Things You Should Know

EEOC issues guidance on mental health discrimination and reasonable accommodations

A resource document titled “Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights,” is now available from the EEOC, reminding employers of workplace rights for employees and applicants with mental health conditions and clarifying the protections afforded by the ADA.

Sound level meter mobile app from NIOSH

NIOSH has developed a sound level meter mobile app designed to measure noise exposure in the workplace. The app, available for Apple devices, provides noise exposure metrics, including instantaneous sound levels in A-weighted, C-weighted or Z-weighted decibels, as well as parameters intended to aid with lowering occupational noise-induced hearing loss. Users can save and share measurement data and receive general information about noise and hearing loss prevention.

NIOSH recommends using the app with an external microphone and acoustical calibrator for better accuracy. The app is not intended for compliance or as a substitute for a professional sound level meter or a noise dosimeter, the agency cautions.

Mine safety inspection rule delayed

The Mine Safety & Health Administration’s newly issued workplace examination rule, is another one of the rules delayed 60 days by the Trump administration’s Jan. 20 regulatory freeze and review instructions. The rule, which was to go in effect May 23, is intended to improve miner safety and health by requiring examinations take place before miners are exposed to adverse conditions and notifying miners when a hazardous condition is found.

Five warning signs of employee fatigue

  1. Unusual emotion: employees acting out of character, such as showing emotional distress, moodiness, or having a bad attitude in the workplace.
  2. Consistent lateness: if a normally punctual employee arrives late to work every morning, it can indicate poor work-life balance.
  3. A cluttered workspace: Pay attention to employees’ desk and workstations. While some people prefer a more chaotic environment, a messy workspace can be a symptom of overwork.
  4. Forgetfulness and disregard for the team at large: It can also be a sign that the employee in question has too many things to think about and isn’t on top of their workload.
  5. Productivity dips despite longer hours: Productivity often decreases the longer employees spend at work.

Source: WorkForce Software (WFS Australia)

FDA approves long-acting opioid painkiller, Arymo ER.

The U.S. Food and Drug Administration (FDA) has approved Egalet Corp.’s long-acting opioid painkiller, Arymo ER. An independent panel recommended the drug be labeled as an abuse-deterrent product. Arymo ER is a long-acting variation of morphine that is intended to treat pain severe enough to require daily, around-the-clock, long-term opioid treatment. It comes in the form of a very hard pill that is difficult to crush and otherwise manipulate by people looking to abuse the product.

EPA updates

  • Final rule sets standards on ‘restricted use’ pesticides
    Certified workers who apply “restricted use” pesticides must be at least 18 years old and have their certification renewed every five years, according to updated standards finalized Dec. 12 by the Environmental Protection Agency.
  • Risk Management Program rule for chemical facilities amended
    Amendments to its Risk Management Program rule are an effort to improve chemical process safety and keep first responders safer.
  • Requirements to help prevent paraquat poisonings
    The herbicide paraquat can result in death or injuries through ingestion or skin or eye exposure. Paraquat is used for weed control and as a defoliant on some crops before harvest.

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

Legal Corner

ADA
Severe obesity claim of discrimination can proceed

A bus driver of the Chicago Transit Authority sought to return from an extended medical leave and was cleared through a fitness exam to return to work, but failed a safety assessment and was not allowed to return to work. The Authority argued that obesity is not a disability unless it is due to a physiological disorder and the employee had not alleged a physiological disorder.

However, the Court noted that there is a split among Circuit Courts on what is required for obesity to be considered a covered disability. The court did not take a position on what approach is right, but said “[e]ven if Plaintiff is ultimately required to prove that his obesity was caused by a physiological disorder, he was not required to allege the same.” Richardson v. Chicago Transit Authority, 2016 U.S. Dist. LEXIS 143485 (N.D. Ill. 2016)

 

FMLA
Medical privacy protected under FMLA

In Scott Holtrey v. Collier County Board of County Commissioners, the Florida U.S. District Court ruled the employer violated the FMLA when a management-level employee allegedly disclosed the employee’s serious health condition with his genitourinary system to co-workers and subordinates at a staff meeting. The employee became the subject of jokes and obscene gestures. While the County Board argued that the interference claim failed because it granted the employee FMLA leave, the Court disagreed, “The enforcing labor regulation makes clear that confidentiality of medical information is a right provided and protected under the FMLA.”

