Legal Corner

Workers’ Compensation

Failure to provide required notices means insurer must pay seven-year-old claim – California

In Truck Insurance Exchange v. Workers’ Comp. Appeals Bd, the Court of Appeal of California (2nd Appellate Dist.), affirmed an order of the WCAB, that an insurer must pay the employer’s claim for workers’ compensation benefits that was filed more than seven years after the accident. The Court, noting the employer received notification of the employee’s injury on the day after the injury occurred, said such notice was deemed to be notice to, or knowledge of, the insurer.

Since neither the employer nor insurer provided the employee with the required claim form and notice of potential eligibility for workers’ compensation benefits, there was no delay by the employee in filing the claim.

Indemnification clause obligates employer to pay injured employee tort claims – California

In Aluma Systems Concrete Construction of California v. Nibbi Bros. Inc, Aluma was sued by employees of Nibbi Bros. Inc., for injuries sustained on the job. Subsequently, Aluma sued Nibbi Bros. for indemnification based on a specific provision in the parties’ contract. The trial court sustained Nibbi’s demurrer to Aluma’s complaint without leave to amend, relying on the allegations in the underlying lawsuit of claims only against Aluma and not against Nibbi, the employer. Because the allegations in the underlying lawsuit are not determinative of Aluma’s claim for indemnity, the court of appeals rejected that analysis, reversed, and remanded.

Workers’ comp denied for veteran cop suffering PTSD after pulling bodies from Pulse nightclub – Florida

A 12-year veteran of the Orlando Police Department has been denied worker’s comp after being diagnosed with post-traumatic stress disorder after he helped pull bullet-riddled bodies out of the Pulse nightclub in June. The officer, who has spent ten years as a member of the OPD Hazmat team, filed a claim saying he is unable to do his job and suffers from nightmares and hypertension. However, under Florida law workers’ comp does not cover psychological treatments.

No exception to statute of limitations – Georgia

In Bell v. Gilder Timber Co., et al., No. A16A0300, the Court of Appeals held that a worker’s claim for permanent partial disability benefits was barred by the statute of limitations, which states a worker can file for permanent partial disability benefits no more than four years from the last payment of temporary total disability benefits or temporary partial disability benefits.

In 1992, a worker sustained a compensable injury to his neck and underwent cervical fusion surgery. He received temporary total disability benefits for four months until he returned to work but continued to experience neck pain and worked until he retired in 2009. In 2013, the employer paid for the worker’s second surgery, which was related to the 1992 injury. In 2014, he sought permanent partial disability benefits, but was denied. Although it recognized that the application of the statute of limitations led to a “harsh result,” the court declined to create an exception.

Fire lieutenant entitled to benefits for PTSD following fatal fire – Illinois

In a surprising workers’ compensation opinion, the Illinois Appellate Court reversed lower decisions and ruled that a senior fire official should receive benefits for post traumatic stress disorder (PTSD) following the line-of-duty death of a fellow firefighter. In Scott Moran v. the Illinois Workers’ Compensation Commission, et al., the appellate court found that the lieutenant’s presence outside the house did not preclude the event from being traumatic, because he was in command of the fire and the death of a co-worker had not previously occurred during his career. The court also noted that the employer must have agreed the incident was traumatic; none of the firefighters involved in the traumatic event were allowed to return to work without being cleared by a mental health professional.

Appeal in ‘popcorn lung’ workers’ comp case fails under Frye Evidence Standard – Illinois

The Illinois Fourth District Appellate Court’s Workers’ Compensation Commission Division has affirmed the denial of a “popcorn-flavoring lung disease” claim brought by a former Archer Daniels Midland Co. (ADM) employee. In Michael K. Durbin v. the Illinois Workers’ Compensation Commission (IWCC) et al., the court found the pulmonologist’s causation opinion was inadmissible under Frye and Ill. R. Evid. 702, where it was not based on a scientific methodology or principle that had gained general acceptance in the relevant scientific community.

Employee is not required to submit AMA Impairment Report for award of PPD benefits – Illinois

In Corn Belt Energy Corp. v. Illinois Workers’ Compensation Comm’n, 2016, the appellate court held that the express language of section 8.1b(a) did not limit the Commission’s ability to award PPD benefits where no AMA report was submitted. It merely requires that if an AMA rating report is provided, then the Commission must consider it, along with all the other four factors listed in section 8.1b(b), when determining permanent disability.

Injury incurred while hugging patron compensable – Michigan

In LaFave v. Blue Lounge, 30 MIWCLR 39 (Mich. W.C.B.M. 2016), the Michigan workers’ compensation magistrate awarded benefits to a bartender, who injured her back while hugging an overly enthusiastic bar patron. A video showed the two hugging and each woman lifting the other off the ground. Finding the incident did not fall within the social and recreational exclusion, the magistrate noted a bartender is expected to be pleasant and polite to the customers.

Changing vehicles due to potential bad weather was deviation from employment – Mississippi

In Bennett v. Mississippi State Dep’t of Health, the appellate court confirmed a worker’s travel to lunch and his personal errand home to exchange vehicles were outside the scope of his employment, even though the worker had a fixed place of employment and aspects of his work included travel to service locations. Although he was entitled to reimbursement for that travel, his position was not comparable to that of a truck driver or traveling salesman.

