The Lombardi Law Firm Blog

Are widows and OTR truckers from other states, entitled to Iowa workers’ compensation benefits?

Dozer Operator Killed While On-the-Job

Does fault matter in a workers' compensation case in Iowa?

Chemical Safety - Handling or Cleaning up Sodium Hydroxide

Train vs Semi-Truck, Leads to Workers' Compensation Claim

Wisconsin plant explosion may have been caused by static electricity

Bulldozer slips off jacks and kills operator, widow's benefits at stake

What caused a bulldozer to slip off the jacks and kill 60 year old Patrick O’Shaughnessy? That will be the question his family is asking after an accident at a construction equipment company in Ossian in northeast Iowa on October 14^th 2009. His co-workers tried to save him by using a crane to life the bulldozer, however it was too late and Mr. O’Shaughnessy was pronounced dead at the scene. Workplace accidents happen every day and most are avoidable; could this accident have been avoided?

Hopefully, if he's married she is covered under a workers' compensation policy of insurance. That should pay her a lifetime benefit. She can commute the amount and should seek a consult with an attorney to determine her rights under Iowa's workers' compensation laws. What widows and widowers of workers killed while doing their jobs, need to know is that the workers' compensation carrier isn't your friend. You are in an adversarial relationship. That means they have no duty to advise. Heed the warning and see an attorney; we are happy to assist when asked.

We wish the family well.

Oxford, Iowa I-80 Road Construction Crew Semi-Truck Collision

We don’t have much information this morning but it’s being reported by Radio Iowa and the Des Moines Register that a road construction crew on I-80 near Oxford, Iowa were injured with a semi-truck collided with one of the cement or concrete barriers in a construction zone. Oxford is about nine miles west of Coralville, Iowa.  The collision occurred late yesterday morning. You have to wonder if the semi-truck driver was texting or talking on a cell phone.

Iowa Highway Patrol and Iowa's Policemen and Women Have A Dangerous Job

What do you get when you take 250,851,833 registered passenger vehicles, 46,876 miles of highway, and a man with a badge? This is not the opening line of a clever joke with a cute punch line. In this scenario, it's pretty clear that in a confrontation between two ton vehicles traveling more than a mile a minute and a patrolman on the highway battlefield, man loses to machine. When a 3,000 pound car hits someone on foot there is no contest.

Unfortunately for those who work on the highway, there is no way to protect against cars on the road. The safety of any construction worker, tollbooth operator, or police officer rests on the margin of human error. The only thing standing between a patrol worker and disaster is a driver's safe operation of his or her vehicle. Distracted drivers are a major hindrance to a State Highway Patrol Officer being safe in his working environment.

According to the National Highway Traffic Safety Administration, nearly 6,000 people died in 2008 in crashes involving an inattentive driver. On a given day in 2008, more than 800,000 vehicles were driven by drivers talking or texting on cell phones. Distracted drivers are one of the leading causes of highway fatalities, and the risk is even greater for those who work on the nation's highways regularly.

The NHTSA has taken certain measures to ensure the safety of road workers. For example, when you drive through a construction zone, you probably notice a litany of bright orange signs warning you to drop your speed on pain of doubled speeding fines. Some states enforce a minimum penalty of $375.00 for speeding in a work zone, regardless of the base fine, regardless of whether workers were present or not. The penalty for hitting a worker is usually around $10,000 and jail time, depending on the state and extent of the worker's injuries. Work zones are also secured (in the loosest sense of the word) with temporary fences, flashing lights, light board signs, cones, and barrels, offering at least a visual alert to approaching. However, common sense dictates that if a car suddenly swerves out of its lane, the power of the Mighty Plastic Orange Cone isn't going to do much to protect Joe the Construction Worker from injury or even death.

Even so, construction workers are better protected than state troopers and patrolmen on duty on the nation's highways. While workers have zones blocked off and marked, officers have to pull onto the shoulder of the road to write a ticket, regardless of visibility or weather conditions. There are no threats of fine's posted in patrol zones, no blocked lanes, and most of the time, vehicles barely change speeds when passing a pulled over car. With no fluorescent vests or signs warning drivers to be careful two miles in advance, officers have no reliable protection against stray vehicles on the highway as this video demonstrates:

Take for example the case of Des Moines Police Sgt. Larina Blad. On August 15, Sgt. Blad was struck by a 4,800 pound Dodge Durango driven by a man with three prior OWI convictions. The driver, who later tested at more than two times the legal blood alcohol limit, dragged her more than a block and a half before stopping. The radio dispatch as reported by Radio Iowa indicates just how tough is this officer.