Doctor’s certification and job description key factors in defining essential functions

A laborer for the City of Red Bank in Tennessee, who rose to the position of Assistant to the Director of Public Works, did significant outdoor work. His job evolved and required different responsibilities, more and more of which were outdoors. He developed skin problems and was diagnosed with lupus. His dermatologist said he needed to be indoors.

After an indefinite FMLA leave lasting six months, he returned to work and bought protective clothing, but it failed to provide adequate protection. He sought another FMLA leave and his doctor ‘s certification emphatically stated that he must work indoors. When it was determined he was not qualified for the two open indoor positions, he was terminated.

The City prevailed at the federal court level, and upon appeal the Sixth Circuit Court of Appeals affirmed that the worker did not show that he could perform the essential functions of his job with or without accommodation. While the employee and the doctor attempted to modify their position after the termination decision, the City had a right to base its decision on the information available at the time of termination. Mathis v. City of Red Bank, 2016 U.S. App. LEXIS 19423 (6th Cir. 2016)

Workers’ Compensation
Michigan federal court reiterates that RICO may not be used for bad faith claims – United States

Citing two earlier precedents, a federal district court sitting in Michigan ruled that racketeering activity leading to a loss or diminution of benefits that a worker expects to receive under a state workers’ compensation system does not constitute an injury to “business or property” under the Racketeer Influenced and Corrupt Organizations (“RICO”) Act. The worker tried to distinguish his case by alleging tortious activity by “independent medical examiners.” Gucwa v. Lawley, 2017 U.S. Dist. LEXIS 8698 (E.D. Mich., Jan. 23, 2017)

Medicare reimbursement is limited to related injuries identified by diagnosis codes – California

The U.S. District Court for the Central District ruled in favor of the California Insurance Guarantee Association (CIGA) in its ongoing challenges against the Centers for Medicare and Medicaid Services (CMS) over the Medicare Secondary Payer (MSP) practices. CIGA faced Medicare Conditional Payment demands for three separate workers’ compensation claims that had settled. Included in the demands were diagnosis codes unrelated to the accident.

CIGA noted to the court that it is not uncommon in conditional payment letters from the CMS for multiple diagnosis codes to appear under a single charge – some of which relate to a medical condition covered by the primary plan, but others that do not. CMS routinely determines if any of the codes relates to a covered condition and seeks reimbursement for the full amount. California Insurance Guarantee Association v Burwell, et al case no. 2:15-cv-0113odw (ffmx)

Broad interpretation of employment finds union responsible for member’s injury – California

In Mason v. S.E.I.U. Local 721, 2016 Cal. Wrk. Comp. P.D. LEXIS 618 (Lexis Advance), the WCAB, reversing the WCJ in a split panel opinion, held that an employee of the County of Los Angeles, Department of Children and Family Services who was a member of S.E.I.U. Local 721 was acting as an employee of S.E.I.U. Local 721 at the time she suffered an injury while participating in a union rally. The WCAB found employment by the union, noting the injured worker was rendering service for “another,” (the union), and that the union provided transportation, food and water while at the rally, and that the services and goods provided by the union were akin to economic substitutes for wages.

Injured worker can’t switch to doctor in different specialty – Florida

In a case of first impression, the Florida 1st District Court of Appeal ruled that a worker exercising his statutory right to a one-time change in physician was not entitled to choose a new doctor in a different specialty simply because the carrier did not respond in a timely fashion. In Retailfirst Insurance Co. v. Davis, an employee who had injured his leg had received authorization for treatment with a family practice physician and later sought authorization for care with an orthopedist. The court noted that procedures exist for such a request.

