Articles Posted in Worker’s Compensation

Our Atlanta workplace accident lawyers have been following the story of Smiley Plaster Co, which has been cited by the US Department of Labor’s Occupational Safety and Health Administration (OSHA) for unsafe working conditions. Smiley Plaster Co. is a stucco and masonry construction company in Twin City.

Scaffolding.jpgOn September 20, 2013, a 42-year-old worker for Smiley fell off a scaffolding at a college dorm at East Georgia State College and died. He was applying stucco at the time. Due to this worker’s death, OSHA investigated Smiley and cited Jack Smiley, the head of Smiley Plaster, for five safety violations, which includes wilfully violating the law. Robert Vazzi, the head of OSHA in Savannah, said, “A worker died after the employer knowingly failed to provide a properly built scaffold system to protect employees from fall hazards. Falls are the leading cause of fatalities in the construction industry. Employers must ensure their workers are protected.” There were 269 fall related fatalities in construction accidents in 2012, out of a total 775 construction related fatalities that year. Due to these dangers, OSHA has a fall prevention campaign developed in partnership with the National Institute of Occupational Safety and Health and NIOSH’s National Occupational Research Agenda program.

A wilful violation is one committed with intentional, knowing or voluntary disregard for the law’s requirements or plain indifference to worker safety. Smiley’s wilful violation was for a failure to provide fall protection for workers on scaffolds higher than ten feet. This violation has put Smiley on the Severe Violator Enforcement Program, which inspects employers who have shown indifference to the legal safety obligations for their workers.

Our Atlanta workplace accident lawyers read news about Dupont Yard, Inc, a forest products manufacturer in Georgia, being cited by the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) for unsafe working conditions at a facility in Homerville.

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Dupont Yard manufactures posts for agricultural projects and highway construction. It also produces timber and wood chips. And this is not the first time Dupont has been cited for worker safety violations – the company has been cited for 39 violations in four previous inspections. The latest inspection found more violations.

Three of the new violations were classed as “wilful.” A “wilful” violation is a violation committed with intentional, knowing, or voluntary disregard for the requirements of the law, or with plain indifference to the health and safety of the workers. Of these, workers were exposed to hazards from Dupont’s failure to implement basic safety procedures to prevent machines from starting or moving during maintenance. This can cause amputation of limbs or even death. OSHA also found that there were caught-in and crushing hazards from unguarded rotating chains and sprocket wheels. OSHA found electrical hazards, as well. In all, these violations carry a penalty of $171,600. In addition, workers were also found to have been exposed to 17 “serious” health and safety violations, many relating to the failure to implement a lockout/ tagout program properly. This includes not providing workers with training and locks for equipment prior to maintenance. Also, accumulated wood dust greater than 1/8 of an inch was found. “Serious” violations are those where the employer knew or should have known that there was a substantial probability that death or serious physical harm could result from a hazard. These violations have penalties totaling $77,770.

This blog has discussed the workplace accident problems of the company Norfolk Southern Railroad Co. before (see a previous post here). This week, the Supreme Court of Georgia weighed in on the case of a railroad conductor who was injured in a train accident in Dodge County.

The case is that of William Zeagler who is trying to sue Norfolk Southern for his injuries. In July 2007, Mr. Zeagler, a veteran conductor, was working when the train’s brakeman and engineer realized that a large truck filled with logs wasn’t going to stop at the railroad crossing just ahead of the train. The train was going 35 miles an hour at the time and didn’t have enough time to stop either. As the train was about to hit the truck, Mr. Zeagler felt panicked and unsure what to do, so he tried to jump from the train, tripped over the brakeman, and hit his back and tailbone. Mr. Zeagler has not been able to work since then due to his injuries. The driver of the logging truck died in the crash.

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After the crash, Mr. Zeagler sued Norfolk Southern in Bibb County Superior Court. His lawsuit alleges that Norfolk Southern should have given him training on the proper procedure during an accident, such as sitting and staying low to the floor. He claims he was never trained in emergency procedures. This is an especially important claim since Norfolk Southern has a record of about one accident per day! But the lower court determined that Mr. Zeagler could not sue Norfolk Southern because the company had no duty to provide training and determined there was no evidence that training could have prevented the injuries in the case. The Court of Appeals reversed that decision.

In April, our Atlanta worker’s compensation lawyers read about how the Georgia legislature passed a new worker’s comp law. The law was passed by the House in February and the Senate in March, and was signed by the Governor on May 6. Just this week, on July 1, the law went into effect. The law is House Bill 154 and it makes a number of changes to the state’s worker’s comp law that may be important for future workers injured on the job.

