OSHA watch

Silica safety enforcement ramped up at construction sites

Since compliance requirements took effect Sept. 23, 2017, there have been 116 alleged silica violations at companies as of April 17, a Bloomberg Environment analysis of agency records show. The number of violations in the initial six months is likely to increase since it can take up to six months after an inspection to issue citations. A common misunderstanding of Table 1 among small contractors is that using respirators is the first option. Respirators are acceptable protection, but contractors are expected to first change construction methods or tools to reduce the amount of silica that becomes airborne.

Of the 116 silica violations cited, the most frequently mentioned provision was employers failing to measure silica exposure levels (29 C.F.R. 1926.1153(d)(2)(i)). Almost as frequently cited is incorrectly following Table 1’s procedures (29 C.F.R. 1926.1153 (c)(1)), intended to reduce silica exposure. Eighty percent of the cases were classified as serious violations.

Direct final rule revising Beryllium Standard for general industry issued

While enforcement of certain provisions of the beryllium rule began on May 11, the compliance date for the beryllium standard for general industry was extended and certain ancillary provisions in the final rule changed as a result of a settlement agreement with four petitioners.

The direct final rule clarifies certain definitions and provisions for disposal/recycling, along with those that apply in cases of potential skin exposure to materials containing at least 0.1 percent beryllium by weight. The direct final rule will go into effect July 4, “unless the agency receives significant adverse comments by June 4,” according to a press release.

New flier offers steps to keep tractor trailer drivers safe at destination

Developed in concert with the trucking industry, a new flier addresses the most common hazards for drivers after they reach their destination: parking, backing up, and coupling (attaching) and uncoupling (detaching) vehicles.

List of authorized outreach trainers now available online

The website now has a searchable list of authorized Outreach trainers to assist the public in finding authorized instructors for the 10- and 30-hour Outreach classes.

Mid-Atlantic regional construction safety campaign shifts focus to falls

The four-month campaign in the Mid-Atlantic states to address the four leading causes of fatal injuries in construction will focus on falls in May. Caught-in/-between hazards is the focus in June.

Enforcement notes

California

  • Mr. Good Vape LLC of Chino, was ordered to reinstate a former manager and pay $110,000 in compensation after he was fired for claiming the company’s production of flavored liquids for e-cigarette vapor inhalers violated federal environmental law.
  • California Premier Roofscapes Inc. was cited for repeat violations of fall protection safety orders and faces proposed $134,454 in penalties.

Florida

  • An administrative law judge of the OSHRC downgraded a citation issued against Ocala-based Jody Wilson Construction Inc. from willful to serious and reduced the penalty from $49,000 to $2,800, noting the contractor had attempted to comply with the standard, albeit incorrectly.

Georgia

  • In a settlement in a whistleblower case, Jasper Contractors, headquartered in Kennesaw, but performing roofing work in Florida, agreed to pay an employee $48,000 in back wages and compensatory damages.

Massachusetts

  • In a settlement with Lynnway Auto Auction Inc., the Billerica facility agreed to correct hazards, implement significant safety measures, and pay $200,000 in penalties, following a May 2017 incident in which a sport utility vehicle fatally struck five people during an auto auction.

Michigan

  • Grand Rapids-based excavation contractor Kamphuis Pipeline Co. faces proposed penalties of $454,750 for exposing employees to trench cave-ins and other serious hazards while installing water metering pits and lines at a North Dakota municipal project.
  • RSB Construction Services LLC, in Goodrich, faces $147,000 in penalties for failing to train workers on fall hazards, and provide required guardrail, safety net, or personal fall arrest systems for workers on a pitched metal roof.

Mississippi

  • An administrative law judge of the OSHRC affirmed two items of a serious citation issued to Southern Hens after an employee’s partial thumb amputation, but vacated a third item, noting the standard is concerned with the ‘how’ of the lockout procedures, not the ‘when.’ The penalty was reduced from $19,134 to $12,000.

Nebraska

  • Contractor Premier Underground LLC was cited for failing to protect its workers from excavation collapse hazards. The company faces proposed penalties of $46,930.
  • Omaha-based plumbing contractor Gavrooden Inc., doing business as Mr. Rooter Plumbing, was cited for the second time in less than six months for failing to protect its workers from excavation collapse hazards. Proposed penalties are $38,061.

Pennsylvania

  • The OSHRC has reversed an administrative law judge’s decision to vacate a one-item serious citation with a proposed penalty of $7,000, issued against Calpine Corp. because access to the exposure was reasonably predictable.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

HR Tip: DOL issues three opinion letters and fact sheet

After a long hiatus, the Department of Labor (DOL) has begun issuing opinion letters to assist employers and employees in interpreting laws.The first opinion letter, FLSA2018-18 addresses how employees without “normal working hours” should be compensated for travel time involving an overnight stay.

The letter provides two methods for determining an employee’s normal work hours and whether travel time is compensable. The employer may review the employee’s time records during the most recent month of regular employment and use the average start/end times during that time period. Employers also may negotiate with the employee or employee’s representative and agree to what constitutes the employee’s normal work hours.

The second letter addressed a situation in which an employee needs to take a 15-minute break every hour in an 8-hour workday due to a serious health condition (supported by medical certification). Most meal and rest break rules are governed by state law; federal law does not require meal or rest breaks for adult employees. However, for employers that offer short breaks (up to 20 minutes), the Fair Labor Standards Act does require employers to pay employees for that time and count that time as hours worked when calculating overtime pay.

In FLSA2018-19, the DOL clarifies that eight rest breaks given by an employer to accommodate an employee’s serious health condition predominantly benefit the employee and are not compensable as a result. However, these employees must be compensated for the same number of breaks taken by co-workers.

