The Injury Board Commentary - Workplace Injuries

OSHA cites Manhattan contractor after worker fall at Brooklyn worksite

Paul Napoli — Fri, 10 Feb 2012 10:04:32 GMT

A Manhattan-based masonry contractor faces citations and fines totaling $74,500 after an investigation into a construction worker’s 80-foot fall from a scaffold.

Inspectors from the Manhattan Area Office of the U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) visited the worksite at 2738 86th St. in Brooklyn after a worker who was working on a 118-foot high scaffold fell 80 feet to a lower level.

“This employee is fortunate to have escaped death, but what is unfortunate is that this fall occurred in the first place,” said Kay Gee, OSHA's area director for Brooklyn, Manhattan and Queens in a release. “It is effective scaffold maintenance, work practices and fall protection – not luck – that are essential to protecting workers against life-threatening falls.”

The agency cited Navillus Contracting Tile Inc. for six serious violations, serious meaning there is substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known. OSHA proposed $36,000 in fines for these serious violations:

The scaffold platform was not fully planked and lacked guardrails.
An aluminum access platform was not secured against displacement.
Another worker was not tied off to a safe anchorage point.
Employees accessed work areas by climbing up and down the scaffold frames.

OSHA has cited Navillus for lack of guardrails on scaffolding in the past and proposed $38,500 in fines for this repeat violation.

In 2009, 54 workers died after falling from scaffolds. OSHA has developed standards for scaffolding use.

"To prevent hazards such as these, employers should implement effective illness and injury prevention programs in which they work continuously with their employees to identify and eliminate hazards," said Robert Kulick, OSHA's regional administrator in New York.

Navillus has 15 days to comply, meet with OSHA's area director or contest the violations.

Originally posted at InjuryBoard by Paul Napoli

News Anchor Bitten in Face by Dog Live on Air

David Mittleman — Thu, 09 Feb 2012 11:56:02 GMT

During what was supposed to be a heart warming segment on a local television newscast, a reporter was biten in the face by a dog rescued from an icy lake the day before by firefighters. The dog, an Argentine Mastiff, was sitting on the set of "Kyle's Kritters" on NBC's KUSA Denver with the host, Kyle Dyer, when she leaned her face down to kiss the pooch and was bitten live on air.

Naturally, the ordeal went viral on the Internet but the TV station has attempted to yank the segment before viewers could see it again. Dyer was apparently sent to the emergency room immediately after the attack and underwent emergency reconstructive surgery. The 3-year-old dog was taken to a Denver animal shelter and is under quarantine.

Michael Robinson, the dog's owner, was cited under Denver's "leash-law" for not having the dog under control at all times, for allowing a dog to bite and for not having the dog properly vaccinated. However, animal experts counter that Kyle was to blame for putting her face too close to an unfamiliar dog that felt threatened in a new environment. Robinson is due in court on April 4 but the dog is expected to be released after 10 days to his owner. The TV station is reviewing its policies in regards to animals in the studio.

Originally posted at InjuryBoard by David Mittleman

No Virginia Workers Compenstion Benefits for Virginia Laborer's Out of State Injury

Doug Landau — Wed, 08 Feb 2012 05:39:00 GMT

Just as yesterday's post discussed where to bring a personal injury action for a Virginia resident, this post will look at the same question from the point of view of an on the job accident claim. At the Herndon law firm ABRAMS LANDAU, Ltd., we have filed workers comp claims in several jurisdictions for the same accident. Especially in the Virginia, Maryland and DC Metro area, many employees frequently travel across state lines to perform their work. While the law allows our workplace injury law firm to file workers compensation claims in Virginia, Maryland and DC for the same accident, the disabled worker is not supposed to "double dip" and collect benefits under more than one state's comp Award. However there are jurisdictional requirements for every comp case that must be satisfied in order to stay in a particular state's comp system, so the choice of forum must make sense.

