The Bulldog Blog: Workers Compensation Legal News and Topics

Criminal Sanctions for Workplace Accidents

Sat, 5 Jul 2008 16:34:44 -0400

This is an old story, but interesting nonetheless as we consider the issues of workplace safety and employer negligence. Companies that violate workplace safety rules can face OSHA fines (though these often aren't harsh enough), but what about criminal penalties. Should employers who create unsafe working environments or who blatantly ignore safety rules be sentenced to hard time when their actions lead to death or serious injury.

A judge in Brooklyn, New York, obviously thinks so:

A Brooklyn judge yesterday sentenced the owners of a construction company to the maximum penalty of six months in prison for causing the death of a worker who was not equipped with a safety harness when he fell from a scaffold in Bushwick.

Tariq Alamgir and Nasir Bhatti begged for mercy, saying they felt tremendous remorse over the death of Mohammed Jabbie, who Alamgir said was "like a brother" to him.

The defendants argued that they had a close relationship with Jabbie and had even paid for his wedding and bought him a car. But the argument didn't convince the judge that they didn't deserve jail time in his death.

But those arguments were undercut by the fact that investigators from the federal Occupational Safety and Health Administration had cited them as recently as [four months before their trial] for defective scaffolding at another work site on Avenue H - and that the defendants have ignored the $34,000 fine.

Federal Judge Nina Gershon also noted that the defendants have never filed a tax return, and that Alamgir's driver's license had been suspended 10 times.

"In terms of showing care for their employees, the government wonders why instead of paying for a wedding and an Acura, they didn't pay for a harness and training that would have ensured the safety of their worker," said Assistant U.S. Attorney Sarah Coyne.

Bhatti and Alamgir, who are brothers, operated Metla Construction, whose employees were waterproofing a building at 345 Eldert St. when Jabbie fell 60 feet to his death.

Alamgir lied to OSHA investigators about safety practices.

"I have never lied in my life before this happened," Alamgir said. "And that only happened because I was devastated and scared by the accident."

In addition to the jail time, Alamgir was ordered to pay $100,000 restitution to the victim's family. Bhatti was fined another $100,000. They also are out of the exterior construction business and have sold off their scaffolding.

"It's a recognition on their part that it's really not a business they ought to be in," their lawyer said.

West Virginia Supreme Court Weighs Workers' Comp Cases

Mon, 30 Jun 2008 13:04:02 -0400

The Supreme Court in West Virginia is considering two cases that could have longstanding impact on how workers' compensation claims in the state are handled going forward.

In two cases before the Justices, insurance commissioner Jane Cline supports employers as a friend of the court.

Employers in those cases seek to declare files inactive after six months without medical service, while employees argue for a five year wait.

"As West Virginia enters the private market era, the Office of Insurance Commissioner believes that insurance companies should be permitted to function with routine operating procedures to which they are accustomed nationwide," Rebecca Roush wrote for Cline.

University of California turns to software to decrease workers' compensation claims

Thu, 26 Jun 2008 09:11:56 -0400

Yahoo reports that The University of California system has hired Remedy Interactive Inc. to help reduce the number of workplace injuries, workers' compensation claims and lost worker days among its 170,000 employees.

Remedy Interactive provides tracking and data collection software designed to decrease employee injuries and, thus, workers' compensation claims. The software already is in place at two system campuses -- U.C. San Diego and U.C. Irvine.

"University of California is committed to making wellness a priority and protecting its most important asset -- its employees," said Joe S. Adams II, the system's Director of Environment, Health & Safety.

Tags: Workplace safety, injury prevention, California, workers' compensation, workers' compensation benefits

Lower Workers' Comp Rates Creates Favorable Business Climate in Arkansas

Wed, 25 Jun 2008 13:03:11 -0400

Workers' compensation rates in Arkansas are on the decline, and the state insurance commissioner is crediting a reform package passed in 1993 as well as an increased emphasis on workplace safety.

This year alone, workers' comp costs are down 12.8 percent. Since 1995, rates have dropped by 52 percent. This has proven to have an upside both for employers, who are saving money, and for Arkansas in its efforts to recruit businesses to the state.

