One upside to the pandemic is that courts seem more likely to order video or remote depositions. This is a meaningful win for workers like truckers who are forced to file claims for workers compensation in distant states.
Free to work where you want, but not free to claim workers compensation where you want
Over the road drivers are stuck in a legal and constitutional conundrum when that are injured at work. Under the privileges and immunities clause, Article IV, Section 2 of the United States Constitution Americans can live and work anywhere in the United States. One part of American nationhood is the economic union among the states.
What this means is that workers who get hired by a company in a distant state or are injured in a distant state have to pursue claims in a distant state.
Practical effects of travel costs on workers compensation claimants
A worker with a workers compensation claim in Nebraska is looking at a minimum of $600 in travel costs and a two day trip if they are coming from either coast to Nebraska. That assumes you are close to a major airport.
It seems burdensome, expensive and unconstitutional to require a blue collar worker who might not be receiving workers compensation benefits to make this treck for a two hour deposition.
But pre-pandemic Nebraska courts routinely required this trip. But with the use of remote technology like Zoom, courts are allowing plaintiffs to appear remotely for depositions. A few weeks ago I had a federal magistrate judge allow a client from Georgia appear remotely for a deposition in a personal injury case here in Nebraska. Many judges also like Zoom for routine hearings.
In short, as Judges get more familiar with remote hearings, they might be more inclined to listen to arguments about why forcing in person depositions for out of state plaintiffs is unfair, unreasonable and even unconstitutional. My guess is that there will be a growing body of case law that supports these arguments.
Today’s post comes from guest author Leonard Jernigan from The Jernigan Law Firm in North Carolina. There are so many cancers that people are diagnosed with that have unknown causes. So if there is an awareness that a substance increases risk for cancer, I think it’s important to try to minimize exposure to that substance. And although it’s not realistic to avoid these substances altogether, the trucking industry in particular has made an effort to use more efficient, clean-burning engines. I think it’s important to be aware of the situation and encourage more research and use of technology for both health and environmental reasons.
Lung cancer is the leading cause of death for men and women in the United States. It’s greater than breast and colon cancer in women and greater than prostate, colon, pancreatic and liver cancer in men. If diagnosed early there is a 70-80% survival rate for 5 years, and a low-dose CT scan of the chest can detect 60-70% of lung cancers at an early stage. Unfortunately, there has been no significant progress in the treatment of lung cancer in 40 years and between 10,000–20,000 occupational lung cancer deaths occur each year in the United States.
One area of concern is the relationship between diesel exhaust exposure and lung cancer. In June of 2012 the International Agency for Research on Cancer (IARC) classified diesel engine exhaust as carcinogenic to humans, and studies of underground miners support that statement and also indicate that others who are around diesel fumes may be at an increased risk. Toxic chemicals in diesel gas are nitrogen oxides, sulfur oxides, carbon monoxide, benzene, PAHS (polycyclic aromatic hydrocarbons), aldehydes and nitro-PAHS.
Railroad workers, miners, truck drivers, bus operators, longshoremen and others who have been heavily exposed to diesel fumes are obviously at greater risk than those with less exposures, but even minimal exposures may cause harm. In urban areas, like lower Manhattan, there is concern that diesel exposures may be a public health hazard and detection systems have been placed in areas to collect exposure data. As for workers who have experienced intense, short-term duration to diesel fumes, a chemical called 1-hydroxypyrene may be elevated in urine, but the test for this marker is not performed by most commercial laboratories. The Mount Sinai – Irving J. Selikoff Center for Occupational & Environmental Medicine is studying diesel exposure and may be a good resource for future information, as well as the National Clean Diesel Campaign: www.epa.gov/diesel.
Today’s post comes to us from our colleague Jon Gelman of New Jersey.
The Federal Motor Carrier Safety Administration (FMCSA) is proposing to restrict the use of hand-held mobile telephones, including hand-held cell phones, by drivers of commercial motor vehicles (CMVs) while operating in interstate commerce. Cell phones have become a major cause of distracted driving accidents resulting in an increase of workers’ compensation claims by employees as well as liability lawsuits against employers directly. This federal rule would be in addition to the many states which already ban hand-held cell phone use.
The following is a summary of the proposed rule: “FMCSA and PHMSA are amending Continue reading →