Reasonable degree of medical certainty means new compensable injury – North Carolina

In Harris v. Southern Commercial Glass, the North Carolina Court of Appeals ruled that an employee injured at work in both 2010 and again in 2014 while working at two different jobs is entitled to collect workers’ compensation from both. While the former employee’s medical expert candidly allowed that he could not offer a medical opinion to a degree of absolute certainty that removed all speculation, but that he could say, to a reasonable degree of medical certainty, this was a new injury that materially aggravated the prior back condition, his testimony was not mere speculation and the Industrial Commission did not err in relying in part on that expert testimony in awarding workers’ compensation benefits to the employee.

Subrogation lien limited to total amount of the judgment paid to worker in his injury lawsuit – North Carolina

In Dion v. Batten, the North Carolina Court of Appeal affirmed the amount of a workers’ compensation subrogation lien on a judgment obtained by an employee injured in an automobile accident, who sought monetary compensation from the driver who allegedly caused the wreck by failing to stop at a red light. The worker received $528,665 in workers’ compensation benefits for injuries sustained in the crash, but a substantially smaller amount – $285,000 – in his third party suit.

Ultimately, the trial court decided that the workers’ compensation lien could not exceed the amount of the judgment obtained in the negligence action after subtracting attorney fees, interest, and court costs.The subrogation amount was $190,000.

Firefighter must show his or her type of cancer is caused by exposure to “group 1” carcinogen – Pennsylvania

In City of Philadelphia Fire Department v. Workers’ Compensation Appeal Board (Sladek), the injured worker was a firefighter who developed a skin lesion on the back of his right thigh, which was found to be a malignant melanoma. While the Board found in favor of benefits, the Commonwealth Court of Pennsylvania stressed that “caused by,” must be considered and the Board erred in not doing so. Notably, this decision was vacated and remanded, not reversed. That means that the injured worker did not lose, but simply that the decision granting the Claim Petition used an incorrect standard and has to be reviewed again.

Benefits awarded for accident during personal errand – Pennsylvania

In Colquitt v. Starr Aviation, 31 PAWCLR 93 (Pa. W.C.A.B. 2016), the Workers’ Compensation Appeal Board affirmed the workers’ compensation judge’s finding that an airport ramp agent, who injured her left leg when the tug she was driving flipped over, was entitled to benefits. The agent was given permission between flight arrivals to drive the tug to the other side of the terminal to meet her mother, who was bringing her money and feminine hygiene products. The board explained that because the agent was simply going to meet her mother, her injury occurred during a temporary departure from work during regular business hours, and therefore, her work injury fell under the personal comfort doctrine. The board rejected the employer’s arguments whether the trip to meet her mother was necessary and if it was on the employer’s premises.

Exclusive remedy precludes supervisor’s suit against coworker in post-bar-hopping injury – Wisconsin

After a sales supervisor for a beer beverage distributor completed his regular shift, a coworker contacted him because a restaurant had requested beer.The supervisor and coworker decided to deliver the beer together in the supervisor’s company-owned vehicle, which he could also use for personal purposes, and planned to visit bars afterwards.

The supervisor drove to the restaurant, but the coworker then drove, since the supervisor had been cited for operating while intoxicated. They drank at four bars and then headed home.The coworker missed a curve, and the vehicle entered a ditch. The accident left the supervisor paralyzed and he sued the coworker and the coworker’s personal automobile insurer.

The Circuit Court granted summary judgment to the coworker, finding that workers’ comp exclusive remedy applied. The Court of Appeals concurred, noting that when a salesperson commences travel in the course of his employment, subsequently deviates from that employment, but later resumes his route, which he would have to follow in the pursuance of his employer’s business, the deviation has ceased and he is performing services incidental to and growing out of his employment. Ninedorf v. Joyal, et al., No. 2014AP2762 (Wis. Ct. App. 05/17/16), unpublished.

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OSHA watch

Expedited Whistleblower Review Pilot launched in western region

Effective August 1, a pilot program in the Western region allows whistleblowers, protected by certain statutes, to expedite the process by requesting that the agency stop an investigation and release findings to the Office of Administrative Law Judges. The western region covered by the new “Expedited Case Processing Pilot,” includes Nevada, Arizona, California, Hawaii, American Samoa, Northern Mariana Islands and Guam.

The case has to meet certain criteria to qualify for this expedited processing: it must be filed under a statute that allows for a fresh review from an ALJ, the whistleblower must have been interviewed by OSHA, the complaint must be evaluated to determine if the elements for a retaliation claim are there, both the complainant and the respondent must have had an opportunity to write responses and meet with OSHA to present their statements, and the complaint must have been filed at least 30 to 60 days earlier before the complainant can ask for an expedited review.

Administrative Law Judges can order the same recompenses as OSHA and they can order back pay, compensatory damages, punitive damages, reinstatement, and attorney fees.

PSM standard: interim enforcement policy for Appendix A chemicals issued

A July field memorandum for regional administrators and state plan designees rescinds and replaces a June 2015 memorandum regarding the Process Safety Management (PSM) standard and covered concentrations of listed Appendix A chemicals.

