OSHA’s revised recordkeeping rule in effect: are you ready?

The last hurdle to the implementation of OSHA’s controversial “Improve Tracking of Workplace Injuries and Illnesses” recordkeeping rule was removed when a Texas judge denied a request for a preliminary injunction from several manufacturing and trade associations and the Great American Insurance Company, and it is now in effect. The rule requires employers to make considerable changes to their work-related injury or illness reporting procedures and gives OSHA alternative enforcement authority for employer violations. The denial of the injunction means that major parts of the rule went into effect on Dec. 1, 2016 and Jan. 1, 2017, while the litigation challenging the rule proceeds in the district court.

On May 12, 2016, OSHA changed the way the workplace injury game is played. And there are many who believe the playing field was definitely tipped in OSHA’s direction.

With the sweep of a pen, new regulations were implemented where the U.S. Occupational Safety and Health Administration (OSHA) requires employers to submit detailed annual reports of workplace injuries and illnesses for publication online on a public website. Think of this site as a kind of cyber-clothesline, where all your dirty laundry will now be hung up for all to see. This is the same information that employers were already collecting and typically revealed to OSHA only during inspections or surveys.

OSHA says its intent behind the new regulations isn’t malicious or meant to cause harm to businesses. According to Dr. David Michaels, the Assistant Secretary of Labor for OSHA, “Our new rule will ‘nudge’ employers to prevent work injuries, to show investors, job seekers, customers and the public they operate safe and well-managed facilities. Access to injury data will also help OSHA better target compliance assistance and enforcement resources, and enable ‘big data’ researchers to apply their skills to making workplaces safer.”

Up until now, OSHA was only able to access 1% of all workplace injury reports, mostly through audits and surprise inspections. But what they really wanted and needed was the remaining 99%, so they came up with a plan where employers would now be required to report all incidents. It’s a classic example of if you aren’t catching enough fish on your next trip out on the lake, come up with a way to have all the fish in the lake actually jump into the boat “voluntarily.”

For those not already up on the new regulations, the new rule provisions on reporting, which took effect on January 1, 2017, require various employers (based on establishment size) to submit injury and illness data electronically to OSHA.

Establishments with over 20 employees in specified “high-risk industries,” such as agriculture, utilities, construction, and manufacturing industries, must submit their Form 300A by July 1 in 2017 and 2018, and by March 2 every year thereafter. You can find a detailed list of all industries impacted at http://bit.ly/2ePzE4y

For those with over 250 employees, OSHA is requiring these organizations to submit information from their 2016 injury and illness recordkeeping Form 300A by July 1, 2017, as well. However, the following year, these employers are also required to then submit information from all 2017 forms (300A, 300, and 301) by July 1, 2018. Beginning in 2019 and for every year thereafter, the information must be submitted by March 2. For those employers who utilize an alternative to the OSHA Form 301, such as a workers’ compensation first report of injury, as expressly allowed by the existing rules, these changes may now require that the employer also complete the OSHA Form 301. It is unclear how this will work, but it is assumed OSHA will provide clarification on this subject shortly.

To simplify it, here is how the new rules fall into place:

Submission Year Employers with 250+ Employees Employers with 20-249 Employees Submission Deadline
2017 Form 300A Form 300A July 1, 2017
2018 Forms 300A, 300, 301 Form 300A July 1, 2018
2019 and beyond Forms 300A, 300, 301 Form 300A March 2, 2019

The rule also invokes penalties for employers that take actions deemed as retaliation against employees who report accidents. Enforcement of these rules began December 1, 2016. These rules will be tough on employers that have safety incentive programs or that require drug testing of each employee after an accident.

Requiring drug tests for those with job-related injuries also can be seen as pressure not to report an accident. Understandably, many employers are concerned with the provisions of OSHA’s new rule, claiming drug testing after an accident is a critical tool to keep their organization safe. OSHA agrees, but states employers cannot use drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses.

The new OSHA regulations stress the need for a balanced approach, one that requires employers to limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment abuse by using the drugs. For example, per OSHA, it would not be a reasonable request to drug test an employee who reports a bee sting, a repetitive strain injury, or an injury caused by a lack of machine guarding or tool malfunction.

Employers need not specifically suspect drug use caused an accident before implementing testing, but the reporting employer should at least suspect a reasonable possibility that drug use was in play and a contributing factor in the reported injury or illness, before an order is given for drug testing.