"What happened?" the dispatcher asked. "I’ve been run over," Blad replied. "I’ve been run over." The dispatcher sent "all units" to the scene. "I’ve got medics rolling already," the dispatcher told a policeman who had arrived at Blad’s side. "Is it a hit and run?" the officer asked.

The dispatcher replied: "It definitely sounds that way, yes." The suspect, 24-year-old Irving Cartagena, was allegedly driving drunk and his license had been revoked. Cops caught up with the suspect who was driving a white Chevy Tahoe. "Subject in custody?" the dispatcher asked.

Sgt. Blad, who vowed to return to work by the end of the week, was lucky not to have suffered more severe injuries in the accident. However, the same cannot be said for the roughly 70 officers who are killed in traffic related incidents each year while in the line of duty. According to the National Law Officers Memorial Fund, the majority of officer deaths for the past 11 years have been traffic related.

We can all help prevent these tragedies by driving safely and remaining alert for the sake of Iowa Highway Patrol officers, workers, passengers, other drivers, and ourselves. Leave your cell phone in your purse or pocket until you are safely parked. Avoid driving while tired or intoxicated, and always exercise caution when you see highway workers of any kind. Beyond that, it may be time to petition lawmakers to instate harsher penalties for repeat offense OWIs so that the roads are safer for everyone.

What do you get when you take 250,851,833 registered passenger vehicles, 46,876 miles of highway, and a man with a badge? The answer depends on how safely we drive. Do your part to protect the safety of highway patrol workers.

Highway Patrol Work is Dangerous

(go to 1:10 of the video)

Worker Safety Never Takes a Holiday, Chock the Wheels

Chocking the wheels and setting the parking brake would probably have saved the life of this liquid asphalt truck driver. OSHA fined a trucking company $9,100 for failing to use precautionary measures that allowed a truck loaded with liquid asphalt to roll, crushing the worker between two trucks. The driver was 62-year-old Brian Cellar.

If married at the time or if he had dependent children they would be provided with workers’ compensation benefits in Iowa. What most people don’t appreciate is even if the worker is from another state they can sometimes get Iowa benefits if the accident occurred in Iowa or they normally live and work in Iowa but the accident happens in another state.

Chocking the wheels is a simple thing, setting the parking brake even simpler. Sometimes we forget the little things that make a big difference. There are no holidays from safety. Be smart and go back to the basics. Shortcuts may lead to a disaster. General IOSH or OSHA safety rules are covered under Chapter 10 in Iowa.

Construction site photographs of the utility pole may be necessary to prove the case or why it fell over when struck by the Bobcat

In what can only be described as a tragedy, a construction worker today was killed after a utility pole was knocked over striking and killing him. The utility pole was backed into by a fellow worker operating a Bobcat with a bucket on it. The worker that died was 32 years-old and his fellow worker was 57. The accident occurred at 10:15 a.m., just south of S.W. 26^th Street and Watrous Avenue in Des Moines. The younger man was pronounced dead at the hospital.

There are several interesting legal points to this story. First, the younger man leaves two young children behind. Hopefully this young man’s employer had workers’ compensation coverage that will pay these children benefits through college or at least through high school (age 18). It’s not unusual that smaller contractors don’t have coverage; that’s not legal, but lawyers see it often in the construction industry.

Second, the dependents of this young man would have a claim for the workers’ compensation benefits and also may have a claim against the owner of the pole. The Des Moines Register article includes a reference to a spokesperson from MidAmerican Energy Co who said the pole was not one of theirs and did not carry electrical lines. Mediacom said they commonly rent poles and Qwest hadn’t yet commented. So who owned that pole? This pole is interesting in that it was caused to fall down when the Bobcat backed into it; a scenario unlikely to normally happen. It should take a lot of pressure to cause a utility pole to fall down. Normally they snap. And that’s the rub, as I like to say, of this case investigation.  Why did it fall down so easily?

Which leads me to the third and final point; the case investigation to preserve valuable evidence. I remember driving towards Des Moines on Grand Avenue one day many years ago when I noticed a pole that had been struck by a car. The power company had a truck on location and was in the process of setting up to take the pole down and set it father away from the street. A client lived at that location so I pulled in to talk with him; he was standing on the sidewalk watching. Immediately I took out a camera and began taking photographs, which later were sent to the attorney representing the man whose legs were apparently pinned between the pole and a car bumper in the accident. Had I not taken photographs the pole would have been removed taking with it any chance of knowing what it looked like. It’s important to gather and preserve the key evidence in the case; in this case the pole. Someone needs to take photographs of the pole and the accident investigation site. Whoever is in charge of the dependent children needs to hire someone to get in there and photograph the location before the owner removes and destroys the pole. How that pole was seated in the ground may be a very important fact and pictures a sometimes worth a thousand words.

