OSHA was created by the Occupational Safety and Health Act of 1970; the goal of the Act is to ensure that employers provide employees with a work environment free from recognized hazards, such as exposure to toxic chemicals, falls from elevated places, mechanical dangers, or unsanitary conditions.

To ensure the safety of employees, OSHA created a vast list of safety requirements that employers are required to comply with.  For example, an employer is required to instruct each employee in the recognition and avoidance of unsafe condition(s) and the regulation(s) applicable to the employees work environment to control or eliminate hazard(s) or other exposure to illness or injury [29 CFR 1926.21(b)(2)].

In addition to general safety requirements, an example of which is above, there are also safety requirements specific to the type of tool or machinery utilized on the job site.  For example, if a scaffold is in use, the planks must extend over their end supports not less than 6 inches nor more than 18 inches [29 CFR 1910.28(a)(13)].  Or, if a portable circular saw is in use, the saw must have an upper guard that covers the entire blade of the saw and a retractable lower guard [29 CFR 1926.304(d)].

When a new client comes to our office with a construction accident injury, one of the first things our office does is review the facts for violations of the OSHA requirements.  If a violation is found, a report is made to OSHA.

Upon receiving a report of a violation, OSHA will investigate, which usually includes a site visit to the location of the accident and/or an inspection of the employers shop.  If a violation is found as a result of the inspections, OSHA will issue a Citation and Notification of Penalty.

OSHA violations are classified as: 1. “Other Than Serious Violation”; 2. “Serious Violation”; and 3. “Willful Violation”.  A willful violation carries the largest fine; Other Than Serious carries the smallest fine.  Violations can also be categorized as a “Repeat Violation” or a “Failure To Abate Prior Violation”.

Once an employer receives a Citation and Notification of Penalty, the employer can either pay the fine, or partake in an informal conference in attempts to reduce the fine.  If the employer is unable to reduce the fine as a result of the informal conference, the employer can also contest the violations and penalty before the OSHA Board in Washington D.C.

The benefit of utilizing the OSHA process for prosecuting personal injury claims is that the OSHA paperwork regarding violations and citations can be obtained via a Freedom Of Information Law request, thereby providing an attorney with proof of the employers’ negligence and responsibility for the employees’ injuries.  Further, since they are issued by a Federal Governmental Agency responsible for employee safety, the OSHA violations carry significant weight and are thus a valuable tool for use in settlement negotiations and/or trial.

Thank you for taking the time to read our blog.

So what’s next?  How do you get the case restored to the trial calendar?  In our particular case, the matter was venued in Queens.  Pursuant to local TSP part rules, a stipulation is the first option for getting the case restored.  The TSP part can provide a template stipulation which can be signed by all parties to restore the case to the calendar.  The substance of the stipulation states that 1.  all discovery is complete; 2. specifies a date the Note of Issue is to be filed, and 3. specifies a date a conference is to be held, 90 days after the Note of Issue is filed.

In our consolidated action, getting all parties to stipulate to returning the case to the calendar was simply not possible – getting all parties to agree was a non-starter – which leads to the second option for restoring the matter to the trial calendar, a motion to restore.

First, the motion to restore requires an Affirmation of Attempts to comply with the aforementioned TSP part rules.  Simply stated, the Affirmation of Attempts states that you attempted to get all parties to sign the stipulation but were unsuccessful.  In Queens County, the Affirmation of Attempts must be affixed to the Notice of Motion.

Second, the substance of the motion should note that when the note of issue has been vacated, the case reverts to its status as a pre-note case.  Andre v. Bonetto Realty Corp., 32 A.D.3d 973, 974 (2d Dep’t 2006).   Further, in the absence of a 90-day notice pursuant to CPLR 3216, restoring a case marked inactive is automatic.  Matter of Transtechnology Corp. v. Assessor, 71 A.D.3d 1034, 1037-1038 (2d Dep’t 2010); Andre v. Bonetto Realty Corp., 32 A.D.3d 973, 974 (2d Dep’t 2006); Klevanskaya v. Khanimova, 21 A.D.3d 350 (2d Dep’t 2005).

