Monthly Archives: June 2010

‘Local workers’ favored in BP cleanup, but advocates say maze may await those who get sick or injured

According to a June 20 article in The New York Times, “Hundreds of workers hired by BP subcontractors to help with the cleanup of the oil spill in the Gulf of Mexico are complaining that they traveled long distances to assist in the effort — only to be told that their jobs had been given to local residents.”

Governors favor local workers

Apparently contractors and subcontractors started out hiring anyone they could get with related experience and skills, but as time wore on the governors of the affected states (Louisiana, Mississippi, Alabama and Florida) began pressing  to favor local job seekers over imported workers–even if the workers had already signed contracts.

“In Florida, 86 percent of cleanup workers are now Floridians; in Alabama, 82 percent are from that state; and in Mississippi, 83 percent of the cleanup work force are residents. Those figures have nearly doubled in the last month, BP records show.

“ ‘You hate to take away anyone’s livelihood,’ said Dan Turner, a spokesman for Gov. Haley Barbour of Mississippi. ‘But the locals here have already had their livelihood taken away, through no fault of their own.’

“Subcontractors say they must follow the desires of BP and the governors if they hope to keep their contracts.”

The cleanup crews now total about “25,000 workers [who] have been hired by more than 100 subcontractors” to work both on shore and in the Gulf. Ultimately, though, the out-of-state workers who have been–or will be–turned away may turn out to be the lucky ones.

(Note: estimates of current workforce levels range from 24,000 to 27,000 among various reports.)

Damaged cleanup workers may face bureaucratic maze

Sure, everybody needs the work and the paychecks, but the regulatory infrastructure is such a mish-mash that workers who get sick or injured may find themselves in bureaucratic purgatory.

This is from the Washington NBC affiliate, dated June 16: “An army of 24,000 temporary workers have swarmed the Gulf Coast to help clean up the mess from the massive BP oil spill. But it is far from clear who is responsible for ensuring the safety and long-term health of those doing the critical and often dangerous grunt work.

“Already workers have been injured, some hospitalized.

“Workers are covered by a patchwork of federal, state and local agencies and regulations. The government only last week announced how worker safety efforts in the Gulf would be coordinated, more than 50 days after the rig explosion.”

And here’s what a June 22 Reuters article says: “Workers struggling in the heat to clean up oil from the the ruptured BP (BP.L) well in the Gulf of Mexico risk short-term lung, liver, and kidney damage from fumes, experts said on Tuesday.”

The experts appeared at an Institute of Medicine hearing in New Orleans, reporting that “[s]tudies of the health effects after seven supertanker spills showed that clean-up crews had suffered short-term health problems from volatile organic compounds.”

” ‘You really are talking about a triangle of heat, chemical exposure, and then the behavior changes that you see as a result,’ said Linda McCauley, dean of Emory University’s School of Nursing in Atlanta.”

Images of 9/11 and Exxon Valdez remediation

The NBCWashington report says long-term lawsuits are to be expected, and makes comparisons to the 9/11 rescue workers (whose recent settlement we covered here) and the 1989 Exxon Valdez spill.

“Based on past disasters, workers could become tangled in years of litigation if they suffer any injuries or other ill health effects while cleaning up the Gulf region.

“ ‘We’ve been through this before,” said Rep. Jerrold Nadler, D-N.Y., referring to workers who helped clean up the World Trade Center site after the 9/11 attacks.

“Nadler said the government told workers at the site that they, too, were safe, but today ‘thousands of people are sick or dying.’

“ ‘I’ve been fighting for years to get proper health care and monitoring for the thousands of people who are sick today who worked in the World Trade Center,’ said Nadler, who sponsored a bill to provide health care and compensation to 9/11 first responders and survivors of the tragedy. ‘Now I see the whole thing reproducing itself in the Gulf.’ “

As mentioned in the article, the Valdez  and BP tragedies are similar not only in regards to oil and coastal waters but also because a corporate entity is ultimately responsible.

Governor wary of  ‘committee approach’

However, what’s not clear is who is in charge of running the cleanup show, and hence which agency is overseeing workers’ safety issues and health-related claims: ” . . . even within the government there is confusion about who is in charge of protecting the 24,000 individuals engaged in the Gulf cleanup, including nearly 19,000 contract workers dispersed offshore and along the coast lines of Louisiana, Mississippi, Alabama and Florida.”