Owners don’t sit around waiting for injured people to complete their investigation. Owners need to get busy cleaning up the mess to make sure someone else isn’t injured or killed. Justice waits for no one.

So act, don’t sit around wondering. If you know Andrew Clark’s guardian tell them to get some legal advice and quickly; their future may depend upon it.  

Iowa Workers Compensation for Electrical Workers

Today, it's about three workers who get electrocuted from an overhead power line while doing work on a college campus with a boom truck. It reminded me of my family and the work I grew up listening to them discuss. My grandfather, father, brother and brother-in-law all worked, at one time or another, for the Narragansett Electric Company in Providence, Rhode Island. Narragansett Electric is now National Grid. The company mascot for Narragansett Electric was during my childhood, Mr. Reddy Kilowatt. Reddy was a guy whose head was a light bulb, he was always talking about safety. Injury by electrocution is a major concern for families that work around electricity. So we learned that Reddy was our friend. As a family we always worried about line work due in part to injury by electrocution. Today is about just that, workers getting electrocuted while working around energized power lines.

Reddy Kilowatt

http://www.youtube.com/watch?v=PznxZ3zmL00

You’ve got three workers for Midwest Glass and Glazing on the Creighton Campus Universityusing a boom truck when the boom comes into contact with an electrical line that was energized. Could this have been avoided?

Let’s start our quick analysis by saying the workers are all alive and expected to live. The news articles indicate only one was seriously injured and that’s terrific. For those who don’t know what happens when the human body is electrocuted, you should know the electricity travels through the human body seeking out weak points. Those weak points are under the upper arms, inside the thighs, for guys their penis and sometimes parts of the head. Those parts blow out – yes it’s a terrible injury. So if only one worker was burned the other two are quite lucky.

The one suffering the worst burns was 46-years-of-age, not sure if he’s married or with dependent children, but injury to any worker is significant when electricity is involved with causing the injury. Rehabilitation is long and hard and may never be complete or bring you back to normal. Just think for a second about your brain being short circuited by an extremely high electrical charge and how the gray matter would be affected. And take a moment to think about the effect of electricity on the human nervous system. The effects are very serious indeed.

Narragansett Electric PSA with Ben Franklin

How do workers protect themselves? Well, they can first make sure that all lines they are working around are de-energized. Never assume any line is not energized, assume just the opposite. Demand that all lines be de-energized by the power or electrical company that owns them before any work is performed. If the boom is being used near a power line, stay away from it. If your supervisor calls you a wimp call his supervisor.

Make sure the guy running the boom is properly trained. Before taking one of these jobs learn the ins and outs of using one safely. Read the owner's manual that comes with the boom truck.

All three workers that were injured are entitled to workers' compensation benefits. They will first receive medical coverage, then weekly indemnity benefits (a pay check) and after that permanency benefits, if they have permanent impairment or restrictions.

Well, that's all for today. I'm just getting back from vacation and there's too much to do around here today.

How long does it take to settle a workers’ compensation case?

It takes as long as it takes. It should take long enough to do it right. Okay, so what is it in months? Well, probably about 18 months on average; or a little longer. Why, you ask?

Well because the hold up is your medical condition and the treatment it takes to get you to a point of maximum medical improvement. It’s all about doctor’s opinions. The sooner the doctor lets you go back to work or finish up with your treatment the lawyers can do the rest of their work to settle or try your care. 

Think of doctor opinions like you do gasoline in a car’s fuel tank. If there is no gas in the tank, then the car won’t start up. Same goes for the workers’ compensation benefits engine. If you don’t have a doctor’s opinion the work comp benefits engine won’t start. So doctor opinions are the fuel of the workers’ compensation benefits engine. Simply stated your work injury must be related to your work.

Now what kind of gas do you need? You need a positive doctor opinion that relates your injury and need for treatment to what you do at work.

Then you’ll need a medical opinion that says because of that injury or the need for medical treatment you need to be off of work. That’s a doctor’s work excuse.

And then you’ll need a doctor’s opinion saying you can go back to work. That’s a work release.

