On December 29, 1970, President Richard M. Nixon signed into law the Occupational Safety and Health Act, and the Occupational Safety and Health Administration (OSHA) was born.
OSHA’s mission is to "assure safe and healthy working conditions for working men and women by setting and enforcing standards and by providing training, outreach, education, and assistance."
The Bureau of Labor Standards of the Department of Labor had originally worked on some work safety issues since its creation in 1922. Economic boom and associated labor turnover during World War II worsened work safety in nearly all areas of the United States economy, worsened work safety in nearly all areas of the United States economy, but after 1945 accidents declined for a time. New influence and power for labor unions played an increasingly important role in worker safety post-World War II. But in the 1960s, increasing economic expansion again led to rising injury rates, and the resulting political pressures meant a new agency needed to be created.
Understanding the OSH Act:
The OSH Act, enacted in 1970, was a landmark legislation aimed at safeguarding the health and well-being of American workers. Its primary purpose was to establish comprehensive regulations for workplace safety and health standards across various industries. Since its inception, the OSH Act has empowered workers by granting them the right to a safe working environment free from recognized hazards.
The Role of OSHA:
OSHA, an agency operating under the U.S. Department of Labor, is tasked with enforcing the regulations outlined in the OSH Act. Their mission is to ensure safe and healthy working conditions for all employees. OSHA achieves this through inspections, investigations, and the establishment of safety standards. Injured workers can rely on OSHA to hold employers accountable for any violations that compromise workplace safety. By filing complaints with OSHA, injured workers can initiate investigations and prompt corrective actions.
NIOSH's Contribution to Workplace Safety:
Working in tandem with OSHA, the National Institute for Occupational Safety and Health (NIOSH) focuses on research, education, and prevention strategies to reduce workplace hazards. NIOSH conducts scientific studies, develops guidelines, and provides recommendations to improve workplace safety. Their expertise helps inform OSHA's regulatory decisions and ensures that worker protection measures are based on the best available evidence.
How OSHA and NIOSH Benefit Injured Workers:
For injured workers, OSHA and NIOSH serve as vital resources throughout their journey towards justice and compensation. OSHA's enforcement actions can result in penalties and corrective measures, holding employers accountable for their negligence. Injured workers can seek support from OSHA in investigating incidents, addressing hazards, and understanding their rights under the OSH Act. Additionally, NIOSH's research and recommendations contribute to the development of safer work practices, reducing the risk of future accidents and injuries.
OSH Act coverage:
The OSH Act covers most private-sector employers and their workers, in addition to some public-sector employers and workers in the 50 states and certain territories and jurisdictions under federal authority. Those jurisdictions include the District of Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, Northern Mariana Islands, Wake Island, Johnston Island, and the Outer Continental Shelf Lands as defined in the Outer Continental Shelf Lands Act.
State plans are OSHA-approved job safety and health programs operated by individual states instead of federal OSHA. Federal OSHA approves and monitors all state plans and provides as much as fifty percent of the funding for each program. State-run safety and health programs are required to be at least as effective as the federal OSHA program. Sadly Ohio isn’t one of the 22 states and territories that have such a program.
Rights and responsibilities under OSH Act law
Employers have the responsibility to provide a safe workplace. By law, employers must provide their workers with a workplace that does not have serious hazards, and they must follow all OSH Act safety and health standards. Employers are obligated to identify and rectify safety and health problems. The OSH Act further requires that employers must first attempt to eliminate or reduce hazards by making feasible changes in working conditions, rather than relying solely on personal protective equipment such as masks, gloves, or earplugs. Examples of effective ways to eliminate or reduce risks include switching to safer chemicals, enclosing processes to trap harmful fumes, or using ventilation systems to clean the air.
Employers must also:
Inform workers about chemical hazards through training, labels, alarms, color-coded systems, chemical information sheets, and other relevant methods..
Provide safety training to workers in a language and vocabulary they can understand.
Keep accurate records of work-related injuries and illnesses.
Perform tests in the workplace, such as air sampling, required by some OSH Act standards.
Provide the required personal protective equipment at no cost to workers, as employers must pay for most types of required personal protective equipment.
Provide hearing exams or other medical tests when required by OSH Act standards.
Post OSHA citations and annually post injury and illness summary data where workers can see them.
Notify OSHA within eight hours of a workplace fatality and within 24 hours of all work-related inpatient hospitalizations or injuries where sufficient time missed from work has occurred.
Workers have the right to:
Working conditions that do not pose a risk of serious harm.
File a confidential complaint with OSHA to have their workplace inspected.
Receive information and training about hazards, methods to prevent harm, and the OSH Act standards that apply to their workplace. The training must be conducted in a language and vocabulary that workers can understand.
Receive copies of records of work-related injuries and illnesses that occur in their workplace.
Receive copies of the results from tests and monitoring conducted to identify and measure hazards in their workplace.
Receive copies of their workplace medical records.
Participate in an OSHA inspection and speak in private with the inspector.
File a complaint with OSHA if they have faced retaliation or discrimination from their employer as a result of requesting an inspection or exercising any of their other rights under the OSH Act.
File a complaint if punished or retaliated against for acting as a 'whistleblower' under the 21 additional federal laws for which OSHA has jurisdiction.
Temporary workers must be treated like permanent employees. Staffing agencies and host employers share joint accountability for temporary workers. Both entities are therefore obligated to comply with workplace health and safety requirements and ensure worker safety and health. OSHA could hold both the host and temporary employers responsible for any violations.
Whistleblower Protection Program:
OSHA’s Whistleblower Protection Program (WPP) enforces the whistleblower provisions of the Occupational Safety and Health Act and 24 other statutes protecting workers who report violations of various airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health care reform, nuclear, pipeline, public transportation agency, maritime and securities laws.
How Well Has OSHA Worked:
A 2012 study in Science found that OSHA's random workplace safety inspections caused a "9.4% decline in injury rates" and a "26% reduction in injury cost" for the inspected firms. The study found "no evidence that these improvements came at the expense of employment, sales, credit ratings, or firm survival” A 2020 study in the American Economic Review found that the decision by the Obama administration to issue press releases that named and shamed facilities that violated OSHA safety and health regulations led other facilities to increase their compliance and to experience fewer workplace injuries. The study estimated that each press release had the same effect on compliance as 210 inspections.
Now Ohio has its own workplace safety regulations. But unlike OSHA regulations they are not researched by anything like NIOSH and are nowhere as often amended. In fact, colleagues who work with both sets of regulations say there are some which are incompatible with each other.
Is OSHA perfect, no, it’s underfunded, therefore not sufficiently staffed, and there are not enough enforcement penalties. But it has made a difference. And every year, those of us who advocate for workers celebrate two days of the year in regard to this, the day it was signed, and in March when the act first took effect. And locally, that is when we celebrate Workers’ Memorial Day. So we can remember the dead and fight like hell for the living.
Has someone you love been saved by these safety measures? We have seen far too many lives cut short or the quality of life destroyed by work injuries. So I personally pray that one day, thanks to OSHA & NIOSH, we’re no longer needed.
But for now, we are here to help those hurt on the job in Ohio. Call us at 419-244-7885. We have over three decades of experience helping people hurt on the job, and offer a no cost, no obligation initial consultation.
