammonia. This includes building enclosures around equipment that is not already enclosed. Each enclosure must include normal and emergency ventilation that meets specified requirements, automatic switches for both normal and emergency ventilation and ammonia detection alarms. Egress doors for the enclosures will be required to include panic hardware and to swing in the direction of egress.

The agreement is the result of an inspection conducted at the company’s American Falls, Idaho, facility, initiated under OSHA’s PSM Covered Chemical Facilities National Emphasis Program, established to reduce or eliminate the workplace hazards associated with the catastrophic release of highly hazardous chemicals.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit http://www.osha.gov.

Workers: Watch the Heat!

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It has been a roller coaster of a May here on the Great Plains. Nebraska and Iowa have both been hit with weather extremes. For example, “Two days after Lincoln recorded a record low temperature and less than two weeks after the city saw significant snow, thermometers soared Tuesday.” And I saw on Facebook via Radio Iowa News, that “Sioux City reports 106 on Tuesday afternoon, beating the old record of 97, set in 2001.” Because the Journal Star says this is the earliest Lincoln’s ever hit 100 degrees (a new record), I will go out on a limb to say that we’re done with freezes for a while, which makes me think about the next season: summer and heat.

Did you know that heat issues can be covered by workers’ compensation? But prevention is preferred, so here are some links with lots of resources for those who work outside, no matter the weather, and also for those who play, garden, golf, exercise, and enjoy the outdoors. In addition, just like one’s body adjust somewhat to cold, the body also adjusts to heat, so a person who spends the summer in the air conditioning will have less tolerance for the heat than someone who spends all day outdoors. In addition, pay attention to prescription medicines, as some can cause sunburn or heat problems quicker than a person not taking that medication would experience them. The heat can also affect folks who may not be considered the traditional “outside” worker, as, for example, if one is unloading cargo from a truck to a warehouse in 100 degree heat, it can be much hotter than that in both the truck and warehouse.

One term that is mentioned on a regular basis in the media once the humidity kicks in is the “heat index,” which is defined as followed, according to http://www.weather.com/outlook/health/fitness/tools/heat: “The Heat Index is the temperature the body feels when heat and humidity are combined.” Of course this means that what it feels like isn’t the actual temperature, as it only felt like 95 when it was 100 recently because of a “dry heat.”

  • Welcome to OSHA’s Campaign to Prevent Heat Illness in Outdoor Workers
    There is a lot of information on here, and looking through some of it is a reminder that employers should expect and encourage workers to be safe when it comes to working in the heat. Employers should make an effort to encourage this safety focus by both talking about and acting on recommendations to help employees be safer and more productive.
  • Using the Heat Index: A Guide for Employers
    “Water. Rest. Shade. The work can’t get done without them.” This quote from the website is a very useful safety reminder. It looks like there are lots of opportunities through these links for conversations to occur between workers and employers about taking heat index into account when planning work.
  • NIOSH Workplace Safety and Health Topics: Heat Stress
    This site includes an overview; types of heat stress; recommendations for employers; recommendations for workers; and many other links that share resources and research about being in the heat.
  • Heat Safety Tool
    Although I’m generally easily amused, I am sincerely happy to say that there’s an app for that! Because so many people are connected with mobile technology, I am looking forward to downloading this app on my phone for the summer for personal use.
  • OSHA Quick Card
    Here’s a Quick Card resource from OSHA that folks can print out for reference points. And as neat as mobile apps are, from a practical perspective, paper does make a better fan.

So regardless of why you’re outside, enjoy, take care, and be safe!