Third, as a practical matter, when the case involves consolidated actions and other parties are hampering or hindering the prosecution of the case, it may be wise to include in the motion to restore a branch seeking severance pursuant to CPLR §603, if required, preferable, convenient, or necessary to restore the matter to the trial calendar.  When arguing in support of severance, demonstrating prejudice to your client is necessary to sever the matters.  Has your client suffered as a result of the delay? Has your client become of recipient of public assistance as a result of the delay?  These two examples can demonstrate prejudice in support of severance.

While restoring a matter to the calendar can be tedious, it is necessary to move the case forward.  Hopefully after reading our blog, restoring a case to the calendar will become a little easier for you – should you end up marked off the active calendar.

Thank you for taking the time to read our blog.

If a decision gives a direct order to serve with notice of entry within a specific time frame, failure to do so shall make the decision irregular and void.  Moreover, if a decision has language such as to serve all parties “without undue delay” it could be considered a violation of CPLR § 2220(a) if the winning party waits to long to serve the decision with notice of entry on their adversaries.  The civil procedure rules clearly state that a violation of CPLR § 2220(a) may result in deeming the order irregular and vacating the same.

We recently had a case where an adversary waited a year to serve a decision granting him summary judgment with notice of entry and failed to provide any good cause reason for their year long delay.  Moreover, they were directed by the Court to serve “without undue delay”.  Under no circumstances could the defendant-respondent’s year long delay in serving the order with notice of entry be considered “without undue delay”.  In most circumstances the service of an order should be accomplished within thirty (30) days of its filing.  Defendant waited twelve (12) months which clearly shows undue delay.  This issue is currently pending before the second department and we will soon see what the ultimate decision will be.

Now there are other oral decisions which a judge may render for the bench and then require the winning party to order the Court minutes so that they may be signed and filed.  Failure to submit the transcribed decision to the Court for signature within thirty days will make the decision null and void as per the New York Code Rules & Regulations.

The National Toxicology Program, U.S. Dept of Health and Human Resources, has created a comprehensive report entitled Monograph on Health Effects of Low-Lead, 10/14/2011, peer reviewed November 17-18, 2011. Specifically, this literature makes conclusions on the effects of blood lead levels with a focus on BPb levels less than 10ug/dL.  As described in Section 1.2.2, the NTP’s conclusions were derived by evaluating data from epidemiological studies with a focus on blood Pb levels <10µg/dL.  The evidence is discussed for specific health outcomes within each chapter, and varies by the study design and type of analysis used to examine the relationship of the health outcome with blood Pb across the hundreds of studies evaluated. In some cases, authors restricted the analysis to the population with blood Pb levels <10µg/dL, <5µg/dL, or even lower and the association of the health effect with the blood Pb level is clear.  For example, Lanphear et al. (2000) reported an inverse relationship between blood Pb and academic performance in a cross-sectional study of 4853 children ages 6-16 from the NHANES-III dataset; the association with blood Pb remained significant in further analyses restricted to 4681 children with blood Pb <10µg/dL (p<0.001), and 4043 children with blood Pb <5µg/dL.  In other cases, the authors reported a significant association between blood Pb and an effect in a population with a mean blood Pb level <10µg/dL.   These analyses support an effect of a blood Pb level <10µg/dL, but they do not exclude the possibility that individuals significantly above or below the mean blood Pb level are driving the effect.

As described above, the NTP’s conclusions were derived by evaluating data from epidemiological studies with a focus on blood Pb levels <10µg/dL. The evidence is discussed for specific health outcomes within each chapter, and varies by the study design and type of analysis used to examine the relationship of the health outcome with blood Pb across the hundreds of studies evaluated.  In some cases, authors restricted the analysis to the population with blood Pb levels <10µg/dL, <5µg/dL, or even lower and the association of the health effect with the blood Pb level is clear.  For example, Lanphear et al. (2000) reported an inverse relationship between blood Pb and academic performance in a cross-sectional study of 4853 children ages 6-16 from the NHANES-III dataset; the association with blood Pb remained significant in further analyses restricted to 4681 children with blood Pb <10µg/dL (p<0.001), and 4043 children with blood Pb <5µg/dL.  In other cases, the authors reported a significant association between blood Pb and an effect in a population with a mean blood Pb level <10µg/dL.