That being said, we recommend employers take the following steps:

  1. Update your injury and illness reporting procedures.
  2. If you do not have an injury and illness reporting procedure, it is important to create one.
  3. Revise your post-injury drug testing policy to eliminate automatic post-injury drug testing and replace it with a policy that requires an individual assessment of each employee and accident.
  4. Train supervisors on how to identify impaired employees and how to document any incidents that may trigger OSHA reporting.

In the end, the new rules will benefit employers who are committed to engraining a safety culture for their organization, and provide a “nudge” (which may feel like a PUSH to some) to those employers who put safety on the back burner. No longer will a “strong safety culture” be a plus or a bonus for an organization.

The new rules now require employers to take safety seriously, by further reinforcing the need and importance of establishing a strong safety culture, one that trickles down from the C-suite to the workers on the floor. Because it will be extremely important when you’re in compliance and made your injury reports available for public viewing, that your customers, competition, union, contractors and, most importantly, your business prospects see that your company puts safety above all other concerns.

Finally, having said all that, I can’t stress enough that what you accomplish will surely be misconstrued by all parties should your reporting be inaccurate, and that perhaps the best course of action is to enlist the services of someone primed to handle the task. Any report you generate should show your company as one that advocates healthy and safety-conscious employees, because once that misinformation is out there, it’s a bell you can’t unring. An errant report has the potential to paint your company in shades of doubt, which you will want to avoid at all costs. And the key is timely and accurate reporting.”

Related articles:

Major regulatory changes from OSHA and DOL rile many employers – June 2016 WorkComp Advisory

Memorandum interpreting the new anti-retaliation provisions includes guidance on disciplinary, incentive and drug testing programs – November 2016 WorkComp Advisory

 

For Cutting-Edge Strategies on Managing Risks and slashing Insurance Costs visit www.PremiumReductionCenter.com

OSHA Form 300A posting date approaching, plus new letters of interpretation and electronic recordkeeping requirements for 2017

Posting deadline: February 1, 2017

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 posted, no later than February 1, 2017, and kept in place until April 30. Even if there were no recordable incidents in 2016, 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).

Form 300A summarizes a business’s total number of fatalities, missed workdays, job transfers or restrictions, and injuries and illnesses as recorded on Form 300. It also includes the number of employees and the hours they worked for the year. Companies with multiple job sites should keep a separate log and summary for each location that’s expected to be operational for at least a year. 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.

Electronic reporting requirements for 2017

Starting in 2017, certain employers must send their injury and illness data electronically to OSHA. Establishments with 250 or more employees must begin submitting information from Form 300A by July 1, 2017, and must submit information from all forms (300A, 300, and 301) by July 1, 2018. Beginning in 2019 and every year thereafter, the information must be submitted by March 2.

Establishments with between 20 and 249 employees in certain “high-risk industries” , must begin submitting information from Form 300A by July 1, 2017, and again by July 1, 2018. Beginning in 2019 and every year thereafter, the information must be submitted by March 2. (see the article, OSHA’s revised recordkeeping rule in effect: are you ready? for more details)

New letters of interpretation

Deciphering OSHA’s recordkeeping rules to determine if an employee’s injury or illness is recordable is challenging. Recordable injuries are work-related and serious. OSHA defines a serious injury as one that results in a fatality, loss of consciousness, days away from work, a restricted work schedule or job transfer, a significant injury or illness diagnosis by a health care provider, or requires medical treatment beyond basic first aid. Employers should not report incidents that require only basic first aid. OSHA’s recordkeeping page provides more detail.

Throughout the year, OSHA issues letters of interpretations. Here is a summary of the letters related to reporting issued in 2016:

September 2016

Scenario: Employee works with glass and was wearing the appropriate personal protective equipment. While driving home from work, he began to feel something in his eye and it became irritated. That evening, he sought medical treatment for the eye irritation. The medical diagnosis stated that there was an abrasion to the employee’s eye with no foreign body present. The employee was unsure if his eye was irritated at work or not.

Response: Section 1904.5(a) provides that an injury or illness must be considered work-related if an event or exposure in the work environment either caused or contributed to the injury or illness. Because the employee’s condition arose outside of the work environment and there was no discernable event or exposure that led to the condition, the presumption of work-relationship does not apply.

Scenario: A motor vehicle accident instigated by a drunk driver led to the death of two employees. Employer requests clarification on what constitutes a workplace event or exposure for accidents that occur on a public road or highway.