The third letter, CCPA2018-NA, considers whether certain lump-sum payments are considered “earnings” for purposes of the garnishment limitation in Title III of the Consumer Credit Protection Act (CCPA). The letter specifically analyzes 18 types of lump-sum payments and specifies that lump-sum payments for workers’ compensation, insurance settlements for wrongful termination, and buybacks of company shares do not constitute “earnings” under the CCPA.

Higher education fact sheet

While cautioning that job titles alone are not enough to determine if someone fits within a white-collar exemption, the fact sheet on higher education and overtime pay under the FLSA states that a faculty member who teaches online or remotely may qualify for the exemption for teachers. This includes part-time faculty. Athletic coaches at colleges and universities also may qualify for the exemption, but not if their primary duties are recruiting.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

In the aftermath of an injury or death, know what to say

The collapse of a new fiberglass railing, one day after it was installed in a New York City subway tunnel, sent a 23-year-old worker to his death. The NYC Transit President Andy Byford said it appeared that the railing gave way when the worker leaned on it.

Adding to the tragedy was controversy over a union official who referred to the worker’s size when commenting on the tragedy, according to a report in Industrial Safety and Hygiene News. “He was a big worker and the railing did break,” said Transport Workers Union Local 100 President Tony Utano. The article notes, “That statement about Richard – who was reportedly 6’3” and 270 pounds – infuriated transit employees, who slammed Utano and held a rally at the location where Richards died during which they chanted “Safety first.” Workers reportedly felt the comment blamed the victim and distracted the focus from the MTA’s failing infrastructure.”

Responsible employers develop a plan and train managers and supervisors so that the moment an employee injury occurs, it initiates an appropriate sequence of events. But often missing from this plan is how to handle the situation with employees. It’s important that the response show sensitivity, compassion, and discretion.

In some cases, the employees are ignored and rumors start to fly. Someone self-designates as the spokesperson. In other cases, too much is said and thoughtless comments are made or even well-intentioned remarks are misconstrued. Dealing with trauma is difficult because every incident and every individual’s response is different. Working with local professionals with experience in these matters is a good place to start.

 

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

The many lives of an OSHA violation

Last month in the article, Court decision: OSHA not legally bound by five-year look back for repeat violations, we discussed the number of ways a repeat violation can be harmful to employers. When there is a good faith defense, it may be well worth contesting citations, even if they are minor. Here are four more reasons to do so:

In early April, Susquehanna Supply Company, Inc., of Williamsport, Pennsylvania pleaded guilty and paid a $250,000 fine for willfully committing an OSHA violation that resulted in an employee’s death. The employee died when he was working in a trench and one of the vertical dirt walls collapsed, burying him up to his chest and crushing him against the bridge’s concrete abutment. This is a reminder that OSHA fines can have multiple lives.

The highest criminal category that can be pursued against employers for OSHA violations is a misdemeanor. However, a 2015 memorandum of understanding between the Department of Justice and OSHA put some bite into the bark of criminal charges by making prosecution available through other agencies, particularly for violations involving an employee fatality and a willful conduct.

In addition to the possibility of criminal prosecution, there is also the possibility that third parties will use an OSHA citation as evidence of negligence in companion liability cases, a worker will use the intentional tort argument in a personal injury case, or an estate may sue for wrongful death. Each state has developed its own standards through legislation and legal precedent about the use of evidence of OSHA violations and cases have met with mixed success.

In some industries, an employer’s safety record is an important factor in the competitive process for new business. It’s easy to do an establishment search on OSHA’s website or obtain the information from a safety network. Bid documents will often include a question about willful, repeat or serious OSHA citations. The goal should be to reach a resolution with OSHA that will not affect the competitive position.

Also, some states, give workers an increase in benefits if the injury is tied to an OSHA violation. Some examples are:

  • California -An employee is injured by serious and willful misconduct of the employer -award increased by 50%
  • Illinois – An employer willfully violates the state Health and Safety Act (ILCS 225) -award increased by 25%
  • Massachusetts – Employer’s serious and willful misconduct causes injury -award is doubled
  • Missouri – Failure of employer to comply with state statute or order by the Missouri Division of Workers’ Compensation -award increased by 15%
  • North Carolina – Willful failure of employer to comply with statutory requirements or order by the North Carolina Industrial Commission – award increased by 10%
  • Wisconsin – Injury caused by failure of employer to comply with any statute, rule or order of the Wisconsin Department of Workforce Development -award increased by 15%

OSHA citations can be deceptive; there’s a lot more involved than paying the fine and abating the citation. They can lead to additional lawsuits, penalties by other regulatory agencies, failed bids, and increased workers’ comp costs.

Employers must send a notice of intention to contest within 15 working days of receipt of the OSHA notice of proposed penalty. Every notice of intention to contest shall specify whether it is directed to the citation or to the proposed penalty, or both. The decision to contest is a business decision that needs to be carefully weighed.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

Overcoming the opioid crisis in the workplace

The national crisis of the misuse of and addiction to opioids echoes in the workplace every day. A National Safety Council (NSC) poll, estimates that over one-quarter of the U.S. workforce is using opioids. The costs to employers are well documented – increased absenteeism, lower productivity, higher health care costs, more occupational injuries, fewer skilled workers who can pass drug tests, and increased workers’ compensation costs. A recent study by the Kaiser Family Foundation found that large employers experienced a sharp increase in costs for treating opioid addiction and overdoses among their workers, rising from $646 million in 2004 to $2.6 billion in 2016.