Nothing gets some people going these days than saying “Happy Holidays”. For some reason, not assuming someone celebrates the biggest holiday for us this time of year in the US, Christmas, seems to set people off. I have been saying Happy Holidays for this time of year for decades. Why? Because while I’m a Christian, I’m a person living in a country of diversity and in case you don’t know it, there are a huge number of holidays that fall around Thanksgiving until the beginning of January.
On November 28th Orthodox Christians start an Advent Fast. Advent starts four Sundays before Christmas. It’s the Christian faith’s preparation for the birth of our role model and the Son of God in our belief system. My denomination lights a calendar for each Sunday, each with a different theme and some have wreaths on their tables and light them every night at dinner. Orthodox Christians start a fast to prepare themselves on that day.
Bodhi Day is December 8th, the day Buddhists celebrate the historical Buddha and when he found enlightenment. Those who practice Buddhism, and many who follow that path also worship in other ways including mine, use the day to mediate, each a special meal, and focus on kindness towards others.
Hanukkah is a Jewish festival of light. Due to the lunar calendar it moves throughout December but it starts this year in December 8th as well. It celebrates a miracle when oil that should have lasted only one night, supposedly burned for eight days, keeping the Temple lit and holy.
Las Posadas December 16th to 24th is a 9 day celebration of Jesus’ parents Mary & Joseph. It has been a tradition in Mexico back to the 11th Century. And it’s not as popular as it was as some consider it too festive and not somber enough. But guess where the idea of a Christmas Pageant comes from, yep.
On December 21st this year, the Winter Solstice occurs for us in the Northern Hemisphere. Welcome to the shortest day of the year. Darkness out lasts light. Practitioners of Pagan faith celebrate this date with decorations, and I hate to tell you, but decorating a tree was part of this. In fact, it’s likely we as Christians not only picked up the tree thing from here, but the idea of celebrating Jesus’ birthday around this time of year thanks to this. There is historical evidence of a guy named Jesus in that part of the world. But he was born in the spring, not December 25th.
BTW, on the same day, December 21st, and running to December 25th is Pancha Ganapati. This is a Hindu celebration that honors Lord Ganesha, the Patron of the Arts and the Guardian of culture. Spiritual disciplines are practiced each day. And people are encouraged to make amends to others, settle debts, discuss and encourage art, and make your home beautiful.
Kwanzaa December 26th to January 1st is a week long celebration of African heritage created to honor that culture among those who are the decedents of those taken from Africa in slavery. Each day celebrates one of seven core principles including unity, self-determination, collective work and responsibility, cooperative economics, purpose, creativity, and faith.
December 31st and January 1st are New Year’s Eve and Day. And in our culture it’s time to celebrate the end of one year and beginning of a new one. The ball dropping in Time’s Square is not the only countdown to Midnight. Locally, about 45 minutes away in Port Clinton we have a Walleye (a predator fish on the Great Lakes) Drop. In my wife’s family, who are from Texas, they have a tradition of eating Black Eyed Peas for good look on New Year’s Day. My Mom’s family was very German and it was pork and sauerkraut. My family itself has been going out, like my Mom’s, to a Chinese Buffet for years.
January 6th is one of my favorites. Now depending on culture, it’s either called Epiphany, Theophany (Eastern Christian) or Three Kings Day (Puerto Rico and other Hispanic Cultures). In case you don’t know, the 12 days of Christmas isn’t a countdown to Christmas Day. It starts with Christmas Day and ends on this day. It’s the day to celebrate the Three Magi, sometimes called astronomers, kings or wisemen, making the journey to visit Jesus and give his family gifts on his birth. I spent several years in Puerto Rico, and I can tell you kids would get their presents on January 6th, as that’s when Mary & Jesus got their gifts. BTW, in the biblical story, they don’t visit the baby and his family in a manger. And don’t get too deep into what their visit does to King Herod and his response if you want to keep your Christmas cheer.
So, you can absolutely say Merry Christmas to me. I am a Christian. But if I’m not sure, and because I know that this isn’t even close to a complete list, I will say Happy Holidays to you, unless I know you are one too. We’ll be open until December 22nd. And then off on Christmas Day and New Year’s Day. But no matter which, if any, of these Holidays you celebrate, we hope you have what the main theme is of all of those days, a time of light, of peace, of family and hopefully joy.
Sadly, one of the most common forms of workplace injury and death has come to be workplace violence. You can barely turn on the news most days before you hear about a workplace shooting. But it’s not just guns that injure and kill people on the job. Don’t get me wrong, people with guns do have the ability to injure and kill more of their co-workers than any other means.
Sometimes, it can be something as simple as a piece of rebar, also known as reinforcing bar, a thick & heavy steal bar. Now rebar has a very necessary use in construction. It helps reinforce concrete and masonry work to reinforce walls and allow them to maintain integrity during periods when the other materials become more or less pliable.
But in May of 2013 it was used as a nearly deadly weapon. One of our clients, Robert, was finishing up his shift as a truck mechanic. His company has several facilities in our area. Earlier in the day, he and a driver had a verbal argument at one of the yards. Later in the day, the co-worker decided to get his revenge for the slights he felt he suffered earlier. He picked up a piece of that rebar steel on the ground, walked up behind Robert and struck him repeatedly, pretty much from head to toe.
The co-worker was arrested and sent to prison for a long time. But Robert was left with serious injuries to his entire back, his arms, his skull, and his brain. Along with the very serious effects of this traumatic brain injury, he began to suffer from very understandable issues with Depression and a Panic Disorder with Agoraphobia (a fear of leaving places where you feel safe). Worse still his doctors did not understand Ohio law, as he lived in Michigan, and were running up medical bills that were going to be difficult at best to get paid, and left him without any money yet paid for his time off work.
Two and half months after he was injured, he hired our office. Within sixty (60) days of hiring our office, we had his claim allowed, his time off work benefit aka Temporary Total (TT) flowing, and we were working on issues involving his medical bills and pay rate for benefits. His doctors did all they could, and after fending the Ohio Bureau of Workers’ Compensation off for nearly eight and a half years, the inevitable happen. Robert’s Temporary Total benefits were terminated. But that was the beginning of our fight for Robert to be cared for the rest of his life.
We were able to get him into an evaluation for a program known as Vocational Rehabilitation or Voc Rehab for short. This is an intense effort to get our most seriously injured workers back to work. Done right I have seen them return workers to the workplace I never thought would return to work. A few to better paying jobs than they had before.
Unfortunately, despite connecting him to one of the best vocational firms out there, we were not successful in getting Robert into vocational rehabilitation. But we don’t go away easily, and we used that denial against the BWC. We gathered the evidence and filed for the benefit of pretty much last resort in our system Permanent Total Disability (PTD). Now, PTD is not easy to get. They can only consider the allowed conditions in your claim and their affect on your ability to work. They can also consider your age, your educational level and ANY past work. The Social Security Administration believes that if you have not done a job in fifteen (15) years, you do not know how to do it anymore. But BWC’s position is that if you have ever done that kind of work, you can still do it.
In my first few years of practice I had a woman turned down for PTD based upon secretarial skills she supposedly acquired from a job she worked for about six months about 45 years ago. I argued that case up to the Court of Appeals in Columbus and was able to get a new hearing, and eventually won the rehearing, but it wasn’t on the grounds that she had last worked in an office when the typewriters were manual, computers weren’t in many offices, copiers and fax machines didn’t exist, and "I will connect your call" literally involved connecting a wire to a specific opening to connect the outside to an inside extension. My Grandmother, who worked her way up to office manager started in one of those switchboard jobs.
