Thursday, May 29, 2008

The Working Wounded: A New York Times Editorial

From The New York Times:

Mr. Elias wanted his workers to clean out a 25,000-gallon tank that contained cyanide waste. He refused to test the air or the waste inside the tank. He ignored the pleas of his workers for safety equipment. When the workers complained of sore throats and difficulty breathing, Mr. Elias told them to finish the job or find work somewhere else.

Mr. Dominguez, a 20-year-old high school graduate, wanted to keep his job. Wearing just jeans and a T-shirt, he used a ladder to descend into the tank. Two hours later, covered in sludge and barely breathing, he was removed from the tank, a victim of cyanide poisoning at the hands of a ruthless employer who would blame his “stupid and lazy” employees for the incident. Mr. Dominguez suffered severe and permanent brain damage. He now has the rigid body movement and stammering speech found in patients with Parkinson’s disease.


Mr. Elias did not commit a crime under the Occupational Safety and Health Act, which is the primary federal worker-safety law in the United States. Why not? Because Mr. Dominguez did not die.


Employers rarely face criminal prosecution under the worker-safety laws. In the 38 years since Congress enacted the Occupational Safety and Health Act, only 68 criminal cases have been prosecuted, or less than two per year, with defendants serving a total of just 42 months in jail. During that same time, approximately 341,000 people have died at work, according to data compiled from the National Safety Council and the Bureau of Labor Statistics by the A.F.L.-C.I.O.

It is long past time for Congress to change the law. First, Congress should amend the Occupational Safety and Health Act to make it a crime for an employer to commit violations that cause serious injury to workers or that knowingly place workers at risk of death or serious injury. Whether good fortune intervenes and prevents harm to workers should not determine whether an employer commits a crime.


Tuesday, May 27, 2008

New case law on what medical tests can be forced on the employee by the insurance company

Peters Township School District vs. W.C.A.B. (Anthony), is a new Pennsylvania Commonwealth Court case (decided on April 2, 2008) that addresses the issue of what diagnostic tests can the workers' compensation insurance company force an injured employee to undergo.

In this case, the Claimant suffered a 2000 right shoulder injury. In 2006, the employer/insurance company requested that the Claimant submit to a diagnostic test consisting of an EEG which was prescribed by the defense medical examiner (DME) petition. The Claimant refused to attend, so the insurance company filed a Petition for Physical Examination.

The original injury occurred when the Claimant was thrown off a truck and struck his right shoulder and head on the asphalt. As a result of the injury, the Claimant was diagnoses with a clinical seizure disorder after he showed evidence of post traumatic headaches, concussion with loss of consciousness, short term memory loss, post concussive syndrome and an abnormal EEG. This EEG was done on December 4, 2000. The claimant developed his first episode of clinical seizure activity around January of 2002. Of note, the Court indicated that the parties did not dispute the Claimant’s seizure disorder was related to the original work injury.

The whole issue came about when the DME, Doctor Bernstein, requested that the Claimant submit to a diagnostic test to discern whether he was having legitimate seizures verses pseudo seizures because of a high prevalence of pseudo seizures in patients with legitimate seizure disorder. The doctor commented that he could not determine whether Claimant’s seizure disorder was truly under control or whether Claimant was capable of returning to work and/or operating a motor vehicle without a new EEG. The doctor also stated that the test involved essentially no risk and was not unreasonably intrusive to the Claimant.

The claimant presented his own medical reports from the treating physician who opined that the EEG was not necessary and would not be of any diagnostic help. The test would not add anything to the Claimant’s treatment either. Further, the Claimant’s treating physician indicated that it was his opinion that the Claimant did not suffer from pseudo seizures.

The Workers’ Compensation Judge denied the employers Petition to Compel the diagnostic test. The employer appealed to the Workers’ Compensation Appeal Board which affirmed the Judge’s decision. On appeal to the Commonwealth Court, the employer contended that the Judge applied the improper standard.

The Commonwealth Court indicated that Section 314 of the Workers' Compensation Act (77 PS Section 651(a)) provides that “at any time after an injury, the employee, if so requested by his employer, must submit himself at some reasonable time and place for physical examination.” Also, the Court pointed out that “physical examination” includes all reasonable medical procedures and tests necessary to permit a provider to determine the extent of the employee’s disability.