Change in economic conditions not basis for increased benefits – Illinois

In Murff v. IWCC (City of Chicago), No. 1-16-0005WC, 01.06.2017, an injured worker returned to work in a modified capacity. Later, he was determined to have reached maximum medical improvement and was awarded benefits and continued to work in the modified capacity for about six months. He was then told him that if he could not return to his old job duties, he’d have to go home, so he went on disability leave and filed a claim seeking additional comp benefits.

The Appellate Court upheld the findings of the lower courts that there was no evidence he had not suffered any material change in his physical or mental condition since the award of benefits. An increase in economic disability is not a basis for additional comp benefits.

Lung disease from pigeon droppings lead to lifetime of benefits – Missouri

In Lankford v Newton County an investigator with the county prosecutor’s office would smoke frequently on the courthouse roof, which was a popular place for pigeons. In 2002, he was diagnosed with COPD as a result of ammonia exposure from investigating a meth lab and in December 2007, after undergoing lung surgery, to remove half of his right lung, which contained a nodule that was suspected to be cancerous, he suffered a stroke that left him unable to work.

He filed a workers’ comp claim asserting that he was exposed to pigeon droppings during the course and scope of his employment. Doctors noted that a biopsy of his lung nodule showed the growth contained bacteria and a fungus linked to pigeon droppings. He died of complications and his wife became the claimant. The case was appealed up to the Court of Appeals, but in each case, the award of $167,811.62 in permanent total disability benefits to the deceased worker, as well as more than $500 in lifetime weekly workers compensation benefits to his wife, was approved.

Change in job duties means claim compensable despite pre-existing condition – Missouri

In Clawson v Cassens Transport Company, a union car hauler had a pre-existing knee condition as a result of a work-related accident a few years earlier. After working for 3.5 years after the accident, his workload increased and he began working 6-7 days per week. When he complained of pain in his knee, the employer denied the claim and declined to provide medical treatment. He sought medical treatment on his own, was advised to have surgery and a doctor opined the issue was casually related to the increase in his job duties.

At a hearing, an ALJ found that although there was a pre-existing condition, the prevailing factor in causing his worsening condition was the change/increase in his job duties.

Subcontractor found guilty for worker’s death – Missouri

The U.S. District Court in Kansas City found Pacific-based DNRB Inc., a steel erection company doing business as Fastrack Erectors, guilty in the 2014 death of an employee who fell while working on a warehouse construction project in Kansas City. The court found that “Fastrack was aware of safety violations but willfully ignored them, with tragic results.” Fastrack was a subcontractor to ARCO National Construction – K.C., Inc. and the contract required that personnel who were working or present at heights in excess of six feet shall be provided adequate fall protection and Fastrack failed to do so.

Undocumented worker due comp benefits – New York

A U.S. District Court judge dismissed an insurer’s request to forgo payment of workers’ compensation benefits for an undocumented landscaper’s injury. The insurer, NorGuard Insurance Co., sought a declaratory judgment that it wasn’t obligated to pay medical expenses, indemnity payments or comp benefits because the worker had entered the U.S. illegally.

The court noted that the insurers allegations simply do not “fall within the zone of interests protected by law invoked. Such violations are the concern of the Internal Revenue Service, Homeland Security, and like agencies.”

Opera singer can sue Met for injuries sustained in fall – New York

Finding that her employment contract was with her personal holding company and not the Metropolitan Opera House, an Appellate Court found that a prominent opera singer can sue the famous facility that featured her in over 500 performances. Noting that New York law generally considers a person engaged in the performing arts an employee of the establishment where he or she performed, the exception here was the singer was stipulated to be an employee of another employer. Therefore, the exclusive remedy provisions of workers’ comp do not bar her suit. White v. Metropolitan Opera Assn., Inc., 2017 N.Y. App. Div. LEXIS 90 (Jan. 5, 2017)

No reason to stop compensating attendant care by wife – North Carolina

In Thompson v. International Paper Co., No. COA15-1383, 01/17/2017, a worker was burned over 23% of his body in a work-related accident. His wife took FMLA leave from her job to care for her husband and, when she returned to work, she arranged her schedule to accommodate his medical needs. While the company accepted the burn injuries as compensable, it denied reimbursement for attendant care services provided by his wife. The full Industrial Commission ruled that attendant care by his wife was unnecessary after Dec. 31, 2012, but the appellate panel disagreed. While the need for care may have lessened, treating physicians had found attendant care was medically necessary.

