Employers and contractors refuseed to voluntarily provide relief and have fought simple, inexpensive ways to help the worker in the heat like available drinking water and shade.

In August 2010 Cal/OSHA adopted some much needed but still inadequate heat relief for a worker in the hot summer sun.

85+SHADE UP: The contractor must have shade available close to the work.

95+HIGH HEAT WARNING: Contractor’s supervisor available to observe workers, and specifically supervise for signs of heat illness,take action and available shade, and water. This requires extra heat precautions.

WATER: Easily available, fresh, pure, and cool at all times. This is an important easy way to avoid heat illness. Most Americans are dehydrated. Sitting at home watching TV all day the normal body uses over 10 cups of water. Coffee and alcohol dehydrate your body and don’t count. At a minimum follow the 8 oz X 8 times a day water rule. Check with your Dr. for your weight, age, and height water requirements.

TRAINING: Increased training for awareness and precautions.

The new standards are inadequate but a step in the right direction. Bottom line here is that you must be aware of the heat to take the precautions available including shade, water, and rest.

“WHO BENEFITS?”  We know it wasn’t the injured worker because he gets less, much less.  Who did benefit from the denial of benefits to legitimately injured workers in California?  (“Blood Money”)

The Politician:  Politicians saw an issue that would bring in campaign contributions and votes.  There aren’t enough construction workers who vote and would contribute to campaigns so you are expendable.  Insurers, developers, and contractors will contribute generously to a politician that fattens their bottom line.  The voting public has been inflamed by misleading and lying propaganda that the WC system is broke and abused by the workers and lawyers.  POLITICIANS BENEFIT FROM REDUCED BENEFITS.

The WC Insurer:  Insurers profits have dramatically increased as benefits to workers have dropped.  WC Insurers in California are making record profits while injured worker payments are the lowest in the nation.  In the recent past insurers profits excceded workers’ benefits.  California insurers are more than triple the profits earned in other states.  California’s Workers’ Compensation Fund reported net income for 2009 increased ninety one percent (91%). These profits will increase signicicantly in the future.  CALIFORNIA’S WORK COMP INSURERS BENEFIT FROM REDUCED BENEFITS TO WORKERS.

The Contractors/Employers:   “IT’S THE EMPLOYEE FRAUD, STUPID!”  Blaming workers’ fraud and illegal aliens taking jobs makes easy headlines and the accused are silenced.  However, the real fraud in Workers’ Compensation is Contractor/Employers’ underreporting payrolls, misreporting their employees, and hiring illegal aliens.  A major UC Berkeley study found there was a massive problem of employer fraud in Work Comp Insurance.  The employer cheats, pays lower premiums, and the loss is passed on to the consumer via the insurer.  The illegal alien is employed by the law breaking employer.  Reducing worker benefits, hiring illegals, misreporting fraud and blaming the worker makes good business sense.  THE CONTRACTOR/EMPLOYER BENEFITS FROM REDUCED BENEFITS TO WORKERS. 

The Economy and Consumer:  The economy is in the tank because of various business fraud practices and a global depression.  The California economic crisis was not caused by workers’ fraud or too generous benefits.  Contractors and employers laid off the loyal, hard working employees when their profit margins were shrinking.  THE ECONOMY AND CONSUMERS DID NOT BENEFIT BY THE REDUCTION IN WORKER BENEFITS.

The big winners for the “blood money” savings in reducing workers’ compensation benefits are politicians, insurers, and contractor/employers.  The big losers for reduction in workers’ benefits was and continues to be the injured worker, consumers, and economy. 

The only way an injured worker can receive justice in California is to file a civil lawsuit.  And don’t feel sorry for the insurers who might have to pay out some of the billions in premiums they collected.  Part of those premium dollars were taken from your benefits.

The more complex catastrophic case that we have been successful in is where the general contractor, another subcontractor, employer and injured worker may all be partly at fault.  Here is a real life example: 

Rough Carpentry Subcontractor on a building is responsible to install vent shaft covers at the site.  The general contractor is responsible to inspect and warn of dangers.  The metal grate subcontractor removes the covers to measure the opening but doesn’t properly re seat the cover.  A month later a surveyor is directed by his party chief to stand on the cover for a measurement.  The surveyor steps on the concealed hazard and falls 22′ breaking bones in both legs that cripples him for life and denying him of his 30 year livelihood of surveying.  Who is responsible civilly?  The general contractor?  Rough Carpentry Sub?  Metal Grate Installer?  Employer Party Chief?  Injured Worker?

