(c) 2016 Jon L Gelman, All Rights Reserved.

Thursday, September 22, 2016

FL-Stahl : SCOTUS Petitioned for Certiorari - A Constitutional Challenge to the Workers' Compensation System

The United States Supreme Court was petitioned in the matter of Stahl v Hialeah raising constitutional issues in the present workers' compensation system in Florida. The Florida program mirrors trending aspects of other state programs that have also been questioned on constitutional grounds.

No. 16-98
Daniel Stahl, Petitioner
Hialeah Hospital, et al.

Docketed: July 21, 2016
Lower Ct: District Court of Appeal of Florida, First District

Case Nos.: (1D14-3077)
Decision Date: March 25, 2015
Rehearing Denied: April 14, 2015
Discretionary Court
Decision Date: April 28, 2016
~~~Date~~~ ~~~~~~~Proceedings  and  Orders~~~~~~~~~~~~~~~~~~~~~
Jul 19 2016Petition for a writ of certiorari filed. (Response due August 22, 2016)
Aug 3 2016Order extending time to file response to petition to and including September 21, 2016.
Aug 16 2016Brief amicus curiae of Workers' Injury Law & Advocacy Group filed.
Aug 22 2016Brief amicus curiae of Florida Chapter of National Employment Lawyers Association filed.
Aug 22 2016Brief amici curiae of Police Benevolent Association (PBA), et al. filed.

Case Below: Florida Supreme Court DocketCase Number: SC15-725 - Active DANIEL STAHL vs. HIALEAH HOSPITAL, ET AL.Lower Tribunal Case(s): 1D14-3077, 04-022489

Updated: Fri 9/22/.2016

Related Articles:
Apr 8, 2016 ... After hearing the argument this week in Stahl v Hialeah Hospital one comes away with ambiguity over the issues before the Court.
Apr 5, 2016 ... Mr. Stahl, a nurse who was injured while working at Hialeah Hospital, filed a claim for benefits under Florida's workers' compensation law but ...
Jul 28, 2011 ... Wednesday, April 6, 2016 Daniel Stahl v Hialeah Hospital, et al., SC15-725 statewide – Video now available of the oral argument Mr. Stah.
Aug 15, 2008 ... Wednesday, April 6, 2016 Daniel Stahl v Hialeah Hospital, et al., SC15-725 statewide – Video now available of the oral argument Mr. Stah.

Tuesday, September 20, 2016

Hot Topics in Workers' Compensation Law Seminar 2016 - Available from NJICLE

Hot Topics in Workers' Compensation Law Seminar

Wed. Sept. 14, 2016  Ÿ Law Center, New Brunswick 5-8:35p

This year’s program will focus on professional and ethical responsibilities concerning disclosure and protection of client confidential information throughout the course of discovery and litigation, with specific emphasis on the pretrial conference.

The seminar +reviews the Professional Code of Responsibility and it’s integration with the Rules and procedures of The Division of Workers' Compensation, and The Health Insurance Portability and Accountability Act (HIPAA). 

NASI & USDOL: State of Workers' Compensation Forum Oct 5 2016

The Department of Labor and the National Academy of Social Insurance invite you to the State Workers’ Compensation Forum featuring remarks from Secretary of Labor Thomas E. Perez, William J. Arnone, CEO of the National Academy of Social Insurance, and Acting Commissioner Carolyn W. Colvin, Social Security Administration.

Workers' Compensation "Demise of the Grand Bargain" Seminar Papers Online

The 2016 workers' compensation "Grand Bargain" seminar sponsored by the Pound Civil Justice Institute has posted the draft seminar papers online in PDF format and are available for download. The 2016 Academic Symposium is entitled, "The Demise of the Grand Bargain: Compensation for Injured Workers in the 21st Century."

Sunday, September 18, 2016

Zika: The Next Compensable Infectious Disease

Workers' Compensation insures for the consequences of infectious diseases arising out of and in the course of employment. Is the system ready for a potential onslaught of Zika claims?

The NJ Supreme Court in establishing compensability in an occupational disease cited Justice Learned Hand, “Few adults are not diseased … an infection mastered, though latent, is no longer a disease, industrially speaking, until the individual's resistance is again so far lowered that he succumbs.” Bober v. Independent Plating Corp., 28 N.J. 160, 145 A.2d 463 (1958).

Saturday, September 17, 2016

Senator Boxer Calls for Expedited TSCA Asbestos Evaluation

Senator Barbara Boxer (D-CA), Ranking Member of the Environment and Public Works Committee, sent a letter today to Gina McCarthy, the Administrator of the Environmental Protection Agency (EPA), urging the Agency to move quickly to act on all forms of asbestos under the new Toxic Substances Control Act (TSCA).  EPA is required to select 10 chemicals that will be evaluated and then regulated if they are shown to present unreasonable risks. The full text of the letter is below.

August 26, 2016

Dear Administrator McCarthy:

I am sure you share my strong interest in maximizing the success of the new Toxic Substances Control Act (TSCA) and are working to identify positive early actions that demonstrate the Agency’s commitment to bold and effective implementation.

The first important decision EPA must make under the law is to select the initial 10 chemicals that will be evaluated and then regulated if they are shown to present unreasonable risks.  This decision must be made by mid-December of this year.  The chemicals selected will drive EPA’s agenda for the next several years. To build confidence in the agency’s ability to deliver meaningful results for our children and families, EPA must consider all forms of asbestos in this initial list of chemicals it acts on.