Futility in finding another job allows continuing benefits – North Carolina

In Neckles v. Teeter, a 68-year-old employee who had moved to the U.S. from the Caribbean island nation of Grenada had worked as a meat cutter and suffered an injury to his lower back, right hip, and right arm and leg for which he was compensated and received temporary total disability. A functional capacity evaluation concluded he couldn’t go back to his job as a meat cutter, but he was capable of a job that required light physical demands, however, a vocational rehabilitation specialist determined it would be difficult for him to get any job.

Three years later, the employer filed a form alleging the worker was no longer disabled. After a series of appeals, the Court of Appeals ruled that the worker should continue to receive TTD benefits and coverage of medical expenses. According to the court, it was necessary to look at the totality of the evidence, including age, education, work experience, work restrictions for the compensable injury, other unrelated health conditions (i.e., diabetes, gout, and angina), and trouble communicating (a thick accent).

IRE that didn’t consider worker’s psyche invalidated – Pennsylvania

A divided Supreme Court ruled that an impairment rating evaluation (IRE) that failed to consider a worker’s psychological injuries from an industrial accident was invalid, noting an IRE doctor must consider all conditions that he or she believes are related to the worker’s injury, not just those that are designated in the notice of compensation payable (the “NCP”.)

In this case, an employee suffered an electric shock and received 104 weeks of temporary total disability benefits at which time the employer requested an IRE. The doctor assigned a 6% permanent impairment rating, but the employee argued his compensable injury included damage to his psyche as well as his hands. A workers’ compensation judge found the worker had adjustment disorder and post-traumatic stress disorder that were compensable consequences of the accident. While the Workers’ Compensation Appeal Board and the Commonwealth Court reversed this decision, the Supreme Court overturned their ruling, noting that the IRE doctor must determine the level of impairment and in this case did not assess psychological conditions, nor determine whether those conditions were fairly attributable to the accident. Duffey v. Workers’ Compensation Appeal Board (Trola-Dyne, Inc.)

Supreme Court affirms franchisors do not employ their franchisees’ employees – Pennsylvania

In Saladworks, LLC v. W.C.A.B. (Gaudioso), the question revolved around whether the franchisor, Saladworks, was a statutory employer. Under Pennsylvania law, when an employee is unable to recover from its direct employer, the employee can file a workers’ compensation claim against a “statutory employer.” A Workers’ Compensation Judge initially held that Saladworks was not a statutory employer, however, the Workers’ Compensation Appeal Board reversed that decision. On appeal, the Commonwealth Court reversed the Board’s decision recognizing the difference between Saladworks’ business model and the business engaged in by its franchisee. The Supreme Court dismissed the appeal, effectively upholding the Commonwealth Court’s decision.

Penny wise and pound foolish: attorney’s fees of $27,000 awarded for $187 medical claim – Tennessee

In Grissom v. UPS, 2017 Tenn. LEXIS 4 (Jan. 9, 2017), the Special Workers’ Compensation Appeals Panel of the Supreme Court affirmed a trial court’s award of attorney’s fees and expenses in the amount of $27,353.63, in connection with an employee’s petition to compel the employer to pay $187 for two trigger point injections. The workers’ compensation carrier had sought a peer utilization review (UR), although it had paid for earlier injections. An authorized physician provided the injections to the injured employee, but the UR provider found the injections unnecessary. Following a hearing, the trial court disagreed.

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

OSHA watch

Beryllium standard delayed

The beryllium standard, published 11 days before President Trump’s inauguration, is one of the rules delayed 60 days by the Trump administration’s Jan. 20 regulatory freeze and review instructions. Federal agencies are to send no new rules to the Federal Register, withdraw rules sent but not yet published, and delay the effective date by 60 days of any rule published that has not taken effect.

