Things you should know

Fatal work injuries reach highest level since 2008

Workplace fatalities increased for the third year in a row in 2016, according to the U.S. Bureau of Labor Statistics, rising to 5,190, a 7% increase from the 4,836 fatal injuries reported in 2015. Double-digit increases were reported in workplace violence and overdose fatalities.

Work injuries involving transportation incidents remained the most common fatal event in 2016, accounting for 2,083 fatalities, or 40% of the overall total. But violence and other injuries by persons or animals increased 23% to 866 cases, becoming the second-most common fatal event in 2016. Fatal work injuries from slips, trips and falls were the third-most common fatal event last year.

Texas was the state with the highest number of worker deaths (545), followed by California (376), Florida (309) and New York (272). In all, 36 states experienced increases in deaths due to workplace injuries in 2016.


Operation Airbrake puts 2,700 CMVs out of service for brake-related violations

An unannounced inspection blitz of commercial motor vehicles resulted in 14 percent being placed out of service for brake-related violations, according to the Commercial Vehicle Safety Alliance. On Brake Safety Day, which took place Sept. 7, CVSA inspectors checked 7,698 trucks and buses in the United States and Canada. The inspections resulted in 1,064 vehicles being taken out of service for brake violations and 1,680 (22 percent) for other infractions.


New video for tower workers: Safe use of snow-tracked vehicles

A new video highlights the proper operation of snow-tracked vehicles when accessing remote tower locations.


NIOSH withdraws proposed rule on respirator leakage standards

NIOSH has withdrawn a notice of proposed rulemaking that would have established standards for total inward leakage of half-mask air-purifying particulate respirators. According to NIOSH, the public comment period produced enough evidence to convince the agency to rescind the notice.

State News

California

  • A new law lowering the corporate officers’ ownership threshold for opting out of work comp coverage to 10%, from a current 15%, will be effective July 1.
  • The closed drug formulary for workers’ compensation will be updated quarterly by a committee of three doctors and three pharmacists who will meet several times a year, according to the Division of Workers Compensation.
  • The Department of Industrial Relations announced 376 workers died on the job in 2016, down slightly from 388 deaths in 2015 but still higher than the most recent low of 344 in 2014.

Florida

  • The Office of Judges of Compensation Claims reported that claimants’ attorney fees increased 36% in the latest fiscal year, following the state Supreme Court’s April 2016 decision in Castellanos v. Next Door Co., which reinstated hourly fees for claimants’ attorneys.

Illinois

  • Medical payments per workers compensation claim were 24% higher than the median for other states examined in a new study by the Workers Compensation Research Institute (WCRI).

Kansas

  • In 2016, there were 74 fatal work-related injuries according to the Census of Fatal Occupational Injuries (CFOI), 50% of which were transportation incidents.

Michigan

  • Workers’ compensation medical payments are among the lowest in the country, according to a WCRI study medical payments per claim, limited to 2.2% per year, due in part to lower prices paid for professional services as well as lower payments per service for hospital outpatient services.

Missouri

  • The Department of Insurance is recommending a 3% decrease in workers’ compensation insurance loss costs for 2018, on top of a 4% decrease that took effect on Aug. 1.

Minnesota

  • Minnesota experienced 92 workplace fatalities in 2016, a 24.3% increase over the prior year and 48.3% above the 2015 rate. Agriculture, forestry, fishing and hunting accounted for the most deaths, followed by construction.
  • The Workers’ Compensation Assigned Risk Plan has issued a notice regarding rates for new and renewal policies, effective Jan. 1 through March 31. Because certain classification codes have been eliminated and two new classification codes created, MWCARP is publishing new rate pages, effective Jan. 1. The eliminated classification codes are 1655, 1853, 3175, 3223, 4053, 4061, 4101, 6017, 7228, 7229 and 9149.The new classification codes are 7219 and 7225.

Mississippi

  • Workers die on the job at a rate double that of the national average, according to the National Employment Law Project. The national average is 3.4 deaths per 100,000 workers, while Mississippi’s rate is 6.8, the fourth highest number in the country for 2015, behind North Dakota’s more than 12, Wyoming’s 10 and Montana’s 7.5. The leading fatal work injuries by occupation were 35% for transportation/material moving and 17% for construction/extraction.

New York

  • Gov. Andrew Cuomo has signed legislation that will require workers’ compensation insurers to notify policyholders 30 days before hiking their renewal premiums by more than 10%.
  • The medical share of total workers’ compensation benefit costs dropped to 37% in 2015 and 2016 from a high of 42% in 2007, while the national average is 51.4%, according to a report by the New York Compensation Insurance Rating Board.

North Carolina

  • Medical payments per workers compensation claim decreased 6% per year from 2013 through 2015, according to the WCRI, likely due to fee schedule rules.
  • The Industrial Commission reminds stakeholders of a new employee misclassification statute that went into effect Dec. 31.

Pennsylvania

  • Acting Insurance Commissioner Jessica Altman has approved an emergency loss cost increase of 6.06%, effective Feb. 1, in response to the state Supreme Court’s Protz decision.

 

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Legal Corner

FMLA
Employee can be terminated for unexcused absences while entitled to FMLA absences

In Bertig v. Julia Ribaudo Healthcare Group, a nurse was certified for FMLA leave for cancer and asthma. Her employer, a local hospital, had a policy that employees are subject to termination when they accrue seven absences in a rolling 12-month period. She incurred a total of 13 intermittent absences in a 12-month period, only three of which were related to her cancer or asthma.

The hospital had thoroughly documented the reasons for each absence, made its expectations clear, and the nurse acknowledged most of her absences were not related to her cancer or asthma. The court found that she was properly terminated.

Workers’ Compensation
Exclusive remedy does not bar suit against employer under Insurance Fraud Prevention Act (IFPA) – California

In The People ex rel. Mahmoud Alzayat v. Gerald Hebb et al., the 4th District Court of Appeals’ Second Division allowed a workers’ IFPA claim to proceed, noting the act contains qui tam provisions, which allow private citizens to file civil suits on behalf of the state. In this case, an employee argued he suffered a legitimate workplace injury, but his supervisor lied on the reports causing the claim denial. While the company argued that the suit was barred based on the litigation privilege of a workers’ compensation proceeding, the Court of Appeal reversed and found in favor of the worker, holding that the IFPA is an exception to the litigation privilege.

Exclusive remedy doesn’t protect supervisor from assault claim – California

In Lee v. Lang, three employees of the Christian Herald filed suit against the director of the publication for multiple wage-and-hour violations and one asserted claims for assault, battery and the intentional infliction of emotional distress. The Court of Appeals reversed in part the judgement in favor of the director, noting “the Labor Code provides an employee may sue his or her employer, notwithstanding the exclusive remedy provision of workers’ compensation, ‘[w]here the employee’s injury – is proximately caused by a willful physical assault by the employer.”