The Commonwealth Court denied employers arguments. It stated that to the extent the diagnostic test was an “attempt to rule out pseudo seizures” and there was no persuasive evidence that suggested Claimant experienced such pseudo seizures, the Judge found the test was not necessary. The issue came down to whether the diagnostic test would yield useful information regarding Claimants seizure disorder, specifically pseudo seizures, against the Claimant’s right to avoid the intrusion of a seventy-two hour hospital confinement necessary to perform the test. The Court believed this was extreme given the risk of obtaining no useful information regarding the claimant's disability status.

Friday, May 23, 2008

Unresonable Contest Attorneys Fees in Pennsylvania Workers' Compensation Cases

Most (if not all) Pennsylvania Workers' Compensation attorneys charge their clients 20% of the benefits that are won as payment for their services. The Workers' Compensation Act limits the fees to 20%, so an attorney cannot charge the client more than that; however, in some instances I have charged LESS than 20%.

There are cases when the employer/insurance company must pay the attorney an hourly fee. These are called Unreasonable Contest Attorneys Fees. This does not happen very often, but in some cases, the insurance company's defense is so lame and lacks any basis in fact or law, that the judge declares that the carrier is unreasonably contesting the claim.

If this happens, the attorney usually submits a fee exhibit detailing the amount of hours spent in the case and charging their normal hourly rate. My hourly billable rate for my experience and geographic area is $250/hour. Once I get paid from the carrier, then the claimant receives a credit for the hourly fees I've received on the 20% that they will be paying me as the weekly checks roll in. This means that if the employer/insurance company has acted so bad in denying a claim or benefit, then they are punished by having to pay more and also the claimant receives more money in his/her pocket.

Here is the statute and case law that addresses this issue:

77 P.S. §996(a), which states in pertinent part:

In any contested case where the insurer has contested liability in whole or in part, … the employee … in whose favor the matter at issue has been finally determined in whole or in part shall be awarded, in addition to the award for compensation, a reasonable sum for costs incurred for attorney’s fee …: Provided, That cost for attorney fees may be excluded when a reasonable basis for the contest has been established by the employer or the insurer.

The awarding of attorney’s fees in workers’ compensation cases is the rule not the exception. Section 440(a) of the Workers’ Compensation Act (Act); General Carbide Corporation v. Workmen’s Compensation Appeal Board (Daum), 671 A.2d 268 (Pa. Cmwlth. 1996). Thus, the employer has the burden of presenting sufficient evidence to establish a reasonable basis for contesting a claim petition in order for the employer not to have to pay the claimant attorney’s fees. Lemon v. Workers’ Compensation Appeal Board (Mercy Nursing Connections), 742 A.2d 223 (Pa. Cmwlth. 1999), appeal denied, 562 Pa. 676, 753 A.2d 822 (2000). The existence of a reasonable contest is a question of law, based on the WCJ’s findings of fact, and is fully reviewable by the appellate courts. Id.

Thursday, May 22, 2008

Frequently Asked Questions About Pennsylvania Workers' Compensation

Q: What is Workers' Compensation?

A: Workers' Compensation is insurance your employer must carry in the event an employee is injured on the job, becomes ill due to circumstances surrounding their job or even if death. Benefits include medical expenses, lost wages, specific loss benefits for amputation or loss of the use of an extremity, disfigurement benefits, and death benefits.

Q: Who provides the benefits under the Workers' Compensation Act?

A: By law the employer is responsible for providing Workers' Compensation Insurance. In some instances the employer provides benefits directly by being self-insured otherwise the employer provides the benefit indirectly through a Workers' Compensation insurance company. A worker cannot be charged for benefits provided or any portion of their employer's Workers' Compensation insurance premium.

Q: What are the rights and responsibilities of the injured worker?

A: An injured worker may be entitled to: receive wage benefits; receive medical care reasonable and necessary to treat a work-related injury or illness without any specific time limit; initially choose a doctor under certain circumstances; hire an attorney to help get benefits or to help resolve disputes; confidentiality. If you are injured, you may be responsible to: inform his or her employer about a work-related injury or illness; complete a claim form and submit it to the employer; tell his or her doctor how the injury occurred and if it was work related.

Q: What are the most important things an injured individual should know about workers' compensation rights?

