Ungerer workers exposed to chemical hazards, other safety and health dangers

OSHA cites Ungerer & Company, global flavor, fragrance manufacturer, for exposing workers to chemical hazards, other safety and health dangers

Citations issued: On May 25, 2016, the U.S. Department of Labor’s Occupational Safety and Health Administration issued one repeat and six serious violations, and one other-than-serious violation.

Inspection findings: OSHA received a referral on Jan. 27, 2016, from the Pennsylvania Emergency Management Agency alleging Ungerer & Company employees suffered respiratory distress from an unknown chemical odor, prompting an investigation.

The agency found repeat violations when the employer failed to use approved electrical equipment to clean up combustible dust, and did not train employees expected to participate in emergency response operations. Similar violations were previously cited in 2013.

The serious violations included:

1. A mobile ladder stand not equipped with safety stops to prevent horizontal movement.
2. A dust collection unit handling combustible dust not provided with proper explosion protection or suppression systems.
3. No developed emergency response plan.
4. Employees overexposed to hydrogen sulfide.
5. Feasible administrative and engineering controls not implemented.
6. Safety data sheets not maintained and without required safety and health information.

The company also did not conduct periodic re-evaluations of its hazardous energy control program, resulting in the other-than-serious citation.

Quote: “Ungerer & Company should immediately implement safeguards to protect its workers from the dangerous risks associated with exposure to combustible dust and chemical hazards,” said Jean Kulp, director of OSHA’s Allentown Area Office. “Employers will be held legally accountable for failing to provide a safe and healthful workplace.”

Proposed penalties: $63,450

The citations can be viewed at:
http://www.osha.gov/ooc/citations/UngererCompany_1116984.pdf
http://www.osha.gov/ooc/citations/UngererCompany_1133193.pdf

The employer has 15 business days from receipt of its citations and proposed penalties to comply, request a conference with OSHA’s area director or contest the findings before the independentOccupational Safety and Health Review Commission.

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Radiation Exposure: Major New Study Links Cell Phone Exposure to Cancer in Rats

A new study conducted by the US National Toxicology Program has linked radiation from cell phone exposure to cancer in rats. This report reignites the controversy that was sparked by earlier scientific research of the positive causal relationship. Those studies were downplayed by the Industry. Workplace exposures may ultimately result in in a surge of disease and an epidemic of workers' compensation claims in the near future.


Scientific American Reported:

"Researchers at the National Toxicology Program (NTP), a federal interagency group under the National Institutes of Health, led the study. They chronically exposed rodents to carefully calibrated radio-frequency (RF) radiation levels designed to roughly emulate what humans with heavy cell phone use or exposure could theoretically experience in their daily lives. The animals were placed in specially built chambers that dosed their whole bodies with varying amounts and types of this radiation for approximately nine hours per day throughout their two-year life spans. 'This is by far—far and away—the most carefully done cell phone bioassay, a biological assessment. This is a classic study that is done for trying to understand cancers in humans,' says Christopher Portier, a retired head of the NTP who helped launch the study and still sometimes works for the federal government as a consultant scientist. 'There will have to be a lot of work after this to assess if it causes problems in humans, but the fact that you can do it in rats will be a big issue. It actually has me concerned, and I’m an expert.'"

Click here to read the complete article: Major Cell Phone Radiation Study Reignites Cancer Questions

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Memorial Day - 2016

President and Mrs. Hoover lead nation in observing Memorial Day. The National Capital, led by President and Mrs. Hoover, on Memorial Day 1929, paid tribute to America's dead heroes of 4 wars at Arlington National Cemetary. President Hoover is shown placing a wreath on the tomb of America's Unknown Soldier. Following the Chief Executive Mrs.Hoover placed a bunch of white carnations on the tomb. 

Source Library of Congress

"The price of freedom is eternal vigilance.” 