In 1989, EPA issued a comprehensive rule under TSCA banning and phasing out the major uses of asbestos.  Despite the extensive record compiled by the agency, the Fifth Circuit Court of Appeals overturned the rule.  The court’s decision paralyzed EPA’s existing chemicals program for the next two decades.  Asbestos became a poster child for the inadequacy of the law and a major impetus for TSCA reform.  As President Obama said when he signed the TSCA reform bill into law, “the system was so complex, it was so burdensome that our country hasn’t even been able to uphold a ban on asbestos….”

During the development of TSCA reform legislation, numerous members of Congress cited asbestos as an example of why the law must be revamped and emphasized that the new TSCA legislation would remove the roadblocks that stymied EPA’s first attempt to regulate asbestos.  Congress was also clear in the recently-passed legislation that regulating asbestos should be one of EPA’s top priorities -- the bill directs EPA to give priority to chemicals like asbestos that are known human carcinogens and have high acute and chronic toxicity.

Now that the impediments in the original TSCA law are gone, completing the job started by EPA in 1989 would send a strong signal that the new law can be effective in addressing the most dangerous chemicals in commerce.

The evidence regarding the dangers of asbestos is overwhelming. As EPA found in its 1989 rulemaking, “[it] is well-recognized that asbestos is a human carcinogen and is one of the most hazardous substances to which humans are exposed in both occupational and non-occupational settings.”  OSHA has similarly said it is “aware of no instance in which exposure to a toxic substance has more clearly demonstrated detrimental health effects on humans than has asbestos exposure.” OSHA has also emphasized that “[t]here is no "safe" level of asbestos exposure for any type of asbestos fiber [and] [a]sbestos exposures as short in duration as a few days have caused mesothelioma in humans.”

Asbestos continues to exact a high toll in disease and death on Americans.  According to the Asbestos Disease Awareness Organization (ADAO), the estimated annual number of asbestos-related disease deaths is nearly 15,000 in the U.S., including nearly 11,000 deaths from lung cancer.

Though asbestos production has ceased in the U.S. and its use has generally declined, significant imports for a range of applications persist and exposures continue to occur with alarming regularity.  According to a detailed study by the Environmental Working Group, from 2006 to 2014, 23 ports on the Gulf of Mexico, West Coast and Eastern Seaboard received more than 8.2 million pounds of raw asbestos, as well as hundreds of shipments of hazardous asbestos waste and products made with asbestos.

Similarly, in its annual report on U.S. mineral importation and use, the United States Geological Service states that in 2015:

“Asbestos consumption in the United States was estimated to be 400 tons, based on asbestos imports through July 2014.  The chloralkali industry accounted for an estimated 88% of U.S. consumption.  The remainder was used in coatings and compounds, plastics, roofing products, and unknown applications.”

The World Health Organization (2006) has called for an end to the use of all types of asbestos as the most effective way to eliminate asbestos-related diseases.  From the European Union to the Persian Gulf, from industrial states like Japan to Africa’s developing economies, 56 nations have followed this recommendation and banned asbestos (with limited exceptions), according to the International Ban Asbestos Secretariat.

The combination of well-documented, widespread and serious health effects and ongoing use and exposure provides a strong basis for EPA to act quickly on asbestos.  With the new tools provided by the Frank R. Lautenberg Chemical Safety for the 21st Century Act, the U.S. now has the ability to be a global leader and join the many other nations that have acted to address the harms posed by asbestos.  EPA should seize this opportunity by including asbestos in the first 10 chemicals that it acts on under the new law.

I look forward to learning more about your plans for asbestos.


Barbara Boxer
Ranking Member

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

Related Articles:
Nov 7, 2013 ... The Asbestos Disease Awareness Organization (ADAO) was honored to testify on Wednesday, September 18, 2013 at 2:00 PM EDT before the ...
Sep 11, 2014 ... It may come as a surprise to those not familiar with the Toxic Substances Control Act (TSCA) – the primary law that regulates chemicals used in ...
Jan 29, 2010 ... The Toxic Substances Control Act (TSCA) was enacted in 1974 and has not kept up with the time. Of the 80,000 chemical substances in use it ...
Oct 14, 2013 ... TSCA was passed more than 30years ago and is grossly out of date. ADAO has been a stakeholder in discussions with Congressional ...

Saturday, September 10, 2016

Tobacco an Occupational Hazard: The Case Against Cigarette Sales by Pharmacies

Smoking continues to be a two edged sword in workers' compensation claims. Smokers in the workplace cause serious and sometimes fatal consequences to both themselves (synergistically with other toxic substances in the workplace) and their co-workers (environmental tobacco smoke exposures). On the flip side is the employer's defense that the smoking habit is not work-related and a pre-existing or co-existing disease caused by habit and not compensable. Nevertheless, public opinion continues to trend against permissible smoking and for the sale of cigarettes. Today's post is shared from :