In response to concerns that the 2015 memorandum significantly expanded the scope of chemical mixtures covered by the PSM Standard and a legal challenge that this significant change to the PSM standard was made by way of an interpretation memo, rather than the formal “notice-and-comment rulemaking,” the new memorandum retains the new 1% Rule proposed to be adopted in the June 2015 memorandum for most chemicals listed on Appendix A to the PSM standard.

In determining whether a process involves a chemical (whether pure or in a mixture) at or above the specified threshold quantities listed in Appendix A, the employer shall calculate:

  • the total weight of any chemical in the process at a concentration that meets or exceeds the concentration listed for that chemical in Appendix A, and
  • with respect to chemicals for which no concentration is specified in Appendix A, the total weight of the chemical in the process at a concentration of one percent or greater. However, the employer need not include the weight of such chemicals in any portion of the process in which the partial pressure of the chemical in the vapor space under handling or storage conditions is less than 10 millimeters of mercury (mm Hg). The employer shall document this partial pressure determination.

The new interpretation is different than the 2015 memorandum, however, in that it carves out any chemical listed in Appendix A as “anhydrous” where such chemical is part of an aqueous solution or aqueous mixture.

Employers will not be cited through March 31, 2017, for violations of the PSM standard related to the memo. Through March 31, 2018, the agency will “make it a top priority” for compliance assistance specialists to help employers comply with changes to the standard.

Warning of methylene chloride hazards

A new addition to the Fatal Facts series emphasizes how quickly methylene chloride vapors can reach life-threatening levels when using common paint stripping products. It features the story of a temporary worker who died while using a paint stripper containing this hazardous substance to remove the coating from a bathtub.

New resources highlight tractor safety

A magnet encouraging tractor operators to practice safe handling when in the driver’s seat, is available in English or Spanish and is designed to be placed directly on tractors.

Start date for federal contractor disclosure requirements: Oct. 25, 2016

Beginning in late October, prospective federal contractors will be required to disclose previous labor law violations as part of final guidance recently announced by the Department of Labor and the Federal Acquisition Regulatory Council.The final regulations, scheduled to go into effect in phases beginning on Oct. 25, require employers bidding for a federal contract worth at least $500,000 to disclose any of 14 established violations of workplace protections cited during the previous three years. Violations that must be disclosed include those related to safety and health, family and medical leave, civil rights protections, collective bargaining, and wages.


Tennessee OSHA to adopt upcoming changes for tracking workplace injuries and illnesses

The new controversial recordkeeping rule, which takes effect January 1, 2017, requires certain employers to electronically submit certain injury and illness data, which will be made available to the public. Tennessee OSHA is currently in the process of adopting the new rule and it is anticipated that the rule will be effective by January 1, 2017.

Georgia magistrate recommendation would restrict Regional Emphasis Program aimed at poultry processing facilities

The legality of the Regional Emphasis Program (REP) aimed at poultry processing facilities has been called into question, particularly whether a non-programmed inspection, e.g., one based on a complaint, referral, or report, can be expanded into a full plant-wide investigation. This issue was brought to a head when OSHA attempted to expand an inspection at Mar-Jac Poultry Inc., a poultry processor, from one focused on a report of a workplace accident into an REP inspection focused on numerous potential hazards, and the company refused.

When OSHA sought a warrant, a fact-finding hearing was held and the magistrate judge recommended to the U.S. District Court that OSHA had “probable cause” to investigate four of the 16 hazards because of the accident, but the agency lacked “administrative probable cause” to expand the investigation. The U.S. District Court will make the final ruling.

NIOSH’s Engineering Controls Database can help employers reduce risk of workplace illnesses and injuries

NIOSH’s new Engineering Controls Database provides information on effective engineering controls that can protect workers by eliminating or reducing hazardous conditions.

Recent fines and awards


  • LC General Engineering & Construction Inc. of San Francisco faces fines of $52,810 for safety and health violations after a worker was run over by a steamroller and hospitalized for serious injuries.
  • Garden Grove-based metal processing company, Kittyhawk Inc, faces $73,105 in penalties for serious safety violations following a confined space accident in which a worker was asphyxiated.


  • Great Southern Peanut of Leesburg was cited for combustible dust, improper machine guarding and other safety and health hazard. Proposed fines are more than $110,000 for 17 repeated, serious violations.
  • JCG Farms of Alabama LLC, doing business as Koch Farms of Collinsville, A to J Electrical Services and D. Sims Inc., was cited for serious violations after a dust explosion kills one, injures five at a Rockmart chicken feed mill. The feed mill and two contractors based in Georgia are facing a combined $112,600 in fines.


  • D.R. Horton was issued one repeated citation for failing to ensure subcontractor employees were protected with a fall protection system when working from heights up to 25 feet at an Ocala job site. Garcia Carpentry was issued a repeated citation for the same violation and an additional repeated for allowing workers to use the top step of a ladder to access and exit the roofing trusses. This inspection was part of the Regional Emphasis Program on Falls in Construction program. Proposed penalties: $107,785.
  • Chicken producer, Pilgrim’s Pride Corp, of Live Oak was cited for medical mismanagement, fall, machine guarding, and other safety, health hazards. Proposed penalties: $75,000.


