Category Archives: OSHA

Recalling the Forgotten Provision of the ‘Grand Bargain’

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grand-bargainThe Oklahoma and Florida supreme courts both overturned anti-worker changes to their state workers’ compensation laws based in whole or in part on their state constitutions. Workers’ compensation laws, for the most part, are state laws. This post seeks to explain why workers’ compensation laws are state laws and what that could mean for workers’ compensation laws in the future.

The vast majority of workers’ compensation attorneys and industry observers know the term “Grand Bargain.” In the “Grand Bargain,” employees gave up the right to sue their employers in tort for work injuries in exchange for defined benefits regardless of fault.

Workers’ compensation laws emerged roughly a century ago. However, Congress did not have the power to enact the “Grand Bargain” because of how the U.S. Supreme Court interpreted the Commerce Clause. In 1895, the court held in United States v. E.C. Knight that manufacturing was not commerce. In 1918, the court overturned a law prohibiting child labor on similar grounds and additionally held that the effects of child labor did not have enough of an impact on interstate commerce to justify regulation.

The Supreme Court did uphold the constitutionality of workers’ compensation laws in the case of New York Central Railroad v. White. However, the court upheld workers’ compensation laws based on a state’s so-called “police powers” under the 10th Amendment.

During the New Deal era in the 1930s, the Supreme Court’s interpretation of the interstate commerce clause changed so that workers’ compensation laws could have been enacted by the federal government. But by then, most states had workers’ compensation laws, so a general federal workers’ compensation law was unnecessary.

‘Federalization’ in the Post-New Deal Era

In the 1970s, Congress passed laws regarding occupational safety (Occupational Safety and Health Act) and employee benefits (Employee Retirement Income Security Act) under its authority granted by the interstate commerce clause. But neither OSHA nor ERISA were intended to interfere with state workers’ compensation laws.

The 1970s also saw an ultimately failed effort to impose federal minimum standards on state workers’ compensation. It was in this era that the term “federalization” and the concerns about the impact of federal laws on state workers’ compensation systems emerged.

Federalization re-emerged as an issue in the 2000s when concerns arose that the costs of workers’ compensation injuries were being shifted onto Medicare, and the federal government tried to fashion remedies to shift the cost back onto the workers’ compensation system. The effect of the Affordable Care Act on workers’ compensation was another federal issue that was hotly debated in workers’ compensation circles.

Finally in President Obama’s second term, OSHA issued many rules about medical care and drug testing  that could have affected workers’ compensation laws. Democratic presidential candidate Bernie Sanders and other elected leaders also wrote a letter to the Secretary of Labor pointing out the failure of state-based workers’ compensation systems.

Conventional wisdom is that the election of Donald Trump paired with a Republican Congress will end the Obama era efforts at federalization of the workers’ compensation system. There is probably a fair amount of truth to this idea, but the Trump era may not spell the end of federalization of workers’ compensation.

In the 2010s “sharing economy,” companies such as Uber and Lyft emerged. The business model of these companies is premised on workers being independent contractors. However, this has created litigation and uncertainty for these companies. In 2015, the Democratic-aligned Brookings Institute hosted a discussion about the “reforming” labor laws for companies like Uber. Though workers’ compensation laws are traditionally state-based laws, there is no constitutional prohibition on designing workers’ compensation systems at a federal level. Unfortunately, it seems as some Democrats could find common ground with Donald Trump and House Speaker Ryan to amend ERISA and the Fair Labor Standards Act to exempt Uber drivers and other sharing economy workers from laws such as workers’ compensation.

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in Legislation, OSHA, United States Supreme Court, Workers' Comp Basics, Workers' Compensation, Workers' Compensation Reform and tagged , , , , , .

Top 10 OSHA Citations of 2016: A Starting Point for Workplace Safety

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Today’s blog post comes from the U.S. Labor Department’s blog at blog.dol.gov and was written by the director of enforcement programs at the Occupational Safety and Health Administration.