Injuries in vanpool accident limited to workers’ comp – Illinois

In Peng v. Nardi, a buffet restaurant provided a 15-passenger van for workers, which an employee drove and was paid for his driving duties. He wasn’t allowed to use the vehicle for personal errands and he was not allowed to let anyone else drive. A passenger suffered a pelvic fracture in an accident and filed a negligence suit against her co-worker and the other two drivers involved in the accident.

While the court noted accidents when an employee is traveling to or from work generally are not treated as occurring within the course of employment, there is an exception when the employer provides a means of transportation or controls the method of the worker’s travel. Although the injured worker was not required to use the van, she relinquished control over the conditions of transportation and, thus, the exclusive remedy of workers’ comp applies.

No loss of wage earning capacity means no benefits – Mississippi

In Pruitt v. Howard Industries, a worker suffered a back injury, received conservative treatment, and returned to work without restrictions in the same plant, with the same job title, and a higher wage. He filed for PPD benefits, but was denied. The Court of Appeals explained that except for scheduled-member cases, indemnity benefits are made for diminished wage-earning capacity and not medical impairment.

Heart attack not accident and not compensable – Missouri

In White v. ConAgra Packaged Foods, a long-term machinery worker collapsed and died on a particularly hot day in the machine shop, which was not air-conditioned. His widow filed a claim for benefits, asserting that his death was the result of heat stroke and/or his physical exertions in the machine shop. While it was acknowledged that the worker had high cholesterol, hypertension, and other risk factors for a heart attack, the question was whether work activities were the prevailing factor that caused the fatal heart attack.

After two denials, the Court of Appeals awarded benefits to the widow, but the Supreme Court reversed. It noted that the worker’s death must have been caused by an “accident.” An accident is defined as an unexpected traumatic event or an unusual strain that is identifiable by time and place of occurrence and that produces objective symptoms of an injury. Further, the law provides that a cardiovascular event is an injury only “if the accident is the prevailing factor in causing the resulting medical condition.”

Long-term exposure to dust leads to PTD benefits – Nebraska

In Moyers v. International Paper Co., a worker suffered respiratory problems over his 42- year employment at a paper company. When a pulmonologist suggested he stop working, he filed for comp. The court found he had a compensable occupational disease and referred him to a vocational counselor who opined that his breathing problems would prohibit working. He was found to be permanently and totally disabled by his occupational disease and this finding was upheld by the Court of Appeals.

Fall while in line for security log in and pass compensable – New York

In Hoyos v. NY-1095 Avenue of the Americas, a worker for a subcontractor slipped and fell off an elevated loading dock while standing in line with other workers at a security check point to obtain a pass to enter the building and get to his job site. Four feet off the ground, the loading dock had no guardrails, chain, rope or other indication where its platform ended and the ledge began.

The court found that even though the worker was not working at the time, he was following the rules of the contractor and had no alternate place to check in. Refusal to treat that spot as a “construction site” under the circumstance of the case would place an “unintended limitation” on the scope of Section 240(1).

Comp claim for PTSD upheld for claims adjuster – New York

In Matter of Kraus v. Wegmans Food Markets, the company had an internal policy that was unpopular with union drivers regarding no-fault benefits. Claims that arose out of a motor vehicle accident were automatically assigned to a workers’ compensation claims service provider that administered the employer’s no-fault claims, but claims that involved the use or operation of a motor vehicle, however, were not.

The in-house adjuster received threats from unionized drivers and was known to be inconsistent in applying the policy, which contributed to his termination. He filed a workers’ comp claim, asserting he had suffered a psychiatric injury from the stress caused by the drivers’ threats and accusations of dishonesty. The case went through several appeals and the Appellate Division’s 3rd Department found he was entitled to benefits for PTSD, noting he was in “an extremely stressful and untenable situation” because of his employer’s “questionable” no-fault policy.

Civil case settlement does not bar workers’ comp claim – North Carolina

In Easter-Rozzelle v. City of Charlotte, the Supreme Court overturned a state appeals decision that questioned whether a worker who sues a third party gives up the right to comp. The case involved a city employee who suffered a work-related injury and was in a serious car accident on his way to a doctor’s appointment to obtain an “out of work” note. He settled his civil suit and the case to continue to collect comp worked its way through a series of appeals.

Ultimately, the Supreme Court ruled that pursuing a third-party action does not affect a worker’s ability to bring a comp claim. The law does not require that an employer consent to the worker’s settlement of a third-party action, and the city is entitled to reimbursement of its lien from benefits due to the worker per state law.

Two-year jurisdiction rule includes out-of-state medical care – North Carolina

In Hall v. United States Xpress, Inc., payments to out-of-state medical care providers meet the criteria that a claim must be filed within two years after the last payment of medical compensation when no other compensation has been paid and when the employer’s liability has not otherwise been established. The injured worker met the “no other compensation has been paid” criteria since the benefits he had received, which exceeded $8 million in medical care, were provided under Tennessee’s-not North Carolina’s-Workers’ Compensation Act.

Massage service covered by comp – Pennsylvania

In Schriver v. WCAB (Commonwealth of Pennsylvania Department of Transportation), an injured worker received benefits for treatment of a back injury, including chiropractic services. The chiropractor referred him to a licensed massage therapist within the office, and the worker paid $60 for each massage session, but requested reimbursement. The case made its way to the Commonwealth Court, which reversed lower decisions denying payment for the massage services. It noted workers’ comp obligates an employer to provide payment for all reasonable services that an injured employee receives from “physicians or other health care workers,” including chiropractors and their employees or agents.

Earning power, not employment, determines reduction in benefits – Pennsylvania

In Valenta v. WCAB, a worker was collecting total disability benefits for a back and shoulder injury. The former employer’s comp carrier ordered a labor market survey (LMS) and earning power assessment (EPA) performed and six available jobs were identified. The employer then filed for, and was awarded, a modification of payments.

The Commonwealth Court explained the law does not require a worker be offered a job in order to have “earning power,” but meaningful employment opportunities must be available. The court said failure to be hired did not mean that the positions were not open and available, although the evidence of lack of success was relevant to the issue of earning capacity.

Pressured to quit, employee’s disability claim is upheld – Tennessee

In Alicia Hunt v. Dillard’s Inc., a manager of a makeup counter was denied surgery when her work-related ankle and knee injury did not heal. While working with restrictions, she said her supervisor pressured her to take a lower paying job. She resigned, had surgery, and sought to get her job back, but the company indicated she had voluntarily quit.

A trial court judge’s decision that the worker was pressured to resign and had not had a meaningful return to work at a wage equal to or above her pre-injury wage, was upheld by the Supreme Court. Therefore, she was entitled to permanent partial disability benefits up to six times the medical impairment rating, not, as argued by Dillard’s, the cap of 1.5 times the impairment rating when there is a meaningful return to work.