In PTD application hearings, being capable of being a part time greeter at Walmart, a part time ticket taker at a parking lot or movie theater, or even a part time telemarketer would beat us if the doctors the system hired say you could do that kind of work. Well, the ones they hired when we applied for Robert said just that. He could work, he would need some restrictions and accommodations, but with those, he could return to the workforce.
Well we don’t give up easily. We are allowed to hire a vocational expert to look at all of the medical to help a hearing officer to decide if you can return to work or not. We hired the BWC’s vocational expert who said he was not feasible for a return to work based upon what Robert’s doctors had said. We then had her review the Industrial Commission’s physical and psychological doctors. And she wrote an excellent report explaining that no real job met their requirements for an accommodation.
Then we buckled up and got ready for the hearing. Now PTD is one of our most critical decisions in this system. The worker claiming it usually hasn’t worked in many years. Worse, due to the way the laws on Temporary and Permanent Disability are written, most have not received any type of ongoing money benefits for years. And the employer is facing potentially lifetime of the worker exposure that will run into the hundreds of thousands of dollars range. So we skip this issue to the second level or most senior hearing officers the Industrial Commission has.
We had our hearing a little over a week ago. Normally these hearings take 30 minutes and no decision is made at them. And this was no exception. But the hearing officers are generally very fair and reasonable people who do the right thing in their mind. I did have one where the hearing officer made up facts to deny one of these, but that’s a story for another day. Now I will tell you, that given the work we did to get ready and put the proper evidence in the file, the other side had little choice but to admit this is one we should win. But we are never sure until we get the order or record of proceedings.
Well, this morning I walked in to our office to the news that not only did the hearing officer grant our application, but she granted the start of his benefits back to that last date he was paid Temporary Total. So, Robert will get paid his nearly two years of back benefits, and will be entitled to ongoing money for the rest of his life. If he lives to life expectancy, he will have received over One Million Dollars ($1,000,000.00) in money benefits.
It took 23 hearings (so nearly 2 dozen of the orders below), 3,762 days (aka 537 weeks or 10 1/3 years) worth of work, 953 entries into our case management software that helps run the office, writing 167 letters, and reviewing over 1,650 legal and medical documents to get him there. But to quote Robert, “Kurt you and your team busted you’re a$$es to get me here, but you got me here, thank you”. Now, our pay day won’t be a bad one for all of that work, but likely we’ll have earned a fee less than or equal to about 5% of his Permanent Total Disability benefits or $9 per day since he hired us, when all is said and done. But let me tell you, Robert is the kind of person I went to law school to help. And today we’re celebrating a long, and difficult road, navigated to a good ending.
I am the leader of two organizations that are dream targets for hackers and others with bad intents. The first is my law firm which has sensitive information on our clients including work histories, medical documents, confidential information and of course the holy grail for identity thieves, information like social security numbers, etc. So we are deadly serious about that in our office.
The other is a board member of the Lucas County Board of Elections. In all of Northwest Ohio, we have been briefed that we are the second most cyber attacked entity in the area. Promedica beats us, but no one else comes close. Now that’s not about voting or counting machines. They are in secure rooms, and can never connect in a two way connection the internet.
But our website has information on elections and campaigns and voters, and we are the subject of routine attacks trying to take down or take control of our website to shake confidence in our elections. And yes, this is sponsored by foreign governments, domestic and international terror groups, etc. So we have extraordinary levels of protections and training on fighting it. So much so I have to handle all emails for the board on a cell phone they provide, set up by our IT team in consultation with Federal and State Agencies, as they correctly believe the board members are the weakest link.
I spend a lot of time getting trained on this. This week includes National Computer Security Day, and I thought what better time to tell you about that day and talk about some common sense things you can do to keep your information and devices safe. Now, I’m not an IT expert. In fact I rely on really good ones at both jobs. But first let me tell you about why this National Day was created and then I’ll share some basic tips.
In November 1988, researchers at Cornell University spotted an unknown virus affecting their computer system. Within four hours of discovery, the virus affected several other university systems and it was known as the 'Morris worm’. Within two weeks, National Computer Infection Action Team (NCAT) was created by the US Defense Advanced Research Projects Agency (DARPA). BTW, DARPA kind of created the internet. The Computer Emergency Response Team (CERT) was also created. And so American cyber security efforts took their first big leaps. In 2002, it was decided that National Computer Security Day would be celebrated at the end of November, as an excuse for people to talk more about computer security.
So, how do the organizations I am a part of protect themselves against cyber threats. Well, first, you want to get a great partner. As a small business we lean on our IT vendor GUT Consulting. They are in Maumee and keep our technology running smooth and our devices and data safe. Their website, www.gutconsulting.com has a blog with great tips, and if you run a business or help at a non-profit, call them and hire them. I sleep much better at night with them providing our security and backups.
Now, what can you do beyond that to keep your information safe, well one of the biggest things is update all of your software. You know those annoying software updates that pop up on your screen? Well, they're actually your knights in shining armor! Keeping your operating system, apps, and antivirus software up to date is crucial. Updates often contain vital security patches that fix vulnerabilities, so don't ignore them. Embrace the updates and let them keep your digital fortress secure.
Next, take a look at your passwords I get it, remembering passwords is a pain. But using simple or common passwords is like leaving your front door wide open. Opt for strong, unique passwords for all your accounts. Mix it up with a combination of uppercase and lowercase letters, numbers, and special characters. And remember, never reuse passwords across different platforms. Use a password manager if you need help keeping track of them all. It’s the only way I can keep up.
Now, I am not a huge fan of this one, but it’s very much going to be a part of our future, two factor authentication. It requires a second confirmation you are you to let you into secure sites and files. It can be having to respond with a number that is sent to you by email or text. It's like having a secret handshake that only you and your trusted devices know. I hate it when even food delivery sites do it
Be Mindful of Public Wi-Fi. Ah, free Wi-Fi! It's tempting to connect to that open network at your favorite coffee shop or airport, but beware. Public Wi-Fi can be a haven for hackers. Avoid accessing sensitive information or making financial transactions while connected to public networks. If you must use them, consider using a VPN (Virtual Private Network) for an added layer of security. I have this on my laptop, my cell phone and my ipad. Now you don’t necessarily have to use it for everything, but consider it if you’re going to be doing anything with information some one would want to have.
And last, but defiantly not least is to learn about and avoid Phishing. No, we’re not talking about being a fan of a band called Phish. Phishing is like a digital fishing expedition, where cyber criminals try to trick you into revealing sensitive information. Be skeptical of suspicious emails, texts, or messages asking for personal details or login credentials. Keep an eye out for misspellings, grammatical errors, or odd requests. Beware of any email that claims that really bad things will happen if you don’t act quickly. E.g. if you don’t click on this link and log in, the bad guys will have a $5,000 purchase go through on your Amazon account. Or you’ll be in trouble with the IRS, you won’t get paid., etc.
When in doubt, don't click that link or download that attachment. Go on your own to the website in question. The cyber criminals will go to amazing extremes. They have set up websites that look and act like the real ones. Except when you try to log in to stop that rip off, what you’ve really done is give them the password and log in info the needed. DO NOT open attachments unless you confirm with the sender, who is someone you deal with, that this is something they sent. Stay smart, not phished!