A: Always report a work injury even if you might not lose time from work or need immediate medical care. It is critical that you require your employer to complete an accident report; Remember to keep an independent record of the date, time, and nature of your work injury. In addition, make a list of witnesses as well as the person to whom the injury is reported; Be sure to provide a complete and accurate account of the type of injury you sustained and how your injury occurred as well as your past medical history; If your employer fails to accept your claim within 21 days of the date you notify them, seek legal assistance and file a petition for compensation; Should your employer accept your injury, be certain that the wages upon which your compensation is based are accurate. In most cases your compensation should be 66 2/3% of your gross wages from all sources of employment; If, after receiving compensation, your employer or the insurance company asks you to see another physician, seek legal advice immediately as this is your employer's first step in their attempt to either terminate your compensation or modify your benefits; It is possible that your employer may offer you modified work based on medical proof that you are able to perform that work. This can cause you to lose your benefits by failing to accept the newly defined work; You might be contacted by a vocational rehabilitation firm attempting to find you a new job. Your compensation can be effected if you fail to cooperate with the vocational firm; Should you receive a petition in the mail to terminate, suspend or modify your compensation, seek legal advice; NEVER sign a supplement agreement or final receipt without having it reviewed by an attorney.

Q: What injuries are covered by the Act?

A: Any worker who has sustained an injury arising out of and in the course of their employment has a potential Workers' Compensation claim. As long as your injury is job-related, it's covered. You are covered if you are injured while traveling on business, doing a work-related errand or even attending a required business-related social function. Any injury or illness that occurs due to employment is considered a workers' compensation injury. Under workers' compensation law, you may receive benefits if you are injured no matter who was at fault. Some types of workers' compensation injuries are: broken/fractured bones, back problems/pain, knee problems/injuries, grip loss, heart attacks, hypertension, wrist injuries including carpal tunnel syndrome, burns, shoulder pain, neck pain, headaches, etc. You may be entitled to benefits even if you are still working.

Q: Does an injury have to have a specific date of onset in order to be covered?

A: Your injury does not need to be caused by a specific accident such as a fall. Many workers receive compensation for repetitive trauma injuries such as back problems that are caused by overuse or misuse over a long period of time in the performance of their normal work activity. You may also be compensated for some illnesses and diseases that are the gradual result of work conditions such as lung disease. Due to the fact that symptoms with these types of injuries reveal themselves over a period of time, the worker might not associate the eventual diagnosis of the injury as being work-related.

Q: What workers are covered by the Act?

A: Many states require an employer to carry Workers' Compensation insurance only if they have a minimum number of employees such as 3 or 5. As a general rule though, if a company has employees, then they should have Workers' Compensation insurance. Each state has its own workers' comp laws, as well as its own administrative and legal structure for handling claims and disputes. Some states also require workers' comp only for employees in "hazardous" occupations. What is considered a "hazardous" category can vary widely from state to state. Most employees are also covered if they are injured while working in another state or injured while working in another state for an employer whose principle place of business is in their home state. Without Workers' Compensation coverage, an employer can be sued by an injured worker for medical and disability costs, plus damages. Federal government employees are also excluded from state workers' compensation coverage. Employees of the federal government receive workers' compensation benefits under a separate federal law.

Q: What should I do if I get injured on the job?

A: Seek emergency medical attention if needed. Immediately report your injury to your employer. An injured worker must report any accident to their employer or any employee of the employer who is in a supervisory capacity (foreman, superintendent, company nurse, etc.). Notification must be done within a set amount of time as set by state law. If an injury occurs over time (for example, a breathing problem or carpel tunnel syndrome), you must report your condition soon after you discover and realize that it is caused by your work. Your employer will provide you with a claim form on which you must describe your injury and how, when, and where it occurred. Make sure you save copies of all correspondence with your employer, its insurance carrier and your doctor concerning your workers' comp claim.

Q: How long after an injury do I have to report it to my employer?

A: Immediately report your injury or illness to your supervisor. To be eligible for benefits, in Pennsylvania you must report the injury within 21 days. If you have received medical benefits, the statutory time limit to file a petition for benefits is usually three years from the date of the last payment [to file a claim for medical benefits]. If you have not received any medical benefits, the statutory time limit to file a petition is three years from the date of your injury or illness. Your employer is then required to make a report of the injury and notify its insurance company and/or the Workers' Compensation Commission. If no disability benefits are paid to the injured worker by the employer or carrier within the statutory time limit, and no petition is filed, then the right to any and all benefits may be barred.

Q: Can I lose my job because of a workers' compensation injury?

A: Laws prohibit your employer from discharging or discriminating against you because of your workers' compensation injury. If it is proven that an employer fires or forces you to resign in retaliation for filing a Workers' Compensation claim, the worker could file a civil lawsuit against his employer seeking damages in court.

Q: If I receive workers' compensation, can I also sue my employer in court?