The rule, which was to go in effect March 10, reduces the eight-hour permissible exposure limit from the previous level of 2.0 micrograms per cubic meter to 0.2 micrograms per cubic meter. Above that level, employers must take steps to reduce the airborne concentration of beryllium. It also requires additional protections, including personal protective equipment, medical exams and other medical surveillance and training and establishes a short-term exposure limit of 2.0 micrograms per cubic meter over a 15-minute sampling period.

Fines increase

The penalty increases, effective Jan. 13, mean that the maximum fine faced by employers for willful and repeat violations will rise to $126,749, while the maximum penalties for serious and other-than-serious citations will increase to $12,675.

See related article OSHA fines increase and some startling facts about them in this edition.

Recommended best practices to guard against retaliation

Recommended practices to guard against retaliation against employees reporting workplace safety concerns were recently released.

The recommendations provide examples of what anti-retaliation training should entail; provides helpful guidance to employers by outlining five key elements of an effective anti-retaliation program: management leadership, commitment and accountability; a system for listening to and resolving employees’ safety and compliance concerns; a system for receiving and responding to reports of retaliation; anti-retaliation training for employees and managers; and program oversight.

The recommendations are advisory only and do not carry the weight of regulations.

Recent fines and awards

Florida

  • Jasper Roofing Contractors and its CEO face a lawsuit after a safety manager alleges retaliation for cooperating with a safety investigation.

Georgia

  • Atlanta-based paper, plastic recycler, Nemo Plastics Inc. was cited with 21 serious health and safety violations for exposing workers to fire, explosion, and machine guarding hazards. Proposed penalties are $133,443.

Illinois

  • A Chicago metal container manufacturer, B-Way Corp, faces more than $81,000 in penalties after a third worker suffered an amputation injury in 18 months. Investigators found the company did not properly install the machine’s safety guards, nor properly train workers in lockout/tagout procedures.
  • Belleville roofing contractor, Robert Barringer III, which operates as Barringer Brothers Roofing, is facing $214,782 in proposed penalties for exposing workers to fall hazards and has been placed in the Severe Violator Enforcement Program.
  • Winnetka-based Redhawk Roofing was cited for four repeated safety violations when workers roofing a residential home were exposed to fall hazards and faces $63,494 in proposed penalties.
  • A Park Ridge masonry contractor, Polo Masonry Builders Inc., was cited with two repeated and eight serious safety and health violations after inspectors observed the workers atop a four-story building. The company faces $77,606 in proposed penalties.
  • Under terms of a settlement agreement, a pipefitter, previously employed by John Deere, will receive a total of $204,315 in back wages and “front pay” and $70,685 in other damages. The lawsuit alleged the pipefitter was terminated from the Moline facility after reporting unsafe working conditions and filing a complaint after the company failed to correct one of the unsafe conditions.

Massachusetts

  • Bellingham-based, John’s Used Autos and Parts LLC, faces $27,157 in proposed penalties for failing to provide adequate training and safeguards to protect workers, following the death of an employee when he was struck in the head by a chain come-a-long device as he attempted to inflate and mount a multi-piece rim wheel.

New York

  • Inspected in response to a complaint, The Landtek Group Inc., a general contractor faces $197,000 in fines for exposing workers to excavation hazards at a high school construction site.

Pennsylvania

  • BHC Northwest Psychiatric Hospital LLC, doing business as Brooke Glen Behavioral Hospital, of Fort Washington faces fines of $32,000 for exposing employees to workplace violence and other hazards. The hospital was cited under the General Duty Clause.
  • Pennsylvania-based SanCasT faces $235,879 in fines at its Ohio casting and foundry facility for machine and fall hazards found during a follow-up inspection.