After you go back to work and you’re finished with treatment the doctor will decide if he thinks you have permanent impairment or activity restrictions.

All this takes time and has to be done in sequence. Nothing can be rushed or done sloppy.

So be patient; don’t worry it will get done, but in time.

Call us if you have questions. 1-515-222-1110 We even take email. sdlombardi@aol.com

Trinidad death leads to OSHA fine for Iowa company

The Register reports the Clear Lake company we posted on previously for the death of a worker, Simon Trinidad, a 35 year-old when he fell into a metal hopper, was fined by IOSH in the amount of $375,000. Apparently this is the second time this company has been fined for a similar violation. The company is Andrews Prestressed Concrete in Clear Lake, Iowa.

These types of claims are easier for the workers’ compensation death claims than the third-party or gross negligence cases. We’ve had good experience on third party claims and some luck with gross negligence claims against the co-employees or supervisors.

Clear Lake Company issued a fine for the death of a worker who fell into an open hopper, is linkked to the Lombardi Law Firm news item.

Clear Lake Company issued a fine for the death of a worker who fell into an open hopper, is linked to the Des Moines Register article.

Worker safety is nothing to take lightly. Be safe not sorry. It's no laughing matter.

Workers Compensation Insurance Fraud Alleged in California

Allegations of fraud surround a California roofing company. Most of the time tort reformists allege fraud on the part of employees who file workers compensation claims. The lawyers working in this area know that employees are not the source of waste or fraud that costs some state workers’ compensation programs. Iowa is certainly not one of the states with a great deal of waste. Our state program has some of the lowest rates and best claim histories for any state. The Iowa Insurance Division regularly investigates fraud and has an Insurance Fraud Bureau that attempts a one-sided and misguided focus against employees without focusing on the larger problem, employer or business fraud that manipulates payroll and claims to avoid premium payments.  It’s easy to talk about fraud with some fictitious worker filing a false workers’ compensation claim, but in Iowa actually finding those cases has not proven to be true.

This time it’s California, a state that has had reforms aimed at reducing costs. The state of California is making various allegations; see below. What’s interesting is that the alleged fraud and bad business practices have nothing to do with employees filing for workers’ compensation benefits. Instead it’s the employer who is the focus of this investigation.

Investigators said Petronella and Kile told insurers their payroll was $2.9 million from 2000 to 2009, the period under scrutiny. But their actual payroll totaled $29 million. According to the district attorney, the $38 million fraud allegation consists of $29 million in unpaid premiums plus penalties and assessments for inaccurate reporting.

The bias of tort reform groups can be seen not so much by what those groups report on but on what they don’t report. In this instance this story isn’t found on any of the major tort reform sites.

Tort reforms previously passed in California have had mixed results. There was a temporary decrease in insurance rates but coverage for high risk laborers is beginning to increase. This type of case shown by the roofers may be one reason for that increase.

From 1998 to 2003, average premiums for all jobs tripled to $6.45 per $100 in payroll, according to the Workers Compensation Insurance Ratings Bureau. Following reforms passed in 2004 under Gov. Arnold Schwarzenegger, average rates dipped to $2.25 per $100 in payroll by the end of last year.

But those rates are poised to rise again. The Workers Compensation Insurance Ratings Bureau proposed a 24 percent increase beginning in July,

Rates for construction workers, such as roofers, are more than 10 times the state average, because of numerous on-the-job accidents. The State Compensation Insurance Fund, a quasi-public company that is California's largest workers' comp insurer, currently charges $47.80 per $100 in payroll to cover roofers. In 2003, the rate was $99.68 per $100 in payroll.

The allegations appear to go beyond simple insurance claim practices. The allegations would appear to attack the business practices having to do with income and expense handling.

Prosecutors said Petronella and Kile used their companies as personal piggy banks to support their lavish lifestyle. The indictment says Petronella and Kile owe the state more than $1.1 million in back taxes for under-reporting their personal incomes from 2005 to 2007.

Between 2005 and 2007, they said, the couple reported $290,000 income on their tax returns while spending $2.1 million for personal items – designer shoes, clothing and jewels – on a company credit card.

"Their company American Express Black card, which by law should only be used for legitimate business purpose, became a passport to personal excess," Rackauckas said, "almost $440,000 on jewelry alone from 2005 to 2008, more than $425,000 spent on shopping sprees at luxury stores in 2008."

As always allegations of fraud and crime are simply that, allegations. All must be proven before guilt can be assumed.