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

OSHA watch

Industry challenge to silica rule rejected by court

The U.S. Court of Appeals for the District of Columbia Circuit has rejected all industry challenges to the silica rule and ordered the agency to explain why it omitted medical removal provisions. Industry groups had challenged the rule on several points, including whether there was evidence it would reduce a significant risk of material health impairment, whether it was technically and economically feasible, and if it violated the Administrative Procedure Act. It also challenged whether substantial evidence supports two ancillary provisions of the rule: allowing workers who undergo medical examinations to keep the results confidential from their employers; and prohibiting employers from using dry cleaning methods unless doing so is infeasible.

Labor unions challenged two parts of the silica rule: the requirement that medical surveillance for construction workers be provided only if the employee must wear a respirator for 30 days for one employer in a one-year period; and the absence of medical removal protections. The court rejected the first, but asked for an explanation of the second.


New and revised fact sheets on silica now available

More than a dozen fact sheets that provide guidance on the respirable crystalline silica standard for construction have been released.


Redesigned webpages make it easier to find training resources

Employers and employees can get information on job safety classes, trainers, tools, and 10-hour and 30-hour cards on the redesigned training webpage.

Tips to protect workers from winter hazards

The Winter Weather webpage provides information on protecting employees from hazards while working outside during severe cold and snow storms, including information on staying safe while clearing heavy snow from walkways and rooftops.


Alliance participants issue alert on use of multi-gas monitors in the oil and gas industry

A new hazard alert explains how multi-gas monitors can protect workers from atmospheric hazards in oil and gas operations.

Enforcement notes

California

  • Following the collapse of a temporary mold and vertical shoring at an Oakland construction site, which hospitalized 13 workers, Cal/OSHA issued serious and serious accident-related citations to subcontractors Largo Concrete Inc. and N.M.N. Construction Inc. for $73,365 and $70,320, respectively. General citations were issued to general contractor Johnstone Moyer Inc. for $3,630.

Florida

  • Inspected under the NEP on Trenching and Excavation, Tallahassee-based, R.A.W. Construction LLC faces proposed penalties of $148,845 for exposing its employees to trench collapse hazards.

Georgia

  • Inspected under the NEP on Trenching, Dustcom Limited Inc., a Garden City construction company, was cited for failing to protect its employees from trench collapse hazards and faces proposed penalties of $130,552.

Illinois

  • Three companies working on the renovation of Chicago’s Old Post Office were cited for failing to comply with respiratory protection, provide training, and properly handle PPE. American Demolition was also cited for failing to establish a written lead compliance program. Proposed penalties for American Demolition Corporation, Valor Technologies Inc., and Tecnica Environmental Services Inc. are $105,765, $64,538, and $50,194, respectively.

Indiana

  • A Jeffersonville home and farm supply center, Rural King Supply, is facing proposed fines of $14,000 after state safety inspectors allegedly found elevated carbon monoxide levels at the facility due to emissions from improperly maintained forklifts.

Kansas

  • A comprehensive settlement has been reached with Bartlett Grain Company LP requiring the company to implement safeguards, training, and audit procedures at its 20 grain handling facilities in six states.The agreement resolves contested citations issued in April 2012 after six individuals were killed and two injured as a result of an explosion at the Atchison grain elevator. Bartlett Grain has also agreed to pay $182,000 in penalties.

Michigan

  • MIOSHA issued a second Cease Operations Order, the strongest enforcement action the agency can levy, against Sunset Tree Service & Landscaping, LLC of Bay City for continuing to operate without abating hazards on the jobsite.

Missouri

  • An administrative law judge of the OSHRC affirmed citations issued against Wentzville-based Auchly Roofing Inc. for failing to use fall protection, but reduced the penalties from $7,482 to $2,494 based on the small size of the employer, good faith safety efforts, and a clean record for 20 years. The company contested the citations, arguing that the violations were de minimis in nature and that compliance with the fall protection standards cited presented a greater hazard to the employees.

New York

  • A jury and judge ordered Albany-based asbestos abatement and demolition company, Champagne Demolition, LLC and its owner, Joseph A. Champagne, to pay $173,793.84 to a former employee who was fired in June 2010 after reporting improper asbestos removal practices at a school worksite in Gloversville.

Pennsylvania

  • US Environmental Inc. was cited for 12 safety violations, including willfully exposing workers to confined space and fall hazards at its Downingtown location. Proposed penalties are $333,756.
  • The owner of Pittsburgh-based, A Rooter Man, pleaded guilty in federal court to a charge of willfully violating an OSHA regulation, resulting in the death of a worker. Sentencing, which could include prison, is scheduled for February 2018.

 

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

HR Tip: NLRB overturns Obama-era rulings related to joint employment and handbooks

A newly appointed Republican majority on the National Labor Relations Board (NLRB) returned to the standard that companies must have “immediate and direct” control over a worker to be considered a joint employer. Under the Obama rule indirect control by one organization over another was enough to establish a joint employer relationship (Browning-Ferris decision). Applying the reinstated pre-Browning Ferris standard, the Board agreed with an administrative law judge’s determination that Hy-Brand Industrial Contractors, Ltd. (Hy-Brand) and Brandt Construction Co. (Brandt) were joint employers and, therefore, jointly and severally liable for the unlawful discharges of seven striking employees.

In the employee handbook case, the board overruled a prior decision placing limits on employer handbook policies that could be “reasonably construed” by workers to limit their right to engage in protected concerted activity-so-called Section 7 of the National Labor Relations Act (NLRA) rights.

The underlying case in the ruling involved a policy by The Boeing Company that prohibited employees from taking photos on company property “without a valid business need and an approved camera permit.” The company argued this was necessary to protect sensitive information and the NLRB found that the no-camera rule was lawfully maintained.

In this decision, the board replaced the “reasonably construe” standard with a new balancing test that will consider the following factors with regard to a “facially neutral” handbook policy:

  • The nature and extent of the potential impact on NLRA rights.
  • The employer’s legitimate justifications associated with the rule.

The board outlined three categories of employment policies, rules and handbook provisions:

  • “Category 1 will include rules that the Board designates as lawful to maintain, either because (i) the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of NLRA rights; or (ii) the potential adverse impact on protected rights is outweighed by justifications associated with the rule. Examples of Category 1 rules are the no-camera requirement maintained by Boeing, and rules requiring employees to abide by basic standards of civility. Thus, the Board overruled past cases in which the Board held that employers violated the NLRA by maintaining rules requiring employees to foster “harmonious interactions and relationships” or to maintain basic standards of civility in the workplace.”
  • “Category 2 will include rules that warrant individualized scrutiny in each case as to whether the rule would prohibit or interfere with NLRA rights, and if so, whether any adverse impact on NLRA-protected conduct is outweighed by legitimate justifications.”
  • “Category 3 will include rules that the Board will designate as unlawful to maintain because they would prohibit or limit NLRA-protected conduct, and the adverse impact on NLRA rights is not outweighed by justifications associated with the rule. An example would be a rule that prohibits employees from discussing wages or benefits with one another.”

