Four troubling trends threaten worker safety

Despite the remarkable strides that employers have made in reducing workplace injuries, there are several persistent issues that threaten worker safety. Here are four of them:

  1. Disconnect between employer and employee perception of value of productivity over workplace safetyIn a recent survey, Employee Perceptions in Workplace Safety, by the National Safety Council (NSC), over one-third of the employees surveyed claimed that workplace safety is secondary to performing tasks. This perception was even much higher in certain industries: 68% in agriculture, forestry, fishing and hunting; 58% in construction; and 45% in manufacturing or industrial facilities.

    The report also found that 32% of respondents agreed that employees “are afraid to report safety issues,” and 30% agreed “employees are resistant to working safely.” Of those surveyed, 39% agreed that management does only the “minimum required by law” when it comes to employee safety. 32% feel management ignores an employee’s safety performance when determining promotions.

    On the other hand, 71% stated that safety training is part of orientation, and 68% of those surveyed agreed that employees are well trained in emergency practices. 62% say everyone is involved in solving job safety issues. 63% of employees feel they work in areas or at stations that are ergonomically correct.

    Takeaway: Even in companies that have a safety strategy aligned with their organizational goals, there can be a safety-vs.-production dichotomy. This can come from unrealistic deadlines, poor supervision, inadequate communication, lack of accountability, workers’ perception that personal productivity solely drives raises, or a high tolerance for risk among some employees. Find out how your employees view safety and productivity. Are there conflicts, if so, what are they and how do they resolve them? Many successful companies have demonstrated that high value on safety and productivity can co-exist and help achieve long-term profitability.

  2. Motor vehicle crashes are leading cause of workplace fatalities and roadways are getting more dangerousIt’s not falls, fires, explosions, or chemical exposure that kills workers the most on the job; it’s motor vehicle crashes. According to the Bureau of Labor Statistics, Census of Fatal Occupational Injuries Summary, 2015 (latest data available), roadway incident fatalities were up 9 percent from 2014 totals, accounting for over one-quarter of the fatal occupational injuries in 2015.

    Drivers are often lulled into a false sense of security with hands-free and in-vehicle technology. An NSC survey found that 47% of motorists are comfortable texting while driving. There’s also a false sense that summer is a safer time to drive with better weather and road conditions. However more auto accidents occur during the summer time than any other time of the year.

    According to the NSC, the increased serious injuries and fatalities from motor vehicle crashes continue a troubling multiyear surge that experts believe is being fueled, in part, by more people driving while distracted by cellphones, infotainment screens, and other devices. Other factors include an improving economy, lower gas prices, and younger, more inexperienced drivers.

    And then there are the challenges that face the trucking industry. Heavy and tractor-trailer truck drivers incurred 745 fatal work injuries in 2015, the most of any occupation.Truck drivers also had more nonfatal injuries than workers in any other occupation. Half of the nonfatal injuries were serious sprains and strains; this may be attributed to the fact that many truck drivers must unload the goods they transport. A driver shortage, a rapidly aging driver population, as well as issues with driver fatigue, obesity, and other co-morbidities challenge the industry. And in many delivery zones, there has been an increase in pedestrian strikes, not caused by drivers but by distracted pedestrians.

    Takeaway: Any company utilizing vehicles for business purposes – even if those vehicles are employees’ personal cars – can feel the impact of rising accidents. The average work-related motor vehicle injury claim costs $72,540, which is twice as much as other work-related injuries. Those who have not instituted policies to minimize distracted driving need to do so. Random checks on compliance with the policy and discipline for non-compliance are key. Employers can also strengthen hiring practices and use fleet telematics, when appropriate.

    These policies should be regularly communicated to help reinforce the message. There are good public awareness campaigns, including an informative website, distraction.gov, in which employers can download forms to use in obtaining a pledge to not engage in distracting activities while driving. Recently, the NSC created a webinar offering recommendations not only on eliminating distractions in vehicles, but also on how to be alert and react to the actions of other distracted drivers on the road.

  3. Fatalities in construction outpace employment growthThe number of fatalities among construction workers climbed to 985 in 2015 after dipping to 781 in 2011, an increase of 26% compared to employment growth of 16%. Fall-related fatalities increased at a faster pace – rising 36% to 367 in 2015, according to the report by the Center for Construction Research and Training (CPWR).

    Data presented in the report comes from the Bureau of Labor Statistics. Other findings:

    • 55 percent of fatal falls came from heights of 20 feet or less.
    • 33 percent of fatal falls involved falls from roofs, 24 percent involved ladders, and scaffolds and staging accounted for 15 percent.
    • Fatal falls in residential construction rose to 61 in 2015 from 26 in 2011.
    • Roofers continue to experience the highest rate of fatal falls to a lower level: 31.5 per 100,000 full-time workers, although this represents a decrease from 39.9 in 2014.
    • Workers at an increased risk of fatal falls include Hispanic workers, foreign-born workers, and workers 55 years and older.

    Takeaway: The findings in this report emphasize the need to reduce falls and the importance of ongoing vigilance. CPWR, OSHA and NIOSH have a variety of resources available and the Campaign to Prevent falls in construction website includes Eleven Ways to keep your fall prevention program alive all year long.