  • Residential contractor, Robert Barringer III, was cited for the 19th time for failing to provide fall protection for workers. The contractor, who is in the Severe Violator Enforcement Program (SVEP), faces proposed penalties of $89,100 and is in default of $267,000 in fines. Robert Barringer III has been cited previously under the operating names Barringer Brothers Roofing, Barringer Brothers Inc., and Barringer Brothers Construction Inc.
  • Newark-based, trailer manufacturer, Dierzen Sales was cited for exposing workers to injuries from machine and welding hazards. It faces nearly $154,000 in proposed fines for seven violations.
  • Meyer Steel Drum Inc. of Chicago faces $46,800 in penalties for lack of adequate machine guarding after a worker has three fingers crushed at the steel drum manufacturer.
  • Arlington Plating Co., a Chicago-area electroplating company, faces $115,000 in penalties for five repeated and 16 serious safety violations related to dangerous machine hazards and other safety hazards.
  • A 42-year-old employee of Material Handling Systems/MHS Technical Services, fell 22 feet to his death at an Addison United Parcel Service facility after the company was cited for failing to provide workers with fall protection. Material Handling Systems/MHS Technical Services faces total proposed penalties of $320,400.


  • Dorchester-based contractor, Roof Kings LLC, exposed employees to life-threatening falls, more than 45 feet off the ground, over a three-day period as they worked at a Haverhill church. The contractor faces $124,000 for willful, serious, repeat violations. The inspection was conducted in response to a complaint.
  • Rohm-Haas Electronics Material, LLC of No. Andover, doing business as Dow Chemical Co., was cited for exposing employees to fire and explosion hazards. It faces $129,200 in penalties following an explosion,
  • Lunenburg-based Force Corp. and Framingham-based AB Construction Group Inc., have been ordered to pay $2.4 million in back wages and liquidated damages to 478 employees for misclassifying most of them as independent contractors to avoid paying overtime and other benefits.


  • Blue Diamond Steel Casting in Pigeon was cited for 23 safety and health violations and issued $205,400 in penalties. MIOSHA inspectors determined that the company overexposed workers to welding and iron oxide fumes, failed to provide training on how to prevent the unintentional activation of furnaces during servicing, and did not guard workers from several pinch points and movements from a robotic machine.


  • Contractor, Anthony Smith, doing business as Center Stage, exposed workers at a Mobile apartment complex to dangerous falls and faces $42,000 in penalties.


  • Stahl Specialty Company did not use lockout devices and other machine safety procedures to prevent unintentional movement of the part – known as a ram – while a worker was inside the machine and he was crushed to death at the Warrensburg foundry. Proposed penalties total $105,000.
  • Homeyer Precision Manufacturing of Marthasville was cited for safety failures related to electrical work practices after the electrocution death of a 43-year-old welder. Proposed fines are $59,000.


  • A construction company that changed its name from Affordable Exteriors to R&M Equipt LLC and its owner, Rich Tiller of Lekhorn, were cited for a willful violation of failing to protect workers from falls with $70,000 in proposed penalties.

New York

  • Middletown fire extinguisher service company, Oprandy’s Fire & Safety Equipment, faces fines of $19,774 after two workers suffer severe injuries in a tank explosion.
  • Environmental Remediation Services of Schenectady was fined $142,000 for violations at a River Road site for exposing its employees to mercury poisoning and not providing proper safeguards to workers doing mercury removal work.


  • Mattocks Five Inc., doing business as Albion Mill, ignored previously identified severe combustible dust and grain-handling hazards and in a follow-up inspection faces $195,000 in fines for 26 violations, including five willful.
  • Liberty Master, Inc. of Scranton exposed employees to serious, potentially fatal fall hazards at Yardley worksite and faces $57,200 in fines.
  • US Steel exposed workers to asbestos hazards at a Pittsburgh coke production facility and faces fines of $170,000. The inspection was conducted in response to a complaint.
  • IFCO Services N.A. Inc., a pallet company, agreed to pay $105,000 for wrongfully firing an employee who complained – first to the employer and then to OSHA – about hazardous mold at the company’s Biglerville plant.


  • Fraser Shipyards Inc. faces nearly $1.4M in penalties for exposing workers to lead, and other hazards while retrofitting vessels. Workers were exposed to lead at levels up to 20 times the permissible exposure limit. The company was placed in the SVEP.
  • Waupaca Foundry Inc. employees were found at risk for permanent hearing loss, respiratory illness, and other dangers from exposure to noise and silica. Proposed Penalties: $56,950.

Detailed descriptions of the citations above and other OSHA citations can be found here.

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Do’s and Don’ts of incident report writing

When an incident, accident, injury, or near miss occurs in the workplace, the first steps are to provide medical care to the injured person and secure the accident scene. Then the investigation should begin immediately with the objective of identifying the root causes of the incident, documenting the lessons learned, and making recommendations to prevent a similar incident in the future.