For example, Alabama Gov. Bob Riley reportedly complained to CNN about a “committee approach” among government agencies that complicates the process, using an example involving a state wildlife agency’s “push to clean beaches [that] met with resistance from federal Occupational Safety and Health Administration over limits on how many hours cleanup crews could work.”

“Adding to the complication is the fact that OSHA typically oversees safety on land, while the Coast Guard deals with worker safety issues on inspected vessels. That means smaller boats that are not inspected by the Coast Guard would come under OSHA,” says the NBCWashington report.

Although OSHA and the Coast Guard have signed an agreement of understanding, OSHA “is stretched extremely thin,  with only has 25 staffers in the four-state spill region, according to Jordan Barab, deputy assistant secretary of Labor for OSHA.”

Safety and health incidents already have occurred, and “Barab said there have been safety lapses on the part of BP but added: ‘Every time we’ve asked them to clean up their act, they’ve done that.’ ”

Regardless of that vote of confidence, keeping track of the numbers is difficult, even at this relatively early stage of the cleanup.

Some workers have already been treated

For example, this June 15 account in The Kansas City Star says, “Although Louisiana state records indicate that at least 74 oil spill workers have complained of becoming sick after exposure to pollutants, BP’s own official recordkeeping notes just two such incidents.”

After a couple of short grafs, the account continues: “The gap between the state data and BP’s reflects the difficulty in tracking the health effects of [toxic compounds] from the oil spill. It also raises questions about whether the federal government can rely on BP to determine whether conditions remain safe for the more than 27,000 workers now engaged in cleaning up the worst oil spill in the nation’s history.”

The NBCWashington piece quotes a Houston attorney thusly: “Workers are protected by ‘a hodgepodge of regulations,’ said Matthew Shaffer, an attorney with Houston-based Schechter, McElwee, Shaffer & Harris, a firm that handles maritime-related personal injury cases, who said he has already heard from injured oil spill workers.

“He expects to see many workers come down with illnesses stemming from on-the-job conditions. ‘No one’s really in charge, and a lot is left to employers or the industry to police themselves,’ he said.”

BP spokesman Ray Viator indicated the company is working with OSHA and another agency, the National Institute for Occupational Safety and Health, in monitoring air quality and the need for protective gear such as respirators (“not needed, yet” seems to be the consensus so far).

The NBCWashington piece also poses this question: “So what will happen to BP workers if they do get injured or suffer long-term illnesses?”

Spokesman: workers comp first, then BP to pay

The answer, says Viator, is that “workers’ compensation is provided through the contract workers’ employers.

“As for claims beyond that, he said, ‘BP has agreed to reimburse its contractors for legitimate costs relating to certain worker injuries sustained during their course and scope of employment with the contractor companies.’

“That’s not enough, said [Congressman] Nadler. ‘Unlike at the World Trade Center, you have a private party who’s responsible and who should be covering the costs for all of this,’ he said.

“But he said he was more concerned ‘not with claims, but preventing thousands of people from getting sick.’ “

Apparently, the bottom line is this: We’ve only begun the long, intense cleanup of the Gulf region–and once it’s over, we’ll have a lengthy process of mopping up the human damage.

Have you, a friend or a loved one been injured on the job? Whether you’re merely seeking answers about your rights or believe a lawsuit may be necessary, be sure to seek counsel with attorneys trained and experienced in workers’ compensation. Here’s some resources:

Workers compensation basics


Schwarzenegger smacked down again; 9/11 workers get improved settlement; Oklahoma reform passes

Schwarzenegger furloughs headed to Supreme Court

As a follow-up to our March 22 post, “California furloughs of workers comp attorneys ruled ‘illegal’, “ we see a June 13 piece in the San Francisco Chronicle reporting that yet another court has found that “[a]bout 7,900 state workers’ compensation employees were furloughed illegally by Gov. Arnold Schwarzenegger last year and are entitled to $25 million in back pay . . . .”