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

OSHA alert – Recordkeeping changes

OSHA Form 300A posting deadline February 1, 2018

This month, all employers required to keep Form 300, the Injury and Illness Log, should be reviewing the Log to verify that entries are complete and accurate and correcting any deficiencies. The annual summary of injuries and illnesses recorded on OSHA Form 300A, Summary of Work-Related Injuries and Illnesses, must be posted where notices are customarily located, no later than February 1, 2018 and kept in place until April 30. Even if there were no recordable incidents in 2017, companies required to maintain records still must post the summary with zeros on the total lines. Copies should be made available to any employee who might not see the summary (such as a remote employee who works from home).

When an accident occurs, an employer must document a recordable injury or illness on the OSHA Form 300 log within seven days. Employers should pay careful attention to their logs and the work relatedness of safety incidents, particularly in light of the electronic submission rule. Some employers tend to focus on medical treatment or days away from work, rather than beginning with – was this work related? The OSHA Regulation 29 C.F.R. §1904.7 contains an in-depth overview of recordable injuries and illnesses. Additional information on determining medical treatment and first aid can be located at 29 C.F.R. §1904.7(b)(5).

Standard interpretations on recordkeeping issued in 2017 include:

  • Determining if the employees experienced an injury or illness due to an exposure.[1904; 1904.7(b)(7); 1904.46]
  • Clarification of 1904.31 regarding who is responsible for recording injuries and illnesses when supervision is shared by a prime contractor and subcontractors. [1904.31]

A Form 300 log is required for each physical establishment location that is expected to be in operation for at least one year. Form 300A summarizes the total number of fatalities, missed workdays, job transfers or restrictions, and injuries and illnesses as recorded on Form 300. A company executive, as defined by OSHA, must certify the summary. Employers must keep the records for five years following the calendar year covered by them, and if the employer sells the business, he or she must transfer the records to the new owner.

While the future of the Improve Tracking of Workplace Injuries and Illnesses is uncertain, the Injury Tracking Application (ITA) stopped accepting 2016 data as of January 1, 2018. Employers with 250 or more employees that are subject to OSHA’s recordkeeping regulation must electronically submit information from the Form 300, Form 300A, and the Form 301 to OSHA by July 1, 2018. Establishments with 20-249 employees in certain high-risk industries such as agriculture, forestry, construction and manufacturing, must submit information electronically from Form 300A by July 1, 2018. OSHA then would make the information public on its website.

 

List of top ten violations includes Fall Protection – Training Requirements for first time

While the list of the Top 10 violations for FY2017 remains largely unchanged from 2016, there is a newcomer in ninth place – Fall Protection – Training Requirements.

The full list:

  1. Fall Protection – General Requirements (1926.501) – 6,887
  2. Hazard Communication (1910.1200) – 4,652
  3. Scaffolding (1926.451) – 3,697
  4. Respiratory Protection (1910.134) – 3,381
  5. Lockout/Tagout (1910.147) – 3,131
  6. Ladders (1926.1053) – 2,567
  7. Powered Industrial Trucks (1910.178) – 2,349
  8. Machine Guarding (1910.212) – 2,109
  9. Fall Protection – Training Requirements (1926.503) – 1,724
  10. Electrical – Wiring Methods (1910.305) – 1,530

For more information, the National Safety Council (NSC) provides a detailed description of the specific violations and a summary of the largest penalties.

If you are looking for a way to simply your injury and work comp claims reporting, please feel free to check out our free integrated first report of injury and OSHA recordkeeping software at http://www.stopbeingfrustrated.com/osha-logs.html.

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

What to expect in 2018

In today’s fast-moving business environment and volatile political atmosphere, nothing stays the same for very long, including Workers’ Compensation. Here are 18 ongoing trends and emerging issues to watch in 2018.

  1. Comp rates continue downward trend It’s good news for employers that comp rates are decreasing in most states as claims frequency declines and workplace safety continues to improve. This, coupled with relatively modest increases in medical costs and stable indemnity cost, means a reduction in loss costs and rates. Safety programs at the workplace, automation that has made hazardous jobs safer, a shift from more hazardous jobs to service jobs, and access to better medical care have all contributed to this favorable trend.There are a few areas that are more challenging, including the trucking and hospitality industries. Geographically, rates in California remain among the highest in the country and in Florida there still is concern about rising claims and legal costs, but rates are falling in both states in 2018. Rates in Pennsylvania are expected to increase 6-7% this year due to a Pennsylvania’s State Supreme Court 2017 ruling on injured employees on workers’ compensation over 2 years that will have a significant impact on rates in 2018 and moving forward unless legislation is addressed.  Moreover, workplace fatalities rose to the highest level since 2008.

    Takeaway: This is no time to become complacent. Hourly wages have been slowly trending up, along with employment. Claims have become more complex with comorbidities, aging, chronic pain, improved medical processes, and so on. The long tail nature of claims means that premiums collected today must cover losses for years to come. Insurance companies are using big data and more sophisticated predictive pricing models. Employers that collect and analyze data to improve cost controls, embrace innovative and progressive management of their Workers’ Comp program, and highlight them in underwriting submissions will reap the benefits.

  2. OSHA becomes more employer-friendly Under the Trump administration, there is a significant shift from the enforcement philosophy of the Obama administration to one of enforcement and compliance assistance.Combustible dust, vehicle backing hazards, hearing protection in construction, and updates to chemical PELs were removed from the regulatory agenda and workplace violence, process safety management, infectious diseases in healthcare, and emergency response and preparedness were moved to “long-term actions.” Enforcement of the silica standard on general industry and the maritime industry is scheduled to begin on June 23, 2018, but the Trump administration may seek a delay, depending on its experience with enforcement of the standard on the construction industry.

    Expect more emphasis on Voluntary Protection Programs (VPP), possible changes to “repeat” violation policies and National Emphasis Programs, much less public shaming, more limited use of the general duty clause, and changes to the e-recordkeeping and anti-retaliation rule.

    Takeaway: In spite of these shifts, employers should not assume they are guaranteed employer-friendly outcomes when dealing with OSHA, nor plan on specific regulatory changes, which will take time. While there may be closer adherence to the standards, the increased enforcement fines remain in effect, with some significant fines levied in 2017.