Response: Section 1904.5(b)(6) states injuries and illnesses that occur while an employee is on travel status are work-related if, at the time of the injury or illness, the employee was engaged in work activities “in the interest of the employer.” Travel to and from a customer contact is specifically cited as an example of a work activity in the interest of the employer. The employees were traveling from your client’s location in New Mexico back to their base location in Texas. Because the accident resulted in the death of your employees during the work activity, the two cases must be recorded on your OSHA Log.

August 2016

Scenario: An employee was operating a powered industrial truck (a “walkie”). Her foot became jammed between the walkie and a pallet and her steel-toed shoe bent and cut the top of her toe. She received four stitches for the laceration. At the time of the incident, the employee was taking prescription medication for a non-work related condition, which had the potential to cause loss of awareness of her surroundings. You believe this meets the work-related exception in Section 1904.5(b)(2)(ii) where the injury or illness involves signs or symptoms that surface at work but result solely from a non-work event or exposure that occurs outside the work environment.

Response: This case meets OSHA’s definition of work-relationship. Because the case involved medical treatment beyond first aid it must be recorded on your OSHA Form 300. A case is presumed work-related if an event or exposure in the work environment is a discernible cause of the injury or illness or of a significant aggravation to a pre-existing condition. The work event or exposure need only be one of the discernable causes; it need not be the sole or predominant cause. For this exemption to apply, the resultant injury must be solely due to the employee’s non-work related condition.

April 2016

Scenario: A worker began to experience wrist pain after spending most of his workday at a computer. Arrangements were made for him to visit the occupational health clinic. Prior to going to the clinic, the employee purchased and used a rigid wrist brace. The doctor at the clinic stated that while the brace was not necessary, if the worker felt he was getting pain relief by using the brace, he should continue to wear it. Does this constitute medical treatment beyond first aid for recordkeeping purposes?

Response: Yes. OSHA’s regulation at Section 1904.7(b)(5)(ii)(F) provides that orthopedic devices with rigid stays or other systems designed to immobilize parts of the body are considered medical treatment beyond first aid for recordkeeping purposes. The treatment must be directed or recommended by the employer or a health care professional to be considered medical treatment beyond first aid.

March 2016

Scenario: An employee sustained an injury when his hand was caught between two objects. After receiving treatment for the injury, the employee was immediately given a post-accident drug test. The results of the drug test indicated the employee was intoxicated from alcohol. For purposes of this response, we presume the employee’s injury was caused by an event at work, and meets at least one of the general recording criteria in Section 1904.7. Does this injury meet the exemption in Section 1904.5(b)(2)(vi), given the worker was self-medicating with alcohol for his non-work related condition of alcoholism?

Response: No. OSHA’s regulation at Section 1904.5(b)(2)(vi) states “You are not required to record injuries and illnesses if the injury or illness is solely the result of personal grooming, self-medication for a non-work-related condition, or is intentionally self-inflicted.” Under this exception, an employee’s negative reactions to a medication brought from home to treat a non-work-related condition would not be considered a work-related illness, even though it first manifested at work. In analyzing this question, we consulted with physicians from OSHA s Office of Occupational Medicine and Nursing. The physicians concluded that the intake of alcohol does not treat the disorder of alcoholism. Instead, drinking alcohol is a manifestation of the disorder. Accordingly, the injury described in the scenario above does not meet the exception in Section 1904.5(b)(2)(vi) for self-medication.

More details and other letters of interpretation can be viewed here.

For Cutting-Edge Strategies on Managing Risks and slashing Insurance Costs visit www.PremiumReductionCenter.com

Legal Corner

Workers’ Compensation

Qualified medical evaluator’s findings lead to higher impairment rating – California

In Prell v. Cedar Fair, 2016 Cal. Wrk. Comp., the WCAB rescinded the WCJ’s finding that the applicant suffered a 2 percent permanent disability as result of industrial injury to her left shoulder while employed as performer/greeter/park character on 9/17/2013, and found permanent disability in accordance with the panel qualified medical evaluator’s finding of 15 percent whole person impairment. The court found the doctor, who thoroughly explained why the strict rating under the AMA Guides was inaccurate to describe the applicant’s actual disability, noting that the applicant was young and would probably need repeat surgeries, that based on table 16-4 in AMA Guides, the applicant had equivalent to 25 percent total loss of function for the upper extremity, had presented sufficient evidence to rebut the strict AMA Guides .

 

Miami Beach police appealing denial of comp for Zika – Florida

The Miami Beach police union is appealing to lawmakers to provide workers’ compensation for police officers who contract the Zika virus after two officers reportedly were denied workers’ comp for hospital bills related to Zika. The officers work in an identified Zika zone but they live in an area where the virus has not been identified as active.