The Virginia Court of Appeals ruled last week that a laborer hired in Virginia to perform a job in Delaware cannot collect workers’ comp in Virginia for a job-related injury. The Court of Appeals upheld the Virginia Workers Compensation Commission’s denial of benefits. The facts are interesting. While doing drywall work in Delaware, claimant fell off a ladder and was injured. The employer, claimant and other workers all were present in Delaware at the time of the accident. There was no evidence in the case that any contract between employer and claimant involved work in Virginia. The only evidence is that the only contract in existence was for work in Delaware alone. Under Virginia law, coverage applies to out-of-state injuries only if the place of contract and the employer’s place of business are both within the state – and not even then if the contract is for services exclusively outside the state. Several cases have addressed the question of which party bears the burden of proof as to whether Virginia has jurisdiction. The Virginia Workers Compensation Commission has ruled repeatedly that it is part of the claimant’s burden to prove jurisdiction under the Act.

Finally, based upon Massie v. Firmstone, 134 Va. 450 (1922) (which stands for the proposition that a parties' case can rise no higher than his own testimony), the claimant testified the existing contract was for work in Delaware alone, and the Virginia Court of Appeals stated that he "cannot be heard to ask that his case be made stronger than he makes it."

Originally posted at InjuryBoard by Doug Landau

BP Seeks to Block Expert Testimony in Deepwater Horizon Trial

Scott Kappes — Tue, 31 Jan 2012 13:27:27 GMT

According to an AP report, BP and other companies involved have filed numerous motions to block the testimony of two expert witnesses in the trial over Deepwater Horizon explosion of April 20, 2010. The experts in question, Robert Bea, a University of California-Berkeley engineer, and William Gale, a California-based fire and explosion investigator and consultant, are scheduled to testify about an alleged disregard for safety throughout the company that eventually led to the disaster.

The trial, which is set to begin on Feb. 27, will determine the division of responsibility that began with a massive explosion aboard the Deepwater Horizon that cost 11 workers their lives, and over the course of the next few months resulted in the largest environmental disaster in U.S. history, as millions of gallons of oil poured into the Gulf of Mexico from the blown out well. The trial is expected to rely heavily on expert testimony and if these experts are barred from testimony it could have an enormous impact on the trial.

In its filing, BP charged that Bea and Gale's report was "the opposite of good science." BP charged the two experts with focusing solely on BP and analyzing documents and evidence "spoon-fed to them" by plaintiffs lawyers. BP accused the experts of ignoring the "safety culture of the other parties" involved in the spill, in particular Transocean Ltd., the drilling company running operations aboard the Deepwater Horizon.

Attempts to exclude expert testimony are the standard in most trials of this nature; however, Tulane University law professor Ed Sherman told the AP that he would be surprised if the experts were excluded from the trial.

Originally posted at InjuryBoard by Scott Kappes

Virginia Workers Comp claims being Mediated

Doug Landau — Tue, 31 Jan 2012 06:08:00 GMT

When cases cannot be settled through negotiations, and trial is not scheduled, Mediation provides another avenue for resolving claims. Mediation allows the injured worker and their family to speak, face to face, with the lawyer for the employer and insurance company, as well as the representatives who may attend. Clients of the Herndon law firm ABRAMS LANDAU have also welcomed the opportunity to speak to a real workers comp judge, privately and in confidence. DIsabled workers have found that they can get questions answered, avoid cross examination by opposing counsel and get a clear understanding of how the comp judges view cases' value. There is more information at the Virginia Workers Compensation Commission's website.

Several recent cases im which there were no offers to settle before Mediation, elicited significant offers of settlement. One of the advantages of Mediation is that there is no appeal if the case settles. Plus, the Virginia Workers Compensation does not charge any money for Mediation. Private mediators and retired judges often cost thousands of dollars. So for very little cost, the Mediation of a Virginia workplace accident case can yield big results. Plus, we have been able to accomplish things that would not have been possible in court at trial. If you or someone you know or care for has been injured as the result of an on the job car, truck, bicycle or motorcycle crash and there are questions about what laws apply, e-mail or call us at ABRAMS LANDAU, Ltd. (703-796-9555) at once. Even if we cannot help, we probably know an experienced lawyer near you who can.

Originally posted at InjuryBoard by Doug Landau

Why do insurance companies appeal workers comp claims ?