  4. Impaired workforce: drug use at 12-year highCocaine, marijuana and methamphetamine use continues to climb among workers, though opioid use is down, according to a May 2017 study by New Jersey-based Quest Diagnostics Inc. Cocaine positivity increased 12 percent in 2016, reaching a seven-year high of 0.28 percent, compared to 0.25 percent in 2015, and seven percent among federally-mandated, safety-sensitive workers to 0.28 percent, compared to 0.26 percent in 2015. Marijuana positivity increased dramatically over the last three years with increases in Colorado and Washington double the national average. In oral fluid testing, which detects recent drug use, marijuana positivity increased nearly 75 percent, from 5.1 percent in 2013 to 8.9 percent in 2016.

    Amphetamines (which includes amphetamine and methamphetamine) positivity continued its year-over-year upward trend, increasing more than eight percent in urine testing compared to 2015. Throughout the last decade, this rise has been driven primarily by amphetamine use, which includes certain prescription drugs such as Adderall.

    On a positive note, heroin detection remained flat, while prescription opiate detection declined.

    Takeaway: The efforts to control opiate prescribing in workers’ comp have produced promising results. However, the answer to the problem of drugs in the workplace remains elusive. The regulations governing drug testing are more restrictive, there is no established standard of what constitutes impairment when it comes to marijuana, alternatives to chronic pain treatment are still emerging, and employees often do not understand the perils of some prescription medications. In addition to a carefully crafted drug-free workplace policy, training supervisory staff to identify and know what to do if they suspect an employee has a problem and educating employees on their role in keeping the workplace safe are key.

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

 

Things you should know

Attention motor carriers: “Roadcheck” annual event – June 6 – 8

Nearly three times more roadside inspections take place during the 72 hours on June 6 – 8 than on any other time of the year. Sponsored by the Commercial Vehicle Safety Alliance (CVSA), the intensive annual “Roadcheck” is a good opportunity for those in the motor carrier industry to improve their Compliance, Safety, Accountability (CSA) scores. In 2016, 62,796 truck and bus inspections were completed throughout the United States, Canada, and Mexico.

Top construction risks: geopolitical instability, workforce management issues

In a survey of executives in the construction sector, Willis Towers Watson P.L.C. found geopolitical instability and workforce management issues as the biggest challenges facing the industry. Geopolitical issues included uncertainty of government support and financing, postponement and delays, changes in strategy, and commitment to project pipelines. Workforce management issues include increasing need for digital skills, a global employee network, disparate labor laws, difficulty to attract talent, and an aging population. The Construction Risk Index report can be downloaded here.

New pamphlet spotlights Hypothenar Hammer Syndrome

Scientific research organization IRSST has released a pamphlet intended to help workers recognize Hypothenar Hammer Syndrome. Aimed at workers who use vibrating tools or frequently strike, press or twist objects with the palms of their hands, the free pamphlet outlines syndrome warning signs and prevention methods.

Mayo Clinic study: second opinion leads to new or refined diagnosis for 88% of patients

Many patients come to Mayo Clinic for a second opinion or diagnosis confirmation before treatment for a complex condition. In a new study, Mayo Clinic reports that as many as 88 percent of those patients go home with a new or refined diagnosis – changing their care plan and potentially their lives. Conversely, only 12 percent receive confirmation that the original diagnosis was complete and correct.

These findings were published online in the Journal of Evaluation in Clinical Practice.

Study links participation in weight-loss programs to reduced absenteeism

Obese workers who took part in a structured weight-loss program reported fewer hours missed on the job after six months, a recent University of Michigan study shows.

Researchers surveyed 92 people who had an average body mass index of 40 and worked in various occupations. Before entering the program, participants stated in a self-evaluation that they worked an average of 5.2 fewer hours a month than their employers expected. After six months and an average of 41 pounds shed, participants reported working 6.4 more hours a month than expected.

WCRI’s CompScopeā„¢ Benchmark 2017

The 17th edition of CompScopeā„¢ Benchmarks Report is available from the Workers’ Compensation Research Institute (WCRI). The report looks at the impact of state workers’ compensation reforms on things like claim costs, rate of litigation, and disability duration and included 18 states: California, Florida, Georgia, Illinois, Indiana, Kentucky, Louisiana, Massachusetts, Michigan, Minnesota, New Jersey, North Carolina, Pennsylvania, Texas, Virginia and Wisconsin. In California and North Carolina, the total costs per claim have been steady between 2010 and 2013. Illinois saw total costs per claim decrease by 6.4 percent since 2010, which researchers attribute to a 30 percent reduction in fee schedule rates for their medical services. Indiana’s total costs per claim decreased by 4 percent from 2014 to 2015, a product of a 10 percent decrease in medical payments, but a 5 percent increase in indemnity benefits per claim. In Florida, total costs per claim increased between 2010 and 2015, but there were decisions last year from the Florida Supreme Court that may slow or stop those increases in costs.

Rising pedestrian death toll

The latest report on U.S. pedestrian deaths, from the Governors Highway Safety Association, estimates that last year’s total rose 11.6 percent to nearly 6,000, or more than 16 fatalities a day. If that projection proves accurate – it is based on fatality records from only the first half of 2016 – it would mark the sharpest yearlong increase since records have been kept.