– President Thomas Jefferson


Presidential Proclamation -- Prayer for Peace, Memorial Day, 2016

PRAYER FOR PEACE, MEMORIAL DAY, 2016
- - - - - - -
BY THE PRESIDENT OF THE UNITED STATES OF AMERICA A PROCLAMATION

With courage and a love of country that knows no limits, America's men and women in uniform exemplify patriotism at its core -- stepping into harm's way to protect our people and to safeguard the ideals that have long sustained our democracy. Those who serve under the stars and stripes embody the highest form of citizenship, and on Memorial Day, we pay solemn tribute to those brave Americans who laid down their lives to defend our freedom.

Since America's earliest days, proud patriots have forged a safer, more secure Nation, and though battlefields have changed and technology has evolved, the selflessness of our service members has remained steadfast. They have stepped forward when our country was locked in revolution and civil war; fought threats of fascism and terrorism; and led the way in securing peace and stability around the globe. They have sacrificed more than most of us could ever imagine -- not for glory or gratitude, but for causes greater than themselves. In the children who replicate their courage and strength, in the spouses and partners who forever seek to mend their broken hearts, and in the parents who mourn the absence of the sons and daughters they raised, we are reminded of our enduring commitment to do right by our fallen warriors and their families.

Those who gave their last full measure of devotion for the values that bind us as one people deserve our utmost respect and gratitude. In recognizing those who made the ultimate sacrifice, we pledge to never stop working to fulfill our obligations to all members of our Armed Forces so they know we stand beside them every step of the way -- not just when we need them, but also when they need us.

Today, and every day, let us remember the servicemen and women we have lost, and let us honor them by rededicating ourselves to strengthening our Nation's promise. With love, grace, and reflection, let us honor our fallen fellow Americans, known and unknown, who sacrificed their freedom to ensure our own.

In honor of all of our fallen service members, the Congress, by a joint resolution approved May 11, 1950, as amended (36 U.S.C. 116), has requested the President issue a proclamation calling on the people of the United States to observe each Memorial Day as a day of prayer for permanent peace and designating a period on that day when the people of the United States might unite in prayer. The Congress, by Public Law 106-579, has also designated 3:00 p.m. local time on that day as a time for all Americans to observe, in their own way, the National Moment of Remembrance.

NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, do hereby proclaim Memorial Day, May 30, 2016, as a day of prayer for permanent peace, and I designate the hour beginning in each locality at 11:00 a.m. of that day as a time during which people may unite in prayer.

I also ask all Americans to observe the National Moment of Remembrance beginning at 3:00 p.m. local time on Memorial Day. I request the Governors of the United States and its Territories, and the appropriate officials of all units of government, to direct that the flag be flown at half-staff until noon on this Memorial Day on all buildings, grounds, and naval vessels throughout the United States and in all areas under its jurisdiction and control. I also request the people of the United States to display the flag at half-staff from their homes for the customary forenoon period.

IN WITNESS WHEREOF, I have hereunto set my hand this twenty-sixth day of May, in the year of our Lord two thousand sixteen, and of the Independence of the United States of America the two hundred and fortieth.

BARACK OBAMA

Ohio gun shop's lead, respiratory hazards endanger workers - FIned $195K

Federal safety and health investigators found that employees of an Ohio gun shop may face life-long health damage because their employer continues to expose them tolead hazards and has failed to establish a respiratory protection program.


On May 24, the U.S. Department of Labor Occupational Safety and Health Administration placed Pro Armament Company LLC in its Severe Violator Enforcement Program after the company failed to correct serious violations identified in a November 2014 inspection. The agency issued two failure to abate and six serious safety and health violations to the company, which faces total proposed penalties of $194,400.

"Failing to correct conditions that cause serious health hazards is unacceptable," said Howard Eberts, OSHA's area director in Cleveland. "Eliminating exposure where possible, using engineering controls and personal protective equipment such as respirators and protective clothing, as well as properly cleaning lead dust can limit worker exposure and prevent workers from bringing contamination home to their families, especially young children."