A: Generally, no. In exchange for giving up the right to sue an employer in court, you get Workers' Compensation benefits no matter who was at fault. [You may be able to sue in court if your injury was caused by someone other than your employer or a co-employee, such as a visitor or outside contractor, some third party or if it was caused by a defective product.]

Q: What workers' compensation benefits am I entitled to?

A: You may be entitled to receive all reasonable and necessary medical treatment, benefits for lost wages, benefits for specific injuries resulting in permanent losses such as loss of use of an extremity and/or disfigurement (scars). You may also qualify to participate in certain physical and vocational rehabilitation programs. If the injury causes the death of an injured worker, burial expenses are covered and the spouse and/or dependents of the deceased worker may be entitled to certain benefits. If you become temporarily unable to work, you'll generally receive two-thirds of your average wage up to a fixed ceiling. These benefits are tax-free. You will be eligible for these wage-loss replacement benefits as soon as you've lost a set amount of work because of an injury or illness that is covered by workers' compensation as set by state law.

Q: What medical benefits does the Act provide to a worker after they have sustained an on-the-job injury?

A: An injured worker is entitled to receive 100% of all reasonable and necessary medical expenses incurred as a result of a job-related injury. These include first aid, emergency room services, inpatient and/or outpatient hospital care, doctor's fees, prescriptions and other related expenses.

Q: Should an injured worker apply for unemployment benefits?

A: In applying for unemployment benefits during the period a worker is off work due to an on-the-job injury, the worker must state in writing that they are willing and able to work. The Workers' Compensation insurance company could argue that the injured worker's statement to unemployment is contrary to their claim that they are unable to work. Recent court decisions have recognized the financial difficulties facing an injured worker who is not receiving Temporary Disability benefits under the Act and have ruled that a worker who has applied for unemployment benefits, in certain circumstances, is not barred from claiming they are entitled to certain workers' compensation benefits. It is advisable that an injured worker discuss the circumstances of their accident with a Workers' Compensation attorney before attempting to apply for unemployment benefits.

Q: If I am injured on the job can I choose the doctor who treats me?

A: Under Pennsylvania Workers' Compensation laws, the employer may restrict an injured worker's medical treatment, during the initial 90 days following an injury, to a set list of at least six medical providers. These providers are known as "panel providers." However, in order to compel an employee to treat with a panel provider, the employer must fulfill certain specific requirements [which are to]: Have a posted list or providers; and Have the employee sign an acknowledgement of receipt of the list at the time of hire and after the injury.

Q: If I am unable to return to the type of work I did before I was injured, what happens?

A: If your employer has employment available to you within your medical restrictions and you decline, your employer may request a suspension, modification or termination of your benefits. If you do return to work and wages are less than what you earned before the injury, you may be entitled to partial disability. Wage benefits usually will equal approximately 2/3 of the difference between your current earnings and what you earned before your injury, not exceeding the maximum compensation rate for the year you were injured.

Q: What happens if I return to a modified duty job and then I am laid off?

A: If you are still suffering from your work injury, you may be entitled to reinstatement to full disability.

Q: My employer has denied my claim, what do I do?

A: Immediately contact an attorney to discuss whether the facts of your circumstances entitle you to workers' compensation benefits. If so, a Claim Petition should be immediately filed on your behalf to obtain a hearing before a Workers' Compensation Judge.

Q: When is a Workers' Compensation claim considered settled and permanently closed?

A: A Workers' Compensation claim is considered settled only after a Compromise & Release Agreement is prepared and signed by both the employer and employee and approved by a Workers' Compensation Judge at a hearing.

Q: Do I need an attorney?

A: You have the right to be represented by an attorney for your work- related injury. Your attorney will assist you in seeing that your benefits are properly protected. While individuals can sometimes represent themselves in these matters, it is advised to contact a Workers' Compensation Attorney as soon as possible after an accident or diagnosis of a disease or condition in order to protect your legal rights. Workers' Compensation laws are constantly changing and an attorney will be in a better position to advise you in order to protect your rights.
Q: How do I find out my state's workers' comp requirements?

A: Since the state government sets Workers' Compensation requirements, they can vary greatly from state to state. You can consult the Pennsylvania Bureau of Workers' Compensation website or contact an attorney.

Former Welder's $1 Million Verdict Will Stand

Though the welding industry continues to vigorously defend itself against a growing tidal wave of welding rod litigation, it was dealt a serious blow in March 2006 when its repeated attempts to overturn a welding rod fumes case failed in the Illinois Supreme Court. The case is a landmark in welding rod litigation, in which former welders claim that exposure to fumes from welding rods caused manganism and even Parkinson's disease.