Analysts are putting much of the blame on drivers and walkers who are looking at their smartphones instead of watching where they are going. Tipsy walking also is part of the problem, with one in three victims legally drunk when they were struck and killed.

Workplace death rate hits a 10-year high in Massachusetts

Seventy Massachusetts workers lost their lives last year, marking a 10-year high in the rate of workplace-related fatalities, according to the Massachusetts Coalition for Occupational Safety and Health, known as MassCOSH. Sixty-two of those workers were killed on the job, many in construction; the rest were firefighters who died from occupational illnesses, such as lung cancer and heart disease.

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

Legal Corner

ADA
EEOC settles first direct challenge to employer wellness program

The EEOC’s first lawsuit directly challenging an employer’s wellness program-filed in 2014- was against Orion Energy Systems. The company had switched to a self-insured plan and, to save costs, initiated a wellness plan that revolved around three incentives: the employee did not smoke, would exercise 16 times a month, and have a health risk assessment (HRA). There were surcharges for non-compliance, including paying the entire monthly premium if they did not have a HRA, which was $413.43 for single, $744.16 for limited family, and $1,130.83 for family coverage.

One employee raised concerns about the wellness initiative and HRA, questioning confidentiality and how the premium was calculated believing it excessive in light of the service fee Orion paid its third-party administrator (she knew the amount because she paid invoices). She opted out of the program and agreed to pay the premium. However, her supervisor and the HR director spoke to her about comments she made to coworkers about the premium, telling her such negativity was not welcome, and to keep her opinions to herself and eventually she was terminated.

While the court found that Orion’s wellness plan was lawful under the regulations at the time, there were issues of fact as to whether the employee was fired because of her opposition to the wellness plan. Under the consent decree settling the suit, Orion agreed to pay $100,000 to the employee and agreed that it won’t maintain any wellness program in the future that poses disability-related inquiries or seeks a medical examination that is not voluntary within the meaning of the ADA and its regulations as well as other provisions.

FMLA
Inadvisable email negates defense to FMLA retaliation claim

An employee at Wells Fargo received an informal and then a formal warning about underperformance and her failure to meet sales goals. One week prior to receiving the formal warning, she was diagnosed with myelopathy, scheduled for surgery, and received FMLA leave. When she returned to work on limited duty, her supervisor warned her that she was still near termination. After her return to full duty, her supervisor determined she had not made sufficient improvement and he documented the problems in an email to the HR department and recommended termination. In this email, he also noted, “Debby submits a request for a leave of absence.”

The employee sued for retaliatory discharge under the FMLA and the federal court found that the email comment about the request for a leave of absence as part of the email justifying discharge was direct evidence of unlawful retaliation. Although Wells Fargo could document the underperformance and warnings, the court concluded for summary judgment motions in cases involving direct evidence of discrimination, an employer’s legitimate, nondiscriminatory business reason for an adverse employment action is irrelevant.

Takeaway: Electronic communications have permanency. Be sure supervisors and managers understand the importance of their choice of words and know what should and should not be included in recommendations for termination.

Temporary work counts as a factor when determining FMLA eligibility

In Meky v. Jetson Specialty Mktg. Servs. Inc., a temporary employee was hired through a staffing agency for about six months and then was hired to work full-time. She requested FMLA, but was told she was not eligible and was terminated a few months later for leaving work early. She sued and one question the court had to decide was the start date of her employment. The 3rd U.S. Circuit Court of Appeals held that the correct date was the date on which she started working as a temporary employee, since the staffing agency and the Jetson were joint employers.

Workers’ Compensation
Finding of compensable injuries to knee and shoulder does not bar later additional claim related to back – California

In Iniguez v. WCAB (Blue Rose Concrete Contractors), a worker was compensated in 2012 for injuries to his knee and shoulder stemming from an accident in 2010. In November 2014, he filed another claim seeking additional benefits for injuries to the neck and back. The WCAB found that compensation should be limited to the knee and shoulder in accordance with the 2012 litigation, but the 2nd District Court of Appeals annulled the board’s decision by saying there was no finding that these were the only industrial injuries sustained and remanded the case for further proceedings.

Vacation and sick time not earned income when calculating impairment benefits – Florida

In Eckert v. Pinellas County Sheriff’s Office, the employer reduced the injured worker’s benefits by 50% for the 23 weeks he used his sick leave and vacation time, arguing that this was allowed as “earned income” under state law. However, the 1st District Court of Appeal said use of sick leave and vacation time could not count toward his average weekly pay for the 23 weeks in question, since sick leave and vacation time were not accrued during the weeks that he drew upon so it was not “earned income.”

“Heart attack waiting to happen” leads to denial of claim – Illinois

A firefighter described, as “a heart attack waiting to happen” should not receive benefits for a heart attack sustained while cleaning his firehouse parking spot of snow ruled an appellate court. The firefighter was a heavy smoker, obese, and had so many risk factors for a heart attack that the cardiac event could have occurred “anytime and anywhere,” said the arbitrator. Those risk factors were enough to overcome the statutory presumption that heart attacks suffered by firefighters are a compensable injury.

