In the wake of their acts of bravery, labor advocates began to ask important questions about these nuclear workers’ access to health care and workers’ compensation benefits should they suffer any ill effects from their important work.  After all, a startling “88 percent” of Japanese nuclear workers are contract workers with uncertain access to benefits, according to the NYTimes.com.

The New York Times noted these workers are “emblematic of Japan’s two-tiered work force, with an elite class of highly paid employees at top companies and a subclass of laborers who work for less pay, have less security and receive fewer benefits.”  The Times reports that the medical care and benefits for these workers tends to dwindle as you work your way down the ladder from contracted worker, to subcontracted, to even sub-subcontracted.  Essentially “nuclear migrants,” these workers attempt to conceal injuries or exposure to radiation so they can retain their employment.

As the United States re-evaluates its own nuclear power industry, the spotlight has shifted to how the U.S. treats those workers who are asked to put themselves in jeopardy in what is essentially a work situation.  Just today, Scientific American reports that the U.S. nuclear safety regulator is investigating how three nuclear workers in Nebraska were exposed to radiation in a workplace setting in early April. Scientific American writes, “The three workers triggered radiation alarms by incorrectly moving a radioactive tube on April 3. They immediately set the tube down and fled the area.  Nebraska Public Power District, which operates the Cooper Nuclear Station, does not believe the workers were exposed to radiation above regulatory limits, the Nuclear Regulatory Commission said in a release.”  There is no word if these workers were subcontractors or full-time employees.

Of course, if the United States suffered a disaster so severe that it forced not only nuclear workers, but emergency workers to enter extreme environments to save lives, the most obvious, and unfortunate parallel is 9/11.  Chris Bragg wrote as late as 2007 that “many cleanup workers who rushed to help the city in its time of need say they have developed serious physical conditions due to that work: 756 cleanup volunteers and many more paid workers have submitted claims. Many claimants say, however, the Workers’ Compensation Board has been slow in helping them get back on their feet.”  Workers employed by the city, such as firefighters and police officers, go through a tailored compensation process.  But contract workers are at the mercy of the city’s Workers’ Compensation Board, and literally hundreds of articles over the years have detailed their struggle.

Labor & Industries experts will continue to watch the drama unfolding in Japan with an eye to how workers in the U.S. would be treated in similar circumstances.  If anything, the situation reveals the need for greater protection of subcontracted workers of all stripes, especially in terms of workers’ compensation, before a disaster happens and workers must rush into the unknown.  If you have been injured and have questions about your employment status as it relates to workers’ compensation, contact an expert Washington Labor & Industries Attorney.

On December 8, 2010 Time.com reported that a “group of women employees is suing Walmart for discrimination, charging the nation’s biggest retailer with underpaying female workers and denying them equal opportunities for promotion.”  Slate.com describes the genesis of the case: “In 2001, Betty Dukes sued Wal-Mart for sex discrimination in a lawsuit filed on behalf of every woman who worked for the company since 1998–roughly 1.5 million women.”  Dukes alleged several grievances against Wal-Mart.  The central claim was lack of equal pay, even for women with greater seniority and better performance reviews.  Also, Dukes claimed the path to promotion was much more difficult and longer than for men and that women were routinely subjected to sexist language.

Beyond the sworn declarations of 120 women who describe their experience of sex-deiscrimination at Wal-Mart, the plaintiffs argue Wal-Mart’s hierarchal structure as directly contributing to the systematic discrimination.  Wal-Mart gives store managers discretion when making promotions and hiring decisions, using such criteria as “teamwork, ethics, integrity, and the ability to get along with others.”  The plaintiffs contend that it was just such subjective criteria decided by mostly male managers that allowed the system to be vulnerable to common sexism and gender stereotypes. This was, after all, the 1990s.  The claim rests on the idea that mostly male managers with little oversight tend to either consciously or unconsciously apply gender stereotypes when it comes to such nebulous concepts as the “ability to get along with others.”  Unfortunately, as many women continue to know today, long-held sexist attitudes about gender roles continue to influence managers in their decision-making process.