The Original Case

Though several welding rod cases have produced multi-million dollar settlements, the original case in question is a landmark because it is the only welding rod verdict ever decided in favor of the plaintiff. The case, entitled Elam v. A.O. Smith, contended that the plaintiff, a 64-year-old Illinois welder who worked in the profession for 30 years, suffered neurological damage from long-term exposure to the toxic fumes that are a byproduct of welding rods. The case was previously tried before a hung jury (Illinois law demands a unanimous jury); in its retrial, Jack Elam was awarded $1 million in "compensatory damages" for his welding rod-related Parkinson's disease. The jury found that A.O. Smith failed to provide adequate safety warnings about the dangers of manganese in welding rod fumes.

The verdict was a watershed in more ways than one - it unleashed a wave of welding rod litigation once attorneys knew that it was possible for a verdict to be awarded in the plaintiff's favor. The welding rod cases have become so numerous that a multi-district litigation is underway in Ohio; it numbers well over 3,000 plaintiffs.

Lost on Appeal

The defendants in the original case quickly appealed the case, contending that it did in fact adequately warn workers of the dangers of working with welding rod fumes. However, in December 2005, the 5th District Appellate Court of Illinois found that the company did not warn workers adequately, upholding the $1 million verdict. On second appeal, the court was taken up before the Illinois Supreme Court. However, it dealt a devastating blow to the welding industry - and gave an encouraging nod to former welders looking to get compensated for their own occupational welding rod-related illnesses - when it effectively upheld the verdict by declining to review the case.

Former Welders Cling to Hope; Continue to Litigate

Despite the fact that the $1 million verdict is the only one ever given to a welding rod litigant, former welders who are suffering from Parkinson's, manganism and other occupational illnesses related to their welding work are retaining hope. Welding rod attorneys hope that the Elam v. A.O. Smith will set a precedent that allows other litigants to collect damages for their occupational exposure to manganese. If you are suffering health problems due to your work as a welder, contact a doctor and then an experienced welding rod litigation attorney who can analyze your case and tell you whether you may be qualified to monetary damages.

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Friday, May 16, 2008

The Exclusivity Provision: Why You Can't Sue Your Employer For a Work Related Injury

The Pennsylvania Workers' Compensation Act provides that the exclusive remedy against your employer for work related injuries is the workers' compensation law. What this means is that when you are injured at work, all you are entitled to receive are the wage and medical benefits outlined in the Act. You cannot file a separate lawsuit for personal injuries against your employer, even if your employer was clearly negligent in causing the injury!

Section 303(a) of the Workers’ Compensation Act provides:

The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employes, his legal representative, husband or wife, . . . or anyone otherwise entitled to damages in any action at law or otherwise on account of any injury or death as defined [in the act]. 77 P.S. § 481(a).

This means that no matter how injured you are, and no matter how disabled you are, you cannot obtain pain and suffering compensation against your employer as you would in a regular personal injury case.

There are a few exceptions to this general exclusivity rule. One exception is if you can prove your employer engaged in some kind of fraud in causing the work injury.

Also, if you are involved in a work related automobile accident, you may be able to obtain compensation for pain and suffering from your employer's automobile insurance company under its Underinsurance/Uninsurance policy. Also, you may be able to obtain pain and suffering compensation against the automobile insurance of a co-worker if that co-worker caused an auto accident in which you were hurt.

Here is a link to a case, Safe Auto v. School District of Philadelphia, which provides a great summary of the case law in relation to work related auto accidents and obtaining pain and suffering compensation from your employer or co-worker.

Of course, remember that you can always file a lawsuit and receive pain and suffering compensation against negligent third parties.

Also, if your employer does NOT have workers' compensation insurance, you can file a lawsuit in the Court of Common Pleas to obtain benefits.

Wednesday, May 14, 2008

The Defense Base Act Protects American Workers Injured in Iraq and Afghanistan

In the wake of 9/11, thousands of Americans signed on with companies that had contracted with the U.S. federal government to provide services in support of the U.S. efforts in Iraq and Afghanistan. War zones are dangerous places, and they have sometimes proved as dangerous for our civilian workers as they have for our troops.

Tragically, many of these workers became injured while overseas. Just as tragically, many of the workers who where injured in support of American efforts abroad have been faced with overwhelming medical bills and loss of income as they recuperated. Some also lost their lives, leaving their families destitute. Many others who are unable to work watch their family's savings and assets dwindle, and their security disappear.