  3. New technologies will continue to emerge The ability to strengthen safety, provide health information, improve working conditions, and boost productivity with the adoption of new technologies (drones, wearables, the IoT, laser scanning, apps, emerging robotic technologies, and autonomous safety systems) will continue to grow. A virtual approach to ergonomics is emerging as a more efficient way to prevent or mitigate injuries.With this comes the need to understand regulatory requirements, privacy laws, insurance, and protection from liabilities. While the opportunities are compelling, some industries, such as construction, have been slow to adapt.

    The advances in technology also impact the medical treatment available for injured workers. Some new treatments will restore full functionality, others will significantly increase costs, and some expand the exposures for lifetime indemnity and medical benefits.

    Takeaway: As the benefits of using these technologies are proven and their prices decrease, more employers will adopt to improve safety and increase competitiveness. Evaluating functionality, security, and employee buy-in will be key in making product choices. New technologies mean new risks and promoting best practices for controlling exposures to hazards involving human interaction with technology, as well as training to mitigate the risks of workers becoming distracted or disengaged are crucial to obtain improved efficiency and reduced costs.

    From a medical vantage point, the use of evidence-based medicine and relationships with occupational physicians will continue to grow in importance.

  4. More employers will practice advocacy-based claims management Employers who have an “us vs them” attitude towards workers who have experienced a work-related injury are living in the past. Transparency, collaboration, and communication are the techniques that dominate effective claims management today.By easing the minds of injured workers and helping guide the recovery process, employers can avoid adversarial relationships and obtain better outcomes.

    Takeaway: It’s not a costly practice, but it takes commitment and consistency to work and an understanding of the injured worker. It can’t be a cookie cutter process; it’s a culture.

  5. New training techniques Training that requires focus, reinforces good practices, highly engages workers, is deliverable 24/7, and has no language barriers is not traditional training. Gamification, virtual reality (VR), and simulations have moved training from passive seminars, video watching, and form-filling to interactive culture and behavioral changing programs. Moreover, site specific safety orientation, daily tool talks, and near miss analysis and discussion build trust with workers and focus on the unique challenges of the job.Takeaway: While the top ten OSHA violations are evidence that many employers fail to meet their training obligations, it’s also true that training is often boring and ineffective. New approaches focus on problem solving and collaboration. The importance of training is how well employees remember and use what they know when the time comes to protect themselves, not that the obligation has been fulfilled.
  6. Alternative treatments for chronic pain While opioid prescribing is on the downturn in workers’ compensation and opioid early intervention programs have become an industry mainstay, legacy claims are a serious problem for the industry. Also, chronic pain particularly from musculoskeletal conditions, remains a serious problem among the workforce and must be addressed. Less invasive approaches such as education and self-care options; conservative therapies like exercise, acupuncture, physical therapy, and yoga; cognitive behavioral training to address psychological factors; and comprehensive pain management are leading the way. The debate rages on about the possibilities of medical marijuana.Takeaway: Employers offering access to affordable and evidence-based options that can help employees in pain can reduce their costs by mitigating unnecessary treatments, reducing lost time, and improving productivity. A comprehensive program provides education and is tailored to the individual needs of the employee.

    Medical marijuana continues to challenge employers in their substance abuse programs and drug testing, and state judicial and legislative bodies as they decide whether to permit reimbursement of medical marijuana as a compensable workers’ compensation benefit. Staying abreast of relevant legal decisions and clearly defined policies in employee handbooks is key.

  7. Medical practices will continue to change Telemedicine is here and expanding. Delivering medical care and information via telecommunication networks is impacting case management, physician’s visits, and rehab. It’s being used effectively for employees working in remote areas, integrated with the nurse triage process, particularly for minor injuries, and follow-up care, including post-op visits, home treatment plans, questions and answers, and consultations with specialists. There’s also been an uptick in telerehab, which supplements in-clinic physical therapy, with virtual access to physical therapy. The possibilities will continue to expand.Takeaway: The benefits of telemedicine can be significant, including cost savings, better access to care, immediate triaging of injuries, and faster claims closings. Issues facing employers include state laws, which vary in the types of services covered, provider requirements, reimbursements, and medical licensure; changing roles of stakeholders who are providing service to injured workers; patient and data privacy; monitoring quality of outcomes; and systems connectivity.
  8. Mental health issues will be talked about more The significant impact of mental health in workers’ comp continues to emerge. Legislative efforts to make it easier for first responders to receive workers’ compensation benefits for mental stress injuries (such as post-traumatic stress disorder) have met with varying degrees of success. The effect of depression, anxiety, and other mental health issues on delayed return to work, increased claims costs, and workplace violence are more fully understood and recognized.Takeaway: Companies are becoming more cognizant of these issues and are more focused on building healthy workplace cultures. The stigma attached to mental health is a societal problem and greater education is needed to identify mental health issues and appropriate treatment.

    Regulatory and external factors can become disruptors including:

  9. Natural disasters have a significant impact on the industry
  10. The national opioid crisis finds its way into the workplace, with double digit increases in overdose fatalities
  11. Globalization means borderless business and new challenges to keep traveling employees safe
  12. Debate over drug formularies will continue to rage in many states
  13. The Gig economy raises questions of adequately protecting workers
  14. The question of independent contractor vs. employee remains one of the hottest, most litigious areas
  15. Rising on-demand services change the risks faced by workers
  16. Changes to immigration laws have significant implications for the hospitality, restaurant, agricultural, construction, and technology industries as well as others
  17. 24/7 connectivity has implications for employee fatigue, driver safety, productivity
  18. The new tax law will mean changes in investment priorities and could lead to accelerated automation

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

Things you should know

Temp workers file lost-time claims twice as often: study

Temporary workers file lost-workday claims about twice as often as permanent workers, according to a recent study from the Washington State Department of Labor & Industries.

Agricultural services had the highest disparity among industries, with 12.39 lost-workday claims per 100 FTE for temp workers compared with 2.36 for permanent ones.

From interviews, researchers found that among temp claimants, nearly 40 percent said they did not receive safety training from their temp agency, and 48 percent said they were trained only at the beginning of employment. For permanent claimants, those percentages were approximately 25 and 20, respectively. Temp claimants also reported less screening for applicable work experience and less control over work schedules.

The study, which was published in the American Journal of Industrial Medicine adds to the evidence that policies are needed to improve screening and training of temporary workers.


Nonfatal injury and illness rate in private sector continues to decline: BLS

The nonfatal injury and illness rate for private-sector U.S. employees decreased slightly in 2016, as did the rate of nonfatal occupational injuries and illnesses requiring days away from work, according to data released Nov. 9 by the Bureau of Labor Statistics. Reported nonfatal injuries and illnesses occurred at a rate of 2.9 cases per 100 full-time workers in 2016, compared with 3.0 in 2015 and 3.2 in 2014. The rate has fallen in all but one year since 2003. The 2012 rate remained the same as in 2011.