Wisconsin

  • Monroe Clinic, Inc., a local medical clinic, failed to tell maintenance workers they were being exposed to hazardous asbestos material – which the company identified in 2008 – and did not provide workers with protective equipment. The clinic faces $261,890 in proposed penalties.
  • Green Bay manufacturer, Bay Fabrication, faces more than $219,000 in proposed penalties for failure to properly guard machines, after two workers suffered severe injuries within 10 days.
  • A Marathon-based lumber company, Menzner Lumber and Supply, faces fines of $260,113 after a worker suffered a partial amputation of his finger because the company lacked adequate safeguards and workers were not properly trained in isolating energy to machines.
  • An investigation prompted by the death of a 17-year-old worker, two weeks after starting the job at a Columbus metal fabrication facility, G.D. Roberts & Co. Inc., has resulted in multiple safety and health violations and proposed penalties of $119,725.

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

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

Things you should know

ACP latest medical guideline to discourage opioids for treatment of low back pain

A new low-back pain treatment guideline from the American College of Physicians (ACP) is the latest to discourage the use of opioids, instead encouraging the use of such treatments as exercise, acupuncture, massage, or biofeedback. When low-back pain becomes chronic, defined as lasting longer than 12 weeks, ACP recommends that patients start with non-drug therapy, which might include exercise, acupuncture, biofeedback, cognitive behavioral therapy or spinal manipulation. The guideline applies to cases of nonradicular low-back pain, where pain is not radiating into the patient’s legs.

If patients wish to take medication, they should use nonsteroidal anti-inflammatory drugs (NSAIDs) such as ibuprofen, or skeletal muscle relaxants prescribed by a doctor. Acetaminophen and steroids are not recommended for low back pain, according to the guideline.

Guide offers advice on choosing the right slip-resistant footwear

Intended for workers, purchasers, and safety and health committees, a Montreal scientific research organization offers a free pamphlet detailing the procedures for choosing footwear with proper grip and protection against hazards. It also lists necessary steps, including creating a selection committee, considering risk factors, selecting the proper sole and verifying the selection before purchase.

ISHN annual update on hand protection

The Industrial Safety and Hygiene News February edition features its annual update on hand protection.

FMCSA delays effective date for CMV driver minimum training standards

The Federal Motor Carrier Safety Administration (FMCSA) rule establishing national minimum training requirements for entry-level commercial motor vehicle drivers has been pushed back until at least March 21 based on the executive order to temporarily postpone certain regulations that have yet to take effect. The agency could delay the minimum training rule beyond March 21, if necessary.

NIOSH publishes workbook on Total Worker Health

NIOSH has released a workbook it calls “a practical starting point for employers, workers, labor representatives, and other professionals interested in implementing workplace safety and health programs aligned with the approach.” The Total Worker Health concept emphasizes a work environment that is free of hazards and uses “a modern prevention approach” that acknowledges that occupational factors can affect the well being of employees, their families and their communities.

New Jersey’s toughens opioid laws

The New Jersey law limits doctors’ ability to issue first-time opioid prescriptions for more than five days, mandates doctors to create a pain-management treatment plan regarding the use of opioids and review prescriptions every three months, and requires doctors to obtain a written record that the risks of taking opioids were discussed with the patient. The law also mandates state-regulated health insurers to cover the first 4 weeks of inpatient or outpatient substance abuse treatment without the need for authorization. Insurers must provide additional coverage for up to 6 months of treatment, including medication-assisted treatments, if deemed medically necessary.

The prescription drug limit would not apply to patients with cancer and for end-of-life hospice care.

IRS will accept tax returns from individual filers without health care status but employer requirements remain the same

The IRS announcement that it will not reject taxpayers’ 2016 income tax returns that are missing health coverage information applies to personal income tax returns. Employers still must distribute 1095 forms to employees and report employee health coverage to IRS. Also, it is not a repeal of the individual mandate; penalty provisions are still in place and are currently being enforced.

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

Top 10 Workplace Trends in 2017

Performance Management tops the list

The Society for Industrial and Organizational Psychology (SIOP) asked its members – who study workplace issues of critical relevance to business, like talent management, coaching, training, organizational development, and work-life balance – about their predictions for 2017. Topping the list of top ten is the changing nature of performance management.