A law exists to ensure fair workers compensation for these people. It's called the Defense Base Act. Unfortunately, too few people in need of its protection understand their own rights under the law. Even fewer know what to do to guarantee those rights. Recuperation can be difficult enough without mounting bills, the threat of bankruptcy, and an inability to get proper medical care and rehabilitation. That's to say nothing of the financial threat to the families involved.

The Defense Base Act requires that contractors working with the U.S. Military in war zones carry worker's compensation insurance. This type of insurance is compulsory for organizations employing U.S. citizens or residents, and all employees or subcontractors hired on overseas government contracts. However, these companies sometimes fail to inform workers of their rights. Worse, the insurance carriers often refuse claims, abandoning injured Americans who supported the American mission to face crushing expenses and debt on their own.

Fortunately, Federal law provides a genuine solution, though unfortunately few injured workers know how to apply it. The Defense Base Act is part of the Longshoremen and Harbor Workers' Compensation Act, and covers to employees of government contractors working overseas under contract to the United States Government. Specifically, the Act covers workers employed by American contractors performing public works for the U.S. government in U.S. territories, or at U.S. military bases located outside the continental United States, in support of military aid programs within allied nations. Workers are protected under the Act, even if they are only employed to build embassies and other U.S. government buildings abroad.

The Act ensures medical treatment and compensation for employees of defense contractors injured in the course of employment. For thousands of American workers injured abroad, the Defense Base Act has provided support for them under devastating circumstances. Claims under the Act have been successfully filed by many individuals, including some contact workers injured in Korea, VietNam, both Iraq wars, Afghanistan, and elsewhere. All were protected under the general coverage of the Act.

The Defense Base Act mandates that any injured worker should be confident of having an attorney at his side to ensure a just outcome. Both injured workers and family member of someone who has died from job injuries overseas are covered. Compensation is also allowable for partial loss of earnings, and significant death benefits are commonly paid to spouses and family. Fortunately, injured workers or their families are not responsible for legal fees for a DBA injury claim. The Defense Base Act requires that all attorney fees depend entirely on the amount of money the claimant receives. No outrageous legal fees are possible. The fees are awarded by the Department of Labor,and are never included in any other compensation to the claimant. The injured party does not pay the lawyer out of his or her compensation. Instead,compensation is awarded to the attorney by the court, and paid by the insurance company or the original employer.

Civilians working in support of American military and U.S. State Department objectives continue to be injured to this day. For these injured civilians, the key to success in securing just compensation under the Defense Base Act is finding the right lawyer. This is a highly specialized area, and familiarity with standard Workman's Compensation Law is simply inadequate. Claimants are advised to find a Defense Base Act attorney with years of experience and success with these claims.

William Prescott is web copy writer and researcher of health issues. This article is based on interviews with legal expert Kurt Gronau, a well-known Defense Base Act attorney.

Monday, May 12, 2008

Work Injuries Due to Inadequate Machine Guarding

In the United States, there are millions of workers that endure hard labor jobs, which require physical interaction with machines to build, develop, construct or weld together buildings, cars, etc. However, thousands of those workers are injured on the job annually. One of the most common types of workplace injuries occurs when machine operators suffer amputations, lacerations, de-gloving or other serious injuries from the operation of machinery, which is not properly guarded.

Moving machine parts can cause severe injuries. Machine guards are essential to protect workers from preventable injuries. Whenever the operation of a machine can injure the operator or others, the hazards must be either eliminated or designed out of a product.If this is not possible and the hazard cannot be eliminated, it must be guarded against and a warning must be provided to avoid the hazard. This is often referred to as the "Engineering Hierarchy": design out, guard against and warn.

Many guarding principles have been in use in the industry for over 100 years. For example, the first patent for an interlocking guard was awarded in 1899 for a power press. However, while guarding technology has been readily available for decades, many manufacturers fail to avail itself of basic safety engineering that could save lives and prevent needless suffering and tragedy. Because of this neglect or disregard for a company's employees, the creation of a employee compensation lawsuit may occur to bring safety to a workplace and dissolve remaining threats.

There are many types of guards that are appropriate for different products depending on the use for which the product is intended. Some examples of guards include fixed barrier guards, movable interlocking guards, and light curtains and sensors that detect the entry of fingers or the operator's hands.