National Computer Security Day reminds us to take charge of our online safety. By following these easy best practices, you'll be well-equipped to protect your information and devices from cyber threats. So, stay updated, create strong passwords, enable 2FA, watch out for phishing attempts, and be cautious on public Wi-Fi. With these tips in your arsenal, you're ready to surf the web like a pro, confidently and securely. Happy National Computer Security Day!
What Happens After Election Day aka Why Faking the Moon Landing would have been easier than the “Big Steal”.
For the last 19 years I have been allowed to go behind the curtain of what we do in this country and state to pull together elections. For 14 years I was appointed by my political party as a Board of Elections Observer (or back when we started it was called Challenger) in many types of elections in about 14 Ohio Counties, mostly my own, Lucas for the Ohio Democratic Party and various county parties. And for the last 5 years I have been one of the four members of the Board of Elections.
I can tell you have seen the whole process now and gone through every training our board offers it’s employees and all of the ones the Ohio Secretary of State’s office and the bipartisan Ohio Association of Elections officials have to offer. So I now know more than most humans about how our elections work in Ohio.
And I can tell you that even by the end of next week, December 1, 2023, we won’t be done with all we do to keep elections accurate and secure for the November 7, 2023 General Election and we are already working on the March 19, 2024 Primary Election.
Like many, I used to think that the numbers you see on Election Night were the official count. They are not. There are literally weeks of checks and cross checks that go into our elections after election night. Since a certain presidential candidate and his supporters don’t want to believe he didn’t get the most votes in either General Election he was in, they have created this idea of how the election was stolen from him. Let me tell you that it truly would have been easier in 1969 to 1972 to have faked the moon landings of the Apollo program. Then again, some of the folks who buy the “Big Steal” also believe that we could create special effects decades before that was possible.
So, let me tell you about the procedures on Election Night and after to get us to the final answer and prevent any kind of major games being played. First, understand in Ohio, and in my county, every ballot is a paper ballot. Whether you are voting by absentee ballot, or a fill in the ovals paper ballot when you vote in person, a provisional ballot, or cast your vote on a touch screen, you are voting on paper.
Our touchscreen voting machines are ballot marking devices. Think of them as the world’s most expensive and tested Number Two Pencil’s. They are given a bar code that tells the machine what ballot to give you. BTW, there is no one ballot in an election, save the Special Election of August of 2023. Because of the various lines for different council, state house, state senate, US Congressional, Library, Fire, School, etc district in our county, we have to create dozens to about 1,300 different ballots for those who vote. You then vote and it records each of those votes in writing. You then take the ballot to a scanner where it gets scanned and stored.
Each piece of equipment was checked by a team of at least one Democrat and one Republican and done in a public forum. Every time we decide if a voter’s registration should be done, or a ballot is issued, it’s done with bipartisan teams. Every time we move a ballot, whether the original electronic copy or the paper original, it’s done with bipartisan teams and tamper resistant evidence seals and at some points also delivered under the watchful eye of a bipartisan team and law enforcement. And all along the way, they those seals and evidence protocols are checked and rechecked by a bipartisan team. If we have ballots or counting equipment in a room at our office, you can not get in there without a Democrat and a Republican swiping an electronic key. And we don’t leave ballots lying around without a bipartisan team watching. This last Election Night, our Deputy Director, a good guy and yes a Republican, had to go up a floor and walk almost the length of a very large building to get me. They needed me to come down to the count room, so that at least one Democrat was in with the people doing the counting. Normally our Democratic IT worker would be in there helping, but his wife went into labor that morning. And our Director, a Democrat, needed to step out and do something but couldn’t until I relieved her. I can tell you would trust our GOP employees in that room with my life, but we don’t with a ballot.
Now, there are tales of copied ballots and foreign powers dropping them off on the shores of our country. Let me tell you I can not tell you, nor have I ever been briefed, as to all of the safeguards on the our ballots, but they are standard ones. The paper is unique, so is the ink. There are specific marks we need to identify the ballot. And there are usually multiple sets. One to identify it not only as our ballot from my county, but pretty close to being able to tell it’s your ballot. There are also ones to feed it through our count machines. They have to align perfectly, keep reading for what happens. And a bipartisan team checks them on the way out and in to make sure they’re legit.
Now, not anyone can print a ballot. We have specific companies we can work with. We have our own in house shop certified to do that too, but because of sheer numbers, we sometimes get help with part of the process. Due to a situation too complicated for this post, on one race, in one village, we had to have a special paper ballot. We hired one of those certified printers to help us get that one created. They made a tiny printing error, measured somewhere between 1/32nd to 1/64th of inch. And we had to remake all of those ballots.
When I say remake, bipartisan teams sit down. The one has a new copy of the ballot, the other the original. Both get a serial number that has to match, but has another color so we know which is the original with issues and which is the remake. And we cross check each other and each ballot. So, when you think about that idea of supposedly printed ballots to stuff in ballot boxes, think of this issue and how they would need to get the printing done perfectly, never mind all of the other safeguards.
Now what we get you on Election Night is called the unofficial tally. Over the next several days other ballots will come in that may or may not count. For instance, any absentee ballot that was post marked the day before the election and gets to us in the timeframe, will so long as all of the security items jibe count. But again on each one, a Democrat and Republican have to agree or send it to us the board. The Board is 2 of each party, and unless we can get to a 3-1 or 4-0 vote, they’re not getting counted.
Also, there are some people who have an issue on Election Day. They requested an absentee ballot, but say they didn’t get it. They forgot to bring the required ID, etc. So, what we do is let them vote a provisional ballot. This is a special paper ballot. It gets put into a security envelope. If you fix the issue you had, e.g. you bring in the ID to us afterwards, then a bipartisan team checks to make sure all of the I’s are dotted and the T’s crossed. There some mistakes we as the board can forgive, e.g. you put down your date of birth as the correct month and day, but made the year the date of the election. Those we can forgive. But there are ones we can’t. But again, we need a bipartisan vote of the board to count those. And we don’t get to see how you voted before we decide if those will count or not.
The staff will then open those in bipartisan teams and deal with any issues, e.g. people have some really different ways of marking a ballot. So sometimes they have to bring them to us, and we have to again vote 3-1 or 4-0 to figure out your intent. And then they remake those ballots too to make them scan properly.
At that point, we get the final, official results. That is unless any race is within 0.01% in which case, we do a recount. Don’t think your vote matters. We have, in my five years as a board member, not once but twice had to flip a coin. We had an even tie. One race was a district that crosses three counties. But again, they were tied. And we have to declare a winner before we do a recount. So, we actually flipped a coin to decide the winner. And then do the recount. I am happy to say we managed to get a coin thanks to our Deputy Director, from the year our county was founded, but we really do toss a coin. So, last time, with the Toledo Blade filming it, I flipped it after one of my Republican colleagues decided which one was heads and which tails. I can tell you the recount on both of these races was yet again a tie, in which case the coin flip is what decided the elected official. Now a recount is a manual hand count and recheck of every ballot in select polling places with not one but two bipartisan teams double checking their work. It’s rare it changes an outcome, but it does sway a few votes here and there.