Fired for misconduct, employee can still collect benefits – Indiana

In Masterbrand Cabinets v. Waid, a worker who injured his back disagreed with his doctor and supervisor about his level of pain and work capacity. An incident with the supervisor escalated to an altercation. He was suspended and then terminated. He continued to see the doctor and the Workers’ Compensation Board found he was unable to perform work of the same kind he was performing when injured and that he was due TTD payments. The company appealed, arguing the worker was not entitled to TTD benefits because he was terminated for misconduct. However, the Court held that the inability to work was related to his injury and, therefore, he was entitled to benefits.

Statute of limitations not valid defense when injured employee was promised action – Mississippi

An employer and its carrier cannot argue the statute of limitations as a defense when the carrier had assured the injured employee that it would “take care of everything” and there was no need for her to hire an attorney. Moreover, the carrier had paid for medical expenses three days after the expiration. Dietz v. South Miss. Reg’l Ctr.

Long history of medical problems does not preclude PTD for shoulder injury – Missouri

In Maryville R-II School District v. Payton, a school groundskeeper with a history of ailments and multiple surgeries went to the emergency room when he started to have serious shoulder pain after assembling a soccer goal. An X-ray did not reveal any acute fracture or dislocation, and an emergency room doctor tentatively diagnosed him with osteoarthritis. He then saw the school district’s physician who opined that the activity was unlikely to be the prevailing cause of the pain. He then sought treatment from his own physician and an MRI revealed a rotator cuff tear. Surgery was performed but the rotator cuff tore again and he was unable to return to work because the school district could not accommodate his lifting restrictions.

A judge, the Labor and Industrial Relations Commission, and the Court of Appeals all concurred that the injury was permanent and totally disabling.

Tort suit for worker’s heat-related death revived – Missouri

In Channel v. Cintas Corp., a 52-year-old delivery driver died of heat stroke and his widow filed a wrongful death action against the supervisor and the company. She argued that the supervisor ignored the company’s heat safety protocols by placing her husband in a truck without air conditioning on a day when temperatures were over 100 degrees. While a circuit judge ruled that workers’ comp was the only remedy, the Court of Appeals ruled that the Labor and Industrial Relations Commission had not yet ruled on the workers’ comp case and it was improper for the judge to determine that the death was an accident. The suit was reinstated and placed on hold.

Symptoms of heart attack at work not sufficient for death benefits – New York

In the Matter of Bordonaro v Genesee County Sheriff’s Office, a deputy sheriff died at home in his sleep and his widow sought workers’ comp death benefits, contending his initial symptoms occurred at work. Noting the employee had completed his shift and had not sought medical treatment, the appellate court supported the Board’s finding that the death was not casually connected to work.

Benefits denied in two stress related cases – New York

In Matter of Novak v St. Luke’s Roosevelt Hosp., a New York appellate court affirmed a Board finding that a nurse’s work-related stress did not exceed what could be expected in her normal work environment. It was determined that her stress stemmed from her involvement in a disciplinary proceeding, wrongful termination, and subsequent reinstatement after a six-month suspension. She complained about her treatment by co-workers when she returned to work, eventually quit her job, and filed a comp claim asserting the events caused insomnia, depression, posttraumatic stress disorder, and a severe social phobia. The claim was disallowed and the appellate court noted claims for mental injuries based on work-related stress are precluded “if such mental injury is a direct consequence of a lawful personnel decision involving a disciplinary action, work evaluation, job transfer, demotion or termination taken in good faith by the employer.”

In Burke v. New York City Transit Authority, a subway train operator was denied a psyche claim for harassment from his supervisors. The employee wears glasses, has a sensitivity to light, and has tinted lenses he can flip down over his glasses. Train operators are prohibited from wearing sunglasses for safety reasons, and the employee was being monitored to ensure that he was not wearing his tinted lenses while operating a train. He claimed his supervisors harassed and intimidated him about the lenses, causing him to develop disabling anxiety and panic attacks. The courts determined that the stress created by the investigation was not greater than that which other similarly situated workers experienced in normal work and, therefore, it was not compensable.

Benefits granted for ‘reasonable effort’ for employment – North Carolina

For a worker to receive benefits in the state, it must be shown that the worker was not capable of earning the same money as before the injury due to the injury. In Snyder v. Goodyear Tire & Rubber Co., a tire builder suffered a back injury and returned to work with lifting restrictions. However, the employer was not able to accommodate the restrictions and sent him home. He filed for workers’ comp and the commission found that he met the burden for temporary total disability by proving he could not return to his pre-injury job and had made unsuccessful attempts to obtain employment.

While the company appealed, arguing that the employee had not made reasonable efforts for employment, the appeals court disagreed. The court did note that an employer’s failure to provide light duty work in and of itself is not proof that an injured employee made a reasonable but unsuccessful effort to find employment.