Doug Landau — Mon, 30 Jan 2012 06:53:00 GMT

We have seen several winning decisions appealed by insurance companies and employers despite excellent decisions by the trial judges of the Virginia Workers Compensation Commission. When an appeal is requested after a Virginia workplace injury hearing, it is called a "Review" and the case is decided by three Full Commissioners in Richmond.

Why do insurance defense lawyers appeal the trial decisions of our excellent Manassas, Charlottesville and Fairfax Virginia Workers Compensation judges ?

It delays having to pay the claimant, who is then put under extreme financial duress,
The delay may cause the disabled worker to settle for less than fair value,
They do not have to pay interest or post a bond when seeking a "Review,"
There is no new evidence, no witness testimony and no additional exhibits,
There is no filing fee for a Review of a Virginia Hearing decision,
Insurance defense counsel gets paid hourly to write the briefs and argue the appeal,
The injured worker's attorney may then appeal as well, further delaying the case,
They might get the decision reversed,
They might get the claim remanded (sent back to the trial judge),
They might not have to pay at all (if, for example, the claimant gets sick, injured or dies from some other cause, or gives up, fails to respond in time or loses due to some technicality, etc.).

If you or someone you know or care for has been injured as the result of an on the job car, truck, bicycle or motorcycle crash and there are questions about what laws apply and whether an appeal has merit, e-mail or call us at ABRAMS LANDAU, Ltd. (703-796-9555) at once. Even if we cannot help, we probably know an experienced lawyer near you who can.

Originally posted at InjuryBoard by Doug Landau

Sometimes it's Comp and Sometimes it's not

Doug Landau — Sun, 29 Jan 2012 06:43:00 GMT

When a worker is in a car wreck on the job, they may have a workers comp claim or a motor vehicle negligence case or both ! At the Herndon law firm ABRAMS LANDAU we are often asked by perplexed personal injury lawyers and disabled workers to decipher the Virginia Workers Compensation Act to determine when an on the job accident is "compensable."

An employee can be injured in a Virginia workplace mishap but be "barred" by what is know as "the Workers Compensation bar." This is not a place where you belly up for a stiff one or an association of occupational injury lawyers, but rather the operation of the Comp laws that prevent an injured victim from brining a negligence or "third party liability case." Under Virginia comp law, an employee accidentally injured by a co-worker or a boss cannot sue for damages in court if the incident is covered by the employer's workers compensation insurance policy. Likewise, a disabled worker cannot sue another who is in "the same trade or occupation" as their employer, even if the person who made the unsafe decisions and caused the injuries is employed by another company !

So if a worker is in a car crash with their boss at the wheel in the course and scope of their employment, they cannot sue the driver ! However, if the crash occurs because of the unsafe actions of a driver of another vehicle, the disabled worker may be able to collect both state workers compensation benefits AND sue the negligent "third party" motorist who caused the accident. Reston, Herndon and Leesburg workplace injury lawyer Doug Landau has brought such cases for injured workers and also paid back the employer and their insurance company when "a third party recovery" is made. This results in a "win-win" situation for the employee and the employer. If you or someone you know or care for has been injured as the result of a car, truck, bicycle or motorcycle crash while working and there are questions about what laws apply, e-mail or call us at ABRAMS LANDAU, Ltd. (703-796-9555) at once.

Originally posted at InjuryBoard by Doug Landau

Permanent Total Disability Workers Comp Case Tried in Fairfax Virginia

Doug Landau — Sat, 28 Jan 2012 06:37:00 GMT

Young Virginia workers who are permanently disabled learn the tragic fact that the Virginia Workers Compensation law limits wage loss benefits to no more than 500 weeks in most workplace injury cases. In fatal accident claims, the families of the deceased workers do not even get 10 years of benefits ! However, in very limited cases, where the injured worker has lost BOTH arms, legs, eyes, hands or feet, they can apply for "Permanent Total Disability" ("PTD") benefits. This is one of the rare exceptions to the harsh application of the Workers Comp Act. Doug Landau of the Herndon law firm ABRAMS LANDAU has tried "Permanent Total" cases for disabled worker who "have lost the use of their arms or legs in employment." Workplace injury lawyer Landau has even won a case for a client who had lost the use of one arm and one leg on the same side of his body due to a condition known as "hemiplegia."