A well-written report will be concise, factual, and impartial and reflect the fact that a thorough and fair investigation was conducted. Its content should include:

  • Summary: One page abstract that summarizes the event, consequences, causes and recommendations.
  • Background: Process description, conditions preceding incident, events leading up to the incident, safety devices in use, housekeeping, weather, lighting, noise, level of training, and so on.
  • Narrative of what happened: Time of day, witness accounts, sequence of events, the facts surrounding the actual incident, and the events immediately after the incident. Consequences of the incident.
  • Causes – Root & Contributing: Analyzing who, what, where, when and how the incident happened should answer the “why.” The root cause is the most fundamental and direct cause of an accident or incident and there may be one or more contributory causes, in addition to the root cause.
  • Findings: Stick to the facts, avoid speculation and opinion.
  • Recommendations: Be specific and constructive. Immediate and long-term recommendations.

A well written, carefully prepared report can help avoid similar incidents in the future, demonstrate good faith, promote job satisfaction and inclusion, as well as help shield a business from legal liabilities. On the other hand, botched investigations and poorly constructed reports are fodder for plaintiff attorneys, regulators, third party litigation, media and even competitors. Regulators from OSHA and EPA have subpoena authority to access relevant, non-privileged incident reports.

Conn Maciel Carey, a boutique law firm focused on Labor & Employment, Workplace Safety, and Litigation, presented the following do’s and don’ts in a December 15, 2015 webinar:


  • Assume the report will be a public document
  • Limit use of abbreviations and acronyms
  • Use photos, figures, tables
  • Stick to the facts
  • Use a neutral tone
  • Carefully describe concerns
  • Draft thoughtful (practical) recommendations
  • Use good professional judgment
  • Use past tense
  • Consider mitigating factors
  • Determine whether a safety rule was violated
  • Tread lightly when employee misconduct is an issue
  • Establish a realistic implementation plan
  • Anticipate use of report in OSHA and civil litigation
  • Consider seeking legal review


  • Speculate
  • Exaggerate or Oversimplify
  • Overstate
  • Assume
  • Admit to a legal /regulatory violation
  • Discuss similar prior incidents
  • Discuss money, cost, or spending decisions
  • Discuss failures to act or delay
  • Characterize conduct (improper, inadequate, gross negligence)
  • Predict outcomes from inaction (injuries, deaths or damage)
  • Write anything you would not want to see in the newspaper

Related articles:

Eight keys to a successful post incident investigation

Six common roadblocks to optimizing incident investigation

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New studies and surveys

Experience, risk-taking major factors in industrial accidents

Although industrial accidents have declined sharply over the past 20 years, a recent survey by The Golden Triangle Business Roundtable, a Texas trade association, found “risk-taking” continues to be a factor in deaths and injuries. Among workers involved in the incidents, 43 percent had fewer than five years in their crafts and 34 percent had between five and 10 years of experience.

Where incidents have occurred in the 20 years of surveys, 42 percent were at refineries and 21 percent were at chemical plants. Men accounted for 96 percent of the incidents, and two-thirds of them involved men aged 18 to 40 years old. Pipe fitters and laborers accounted for 30 percent of the accidents and 77 percent were in their craft for fewer than 10 years.

Takeaway: While an intensive training program for new and young workers is critical, it is not enough. An on-going mentoring program that emphasizes awareness of the surrounding physical hazards, potential dangers, and good decision-making is key, particularly for less experienced workers who are prone to risk-taking.

Emerging trends and challenges: National Safety Survey

Every year, EHS Today surveys its readers to discover emerging trends and challenges. The major findings of the survey of the nearly 1,000 EHS (environment, health and safety) professionals include:

Leading indicators

Leading indicators are where’s it at in 2016 and those that are most tracked include:

  • Near misses (85.66%)
  • Employee audits/observations (82.87%)
  • Participation in safety training (80.88%)
  • Inspections and their results (79.58%)
  • Participation in safety meetings (69.72%)
  • Facility housekeeping (64.54%)

Others included: participation in safety committees (64.14%), overall employee engagement in safety (60.56%), safety action plans execution (58.17%), equipment/machinery maintenance (51.79%), safety perception surveys and follow up (37.85%), and permit deviation (21.91%).

Top injuries

Cuts, lacerations, and punctures topped the list of most common type of injuries – 53.74%. This was followed by strains, sprains, and tears (52.04%), slips, trips, and falls (47.96%), back injuries (26.53%) and repetitive stress and musculoskeletal injuries (23.47%).

PPE purchases

The two factors most considered when purchasing PPE are certification levels/ratings (55.18%) and price (47.83%). This was closely followed by employee recommendations (41.47%). Hand protection dominates the PPE market, accounting for over 23 percent of the overall protective equipment revenue in 2015.


Untreated sleep apnea deadly for commercial drivers

Research from the National Transportation Safety Board revealed that fatigue was the most frequently cited cause of heavy truck accidents, accounting for 30-40 percent, and was also the cause of 31 percent of the 182 fatal-to-the-truck-driver accidents studied.

Sedentary lifestyles and a tendency toward a high body mass index (BMI) put commercial drivers at a greater risk than non-commercial drivers of developing dangerous sleep disorders. While commercial truck drivers are required by the Federal Motor Carrier Safety Administration to undergo regular medical exams to spot dangerous medical conditions, many sleep disorders still go undiagnosed, or worse, ignored.