Decision in Heart and Lung claim not binding on workers’ comp – Pennsylvania

A prison guard trainee hurt his knee and filed for benefits under the Heart and Lung Act (H & L Act), which allows certain police officers and other public safety employees to collect full salary and medical benefits for temporary injuries. An arbitrator determined he was eligible for benefits. He later filed a claim for workers’ comp, but the judge found he was entitled to medical benefits, but not disability benefits because he failed to prove a loss of wages.

The guard appealed arguing his disability was established under the H & L Act, but the court noted the laws were quite different and the Workers’ Comp Act could provide significantly greater medical and indemnity benefits, including those for permanent impairment. Therefore, a decision by an arbitrator in an H & L claim filed by a corrections officer was not binding on the workers’ compensation judge. Merrell v. Workers’ Comp. Appeal Bd. Commonwealth Dep’t of Corr.

Non-payment of PT benefits leads to penalties in spite of billing dispute – Pennsylvania

An employee of Derry Township Supervisors received PT for a back and neck injury at a facility owned by The pt Group. The bills, however, came from the Physical Therapy Institute (PTI), which had a contractual arrangement with The pt Group. The Derry Township argued this arrangement was a way to charge higher fees.

As of Jan. 1, 1995, providers are able to bill comp carriers at 113% of the rate established by the Centers for Medicare & Medicaid Services fee schedule, but the Supervisors alleged that providers in business before that date can use a “cost-plus” formula that generally means a higher payment. The pt Group was subject to the 113% cap, but PTI was not.

The Commonwealth Court upheld lower court decisions that there was nothing illegal in this arrangement and ordered an award of $83,400 in attorney fees, and reimbursement of $3,328.32 for litigation costs.

Opioid overdose after injury not compensable – Tennessee

A carpenter was involved in an employment-related motor vehicle accident that caused fractures to the vertebrae in his neck and disc herniation in his lower back. He underwent surgery, but continued to have back pain and further surgeries were denied, as were epidural steroid injections. He was referred to a pain management clinic and restricted from returning to work.

He told the pain management specialist that he began taking extra opioid tablets and consumed alcohol because he felt the medications were no longer effective. Shortly after agreeing to a program to wean off the drugs, his wife found him unresponsive in bed. The medical examiner ruled his death an accident caused by acute oxycodone toxicity with contributory causes of hypertension and alcohol and tobacco use.

His wife filed with workers’ comp benefits and the case went through appeals and ultimately was heard by the state Supreme Court. In Judy Kilburn vs. Granite State Insurance Company, et al., the Supreme Court noted that a worker’s conduct can limit compensability of subsequent injuries that are a direct and natural result of a compensable primary injury and ruled his death not compensable because he failed to take his medications in compliance with physician’s orders.

Disagreement over diagnosis not sufficient to rebut correctness of impairment rating – Tennessee

In Williams v. Ajax Turner Co., an employee was assigned a 21.3% impairment rating from his doctor following surgery of his foot after a forklift accident. The employer requested a second opinion from an orthopedic surgeon who assigned a 5% impairment rating, and a third opinion through the medical impairment registry (MIR) program, which also resulted in a 5% rating. A trial judge accepted the treating doctor’s rating and applied a multiplier of 4.

The Supreme Court’s Special Workers’ Compensation Appeals Panel said an MIR physician’s rating is presumed to be accurate, unless this can be overcome by clear and convincing evidence giving rise to a “serious and substantial doubt” about the accuracy of the rating. A disagreement about the rating, however, is not clear and convincing evidence; therefore, the MIR rating should have been accepted. It also agreed to the multiplier of 4, given considerations of education, job skills, work history, and medical limitations so the award of permanent disability benefits had to be modified to 20%.

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

HR Tip: Post-offer medical examination “textbook case” of ADA

In EEOC v. M.G.H. Family Health Center, a federal district court in Michigan ruled that the health center violated the ADA when it fired a recently hired community outreach coordinator over fears that her migraines or other impairments might interfere with her job performance. According to the court, this was a textbook case of unlawful discrimination based on a perceived disability. Congress explicitly clarified in the ADAAA that “major life activity” definitions are not relevant to the question of whether an individual has suffered unlawful discrimination based on a perceived disability.

When the health center hired the community outreach coordinator, she was told she would be required to undergo a “post-offer” medical examination by a third party, but could begin work. While the results of the exam were normal, the third party recommended she be put on a “medical hold” and undergo a costly functional capacity evaluation (FCE) due to migraines and other medical issues resulting from injuries in a car accident that were documented in her medical files. After she had been working in the job without incident for two weeks, the health center terminated her before allowing her to complete the FCE, which she offered to pay for herself.

In granting summary judgment for the EEOC, the district court noted three things that the employer did wrong: (1) it did not engage in an individualized assessment; (2) it did not follow the recommendation of the physician to have the employee complete a functional capacity evaluation; and (3) it terminated the employee’s employment after the employee had been performing the job for two weeks without incident, even though her own physician had submitted information indicating she was able to perform the job.

Takeaways: When using post-offer, pre-employment examinations, it’s best to make the offer conditional and conduct the exam prior to the first day of employment. If the exam does reveal some concerns about the ability of the individual to perform the job, it’s the employer’s responsibility to engage in the interactive process to determine if reasonable accommodations can be provided.