"Because of these investments in a stable workers' compensation system, which is recognized as a prime economic development tool, rates are down and employers are finding Arkansas a great place for business," Insurance Commissioner Julie Bowman said.

Tags: workers' compensation Arkansas, workers' compensation reform, workplace safety, injured workers

Workers' Comp System in New Jersey Needs Overhaul, Newspaper Says

Tue, 24 Jun 2008 12:41:25 -0400

After a newspaper investigation into the workings of the New Jersey workers' compensation, the Star-Ledger is calling for reform of a system it calls "Dickensian" and in desperate need of an overhaul. That harsh criticism comes after the newspaper completed an eight-month investigation into how injured workers' comp claims are processed and discovered that the system is bogged down in bureaucracy that keeps injured workers from getting the benefits they need and deserve. Meantime, companies that violate the rules face few penalties for doing so.

Meanwhile, companies that violate the legal mandate to carry workers' comp insurance to protect their employees frequently face little danger of getting caught. Even if they do, they routinely shrug off the minuscule penalties for violations as a cost of doing business.

In New Jersey, the workers' compensation backlog particularly effected workers with complex workers' comp claims - in all likelihood those who are the most severely injured and who need their benefits most.

So, what's the prescription for fixing workers' compensation in New Jersey to ensure that all injured workers receive the benefits that they deserve and in a timely manner? At least one New Jersey lawmaker, Democratic Assemblyman Neil Cohen is calling for a comprehensive performance review of the workers' comp system, the first since the early 1970s when the State Commission of Investigation conducted a probe.

Based on the newspaper's investigation, editorial writers at the Star-Ledger recommend some other concrete changes:

Case scheduling must become more efficient so that serious delays are no longer routine for many but the simplest matters. There is no excuse for allowing hearings in a typical compensation case to be rescheduled an average of more than a dozen times. Injured workers and witnesses and employers have better things to do than return to court over and over.
The procedure for selecting compensation judges must be strengthened to minimize the role of politics and maximize legal expertise. Comp judge candidates should be vetted by the relevant bar association, just as has long been done to ensure qualified candidates for Superior Court judgeships.
Legislation also is needed to allow the state Labor Department, which oversees the workers' comp system, to immediately suspend the operating licenses of businesses that flout workers' comp or other labor laws. The threat of suspension will help deter the large number of firms that now ignore their responsibility to protect their employees, estimated to include as many as 40 to 60 percent of firms in construction, landscaping and some other industries.
The Labor Department must be given the computer resources to manage workers' comp like the serious legal program it is instead of treating it like a bureaucratic and technical backwater. The department can't track basic data, such as the results in thousands of recent cases or how often employers or insurers are penalized for violating the law.
Comp judges must have better tools to discipline insurance companies or others who deliberately drag out cases or payments. Judges now can do little more than add interest payments to an insurer's bill. Fines and other sanctions are needed to bring recalcitrant payers into line.

The $1.8 billion workers' compensation system drew attention last year, when lawmakers overhauling the state's retirement system for public employees canceled a special provision that gave workers' comp judges generous pensions after only 10 years on the job

Companies Often Not Held Accountable in Las Vegas Construction Worker Deaths

Tue, 17 Jun 2008 10:16:51 -0400

Part 2 of the Las Vegas Sun series on construction worker deaths along the Las Vegas Strip shows that the state's Occupational Health and Safety Adminstration often goes easy on employers who violate safety regulations and fail to maintain safe working conditions.

The pattern seems to be to blame the worker, even when there are clear safety violations on the part of the company. Fines, if they're issued, are often paltry - certainly not enough to hit the pocketbooks of the multimillion and billion dollar companies that are building casinos in Las Vegas:

A Sun examination of OSHA accident documents related to nine recent construction fatalities on the Strip shows that investigators found serious safety violations in the cases, but the agency often did not follow up with aggressive enforcement. Instead, after meeting privately with contractors, the agency withdrew or reduced fines.