While the workers’ comp industry has made significant progress in limiting opioid prescriptions for acute pain, much work remains to be done. According to a new workers’ compensation drug trend report from Optum, forty-nine percent of injured workers receiving a prescription drug were taking an opioid in 2017, a figure that was about four percentage points lower than in 2016.

Although each workplace has its own challenges, an assessment of a company’s efforts to combat the opioid problem should focus on three areas:

  • Reducing or eliminating initial opioid usage for recently injured workers
  • Helping injured workers who have become long-term users wean off of opioids
  • Prevention – preinjury support

Reducing or eliminating initial opioid usage for recently injured workers

While efforts to curb opioids in workers’ comp vary significantly by state, customized formularies, utilization management and clinical programs, legislative action including limits on initial opioid prescriptions for acute pain, and claims professional education, have collectively worked to reduce opioid prescriptions for pain. Some states are requiring alternative approaches. In Ohio, for example, residents with work-related back injuries are now required by law to try remedies such as rest, physical therapy or chiropractic care before surgery or opioids.

Employers, too, play a powerful role in preventing the development of opioid addiction. Educating workers about the dangers of opioids may prompt injured workers to forego opioids altogether rather than accepting an initial short-term prescription. Monitoring opioids prescriptions by receiving alerts when they are prescribed and setting limits can ensure that guidelines are followed. Intervening early and ensuring that injured workers have a clear path for getting back to work helps control the fear of pain, which leads to avoidance behavior.

Physicians, who can clearly explain the advantages of alternative treatments and the dangers of addiction, as well as gain the workers’ trust, will be effective in facilitating a return to work without reliance on pain meds. Utilizing nurse case managers can provide valuable interaction with physicians and can help injured workers manage their pain, recover, and avoid opioid dependency.

Training supervisors and managers to identify workers who struggle with pain or are at greater risk for dependence will trigger a need for early intervention and behavioral programs that focus on pain management through employee engagement and resilience. Unsupportive supervisors who intimidate workers by insisting they work through the pain or ignore the problem may disrupt the recovery.

The process takes planning and must be geared to the individual. Effective change comes when workers understand the benefits of non-drug pain therapies and buy into the solution. There are some workers who will want immediate relief, the hallmark of pain meds. Others may not want to exert the effort or time involved in physical therapy, acupuncture, exercise, or yoga, and others may be skeptical of mindful therapies. It’s the employer’s role to foster trust, provide support, and help motivate the employee.

Helping injured workers who have become long-term users wean off of opioids

While averting opioid dependency in a new workers’ comp claim is no easy task it’s tenfold more difficult in legacy claims tied to long-term opioid prescriptions. There are many barriers to successfully resolving long-term claims that involve chronic opioid usage:

  • The treating physician doesn’t buy into alternatives and won’t suggest them to a patient
  • There aren’t enough physicians who have adequate training on pain management and opioid prescribing
  • There’s attorney involvement
  • The worker is in a vicious cycle of drugs trying to manage the pain – the worker hasn’t slept, has anxiety, depression or nausea, and takes other pills alongside their Vicodin or OxyContin to repress those side effects
  • The prospects of returning to work seem slim and the worker has psychosocial factors such as depression, hopelessness, and hostility
  • The worker is focused on pain and unwilling to quit or reduce their pain medications
  • Medicare set-asides allows comp claims to close with cash set aside to pay for future drugs – often strong doses – with little oversight

Although these barriers are daunting, there is promise in a recent report released by California’s Workers’ Compensation Insurance Rating Bureau. The report, Study of Chronic Opioid Use and Weaning in California Workers’ Compensation, showed nearly half of the study claims with employees demonstrating chronic opioid usage (11 months from the date of injury) weaned off of opioids completely within 24 months from the date of injury. The weaning process typically involved a gradual decrease in opioid prescriptions combined with a mix of alternative non-drug treatments and non-narcotic drugs.

Vital to success is the adjuster who must remain involved throughout the process. It begins with knowing how to look at the data, not only to identify claims where opioid usage costs are high, but to identify trends. What types of injuries are involved? Do they occur in the same department or under the same manager? Can they be linked to certain physicians? Chronic use of opioids extends disability, and data analysis is critical to building a plan.

The adjuster must be familiar with and open to evidence-based innovative treatment options and understand how best to work with the injured worker. The program’s success also relied upon peer-to-peer conversations with the prescribing physicians and developing a program specifically aimed at helping workers cope with significant chronic pain. It demonstrates that a well-designed, carefully managed program with the focus on the individual can work.

The increased awareness around the epidemic has improved the possibilities of success with legal action, as indicated by a recent decision of the West Virginia Supreme Court. In Grinnan v. West Virginia Office of Insurance Commissioner, the court ruled unanimously that a carpenter was not entitled to continued treatment with OxyContin for a 26-year old back injury. However, legal action should be viewed as a last resort because of the time, money, and hostility involved.

Prevention – preinjury support

In the past, opioids were often prescribed for musculoskeletal injuries, effectively masking the pain but doing nothing to treat the injury. Ensuring good ergonomics in work place design and processes and ensuring that workers can handle the physical demands of their job is a good first step. Listening to workers who have minor pain and providing the support to minimize it, will help prevent costly claims.

Drug policies should be reevaluated to identify the situations where testing makes the most sense as well as what tests should be used. Screening for prescription drug use, illicit drug use, and adherence to legitimate opioid medications is a sound approach to mitigate risk. Working with legal counsel, the employer should decide what testing is warranted for pre-employment screening, pre-duty, periodic, at random, post-incident, reasonable suspicion, return-to-duty, or follow-up situations.