Machine guarding cases involving serious injury due to improper guarding often involve situations where a product had a poorly designed guard that was removed exposing the operator to serious injury. If the manufacturer could have, and should have reasonably expected that the guard would be removed, the removal of the guard does not shield the manufacturer from liability.

Additionally, if a company does not fit hazardous machines with safety gear, workers should be advised to contact a law firm that is experienced in developing employee safety lawsuits. When an employer refuses to ensure the safety of its workers, or merely disregards the safety of its workers, they can be held responsible.

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Construction Site Accidents Are Often Serious or Fatal

The following are some statistics from the U.S. Department of Labor Bureau of Labor Statistics on safety and on-the-job injuries in the construction industry:

* One of every five workplace fatalities is a construction worker.

* There were 1,225 fatal occupational injuries in construction in 2001, excluding fatalities on September 11. Also in 2001, there were 481,400 nonfatal injuries and illnesses in construction. Incidence rates for nonfatal injuries and illnesses were 7.9 per 100 full-time equivalent workers in construction, and 5.7 per 100 full-time equivalent workers in all private industry in 2001.

* Because only about 10% of construction companies employ more than 20 workers, the great majority have no formal job safety regulations or programs in place.

* In 1992, the "lost-workday" rate for workers in the construction industry was 5.7 per every 100 full-time workers. This lost-workday rate was the highest of any major economic sector.

* Nationwide, about 15% of workers' compensation costs are attributable to injuries in the construction industry.

* Virtually all significant injuries suffered in construction accidents give rise to workers' compensation rights. Those limited rights, however may be supplemented by legal actions against others who have responsibility for various activities on the jobsite, including construction managers, general contractors, subcontractors, equipment manufacturers, etc. These rights depend upon the application of various complex laws and the individual circumstances of the accident.For example, in most construction projects, many different contractors are involved. If any contractor other than the direct employer has responsibility for the injuries, full damages can be recovered. Likewise, if a defective tool, machine, or other product causes injury, an injured worker can be fully compensated.Construction workers have a right to a safe workplace according to OSHA, the Federal governing body for occupational safety and health.

If a workplace hazard exists and action is not taken quickly, an employee should contact an OSHA area office or state office via a written complaint. If the OSHA or state office determines that there are reasonable grounds for believing that a violation or danger exists, the office will conduct an inspection.A workers' representative has a right to accompany an OSHA compliance officer during the inspection. The representative is chosen by a union representative, if there is one, or by the employees. Under no circumstances may the employer choose the workers' representative. The inspector may conduct a comprehensive inspection of the entire workplace or a partial inspection limited to certain areas or aspects of the operation. At the end of the inspection, the OSHA inspector will meet with the employer and the employee representatives to discuss the abatement of any hazards that may have been found. These need to be corrected or serious penalties and legal liabilities may arise.

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Thursday, May 8, 2008

What to do when your employer does not have Workers' Compensation insurance?

The first thing to do is contact an experienced compensation lawyer. (Of course I was going to say that....) Second, if the lawyer is worth anything, he/she will know what to do.

In November 2006, the Pennsylvania's Workers' Compensation law was amended to create the Uninsured Employer Guaranty Fund.

You must file a Notice of Claim within 45 days after the employee learns that the employer does not have insurance. 34 Pa. Code 123.802. Here's a link to the Notice of Claim form:

A claim petition may be filed against the Fund 21 days later. Here's a link to the specific form to be used:

Here are the prerequisites for filing claim petition for benefits from Fund:

§ 123.803. Prerequisites for filing claim petition for benefits from Fund.

(a) Upon the filing of a completed ''Notice of Claim Against Uninsured Employer'' (Notice), the Uninsured Employer Guaranty Fund (Fund) will determine whether it will commence making payments.

(b) An injured worker may not seek an award against the Fund unless the worker completes and files the form designated as the ''Claim Petition for Benefits from the Uninsured Employer Guaranty Fund.''

(c) A ''Claim Petition for Benefits from the Uninsured Employer Guaranty Fund'' may not be filed until at least 21 days after the injured worker filed the Notice as required in § 123.802 (relating to notice to the Uninsured Employer Guaranty Fund).

(d) A completed ''Claim Petition for Benefits from the Uninsured Employer Guaranty Fund'' will be deemed filed upon the later of either of the following:

(1) The date of the petition's deposit in the United States Mail, as evidenced by a United States Postal Service postmark, properly addressed, with postage or charges prepaid; or, if no United States Postal Service Postmark is present, as of the Department's receipt of the petition.

(2) Twenty-one days after the filing of the Notice identified in § 123.802.