Government and private safety experts outside of Nevada as well as the families of the accident victims told the Sun they are surprised and disturbed by OSHA's conduct after the fatalities.

Frank Strasheim, a former regional administrator in the federal OSHA office in San Francisco, and other experts say they have seen many citations removed by federal and state OSHA offices elsewhere - but rarely in cases involving deaths.

"My rule of thumb has always been that you hold the line on a fatality," Strasheim said. "A fatality is the worst possible thing."

If employers offer statements that contradict elements of the initial investigation, OSHA administrators should reopen the investigation rather than quickly overturn citations, he said. Strasheim and others said that a pattern withdrawing citations could indicate that Nevada OSHA is either doing a bad job in its initial investigations, or is overusing a provision in OSHA laws that allows the agency to reverse itself if it thinks the findings won't hold up under review.

Here is how Nevada OSHA handled the eight cases in addition to Billingsley:

o Harvey Englander, 65, a veteran operating engineer and employee of construction giant Perini Building Company Inc., who died Aug. 9, 2007, when struck by the counterweight of a manlift, or elevator, at CityCenter.

OSHA found that Perini violated six safety laws.

The findings were withdrawn.

o Angel Hernandez and Bobby Lee Tohannie, carpenters killed Feb. 6, 2007, when crushed inside an elevator shaft at CityCenter by 7,300-pound structures that support poured concrete.

OSHA found the site's general contractor, Perini, did not make sure the forms were properly secured and did not train employees in the proper removal of the forms. The agency fined Perini $14,000.

At an informal conference between OSHA and Perini, an OSHA administrator withdrew one violation and left the other intact, for a total fine of $7,000.

o Isidro "Willie" Pelayo, the worker killed when a buggy jerked and threw him down an elevator shaft at Trump on Dec. 5, 2006.

OSHA found that Perini had failed to train employees in the use of buggies and had not maintained them properly or checked to see whether they were safe. Three violations carried $18,900 in total fines. At the informal conference, OSHA agreed to withdraw one fine and downgrade another, reducing fines to $8,300.

o Michael Hanson, a laborer working for Taylor International Corp. at Palazzo, who was killed when a piece of a concrete slab raised by a forklift struck him in the head on Nov. 26, 2007. The investigation found that using the forklift to remove concrete was common at the Palazzo even though that use is forbidden by the forklift manufacturer and by OSHA. The agency found one violation and fined Taylor $6,300.

At the informal conference, OSHA reduced the fine to $3,780.

o Michael Taylor, 58, a Perini safety engineer at Cosmopolitan. He died Jan. 14, 2008 after apparently falling five floors when a corner iron post that helped hold up a guardrail system collapsed.

In the investigation, OSHA found that Reliable Steel, a subcontractor, had not replaced key support pieces and hadn't properly welded the posts. It was inevitable the post would malfunction in time, the investigator wrote. OSHA also found that Reliable Steel was underreporting injuries in its required injury logs. The agency issued four citations for fines totaling $2,850.

Reliable Steel has contested the citations, and OSHA will hold the informal conference in April.
o Norvin Tsosie, 36, who fell from a wall at Fontainebleau on Aug. 2, 2007.

OSHA fined his employer, Nevada Prefab Engineers, $17,925 for 10 violations for allowing workers to use makeshift materials that hadn't been tested, and for not making sure that safety harnesses were properly attached.

The subcontractor did not contest the findings.

o David Rabun Jr., 30, an ironworker at Cosmopolitan. He fell four floors on Nov. 27, 2007, while replacing bolts in a steel beam inside an elevator shaft.

OSHA found that Rabun's employer, Schuff Steel, had violated six safety laws, including not making sure the steel he was working on was secure, and not putting a net or decking underneath him. Schuff Steel was asked to pay $12,150.

OSHA held an informal conference with Schuff on Feb. 27. That came after the Sun repeatedly asked the agency about its handling of earlier cases and after federal OSHA officials, responding to newspaper inquiries, expressed dismay to the Sun regarding the state agency's actions.

