OSHA alert – Recordkeeping changes

OSHA Form 300A posting deadline February 1, 2018

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

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

Standard interpretations on recordkeeping issued in 2017 include:

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

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

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

 

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

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

The full list:

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

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

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

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What to expect in 2018

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    Regulatory and external factors can become disruptors including:

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

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

Things you should know

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

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

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

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

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


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

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

Other 2016 data highlights:

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

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

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

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

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

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

California

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

Florida

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

Indiana

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

New York

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

North Carolina

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

Wisconsin

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

 

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

Legal Corner

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

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


Workers’ Compensation

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

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


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

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

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


Exempt corporate officer of subcontractor cannot sue general contractor – Florida

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

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


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

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

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

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


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

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

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


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

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


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

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

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


Worker with PTSD entitled to further disability – New York

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


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

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


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

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


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

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


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

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

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


Widow receives benefits for unknown occupational exposure – Tennessee

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

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

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

OSHA watch

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

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

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

Crane operator certification requirements delayed until 2018

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


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

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

Enforcement notes

California

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

Florida

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

Georgia

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

Indiana

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

Massachusetts

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

Mississippi

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

Missouri

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

Nebraska

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

New York

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

Wisconsin

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

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

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

MedLearn article reissued

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

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


Opioid reserves in Medicare set-asides excessive

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

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

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

13 point claims annual checkup

The beginning of the year is a good time to take a step back and look at your Workers’ Compensation program to assess strengths and weaknesses. A key aspect of a successful program is proactive management of claims. Every $1 in claim costs represents $2 or $3 in premium costs. Here are 13 points to evaluate:

  1. How quickly are claims reported?Reporting sets everything in motion – medical treatment, incident investigation, recovery at work, and so on. If claims are not reported quickly – within 24 hours or less – return to work is delayed and the cost of the claim and potential for litigation increase.
  2. When a claim is first reported and while it is open, do you provide relevant information about the injured employee to the adjuster?The more information an adjuster has, the more efficiently a claim can be managed. Information on job description, co-morbidities, recovery at work options, prior workers’ comp claims, workplace disputes, and so on will expedite the process. In addition, any changes that occur need to be immediately reported to the adjuster. For example, if you are contacted by an attorney, when the employee returns to work, the employee is not cooperative about recovery at work, or there is a change in medical information or providers.
  3. What is the relationship with the claims adjuster(s)?Regardless of company size, employers who take a hands-off approach and do not properly monitor claim adjusters will likely experience higher claim costs. Workloads are heavy and mistakes do happen. Having a designated adjuster who can work collaboratively with your staff will increase the efficiency of claims management and expedite closure.
  4. How many claims involve lost time?Lost time claims are the most expensive workers’ compensation claims and have the greatest impact on an employer’s premium. Countrywide, roughly 25% of all claims are lost time cases. You want to do better. Taking the time to analyze the claims and assess trends will help you focus your loss control efforts on the underlying issues.
  5. How often are open claims and reserves reviewed?It’s common sense that the longer a claim is open, the more it is going to cost. Excessive time lags in care or claim duration is a red flag that a case is spiraling out of control. Today, claims are more complex, often involving co-morbidities, narcotic drugs, an aging workforce, and expensive medications. Do claims ultimately close within 10 – 15% of the reserved amount? At a minimum, open claims and reserves should be reviewed quarterly.
  6. How are legacy claims managed?Lost time claims can be active for years and if not aggressively managed, the cumulative costs will continue to grow. Are they forgotten? Has any effort been made to contact the employee and explain why it is in their best interest to settle?
  7. How many claims are litigated?There is no question that litigation leads to increased claims costs and often times leads to a worse medical outcome for the injured worker. A 5% litigation rate is very good, 10-15% is good, and anything over 20% should be considered a red flag warranting further analysis. Litigation can start because the injured worker is afraid. Fear of the unknown. Fear for the job. Fear about their injury. Take the time to explain things to injured workers. An advocacy-based model can help (see next question).
  8. Have you moved to an advocacy-based approach to claims?An employee’s perception that an employer doesn’t take the employee’s concerns seriously will escalate a claim and increase the length of a disability. Advocacy-based claims models emerged as “buzz” in the industry in 2016. At its core is a focus on people. It’s treating your injured employee like a customer – helping them every step of the way and advocating for them when bumps occur. Here’s how:
    • Change the script. Don’t focus on how the claim will be investigated or all the insurance jargon. Begin with empathy, concern, compassion, and how you will help them through the process.
    • Designate someone to contact the worker on a regular basis. Don’t rely on the insurance company to be the prime contact; designate a supervisor, risk manager, or HR representative to maintain contact throughout the claim process. Monitor how often the contact occurs.
    • Make medical care easy. Having the support of occupational doctors and therapists and a triage nurse, who share the same objective of improving the injured employee’s health for a recovery at work, eases the process.
    • Don’t have a blanket approach. While one employee may respond well to several texts or phone calls in a week, another may find it disturbing and feel the employer does not trust them. Find a balance that works and set the right tone for maintaining communication.
    • Engage in the recovery at work conversation early. Be sure the employee and the treating physician know the options available and that the supervisor is on board. Involve the employee in the process – find out what they are comfortable with and what they worry about.
  9. Are payments to injured workers sent on an accurate and timely basis?Injured workers who aren’t paid in a timely fashion are fodder for eager attorneys. Designate someone to advocate for them and get it resolved.
  10. How effective are your medical cost controls?While state statutes differ with respect to the extent to which employers can direct injured workers to certain medical providers, the medical management of a workers’ comp claim is essential to reducing costs. Evaluate your relationships with medical providers and medical bill review processes to be sure they are working for you and your injured employee. Monitor the medical progress reports to be sure the treatment is appropriate and be wary of physician dispensing.
  11. How many emergency room visits did you pay for?Treatment at an emergency room is not only one of the most expensive places to get medical care, but also likely to derail a rapid return to work. While often used for convenience, it should be a last resort and used for critical, emergency situations only.
  12. Do you investigate potentially fraudulent claims?While only a small percentage of claims are fraudulent, they do occur. It doesn’t have to be costly surveillance; often times social media activity will tip off employers that something is amiss.
  13. Have subrogation opportunities been identified and pursued?Subrogation is the right to recover Workers’ Compensation benefits paid to the employee because of the negligence of another person or entity. While subrogation laws vary by state, there are common occurrences that should be on the radar screen for potential third-party liability. These include: automobile accidents, slips and falls due to defective premises, defects in machinery or other products, or involvement of dangerous chemicals or other substances. While the process can be complicated and expensive and often the decision to subrogate is in the hands of the insurance company, it behooves employers to immediately notify agents and insurance carriers of the involvement of a negligent third party.

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