The answer is all the above.  After pursuing Workers’ Comp, filing a civil suit, taking 22 depositions, declaring experts, and defeating a request to throw the case out of cour, the case settled with all parties contributing in the amount of $2Million.  It was discovered through those depositions that the general contractor was sited by Cal OSHA and knew about the concealed hazard.  The rough carpenter sub knew of the danger but failed to do anything about it.  The fact that the employer had the general duty to provide a safe work place and the injured worker could have discovered it did not prevent a just civil award for all damages.  Just a few examples of our recent success in civil work place injuries are:

Injury                                  WC Award                             +Civil Award Obtained

Carpenter Falls/Wet Roof    $150,000                               $5,000,000

Electrician Electrocuted       $160,000                               $2,500,000 to wife 

Surveyor Fall Through Vent   $75,000                               $1,925,000 to worker

The most important part of your civil case is to get us involved as soon as possible after the injury.  Our investigator will preserve evidence and take pictures and obtain statements from witnesses.  Evidence can only be preserved if it is obtained quickly.  Crucial pictures, witnesses, accident reports, inspection reports, daily journals, progress reports all tend to disappear with the passage of time.  It is important to get an experienced civil litigator involved soon.  Do not concern yourself with anything other than healing, truthfully cooperating with authorities and getting the case in competent hands quickly.  The sooner you do, the quicker results will occur.  Remember, justice delayed is justice denied.

Next Week Blog:  Blood Money:  Where Did the Savings from Reduced Worker Benefit Money Go?

The medical benefits of physical therapy, occupational therapy and chiropractics have been cut.  Vocational Rehabilitation has been eliminated because when you are so injured you can’t return to your job, they are not going to retrain you.  There is no award for pain and suffering.  THE INSURER/EMPLOYER CHOOSE THEIR OWN DOCTOR FOR YOU, NO CHOICE FOR THE WORKER, AND THEY LIMIT VISITS.

California rates among the highest states for standard of living but the lowest for injured workers’ benefits.  Compare California WC Awards to other states and to Civil Case Value:

     INURY          CA WC AWARD     NAT AVG WC AWARD              CIVIL AWARD

     TOE OFF                    $660                                 $4,974                            $87,000

     HEARING LOSS     5,280                                 30,655                                61,000

     FINGER  OFF          8,415                                    21,621                            120,000

     EYE OUT                17,714                                   74,558                            265,000 

     THUMB                   21,010                                   39,014                            254,000

     FOOT OFF              28,820                                   80,977                           442,000

     LEG OFF                 61,435                                  114,522                           671,000

     DEATH                160,000                                    200,000                        3,236,000

The only way for you to protect yourself and family and receive a fair, just award is to file a WC case and also file a companion civil complaint against the negligent person/party that caused your injuries.  Choose your own doctor in a civil case and no limits.  Full compensation for lost wages.  All reasonable medical care is compensable.  Pain and suffering is a standard civil award for personal injuries.

Call us to find out your legal rights to fully compensate you for your work related injuries. 

Stay Tuned for Next Week’s Post:   THE CIVIL CASE:  Justice for the Injured Worker

A forklift driver carrying a load of pallets runs into you, a water bottle vendor, breaking your hip, leg, and causing serious and permanent brain damage.  
Are you and your family limited to a small Workers’ Compensation recovery?

Answer:  No.  You will be able to recover Workers’ Compensation from your employer and sue the forklift driver and his company in civil court for a full recovery.  Most companies have liability insurance for this.

You demand the forklift operator take a drug test immediately.  Result?

Answer:  Probably.  It is unclear if you can make the demand.  If the forklift driver signed a written consent to submit to drug testing as a condition of employment, then refusal to his employer could be grounds for termination.   The refusal probably doesn’t come into evidence in a civil case. 

The forklift driver consents to the drug test and is positive for marijuana (THC)?  Result?

Answer:  Depends.  The forklift driver has a prescription for medical marijuana to relieve chronic arthritic pain.  THC will appear on a test 30 days after use.  There is no test, as in alcohol, to determine the level of THC for impairment. 

The drug testing consent states that any level of drugs including PCH is grounds for termination?  Result?

Answer:  Unknown:  Absent some impairment testimony termination is in doubt.   Absent impairment testimony the presence of THC would probably not be admissible in the civil action depending on the jurisdiction.

The injured water truck driver tests positive for THC.  Recovery denied? 

Absolutely not.  This office has had two similar cases.  We argued to exclude the THC  test and it was not admitted.   The two cases settled for a total of $7M when THC was found in a drug screen at the hospital.  However, there was no level of impairment testimony and it was not admissible to the jury.

Advanced Hypothetical:  The forklift employee  informed his employer previously of the medical marijuana and gave a copy of the prescription that appeared in his personnel file.  What do you think?

Law School Exam:  The forklift driver had a previous positive test for TCH OTJ after reckless driving of forklift.  What happens next?