For the first time involving a Strip fatality during the current building boom, OSHA stood by the original findings and did not make a deal with the employer. The case will most likely be appealed to an OSHA review panel.

Congress Considering Workplace Safety Bill

Sun, 15 Jun 2008 08:59:05 -0400

New legislation is in the pipeline to protect workers from combustible dust, which can lead to workplace injury or workplace deaths.

The House of Representatives voted 247-165 to approve the Worker Protection Against Combustible Dust Explosion and Fires Act (H.R. 5522), which requires OSHA to issue an interim final combustible dust standard within 90 days and a final standard within 18 months.

This legislation wouldn't be necessary if OSHA were doing its job. Combustible dust is a serious workplace hazard; according to the Chemical Safety and Hazard Investigation Board (CSB), 281 combustible dust incidents between 1980 and 2005 killed 119 workers and injured 718. In fact, the CSB recommended in 2006 that OSHA issue a new national regulatory standard designed to prevent combustible dust fires and explosions in general industry.

OSHA failed to act, though, even as more combustible dust incidents occurred. Since CSB made its recommendation, there have been 67 combustible dust explosions that injured 75 workers and killed 14, including the February sugar dust explosion at the Imperial Sugar Company refinery in Port Wentworth, Georgia, which killed nine workers and injured many more. Georgia Representative John Barrow, along with House Education and Labor Committee Chair George Miller, introduced the legislation.

Companies Can Find Ways to Let Injured Workers Return to Work

Fri, 13 Jun 2008 13:01:46 -0400

Many injured workers would like to return their work, but few employers have return-to-work programs that allow them to return to work in a different capacity.

CompEraser has some advice for companies that want to implement return-to-work programs. The first step is to conduct a review of the entire operation to identify temporary light-duty jobs in every department.

By carefully evaluating those areas of your operation that have historically generated the most worker injury claims you not only are better understanding how to prevent future losses but also identifying many temporary duty tasks. You should carefully analyze your losses over a given timeframe from the standpoint.

TAGS: workers' compensation, temporary duty jobs, light-duty jobs, return-to-work programs

Work Made Workers at Pig Processing Plant Sick

Mon, 9 Jun 2008 08:36:18 -0400

A worker at a pig processing plant in Minnesota has filed suit against her employer, claiming that the job caused her and a dozen coworkers to develop a neurological disorder.

The suit was filed by Susan Kruse against Quality Pork Processors plant in Austin, Minn. Kruse has been denied workers' compensation benefits for her illness.

Kruse and the others used a compressed air system to remove brains from pigs' heads. Investigators are trying to determine if the brain tissue, sprayed into the air, made them sick.

Kruse's lawyer says she has been off work for months, and the company has denied her workers' comp, which covers some expense short-term disability doesn't.

Quality Pork President Kelly Waeding says the denial was automatic because the insurance company wanted more information on all of the affected workers, and is still collecting it. She says five to eight other workers have been approved so far.

South Dakota Worker Loses Battle for Benefits

Sun, 8 Jun 2008 09:01:03 -0400

A South Dakota worker who suffered chronic pain as the result of a work-related injury has lost his appeal for workers' compensation benefits.

This story is not unique, unfortunately. But it illustrates the challenges that workers must go through to prove that their injuries and subsequent pain are work related. This plaintiff has been battling for benefits for five years, only to be denied them by the state Supreme Court.

A state worker who said chronic pain and loss of balance was linked to a 2003 work-related back injury lost his appeal this week to the state Supreme Court.

The court unanimously concluded that an administrative law judge who heard James Gerlach's case was within reasonable bounds in giving more weight to the state's medical expert than to other doctors who had been consulted by the worker.

Gerlach hurt his back moving chairs in 2003. The court record says it was undisputed that the injury was work related. The worker later said he aggravated the injury in 2004 while driving a tractor for the state. He said the bouncing and bumping caused chronic pain in his lower back and legs and affected his coordination and balance.

Tags: workers' compensation benefits, injured worker, workplace injury, denied workers' compensation, workers' compensation attorney