OSHA's November 2015 follow-up inspection found that Pro Armament:
Overexposed workers to lead.
Did not monitor workers' exposure to lead.
Failed to train workers on respiratory and lead hazards.
Failed to provide protective clothing such as shoe covers.
Did not provide clean changing rooms or require employees to shower at the end of a work shift to prevent lead contamination.
Lacked housekeeping procedures to remove lead from surfaces such as cash registers and tables.

View current safety and health citations.

Pro Armament is a gun range and shop that sells firearms and accessories and also provides instructional classes.

The company has 15 business days from receipt of its citations and penalties to comply, request an informal conference with OSHA's area director, or contest the findings before the independentOccupational Safety and Health Review Commission.

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Lack of Enforceability of Fee Sharing Arrangments

A NJ Appellate Court ruled that an agreement to share fees between lawyers, not holding NJ Supreme Court Certification, was unenforceable without the informed consent of the client and written acknowledgement of the client and all participating attorneys.

“Viewing the facts in a light most favorable to plaintiffs, we accept LaPorta's representation that he informed the client that he would receive a referral fee for referring the client's case. Even so, plaintiffs concede that they failed to inform the client of Weiner & Mazzei's participation in the alleged fee-splitting arrangement, and failed to solicit the client's consent to Weiner & Mazzei's participation. Thus, there is no genuine dispute that plaintiffs failed to satisfy the requirements of R.P.C. 1.5(e)(2) by failing to fully notify the client regarding the parameters of the fee arrangement in this case. Likewise, there is no genuine dispute whether the client consented to the participation of 'all the lawyers involved[,]' as required by R.P.C. 1.5(e)(3).”

The Court cited R.P.C. 1.5(e) which sets forth the following requirements for the sharing of fees:

Except as otherwise provided by the Court Rules, a division of fee between lawyers who are not in the same firm may be made only if:

1. the division is in proportion to the services performed by each lawyer, or, by written agreement with the client, each lawyer assumes joint responsibility for the representation; and
2. the client is notified of the fee division; and
3. the client consents to the participation of all the lawyers involved; and
4. the total fee is reasonable.

WEINER & MAZZEI, P.C., and PHILLIP A. LAPORTA, ESQ., v. THE SATTIRAJU LAW FIRM, PC,, DOCKET NO. A–1079–14T3, (NJ App Div 2016) 2016 WL 2993123, Decided January 12, 2016.

Arkansas Supreme Court rules donning and doffing activities are on the clock

The Arkansas Supreme Court ruled that putting on and taking off work clothes is considered work and compensation should be paid for the time performed doing these tasks.


"We hold that the donning and doffing activities constitute compensable work under the AMWA, despite the custom and practice under the collective-bargaining agreement."

Click here to read Gerber Products v. Hewitt, 2016 Ark. 222. Decided May 26, 2016)

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Human exposure to carbon nanotubes and the carcinogenic consequences

As the application of carbon nanotubes (CNT) in consumer products continues to rise, studies have expanded to determine the associated risks of exposure on human and environmental health. In particular, several lines of evidence indicate that exposure to multi-walled carbon nanotubes (MWCNT) could pose a carcinogenic risk similar to asbestos fibers. However, to date the potential markers of MWCNT exposure are not yet explored in humans.


In the present study, global mRNA and ncRNA expression profiles in the blood of exposed workers, having direct contact with MWCNT aerosol for at least 6 months (n = 8), were compared with expression profiles of non-exposed (n = 7) workers (e.g., professional and/or technical staff) from the same manufacturing facility.

Significant changes in the ncRNA and mRNA expression profiles were observed between exposed and non-exposed worker groups. An integrative analysis of ncRNA-mRNA correlations was performed to identify target genes, functional relationships, and regulatory networks in MWCNT-exposed workers. The coordinated changes in ncRNA and mRNA expression profiles revealed a set of miRNAs and their target genes with roles in cell cycle regulation/progression/control, apoptosis and proliferation. Further, the identified pathways and signaling networks also revealed MWCNT potential to trigger pulmonary and cardiovascular effects as well as carcinogenic outcomes in humans, similar to those previously described in rodents exposed to MWCNTs.