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

Learn how employees are contesting Workers’ Comp exclusive remedy in court

According to legal experts, there is an emerging trend in workers’ comp litigation – more and more cases are trying to bypass the “Grand Bargain,” the agreement that employers will provide compensation to workers injured on the job in exchange for immunity from lawsuits. Since, in many states, intentional tort is an exception to workers’ comp exclusivity, the lawsuits have targeted employers with willful violations of workplace safety rules. In such cases, it has to be proven that the employer acted deliberately and/or was virtually certain that its actions would result in injury or death.

Each state has its own standards for what constitutes intentional tort, but the bar is consistently high. It involves proving the employer had intent to harm the employee, or negligence that’s so wanton that the harm would be foreseeable to a reasonable person. A willful violation of OSHA is often cited as one factor, along with other evidence. In effect, the OSHA violation is a motivation for the lawsuit and is fodder for attorneys.

It doesn’t take long to find workplace injury attorneys promoting the idea on their websites. Here are a few:

“While workers’ compensation usually provides for medical treatment and a portion of lost pay, negligence lawsuits can result in compensation for pain and suffering, as well as compensation for medical bills and lost wages. Many workers are simply unaware of their legal rights to file negligence lawsuits. Many believe their only legal recourse is filing for workers’ comp. Time and time again, an injured worker and their family seek the advice of a work accident and injury lawyer when it is too late; the applicable statute has expired. That’s why it’s important to seek advice from a work accident injury lawyer as soon as possible after a serious work accident occurs.”

“An injured worker could have a much stronger negligence claim if OSHA has issued a violation against his or her employer.”

Why is this happening? Many states have had significant workers’ compensation reforms in the last 10 years. Some have made workers’ compensation systems less litigious and attorneys look for other avenues of litigation and some have placed more constraints on benefits, which can be perceived as no longer adequate to properly compensate injured workers.

A cursory review suggests that the courts have generally upheld the exclusive remedy provisions in favor of the employer, although there have been high settlement exceptions. However, many cases have had multiple appeals, an expensive process for employers. From an employer’s perspective, there are lots of reasons not to be in court. The time, cost, negative publicity, affect on employee morale, as well as the possibility of a jury trial and punitive damages can be daunting. In addition, most workers’ compensation insurance policies do not provide coverage for intentional acts.

To protect themselves from the liability of personal injury lawsuits, employers must be vigilant about workplace safety and health programs. Complying with OSHA standards and, if citations are issued, carefully weighing the options and considering how the citation may affect the company in the future, as well as having a strong recovery at work program and commitment to injured workers are keys to deterring personal injury lawsuits.

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

Psychosocial issues top the list of barriers to successful claim outcomes

According to Rising Medical Solutions’ 2016 Workers’ Compensation Benchmarking Study survey, the top barriers to achieving desired claims outcomes are psychosocial issues, followed by lack of return to work options, litigation, employer/employee relationship, late injury/claim reporting, and timely communications with stakeholders (employee, employer, providers). The survey, which documented the responses of 492 claims professionals, led to a recently released report, “How to Overcome Psychosocial Roadblocks: Claims Advocacy’s Biggest Opportunity,” examining key best practices for addressing psychosocial factors.

The report begins, “We know the single greatest roadblock to timely work injury recovery and controlling claim costs. And it’s not overpriced care, or doubtful medical provider quality, or even litigation. It is the negative impact of personal expectations, behaviors, and predicaments that can come with the injured worker or can grow out of work injury.”

It’s important to note that psychosocial does not mean psychiatric issues, such as schizophrenia or depressive disorders, but represents behavioral issues, the way we think, feel, and act. A person’s fears that the treatment will fail or cause additional pain can become a self-fulfilling prophecy and impact recovery or fears about judgment of co-workers can delay a return to work. According to the report, other conditions, behaviors, and predicaments include obesity, hard feelings about coworkers, troubled home life, the lack of temporary modified work assignments, limited English proficiency, and – most commonly noted – poor coping skills. These roadblocks occur regardless of the nature of the injury.

At The Hartford, 10% of claims fall into the psychosocial bucket with at least one psychosocial comorbidity, but they consume 60% of total incurred costs. Claims adjusters are required to ask injured workers, “When do you expect to return to work?” Any answer of less than 10 days indicates the worker has good coping skills and the risk of delayed recovery is low. If the answer is longer than ten days, the adjuster explores the reasons for the response. Increasingly, insurance companies are referring certain workers to specialists who provide support, which can include enlisting cognitive behavioral therapy (CBT).

A case study of Albertson, the grocery chain, revealed that about 9% of injured store workers screened since 2013 had psychosocial issues embedded in their worker’s compensation claims. Recognizing psychosocial issues as a major driver for long-tail claims, the company offers early intervention, which is usually performed by a network of psychologists who provide health coaching consistent with CBT principles. It avoids the stigma of therapy (it’s called “coaching”), is short in duration, and focuses on active problem solving to help with self-management and self-resiliency.