Zika claims are complicated by the burden of proving that a worker contracted the virus while he or she was on duty. According to the Miami New Times, the Miami Beach City Manager said in a letter that the officers must provide proof that they contracted the virus while on duty and “identify the specific infected mosquito” that caused their illnesses.

 

Widow can proceed with wrongful death suit because of ambiguous denial by employer – Florida

In Gil v. Tenet Healthsystem North Shore, a widow was denied workers’ comp death benefits for her husband who worked as a carpenter for a hospital and was exposed to hazardous materials and, allegedly as a result, died of cancer. The hospital denied the claim arguing the death was not a result of a work-related illness and the widow filed a wrongful death suit. The appellate court panel said the denial notice did not indicate that there was a compensable injury but instead asserted the claim was denied because employment was not the major contributing cause of death. “If an employer takes a position in a workers’ compensation proceeding that an employee is not owed benefits because the injury did not occur in the course and scope of employment or that there was no employment relationship, the employer can be estopped from claiming immunity under the Workers’ Compensation Act.”

 

Comp claim exclusive remedy even for uninsured employer – Georgia

In Saxon v. Starr Indemnity & Liability Co., an injured worker who decided it was pointless to file a workers’ compensation claim against his uninsured employer cannot pursue a tort action, as the employer is still protected by exclusive remedy. The Georgia Court of Appeals argued that the worker had not filed a workers’ comp claim and not proven that he was left unprotected because his employer had not purchased workers’ compensation insurance.

 

Teacher’s injury in student/faculty basketball game compensable – Illinois

Although many states, including Illinois, exclude workers’ compensation coverage for some recreational injuries that are considered to be outside the course and scope of the employment, there can be exceptions. A state appellate court in Calumet Sch. Dist. 32 v. Illinois Workers’ Comp. Comm’n, recently held that a middle school science teacher, who suffered a left forearm fracture while participating in an after school student/teacher basketball game in the employer’s gymnasium, did not engage in a “voluntary recreational program,” and found that the teacher had introduced sufficient evidence to show that he reasonably felt compelled by the school principal to participate in the game.

 

Injury from wiping tables compensable for waitress – Illinois

In Steak ‘n Shake v. IWCC (Anderson), the Appellate Court upheld benefits to a waitress for a hand injury while wiping down a table. After reporting the injury, she was diagnosed with edema and received anti-inflammatory medication and a hand brace, and was told to stay off work for 10 days. When the condition did not improve, the leave was extended to three weeks, but she continued to experience pain. Eventually, she went through four surgeries.

An arbitrator found she had suffered an industrial injury to her hand that had aggravated a pre-existing arthritic condition in her thumb. The Workers’ Compensation Commission affirmed this decision, as did a trial court judge and the Appellate Court.The lower court used the “neutral risk” argument – that something about the worker’s employment increased her potential to be harmed by this risk – more than an ordinary member of the public – because of the speed with which she had to perform this task to keep up with the flow of customers at the busy restaurant. The Appellate court found her injury was the result of an employment-related risk because she was injured while engaged in an activity that the employer might reasonably have expected her to perform in the fulfillment of her job duties.

 

Undocumented worker workers’ comp case to watch – Indiana

In many states immigrants without legal status in the U.S. are treated no differently in determining their right to workers’ compensation benefits. A number of other cases have arisen in recent years that challenge an employer’s responsibility to continue the payment of benefits, particularly in the long term. The Indiana Supreme Court is slated to hear oral arguments in the case of Escamilla v. Shiel Sexton Co., which asks about the types of relief to which undocumented workers are entitled – and for how long – when they are injured on the job.

 

Worker who fell out of tree while on break denied comp – Mississippi

In Haney v. Fabricated Pipe, Inc., the Court of Appeals found that a pipe fitter, who sustained five broken ribs and a spinal cord injury when he fell a distance of approximately 25 feet from the top of a gum tree during a lull in work, was appropriately denied workers’ compensation benefits.

The majority concluded that the pipefitter’s tree climbing was a deviation from the course of his employment under the Larson test for a number of reasons:

  • His action was a serious enough deviation from the workday that his coworkers became alarmed and called for him to climb down.
  • The deviation from employment was complete, as none of the actual duties of the job could have been “commingled” with tree climbing.
  • There was no evidence that such conduct “had become an accepted part” of work at the employer’s work sites. For example, no one had ever climbed trees at work before this incident.
  • Finally, although the nature of employment might invite some horseplay during lulls in the workday, the employer also had a policy against unsafe activities and horseplay and conducted safety meetings to warn against the same.