One major change in the new law is that it limits the length of time certain worker’s comp claimants can receive medical care for their injuries. The new limit for some injuries is 400 weeks. Previously, the law allowed for all injuries to continue to be treated as long as required, even if that meant treatment for the rest of the claimant’s life. Medical benefits for worker’s comp cases include things like surgery, hospital care, and other treatments prescribed by a doctor; this also includes prosthetics and other devices that may have been destroyed in the workplace accident. The treatments covered must be found to be “reasonably required” by the State Board of Worker’s Compensation, and that these treatments will help the injured worker be cured, get relief, or allow him or her to work again.

Now, from July 1, there is a new step to determine what type of injury is involved in the worker’s comp claim. Only if the injury is classified as “catastrophic” will the claimant be able to get medical treatment for the injury as long as necessary, even if lifetime treatment is required. All other non-catastrophic injuries are subject to the 400 week limitation. A list of injuries that do qualify as catastrophic is included in the law. These are: spinal cord injuries with paralysis; injuries requiring amputation of an arm, hand, leg, or foot; brain injuries that cause serious disturbances in sensory, motor or communication functions; second or third degree burns over 25 percent or more of the body; third degree burns over five percent of the face or hands; and total or industrial blindness. There is a final category to include other non-foreseeable catastrophic injuries, which covers injuries that prevent the claimant from doing his or her previous work and any other substantially available work for someone with similar qualifications.

Our Atlanta worker’s compensation attorneys have heard about the problems with Pilgrim’s Pride Corp. in Georgia, especially after a worker died last year. However, we were still worried to see the number of violations and worker safety problems that were reported on recently. It has important implications for Georgia and others as Pilgrim’s Pride employs 38,500 people in 12 states, Puerto Rico, and Mexico.

The problems are at the company’s chicken processing facility in Canton, Georgia, where a worker was killed in October 2012. Employee Christopher Chin, a 37 year old Canton resident, died when he was caught in a machine at that facility. At the time, he was trying to remove a piece of cardboard from the machine, called a “hopper,”,which did not have a safety guard to keep employees out. Bill Fulcher, from OSHA’s Atlanta-East Area office, said, “Establishing safety and health programs that identify and remove hazards before a worker gets injured or sick goes to the very core of providing a safe and healthful workplace. In this case, a tragic loss resulted from equipment that could easily have been guarded.”

After Mr. Chin’s tragic death, the US Department of Labor’s Occupational Safety and Health Administration (OSHA) investigated the Canton facility and issued a report in April. The failure to have a barrier on the machine where Mr. Chin died, which may have contributed to his death, was one of eight violations cited at that facility. Along with that violation, three others were deemed “serious.” A serious violation is one when there is a substantial probability of death or serious harm from the particular hazard about which the employer knew or should have known. Lesser violations are those that relate to health and safety but would probably not cause death or serious harm. Other than the missing safety barriers, the other serious violation was that the company failed to conduct annual periodic inspections of energy control procedures since 2005. And some of the violations were repeat violations, which were violations cited by OSHA at a previous inspection in 2011. One of the repeat violations was that the electrical cords didn’t have an effective strain relief device. Another was failing to include the process needed for the removal of locks and start-up following lockout.

The Norfolk Southern Railway Co. has had several expensive decisions handed down against it in the past few years by the Occupational Safety and Health Administration (OSHA). Recently, the company was ordered to pay $1.1 million to three employees, one in Indiana and two in Pennsylvania, because OSHA found that they had been injured at work and retaliated against when they reported their injuries. The Indiana employee, who was injured when a sliver of metal entered his eye, was awarded $438,000 in punitive damages, back wages, benefits and other costs and ordered to be reinstated to his job at his proper seniority level with all the vacation and sick leave he would have earned had he been working. The company was ordered to pay the other two $648,000 for the same costs after injuries in a traffic accident. These are only three three examples as Norfolk Southern has paid numerous claimants for retaliation claims after workplace injury reporting over the past few years. Some of these cases settled, but some have had to go through the whole process for the employee to receive compensation. Just this month, an OSHA spokesperson said, “The company continues to retaliate against employees for reporting work-related injuries, and these actions have effectively created a chilling effect in the railroad industry.”

As Georgia work accident attorneys, we know that these work accident retaliation cases have had an impact in our state as well. Last November, an incident with Norfolk Southern occurred in Savannah. The worker in question, whose name was not released because of a Department of Labor policy on whistleblowers, was fired from his job on November 5, 2009. OSHA found that he was forced to sign a “leniency waiver” by the company on March 30, 2010 and then he returned to work six months later on September 20. OSHA stated that this employee’s investigative hearing was “severely flawed and intentionally designed to support its decision to terminate the worker.”