This study is the first to investigate aberrant changes in mRNA and ncRNA expression profiles in the blood of humans exposed to MWCNT. The significant changes in several miRNAs and mRNAs expression as well as their regulatory networks are important for getting molecular insights into the MWCNT-induced toxicity and pathogenesis in humans. Further large-scale prospective studies are necessary to validate the potential applicability of such changes in mRNAs and miRNAs as prognostic markers of MWCNT exposures in humans.

Click here to read more: Shvedova AA, Yanamala N, Kisin ER, Khailullin TO, Birch ME, Fatkhutdinova LM (2016) Integrated Analysis of Dysregulated ncRNA and mRNA Expression Profiles in Humans Exposed to Carbon Nanotubes. PLoS ONE 11(3): e0150628. doi:10.1371/journal.pone.0150628

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NJ Supreme Court Hears Argument on Employer's Duty to Household Contact

An employer's duty to a employee's household contact was the focus of an oral argument recently before the NJ Supreme Court. The NJ Supreme Court reviewed the question, that was certified by the US Third Circuit Court of Appeals, to define the duty and its scope. The household contact, the fiance, subsequently spouse, suffered beryllium related disease causally related to the employee's toxic exposure.


The case arose out of a household contact's exposure to beryllium brought home on the employee's cloths. At the time of the exposure, 30 years ago, the household contact was the fiance of the employee.

"The United States Court of Appeals for the Third Circuit having certified to the Supreme Court the following question of law pursuant to Rule 2:12-1:
And the Court having determined to accept the question as certified."
Does the premises liability rule set forth in Olivo v. Owens-Illinois, Inc., 186N.J. 394, 895 A.2d 1143 (2006), extend beyond providing a duty of care to the spouse of a person exposed to toxic substances on the landowner's premises, and, if so, what are the limits of that liability rule and the associated scope of duty?

Three States have adopted the rule that the employer's duty extends to household contacts who are not spouses, ie. children and parents of the employee.

Click here to view NJ Supreme Court Video 4/25/2016  (Available for 30 days, then see below)
Click here for general information about accessing the NJ Supreme Court Video Archive

Case History (Google Scholar):
Schwartz v. ACCURATUS CORP., 118 A. 3d 347 - … - ‎NJ: Supreme Court
Schwartz v. Accuratus Corp., 7 F. Supp. 3d 490 - 2014 - ‎Dist. Court, ED
Schwartz v. ACCURATUS CORPORATION, 2014 - ‎Dist. Court, ED

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Passaic NJ distribution warehouse fined $112K for two dozen safety violations

OSHA cites Oaxaca Mexican Products for blocking fire exit, 20 other serious violations

Oaxaca Mexican Products, 100 8th St., Passaic, New Jersey was issued citations by the U.S. Department of Labor's Occupational Safety and Health Administration issued citations for one willful, 20 serious and three other-than-serious violations on May 3, 2016.


OSHA opened an inspection on May 3, 2016, in response to a complaint alleging that there were unsafe conditions in the facility, including blocked fire exits. Inspectors issued a willful citation after finding an exit door and route obstructed by locking devices that require special knowledge and tools to open in case of emergency. OSHA cited the company previously for the same type of condition on the same door.

• Serious citations were issued for the following: 
• Fall hazards. 
• Inadequate and improper exit signage. 
• Lack of machine guarding. 
• Improper spliced electrical cable. 
• Failure to have a written hazard assessment and a hazard communication program. 
• Lack of eye-wash facilities where employees use corrosive chemicals. 
• Lack of Material Safety Data Sheets. 
• Lack of training regarding hazardous chemicals used in the workplace. 