Legitimate claims from workers who already are using opioids are among the most difficult to resolve. A recent article on lexisnexis.com by Thomas Robinson notes that a study to be published by the Journal of Occupational and Environmental Medicine supports the widely-held notion that pre-injury opioid and benzodiazepine use may increase the risk and cost of disability after a work-related injury.

Prevalence of compensable claims was higher among cases with pre-injury opioid use compared to cases without such pre-injury use (28.6 percent vs. 19.5 percent) and prevalence of post-injury opioid use was higher among claims with pre-injury opioid use compared to cases without such pre-injury use (67.2 percent vs. 22.8 percent). Train supervisors and managers how to identify the signs of drug abuse, the steps to take if abuse is suspected, and the legal issues involved. It is in the best interest of the employer to provide support and confidential access to treatment.

Proactive employers are also altering health plans to restrict the use of prescription opioids. The Surgeon General urges employers to ensure that health providers are following the Centers for Disease Control and Prevention (CDC) guidelines, “Use your levers on the health care delivery side.” He notes that dental prescriptions for opioids is the first step for many toward addiction. “If you tell your employees and their families that you’re not going to pay for more than 10 pills if they go to the dentist, that will have a quicker impact than anything I can do as surgeon general to educate the prescribers in the community.”

While the path to finding effective treatment of choice can be long, difficult, and expensive, doing nothing can be costlier to the employer and devastating for the worker.

Note: NCCI is doing a series exploring three viewpoints on issues surrounding opioid use and workers’ compensation: those of doctors, insurers, and workers compensation regulators.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

Things you should know

New disability claim procedures effective April 1

The U.S. Department of Labor’s (DOL’s) new procedures for processing disability claims took effect April 1. Employer-sponsored plans that deal with disability claims should be amended as needed. This includes retirement plans, medical coverage, life insurance, as well as short- and long-term disability plans. The rule is intended to give workers new protections when dealing with plan fiduciaries and insurance providers that deny their claims for disability benefits.

Implementation of the final rule was delayed 90 days from its original effective date of Jan. 1, 2018. If plan documents have not yet been updated, employers should still prepare to handle claims under the new procedures.

Opioid prescriptions decline in states allowing marijuana

While acknowledging the limitations of the data, Dr. David Bradford from the Department of Public Administration and Policy at the University of Georgia reports an analysis of data for prescriptions filed by Medicare Part D enrollees from 2010 to 2013 revealed the use of prescription drugs dropped when the state fully implemented medical marijuana legislation.

For pain medications there was a decrease of over 10% in prescribing patterns. States that permit medical marijuana distribution via dispensaries – versus states that only permit the private cultivation of marijuana for medicinal purposes – saw a 14% decline in pain medications prescribed under Medicare Part D.

Construction workers more likely to die from opioid overdose than workers in other industries

A 2017 survey by the National Safety Council (NSC) found an estimated 15 percent of construction workers have substance abuse disorders – nearly twice the national average of 8.6 percent. A recent report from the Midwest Economic Policy Institute notes that an estimated 380 construction workers in Ohio suffered opioid-related overdose deaths in 2015, followed by Illinois (164), Michigan (160) and Wisconsin (92).

The report suggests that the demanding physical work, the higher injury rates, and the economic pressures to return to work before fully healed lead to prescription abuse. It offers several strategies to help employers, contractors and labor unions combat the opioid crisis.

Caught-in and caught-between fatalities on the rise in construction: CPWR

Caught-in or caught-between incidents resulted in 275 construction worker deaths from 2011 to 2015 – the most of any major industry – according to a recent report from the Center for Construction Research and Training (CPWR). About 69 percent of the deaths were attributed to “being caught or crushed in collapsing materials,” a 50 percent increase over the five-year period.

New tools to reduce the risks of workers in nanotechnology

The National Institute for Occupational Safety and Health (NIOSH) has released four new documents to help provide employers with strategic steps towards making sure their employees stay safe while handling nanomaterials. The documents are:

  • handling and weighing of nanomaterials when scooping, pouring and dumping;
  • harvesting nanomaterials and cleaning out reactors after materials are produced;
  • processing of nanomaterials after production;
  • working with nanomaterials of different forms, including dry powders or liquids.

To access the products, and for more information about nanotechnology research at NIOSH, visit https://www.cdc.gov/niosh/topics/nanotech/pubs.html .

EPA releases guidance on first aid statements for pesticide labels

In response to stakeholder comments and questions, the Environmental Protection Agency (EPA) has issued final guidance on the placement of first aid statements on pesticide labels. First aid statements on Toxicity Category I pesticides must be visible on the front panel unless a variation has been approved. First aid statements on Toxicity Category II and III products can be placed on any panel of the label – front, back, side or inside.

Forest nurseries, timber tract operations, and fishing have higher risk of hearing loss

Researchers from NIOSH found that although work-related hearing loss in the agriculture, forestry, fishing and hunting sector (15 percent) is lower overall than most other industries (19 percent), three subgroups had a notably higher number of workers with hearing loss. These were:

  • Forest nurseries and gathering of forest products (36 percent)
  • Timber tract operations (22 percent)
  • Fishing (19 percent)

The study was published in the January issue of the American Journal of Industrial Medicine.

 

State News

California

  • Adopted its own statewide workplace safety and health regulations to prevent and reduce ergonomic work-related injuries to housekeepers in the hotel and hospitality industry, the first such regulation in the country. The rules, which will be enforced by California’s Division of Occupational Safety and Health, will become effective July 1.
  • The volume of independent medical reviews declined 2.2% in 2017, the first decline since the state adopted its practice of reviewing medical claims for injured workers, according to a report by the California Workers Compensation Institute (CWCI). Physicians upheld 91.2% of modified or denied medical service requests that they reviewed, the same as previous years.