 

Appellate court reverses Commission twice in same case – Mississippi

In Logan v. Klaussner Furniture Corp., an employee was injured when she fell after her foot got caught in fabric fibers at work. An administrative law judge found that Logan had not suffered any industrial loss of use of her left leg and on appeal, the Commission affirmed, but the Court of Appeals overturned finding she suffered a loss of wage-earning capacity and that she was either permanently partially or permanently totally disabled. Upon remand she was granted a 60% loss of industrial use to her lower extremity, entitling her to 105 weeks of permanent partial disability, however, she again appealed and the Court of Appeals found her to be permanently and totally disabled by the accident, entitling her to 450 weeks of benefit.

The court ruled that the commission’s decision was based on her leg as a scheduled member rather than the fact that her disability was permanent and had resulted in a loss of wage-earning capacity.

 

Court denies benefits to widow under ‘Schoemehl Doctrine’ — Missouri

For a very brief time, Missouri espoused a rule, known as the “Schoemehl doctrine,” that allowed for a permanently and totally disabled worker’s weekly benefits to be passed on to his dependents upon his death.The doctrine is limited in application to claims that were in existence as of January 2007, the date of the Missouri Supreme Court’s decision in Schoemehl v. Treasurer, and had not yet been fully resolved by June 2008, when the legislature then abrogated the doctrine by expressly providing that “the right to unaccrued compensation for permanent total disability of an injured employee terminates on the date of the injured employee’s death.”

In this case, an injured employee was issued an award of PTD benefits in 2009 that provided he was entitled to receive benefits from the Second Injury Fund “for so long as (he) remains disabled,” but it made no mention of his dependents. The Court of Appeals noted, “an employee’s dependents are determined at the time of the employee’s injury and not at the time of the employee’s death.”

 

Fall while hanging speakers compensable – New York

In Goodwin v. Dix Hills Jewish Center, a carpenter who was injured when he fell off a ladder while reinstalling speakers may pursue his Labor Law Section 240 claim against the premises owner, the Appellate Division of the New York Supreme Court ruled. The worker was hired to restore and install wood paneling in a temple. He was asked to rehang two speakers that had been removed during the process and he fell off the ladder while installing the second speaker.

He filed suit under Labor Law Section 240, but the Jewish Center argued he was not engaged in the “altering” of a building at the time of the accident. The Appellate Division, 2nd Department said that the act of re-installing the speakers was ancillary to the purpose of altering the building where the accident occurred and therefore is afforded protection under Section 240.

 

Funds in worker’s MSA can’t eliminate eligibility for Medicaid – North Carolina

The Court of Appeals ruled that money in an injured worker’s Medicare set-aside account could not be considered “liquid assets” that brought her net worth above the threshold for eligibility for Medicaid assistance. Since there are legal restrictions on her ability to access the funds in the MSA, the court said the money could not be included in the calculation of the resources available to the 68-year old widow. Williford v. North Carolina Department of Health and Human Services

 

Comp limit for undocumented workers struck down – Tennessee

A limit on workers’ compensation benefits for undocumented workers is unconstitutional because it prevents them from being eligible for the same comp benefits afforded to legally employed workers in the state, the Tennessee Supreme Court ruled in Martinez v. Lawhon. A day laborer suffered serious injuries to his arm when he fell and lost control of a lawn mower. He underwent five surgeries and his surgeon placed work and activity restrictions on him. Because of these restrictions and because federal law prohibits employers from rehiring undocumented workers once their work status has been revealed, he was unable to return to his job.

Tennessee law says that undocumented workers may receive maximum permanent partial disability benefits of 1.5 times their medical impairment rating, provided that the worker’s employer did not knowingly hire the person when they were ineligible or not authorized to work in the United States. However, a Chancery Court ruled he should receive comp benefits worth 3.5 times his 24% medical impairment rating. The court found that the state cap for undocumented workers amounted to a “state immigration policy,” thereby attempting to legislate an area over which the federal government has sole power.

On appeal, the Supreme Court Special Workers’ Compensation Appeals Panel said that the law limits PPD benefits to 1.5 times a worker’s impairment rating when an injured worker has a meaningful return to work. But a worker’s award can be increased to six times his or her medical impairment rating when a worker doesn’t have a meaningful return to work because of circumstances beyond their control. Additionally, the court found that limiting PPD benefits for undocumented workers could provide an incentive for employers to hire undocumented employees.