The article below is a good big-picture reminder of workplace hazards that are documented “safety and health violations” through OSHA. There are some important quotes in the blog post, but instead of choosing a couple, you are encouraged to read and think about the entire relatively short article. A special focus should be to consider the top 10 citations list and see if you are exposed to any of these hazards at your job. Or if you’re in a position to influence others within the workplace, I would encourage you to make sure your co-workers know about whatever safety efforts you have in place to avoid and prevent at-work injuries so you don’t have your business’s citation on the list in the future.

If you have concerns about workplace safety at your job, OSHA’s website has a lot of informative resources. If you or a loved one have been hurt on the job, please contact an experienced workers’ compensation lawyer for advice and help.

a worker climbs a piece of scaffolding wearing proper fall protection
a worker climbs a piece of scaffolding wearing proper fall protection

Every October, the Department of Labor’s Occupational Safety and Health Administration releases a preliminary list of the 10 most frequently cited safety and health violations for the fiscal year, compiled from nearly 32,000 inspections of workplaces by federal OSHA staff.

One remarkable thing about the list is that it rarely changes. Year after year, our inspectors see thousands of the same on-the-job hazards, any one of which could result in a fatality or severe injury.

More than 4,500 workers are killed on the job every year, and approximately 3 million are injured, despite the fact that by law, employers are responsible for providing safe and healthful workplaces for their workers. If all employers simply corrected the top 10 hazards, we are confident the number of deaths, amputations and hospitalizations would drastically decline.

Consider this list a starting point for workplace safety:

  1. Fall protection
  2. Hazard communication
  3. Scaffolds
  4. Respiratory protection
  5. Lockout/tagout
  6. Powered industrial trucks
  7. Ladders
  8. Machine guarding
  9. Electrical wiring
  10. Electrical, general requirements

It’s no coincidence that falls are among the leading causes of worker deaths, particularly in construction, and our top 10 list features lack of fall protection as well as ladder and scaffold safety issues. We know how to protect workers from falls, and have an ongoing campaign to inform employers and workers about…

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The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in OSHA, Workers' Compensation, Workplace Injury, Workplace Safety and tagged , , , , , .

How to File a Safety and Health Complaint

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Today’s post was shared by the U.S. Department of Labor and comes from www.osha.gov

 

How to file a complaintIf you suspect an OSHA violation has happened at work, it’s important to report it by following the steps listed at the website below. If you have questions about reporting a violation, please contact us, and we can help point you in the right direction. In addition, many of OSHA’s inspections occur because of injuries, so if you or a loved one is injured at work, please contact an experienced workers’ compensation lawyer who can make sure the appropriate OSHA reports, as applicable, are considered in your case.

The Occupational Safety and Health Act of 1970 gives employees and their representatives the right to file a complaint and request an OSHA inspection of their workplace if they believe there is a serious hazard or their employer is not following OSHA standards. Workers do not have to know whether a specific OSHA standard has been violated in order to file a complaint.

Complaints from workers or their representatives are taken seriously by OSHA. OSHA will keep your information confidential.

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The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in OSHA, Workplace Claims, Workplace Injury, Workplace Safety and tagged , , , .

What Does this Improper Medical Treatment Sanction from OSHA Mean?

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BoheadFor the first time ever, the Occupational Safety and Health Administration recently sanctioned a Pilgrim’s Pride chicken processing plant for providing improper medical treatment for employees suffering from overuse injuries. While the hazards of meatpacking work to employees is common knowledge and the packing industry is frequently sanctioned for unsafe work practices, the sanction against Pilgrim’s Pride for failing to provide medical care to their workers in Florida indicates OSHA is opening a new front in the battle for a safe workplace.

While OSHA’s sanctioning Pilgrim’s Pride for providing inadequate medical care to their injured workers is novel, their action is consistent with law that states access to prompt and appropriate medical care is crucial to pursuing a workers’ compensation claim. OSHA sanctioned Pilgrim’s Pride for failure to make timely and proper referrals to specialists for orthopedic injuries when employees sought treatment at company first-aid or nursing stations. According to OSHA, delays in treatment can lead to permanent injuries.