It is just this argument that Wal-Mart claims undermines the very status of the class.  As Slate.com notes, “Because Wal-Mart gives managers at the store store level almost complete discretion make personal decisions, there’s nothing that connects the decisions of one Wal-Mart manager to those of another.”  Thus, even if female employees across the country DID suffer sex discrimination, Wal-Mart claims those events were ultimately unconnected.  And while the company acknowledges that such discrimination might have existed, they want the employees to file the claims independently.

Of course, this is where the importance of  the current Supreme Court battle becomes key.  While the decision before the court is narrow (can all these women constitute a class?), the stakes are enormous: can large groups of injured employees band together together to face the legal might and deep pockets of large corporations like Wal-Mart?

When arguments commenced before the Supreme Court on March 29, it soon became clear the Justices had questions in line with Wal-mart’s claims.  The New York Times reports that Justice Anthony M. Kennedy said he found the issue of manager discretion as a foundation for proving systematic abuse “internally inconsistent.”  Justice Antonin Scalia, one of the most conservative and consistently pro-business members of the court argued “One the one hand, you say the problem is that they were utterly subjective, and on the other hand you say there is strong corporate culture that guides all of this.  Well, which is it?”

The chief worry of the court seemed to be the large number of companies that could be liable if this diverse class was certified. However, as many labor rights activists note, class actions were designed in part to hold companies accountable for abuses on a large scale and that these cases should work as a deterrent to prevent future abuses.  So the court must decide who is more important: corporations or American workers?

We will continue to provide updates on this important case and others.  Workers who believe they have experienced workplace discrimination of any kind should contact an expert Washington Labor and Industries Attorney immediately.

It is well known that the suspect in the shooting, Jared Lee Loughner, suffered from various mental health issues and many sources in the Arizona Mental Health community commented that he might have received help had he sought it.  While this can never be known, his mental illness has prompted several discussions about the many cuts proposed to health care budgets as states tighten their belts across the country.

The flip side of this issue of access to health care is the fact that Representative Gabrielle Giffords was injured while on the job and her closely scrutinized recovery could be the result of Federal workers’ compensation.

According to Rebecca Shafer, President of Amaxx Risks Solutions, “As Congresswoman Giffords and the members of her staff are federal employees, and as they were at an official function for Congresswoman Giffords, she and her staff would be covered for workers compensation by the U.S. Department of Labors Office of Workers Compensation Programs, which administers the Division of Federal Employees Compensation.”  Shafer notes this kind of workers’ compensation is known as FECA – Federal Employees’ Compensation Act.

The next step in Giffords’ recovery will be a lengthy rehabilitation process. On January 21 she was transferred to the Memorial Hermann Medical Center in Houston, Texas and then moved to the Institute for Rehabilitation and Research.   Many experts have assured the public that she is receiving the absolute best care possible for someone with her severe neurological injuries.

The Federal Workers’ Compensation that covers Giffords and her staff is often singled out as a kind of “gold standard” by which other workers’ compensation programs are measured. Still, even Federal workers’ compensation benefits are under greater scrutiny in the current fiscal climate.

Joe Davidson writes in the Washington Post that Senator Susan M. Collins wants “the Government Accountability Office to study the program that provides income to injured federal workers.” Collins argues elderly workers who have no intention of returning to work continue to collect workers’ compensation benefits at taxpayer’s expense.

As Representative Giffords continues to recover under the best medical care available and with the well wishes of the Nation, it seems important to reflect on how her recovery stands in relation to the thousands of other injured workers who struggle to receive the same benefits guaranteed to them under the law.  As states continue to slash entitlement budgets, workers injured in preventable workplace incidents will need to find workers’ compensation attorneys who are abreast of the rapidly changing landscape of workers’ compensation law.  Injured workers should consult a Washington Worker’s Compensation Lawyer at Emery Reddy.

Under the care of Dr. Orn Eliasson, the worker was diagnosed with a 54% bilateral pulmonary impairment, which Dr. Eliasson determined using the 5th Edition AMA Guide.  Yet a second physician, Dr. Albert Rizzo, also attended to the same patient, and rated a 24% permanency based on the 6th Edition AMA Guide.