The March ruling was from a different appellate panel, which “found Schwarzenegger acted illegally when he furloughed about 500 lawyers and hearing officers employed by the same insurance fund.”

The June 11 ruling applies to all employees of the fund, which “sells workers’ compensation insurance to employers and uses their payments to run its operations.”

According to the Silicon Valley MercuryNews,The furloughs were part of an cost-cutting move by the governor last year, when he ordered nearly 200,000 state employees to take two days off each month without pay.”

However, the issue does not appear to be over. Both outlets report that the state Supreme Court has agreed to review the furlough issue.

Fired manager plans WC fund for construction insustry

Another brawl over workers comp funds is shaping up in Minnesota, where, says a June 14 report, “The founder and former head of Minnesota’s largest workers compensation self-insurance fund is launching a new, competing insurance program for the construction industry.

“David Bjorklund said The Builders Group (TBG), the Eagan-based fund he founded in 1997, has lost its way, citing its recent $30,000 state fine for falsifying safety-related scores and a drop in its financial reserves.”

According to the article, Bjorklund was fired as manager by the fund’s board, 11 years after he created the fund. He says he was a whistle-blower and that speaking out is what got him fired. Subsequently, he and other ex-employees helped the state during an investigation of the fund.

“Last week, he said, he met with several concerned fund members to outline the new venture. His goal is to line up charter members for a new ‘captive’ insurance company owned and controlled by the membership.” Such firms “are a bit like self-insurance funds, but members don’t bear ‘joint and several’ liability for losses, Bjorklund said. The venture, yet to be submitted to insurance regulators or given a name, would operate under the umbrella of a large insurer, though Bjorklund said he would administer it.”

Settlement for 9/11 workers extends benefits, caps legal fees

Yet another captive insurance fund made news recently, as part of the revised, $712 million settlement between New York City and thousands of 9/11 rescue workers.  According to a June 10 piece in Bloomberg BusinessWeek, “Lawyers for 10,000 workers claiming illnesses from rescue, recovery and debris removal after the Sept. 11 World Trade Center attack have agreed with New York City on a $712.5 million compensation fund to settle the cases.”The city and its WTC Captive Insurance Co., set up with $1 billion from [FEMA], joined with plaintiffs’ attorneys to present the agreement today to U.S. District Judge Alvin Hellerstein in Manhattan.”

According to Reuters, the revision includes a larger payout to the workers but less to the attorneys: “In March a federal judge rejected an initial settlement of up to $657.5 million, saying it needed to be more transparent and that too much of the money — about one third — would be spent on lawyers’ fees.”

The settlement caps attorney fees at 25 per cent, which lowers “their previous cut by more than $50 million. The WTC Captive Insurance Company has agreed to pay up to an additional $55 million to the workers as part of the revised settlement.”

BusinessWeek says the judge termed the agreement “a very good deal,” and  “signed an order dismissing the lawsuit, and set a June 23 public hearing for claimants and their attorneys to raise any objections. At least 95 percent of the plaintiffs must consent to the agreement for it to become legally binding.”

Oklahoma finally passes WC reform package

Elsewhere, reform is the name of the game in Oklahoma, where Gov. Brad Henry has signed legislation aimed at upgrading the workers comp system. According to a May 28 report from, “The key features include a reorganization of the workers compensation courts and a tightening of definitions and benefit eligibility.

“Supporters say the reforms will save businesses more than $60 million a year.”

A June 12 piece at explains that the legislative reform comprises four separate bills and that its passage removes one ballot proposal from November elections.

“The two bills signed by the governor Friday were part of four measures legislators approved after months of negotiations with business, medical and legal representatives. Henry earlier this week signed Senate Bill 1973, which allows the state Supreme Court to review workers’ compensation claims like any other civil case and requires that the claimant be in attendance unless all parties agree, and HB 1611, which requires workers’ compensation claims adjusters to have six hours of education on the state workers’ compensation act.”

A twenty-two point, bulleted list of changes in the reform measures are spelled out at

Have you, a friend or a loved one been injured on the job? Whether you’re merely seeking answers about your rights or believe a lawsuit may be necessary, be sure to seek counsel with attorneys trained and experienced in workers’ compensation.