When the human body is deprived of sleep, cognitive performance begins to suffer almost immediately. Sleep deprivation problems can include a decrease in alertness and an inability to perform; cognitive as well as memory difficulties; and an increased risk of involvement in a motor vehicle or workplace accident.

While individuals of all ages can develop sleep apnea, common sleep apnea risk factors include:

  • Obesity/high BMI
  • Heavy snoring
  • Large neck circumference
  • High blood pressure
  • Diabetes
  • Male
  • Middle to older age
  • Smoking
  • Alcohol or sedative use
  • Difficulty breathing through the nose


Tractor-trailer truck drivers at increased risk of injury, death

According to a recent blog post from the Department of Labor (DOL), one out of six U.S. American workers killed on the job is a tractor-trailer truck driver. A total of 761 tractor-trailer truck drivers were killed in 2014.

Tractor-trailer truck drivers are three times more likely than the typical American worker to have an injury or illness that required days off from work. Injuries from slips, trips and falls were the most common cause of missed workdays, followed by overexertion injuries caused by tasks such as loading and unloading cargo, pushing and pulling containers, and entering and exiting the vehicle.

When truck drivers get hurt on the job it takes them longer to recover. Approximately half of all truck drivers needed at least 20 days away from work to recover from an incident; 42 percent of tractor-trailer drivers required at least 31 days.


Obstructed breathing more common in certain jobs

Airway obstruction, which can signify lung diseases such as asthma or chronic obstructive pulmonary disease (COPD), was more common among workers in construction and oil and gas extraction than in other industry, investigators at the National Institute for Occupational Safety and Health (NIOSH) reported after analyzing results from a nationwide survey. These findings underscore the importance of monitoring the lung function of workers in high-risk jobs. Investigators found that the highest rates of airway obstruction were in jobs related to installation, maintenance, and repair; construction; and oil and gas extraction. More than one-fifth of study participants in these jobs had airway obstruction. In other findings, cigarette smoking, even prior to the study, also correlated with a high risk of airway obstruction.


Michigan survey suggests medical marijuana can aid in decreasing opioid use to treat chronic pain

In “Medical Cannabis Use Is Associated With Decreased Opiate Medication Use in a Retrospective Cross-Sectional Survey of Patients With Chronic Pain,” published in the June 2016 issue of The Journal of Pain, researchers from the University of Michigan surveyed users of medical marijuana looking for some insight into the relationship between medical marijuana use and alternatives such as opioids for chronic pain management. While researchers acknowledge limitations of the study and need for more research, their findings suggest that using medical cannabis for chronic pain treatment may benefit some patients with improvement in quality of life, better side effect profile, and decreased opioid use.


Study finds nearly 30 pesticides that make farmers wheeze

More than two dozen pesticides – including the most commonly used herbicide – are associated with respiratory wheeze among male farmers, according to a recent study from North Carolina State University. For the study, researchers defined allergic wheeze as cases in which farmers reported wheezing along with doctor-diagnosed hay fever and non-allergic wheeze as cases in which wheezing with no hay fever was reported. Wheezing indicates airway problems and can lead to more serious health issues.

Among the 78 pesticides listed were 45 herbicides and plant growth regulators and 25 insecticides. Twenty-nine pesticides were associated with at least one type of wheeze, and 11 were associated with both types, including Glyphosate, the world’s most popular herbicide.

The study was published online July 8 in the journal, Environmental Health Perspectives

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How to position your company to get the lowest possible premium

With improved data, predictive modeling, and technological advances driving underwriting decisions, insurance companies have become sophisticated with pricing. However, many business owners still pursue the popular tactic of seeking quotes and allowing the carrier to dictate the pricing because they believe a workers’ compensation premium cost is simply based on payroll, the experience modifier, and the insurance company rate.

Yet, insurance companies have subsidiaries with their own rates and underwriters can choose which of the companies and rates to use, as well as apply surcharges and or credits to increase or decrease the rates. Therefore, in reality, the workers’ compensation premium is based on the insurance company’s perception of your risk.

The good news is that workers’ compensation is the one property and casualty coverage where the business has the most control for improving its risk profile by reducing claims and costs. But it requires commitment and planning and won’t happen overnight.

While a business can’t change its loss history and claim costs over the past five years, it can change the insurance company’s perception of its risk by proactively identifying and addressing unique cost drivers, developing and applying proper risk management techniques, demonstrating an earnest commitment to reducing the frequency and/or severity of risk, and putting its best foot forward.

A business won’t get the best price by just asking, saying it has made improvements, or that management is committed to better risk control. Underwriters must be convinced there are solid reasons to adjust pricing. When there are unusual losses, spikes in loss ratios, or an unexpected rate hike, the approach requires a plan.

Teresa Long, Director of Injury Management Strategies for the Institute of WorkComp Professionals, notes “there must be meat on the bones.” The more substance, the better the chance the insurance company will work with you. For example, if you have training initiatives tell how many, when they are conducted, what is the format, and how are results monitored.