 "The fact that Oaxaca has again put its employees' lives at risk by not making sure a fire safety door was easily opened is completely unacceptable," said Lisa Levy, director of OSHA's Hasbrouck Heights Area Office. "In this day and age, providing employees with proper emergency exits is safety 101."

Proposed penalties: $112,700

The citations can be viewed at: http://www.osha.gov/ooc/citations/OaxacaMexicanProducts_1106331_1106942.pdf

The employer has 15 business days from receipt of its citations and proposed penalties to comply, request a conference with OSHA's area director or contest the findings before the independent Occupational Safety and Health Review Commission.

….

Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thompson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson-Reuters). For over 4 decades the Law Offices of Jon L Gelman  1.973.696.7900  jon@gelmans.com  has been representing injured workers and their families who have suffered occupational accidents and illnesses.

CMS Publishes Final Rule for MSP Conditional Payments Via Web Portal

This final rule, effective June 16, 2016,  specifies the process and timeline for expanding CMS' existing Medicare Secondary Payer (MSP) Web portal to conform to section 201 of the Medicare IVIG and Strengthening Medicare and Repaying Taxpayers Act of 2012 (the SMART Act).


The final rule specifies a timeline for developing a multifactor authentication solution to securely permit authorized users other than the beneficiary to access CMS' MSP conditional payment amounts and claims detail information via the MSP Web portal.

It also requires that CMS add functionality to the existing MSP Web portal that permits users to:

1. Notify us that the specified case is approaching settlement; 
2. obtain time and date stamped final conditional payment summary statements and amounts before reaching settlement; 
3. and ensure that relatedness disputes and any other discrepancies are addressed within 11 business days of receipt of dispute documentation.

Click here to read the Final Rule published May 17, 2016 (HTML)

Click here to read the Final Rule published May 17, 2016 (PDF)

Effective date: June 16, 2016

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Some medicines are just not for sick people: Fluoroquinolone

Obtaining fast and effective medical treatment after suffering and occupational accident or injury is important. Receiving the improper medication can made outcomes a lot worse The FDA advises restricting fluoroquinolone antibiotic use for certain uncomplicated infections and warns about disabling side effects that can occur together.

The U.S. Food and Drug Administration is advising that the serious side effects associated with fluoroquinolone antibacterial drugs generally outweigh the benefits for patients with sinusitis, bronchitis, and uncomplicated urinary tract infections who have other treatment options. For patients with these conditions, fluoroquinolone should be reserved for those who do not have alternative treatment options.

An FDA safety review has shown that fluoroquinolones when used systemically (i.e. tablets, capsules, and injectable) are associated with disabling and potentially permanent serious side effects that can occur together. These side effects can involve the tendons, muscles, joints, nerves, and central nervous system.

As a result, the FDA is requiring the drug labels and Medication Guides for all fluoroquinolone antibacterial drugs to be updated to reflect this new safety information. The FDA is continuing to investigate safety issues with fluoroquinolones and will update the public with additional information if it becomes available.

Patients should contact your health care professional immediately if you experience any serious side effects while taking your fluoroquinolone medicine.

Some signs and symptoms of serious side effects include: tendon, joint and muscle pain, a “pins and needles” tingling or pricking sensation, confusion, and hallucinations. Patients should talk with your health care professional if you have any questions or concerns.

Health care professionals should stop systemic fluoroquinolone treatment immediately if a patient reports serious side effects, and switch to a non-fluoroquinolone antibacterial drug to complete the patient’s treatment course.

Fluoroquinolone drugs work by killing or stopping the growth of bacteria that can cause illness (see List of Currently Available FDA-approved Fluoroquinolones for Systemic Use).

The FDA previously communicated safety information associated with systemic fluoroquinolone antibacterial drugs in August 2013 and July 2008. The safety issues described in this Drug Safety Communication were also discussed at an FDA Advisory Committee meeting in November 2015.