Several population based and epidemiologically based peer-reviewed studies and a Federal Report, collectively reach consistent and convergent disease-related outcomes, such studies are then translated into standards of pediatric and medical management of individual children (and adults). Thus, based upon this convergence and consistency in population studies, recently recognized outcomes of childhood lead poisoning have been established. The link between ADHD and lead has been established.

By the mere act of standing on a ladder, one would imagine that they are thus subjected to an elevation-related risk – you’re on the ladder so you are subjected to an elevated-risk, appears simple.  However, unfortunately it’s not that simple.  The mere fact that one is on a ladder does not automatically invoke the applicability of Labor Law §240(1).

New York Labor Law §2401(1) provides that “All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.”

The key to invoking applicability of §240(1) and thus obtaining the strict liability offered by the statute is that the work must be performed in “the erection, demolition, repairing, altering, painting, cleaning, or pointing of a building or structure”.  This quoted language can be an obstacle to obtaining coverage under §2401(1) – if the hanging of the sign does not involve the erection, demolition, repairing, altering, painting, etc, then hanging the sign is not covered under §240(1).

Appellate Decisions regarding sign hanging and Labor Law §240(1), can appear inconsistent.  Work that one court finds to be alteration, another court may not.  However, one constant revolves around the amount of work it takes to hang the sign – the more effort required, the more likely the work is considered alteration and thus §240(1) will apply and the owners and contractor are strictly liable for the workers injuries.

For example, the First Department in Futterman v. Rela Realty Corp., 283 A.D.2d 261 (1st Dep’t 2001), found that hanging an interior sign from an existing platform was not directed at effecting the sort of significant physical change to the building as would have brought the work within the protective ambit of Labor Law §240(1).  Also, the Fourth Department, in Jones v. Bartlett, 275 A.D.2d 956 (4th Dep’t 2000), found that standing on a ladder and hanging a banner from a sign frame was not engaging in work protected by Labor Law §240(1).

Seemingly indistinguishable fact patterns from the above cases have rendered different results.  For example, the Second Department in Vasquez v. Skyline Const. & Restoration Corp., 8 A.D.3d 473 (2d Dep’t 2004), found that standing on a ladder to install a sign on the building is the type of work contemplated by §240(1).  Similarly so, the Third Department in Lawyer v. Rotterdam Ventures, 204 A.D.2d 878 (3d 1994) found that there was little question that standing on a ladder to install a sign is the type of work contemplated by Labor Law §240(1).

The one constant referenced above is that where more work is required to hang the sign it is more likely the activities are covered by §240(1). For example, the Second Department in LaGiudice v. Sleepy’s Inc., 67 A.D.3d 969 (2d Dep’t 2009) found that drilling through cinder blocks and feeding electrical wires through the hole to connect to the sign was significant enough to be considered alteration and thus §240(1) was applicable.

In sum, merely standing on a ladder to hang a sign may not afford an injured worker the protections of §240(1), however, the more work that must be done to hang the sign – the more likely the work will be covered by Labor law §240(1).

First, a plaintiff is entitled to receive money damages for economic loss and for pain and suffering. Economic loss is awarded to compensate the plaintiff for money that was lost or will be lost as a result of the injury.  For instance, if you were involved in a car accident and were unable to work for a certain period of time you are entitled to be compensated from the liable party for your lost wages.  You are also entitled to be reimbursed for medical expenses along with additional out of pocket expenses that you were forced to pay as a result of the accident.  These numbers can be easily calculated by adding up your lost wages and your lost expenses, a plaintiff is entitled to receive full compensation for all of their past economic damages.