While much has been written about companies ending annual performance reviews and ratings, it’s unclear what will take its place. The group predicts, “Organizations can expect to rely less on once-a-year performance appraisals and more on frequent feedback and coaching to put the focus on improving performance. Strategies, such as continuous performance management, will lead to a greater emphasis on real-time feedback, daily manager-employee relationships and an increased need for managers to acquire the skills to coach and deliver timely feedback to employees.”

For the Top 10 Workplace Trends for 2017

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

OSHA fines increase and some startling facts about them

When the Bipartisan Budget Act of 2015 required all federal agencies with civil monetary penalties covered by the statute, such as OSHA, to update their fines, there was also a mandate for annual increases based on the Consumer Price Index(CPI). Effective January 13, 2017, there was a one percent increase, raising the maximum fine faced by employers for willful and repeat violations to $126,749 and $12,675 for serious and other-than-serious citations.

Additionally, in response to criticism from the North Carolina Department of Labor and the Kentucky Labor Department, it was clarified that State Plans are expected to increase their maximum penalty amounts to align with the federal rates.

Some startling facts

  • 3 out of 4 companies that are inspected receive citations. In FY 2016, there were only 25% “in compliance” inspections.
  • The average penalty per serious violation rose from $2,046 in FY2014 to $3,415 in FY 2016, a 67% increase.
  • The number of egregious million dollar cases was 17 for the period FY 03- 09. For the following six-year period, FY10 – FY16, the number rose to 59.
  • Following the penalty increase in July 2016, the number of cases with fines of $250,000 or more increased from eight in the first six months of 2016 (pre-increase) to 21 in the last six months (post increase) – a 262 percent increase.

Source Conn, Maciel Carey PLLC webinar, Top 5 OSHA Issues to Track in 2017

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

Truckers’ medical conditions can increase crash risk

Commercial truck drivers who have at least three health issues can quadruple their crash risk compared to healthier drivers, according to a study from the University of Utah School of Medicine. Researchers examined medical records for nearly 50,000 commercial truck drivers, 34 percent of whom had signs of one or more health issues associated with poor driving performance, such as heart disease, low back pain and diabetes.

The crash rate involving injury among all drivers was 29 per 100 million miles traveled. The rate rose to 93 per 100 million miles traveled for drivers with at least three ailments. Researchers took into account other factors that can impact driving abilities, such as age and amount of commercial driving experience.

The study was published online Jan. 10 in the Journal of Occupational and Environmental Medicine.

Employee takeaway: It is well documented that truck drivers often have difficulty staying healthy because they tend to sit for long periods of time and sleep and eat poorly. With the industry facing a critical shortage of drivers, employers need to do all they can to keep their drivers healthy. There are a host of tools available to help drivers, including smart phone apps with guidance about nutrition and exercise on the road, customized in-house wellness programs, bio-screenings, coaching, sleep apnea testing and treatment, encouraging brown bagging and walking or bicycling during breaks, and so on. Some companies are ramping up their new-hire pain diagnostics, so they have a baseline for whether a new driver has pre-existing muscle pain. In an industry of high turnover and high claims, this puts the driver on notice and effectively deters claims.

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

Deadly Skyline: An annual report on construction fatalities in New York State

According to the report “Deadly Skyline: An Annual Report on Construction Fatalities in New York State,” from the New York Committee for Occupational Safety and Health, 464 construction workers died in New York between 2006 and 2015, and fatality rates have trended up 40% between 2011 and 2015. Falls are the leading cause of fatalities, accounting for 49% of construction deaths in the state and 59% in the city.

“Employing approximately (4%) of the state’s workforce, the construction industry sees one-fifth of workplace fatalities,” the report said. In addition, OSHA found safety violations at two-thirds of the site inspections it conducted in New York in 2014. A high percentage of sites where fatalities occurred – 87% in 2014 and 90% in 2015 – were found to have safety violations when inspected by OSHA. The report also noted non-union construction sites were especially dangerous for workers. Eighty percent of construction fatalities occurred at non-union sites in 2014, and 74% of fatalities were at non-union sites in 2015.

Latino workers also face a disproportionate risk of dying in construction incidents; 57% of construction workers who died in 2015 were Latino even though they comprise only 30% of the construction workforce.