 

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OSHA watch

Anti-retaliation provisions effective now

The enforcement of anti-retaliation provisions in the injury and illness tracking rule went into effect December 1, after the U.S. District Court for the Northern District of Texas denied a motion that challenged the new provisions.

 

Final rule on walking/working surfaces, fall protection issued

A long-awaited final rule has been issued updating the standard on walking/working surfaces that addresses slips, trips and falls in the workplace and establishes employer requirements for the use of personal fall protection systems. The most significant update to the rule allows employers to choose the fall protection system that is most effective for them based on a variety of acceptable options, including the use of personal fall protection systems.

The rule also allows employers to:

  • Use rope descent systems up to 300 feet above a lower level
  • Prohibit the use of body belts as part of a personal fall arrest system
  • Require worker training on personal fall protection systems and other equipment designed for falls

The final rule does not change construction or agricultural standards. The final rule for general industry updates requirements for ladders, stairs, dockboards, and fall and falling object protection.

It’s expected that this rule will stand under the Trump administration since it is uncontroversial and employer-friendly.

 

Amputation prevention initiative launched in four states

Enforcement initiatives emphasizing the prevention of amputation hazards among workers in Arkansas, Louisiana, Oklahoma and Texas, began November 1. Inspectors will examine operations, working conditions, recordkeeping, and safety and health programs in these states for compliance. The program will also focus on employers in industries using machinery that can be hazardous to workers.

 

Regional emphasis program focuses on retail establishments in Pennsylvania

A Regional Emphasis Program for the Retail Industry will include a program of comprehensive safety inspections of certain retail establishments, with a focus on proper exits, material handling and storage and electrical hazards. The emphasis program will cover each of the counties that fall under the jurisdiction of the Wilkes-Barre area office, including: Bradford, Carbon, Clinton, Columbia, Lackawanna, Luzerne, Lycoming, Monroe, Montour, Northumberland, Pike, Potter, Schuylkill, Snyder, Sullivan, Susquehanna, Tioga, Union, Wayne and Wyoming.

 

Guide on silica rule compliance for small businesses

A compliance guide is available for small businesses in the construction industry to help them adhere to a final rule regarding exposure to crystalline silica in the workplace. The guide is intended as an advisory tool and does not create or change any obligations for employers.

 

NIOSH issues recommended exposure limits for chemicals linked to ‘popcorn lung’

NIOSH has released recommended limits for controlling occupational exposure to flavoring chemicals diacetyl and 2,3-pentanedione, both of which have been linked to reduced lung function in food flavoring and production industry workers. Published Oct. 31, Criteria for a Recommended Standard: Occupational Exposure to Diacetyl and 2,3-Pentanedione lists the recommended exposure limits for diacetyl at 5 parts per billion and 9.3 ppb for 2,3-pentanedione as an 8-hour time-weighted average during a 40-hour workweek.

 

Recent fines and awards

California

  • Elite Electric Inc. of Riverside faces $130,125 in proposed fines for serious and willful safety violations after a worker installing solar panels fell 29 feet through a skylight.
  • AAA Roofing was fined $24, 575 after a foreman’s instructions to use a propane torch to loosen a discharge pipe on a tanker filled with liquid asphalt caused an explosion that injured two workers.

Florida

  • Flacks Painting & Waterproofing of Lauderdale-By-The-Sea faces nearly $90,000 in fines after an employee suffered neck and back injuries when the balcony he was working from collapsed. A willful citation was issued for not ensuring the walking and working surface where employees were working was strong enough to support the workers. There were also four serious and two other-than-serious safety and health violations.
  • Collis Roofing Inc. of Deland faces nearly $143,000 in penalties for failing to protect employees from falls. The inspection took place as part of the Regional Emphasis Program on Falls in Construction.

Illinois

  • A mobile medical trailer fell and fatally crushed a 58-year-old electrician on his first day on the job at Advanced Mobility’s location in Monee. The company faces $58,792 in fines.
  • Coilplus Illinois Inc., a steel processing facility, faces penalties of $53,628 following the death of a 50-year-old employee after being pulled into a scrap metal baller. Penalties related to violations of confined spaces, machine guarding, and lockout/tagout standards.