Florida

  • The Governor signed a bill that will cover post-traumatic stress disorder under workers compensation for first responders.

Indiana

  • The governor signed two new comp bills. One creates a workers’ compensation drug formulary aimed at curtailing the opioid crisis (SB369), and the other penalizes employers for late payments of benefits (SB290). SB290 takes effect July 1, 2018. The state is adopting MCG Health’s Official Disability Guidelines as the formulary, under which doctors cannot prescribe “not recommended” medications unless the insurance company approves. The ban on reimbursement for the prohibited drugs takes effect Jan. 1, 2019, but injured workers who began taking the medications before July of this year may continue until January 2020.

Massachusetts

  • The average comp rate will decrease 12.9% following a settlement reached by the Attorney General with the State Rating Bureau and the Workers Compensation Rating and Inspection Bureau.

North Carolina

  • The Industrial Commission gave final approval to new restrictions on opioid prescribing for injured workers, in keeping with a 2017 legislative mandate. The new rules take effect May 1.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

Legal Corner

ADA
Employer takes proper steps to win approval of terminating employee taking opioids

In Sloan v. Repacorp, Inc. (S.D. Ohio February 27, 2018), an employee who worked 10% – 20% of his time on heavy machinery was taking both prescription morphine and non-prescription opioids. The company’s handbook requires all employees to notify management if they are taking nonprescription or prescription medications and testing positive for these could result in termination. However, the employee did not inform his supervisors.

After his company learned of his drug use, the employee voluntarily submitted to a drug test and tested positive for hydrocodone, the opiate found in Vicodin. When he was terminated less than two weeks later, he filed suit on charges including disability discrimination and retaliation under the ADA. He alleged he was disabled because of degenerative disc disease and arthritis in his neck and back and fired because of his disability.

The company, however, had made a good faith effort to involve him in the interactive process. It asked him to consult with his doctor to see if there were alternative medications or treatments for his pain that did not include opiates, but he refused. The court noted that he was not fired because he was a direct threat to himself or others, but because he failed to participate in the interactive process. Thus, he impeded the company’s ability to investigate the extent of his disability and determine whether a non-opiate medication could reasonably accommodate his disability.

This decision serves as a reminder that individualized assessments should always be made and an employee’s lack of cooperation during the interactive process is often a strong defense to both ADA discrimination and retaliation claims.


Workers’ Compensation
Statute of limitations for temporary disability awards clarified – California

In County of San Diego v. Workers’ Compensation Appeals Board and Kyle Pike, a deputy sheriff suffered an injury to his right shoulder on July 31, 2010, and received benefits for five years up to July 31, 2015. He sought to reopen the petition and receive temporary disability benefits and a WCJ awarded the benefits and the Board agreed.

However, a dissenting panel member argued that the statute does not permit an award of temporary disability more than five years after the date of the injury. The Court of Appeal, 4th Appellate District, agreed, noting the language of the statute clearly indicates that temporary disability payments cannot be awarded for periods of disability occurring more than five years after the date of the underlying injury.

Interactive process and accommodation required after injury – California

In Bolanos v. Priority Business Services, an injured worker returned to work with restrictions and suffered a hernia while he was working in the office. He settled a workers’ comp claim for the hernia, but the company told him they could no longer accommodate him. He filed suit alleging disability discrimination and retaliation and a jury awarded him almost $40,000 and attorney fees of $231,470.50, plus $10,697.08 in costs.

The company argued that it could not show it engaged in the interactive process and reasonably accommodated the employee because a trial judge disallowed evidence of the workers’ compensation claim and settlement from consideration by the jury. However, the Court of Appeals found the company was not prejudiced by the trial judge’s ruling.

Implanted surgical hardware does not qualify as continued remedial care – Florida

Under Florida statutes, workers have two years from date of injury to file a worker’s compensation claim, but the time can be extended to one year after the date that the employer last paid indemnity benefits or furnished remedial care. In Ring Power Corp. v. Murphy, an employee who injured his back underwent spinal surgery and doctors used rods and screws to stabilize his spine while the bone grew back together.

A judge determined that a petition for benefits seeking additional medical treatment was not time barred because the company was continuously furnishing remedial treatment as long as the rods and screws remained within the worker’s body. The 1st District Court of Appeal disagreed noting that the pins and screws no longer served a purpose.

Worker’s suspected intoxication not factor when insurer fails to meet 120-day deadline to deny compensability – Florida

In Edward Paradise v. Neptune Fish Market/RetailFirst Insurance Co., an employee fell and fractured his hip while emptying the garbage. The employer was informed of the injury but did not report it to the insurer. The injury was complicated by infections and, ultimately, five surgeries were required. Ten months after the accident, the worker filed the first notice of the injury and the insurer elected to pay and investigate under Florida’s 120-day rule. The insurer did not file a notice denying compensability of the workplace injuries because of intoxication until almost 16 months after the injury. The court noted the failure to meet the 120-day deadline to deny the compensability of an injury claim waived the insurer’s intoxicated-worker rights.

Appellate court misconstrued “arising out of employment” requirement – Georgia

In Cartersville City Schools v. Johnson, a school teacher was denied benefits by the State Board of Workers’ Compensation’s Appellate Division for a fall incurred while she was teaching a fifth-grade class because the act of turning and walking was not a risk unique to her work. Upon appeal, the Court of Appeals noted, “For an accidental injury to arise out of the employment there must be some causal connection between the conditions under which the employee worked and the injury which (s)he received.”