If the plaintiff is continuing to have ongoing medical care and/or is unable to go back to work at the time of the trial/settlement, the injured party may also be entitled to receive compensation for future economic damages.  These damages are more speculative and often necessitate expert witness testimony.  Future economic damages include future medical care, future surgeries and future monetary income from a job that you can no longer perform.  If properly established, a plaintiff is entitled to receive full compensation for these future economic damages.  These medical damages are calculated by adding up your foreseeable medical expenses along with any future medical expenses.  Future lost earnings are calculated by adding up what your future income would have been and may include future raises or promotions that you would have been entitled.

A plaintiff is also entitled to receive money damages for all of the pain and suffering they have endured since the date of the accident, along with the future pain and suffering they continue to endure as a result of the injury.  These non-economic damages are much harder to value and are subjective to the evaluator.  It is interesting to note that the demographics of the County in which you filed your lawsuit have a large impact on how much your pain and suffering is worth.  Statistics show that juries in some New York Counties value pain and suffering greater than other Counties.  Therefore, the same case in one County could be worth substantially more than if it is brought in another County within New York State.  It is a factor that must be considered when initially filing a lawsuit.

Damages can also be reduced depending on the extent of the liability of the defendant party.  If the plaintiff is partially responsible for the accident the value of the case will be reduced by that percentage which is the plaintiff’s own fault.  Also, the plaintiff’s recovery may also be reduced if they have a pre-existing injury which effects the portion of the body which was involved in the accident in question.

While this is by no means a comprehensive description of everything that goes into valuing a personal injury case, it is a basic outline to follow when determining what a case may be worth at settlement or trial.

Municipalities, like any other large bureaucracy, maintain massive amounts of records, files and information.  Specifically relating to the example of our firm’s medical malpractice action, a record containing the costs of home health aide aides are maintained by the New York City Department of Human Resources Administration (http://www.nyc.gov/html/hra/downloads/pdf/services/micsa/hcsp_vendor_rates.pdf).

CPLR §4518(c) provides that “All records, writings and other things referred to in sections 2306 (hospital records; medical records) and 2307 (books, papers, and other things) are admissible in evidence under this rule and are prima facie evidence of the facts contained, provided they bear a certification or authentication by the head of the hospital, laboratory, department or bureau of a municipal corporation or of the state, or by an employee delegated for that purpose or by a qualified physician.

Further, social services agency constitutes a business for the purposes of CPLR §4518.  People v. Montroy, 225 App Div 2d 913 (3d Dept 1996).  Thus, the record of the New York City Human Resources Administration (“HRA”) that contains the costs of home health aid is admissible AND, more importantly, are prima facie evidence of the facts contained, provided the records bear a certification or authentication of the department or bureau head.

Furthermore, the dictates of CPLR §4518(c), provides that “Certain business records may be received in evidence without having been authenticated by their maker, but only if they are certified in accordance with CPLR§4518(c)”.  Peerless Ins. Co. v. Milloul, 140 App Div 2d 346 (2d Dept 1988).

In simpler terms and relating it to our firm’s medical malpractice case, if the record from the HRA is certified or authenticated, it comes into evidence and is sufficient proof of the cost of a home health aid, no costly expert required.

The court in 20-22 Prince LLC v. Tsue Kwai Yen, 32 Misc. 3d 1224(A) (2011) was presented with a situation identical to the situation our firm faced regarding the admissibility of HRA records.  The 20-22 Prince LLC court noted that it was undisputed that the records are certified, and with respect to the admissibility of the records stated that the HRA records can come into evidence under CPLR §4518(c) because they are clearly municipal records that fall within the parameters of the statute.

Equally so, in our firm’s case, the court found that it was undisputed that the records were certified and admitted them into evidence pursuant to CPLR §4518(c) since they were clearly municipal records that fall within the parameters of the statute.  The result, over a half million dollar in additional damages for the cost of a home health aid, and no costly expert needed to prove the damages – now that’s a better way!

Knowing little about Ms. Bondojia’s civil claim, it is hard to evaluate whether or not she has a legitimate claim for damages.  But this news article raises an interesting legal issue.  I regularly am asked what constitutes a harmful tripping condition in a retail store and under what circumstances can a customer recover for personal injuries that were sustained as a result of tripping on the hazard.