But if you think we’re done, then, if not a single race is tight enough for a recount, or we did the recount, you would be wrong. You see we do this thing called a risk limiting audit. If you want to see a dorky proceeding, come to our certification meeting of an election, they are public. We will receive marching orders from our boss, the Ohio Secretary of State as to what we have to do. Usually we get told one or two statewide races and a number of contested local races, and we pick the later, by drawing names of offices out of a box or hat. Again, alternating Democrat and Republican. We then put every polling place in the county, with what precincts are on it, and how many votes. And we once again randomly draw polling places until we get to 5% or more of the total vote. We draw one more polling place as a backup.
And then bipartisan teams do a recount of those races in those polling places. And we don’t accept an accuracy rate of less than 99.99%. And we do that every time.
So, again, when you hear about any claim of an election being stolen, imagine convincing Democrats and Republicans to work together, against the interests of one of their candidates, and get past those kind of safeguards (and those aren’t even close to all of them) and stealing or adding millions of votes around the country. It would have been easier to fake the Moon Landings and keep that secret for 50 years. BTW, in case you buy that conspiracy theory, three of the Apollo Moon Landings left laser reflector mirrors on the Moon. Got a high powered laser and the instruments to measure a small amount of light bouncing back? You too can hit one and have your signal bounced back. They have done it around the world many times, and even did it on the Big Bang Theory TV Show. To quote an old joke, we were going to fake them, but we hired Stanley Kurbick to direct the show, and he wanted it to be so accurate, it was cheaper to actually do it.
So, please, vote, and do not buy the rants of people who lost an election. The Democracy you save will be your own.
Thirty years ago, on November 8, 1993, my journey to become a lawyer ended, and my practice began. I was sworn in on that day in Columbus in the Ohio Theater. You can get sworn in at the ceremony in Columbus, or in front of another judge. I had the honor of Justice Paul Pfeifer being the one to swear me in. He had just been sworn as a Justice the year before. He served on the court 23 of my 30 years of practice and was generally one of the nicest and fairest judges on there. And in case you think that is because he was my party or sided with me always, wrong on both counts. I got to be one of the attorneys on an appeal that was decided just a month or so later, and well, it didn’t go our way.
In 1986 I had started in college as a business major, but I decided not to be corporate suit and switched to political science. Thinking I would be like one of the characters on the West Wing, a professional political operative. In fact I have certification in running political campaigns, elected officials offices and running a Political Action Committee (PAC). And I did later in life become one too. But at the time of my undergrad training I went through internships at a Congressional Office, at a Mayoral Office, and for a Congressional Campaign. What I noticed was if these people had spouses they were ex spouses. If they had kids, the kids didn’t want them in their lives. I decided having a wife and kids who actually wanted me around was more important, so law school it was.
If you don’t know in most states you have to get an undergraduate degree, a bachelors and then a Juris Doctorate (JD) to practice. A few states allow you to take the bar exam without the JD so long as you work as a paralegal or legal assistant in a law firm for a sufficient time. For me, 7 years of college. Thanks to a scholarship I ONLY had to ring up $55,000 in student loan debt, adjusting for inflation that’s $117,000 today. BTW, the cost of just that JD today from the same school is about $165,000.
I remember being at conference with a bunch of young lawyers, law students and older lawyers the year after I graduated. Our speaker at the time, then a national expert on the practice of law as a business, now my friend, had all of the students and recent grads stand and he asked us to stay standing until he got to the level of student loan debt we owed. When he got into the $100,000's back then, he said to the older attorneys, no they’re not money hungry, there are in debt.
That conference was the biennial Phi Alpha Delta (PAD) Law Fraternity International Convention. PAD is the largest legal organization in the world. It has members in the United States and it’s territories, Canada, and Mexico. By sheer coincidence the day of the founding of PAD. PAD was founded to help a group of potential lawyers who were, after reaching the end of the process being denied a chance to take the test and practice, due to a new requirement. They got a waiver for those already in the process. The group stayed together to help law students and lawyers be better. So If you like the lawyer I became, you can thank them in part.
Thanks to the training of law school, PAD, and my mentors and family, I’ve had an amazing ride so far. I had the chance to appear before the Ohio Supreme Court and a second chair a jury in my first week. I got to take my first workers’ compensation hearings. In my first few years, I got to practice in a variety of different areas of law including trying criminal and traffic cases both adult and juvenile, domestic relations, personal injury, social security disability, zoning and real estate, bankruptcy and probate. And who knew probate would be the one with the most harrowing story, I’ll tell it some other time, but there are guns drawn in it.
I’ve had the chance to appear before planning commissions, municipal courts, common pleas court, district courts of appeals and the Ohio Supreme Court and the Federal District Court for the Northern District of Ohio in Cleveland and Toledo, and the Social Security Office of Hearings and Appeals and the Appeals Counsel.
I was one of the first batch of Ohio State Bar Associations first crop of specialists, in my Ohio Workers’ Compensation law. And thanks to that, appear before dozens of common pleas courts hundreds of times, four district courts of appeals on dozens of occasions, the Ohio Supreme Court 12 times the actual Industrial Commissioners 17 times and District and Staff Hearing Officers over 19,000 times and climbing.
And I had the opportunity to help out teens of thousands of people, from pro bono efforts, thousands and thousands of working people, and even two of our last three presidents. Ok, the last one I was appointed by the party to be one of their lead observers in multiple counties in multiple elections.
And on that professional political operative thing, well I’ve gotten to stand on the floor of a state party convention as a delegate, and pick the Electoral College Elector from my congressional district. To stand on the floor of the Democratic National Convention to scream an enthusiastic second (along with a few thousand other delegates) as we made a belief of my wife and mine a plank in the party’s platform and also to be there, at the courthouse to make sure that belief came to be reality in my county, and even to meet one of the people who made that a reality. And had the honor to serve as a member of my city’s city council, as chair of my county party’s Executive Committee, to serve on the State Party Executive Committee, and on our county board of elections.
And in the legal field, I have had the honor of serving as the Ohio Captain for the Work Injury Law and Advocacy Group, a national organization for attorneys like myself who represent workers in their workers’ compensation claims. I have had the chance to serve as the Workers’ Compensation Section Chair of the now Ohio Association for Justice (OAJ) and on the Board and Executive Committees and as a PAC Board Member. I’ve had the chance to serve as the Workers’ Compensation Committee Vice Chair and Chair of the Toledo Bar Association. And I currently serve on the Ohio State Bar Association’s Workers’ Compensation Governing Council and Committee.
Now, I wouldn’t be here without the help and encouragement of my Mother, who recently left us after 80 years of life. She encouraged me to look at law, to apply myself, to care about others and gave me the financial backing to get through law school, and when the time was right, the money to start my own law firm.
I also want to thank my wife and kids who had my back, put up with my stress, and encouraged me in all of that. Also an amazing team of secretaries, paralegals, law clerks, firm administrators, and fellow attorneys who helped me be a better attorney along the way. And to the teens of thousands of you who have trusted me to help you out over the years.
Finally, I want to give two special thank yous, beyond my wife, mom and kids. First, and to all the teachers out there, this is why you do what you do, my 7th Grade Teacher, Mr. O’Shea. He took me aside (and it was a Catholic school before anyone panics) and said that I had been given a gift from God, the ability to talk to and relate to people from all walks of life, and that was something I needed to make full use of. I think I did Mr. O’Shea.
And the second to Uncle (my Dad’s Brother) and Aunt, who gave me a graduation card in college, that I framed and sits in my office. It’s a poem Success by Ralph Waldo Emerson, and it’s a definition of what it means to have succeeded, and my favorite line is at the end “to know even one life has breathed easier because you have lived. This is to have succeed”.