Working with an Advisor, a carefully prepared submission should include:

  1. Positive history
    • Good premium payment record
    • Good or improving experience mod history
    • Low turnover
    • Health of workforce
    • Good growth potential
    • Tenure
    • Commitment to the community
  2. Employer programs in effect
    • Orientation
    • Training initiatives
    • Proactive human resources
    • Timely reporting of injuries
    • Medical cost containment: good clinical relationships
    • Management involvement and commitment
    • Return-to-work
    • Excellent employee communications
    • Health and wellness programs
  3. Improved techniques for risk identification, analysis and control
    • Quality analytics and metrics
    • Staff or consultants to help apply proper risk management techniques and evaluative services
    • Job hazard analysis/job safety analysis
    • Lessons learned: problems identified, changes made, monitoring and evaluation
  4. Be upfront about past problems
    • Change in company policies
    • Change in management
    • Change in benefit structures or other significant programs
    • Prior layoffs

Managing troublesome claims

There will be some claims that are particularly troublesome to underwriters. It’s best to find out what they are and address them directly. There is always more to the story than what the stats and reports tell. It’s important to make them real and discuss how they occurred as well as identify what was done to minimize the loss and prevent recurrence. If medical complications, employee motivation, litigation, or other factors impacted the outcome, they should be explained. Finally, discuss the resolution or plan to resolve.

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Things you should know

NIOSH creates mobile app for chemical hazards

NIOSH has created a mobile app to accompany its Pocket Guide on Chemical Hazards.Containing more than 600 chemical entries and appendices, the app allows users to search by chemical name or synonym, as well as DOT, CAS or RTECS numbers.

State crackdowns barely impact physician drug dispensing

A new study by Workers’ Compensation Research Institute (WCRI) finds in states where reforms to physician dispensing prescription drugs were put into place over the last several years, physician-dispensing frequency remains largely unchanged. The eight states studied include: Connecticut, Florida, Georgia, Illinois, Indiana, Michigan, South Carolina, and Tennessee.

Short-term opioid use may contribute to circle of pain

A recent study led by research professors at the University of Colorado Boulder found that when lab rats were given opioids for just a few days, it caused an increase in chronic pain that went on for several months.

Working long hours raises women’s risk of cancer, heart disease

Women who work long hours for most of their career are at a higher risk of developing cancer, heart disease and other chronic diseases, according to a study from Ohio State University. In comparison, the risk of arthritis increased for men who worked long hours, but the risk of chronic diseases did not.

CDC issues report on worker suicide, farming and construction among industries with highest rates

Strategies for preventing worker suicide are needed, researchers from the Centers for Disease Control and Prevention (CDC) claim in a new report detailing the rates of self-inflicted death among U.S. workers. Among men, workers in farming, fishing and forestry again had the highest rate, 90.5 per 100,000 workers. For women, the highest rate was among those employed in protective services (14.1). The researchers cite possible causes and offer workplace prevention strategies.

New video: Protecting communication tower workers from extreme temps

The National Association of Tower Erectors has produced a safety video about the extreme weather conditions that communication tower workers may encounter on the job.

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Legal Corner

Workers’ Compensation 
Case to watch – Working women alleged to receive unequal workers’ comp benefits – California

The lawsuit, Page et. al. v. Parisotto et. al.,alleges that injured female workers are denied equal disability benefits because of systemic gender bias. Filed against state agencies that oversee workers’ compensation benefits, the suit on behalf of several women injured on their jobs, as well as the 700,000-member Service Employees International Union in California, seeks class-action status. Permanent disability benefits are often reduced, the suit claims, because an injury or condition is linked in part to gender-based “risk factors” like menopause. Also, some illnesses mostly associated with women, such as breast cancer, are considered less disabling than those that affect men, which can result in a denial of compensation.

Gasoline spill and cigarette lighting cause fire and compensable injuries – Kansas

In Gould v. Wright Tree Service, Inc., a worker filled up a chainsaw with gasoline and gasoline spilled on his shirt as he handed it to the foreman. The foreman told the worker that he could take a short break until he was done, and then they could walk back to the truck together to get a new shirt. While waiting, the worker lit a cigarette, set his shirt on fire, and suffered significant burns. The company did allow smoking on breaks.

The court concluded that the worker’s actions were causally connected to his job, and he was working at the time of his injury, so his injuries were compensable.

GM can offset workers’ comp benefits with Social Security disability – Michigan

The Michigan Supreme Court has ruled that General Motors Co. can offset a retired employee’s workers’ compensation benefits with Social Security disability insurance benefits despite the timing of a collective bargaining agreement between automakers and the UAW. Arbuckle v General Motors LLC

Worker denied comp for depression arising years after injury settlement – Minnesota

A worker injured her back moving heavy paper products while working at a Potlatch Corp. manufacturing facility. After undergoing surgery that did not completely resolve the problem, she entered into a settlement agreement that excluded future reasonable and necessary medical treatment. She returned to school and worked as a medical secretary, but the lower back pain worsened and she was diagnosed with “major depressive disorder.” Ten years after her settlement, she sought additional benefits.

The state Supreme Court reversed lower courts, which had found the settlement didn’t bar a claim for chronic pain and related depression. The Supreme Court held that a workers’ compensation settlement agreement may close out not only the injury that was the subject of the agreement, but also conditions and complications arising out of the injury; it is not necessary that the condition or complication be specifically referenced in the settlement agreement. Ryan v. Potlatch Corp.