Employer takeaway: Construction is the most dangerous industry in the country with the highest number of fatalities. In addition to tougher legislation and higher penalties, NYCOSH’s recommends:

  • require OSHA’s 10-Hour Construction training program or equivalent training for all construction workers as well as apprenticeship programs on large sites
  • preservation of New York’s Scaffold Safety Law, which holds building site owners and employers liable for worker injuries and deaths resulting from unsafe conditions at elevated worksites
  • expanded monitoring and enforcement of construction sites, including criminal prosecution of contractors, and revocation of licenses and permits for contractors convicted of a felony related to a worker fatality

 

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

Pressure to meet earnings expectations negatively impacts worker safety

New research in the Journal of Accounting and Economics, “Earnings expectations and employee safety” examined the relation between workplace safety and managers’ attempts to meet earnings expectations. The finding: significantly higher injury/illness rates in firms that meet or just beat analyst forecasts compared to firms that miss or comfortably beat analyst forecasts.

Changes in operations or production, specifically increased workloads and abnormal reductions of discretionary expenses, that are meant to increase earnings impacted the number of workplace injuries. The relation between benchmark beating and workplace injuries is stronger when there is less union presence, when workers’ compensation premiums are less sensitive to injury claims, and among firms with less government business.

Employer takeaway: When pressure is applied on managers to meet earning expectations, they can detract from safety by increasing workloads, hours, speed of workflow or cutting corners. Contrast these findings to a study published in the January 2016 issue of the Journal of Occupational and Environmental Medicine (JOEM), that found 17 publicly held companies with strong health and/or safety programs significantly outperformed other companies in the stock market. Two additional studies also found that financially sound, high-performing companies invest in employee health and safety. Rather than deviate from normal business practices to meet earnings expectations in the short-term, these companies have an ongoing, long-term commitment to a healthy and safe workforce that tangibly contributes to the bottom line.

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

Top 10 Non-Fatal Work Related Injuries

Overexertion tops list of serious, nonfatal work injuries for third straight year – Liberty Mutual

The 2017 Liberty Mutual Workplace Safety Index uses Liberty Mutual workers’ comp claims data, as well as information from the U.S. Bureau of Labor Statistics and the Washington-based National Academy of Social Insurance, to determine the costliest workplace injuries and those that result in employees missing six or more days of work.

For 2014, the injuries cost employers more than one billion dollars a week, or close to $60 billion a year.

The top ten include:

  1. Overexertion ($13.79B) 23%
  2. Falls on same level ($10.62B) 17.7%
  3. Falls to lower level ($5.50B) 9.2%
  4. Struck by object or equipment ($4.43B) 7.4%
  5. Other exertions or bodily reactions ($3.89B) 6.5%
  6. Roadway incidents involving motorized land vehicle ($3.70B) 6.2%
  7. Slip or trip without falling ($2.30B) 3.8%
  8. Caught in or compressed by equipment or objects ($1.95B) 3.3%
  9. Struck against equipment or object ($1.94B) 3.2%
  10. Repetitive motions involving micro-tasks ($1.81B) 3.0%

While overexertion, which includes lifting, pushing, pulling and other actions involving objects did decrease somewhat from 2013, falls on the same level and roadway incidents continue to trend upward.

Employer takeaway: Many employers have done a good job of implementing safety measures, adopting automation and new processes that reduce injuries, and fostering a strong safety culture, but injuries still happen. Understanding injury causation is a complex process. Factors ranging from human error, unsafe behavior, stress, and inadequate skills to unsafe conditions, insufficient training, faulty equipment, lack of supervision and so on come into play. Analyzing data to discover trends and problem spots that are driving the serious workplace injuries can help develop safety programs that target those causes. Moreover, employers have found success by increasingly involving employees in safety leadership, encouraging workers to be the “eyes and ears” of safe working practices, including the authority to stop work without fear of repercussion.

Related article: Overexertion accounts for more than 25% of the top ten injury costs: Liberty Mutual WorkComp Adv!sory – December 2015

 

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