As I look around my office at little tokens of thanks that my clients have gotten me, and little symbols of battles won & a few lost, I’ve been told I have. Thank you all for making that possible. Now there is no way I’m going to be around and capable for another 30 years, but I’ll keep up the fight as long as I can help out people who need a voice.
So it’s almost here, one of our favorite days around the office, Election Day. Mind you, Kurt will be a bit tired, and stressed, but we still love the excitement and energy of it.
For years our team has worked to make sure everyone who should get to vote gets to vote by working with Toledo Area Jobs with Justice/Interfaith Worker Justice and their rides to the polls operation 419-VOTE NOW. And helping found and working with the Democratic Promote the Vote/Voter Protection Team. And now we send the boss off to do his board of elections job.
Some people call these Odd Year Elections Off Year Elections. They act as if there aren’t many important issues or candidates as we’re not voting on President, Congress, Governor, the General Assembly, etc. But there are actually more candidates and issues on the ballot save the Presidential primary and party reorganization primaries next year.
In fact, for our readers from Lucas County we’re enclosing the list of all candidates and issues that will appear on the ballot And it’s extensive. We have two statewide issues to vote on Issue One protects a woman’s right to choose would severely restrict limits on abortion. State Issue Two would allow Ohio to join the growing list of states where the recreational use of marijuana would be legal in many circumstances.
Plus there are multiple levies and other questions to vote on. Along with again most cities and villages, mayoral races, city council races, judicial races, and school board positions. These are the people whose day to day decisions effect us the most. So, if you haven’t yet, you should learn about what you’ll be voting on.
If you are a Lucas County voter, go the voter services page of the Lucas County Board of Elections website There you confirm you are registered to vote, where your polling place is (they have to move sometimes) and what candidates and issues will appear on your ballot. In fact you can download a pdf of what your ballot will look like when you go to vote. It really is a great feature.
Now, when you’ve got your mind made up, make your plan to vote. There are three ways you can vote in Ohio, but that last one ends soon. That first one is to request a vote by mail absentee ballot. You don’t have to a reason to vote absentee in our state, but the deadline is almost past on getting a request in. And you can return them by driving them down to your county’s drop box before the end of Election Day. You can mail them, but you a postmark the day before or earlier and they need to arrive no later than a few days post Election Day.
Second way you can vote early in person, although we call those absentee ballots in the technical speak of election administration early absentee, at your county’s Early Vote Center (EVC). All of Ohio’s 88 counties have one. Lucas County’s is located at 3737 W. Sylvania Avenue, not far from Franklin Park Mall. The Entrance is in the back of the building at Entrance C. With this post you find our schedule for early voting in Lucas County but that is the same as all of the other counties.
And the third way is for you to go to your polling place to vote. We are also including a list of what ID you can use to make sure your vote counts. And if you are registered to vote, don’t ever leave without voting a provisional ballot, unless you already voted in this election. The system and the people who run it are far from perfect and mistakes get made. But if you should have your vote count, and vote provisionally, so long as you comply with the law, and fix the issues we say you have, those votes do count to the official tally or outcome.
And for those who don’t know, those numbers we give you are the unofficial tallies. Meaning that they may not be the same when all of the dust settles. The Board of Elections can have a late mail absentee ballot count if it was mailed in time and arrives in time. We can count the provisional ballots that are corrected. So, please be patient. The Board of Elections is staffed by incredible people and their goal, Democrat & Republican alike is to run fair, secure, accurate elections.
Now, if you haven’t already, get out there and vote. The Democracy you save, will be your own.
A Great Coincidence We Can’t Fail to Mention - National Medical Assistants Day & National Paralegal Day - by Kurt
So sometimes there are coincidences that are just too good not to mention. In our practice, in almost every area we practice in, there are two groups of people we can’t live without. And national days to honor them fall two days apart. So you better believe this week’s post is about the two of them, National Medical Assistants Day and National Paralegal Day, or as I call them, the ground troops of the medical-legal system.
National Medical Assistants Day this year falls on October 21st. It is celebrated in the third week of October to give recognition to the professionals who support our doctors and nurses, and in many cases us. The classification covers a variety of professionals who make the medical system work.
Medical Assistant was not a term that was truly defined or honored until the Kansas Medical Assistants Organization in 1955 help found the American Association of Medical Assistants (AAMA). It quickly grew to 15 states. By 1963, it had helped to introduce exams in many states in the United States, creating competencies and standards that transformed the profession and the medical system. In the 1980's the AAMA created Medical Assistants Week to raise awareness about the profession and National Medical Assistants Day.
And their job is not easy. There are over 650,000 members of this profession, the vast majority , three to one, women. And it is growing quickly, with a nearly 20% increase in that number by 2030. They perform many duties in their day including paperwork, collecting medical data from the patient, greeting the patient as they arrive, scheduling appointments, and sometimes even administering medication and injections.
And we frankly couldn’t help our clients without their help on that paperwork aspect especially. Depending on what your medical and financial situation is with an Ohio Workers’ Compensation claim the doctors and other medical providers have to complete Medco-14's C-140's, C-9's, C-30's and Medco-31's while tracking which of these are needed, how to fill them out and who to get them to. And we see what the AAMA says is true, it’s a very demanding job with 32% of people leaving it within the first 1-2 years and only 6% making it eleven years or greater.
Now, besides working with them, and representing many of these skilled people, how do I know so much? Well I’m the Son of one. My Mother was a medical secretary, and later practice manager for several medical practices. So as I have said to several many doctors and medical staffs over the years, I’ve got to be nice to you, my Mom would kick my butt if I didn’t show you the proper respect.
Now, just two days later is National Paralegal Day, October 23rd. When explaining to clients what these professionals do, I us the analogy of medical assistants and nurses, and what they do for doctors is what paralegals do for attorneys. That is do the skilled, hard work, and we get to step in, maybe check some work, and get on to other things.
The terms Legal Assistant and Paralegal are used pretty closely, but in my mind, a paralegal usually handles a bit more complicated legal tasks including drafting legal documents. Legal assistants usually take do more fill in the blank completion, but believe me, we need them both
n 1973, the National Association of Legal Assistants (NALA) produced a series of seminars and workshops for people who helped lawyers in law offices. Eventually, the National Federation of Paralegal Associations (NFPA) brought in about 15 other member organizations, established a code of ethics for paralegals and created a task force on credentialing criteria. Today the NFPA is comprised of 50 member organizations and 9,000 individual members.
And I can not operate without skilled legal assistants and paralegals. But I haven’t just had the honor to work with many of them in my 3 decades of doing this. I also got to teach as an adjunct instructor in the paralegal program at Stautzenberger College. I have also been a frequent guest lecturer for the University of Toledo’s program as well. And have had the honor of talking to the members of the Paralegal Association of Northwest Ohio (PANO) about our practice and how their help is vital.
So, what can we do to honor these two groups of professionals. So, whether you are a client, a patient, a lawyer or a nurse or doctor, here’s some ways you can do so:
1. Thank them in person the next time you see one at an office, clinic or hospital.
2. Send flowers or a card or goodies to the office with a thank you.
3. Make sure their bosses know about their good work, I always write and thank doctors and their teams for the hard work they do for our clients and do try to end every assignment to my with a thank you and recognition of them in front of our clients
4. Leave positive reviews online that praise not just the doctors and nurses, or attorneys but the team behind them.
5. Use the hashtag on social media - #MedicalAssistantsRecognitionDay for the amazing Medical Assistants and #NationalParalegalDay for the paralegal and legal assistants who help you out.