Virginia Workers Comp law requires that the injured worker has healed as much as they are likely to do so, reaching what is called "Maximum Medical Improvement" or "MMI" for short. The disabled employee also needs permanency ratings to the affected body parts, per AMA Guidelines, and these numbers cannot be to the back, neck, spine or body as a whole. When permanent total ("PTD") cases are won, weekly wage loss benefits can last for life, though the Herndon trial lawyer notes that most of these cases usually settle since the exposure to the insurance company then becomes much larger.

This week's Hearing involved a construction worker who fell from a scaffold onto his leg and back. Prior Hearings handled by another law firm had resulted in the issues of his right leg, depression and medications being excluded. This presented a difficult case since one leg's orthopedic symptoms had already been excluded by a workers comp judge. However, by looking at the injured worker's problems from a neurological standpoint ("wiring" instead of "anatomic structures"), the ABRAMS LANDAU trial team was able to get support from both authorized treating medical specialists. The testimony, records and exhibits submitted support a prima facie PTD claim, and now counsel and client are waiting for a judge's decision.

Originally posted at InjuryBoard by Doug Landau

In Victory for Children, House Bill Fails to Move Out of Committee

David Mittleman — Fri, 27 Jan 2012 13:07:00 GMT

On Thursday, the Michigan state House Judiciary Committee conducted a hearing on House Bill 5153, which would provide legal immunity to entities providing “child services programs.” In essence, the bill would remove civil liability for almost all instances of personal injury and property damage. Despite heavy support from the Catholic Conference, the bill failed to reach a vote and is likely to die in committee.

The failure of the bill to advance out of committee represents a bright spot in the otherwise bleak landscape of child-protection laws in Michigan and across the country. At a time when deplorable conduct – scandal and cover-up in both religious and secular institutions – dominate headlines, our laws should be changed to make children safer, not their abusers. It is alarming that anyone could support a measure that would make it harder for a sexual abuse survivor to hold the wrongdoer accountable.

Although yesterday’s committee hearing was a small victory, Michigan has a long way to go. Our laws are currently among the worst in the nation for protecting children. The only way that will change is if you contact your state representative and state senator and urge them to hold responsible the abusers and those who knew and did nothing.

Originally posted at InjuryBoard by David Mittleman

Would Better Diets Help With Safer Workers?

Mike Bryant — Sat, 21 Jan 2012 12:38:00 GMT

In the last several years, the obesity epidemic and the increasing incidence of diabetes have gotten significant attention in the news, often with a focus on what we can do to reverse these trends. Now, there is a new study out that shows that a cause of these health issues may be in the nature of our working schedules. The study, which was just published in PLoS Medicine, suggests that shift work is connected to a higher incidence of obesity and diabetes.

According to the study, around 15%-20% of workers in the United States and Europe are shift workers, a number that is expected to increase as more and more industries move to 24-hour operations. For those workers, the study argues that obesity and diabetes should be understood as occupational hazards for which prevention measures are necessary. The risk is particularly high for night shift workers whose metabolism and diet are particularly affected by interruptions in the natural sleep pattern.

Classifying diabetes and obesity as “occupational hazards” forces us to examine what employers and employees can do to minimize the risks. Addressing the diet of shift workers is an obvious target. The easy access to junk food and the irregularity of meals due to scheduling mean that employees often lack the ability to maintain a regular and healthy diet. The study suggests that workplaces might be able to lead the way in changing this situation, by offering better on-sight food, making it easier for employees to maintain a healthy diet, and creating incentives to that they actually do so.

For now the study serves as a warning to both employers and employees. The health hazards of shift work seem to be well-documented now. The challenge going forward is to figure out how to use this knowledge to prevent those hazards from becoming reality. If employers don’t do enough to combat these issues, they may risk becoming a defendant in a lawsuit down the road. And if employees don’t take steps to ensure their own workplace safety, they may well end up “injured.” In the end, the hazard of diabetes or obesity needs to be given as much attention as other, more tangible workplace hazards.

Originally posted at InjuryBoard by Mike Bryant