During his July 2010 hearing the claimant was no longer working.  His employers maintained that worker safety measures from 1986 should have provided him with adequate protection from asbestos exposure beyond that date—meaning, according to the logic of their argument—that the employee’s disability benefit quotient should have been based on his average weekly wage in 1986 for determining his present disability award.

The worker’s complicated employment history has made it difficult to determine all the factors involved in his asbestos exposure.  He was last employed by Catalytic in 1982.  The worker then moved to Raytheon, where he worked from 1984 until 1997.  After retiring from Raytheon, the claimant took a part-time position with Delaware City Refinery, Raytheon (from 1997 to 1998), and Washington Group (from 2000 to 2001).  The workers also performed services for several other companies for short spells between 2004 and 2007.

In 2008, the worker started to develop acute respiratory symptoms.  It was at this point that Dr. Eliasson initially diagnosed him with asbestos-related lung disease, and designated a 54% bilateral lung impairment rating based on the AMA Guide 5th edition.  Dr. Eliasson testified that there is a 10 to 20 year-latency period for developing asbestosis following exposure, and so in his medical opinion, the worker’s contributory exposure likely occurred between 1982 and 1997.  However, Dr. Albert Rizzo also examined the injured worker, and in a testimony on behalf of the various employers,  he argued that the harmful exposures were “most likely cumulative, making it difficult, if not impossible, to pinpoint when the harm occurred.”   Drawing on the guidelines of the 6th Edition AMA Guide, Dr. Rizzo gave the patient’s bilateral lung impairment a 24% rating.

Ultimately, the Industrial Accident Board deferred to the prevailing doctrine of “the last injurious exposure rule” and upheld Dr. Eliasson’s testimony that the latency period for manifesting asbestos-related disease is 10-20 years.  The Board cited the 1988 case “Lake Forest School District v. DeLong” (WL 77665), arguing that when an injurious exposure is cumulative over the period of successive employment, the final employer is liable for the entire award.  In the case in question, the Board regarded the final year of the claimant’s fulltime employment (which fell between 1996 and 1997) as his last injurious exposure, and disregarded any asbestos exposure from 1997-2007 as outside the latency period.  Under these measures, Raytheon was found liable for the occupational illness.

When it calculated the worker’s award for permanent impairment, the Board declined to base its decision on the 5th Edition AMA Guide, and partially adopted Dr. Rizzo’s rating.  Using the 6th Edition, the Board determined that Dr. Rizzo’s rating corresponded with a Class 3 disability, which falls in the range between 24% to 40% impairment.  Yet the Board found Dr. Rizzo’s rating of 24% “low,” and awarded 30% to each lung.

If you think you may be suffering from asbestos exposure or another work-related injury or illness, please contact a workers’ compensation attorney at Emery Reddy.  We will fight to ensure that you receive the full workers’ compensation benefits to which you are entitled.

The present state of the economy appears to be a significant factor in the decline of work-related deaths, especially as high-risk occupations like construction are experiencing a historic downturn and employing fewer people.

Here in Washington State, 57 workplace injuries resulted in death, the lowest number since 2000.  Of these fatalities 9 were construction-related, less than half the number of construction-accident deaths in 2008.

The Bureau of Labor Statistics published the following data on Fatal Occupational Injuries in 2009:

• 2009 saw an overall 17% decrease in fatal work injuries, although workplace homicides dropped by only 1%.
• Workplace fatalities among salaried and wage-workers declined by 20%, while accidental deaths among self-employed workers dropped only 3%.
• Fatalities in private construction declined by 16%.
• Building cleaning and grounds maintenance occupations were the only sectors that experienced an increase of fatalities.

See the full report published by the United States Department of Labor.

This information is provided by the Emery Reddy Worker’s Compensation and L&I blog.  If you have been injured at work, or if someone close to you has been killed in a a workplace accident, please contact our firm today for a free and confidential consultation with one of our Worker’s Compensation attorneys.