It said the Appellate Division overlooked the proximate cause requirement and focused on the concept of equal exposure – that the teacher could have fallen outside of work while walking and turning, as she did while she was at work. Therefore, it erroneously concluded her injury resulted from an idiopathic fall and was not compensable. Although an employee could theoretically be exposed to a hazard outside of work that mirrors a risk faced while at work, it does not mean an injury resulting from the workplace hazard is non-compensable.

No death benefits for family in asbestos claim – Georgia

In Davis v. Louisiana-Pacific Corp., an employee, who worked at a Louisiana-Pacific facility in Alabama, moved to Georgia after leaving his position. Several years later, he was diagnosed with mesothelioma and died. His family filed a claim for death benefits arguing that, although he was last exposed to asbestos in Alabama, his diagnosis and death occurred in Georgia.

While the court acknowledged that there was not a work-related “injury” until he was diagnosed with mesothelioma, the “accident” that resulted in his condition was his exposure to asbestos while he was employed in Alabama. Had the worker’s contract been executed in Georgia he would have been eligible for benefits, but it was made in Alabama and, therefore, the state did not have jurisdiction over the claim.

Children can sue over birth defects related to father’s on-the-job exposure – Illinois

The exclusive remedy afforded by worker’s comp does not apply to two teenagers who suffered birth defects as a result of their fathers’ workplace exposure to toxins because they were seeking damages for their own injuries, not their fathers’ noted the 1st District Court in reversing the Circuit Court of Cook County. The fathers’ employer, Motorola, had argued successfully to the Circuit Court that the birth defects were derivative of a work-related injury to their fathers’ reproductive systems. However, upon appeal, the 1st District Court noted the children weren’t employees of Motorola, and they were suing over their own injuries, not their fathers’.

Failure of company to get out-of-state coverage nixes death claim – Illinois

In Hartford Underwriters Insurance Co. v. Worldwide Transportation Shipping Co., the Iowa-based shipping company hired an Illinois truck driver who only worked in Illinois. After he died from a work-related injury, his widow filed an Application for Adjustment of Claim against Worldwide under the Illinois Workers’ Compensation Act. Since the company only had workers’ comp coverage in Iowa at the time of the fatal accident and none of the insurer’s conduct suggested that coverage extended to out-of-state drivers, the insurer was not liable for death benefits.

Dismissal of tort claims against co-workers upheld – Missouri

Four cases that occurred during the period (2005 – 2012) when the comp law did not extend an employer’s immunity to co-workers were recently considered by the Supreme Court and the dismissal of the tort claims upheld. “For purposes of determining whether a co-employee can be liable for an employee’s injury between 2005 and 2012, the co-employee’s negligence is assumed,” the court said. The focus needs to be on whether the breached duty was part of the employer’s duty to protect employees from foreseeable risks in the workplace.

In Conner vs. Ogletree and Kidwell, Conner suffered an electrical shock when he came in contact with a live power line. The Supreme Court said the failure of his co-workers to ensure that the line was de-energized was a breach of the employer’s duty to provide a safe workplace. In Evans vs. Wilson and Barrett, the court said that a worker’s negligent operation of a forklift was also a breach of his employer’s duty to provide a safe workplace.

In McComb v. Nofus, the court said the decision of two supervisory employees to send a courier out into a dangerous winter storm was not a breach of any personal duty owed to McComb. In Fogerty v. Armstrong, the court said a worker’s misuse of a front loader was a breach of the employer’s duty of care.

Average weekly wage includes compensation, value of meals and lodging for former pro athlete – Nebraska

Nebraska’s statute states that wages do not include “board, lodging, or similar advantages received from the employer, unless the money value of such advantages shall have been fixed by the parties at the time of hiring.” In Foster-Rettig v. Indoor Football Operating, a professional indoor football player received $225 for each game he played in, plus an additional $25 per game if the team won or played well. The team also paid for him stay at a particular hotel in Omaha seven days a week during the football season and he got 21 meal vouchers for local restaurants.

His career was ended by a back injury and he filed a comp claim. At trial, he provided expert evidence about the value of the hotel room and meals. The Court of Appeals agreed with the compensation court that benefits should be based on an average weekly wage of $903.25, including an average salary of $231.25 per week from playing in games, plus an average of $350 per week for lodging and $320 per week for his meals.

Landlord liable for labor law claim even if tenant contracted for work without their knowledge – New York

In Gonzalez v. 1225 Ogden Deli Grocery Corp. a deli leased retail space, hired a painter to add a decoration to its sign, and set up the A-frame ladder. The painter fell from the ladder and filed a Labor Law action against the landlord for his injuries. Under Section 240(1), property owners have absolute liability for failure to protect workers from elevation-related risk and Section 241(6) imposes a non-delegable duty on owners to comply with the safety regulations of the code. Even if the deli contracted with the painter without the knowledge of the landlord, the landlord was liable, according to the Appellate Court. The landlord only presented unsworn statements from the deli owner and a deli worker and hearsay statements cannot defeat summary judgment if they are the only evidence.

Tort claim against co-employee can proceed – New York

In Siegel v. Garibaldi, an employee who was walking to the campus safety office to clock out was struck by a car driven by a co-worker, who was heading home. The injured worker received comp benefits and filed a tort action against his co-worker. While the appellate court noted that the law ordinarily limits a worker to a recovery of workers’ compensation benefits if he is injured by a co-worker, in this case, the driver was no longer acting within the scope of his employment. The road was open to the public and the risk of being struck in a crosswalk is a common risk shared by general members of the public.