Other 2016 data highlights:

  • The median DAFW needed to recover was eight, matching the figure from 2015.
  • The DAFW rate for workers in manufacturing fell to 94.9 cases per 10,000 full-time workers from 99.0 the year before. The total number of DAFW cases in manufacturing fell by 4 percent to 118,050.
  • Among the four industries that reported injury rate declines, only retail trade (122,390) and manufacturing (118,050) exceeded 100,000 DAFW cases.
  • Sprains, strains and tears accounted for 317,530 injuries and illnesses requiring DAFW, or about 36 percent of total cases.

Ignored safety procedures, fractured safety program led to fatal Amtrak derailment

The National Transportation Safety Board determined the April 2016 derailment of Amtrak train 89 near Chester, Pennsylvania was caused by deficient safety management across many levels of Amtrak and a lack of a clear, consistent and accepted vision for safety. A backhoe operator and a track supervisor were killed, and 39 people were injured when the train, traveling on the Northeast Corridor from Philadelphia to Washington struck a backhoe.

The abstract of the NTSB’s final report, that includes the findings, probable cause and safety recommendations is available online.
‘Hypermasculine’ firehouse culture may hinder women from speaking up about safety: study

Female firefighters who feel unwelcome or shunned in the male-dominated culture at some firehouses are less likely to be active participants in the department’s safety culture, according to a new study from Drexel University, published in the Journal of Workplace Behavioral Health.
2018 edition of NFPA 70E® available

Electrical equipment and electrical safety devices are constantly being changed and improved. The NFPA 70E Committee addresses these changes and updates the standard every three years as part of keeping up with current technology and safety concerns. This is a standard used not only by facility managers and safety officers, but also by OSHA inspectors, continually educating them on existing trends in electrical safety.
State News

California

  • The guidelines for how injured workers are treated changed Dec. 1, with modifications in line with current American College of Occupational and Environmental Medicine standards.
  • According to the estimates provided by the U.S. Bureau of Labor Statistics’ Survey of Occupational Injuries and Illnesses (SOII), California’s overall incidence rate of nonfatal occupational injuries and illnesses remains steady at 3.7 cases per 100 workers for full time employees, the lowest rate in over a decade.
  • Medical payments per workers’ compensation claim with more than seven days lost time have decreased steadily since the enactment of reform legislation in 2013, according to a study released by the Cambridge, Massachusetts-based Workers Compensation Research Institute (WCRI). The average medical payment per claim decreased 3% – 4% per year.

Florida

  • The Insurance Commissioner has granted approval to the National Council on Compensation Insurance (NCCI) for a statewide overall rate level decrease of 9.5% and premium level decrease of 9.8%. This applies to both new and renewal workers’ compensation insurance policies effective as of January 1, 2018.

Indiana

  • Nonfatal occupational injury and illness rate is the lowest in state history with an estimated 3.5 injuries or illnesses per 100 full-time workers.

New York

  • The New York State Workers’ Compensation Board released revised draft impairment guidelines and proposed regulations. According to a new section added to Title 12 of NYCRR, evaluations of permanent impairment must be completed using the Workers’ Compensation Guidelines for Determining Impairment. The revised guidelines make changes to the way that medical impairments are scored.

North Carolina

  • Workplace injury and illness rate for private industry in 2016 was statistically unchanged from its historic low in 2015. The 2016 rate is 2.5 cases per 100 full-time workers, compared to 2.6 in 2015.
  • Physician payments as a percentage of Medicare reimbursements were lower than for the region and nationally last year, a NCCI study on Medical Data shows.

Wisconsin

  • A recent study by the WCRI found medical payments per workers’ compensation claim were higher than typical for 2015 injuries evaluated as of March 2016. In 2015, workers’ compensation medical payments per claim with more than seven days of lost time were 61 percent higher than the median in the study; medical payments per all paid claims were 46 percent higher than typical. However, other WCRI research found injured workers reported higher rates of satisfaction with their medical care and among the lowest percentages of problems accessing medical care. Overall total costs per all paid claims were lower than typical in Wisconsin, driven largely by fewer workers losing time from work after an injury, substantially lower indemnity payments per claim, and shorter duration of temporary disability benefits.

 

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

Legal Corner

ADA
EEOC settles suit with New York Con Ed for $800,000

New York City and Westchester County’s electricity and gas utility, Consolidated Edison Co. of New York Inc., will pay $800,000 to resolve a disability discrimination suit under the ADA. The EEOC said Con Ed’s doctors violated the ADA by refusing to medically approve qualified applicants to begin employment because of their disabilities, even though they could perform the jobs for which they applied, and by performing medical exams of applicants without first giving them a conditional job offer. The EEOC said also the utility’s doctors imposed improper medical restrictions on some existing employees with disabilities that reduced their earnings and, in one case, led to termination.


Workers’ Compensation

Exclusive remedy bars health care worker from suing employer for patient attack – California

In Mendiola v. Crestwood Behavioral Health, a health care worker contended her employer did not inform staff about a patient who had a history of attacking women and had misrepresented her job duties. The court said that all of her claims, whether based on misrepresentation or concealment, were related to workplace safety and, thus, were covered by the exclusive remedy of workers’ comp.


Insurance companies can recoup benefits from third-party award – California

In Duncan v. WalMart Stores Inc., an employee of a marketing firm fell and injured herself while on business in WalMart. The marketing firm’s insurer, The Hartford, paid roughly $115,000 for medical care and $37,000 in indemnity benefits. The individual successfully sued WalMart and WalMart was ordered to pay her $355,000, which went toward reimbursing her for medical expenses, and pain and suffering. Then,The Hartford sought to take $152,000 from her award.

Her attorneys argued that she hadn’t been awarded wage-loss benefits, so The Hartford wasn’t entitled to take money to reimburse the indemnity benefits it had paid. However, the court followed the legal precedent that allows employers and carriers to seek reimbursement for their workers’ compensation expenses “totally separate and apart from the injured worker’s actions.” The court wrote that allowing insurance companies to recoup their expenses before workers get a chance to see the award is “consistent with the overall purpose of the workers’ compensation system” because of the quid pro quo the system is founded upon.


Exempt corporate officer of subcontractor cannot sue general contractor – Florida

In Gladden v. Fisher Thomas, Inc., an officer of a Florida corporation, who elected to be exempt from workers’ compensation coverage and who was hired by a subcontractor on a construction project, may not sue the general contractor and other subcontractors in tort for the serious injuries he sustained when he fell from the second floor. The trial court concluded the officer was an “employee” under the Workers’ Compensation Law at the time of the accident, notwithstanding his exemption. The defendants were, therefore, entitled to workers’ compensation immunity.

Upon appeal, the court noted that electing the corporate officer exemption did not remove the officer from the entire workers’ compensation scheme and open the door to actions in tort against individuals and entities who would otherwise be entitled to workers’ compensation immunity.