The short answer is, it depends.  When evaluating a premises liability case to determine if the case is compensable there are certain elements that a lawyer must look for.  First, is there an identifiable hazard and is there documentation of the hazard.  Documentation can be pictures, videos, witness statements or incident reports taken at the scene of the accident. Second, the fall must be documented; a fall can be documented by surveillance video, incident reports, police reports, ambulance reports or witness testimony.

Once you determine if there is a documented hazard and accident it is necessary to determine if the hazard is in violation of any laws, statutes, regulations, codes and/or policies.  Most areas have a strict set of building codes that identify what types of defects are dangerous and which defects must be corrected to be compliant with local rules.  A defect does not have to be in violation of local building code to be a tripping hazard but if it is in violation of a rule it is evidence of negligence upon the premises owner.  An attorney should research the local rules/codes in your area prior to accepting a possible trip and fall case.

Next, it is extremely important to determine how long the hazardous condition had existed prior to the customer’s fall.  A premises owner is only liable for defects on their property which they had actual notice existed of prior to the accident or a defect that has remained on their property for a reasonable amount of time so that a store manager or store employee should have noticed and corrected.  For example, if you are in a super market and the person in front of you drops a gallon of milk, if you slip in that milk immediately after it falls on the floor it is not the responsibility of the store because they would not have had enough time to identify the spill and correct the slippery floor.  However, if the a customer drops a gallon of milk, it remains unnoticed for several hours and later someone slips in that milk and hurts themselves, that person may have a legitimate claim against the store.

Finally, you must assess the damage the person sustained as a result of the fall.  A lawsuit is a long and time consuming process, a prospective plaintiff and their lawyer must know that the end result would be worth the effort to initiate a lawsuit.  You must evaluate the injury and determine its severity and whether it is temporary or permanent.

Only after analyzing the above factors can a lawyer determine if a person has a meritorious trip and fall claim.

Some studies have suggested harmful effects at even lower levels, but the body of information accumulated so far is not adequate for effects below about 10 ug/dL to be evaluated definitively.

At P. 2. The Abstract to the 2007 CDC Report summarizes current knowledge regarding low level lead poisoning:

• “Lead is a common environmental contaminant, and exposure to lead is a preventable risk that exists in all areas of the United States. Lead is associated with negative outcomes in children, including impaired cognitive, motor, behavioral, and physical abilities. In 1991, CDC defined the blood level (BLL) that should prompt public health actions as 10 ug/dL.  Concurrently, CDC also recognized that a BLL of 10 ug/dL did not define a threshold for the harmful effects of lead.  Research conducted since 1991 has strengthened the evidence that children’s physical and mental development can be affected at BLLs<10 ug/dL.”