Expert medical evidence is required to establish occupational disease claim – North Carolina

In Briggs v. Debbie’s Staffing, an employee operated a large mixing machine at a refractory manufacturer. Employees were required to wear respiratory protection masks because the process produced a lot of dust. After the employee was fired for attendance-related issues, he filed a workers’ compensation claim, asserting chronic obstructive pulmonary disease and asthma. While a physician initially opined that the asthma was likely caused by the working conditions, he did not know the worker was a smoker and had worn a respirator mask and testified this might affect his opinion on causation.

The employee argued that his own testimony about the working conditions were sufficient to establish a claim, but the appellate court noted only an expert is competent to opine as to the cause of the injury and present medical evidence that the employment conditions placed the employee at a greater risk than members of the general public.

Slip and fall on shuttle bus compensable – Pennsylvania

In US Airways Inc. v. Workers’ Compensation Appeal Board, a flight attendant was trying to place her luggage on the racks in a shuttle bus that was taking her from the airport to an employee parking lot, when she slipped on water on the floor and injured her foot. The airline argued that the incident did not take place on the airline’s property and that the shuttlebus was part of her commute to work, since it did not own the shuttlebus and did not require its employees to park in the parking lot. The Commonwealth Court ruled that her commute ended at the parking lot and work began on the shuttle, thus, her injury was compensable.

Worker was not permanently and totally disabled – Tennessee

For almost twenty years, the employee worked in a factory of General Motors. He suffered several on-the-job injuries and his last injury required surgery on his right shoulder. When he was cleared to return to work with restrictions, GM could not accommodate him and he never returned to work, nor sought other work. He filed a request for permanent total disability benefits, asserting that he had no vocational opportunities.

Two qualifying experts expressed conflicting opinions as to his vocational abilities and the employee said he did not consider himself unable to work, although not in the type of positions he had held in the past. The Supreme Court’s Special Workers’ Compensation Appeals Panel ruled against the benefits, noting it’s the trial court’s discretion to accept the testimony of one expert over another and to consider an injured employee’s testimony concerning his abilities and limitations.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

OSHA watch

Enforcement of the Beryllium Standard begins May 11

Enforcement of the final rule on occupational exposure to beryllium in general, construction, and shipyard industries begins on May 11, 2018.

Local governments and emergency services will be notified when a company receives a serious citation

Spurred by a fatal chemical explosion and fire at a New York cosmetic factory, OSHA, the Environmental Protection Agency, and the Department of Homeland Security are working on the new protocols for communicating and training with local governments and first responders.

Regional campaign on ‘focus four’ construction hazards in Region Three

Running from March to June, a campaign to raise awareness of the four leading safety hazards in the construction industry (electrocution, falls, struck-by, and caught-in or caught-between) will take place in Delaware, Maryland, Pennsylvania, Virginia, West Virginia and Washington. Representatives will conduct toolbox talks on each hazard.

A $1 million settlement for safety violations

Hebron, Ohio-based Sunfield Inc. has agreed to pay $1 million in fines and hire a safety and health coordinator to resolve violations found at the company’s Hebron plant. The inspection, which took place after two employees suffered severe injuries when they came in contact with moving machine parts, revealed the company lacked adequate power press guarding and hazardous energy control procedures that could have prevented the incidents.

Standard interpretation related to recording and reporting injuries of temporary workers versus HIPAA requirements

A recent standard interpretation addresses injury and illness recordkeeping requirements pertaining to an employer that supervises temporary workers on a day-to-day basis but has limited access to their medical records when an injury or illness occurs.

New fact sheet for owners and managers on conducting a walk around

The fact sheet urges business owners and managers to personally conduct periodic walk around inspections. It reviews the best way to prepare for an inspection, what to do while onsite, and how to develop an abatement plan.

New bulletins provide information on horizontal drilling hazards and chemically induced hearing loss

“Preventing Hearing Loss Caused by Chemical (Ototoxicity) and Noise Exposure” was published in conjunction with the National Institute for Occupational Safety and Health and provides recommendations to employers and safety professionals about identifying ototoxicants in the workplace and establishing hearing conservation programs where these chemicals are used.

“Avoiding Underground Utilities during Horizontal Directional Drilling Operations” highlights the hazards associated with striking different underground utilities. Horizontal directional drilling has reduced visibility compared to vertical drilling. The bulletin was based on an incident that led to an explosion at a nearby restaurant, resulting in a worker fatality.

Enforcement notes

California

  • Alhambra Foundry Co. Ltd. faces $283,390 in proposed fines for workplace safety and health violations following a confined space accident that resulted in the amputation of an employee’s legs.
  • Petro Chemical Materials Innovation in South Gate faces $72,345 in penalties for failing to de-energize and guard a moving conveyer belt while a worker was cleaning it, resulting in the amputation of the worker’s right arm.

Florida

  • Jacksonville-based Jax Utilities Management Inc., a utilities contractor, was cited for $271,606 in proposed penalties and deemed a severe violator for exposing employees to trenching hazards. The investigation was launched after an employee was injured and hospitalized when an unprotected trench collapsed.
  • Naples-based L.I. Aluminum Design Inc., a pool and patio installer, received four serious citations, and faces proposed penalties of $40,096 after a worker fatally fell.
  • Middleburg-based Southeastern Subcontractors Inc. is facing $22,173 in proposed penalties following a heat-related fatality.
  • A Texas communications contractor, Tower King II Inc., faces penalties of $12,934 after three workers were killed while trying to install a new antenna on a communications tower in Miami Gardens. The capacity of the rigging attachments was not adequate to support the loads and the workers fell over 1,000 feet.