(e) The Department may reject any incomplete petition.

Tuesday, May 6, 2008

Employment Accidents -- An Overview

Three Department of Labor (DOL) agencies have responsibility for the administration and enforcement of the laws enacted to protect the safety and health of workers. These are the Occupational Safety and Health (OSH) Act, the Mine Safety and Health Administration (MSHA) and the Fair Labor Standards Act (FLSA), which contains rules concerning the employment of workers under the age of 18. Almost every state has a workers' compensation department, the benefits under which vary from state to state (here is Pennsylvania's Workers' Compensation Bureau).

OSHA or OSHA-approved systems regulate safety and health conditions in most private industries. Nearly every employee comes under OSHA's jurisdiction. There are some exceptions such as miners, some transportation workers, many public employees, and the self-employed. In addition to the requirements to comply with the regulations and safety and health standards contained in the OSH Act, employers subject to the Act have a general duty to provide work and a workplace free from recognized, serious hazards.According to the Act, every employer shall furnish to every employee a place of employment that is free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees. In addition, employers shall comply with occupational safety and health standards that are included in the Act.

The Department of Labor has an Employment Standards Administration division (ESA) whose mission is to enhance the welfare and protect the rights of workers. As an enforcement and benefit delivery agency, the ESA is composed of four major programs one of which is responsible for workers' compensation, the Office of Workers' Compensation Programs.

Workers who are injured while on the job, who have been injured in association with their job or who have safety or health issues directly related to their job may be covered under workers' compensation. Workers' compensation is a system of laws outlining specific benefits to which an injured employee is entitled, including lost wages and medical expenses. In other words, it is an important safety net for employees when they are injured while on the job or because of a job. The specific issues associated with each case must be explored to determine the benefits an employee may be entitled to receive. In addition, depending upon the type of accident and injury, the worker may also be able to file a personal injury suit against one or more of the contractors involved, which does not affect workers' compensation claims or benefits.

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Monday, May 5, 2008

Plaintiff awarded wage-loss benefits for depression that resulted from work injury

In Bartholetti v. WCAB, the Commonwealth Court of Pennsylvania ruled a plaintiff was entitled to wage-loss benefits for a period of depression where her psychologist clearly opined that the depression was a result of plaintiff’s injury at work and also caused the Claimant to lose time for work.

Tara Bartholetti was an elementary school teacher who was punched and bit by a student when she attempted to stop a fight. She filed a claim petition alleging she suffered severe anxiety and depression from abnormal work conditions arising from the incident. After Bartholetti’s psychologist testified she suffered symptoms of post-traumatic stress syndrome as a result of the altercation, the WCJ awarded her wage-loss benefits. The WCAB, however, reversed this award, finding Bartholetti failed to prove the disabling nature of her work injuries.

On appeal, the Commonwealth Court found the WCJ’s findings rest on the competent evidence presented by Bartholetti’s psychologist and must not be disturbed. Accordingly, the denial of wage-loss benefits was reversed.

Most of time, the main issue in these cases is whether the work incident was "abnormal" for that particular profession. Common sense dictates that breaking up a fight between two kids is pretty normal for a teacher. However, being punched, kicked and bitten when you're an elementary school teacher might be abnormal. It truly depends on the evidence presented during the hearings-- whether the claimant can show that what happened to them rarely or never happened, and then proving that the incident caused a psychological injury.

For example, there is an older case that holds that a police officer who was involved in a gun battle (and later suffered from post traumatic stress disorder) was NOT abnormal.

Sunday, May 4, 2008

Do you really have to see the company doctor? Exploding the Myth of the 90 Day Rule

Here is an excellent article by Attorney Dan Siegel regarding whether an injured employee really has to treat with the company doctor.

I often tell my clients that it is not necessary and they can treat with whomever they want. Seriously, wouldn't you be more comfortable treating with your family physician or receiving a referral to a specialist from your family physician? 9 out of 10 times the employer's doctor has the employer's best interest in mind instead of the patient.

As Dan's article explains, in order for the "90 Day Rule" to apply, employers and insurance carriers must jump through so many hoops that a vast majority always get it wrong. It's an extremely rare case that everything was done correctly that would require the injured worker to treat with the company doctor. I see it on a daily basis.

So, the next time your human resources rep tells you who you HAVE to treat with, show them a copy of this article and watch them spit and sputter. Then call me...or Dan. We'll set them straight.

Dan is an attorney in the Philly area. Check out his other websites if you get a chance.