Indeed, in the years since the 1991 CDC Statement, this have been a spate of studies investigating the effects of low-level lead exposure in children. These papers, published in peer reviewed medical and scientific journals, indicate that blood lead levels below 10 ug/dl cause brain damage in children. See, e.g., [1] Bellijger C., Stiles K.M., Needleman H.L., “Low-level lead exposure, intelligence and academic achievement: a long-term follow-up study.”  Pediatrics, 1992, 90:855-861; [2] Stiles K.M., Bellinger D.C., “Neuropsychological correlates of low-level exposure in school-age children: a prospective study.”  Neurotox Teracol 1993; 15:27-35; [3] Dietrich K.N., Berger O.G., Succop P.A., “Lead exposure and the motor developmental status of urban six-year old children in he Cincinnati prospective study.”  Ped 1993; 91:301-307; [4] Schwartz J., “Low-level lead exposure and children’s IQ; a meta-analysis and search for a threshold.”  Environ Res., 1994;65:42-55; [5] Walkowiak J., Altmann L., Kramer U., Sveinsson K., Turfeld M., Wishoff-Houben M., Winneke G., “Cognitive and sensorimotor functions in 6 year old children in relation to leas and mercury levels: adjustment for intelligence and contrast sensitivity in computerized testing.” Neurotox Teratol 1998; 20: 511-521; [6] Bellinger D.C.., Needleman H.L. “Intellectual impairment and blood lead levels” New England Journal of Medicine, 2003 349: 500; [7] Rogan W.J., Ware J.H., “Exposure to Lead in Children –How Low is Low Enough?, “New England Journal of Medicine 2003 348: 1515-1516; [8] Canfield R.L., Henderson C.R. Jr., Cory-Slechta D.A., Cox C., Jusko TA, Lanphear B.P., “Intelltectual impairment in children with blood leas concentrations below 10 ug per deciliter” New England Journal of Medicine. 2003, 348:1517-26; [9] Canfield R.L., Gendle MH, Cory-Slecta DA, “Impaired neuropsychological functioning in lead-exposed children,” Developmental Neuropsychology 26:513-540 (2004); [10] Lanphear BP, et al., “Low level environmental lead exposure and children’s intellectual function: An International Pooled Analysis,” Environmental Health Perspectives 113:894-899 (2005); [11] Kordas K., Canfield RL, et al. “Deficits in cognitive function and achievement in Mexican first-graders with low blood lead concentrations,” Environmental Research 100:371-376 (2006); [13] Tellez-Rojo MM., Bellinger DC, et al., “Longitudinal Associations Between Blood Lead Concentrations Lower Than 10 ug/dl and Neurobehavioral Development in environmentally exposed Children in Mexico City,” Pediatrics 118:323-330 (2006); [12] Chiodo LM, et al., Blood lead levels and specific attention effects in young children, 29 Neurotoxicology and Teratology 538-546 (Sept.-Oct. 2007); [14] Miranda, ML, et al., “The relationship between early childhood blood lead levels and performance of end-grade tests,” Environmental Health Perspectives 115:1242-124 (2007).

An article in Public Health Reports, by Bruce P. Lanphear, et al., entitled Cognitive Deficits Associated with Blood Lead Concentrations <10 ug/dl in US Children and Adolescents, 13 Pub. Health Reports 521-527 (2000) reports the following results:

• Results.          The geometric mean blood lead concentrations for children in the study sample was 1.9 ug/dl 172 (201%) had blood lead concentrations ≥ 10 ug/dl.  After adjustment for gender, race/ethnicity, poverty, region of the country, parent or caregiver’s educational level, parent or caregiver’s marital status, parent serum ferritin level, and serum continine level, that date sowed an inverse relationship between blood lead concentration and scores on four measures of cognitive functioning.  For every 1 ug/dl increase in blood lead concentrations, this was 0.7-point decrement in mean arithmetic scores, an approximately 1-point decrement in mean reading scores, a 0.1-point decrement in mean scores on a measure of nonverbal reasoning, and a 0.5-point decrement in mean scores on a measure short-term memory.  An inverse relationship between blood leas concentration and arithmetic and reading scores was observed for children with blood lead concentrations lower than 5.0 ug/dl.

Id., at 521. The same study further stated that:

The results of the present analyses suggest that cognitive deficits are associated with blood lead concentrations lower than 5 ug/dl.  Although we did not conduct a formal threshold analysis, these data support the conclusion that thise is, at present, no detectable threshold for the adverse effects of lead exposure on cognitive development or academic disabilities.  These data furthis suggest that more than 12.8 million US children and adolescents born from 1972 to 1988 were adversely affected by environmental lead exposures as indicated by blood lead concentrations >2.5 ug/dl (based on weighting factors and Census data supplied by NHANES [“National Health and Nutrition Examination Survey”]).