Medical providers are trained to find medical diagnoses and prescribing medical solutions, so it’s up to employers and claims adjusters to identify workers who are affected by psychosocial roadblocks. Some of the risk factors include:

  • Tendency toward catastrophic thinking
  • Avoidance behavior based on fear
  • Perceived injustice stemming from treatment at workplace
  • Adverse childhood experiences
  • Weak family and social supports
  • Unrealistic expectations about recovery
  • Beliefs/fear about pain
  • Fear of re-injury
  • Lifestyle and demographic risks

The workplace is often the source of barriers that cause the most trouble for injured workers. Do they feel others blame them for the injury? Are they made to feel that they have created extra work and stress for co-workers and the supervisor? Do they blame the employer for the injury? Do they worry about being reinjured? Is the recovery at work program supportive or overwhelming?

When injured workers are fearful, distressed, or blame their employer they are less likely to return to work. Understanding the issues affecting the employee and helping to resolve them in an empathic, supportive manner is key to a successful outcome.

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

OSHA watch

Lawsuit over OSHA electronic records rule delayed

A Texas court granted a request from the Trump administration for a 60-day delay in litigation of the electronic record-keeping rule and stayed the case until June 5, 2017. The deadline to submit a proposed summary judgment briefing schedule and for the administration’s response to motions to intervene in the case was extended to July 5.

Deputy assistant secretary of labor creates blog on large enforcement cases

Since the Trump administration took office, there have been very few press releases announcing health/safety violators. For years, the agency has routinely issued press releases about companies receiving citations of $40,000 or more and some workplace safety professionals have criticized the current administration for staying quiet on the issue. Taking matters into his own hands, Jordan Barab, the deputy assistant secretary of labor for OSHA for the past eight years created a blog of the large violations from January 18, 2017 to February 14, 2017.

Guidance documents on Process Safety Management Standard issued

Three guidance documents intended to help chemical facilities comply with the agency’s Process Safety Management Standard have been released.

 

Volks Rule overturned

As expected, President Trump signed the disapproval resolution of the controversial “Volks” rule, which increased the threshold for citing employer violations from six months to up to five years.

New online tool to help healthcare facilities address bloodborne pathogens and other hazards

NIOSH has established a web-based injury and exposure monitoring system available at no cost to healthcare facilities. There are two electronic modules for tracking “sharps” injuries, as well as blood and body fluid exposures among health care workers.

Legal case addressing scope of federal safety inspections proceeds to US Court of Appeals

This case centers on an investigation of a workplace accident at Mar-Jac Poultry Inc., a poultry processor in Georgia, and OSHA’s attempt to expand it on numerous potential hazards, beyond the site of the accident and the tools involved. The company refused. OSHA obtained an administrative warrant but it was disallowed by the U.S. District Court for the Northern District of Georgia in response to a motion from Mar-Jac. It is now headed to the U.S. Court of Appeals for the 11th Circuit.

Safe + Sound week

To help employers participate and plan events for Safe + Sound week, June 12-18, OSHA has updated its webpage with sample activities, social media resources, and tools. The page also features an interactive map of events occurring across the country. Employers are encouraged to host events and activities that showcase the core elements of an effective safety and health program – management leadership, worker participation, and finding and fixing workplace hazards.

Enforcement notes

California

Building supply company fined for fatal forklift accident

A 60-year-old forklift operator was transferring building supplies from San Francisco-based Good View Roofing & Building Supply Corp.’s warehouse to a customer vehicle when the forklift he was driving tipped over the edge of a ramp and the worker was fatally crushed. The company was cited for three serious accident-related violations for failure to ensure proper use of a forklift seatbelt, failure to ensure the forklift operator was certified to safely operate the vehicle, and failure to ensure industrial ramps have at least an 8-inch curb along open edges to prevent the wheels of industrial trucks from running off the ramp. California’s Division of Occupational Safety and Health fined the company $62,320.

Appeals board upholds citations for carbon monoxide poisoning

Workers contracted by Barrett Business Services to package fruits and nuts in L&L Foods’ warehouse in Anaheim had complained to their supervisor that they were experiencing headaches, nausea and other health issues caused by forklifts operating in an enclosed area with poor ventilation. In 2012, citations were issued to both Barrett Business Services and L&L Foods for numerous safety violations, including willful violations for failing to take action on known hazards and the companies filed appeals. L&L Foods settled its case, but an administrative law judge denied Barrett’s appeal and imposed civil penalties of $80,050 and Barrett petitioned for reconsideration with the Appeals Board. The Board agreed the employer did not properly train its employees, disregarded workers’ reports of health hazards, and failed to monitor the worksite.

Georgia

Cleaning service cited for slip hazards that led to worker injury

Cleaning contractor Healthcare Services Group Inc. was cited for eight violations of workplace safety and health standards after a worker fell and broke her hip while cleaning a room at a regional hospital. Violations included not providing dry standing places or mats for workers cleaning and waxing floors, and not providing personal protective equipment to prevent exposure to hazardous chemicals. Proposed fines are $143,410.

Illinois

Employee complaints lead to citations for exposing workers to chemical hazards

An inspection of Orion Industries Ltd. in Chicago, in response to two employee complaints, identified workers in the spray painting operation being exposed to hexavalent chromium at levels approximately 40 times the permissible exposure limit. Inspectors cited the company for lacking sufficient engineering controls, work practices and protective gear to safeguard workers against exposure to hexavalent chromium. Orion was prompt in addressing the worker overexposures and achieved significant reductions in the fines by the time of its closing conference.