Clear Lake company issued a fine for the death of a worker who fell into an open hopper

IOSH, or OSHA as it's most commonly called fined a Clear Lake company $357,000 for an accident that killed an employee. The Des Moines Register article indicates this is the second time an open hopper unprotected by guardrails has been the issue of a citation.  The worker that died is 35, Simon Trinidad. He's entitled to receive at the very least workers' compensation death benefits. If he was married or had dependents they too are entitled to benefits.

"The Iowa Occupational Safety and Health Bureau said employees were exposed to the 12-foot deep, open hopper that was unprotected by guardrails. The company was cited in 2006 for the same violation."

Workers Compensation: Death from a saw kickback

On April 15th 2009 33 year old Eugene Hakes was killed it work when a large, gasoline powered saw he was using to cut through a water main kicked back and cut his throat. Coworkers saw him holding his throat and tried to help him and called 911, when he reached the hospital he was pronounced dead.

Two months ago OSHA fine A-1 nearly $700,000 for 11 workplace violations involving trenching operations while A-1 has challenged the fine one has to wonder if any of these violations ultimately resulted in Mr. Hakes death. An investigation into the accident is ongoing.

AVOIDING TABLE SAW KICKBACK

Many workers who are injured don't understand the necessity of safety. Others aren't  trained property and still others fear being fired if they ask too many questions and give the impression they aren't qualified. Still others simply don't read the safety manual for whatever reason.

Employers need to make sure all safety equipment is utilized and manuals are read and understood. It's the employer's responsibility to ensure a safe workplace. Not the employees.

Single vehicle crash may result in an Iowa Workers' Compensation claim.

Workers Compensation: Green Leaf Tobacco Sickness for migrant farm workers

Green tobacco sickness is normally non life threatening. It is a sickness that causes nausea, vomiting, dizziness and can cause dehydration. It commonly affects migrant farm workers who harvest the wet tobacco leaves allowing nicotine to enter through skin pores during the harvesting process. Symptoms will typically last 12 to 48 hours and then dissipate. Father Crosby, a Catholic priest filed a shareholder resolution but withdrew the same when Philip Morris International agreed to develop a training program and materials to distribute to U.S. and international growers.

Tobacco harvesting is a labor-intensive industry. Harvesting leafs is done by hand.

A professor at Wake Forest University School of Medicine, in North Carolina, has done research on Green Tobacco Sickness. He calls this a work related injury or sickness that has been widely ignored. It's believed this illness to be underreported.  The sickness is also known as Acute Nicotine Poisoning.

To learn more about green tobacco sickness you can visit the National Ag Safety Database and read "Learning about Green Tobacco Sickness: Juan's Experience.  The Lombardi Law Firm blog will carry a longer article tomorrow. Read The Verdict for additional information.

There is also a description at Wikipedia.  Green Tobacco Sickness is defined as " a nicotine-induced illness of tobacco harvest workers characterized by headache, dizziness, vomiting, and prostration, caused by skin contact with wet tobacco leaves. " See the Free Dictionary

The National Institute for Occupational Safety and Health does have information. An article by the Wall Street Journal drew national attention this otherwise widely known but hardly recognized problem for migrant workers.

Green tobacco sickness 'highly prevalent' in N.C. farm workers. Science Blog, July 2001.

Tackling Green Tobacco Sickness, Wall Street Journal, March 23, 2009

"While typically not life-threatening, green tobacco sickness is a debilitating illness that causes nausea, vomiting, dizziness and, in severe cases, dehydration. It afflicts tobacco workers when nicotine on moist tobacco leaves seeps through their pores as they hand-harvest the leaves. The symptoms typically last 12 to 48 hours."

"More attention is being paid to the illness partly because the nature of tobacco production has changed. Increasingly in the U.S., tobacco is grown on larger farms, rather than the small family farms that once dominated the industry. That means more migrant workers are picking tobacco for longer periods of time, increasing their exposure."

Short description: green tobacco sickness transient, recurring nicotine poisoning in tobacco harvesters.

There is also information available at http://www.tobacco.org/news/280837.html, tobacco news and information.

For a different point of view about th tobacco settlement see the video below.

Does the OnStar System Eliminate Stolen Cars and High Speed Chases?

Ohio Underinsured Coverage – They took it away and still charge you a premium.

Interstate Travel and Dealing with Fatigue

Should Blogging Be A Part of Iowa's Teen Driving Experience

Iowa Car Accident Caused When Driver Doesn't Stop for Stop Sign

Control the distractions and speed and the tree will not be a problem