In March 2003, the New England Journal of Medicine published an article by Richard L. Canfield, et al., entitled, Intellectual Impairment in Children with Blood Lead Concentrations below 10 up per Deciliter, 348 New England J. Med. 1517 (2003) This scientific study reports adverse effects on IQ of blood lead levels lower than 10 ug/dl:

• Before adjustment for covariates, all four lead measures were inversely and significantly associated with IQ at three and five years of age. The associations did not differ significantly according to age.  From the overall estimate, an increase in the lifetime average blood lead concentration of 1 ug per deciliter was associated with a decrease of 0.87 IQ point: estimates for concurrent blood lead concentrations and average concentrations in infancy were similar; whereas that for the peak lead concentration was somewhat smaller.
• After adjustment for the nine additional covariates, there were significant inverse associations with IQ for all blood lead variables, with no significant differences according to age. The overall estimate indicated that an increase in the lifetime average blood lead concentration of 1 ug per deciliter was associated with a change of – 0.46 IQ point (95 percent confidence interval, – 0.76 to 0.15).  Estimated effects were similar for the concurrent blood lead concentration in infancy and smaller, but still significant, for peak lead concentrations.

The study concludes that:

• Blood lead concentrations even those below 10 ug per deciliter, are inversely associated with children’s IQ scores at three and five years of age, and associated declines are greater at these concentrations that at higher concentrations.

It is established in over 20 peer reviewed articles that the major loss in IQ points occurs at blood lead levels less than 10 ug/dl. These studies converge on a loss of 6 IQ points for blood leads less than 10 ug/dl; and smaller decreases in IQ for blood leads above 10 ug/dl.

The infant brain is undoubtedly sensitive to lead. The rapid of post-natal central nervous system development coincides with a time when infants are engaging in a high degree of hand-to-mouth activity.  Thus, young children living in environments where there are lead hazards can ingest significant amounts of lead dust at a time when their brains are most sensitive to the toxicant’s effects.

Exposure to a lead-contaminated environment can cause injury to an infant even when blood lead levels do not rise above the level defined as lead poisoning by the governmental agencies charged with setting the level that constitutes “poisoning”.

Lead ingestion and resulting injury frequently exists without external manifestations or subjective complaints, that is, without any overt signs or symptoms. For this reason, lead poisoning has sometimes been referred to as a silent epidemic.  Injury in the form of impairment of heme synthesis is an important concept in understating the mechanisms with by ingested lead particles first injure the body.

Injury resulting from lead exposure and ingestion of lead-based paint initially takes the form of an impairment of heme synthesis, that is, the body’s ability to synthesize new red blood cells and heme proteins throughout all the organs in the human body.

When a child begins to crawl and move around in a lead contaminated environment containing lead based paint chips, dust and peeling paint hazards, exposure and ingestion are inexorably contemporaneous.

In such an environment, very small particles of lead-based paint that cannot be seen by the naked eye unavoidably get into the household dust. This dust can come not only from areas of chipping, peeling, cracking paint in an apartment, but also from friction surfaces, such as window sills and doors being opened and shut.  Particles of this size and nature are the general cause of childhood lead poisoning because they totally pervade a child’s living environment and can remain in the environment for months despite normal cleaning routines.

Due to normal hand-to-mouth activities as the infant moves about in a lead-contaminated environment, the ingestion of microscopic lead particles is inevitable and unavoidable. In the case at hand, the infant was observed actually ingesting paint particles.

The primary route of lead absorption is ingestion. Absorbed lead is cleared by the kidneys in the urine and unabsorbed lead is eliminated in the feces.  Absorbed lead is carried throughout the body by the blood within the major burden (+95%) is carried by erythrocytes and the remainder, that most accessible to other tissues, in the plasma.

Lead’s impairment in heme production in a child’s body who is excessively exposed to lead is described in the following excerpt from the 1993 National Academy of Sciences publication:

The aspect of heme-synthesis disturbances by lead that has been most widely exploited as a biologic marker of early effect has been the accumulation of the heme precursor erythrocyte protoporphyrin IX or zinc protoporphyrin (EP or ZPP) in blood of children and in some adult populations.  EP accumulates in response to lead-related inhibition of the activity of the intramitochondrial enzyme ferrochelatase or lead-related impairment of intramitochondrial iron transport [Citations omitted] EP increase therefore indicates a generalized mitochondrial toxic response.

Heme synthesis impairment is a bodily injury by any definition and impairment of heme synthesis can be present without elevation in blood levels.