OSHA ordered Norfolk Southern to pay that employee more than $288,000 for this alleged retaliation for his work injury claim. Norfolk Southern’s actions violated the whistleblower provisions of the Federal Railway Safety Act, according to OSHA. The company has challenged the ruling. Robin Chapman, their spokesman, wrote an email saying, “OSHA’s investigation in this matter is flawed and one sided because, to date, Norfolk Southern has not been permitted to question the employee under oath or cross examine any of his witnesses. We disagree with the finding and will appeal to an administrative law judge.”

Our Atlanta workers’ compensation attorneys always watch new Georgia Supreme Court rulings closely, especially when they might possibly affect our clients. Last week, the Supreme Court issued its decision in Arby’s Restaurant Group Inc. et al. v. McRae, which held that employers may obtain health information from an injured worker’s treating doctor without that worker’s presence or his/her attorney’s presence. This overturned the appellate court’s ruling that injured workers are not required to allow this in order to obtain workers’ compensation benefits.

The McRae case is about Laura McRae, an Arby’s employee who accidentally drank a cup of lye in a break room in 2006. She suffered third degree burns to her esophagus, and Arby’s paid workers’ compensation benefits. As part of her claim, Ms. McRae signed a form allowing access to her medical records. Her doctor then issued a report saying she had attained maximum medical improvement and she still suffered from 65 percent permanent partial disability. After obtaining the report, Arby’s tried to meet with the doctor alone, but the doctor refused to do so without Ms. McRae or her attorney’s consent.

Arby’s continued down this path, and filed a motion for an order from the Georgia State Board of Workers’ Compensation forcing Ms. McRae to sign a form allowing the ex-parte communication between the doctor and Arby’s counsel. An administrative law judge agreed with Arby’s, as did the trial court. However, the appeals court reversed the original rulings, and then the case went before the Supreme Court.

Workers compensation lawyers know that whatever the cause of an accident, on the job injuries can be a life altering experience, and the injured party often needs financial help to get back on his or her feet. This is why workers compensation exists. Those working in this field also know insomnia is the cause of many of these workplace accidents – a serious problem. A recent study published in the journal Archives of General Psychiatry in October has linked insomnia to as many as 274,000 workplace errors and accidents each year. These accidents cost approximately $31.1 billion all totaled.

More than 10,000 people were surveyed for the study, the America Insomnia Survey, according to news reports. The participants were asked about workplace accidents “that either caused damage or work disruption with a value of $500 or more” or “that cost your company $500 or more.”

While the connection between insomnia and workplace accidents sounds fairly obvious, before this study no comprehensive scientific data existed. This is the first comprehensive study done in the U.S. on the effects of insomnia on the workplace. Prior to this, there had been only two relatively small related studies conducted on the topic by French researchers.

Below are certain things that you can do to increase the success of your worker’s compensation case:

1. Report the injury.

If you don’t report your injury while at work, it allows insurance companies to question whether the injury occurred there–or if the injury even happened at all. It also gives them an opportunity to delay your workers compensation benefits and medical treatment while they investigate the claim. If you get hurt at work, tell a supervisor. If your company has an incident or accident report, fill it out, give it to the proper individual and make sure to keep a copy.

2. Don’t rely on your employer to take care of you.

Workers compensation is about protecting your future ability to earn a living for your family and get the medical treatment you need for your injuries. Even well meaning employers don’t know the small details of workers compensation laws. Those employers can ruin your workers compensation case by giving you incorrect advice or by not filing the proper forms on your behalf.

3. Tell your doctor you got hurt on the job.

Many people go to the emergency room and tell the doctor “I hurt my back” or “I fell and hurt my knee.” This helps the doctor diagnose your injuries, but does help your workers compensation claim. If your injury happened at work, say so. Tell the doctor, nurse or anyone taking a history EXACTLY what happened and be very specific. When insurance companies get medical reports that don’t indicate that you told the doctor you got hurt at work, they will delay (or in some cases deny) your claim.

4. Don’t go to your employer’s suggested doctor.

If you’ve gotten hurt on the job and you reported it to your supervisor, you’ve done the right thing. But, if your employer says, “we have a company doctor (or a worker’s compensation doctor, or a worker’s clinic) and you have to go see that doctor,” DON’T DO IT. Every injured worker is entitled to proper medical care from an appropriate specialist. In Georgia, you have the right to be treated by at least two physicians from the employer’s posted panel of approved doctors. This information should be located in the break room. You can also request it from your supervisor or Human Resources Department.

5. File forms with the Georgia State Board of Workers Compensation.

If you gotten hurt on the job, you’ve reported it to your supervisor and you’ve chosen a doctor that you’re comfortable with, you’re on the right track. But you still need to file your claim with the State Board of Workers Compensation within a specified time frame in order to protect your legal rights. A qualified worker’s compensation attorney can ensure that you file the correct forms within the correct time frame so that your worker’s compensation claim is not delayed or–even worse–denied.

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