Missouri

  • Magna Seating doing business as Excelsior Springs Seating System, a manufacturer of automotive seats, was cited for one serious health violation of the agency’s general duty clause after a May 2016 agency investigation found musculoskeletal disorder injuries. Proposed penalties are $12,471.
  • A Jefferson City roofing contractor, Weathercraft Incorporated, was cited for one serious violation of the general duty clause after a 47-year-old laborer died from suffering heat stroke on his third day on the job. Proposed penalties are $12,471.

Nebraska

  • Prinz Grain & Feed was cited for multiple violations at its West Point facility after a worker died when a wall of corn debris collapsed in a grain bin. Proposed penalties are $526,633 and the company has been placed in the Severe Violator Enforcement Program.

New York

  • A 23-year-old tree service worker was killed on the first day of his job after a wood chipper pulled him into the machine. Albany-based Countryside Tree Service was cited for willful, serious safety violations including failure to train and lack of PPE. Proposed fines total $141,811.

North Carolina

  • Smithfield Farmland Corporation in Clinton faces $77,000 in fines for failing to properly guard workers from a cutting band saw, exposing workers to amputation hazards.

Pennsylvania

  • An administrative law judge recently affirmed nine cited federal safety and health violations and assessed $344,960 in fines against Lansdowne masonry contractor, J.C. Stucco and Stone. The company has been cited 41 times since 2011 for exposing workers to life-threatening scaffolding hazards.
  • Philadelphia contractor, Hua Da Construction, was fined $72,000 for fall and trenching safety violations.
  • Crystal Window & Doors was cited for 8 violations at its Dalton facility and fined nearly $75,000 for not correcting safety hazards following the amputation of a workers’ finger.
  • Dollar General in Jonestown fined for blocking emergency exit again and faces $215,000 in penalties.

Wisconsin

  • KG Marketing and Bag Company of Waukesha, a manufacturer of plastic bags for commercial use, was cited for one willful violation of the machine-guarding standard and one other-than-serious violation for failing to report an amputation within the required 24-hour reporting period. The proposed penalty is $78,325.

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

For Cutting-Edge Strategies on slashing Workers’ Compensation Costs visit www.PremiumReductionCenter.com

HR Tip: Emerging employment issues top EEOC priorities

The EEOC recently announced its updated Strategic Enforcement Plan for fiscal years 2017-2021. The new plan continues the priorities outlined in the plan for 2013-2016 but adds two areas to the previous “emerging issues” priority. Those additions encompass:

  • “Issues related to complex employment relationships of the 21st century workplace,” specifically focusing on temporary workers, staffing agencies, independent contractor relationships, and the on-demand economy; and
  • “Backlash discrimination against those who are Muslim or Sikh, or persons of Arab, Middle Eastern or South Asian descent, as well as persons perceived to be members of these groups.”

While a Trump presidency will undoubted impact how the EEOC pursues its enforcement agenda and the resources it has available, historically, the agency has pushed its enforcement priorities.

For Cutting-Edge Strategies on slashing Workers’ Compensation Costs visit www.PremiumReductionCenter.com

Claims management review checklist

The start of the year is a good time to take a step back and assess your overall claims process. Balancing a macro and micro approach to claims is key to ensuring that you are achieving the best possible outcomes. Here is a claims management review checklist:

  • All claims reported in 24 hours or less following incident.
  • All claims periodically diaried, reviewed and documented?
  • Examiners and supervisors have manageable claims case loads?
  • Subrogation potential comp claims identified and pursued?
  • Fraud potential compensation claims identified and pursued?
  • Litigation control of comp claims practiced and managed?
  • Reporting of open, reserves, and closed claims on a timely basis?
  • Claims consistently settle higher or lower than reserves?
  • Claims ultimately close within 10% -15% of reserved amounts?
  • Reserves on Unit Stat filings match claims file amounts?
  • All open case claims reserves adjusted on a timely basis?
  • Changes in reserves slow in reaching computer loss runs?
  • Excessive claims reserve recoveries or salvages detected?
  • Injured worker payments sent on accurate and timely basis?
  • Payments to injured workers verified on a regular basis?
  • Payments provided to questionable or fraudulent comp claims?
  • Expenses accurately provided and on a timely basis for claims?
  • Payment accompanied with adequate supporting documentation?
  • Payments made in excess of claims examiner authority levels?
  • Supervisors review claims files on a regular periodic basis?
  • Have all claims been assigned to the proper state?

For Cutting-Edge Strategies on slashing Workers’ Compensation Costs visit www.PremiumReductionCenter.com

Rethinking Return to Work

With the New Year comes a chance to look at doing something different, however, we’ve all heard the phrase, “If it ain’t broke, don’t fix it.” If something is working reasonably well, leave it alone. And with the daily pressures of running a business, it’s easy to be complacent about things that appear to be running well.