There are pending cases of workers with medical marijuana prescriptions litigating against disciplinary actions for medical marijuana use.  The use of medical marijuana pits conflicting interests of a least four groups against each other:

1.  The medical marijuana user-worker who has medical needs, political interests and constitutional rights of privacy,

2.  The non user-worker whose safety and constitutional rights of association,

3.  The government agencies such as OSHA obligated to enforce a drug free work environment.

4.  The employer responsible for workplace safety without violating medical rights,

Politicians who flirt with voters over medical marijuana legalization and pander to the medical marijuana users or conservatives against any legalization should be forced to deal with the harder issues and consider the safety and rights of all workers in the work place.

What do you think?  Is this any different than a forklift driver taking another prescription drug that causes a drowsy accident?  Please write and tell us and tell us if you are a worker, employer, user, nonuser, etc.  No personal info please.

In Texas OSHA cited a contractor for the fall of two workers at Cowboys Stadium.  The two workers were performing maintenance work on a roof covered with frost when they slipped, fell, and slid the length of a football field into a gutter.  They were knocked out, broke a leg and suffered back injuries as a result of the fall.

Predictably the press and contractors blamed the workers who were walking and working as carefully as possible.  The premises was in a dangerous condition for workers and/or anyone walking there.  The contractors, stadium, engineers, and/or architects operating without proper guarding should be questioned about the lack of safety devices in a civil setting.

1. A drywaller was working inside a major rennovation and forced to walk up temporary scaffolding resembling a water falls to access work. In an attempt to avoid Worker’s Comp Coverage the foreman, absent from the jobsite at the time of injury, alleged the worker intentionally ‘staged’ a fall permanently rendering him cripple from a devastating knee injury, was stealing drugs from a coworker’s lunch, and had a nonexistant prior injury according to his foreman. Result: Full benefits plus civil settlement.

2. A surveyor who stepped on a covered, unmarked, unsigned vent cover to make a mark, and then fell 22 feet breaking bones in both legs, heel, and tibia permanently disfiguring him was just stupid, negligent, frolicking, and careless by stepping on the concealed hazard testifed the party chief who told him to step there. Result: Full benefits and $1.85M Civil Award.

3. A young electrician, inadequately trained fresh out of the marines, is electrocuted when unknown to him the pole he was told to climb was in fact receiving voltage from two different sources from two different directions. The foreman who told him to climb the dangerously energized pole alleged the decedent was wreckless and suicidal. Result: Full benefits and $2.5M Civil Award to his bride of two years.

4. A carpenter forced to work in the rain or quit slips and falls from a school roof falling onto his head becoming permanently brain injured requiring lifetime medical confinement. The superintendent and foreman claimed he should never have been on the roof and took the risk himself. Result: Full benefits to wife and children plus $5M Civil Award.

5. A tile setter is forced to work at night by the owner to finish.  The top landing had no guardrails and he topples 17′ fracturing his patella and permanently injured, missing a year of work.  The owner argues the tile setter should not have been working at night.  Results:  Full benefits and civil award.

Why do construction contractors hide and skew the truth? Because these working people could not talk for themselves and the employer/subcontractor/general contractor’s negligence will cost money. The injury may effect the employer-general contractor’s future contracts. The employer’s Worker’s Compensation Premiums will go up. The Subcontractor/General Contractor will be tied up in litigation and will receive a premium hike. OHSA Monetary Sanctions may be issued. These five workers each received Worker’s Compensation Benefits and recovered a total $10,000,000 civilly when the truth came out and the misinformation given the light of day.

OSHA Rules are designed to protect the worker. Company Safety Officers, Supervisors and Foreman are supposed to watch out for the worker pressed to perform. Do not be ashamed or too embarassed to seek adquate compensation. If you are injured on the job, comply truthfully with all inquiries from the employer, general contractor, OSHA, and or any official inquiries. You are not at fault for the contractor’s dangerous premises. The contractors will only look out for their interests after you are injured, not yours.

On March 23, 2007, Francisco Moreno Garcia was working for a subcontractor at the Archer Daniels Midland (ADM) bio-products plant in Decatur, Ill. insulating pipes 15 feet in the air. A waste compression system malfunctioned spraying Garcia with steam and hot caustic chemicals. For the next day and a half doctors tried  to save him but he was burned over 90% of his body and died. On September 11, 2009 a mostly white jury awarded  Garcia’s parents and siblings back in Mexico 6.7 million dollars.  Although Garcia’s family received only a $60,000 death benefit from the workers’ compensation insurance company for Garcia’s employer, Garcia’s estate filed a civil case against ADM. As is frequently the case, companies hire subcontractors to insulate themselves from liability hoping that an injured employee will collect meager workers’ compensation and not seek any further recourse. This was not the  case for Garcia’s estate as their attorney convinced the jury that ADM should be held accountable for the faulty equipment that caused Garcia’s death. This verdict also demonstrates that the life of a immigrant construction worker is worth as much as a wealthy white American.