The fact that OSHA deems inadequate medical care to be a violation of its regulations could also mean that employees have a statutorily protected right to oppose inadequate medical care. In Nebraska, this would mean that employees could possibly sue their employers under the Nebraska Fair Employment Practices Act. Celeste Monforton, a professor of public health at George Washington University, noted in her post that employers use company health clinics not only to delay treatment but to discourage employees from seeking medical care. Some employers go so far as to discipline employees who do not get permission from their employer to seek outside medical treatment. A recent case in an Illinois federal court stated such policies were illegal.

While Nebraska does not have any case law similar to Illinois about such policies, there is a strong argument to make that such policies would be illegal under Nebraska law and under the law of any state that prohibits retaliation against employees for filing workers’ compensation claims. Policies that require notification and permission to seek medical treatment from employers could also run afoul of Nebraska’s laws allowing employees to choose their own doctors. One Nebraska court has hinted that the right to pick a doctor is a legally protected activity.

Monforton also pointed out that Pilgrim’s Pride could be committing medical malpractice by failing to provide proper care and having nurses treat injured employees without proper medical supervision.

However, packinghouses have some reason to believe that they are immune from medical malpractice suits filed by their employees against their employee health nurses. The legal shorthand for this is called the exclusive remedy. In practice, this means that an employer who provides medical treatment in a negligent manner to an employee who is treating for a work injury can only be sued in workers’ compensation court.

Of course, there are some ways around the exclusive remedy for medical care. The first exception would be that if employee health was outsourced. This would allow an employee to sue that provider directly and could also allow for a civil conspiracy or civil RICO claim.

There may also be other exceptions as well. For example, Nebraska has a Meatpacking Industry Workers Bill of Rights that states that workers employed at covered meatpacking houses have a right to a safe workplace and the right to seek benefits, including workers’ compensation. If an employer does not provide adequate medical care or provides negligent medical care, that could certainly violate the public policy behind the Meatpacking Industry Workers Bill of Rights and warrant a tort case against the packinghouses under the public policy of the state of Nebraska.

8 Steps to Keep Workers Safe in the Heat

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Today’s post was shared by US Labor Department and comes from blog.dol.gov

This is a follow up to the blog post earlier this week about resources regarding the heat and staying safe when working outside. With the forecast in our corner of the Great Plains set for the 90s and maybe even triple digits either today or over the weekend, keeping safe while working in the heat should be a concern for all workers and employers. Because Mother Nature doesn’t pay attention to the calendar start of summer, the time to prepare for the heat is literally today.

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 that does not have the air conditioner running, for example. In addition, every time you or your loved ones are outside, please take the heat index into account, especially if exercising, doing strenuous work, or staying outside for long periods of time.

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 hail and wind 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.

Keep workers safe in hot weather with water, rest and shade.
Keep workers safe in hot weather with water, rest and shade.

Forecasters are calling for above-average temperatures across much of the country this summer. Are you prepared to beat the heat?

Every year, thousands of workers become ill from working in the heat, and some even die. Construction workers make up about one-third of heat-related worker deaths, but outdoor workers in every industry – particularly agriculture, landscaping, transportation, and oil and gas operations − are at risk when temperatures go up.

Heat-related illnesses and deaths can be prevented. Employers and supervisors can save the lives of workers in hot environments by following these eight simple steps:

  1. Institute a heat acclimatization plan and medical monitoring program. Closely supervise new employees for the first 14 days or until they are fully acclimatized. Most heat-related worker deaths occur in the first 3 days on the job and more than a third occur on the very first day. New and temporary workers are disproportionately affected. If someone has not worked in hot weather for at least a week, their body needs time to adjust.
  2. Encourage workers to drink about 1 cup of water every 15-20 minutes. During prolonged sweating lasting several hours, they should drink sports beverages containing balanced electrolytes.
  3. Provide shaded or air-conditioned rest areas for cooling down, and empower workers to use them.
  4. Provide workers with protective equipment and clothing (such as water-cooled…

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The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in OSHA, Safety, Workers' Compensation, Workplace Safety and tagged , , , , .