Employers with return to work programs often assume they’ve done their part by putting the process in place. There’s little analysis or evaluation until a claim starts to spiral out of control and then it’s assumed that employees understand how the program works and why it exists, and the program chugs along as it did five, ten years ago. Yet, return to work is the cornerstone of workers’ compensation cost containment. According to the BLS, the overall incidence rate of nonfatal occupational injury and illness cases requiring days away from work to recuperate was 104.0 cases per 10,000 full-time workers in 2015. In 2015, there were 1,153,490 days-away-from-work cases in private industry, state government, and local government-essentially unchanged from the number of cases reported in 2014. The median days away from work to recuperate-a key measure of severity of injuries and illnesses-was 8 days in 2015.

For the first time in its four years of surveys, The Workers’ Compensation Benchmarking Study identified precisely which claims best practices are generating better outcomes. Getting injured employees back to work tops the list and employers can do better.

Here are six points to consider:

  1. Rethink the nameIn most cases, when an employee is injured, it is the first time they’ve dealt with workers’ compensation. Depending upon the individual and the culture of the company, they can be worried, even scared. Am I going to get in trouble? Will the company help me out? What are other employees thinking?

    Ray Gage, a Master Work Comp Advisor from Indiana recently gave a compelling presentation at the Institute of WorkComp Professionals’ Symposium, urging members to change the conversation about return to work. The place to start is with the name. Return to work implies that injured employees have to leave compounding their fears about feeling expendable and what is going to happen. Consider the difference, if it were named Recovery at Work, or Stay at Work. Suddenly the employee feels valued, protected, and knows appropriate work will be available.

  2. Take control from the insurance company“Insanity is doing the same thing over and over and expecting a different result,” as Gage noted, most employers follow the same steps when an injury occurs. They begin with the First Report of Injury. Then they wait two or three days for a call from the adjuster. Then wait for the employee to go to the doctor and wait again to receive the work restrictions, which may or may not be clear or reflect an understanding of the job. Insurance adjustors can have 75 – 150 cases on their desk at one time so the employer and the injured employee are at the mercy of the insurance company. And the same thing happens when another employee is injured.

    Gage urges employers to flip the process and become the center of the spoke by immediately engaging the other most important players – the medical providers and the injured employee.

  3. Manage the Experience Modification Rate (EMR)Following a claim, employers exercise effective cost control when they can minimize the impact on the Experience Mod, reduce lost time or days away from work, and implement successful transitional duty. Paying wages has a dual advantage: it can cost less than the increase in premium resulting from a lost time injury and boost morale. In many states, medical only claims are reduced by 70% before they are entered into the Mod formula.
  4. Make it mandatoryRequiring mandatory participation keeps the process in control of the employer and establishes the ground rules with employees. While employees cannot be required to accept transitional assignments when on FMLA leave, in most cases, the Workers’ Compensation indemnity payments may discontinue with the refusal to return to work.
  5. Ban the “No Work” restrictionWhile physicians are medical experts, many are not trained in the treatment of occupational injuries, nor do they have essential information about workplace policies, job demands, and the availability of transitional work. Some still have the attitude that “no work” is an appropriate restriction. Therefore, it makes little sense to grant them the role of “gatekeeper.”

    Begin by encouraging a visit to the worksite and providing information on the transitional work program. There needs to be an on-going three-way conversation – employer, employee, and medical provider throughout the process. If an injured employee is facing surgery, it’s not enough to plan the transition jobs once the employee returned. Conversations should take place with the doctor before the surgery to understand what can be done in the time immediately following surgery when the employee cannot do too much.

  6. Raise the bar: almost no restriction is too limitingDisability guidelines can help guide the types of work that can be done and how the recovery should progress. But each case has to be managed individually and at times it will take creativity and commitment to get the employee back to work. Gage told the story of a Transmission Shop employee who suffered a serious shoulder injury and could not lift his arms above his head. His restriction: must sit in a La-Z-Boy for six weeks. The shop moved a La-Z-Boy into the work bay and the employee directed others on how to rebuild engines.

Employees are often called “assets;” yet, assets and people are quite different. A Recovery at Work program has both an economic and a human element. There are many economic reasons to strengthen a Recovery at Work program, but the bottom line is it simply is the right thing to do for all your employees.

 

For Cutting-Edge Strategies on slashing Workers’ Compensation Costs visit www.PremiumReductionCenter.com