Standards for expert witness testimony in FELA same as personal injury cases – Georgia

In Smith v. CSX Transportation, the Court of Appeals ruled that the same statutory standard for evaluating the reliability of an expert witness applies in cases brought under the Federal Employers Liability Act (FELA) as in any other personal injury case. An employee, who had filed workers’ comp cases for a back injury, a right knee injury and carpal tunnel syndrome in both hands over his 32-year career, filed suit against his company when he developed pain in his shoulders.

He claimed the company had violated the FELA by exposing him to “harmful repetitive motion, cumulative trauma, awkward work postures, vibration and other harmful conditions” that resulted in injuries to both shoulders. His claim was supported by a doctor whom the judge determined did not present reliable evidence.

The Georgia Court of Appeals said it was not an abuse of discretion for the trial judge to exclude the doctor’s testimony from evidence. Although FELA relaxes the standard of causation that would otherwise apply in personal injury cases, the court said that doesn’t mean the standard for evaluating the admissibility of expert testimony is similarly relaxed.


Second Injury Fund shares in the liability for back injury – Missouri

In Barnes v. Treasurer, an employee of an airport parking and shuttle company injured his back in 2009 and returned to work without restrictions. He asked to receive additional care, but was refused and began seeing a chiropractor and neurosurgeon, who recommended surgery. When the company refused to pay, he went through his private insurance, but only received authorization for one-level fusion, even though the doctor had recommended a two-level fusion. Following the surgery, the doctor imposed strict limits on his activity and the company eventually terminated him and he has not worked since.

This was not the first time he had injured his back; in 2000, at another employer, he suffered a back injury in a motor vehicle accident. There were two experts who opined that the permanent and total disability was a result of the last work injury, and there was one expert who opined that at least some of the disability was attributable to the 2000 accident. While a judge ruled that the company was liable for 100% of the costs, the Labor and Industrial Relations Commission disagreed, finding he was disabled by the combined effect of his pre-existing disabilities and the 2009 back injury.


Benefits allowed for staph infection related to epidural injections for lumbar injury – Mississippi

In Lowe’s Home Ctrs., LLC v. Scott, an appellate court noted weighing of the evidence, including expert testimony, was the responsibility of the Workers’ Compensation Commission. The Commission had given greater weight to the testimony of the employee’s medical expert who opined that, more likely than not, the worker’s staph infection was causally connected to epidural injections the worker received as treatment for a work-related back injury, and, thus, the decision to award benefits will stand.


Standards for evaluating appropriateness of vocational rehabilitation plans set by high court – Nebraska

In Anderson v. EMCOR Group, an injured employee had reached maximum medical improvement and was entitled to a vocational rehabilitation evaluation. The counselor determined that the company had no jobs appropriate for the worker and an Internet search of appropriate jobs revealed a much lower pay scale. The counselor, therefore, recommended a vocational training program. The Workers’ Compensation Court ordered the implementation of the plan, the company appealed, and the case ended up in the Supreme Court.

The Court noted that the purpose of the Workers’ Compensation Act is the restoration of an injured employee to gainful employment, although, it acknowledged it has never defined what it means to restore a worker to suitable or gainful employment. Having cited Alabama case law in previous decisions, the Court adopted the definitions used in Alabama, which provide that “restore” means “to put back.” Since the plan was geared toward putting the injured worker back to employment paying wages similar to those earned prior to the injury and in a field that would be compatible with his age, education and aptitude, the Supreme Court said approval of the plan was not “clearly wrong.”


Worker with PTSD entitled to further disability – New York

In the Matter of Perez v. SN Gold Corp, an employee of a jewelry manufacturer was robbed at gunpoint. It was found he was entitled to PTSD benefits. Later, a WC judge and The Workers’ Compensation Board found the employee had a further causally related disability. The company appealed, but the court found substantial evidence to support the finding and noted it found no error in the exclusion of the independent medical examiner’s report at the proceedings because the company had failed to comply with the law, which required that a copy of an IME report be provided to a worker’s treating doctor on the same day that the worker, the board and the employer’s insurance carrier receive it.


Property owner and general contractor liable for fall from scaffold – New York

In Yaucan v. Hawthorne Village, a New York appellate court ruled that a property owner and general contractor were liable under Labor Law Section 240(1) for a construction worker’s fall from a scaffold, and that they were not entitled to summary judgment dismissing the worker’s Section 241(6) claim. The injured employee who fell from the third floor claimed the scaffolding shifted when it was hit by a large piece of material and, although he wore a safety harness and lifeline, it was too long to stop him from hitting the ground. The court said the employee was entitled to summary judgment on his Section 240(1) claim, since he established that he was not provided with adequate safety equipment to prevent him from falling and it was the owners and general contractor’s duty to provide the safety devices necessary to protect workers from the risks inherent in elevated work sites.


Time limits for filing claims against guaranty fund upheld – North Carolina

In Booth v. Hackney Acquisition Co., an employee who died from lung cancer in 2008 worked for a company whose Workers’ Comp carrier was declared insolvent in 2003. His widow asserted the cancer was caused by his exposure to welding rod fumes during the course of his employment and filed a claim with the Insurance Guaranty Association. There are two sections of the statute that set time limits for such claims, but the widow contended the statutes violate principles of due process and equal protection for workers with occupational diseases that do not manifest within the time limits. The Court of Appeals, however, found both sections constitutionally valid, since they further the state’s legitimate interest in protecting the integrity of the guaranty fund.


Ambulatory surgery centers subject to same fee schedules as hospitals – North Carolina

The North Carolina Court of Appeals ruled that Ambulatory Surgery Centers (ASC) are not separate and legally distinct from hospitals, overturning a Wake County Superior Court decision that invalidated a new Medicare-based fee schedule for ASCs.


Employer who alleged violation of safety rules led to fatality must pay benefits to widow – Pennsylvania

In M.A. Beech Corp. v. WCAB (Mann), a bridge inspector suffered a fatal injury when he was pinned between an aerial lift and the beam of an overpass. While the company contended that the use of the lift had been a violation of the company’s safety rules, lower courts awarded benefits to the injured employee’s widow.

Upon appeal, the Commonwealth Court noted a company that relies on an alleged violation of safety rules must prove that the worker’s injury was caused by the violation of the rule, that the worker knew of the rule, and that the worker was engaged in an activity that was wholly foreign to his employment. The court did not find sufficient evidence that a safety rule was violated and also noted it was appropriate to grant benefits to the widow, since her husband was attempting to perform his duties as an inspector at the time of his fatal accident.