And I want to say thank you to every paralegal who has worked for us over the years and a few of the Medical Assistants who make our lives easier her at the Law Offices of Kurt M. Young. And this is in no way an exhaustive list, let me tell you. Over at Dr. Daniel Lollar’s office, Laura makes our clients feel like they are in good hands from the get go, and make sure that whatever we need is ready for our clients’ claims. And Lisa can tell you that as a patient as well. The same is true for Natalie and the team at 1st Choice Chiropractic. Drs. Connie Smith, Tim Trax and Casie Carr provide both excellent care, and get the job done for us on paperwork as well and Kurt can testify to that as a patient from time to time. Paibol and the team at Dr. Nathan Hill’s office deal exclusively with our crazy workers’ compensation system and take on the cases that many doctors run from. Last, but certainly not least is Jason Luginbuhl over at the University of Toledo Medical Center Orthopedics Department. Jason has been there for dozens up dozens of our clients and I can tell you I can’t name an attorney who does what I do that wouldn’t agree with this list.
So to the men & women who take care of us at doctors and lawyers offices’ thank you!
We are coming to the end of Hispanic Heritage Month. It runs from September 15th to October 15th. I can tell you for years I was confused as to why the month didn’t start on the first day and end on the last day of a month. But let me just say it’s not the job of those in a culture that has been treated as less than, to explain it to us who are currently treated better. We have a duty if we’re going to be good allies, friends and neighbors to do that for others So in getting ready to post about this, I did some research, and I want to share the info with you.
There is indeed a very good reason that time frame was selected. The month begins in the Middle of September and ends in the middle of October because so many Central American Countries gained their independence during that month, beginning on September 15 with Costa Rica, El Salvador, Guatemala, Honduras, and Nicaragua; September 16th is Mexico’s not Cinco De Mayo as some believe; September 18th for the people of Chile; and September 21st for the people of Belize.
According to the US Census Bureau almost 20% of the population are Latinos. Now there some debates about the words Hispanic & Latino. They are the most commonly used words to describe Americans whose ancestry includes Latin American and Caribbean. Some use Latino to describe people with cultural or ancestral ties to Latin America or the Carribean. Others include Black and Indigenous people. Hispanic is usually referring to the connection to Spain or the Spanish language.
Much of the Western US was part of Mexico. And Latinos and Latinas have contributed to our nation going back to serving in the US military back to the Colonial Army & Navy to the Present including Marcelino Serna who was the first Hispanic to win the Distinguished Service Cross as a Marine in WW I to Medal of Honor Recipients like Macario Garica for his service in WW II. We have brought into our culture contributions from Hispanic artists in all forms of the arts. Many people focus on the achievement of Latinos and Latinas in sports as competitors, but they have also contributed to our national past time as coaches and Linda Alvarado was the first woman to own a Major League Baseball Franchise, the Colorado Rockies.
Latinos and Latinas have contributed to our national movements to protect the rights of workers including Dolores Huerta, Cesar Chavez and Northwest Ohio’s own Baldemar Velasquez and the Farm Labor Organizing Committee (going to have to name drop twice in one paragraph, Baldemar and is team at FLOC has our firm Administrator Elizabeth “Lisa” Ayala and I come to FLOC headquarters and talk about how our firm stands up for workers and the profession of lawyers and paralegals to their youth organization). Sylvia Rivera was a strong voice to stand up for the LGBTQ community. And our legal system is gifted with many fine attorneys and judges all the way up to Associate Justice Sonya Sotomayor (and I couldn’t resist saying my Law Fraternity Sister who welcomed myself and a group of my fellow Phi Alpha Delta members as members of the Bar of the Supreme Court of the United States when I was sworn in back in 2014)
If you’ve not seen the contribution of the Hispanic Community’s members to our Television, Movies and even theater, you’re not paying attention. Since the 1970's Cheech Marin has been giving myself and my family a reason to laugh. But he’s also is a huge advocate for all forms of Hispanic involvement in the arts. And he helped open the door for too many amazing Latino and Latina comics to list. Lin Manuel Miranda’s talents are on display as a song-writer, play-write, singer and actor from Broadway’s “In The Heights” set in a predominately Hispanic Neighborhood and his even more widely known smash “Hamilton”. Not as many people known about he has helped guide the music of shows like “Moana” and “Encanto”. And has performed in television shows as himself and as character parts; and in live action movies like “In the Heights”, and “Mary Poppins Returns”.
And forgive me a moment of geeky privilege and drop a relative by marriage into this mix. You only need to hear his most famous character’s name to know who the relative and their Hispanic spouse, “Ricky”. But he was also a talented musician and comedian before Television. But few know about what he helped do to the business of Television and our Pop Culture too. Along with my fourth cousin, his wife Lucille, they founded Desilu Productions. Which they ran together for 12 years until they divorced. Desilu Productions started out as their company to produce their traveling music and comedy shows. But it expanded into movies and TV shows.
Two of their creations have remained pop culture icons to this day. They helped create and protect Mission: Impossible and Star Trek among their over two dozens series with at least one season on air.
And outside of being entertainment entrepreneurs, Hispanic women & men have given us iconic fashion companies like Carolina Herrera and Jennifer Lopez (and you know the music and acting thing) just to name the most well known; Dr. C. David Molina founded Molina Healthcare, Inc. originally as healthcare clinics to serve working families in Southern California and grew in into an over 90 Billion Dollar in revenues Healthcare Company.
And we at the Law Offices of Kurt M. Young want to salute our own, Lisa Ayala. Lisa is the daughter of two amazing immigrants from Mexico. Along with helping run our firm, she has served on the Board of community groups, as a Treasurer for a congressional campaign, but also is not afraid to roll up her sleeves and deliver meals with Mobile Meals. She is a single Mom who raised an amazing Son, and is now, as she calls it Glam ma aka Glamorous Grandma. .
So as this month comes to an end, take a moment to learn about the contributions of Latinos and Latinas. Learn about some of these great Americans, their and others contributions to our culture, our legal system, and more And go and maybe support a Hispanic owned business. And thank you to our clients and neighbors whether they call themselves Hispanic or Latino
International Coffee Day is October 1st. The exact origins of International Coffee Day is unknown according to the Wikipedia. But an event that was first promoted in Japan in 1983 by the All Japan Coffee Association is one of the first references to it. United States "National Coffee Day" was mentioned publicly as early as 2005.The name "International Coffee Day" was first used by the Southern Food and Beverage Museum in October of 2009.
And we at the office are huge fans. Kurt is a huge Biggby Coffee fan, which is a regional chain of coffee shops that has been in business since 1995. It started in Lancing Michigan, It has spread through Michigan and Northwest Ohio, but even he didn’t realize until we picked this article it was now through out those two states and ten others as far south as Florida, West to Idaho, and East to New Jersey and the Carolinas. He loves their frozen, Mocha Mocha Lattes. Then again they are essential a frozen espresso and chocolate shake.