Massachusetts

Drain company faces $1.5M in fines following fatal trench collapse

Following the death of two employees in a Boston trench collapse, Atlantic Drain has been issued 18 citations and is facing $1,475,813 in penalties. The company was cited in two previous years and did not provide safety training and basic safeguards for employees. In February, a Suffolk County grand jury indicted Atlantic Drain and company owner, Kevin Otto, on two counts each of manslaughter and other charges in connection with the deaths.

General contractor must pay fines

An administrative law judge with the independent Occupational Safety and Health Review Commission has ruled that two Massachusetts contractors – A.C. Castle Construction Co. Inc. and Daryl Provencher, doing business as Provencher Home Improvements – were operating as a single employer at a Wenham worksite when three employees were injured in October 2014. A.C. Castle contended that, as general contractor, it was not responsible for the safety of the workers on the jobsite, asserting that they were employed by Provencher. Based on a number of factors, the judge upheld the citation as a single employer.

New York

Driller’s death leads to $360,000 in fines

Catskill-based North American Quarry and Construction Services L.L.C, has agreed to pay $360,000 in penalties related to the 2012 death of a 30-year-old driller. The employee became entangled in the rotating drill steel and suffered fatal injuries when he tried to manually load a threaded drill steel into the mast of a drilling machine at the pit. The Labor Department’s Mine Safety and Health Administration determined that, before the accident, the company intentionally removed an emergency-stop switch from the drill and that the driller was assigned to work alone under hazardous conditions.

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

The challenges of heat-related illnesses and how technology can help

Steamy summer weather combined with intense physical labor can be a recipe for disaster. It can threaten the health of workers, impair their work capacity and productivity, and lead to OSHA fines and even intentional tort cases, when not properly managed. While educational campaigns and accessible resources have aided employers in combating the issue, OSHA notes in 2014 alone, 2,630 workers suffered from heat illness and 18 died from heat stroke and related causes on the job.

As a result, OSHA has stepped up its focus on and enforcement of heat-related hazards, citing employers for failing to properly protect workers from heat illnesses, including issuing willful citations with a proposed penalty of $70,000 in some cases. While it does not have a heat illness prevention standard, OSHA issues citations under the General Duty Clause, which requires employers to provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm, including heat stroke and other serious heat-related illness. Fines have also been levied under other standards such as Medical Services and First Aid, Safety Training and Education, Personal Protective Equipment, and Injury and Illness Recordkeeping and Reporting.

California has made heat prevention a top priority under its State OSHA plan and has a robust standard. According to a 2016 news release, Cal/OSHA Urges Employers to Protect Outdoor Workers from Record-Breaking Heat Wave, the most frequent violation that Cal/OSHA cites during targeted heat inspections is for failure to have a proper written heat illness prevention plan specific to the worksite. Serious violations are often related to inadequate access to water and shade, and to a lack of supervisor and employee training. It’s a good idea for employers and supervisors to review the applicable websites for compliance guidance for OSHA and for Cal/OSHA.

Although there are a number of precautions employers can and must take to ensure the safety of their worksite such as providing an adequate water supply, ready access to shade, periodic rest breaks, acclimatizing workers, adjusting work operations for the level of heat, providing first aid, and monitoring workers, heat illness poses significant challenges for employers. There are many factors that influence the likelihood of a worker developing a heat related illness, including age, fitness, experience, weight, medications, heart disease, high blood pressure and so on. In addition, minor heat illness symptoms can quickly progress to heat exhaustion and stroke.

Here are some apps and online resources that can help:

OSHA’s Heat Safety Tool
With OSHA’s Heat Safety Tool, available for download on iOS and Android devices in English and Spanish, workers can calculate the heat index at their worksite and determine heat illness risk levels. The app includes information for workers to monitor themselves and others for heat illness signs and symptoms. The app, which is only designed for outdoor use, is constantly updated in collaboration with NIOSH.

National Weather Service (NWS)
This is not a smartphone app, but an easily accessed website that is a helpful planning tool. The Maximum Heat Index Forecasts page from NWS shows the heat forecast three to seven days from the current date. There is also an hour-by-hour heat index forecast from the local NWS forecast page.

NIOSH web pages
The NIOSH web pages offer a host of fact sheets, blogs, and podcasts related to protecting workers from heat illness.

Wireless emergency alerts
Wireless Emergency Alerts (WEAs) are text messages from federal and state public safety agencies. These are not just warnings about heat emergencies, but include other extreme weather warnings (e.g., tornadoes, floods), local emergencies requiring evacuation or immediate action, AMBER alerts, and presidential alerts during a national emergency.

USDA App to protect cattle from heat stress
A USDA smartphone application that provides forecasts of weather conditions that can trigger heat stress in cattle. It is primarily geared to livestock producers, but can be used by others. The app issues forecasts one to seven days in advance of extreme heat conditions, along with recommended actions that can protect animals before and during a heat-stress event.

When used as components of a comprehensive program, the apps and web resources can be valuable tools in combating heat-related illnesses.

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