Historically, New Jersey’s maximum workers’ compensation has increased by modest increments on a yearly basis. The decrease slated for 2011 indicates a significant faltering of the state’s economy.  And while there will be a decline in scheduled disability rates, skyrocketing medical costs will continue to go uncapped.  The financial consequences of that disparity remain unclear in a period of declining payrolls and smaller premium collections on workers’ compensation benefits.
2011’s maximum workers’ compensation benefits for temporary disability, permanent partial disability and permanent total disability rates are based upon the States’s Average Weekly Wage (SAWW) for the prior year. Currently, New Jersey allows a maximum benefit of 75 percent of the state’s average weekly wage.

Maximum workers’ compensation benefit rates in New Jersey have been regarded as rather low in relation to other states in the U.S., and many workers’ compensation attorneys and workers’ rights advocates have purchased for a higher adjustment.

The new payment schedules will apply to workers who suffer on the job injuries and deaths in 2011.

In a conference announcing the proposed penalties, Secretary of Labor Hilda L. Solis stated that “Accurate workplace injury and illness records are vital tools for identifying hazards and protecting workers’ health and safety. Workers and employers need this information to recognize patterns of injuries and illnesses, and prevent future hazards.”

OSHA’s investigation of Goodman Manufacturing began in March 2010 after the agency received a series of complaints that Goodman had violated OSHA’s regulations by systematically failing to properly document workplace injuries and occupational illnesses. The investigation determined that from January 2008 to March 2010, the company had inaccurately recorded—or simply declined to document altogether—nearly 75 percent of employee injuries and illnesses on its premises.

Workers and regulators have commented that Goodman is highly knowledgeable of OSHA’s recordkeeping procedures, but nevertheless persisted in the decisions and actions resulting in the alleged violations.  Critical information pertaining to the degree and duration of its workers’ injuries and illnesses have been inaccurately documented, including the duration of their time off the job.  Such figures are vital to properly handling and treating injured workers in a workers’ compensation claim.

As OSHA’s Assistant Secretary of Labor, Dr. David Michaels explains, “OSHA takes these violations extremely seriously. We need accurate data to effectively target inspections and resources, and to measure the impact of OSHA’s actions on workplace safety. Employers and workers need to understand how important accurate data are to workplace safety and health.”

According to OSHA regulations, the definition of a willful violation is one that is committed with gross indifference to or intentional neglect for a worker’s safety and health.
Goodman Manufacturing was given 15 business days after the citations were issued to comply with OSHA’s protocol and request a consultation with the agency’s Houston director.  Goodman can also contest the citations with the independent Occupational Safety and Health Review Commission.

OSHA recently implemented a National Emphasis Program on Recordkeeping to evaluate the accuracy of employer documentation of worker injury and illness.

All workers are urged to immediately report accidents, fatalities or dangerous workplace conditions to OSHA’s toll-free hotline at 800-321-6742. 
 Injured workers should also consult a Washington Workers’ Compensation Lawyer at Emery Reddy.

According to the Globe and Mail, the lawsuit is being filed by Dilshod Marupov, a 22-year-old worker from Uzbekistan who was repairing balconies on a Toronto apartment building when the scaffolding he was using snapped in half, causing him to fall 13 stories to the ground. Both of Marupov’s legs were crushed and his spine was broken, forcing him to stay in the hospital for several months. All other workers who fell from the scaffolding were killed.

Charges filed against Metron Construction of Toronto and Swing N Scaff of Ottawa include failure to ensure that workers were provided with proper devices to protect them from falling, and failure to make certain that the work platform was not overloaded.  “We are suing them because we think they have a duty that they didn’t exercise properly,” said Marupov’s lawyer, William Friedman.

Unfortunately, such workplace accidents are common in Washington as well.  While OSHA reports a declining trend in deaths from workplace accidents, workplace injuries remain at unacceptably high levels.  If you have been seriously injured in a workplace accident, contact a Washington workers’ compensation attorney to help you recover damages including medical costs, lost wages and compensation for pain and suffering.

As Dr. David Michaels (Assistant Secretary of Labor for OSHA) explains, “When workers believe their employers are violating certain laws or government regulations, they have the right to file a complaint and should not fear retaliation. Silenced workers are not safe workers.”  Therefore, as Michaels concludes, “Changes in the whistleblower provisions make good on the promise to stand by those workers who have the courage to come forward when they believe their employer is violating the law and cutting corners on a variety of safety, health and security concerns in the affected industries.”