And of course we're all hooked on local roaster Bea's Blend. They offer quality freshly roasted organic, fair-trade coffee roasted here in Toledo. We won't repeat the nickname we have used in the past to describe it quickly to others, but we can tell you that's because of how addictively good it is. And for a substance that does alter your mood and body chemistry, caffeine, it's as healthy as you can get.
We always have some coffee brewed and waiting at the office for our team and if not, a very kind client bought us a Keurig machine that can brew you an individual cup if you visit. Has a huge collection of coffee mugs, with Kurt having a few of his favorites from a local comic, the West Wing and an internship with a Member of Congress years ago. And a few years ago, Kurt bought himself, Lisa and a vendor that helps us help clients training and job search help to get back to work, matching travel coffee mugs with Chaos Coordinator, because butt kicking, multitasking, problem solving miracle worker isn’t a job title, just a description.
Lisa is a huge McDonald’s coffee fan. She performs many roles for our firm, from Administrator to head paralegal. On top of that she does some work for our landlord in helping him run our and other buildings he owns in the area. She loves to stop and get one loaded up with five creams. Despite loving her McDonald’s coffee, and not being Catholic, she has adopted the practice of giving up something she loves for Lent as it’s her McDonald’s coffee.
But this post really isn’t about our favorite coffees, coffee shops or mugs. As a way to tie into International Coffee Day, and get your attention, we started there. But really we wanted to talk about how the insurance and business lobbies have used panic about certain high profile cases to justify moves to limit what injured people get, to make business more profitable.
Over the years certain widely publicized cases have been used to scare the public and limit what injured and disabled people can get. But that’s what they are generally, scare tactics. And worse still, these limits, called generally tort reform, really haven’t resulted in insurance premiums dropping for doctors, small business owners, home and car owners, etc. And for instance Kurt calls the compromise that created workers’ compensation in Ohio as one of the first tort reforms out there, when explaining what workers and employers got out of the creation of our system.
The most famous scare tactic, justification for these limits is the infamous McDonald’s Coffee Case. Let us tell you some facts of the real story, with a heavy assist from our brothers and sister of the Texas Trial Lawyers Association and an article they published on the subject. Many people have heard that a woman placed a cup of McDonald’s coffee between her legs to add things to it in the car and she suffered so small burns and wanted a fortune for it. From that article, here’s some real facts.
Stella Liebeck, 79 years old, was sitting in the passenger seat of her grandson’s car having purchased a cup of McDonald’s coffee. After the car stopped, she tried to hold the cup securely between her knees while removing the lid. However, the cup tipped over, pouring scalding hot coffee onto her. She received third-degree burns over 16 percent of her body, necessitating hospitalization for eight days, whirlpool treatment for debridement of her wounds, skin grafting, scarring, and disability for more than two years.
Despite these extensive injuries, she offered to settle with McDonald’s for $20,000. However, McDonald’s refused to settle. And made her the greedy scapegoat of public relations offensive and fought her to the bitter end on her case.
When all was said at done at the trial, the jury awarded Liebeck $200,000 in compensatory damages -- reduced to $160,000 because the jury found her 20 percent at fault -- and $2.7 million in punitive damages for McDonald’s callous conduct. (To put this in perspective, McDonald's revenue from coffee sales alone is in excess of $1.3 million a day.) The trial judge reduced the punitive damages to $480,000. Subsequently, the parties entered a post-verdict settlement.
Now you may ask yourself, how could that out of control jury and judge award her anything let alone that much. Well again, read above, they did reduce everything because yes, yes it really isn’t the brightest move ever to put hot coffee between your legs in car that could be moving any second.
But here are some facts, from Stella’s lawyer, S. Reed Morgan, that the jury heard in the evidence presented at trial:
By corporate specifications, McDonald's sells its coffee at 180 to 190 degrees Fahrenheit;
Coffee at that temperature, if spilled, causes third-degree burns (the skin is burned away down to the muscle/fatty-tissue layer) in two to seven seconds;
Third-degree burns do not heal without skin grafting, debridement and whirlpool treatments that cost tens of thousands of dollars and result in permanent disfigurement, extreme pain and disability of the victim for many months, and in some cases, years
The chairman of the department of mechanical engineering and bio-mechanical engineering at the University of Texas testified that this risk of harm is unacceptable, as did a widely recognized expert on burns, the editor in chief of the leading scholarly publication in the specialty, the Journal of Burn Care and Rehabilitation;
McDonald's admitted that it has known about the risk of serious burns from its scalding hot coffee for more than 10 years -- the risk was brought to its attention through numerous other claims and suits, to no avail;
From 1982 to 1992, McDonald's coffee burned more than 700 people, many receiving severe burns to the genital area, perineum, inner thighs, and buttocks;
Not only men and women, but also children and infants, have been burned by McDonald's scalding hot coffee, in some instances due to inadvertent spillage by McDonald's employees;
At least one woman had coffee dropped in her lap through the service window, causing third-degree burns to her inner thighs and other sensitive areas, which resulted in disability for years;
Witnesses for McDonald's admitted in court that consumers are unaware of the extent of the risk of serious burns from spilled coffee served at McDonald's required temperature;
McDonald's admitted that it did not warn customers of the nature and extent of this risk and could offer no explanation as to why it did not;
McDonald's witnesses testified that it did not intend to turn down the heat -- As one witness put it: “No, there is no current plan to change the procedure that we're using in that regard right now;”
McDonald's admitted that its coffee is “not fit for consumption” when sold because it causes severe scalds if spilled or drunk;
Liebeck's treating physician testified that her injury was one of the worst scald burns he had ever seen.
Moreover, the Shriner’s Burn Institute in Cincinnati had published warnings to the franchise food industry that its members were unnecessarily causing serious scald burns by serving beverages above 130 degrees Fahrenheit.
In refusing to grant a new trial in the case, Judge Robert Scott called McDonald's behavior “callous.” Moreover, “the day after the verdict, the news media documented that coffee at the McDonald's in Albuquerque [where Liebeck was burned] is now sold at 158 degrees. This will cause third-degree burns in about 60 seconds, rather than in two to seven seconds [so that], the margin of safety has been increased as a direct consequence of this verdict.”
When you hear this little tale of danger to small business, property owners, remember the real facts of this case from witness testimony found credible by a judge and jury of people like you. McDonald’s knew of the dangers of their coffee for 10 years before Stella was hurt. They served it at that temperature to make inferior coffee taste better and make more profits. And in the 10 years leading up to that day, over 700 customers and dozens of employees suffered to that same part of the body as Stella. Why? Because we do sometimes put coffee there to mix in our favorite ingredients. And at those temperatures, it’s impossible to get the coffee off you fast enough to prevent burning.
So, the next time you hear the call of tort reform using this case, or others like it, remember, juries are made up of people like you. Politicians by putting limits on what hurt people can prove they deserve to keep profitable insurance companies, who interestingly tend to give big campaign contributions to their favorites in Columbus and Washington. And those costs go somewhere, usually onto all of us as taxes to pay for Medicare, Medicaid, or in higher medical bills for us due to hospitals and doctors not getting properly paid for their work.
If you ever do get hurt on the job or elsewhere by a defective product or careless person, if at work that can even be you, give us a call. Our attorneys have decades of experience helping workers and the disabled get help. They offer free no cost, obligation initial consultations. And if they don’t handle that kind of case, they know a qualified attorney who does. Call us at 419-244-7885 and let us help guide you to the best outcome in bad situation.