Widow receives benefits for unknown occupational exposure – Tennessee

The Supreme Court’s Workers’ Compensation Panel upheld an award of death benefits to a steelworker’s widow whose husband went to Stockertown, Pennsylvania, to work on an installation project at a cement plant and suddenly became very ill. Although he sought treatment at a walk-in clinic, his condition deteriorated and he was hospitalized and went into a coma. Doctors suspected he had pneumonia and septic shock, a serious infection that affects organ function and transferred him to another hospital, but en route he had a heart attack. He died a month later.

The widow petitioned for death benefits, arguing her husband had inhaled something on the job that caused his sudden decline and the treating physicians supported her argument. The trial court ruled, and the Supreme Court of Tennessee Special Workers’ Compensation Appeals Panel upheld in the widow’s favor.

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

OSHA watch

Deadline for electronic injury, illness reports was Dec. 31, next date is Jul 1, 2018

OSHA delayed the OSHA 300A upload compliance date until Dec. 31, 2017 for employers to electronically submit injury and illness data for 2016 calendar year. However, OSHA will require 2017 Injury Data to be reported by July 1st, 2018.

If you want to be able to more easily and efficiently manage reporting work related injuries and OSHA recordables, please feel free to look at our Free OSHA Software at http://www.stopbeingfrustrated.com/osha-logs.html

Crane operator certification requirements delayed until 2018

As expected, the crane operator certification requirements were delayed by one year, when a final rule was published in the Nov. 9 Federal Register – just one day before the regulation was set to go into effect. “The agency intends to propose removing the capacity component of certification,” according to the Federal Register notice.


New fact sheets available on protecting workers in the shipyard and maritime industries

Four new fact sheets on protecting workers from common hazards found in the shipyard and maritime industries are available:

Enforcement notes

California

  • Six employers cited over $240,000 for exposing workers to Valley Fever on a solar project construction site in Monterey County. General contractor and subcontractors McCarthy Building Cos. Inc., Papich Construction Co. Inc., Granite Construction Co. Inc., Sachs Electric Co., Dudek, and Althouse and Meade Inc. were cited.

Florida

  • Tampa Electric Co. faces over $28,000 in fines for exposing workers to a hazardous release of a chemical refrigerant. Citations were also issued to Largo-based security services provider Critical Intervention Services, for not developing or implementing a written hazard communication program and failing to provide information and training on hazardous chemicals in the workplace. The company faces $25,350 in proposed penalties.

Georgia

  • Buford-based auto parts manufacturer, Elringklinger USA Inc., was cited for exposing workers to electrical, fall, and noise hazards and faces fines of $308,906. The investigation followed two incidents, one involving an amputation of an index finger. Citations included failing to install machine guarding, preventing unauthorized employees from performing tasks that require the control of electrical hazards, and protecting workers from excessive noise exposure.

Indiana

  • A 59-year-old worker was killed at the Amazon warehouse in Plainfield, when his head was crushed by a forklift. In its four-charge complaint, the Indiana DOL cited failure to train employees on lock-out tag-out procedures, as well as failure to follow those procedures and fined Amazon $28,000.

Massachusetts

  • Lynnway Auto Auction Inc. faces fines of $267,081 for electrical, struck-by, and other hazards at its auto auction facility in Billerica. Five people were struck by a sport utility vehicle and died as a result of their injuries. Inspectors also conducted a joint employer inspection, and determined that temporary workers from TrueBlue Inc. – doing business as PeopleReady – were also exposed to struck-by hazards. The agency cited the Dover, New Hampshire, staffing firm for one serious violation for a struck-by hazard, and proposed a penalty totaling $12,675.

Mississippi

  • New Albany-based Custom Nonwoven Inc., a subsidiary of Korea Synthetic Fiber, faces penalties of $220,544 for willfully exposing its workers to unguarded machines, electrocution, and burns from exposed electrical wires and control cabinets, and falls from walkways that were not equipped with guardrails.

Missouri

  • Anderson Foot and Ankle Clinic, a Rolla-based podiatry clinic, was cited for potentially exposing employees to infectious materials, and for violations of the hazard communication standard and faces penalties totaling $93,074.

Nebraska

  • A Dorchester-based Farmers Cooperative faces $373,911 in proposed penalties for failing to protect workers from grain bin entrapment and engulfment hazards. The cooperative was cited for two willful, one repeat, and four serious safety violations of the agency’s grain handling standards.
  • Bimbo Bakeries USA faces $122,625 in proposed penalties for exposing workers to multiple hazards at its Bellevue commercial bakery. Investigators cited the bakery for three repeat and three serious violations including lack of machine guarding, failing to provide fall protection, and using a damaged electrical panel box.

New York

  • Trade Fair Supermarkets faces $505,929 in proposed penalties for exposing employees to safety and health hazards at three of its locations in Queens. Inspectors found blocked exit routes, saw blades without safety guards, and a lack of eyewash stations needed in the event of exposure to corrosive substances. The company also failed to train employees on, and provide safety data sheets for, hazardous chemicals used in the stores.

Wisconsin

  • Didion Milling Inc., a corn milling facility faces over $1.8 million in penalties following a fatal grain dust explosion that killed five workers and injured 12 others. Inspectors found that the explosion likely resulted from Didion’s failures to correct the leakage and accumulation of highly combustible grain dust throughout the facility and to properly maintain equipment to control ignition sources. Cited for 14 willful violations, the company was placed in the Severe Violator Enforcement Program.

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

HR Tip: Important information about Medicare Set-Aside Arrangements (MSA)

MedLearn article reissued

On November 8, The Centers for Medicare and Medicaid Services (CMS) reissued this MedLearn article to clarify information. Initially, SE17019 was issued on 09/19/17 and addressed acceptance of payment for services from a patient’s Liability Insurance Medicare Set-Aside Arrangement (LMSA), No-Fault Insurance Medicare Set-Aside Arrangement (NFMSA), or Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA).

The revised MedLearn article now generally references Medicare Set-Asides (MSAs); there is no longer any specific reference to a WCMSA, LMSA, or NFMSA; instead, the term “Medicare Set-Aside Arrangement (MSA)” is utilized. However, the article does not limit the discussion to WCMSAs, even though a formal review process only exists for WCMSAs and goes on further to let providers know that Medicare is always secondary to liability, no-fault, and workers’ compensation insurance.


Opioid reserves in Medicare set-asides excessive

While the workers’ comp industry has made significant strides in reducing unnecessary opioid use, it is not the case with MSA’s according to new report from the California Workers’ Compensation Institute. A startling 70% of closed workers’ compensation claims in California include cash for future pain prescriptions, requiring funding for decades of opioid use, according to researchers. They also found the prescriptions were often at dangerously high dosage levels and written in conjunction with other high-risk drugs.

Although the report was based on California data, researchers have no reason to believe this problem is any different in any other state. With little oversight, the federal program allows comp claims to close with cash set aside to pay for future drugs and is clearly a matter the industry and government must address.

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