Prankster burned over 45% of body not entitled to benefits – Missouri

A worker who burned himself and suffered substantial injuries after he intentionally lit a can of industrial adhesive on fire to startle a co-worker is not entitled to workers’ comp benefits. In Hedrick v Big O-Tires, the Commission found that the injury did not arise from a risk associated with employment, although it was recognized that the employer allowed horseplay. The Commission noted that the innocent co-worker who was burned was entitled to benefits because his injuries arose from an unprovoked and neutral assault.

History of heart problems does not prevent benefits in hypertensive episode at work – Missouri

For an accidental injury to be compensable, the accident has to be the prevailing factor. A worker, with a long history of heart problems, suffered a serious hypertensive condition at work after an altercation. He was unconscious for one week, and doctors who examined him found no signs of trauma, other than a bruised knee. The incident possibly triggered underlying factors or added stress that caused the heart failure.

The employer’s physician argued that the preexisting health problems were the main factors in the hypertensive crisis, but the report was discarded because of erroneous facts. The worker’s physician cited the altercation, but the language was considered too vague to be evidence that the incident was the prevailing factor, thus lower courts found in favor of the employer.

The state supreme court overruled, noting no court had ever followed up with the doctor to ask what he meant, so it was not fair to base decisions on the fact that the report was too vague. The unexpected stress, both emotional and physical, was the greater factor at play here. Malam v Department of Corrections, 2016 Mo. Lexis 210 (Mo 2016) (June 28, 2016)

Turning ankle in parking lot not compensable – Nebraska

In Maradiaga v. Specialty Finishing, a worker who twisted her ankle when she took a step after exiting her vehicle in the employer’s parking lot, was not entitled to benefits because the activity was not a risk of the worker’s employment. The positional risk doctrine did not apply.

Worker injured in icy parking lot fall at job eligible for comp – Oklahoma

Despite state law, a divided Supreme Court overruled lower courts and found a worker who slipped and fell in her employer’s icy parking lot before clocking in is entitled to benefits. The court found she was in the course and scope of her employment when she fell since “her actions at the time of her injury were related to and in furtherance of the business of (Oklahoma State University), and (she) was on the premises of her employer when she fell. The state law that excludes compensability for injuries “occurring in a parking lot or other common area adjacent to an employer’s place of business before the employee clocks in or otherwise begins work for the employer” did not apply because her employer admitted that she was on university property at the time of her accident.

Dual capacity not an exception to exclusive remedy – Pennsylvania

In Zachary Neidert v. Albert Charlie, III, the employee managed a pub owned by a corporation with a sole stockholder who also owned the building. The employee was in the course of employment when injured, was paid workers’ compensation benefits and settled for a lump sum payment. However, the worker contended the dual capacity doctrine applied, but the courts found the owner of the pub was the actual operator of the pub, despite corporate ownership and, therefore, entitled to immunity as an employer and co-employee.

Worker who did not follow treatment plan may be entitled to benefits – Pennsylvania

A just-hired financial adviser for Citigroup fell and injured his back at a company-related event. He received salary continuation benefits and later, long-term disability. While he saw several doctors, he did not follow through on his treatment plan and the long-term disability was terminated. He appealed the decision and the district court found in favor of Citigroup; however, the 3rd U.S. Circuit Court of Appeals argued that the decision should not be based on appropriate treatment, but whether it was “arbitrary and capricious” to conclude that the medical information provided did not support the claim that the worker could no longer perform full-time work.

A worker’s compensation nonsubscriber wins right to use arbitration in worker injury dispute – Texas

A registered nurse injured himself at a long-term acute care hospital operated by Corinth Investor Holdings L.L.C., a workers’ compensation nonsubscriber that maintains an employee injury benefit plan. That plan includes arbitration provisions, which participants can revoke by notifying Corinth in writing by certified mail and requesting a return receipt. However, provisions state that the agreement cannot be revoked after benefits, such as the payment of medical expenses, have been received. When the injured employee ,who had received benefits, filed a lawsuit alleging unsafe working practices, the company filed a motion to compel arbitration. After a series of appeals, the 5th District Court of Appeals in Dallas reversed and remanded the case, directing the District Court to grant Corinth’s motion to compel arbitration.

Railroad not at fault for not protecting worker from West Nile virus – Texas

A Texas railroad worker, who claims he was bitten by a mosquito carrying West Nile virus while performing his job, can’t hold the railroad liable for not protecting him, said a divided state Supreme Court. The court noted the “ferae naturae” doctrine, which frees property owners of liability due to harm caused by native animals that are on their property, and mosquitoes, indigenous to the state of Texas, are prevalent in South Texas, where the worker was employed.

Workers’ comp attorney fees may hinge on emergency rule – Utah

The Utah Industrial Commission is proposing that an emergency rule change be used to retract the regulation of attorney fees for workers’ compensation cases by state lawmakers. This move comes on the heels of the state Supreme Court’s unanimous ruling in May that the “separation-of-powers doctrine” doesn’t permit state lawmakers to regulate attorney fees, deeming it unconstitutional. The notice of emergency rule is intended to annul Regulation 602-2-4, the rule that implements the statute of paying attorney fees and costs.

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