Georgia

  • Jose A. Serrato, a Marietta-based independent roofing contractor, was cited for exposing employees to fall hazards at a worksite in Birmingham and cited with $133,604 in proposed penalties. Mr. Serrato has been cited seven times in the past five years.

Massachusetts

  • Luis Guallpa, doing business as Milford-based Guallpa Contracting Corp., faces penalties of $299,324 for exposing workers to fall and other hazards at a Nashua, New Hampshire work site. The company had previously been cited in 2014 and 2015.
  • Jet Logistics Inc. (JLI) and New England Life Flight Inc., doing business as Boston MedFlight (BMF), were ordered to reinstate a pilot who lost his job after complaining about safety concerns and possible violations of the Federal Aviation Administration (FAA) regulations. JLI and BMF must pay the pilot $133,616.09 in back wages and interest; $100,000 in compensatory damages; reasonable attorney fees; and refrain from retaliating against the employee. The employers must also post a notice informing all employees of their whistleblower protections under AIR21.

Nebraska

  • An egg processing facility, Michael Foods Inc.’s of Wakefield, faces proposed penalties of $188,464 after an employee was fatally struck by a dock leveler. The proposed penalties relate to lockout/tagout, electrical and arc flash hazards violations.

New York

  • Summit Milk Products LLC faces $143,000 in proposed penalties for uncorrected and new hazards. A follow-up inspection was done after the company failed to report how it corrected violations found in an earlier inspection. Again, it was found that employees were not protected from heated milk in excess of 150 degrees and the injuries were not recorded in the 300 log.

Pennsylvania

  • Allentown-based Lamm’s Machine Inc. faces $14,782 in proposed penalties for exposing employees to hazardous chemical vapors from a degreasing operation in an enclosed space.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

HR Tip: Report: why employers are getting wellbeing wrong

A new report from the Campbell Institute, A Systems Approach to Worker Health and Wellbeing indicates not all employers are getting worker wellbeing right, and it could be affecting the sustainability of their business. While many organizations today are focused on wellbeing programs that tackle smoking cessation, weight loss or nutrition, the Campbell Institute report indicates a more multifaceted approach to worker wellbeing focused on improving the areas of highest risk to their employees can have the most benefit.

Recognizing there is not a one-size-fits-all solution to worker wellbeing, the Institute proposes a systematic approach to assessing and addressing total worker wellbeing, such as the “Plan Do Check Act” model. It’s designed to identify top problem areas, develop intervention strategies at an organizational level to address those risks, and ensure that the improvements are maintained.

The report includes a 35-item questionnaire that addresses six primary stress areas on the job.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

The ten most dangerous jobs

While it is generally known that the highest number of workplace fatalities occur among truck drivers and material moving occupations, the chances of a fatality are much higher in specific industries when the fatal work injury rate, calculated per 100,000 full-time equivalent workers, is used. According to a recent report in EHS Today, the ten most dangerous jobs are:

No. 1 – Loggers

The most-dangerous profession, loggers experienced 91 fatalities in 2016 for a fatality rate of 135.9 out of 100,000 workers, an increase of 33% since 2011, when it was ranked number two. Risks: falls, struck-by, dangerous tools such as chainsaws and axes

No. 2 – Fishers and related fishing workers

Fishermen experienced 24 fatalities in 2016 for a fatality rate of 86 out of 100,000 workers, which was a decline of 29% since 2011, when it was ranked number one. Risks: drowning, struck by lightning, crushed by equipment

No. 3 – Aircraft pilots and flight engineers

Pilots and flight engineers experienced 75 fatalities in 2016 for a fatality rate of 55.5 out of 100,000 workers, a slight drop from 2011. Risks: crashes

No. 4 – Roofers

Roofers experienced 101 fatalities in 2016 for a fatality rate of 48.6 out of 100,000 workers, an increase of 50% since 2011. Risks: falls, struck-by, and heat

No. 5 – Refuse and recyclable material collectors

Refuse and recyclable material collectors experienced 31 fatalities in 2016 for a fatality rate of 34.1 out of 100,000 workers, a decrease of 17% since 2011. Risks: dangerous machinery, crushed by equipment, struck-by, traffic accidents, struck by vehicle

No. 6 – Structural iron and steel workers

Steel and ironworkers experienced 16 fatalities in 2016 for a fatality rate of 25.1 out of 100,000 workers, a slight decrease from 2011. Risks: falls, struck-by, heat, crushed by materials

No. 7 – Truck drivers and other drivers

Employees who drive for work – including truck drivers – experienced 918 fatalities in 2016 for a fatality rate of 24.1 out of 100,000 workers, which is similar to 2011. Risks: traffic accidents, struck by vehicle, other drivers, construction zones, sleep deprivation, texting/talking while driving

No. 8 – Farmers, ranchers, and agricultural managers

Agricultural workers experienced 260 fatalities in 2016 for a fatality rate of 23.1 out of 100,000 workers, a slight decline from 2011. Risks: dangerous machinery, chemicals, heat

No. 9 – Supervisors of construction workers

First-line supervisors of construction trades and extraction workers experienced 134 fatalities in 2016 for a fatality rate of 18 out of 100,000 workers. Risks: struck-by, falls at height and on level, heat, use of large equipment

No. 10 – Grounds maintenance workers

New to the list, grounds maintenance workers experienced 217 fatalities in 2016 for a fatality rate of 17.4 out of 100,000 workers. Risks: heat, cold, noise, chemical exposure, ergonomics-related issues, machinery

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com