The FDA urges patients and health care professionals to report side effects involving fluoroquinolone antibacterial drugs and other drugs to the FDA MedWatch program, using the information in the “Contact FDA” box at the bottom of the page.

Will the future of workers' compensation be ADR?

As mandatory arbitration continues to be adopted in place of litigation, it remains to be be seen whether mandatory arbitration will replace costly and time consuming litigated adversarial hearings in workers' compensation. During the last two decades employers and insurance companies have fashioned contracts to include Alternate Dispute Resolution (ADR) proceedings to reduce costs and awards.


The future of workers' compensation programs is being challenged by both workers and employers as each side tries to maneuver for the best position in the changing market. Both sides seem unhappy with the "Grand Bargain" that was crafted in another era, the early 1900's. The European Model that the US program was fashioned after has long ago been rejected by those who enjoy living on the other side of "the pond."

Keeping a watchful eye on the Millennial Generation affords one an insight into what may be on the horizon. The NY Times reports today that even the "start-up generation" is now headed down the path to ADR.

"For start-ups — many of which began in Silicon Valley — the clauses can seem to conflict with professed goals of upending business as usual and being open with employees. Arbitration, by its very nature, is a secretive process that is often lopsided in favor of the employer. That secrecy, federal labor officials said, can allow widespread problems to persist because the process bars employees from sharing their experiences with others who might be in similar positions.

“They give their young workers Ping-Pong tables and take away their constitutional rights,” said Cliff Palefsky, an employment and civil rights lawyer in San Francisco.

Click here to read the entire article. 

Start-Ups Embrace Arbitration to Settle Workplace Disputes, NY Times 5/15/2016

Announcing the WorkersCompensation.com Best Blog Designees for 2016

WorkersCompensation.com, "the original and largest regulatory and compliance information center available for the workers' compensation industry," has announced the best blog designations for 2016:

"The blogs below were all nominated by citizens of the workers' compensation community. They were judged on several criteria. In addition to objective categories such as age of blog, frequency of posting and website traffic**, they were also assessed by an independent judging panel for content quality, value and timeliness. Designated blog category was determined by people nominating the blog. In the event of multiple nominations, the category selected by the majority of nominators was used.

"Congratulations to the winners, listed below in the order of their overall score:

---

Work Comp Roundup, Author Michael Stack - Category: Education

From Bob's Cluttered Desk, Author Robert Wilson - Category: National Issues

Managed Care Matters, Author Joe Paduda - Category: Medical Management

DePaolo's Work Comp World, Author David Depaolo - Category: National Issues

WorkersComp Insider, Authors Tom Lynch & Julie Ferguson - Category: National Issues

Workers' Compensation by Gelman, Author Jon Gelman - Category: Legal

The Official Medicare Set Aside Blog, Author Jennifer Jordan - Category: MSA/Settlements

Conference Chronicles, Author Varied - Category: Education

Florida Workers' Comp Adjudication, Author David Langham - Category: Legal

Work Safe, Texas, Author Varied - Category: Carrier

Franco Signor MSP Blog, Author Varied - Category: MSA/Settlements

Workers' Comp Zone. Author Julius Young - Category: Legal

MedicareInsights Blog, Author Rafael Gonzalez - Category: MSA/Settlements

Alabama Workers' Compensation Blawg, Author Varied - Category: Regional/State Specific

Evidence Based, Author Michael Gavin - Category: Medical Management

Mark Pew, Author Mark Pew - Category: Medical Management

Louisiana Comp Blog, Author Varied - Category: Regional/State Specific

Sedgwick Connection, Author Varied - Category: TPA

New Jersey Workers' Comp Blog, Author John Geaney - Category: Regional/State Specific

The Return to Work Blog, Author Varied - Category: Carrier

Simply Work Comp, Author Varied - Category: Safety/Prevention

MEMIC Safety Net, Author Varied - Category: Safety/Prevention