Holdrege, Nebraska, BD Plant Cited by OSHA Again

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Becton, Dickinson and was recently fined by OSHA for workplace hazards leading to partial amputations of workers’ fingers.

“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.”

This paragraph from a recent news release gives an overview of OSHA’s role. In Nebraska, that role comes into focus when investigators look for safety violations, often after a workplace incident that causes injury, as was the case at Becton, Dickinson and Co. in Holdrege in 2015.

Earlier this month, the news release at the link describes how BD was cited for machine hazards in both April and September of 2015. However, in October, in two separate incidents, two different workers “suffered partial amputations of their index fingers” at the Holdrege manufacturing plant.

“The agency has proposed penalties of $112,700,” after finding one repeat and 12 serious safety violations when the amputations were investigated. Best wishes are being sent to the two workers whose lives were altered after their on-the-job injuries.

In this case, it is obvious that the workers’ injuries were related to these specific workplace incidents, because their amputations resulted in an OSHA investigation of the business. But sometimes there are questions when it comes to workers’ compensation in Nebraska. If a business or its insurance company questions or denies a workers’ compensation claim, then it’s time to get help from an experienced workers’ compensation lawyer. Our attorneys are licensed in both Nebraska and Iowa and have decades of experience helping injured workers in situations like the one above, so please contact us if you or a loved one have been hurt on the job.    

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in OSHA, Penalties, Safety violations, workers' law and tagged , , .

OSHA Investigates October Incident; Also Focuses Efforts on ‘High-Hazard Manufacturing Industries’

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The U.S. Labor Department’s Occupational Safety and Health Administration recently highlighted two news releases that are related to or will affect workplace safety, workers’ injuries, and workers’ compensation in both Iowa and Nebraska. These two states are in OSHA’s Region 7, along with Kansas and Missouri.

OSHA’s news release on Jan. 14 focused on an incident where a Nebraska worker fell more than 20 feet and died in October of last year. The worker had been employed for Custom Contracting Inc., of Lincoln, for just two weeks, according to the news release from OSHA.

There was no fall protection provided to the workers at their construction site, and “the agency also found the company failed to train workers to:

  • “Recognize fall hazards.
  • “Render first aid.
  • “Operate powered industrial vehicles.

“In addition, guard rails were not installed on open sides and ends of platforms to prevent falls, and lift trucks were found to be modified without manufacturer’s approval,” according to the website.

OSHA proposed penalties of $36,000.

“Fatal incidents like these are entirely preventable. They have tragic consequences for the victims, their families, and their communities,” said Jeff Funke, OSHA’s area director in Omaha, as quoted in the news release. “Construction industry employers must protect workers from falls, which continue to be the leading cause of worker’s death in the construction industry.”

In the second news release from OSHA that I’d like to discuss, a regional emphasis has been announced this is focusing on “high-hazard manufacturing industries” in Nebraska, Kansas and Missouri.

“The increased likelihood that workers in high-hazard manufacturing industries – such as food, furniture, fabricated metal, nonmetallic mineral, machinery and computer products – will be injured on the job is leading federal safety and health inspectors in three Midwestern states to increase its focus on industry outreach and inspections to reduce injury and illness rates,” according to the news release from OSHA.

This “region-wide emphasis program” is expected to last three months and includes “outreach and education to assist employers” to decrease hazards “and increase the probability of inspections at establishments in high-hazard industries with more than 10 employees and those that have not had a comprehensive inspection since 2011.”

If you or a loved one are involved in an incident at work that results in an injury or death, please contact an experienced workers’ compensation lawyer. This person should also be able to help report your concerns to OSHA as applicable.

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in OSHA, Workers' Compensation, Workplace Safety and tagged , , , , , .