OSHA’s new regulations cover workers with complaints across a range of industries, including railroad, public transit, commercial motor carrier and consumer product industries; in addition, they also establish more consistency among the agency’s complaint procedures. OSHA’s interim final rules create both procedures and timelines for processing complaints under the whistleblower sections of the Consumer Product Safety Improvement Act of 2008.

OSHA implements the whistleblower requirements of the OSH Act and 18 other statutes that protect workers who report breaches of airline, railroad, environmental, public transportation, securities, commercial motor carrier, pipeline, nuclear power, and health care reform laws. Details on these new statutes will be available to the public at http://www.whistleblowers.gov.

The Occupational Safety and Health Act of 1970 declared that state and private employers are responsible for ensuring safe workplaces for their employees. On behalf of American workers, OSHA assumed the role of overseeing these conditions and ensuring compliance by establishing and enforcing standards throughout the American workplace. In addition, it makes education, training, and assistance available to both employers and workers to support that objective.

If you are in need of a workers’ compensation attorney in Seattle or Washington, please contact an attorney at Emery Reddy today.

A federal district court recently ruled in favor of an employee suing several human resources executives after he was allegedly fired for requesting time off under the Family and Medical Leave Act (FMLA).  The ruling may set a precedent in which individuals can be held personally liable for damages allowed through FMLA, including financial loss from a denial of benefits, compensation for back pay, lost wages and attorney fees.

The suit was brought against Cardone Industries and five of its senior HR executives by Dmitry Narodetsky, a tool designer who worked for the company for nearly twelve years before his termination.  His case includes a three-count complaint for violation of the Family Medical Leave Act, the Consolidated Omnibus Budget Reconciliation Act (COBRA), and the Employee Retirement Income Security Act (ERISA).

Several weeks prior to his termination, Narodetsky was diagnosed with a leg injury requiring surgery.  His wife promptly notified Narodetsky’s managers that her husband would need time off for the upcoming operation, and requested that they provide short-term disability for his medical leave.  Following the conversation, three of the company’s HR executives and another manager conducted a forensic examination of Narodetsky’s work computer, uncovering evidence of a pornographic email he allegedly forwarded to a coworker over a year earlier.  Before scheduling the surgery, Narodetsky was called into a meeting attended by the defendants, shown the email he had allegedly forwarded, and fired.

Narodetsky alleges that his employers conducted the computer search solely to find a pretext for terminating his employment so they could avoid granting him leave. He filed a suit alleging that not only the company, but also the five individual defendants interfered with his rights under FMLA and the Employee Retirement Income Security Act.

Attorneys for the defense argued that none of the individual claims were warranted because Narodetsky’s suit did “little more than simply list each such defendant’s title,” and because it failed to include “any facts showing how each defendant was involved in plaintiff’s alleged request for medical leave or the decision to terminate.”

Yet U.S. District Judge Thomas N. O’Neill of the Eastern District of Pennsylvania refused to dismiss Narodetsky’s claim, noting that it went well beyond the narrow characterization of the defense by alleging that each of the individual defendants “participated in the forensic search of [the plaintiff’s] computer with the goal of finding a reason to justify his termination because he had requested FMLA leave.”  O’Neill also maintained that the executives and manager were properly named as defendants since each possessed the authority to fire and played a role in the decision to terminate Narodetsky. “The allegations support an inference that each of the defendants exercised control over the plaintiff in the decision to terminate him,” O’Neill wrote.  The judge also stated that “Given the timing of his termination–falling right on the heels of his request for medical leave–I find that it is reasonable to infer that the defendants terminated his employment for the purpose of interfering with his plan benefits.”

Both the individual defendants and Cardone Industries, Inc. have declined to comment publicly on the ruling.  The case is now proceeding to adjudication in a new trial. See O’Neill’s full opinion in Narodetsky v. Cardone Industries Inc. (pdf)

Citation: Narodetsky v. Cardone Industries et al., Case #09-4734; February 24, 2010, U.S. District Court, Eastern District of Pennsylvania.