Things you should know

COVID-19 pandemic information

  • Worker advocacy groups create guidance for apparel and textile workersThe Worker Rights Consortium and the Maquiladora Health and Safety Support Network have issued a set of guidelines intended to protect apparel and textile workers during the COVID-19 pandemic.
  • EPA issues respirator guidance for agricultural pesticide handlersThe Environmental Protection Agency (EPA) has issued temporary guidance intended to help protect workers who handle agricultural pesticides against exposure to COVID-19.
  • ‘Extremely hazardous’: Alert warns against using ethylene oxide to sterilize masks, respiratorsEthylene oxide should not be used to sterilize filtering facepiece respirators for reuse because “this extremely hazardous toxic chemical poses a severe risk to human health,” the Washington State Department of Labor & Industries warns in a new alert.

 

NLRB: Employers can ban cellphone use if…

Adding to an earlier decision related to driving and cellphone use, The National Labor Relations Board (NLRB) recently decided that it is legal for employers to ban the use of cellphones by employees when the restrictions are based on safety and security concerns. The new case involved Cott Beverages Inc., an American-Canadian beverage and food service company, which prohibits cell phones on the shop floor and work stations. While The Board’s May 20 decision recognized that this rule would potentially infringe on employees’ ability to make calls or recordings about workplace issues, it is outweighed by the company’s legitimate business interests.

 

Contracting trades lead in opioid prescriptions in workers comp

Although opioid use has declined in the contracting industry, workers compensation claims still have higher opioid usage and almost double the costs when compared with other industry groups, according to a report, released by the National Council on Compensation Insurance. The average cost per claim in construction is $12,760, compared to $5,608 in all other industry segments.

 

WCRI state data on opioid regulations

As of 2020 most states have regulations on prescribing and managing opioids, but only 15 states have drug formularies and only 17 states definitively include “mental health services” for “drug rehabilitation” in workers comp statute, according to a report by the Workers’ Compensation Research Institute (WCRI).

 

CMS to authorize MSPRP users to view and print conditional payment correspondence

The Centers for Medicare and Medicaid Services (CMS) has issued a notice that starting July 13, 2020, authorized Medicare Secondary Payer Recovery Portal (MSPRP) users will be allowed to view and print CMS conditional payment correspondence.

 

Marijuana tops list of substances identified in CMV drivers’ failed drug tests: FMCSA

The first report to use data from the Federal Motor Carrier Safety Administration’s new Drug and Alcohol Clearinghouse shows that, from the database’s Sept. 28 launch through May, marijuana was the most common substance found in positive drug and alcohol tests among commercial motor vehicle drivers. According to the report, 19,849 CMV drivers had at least one violation, including 10,388 positive tests for marijuana. and were unable to operate until completing the return-to-duty process.

 

Preparing chemical facilities for extreme weather events: CSB releases safety alert, video

The Chemical Safety Board has published a safety alert and video intended to help hazardous chemical facilities prepare for hurricanes and other extreme weather events.

 

State News

California

  • Became the first state to pass a regulation requiring insurance companies to reduce premiums paid by employers for workers compensation insurance, effective July 1.
  • Adopts first in the nation workplace safety standard protecting nighttime agricultural workers.

Florida

  • Policyholders of the Florida Workers Compensation Joint Underwriting Association, a self-funding plan for employers unable to purchase insurance in the voluntary market, will be eligible for the premium refund, totaling $27.6 million.

Illinois

  • On June 5, Gov. J.B. Pritzker signed H.B. 2455, which creates a rebuttable presumption for essential workers, including first responders, who presumably contracted COVID-19.
  • Workers’ Compensation Commission has posted dial-in numbers, locations, and times for July arbitration proceedings.

Massachusetts

  • The Department of Industrial Accidents will no longer accept certain forms through the mail – Form 105, an agreement to extend the 180-day payment period, and Form 113, agreement to pay compensation. The forms must be filed by email and can be sent to DIA-Form105conciliation@mass.gov and to DIA-Form113conciliation@mass.gov.

Michigan

  • Gov. Gretchen Whitmer issued an executive order on June 17 that provides a rebuttable presumption for certain workers who believe they contracted COVID-19 on the job.

Tennessee

  • Two bills that recently passed the General Assembly are summarized on the Bureau of Workers’ Compensation website. One bill extends the deadline for an injured employee to file a claim for increased benefits. The other adds requirements for out-of-state construction companies and strengthens enforcement against uninsured businesses. As of this publication, the laws have not been signed by the governor.

Virginia

  • The Safety and Health Codes Board is creating an emergency temporary standard to protect employees from the spread of COVID-19. Employers who fail to comply with the standard may be fined $13,047 for a single violation, $130,463 for willful and repeat violations, and $13,047 per day for failing to abate the risk. Employers may receive reduced penalties based on the size of their workforce, but the minimum penalty is $600. It is slated to take effect July 15.
  • The Insurance Commission posted new rules that will help implement HB 46 beginning July 1. Under the new law, employers are required to notify workers within 30 days if they intend to accept the claim, deny the claim, or if they will be seeking further information. Additionally, under the law, when the employer denies a claim, they must provide details for the denial. Failure to meet these requirements will result in a $5,000 fine per claim.

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

Legal Corner

Workers’ Compensation
Contractor cannot be sued for death of subcontractor’s employee – California

In Sherry Horne et al. v. Ahern Rentals, Inc., an employee of 24-Hour Tire Service Inc. was crushed to death while changing a tire on a forklift. His family received workers’ comp death benefits and sued Ahern Rentals, alleging that it had contributed to the collapse of the forklift by failing to provide a stable and level surface, allowing the tire change to proceed with the forklift’s boom raised, and failure to train employees.

However, an appeals court noted that to be liable the contractor had to actively direct the contractor or contractor’s employee to do the work in a particular way. It noted that “passively permitting an unsafe condition does not amount to actively contributing to how the job is done.”

85-year-old precedent upended by Supreme Court – Georgia

In Frett v. State Farm Employee Workers’ Compensation, an insurance claims associate slipped and fell in the break room while taking her mandatory lunch break. An appeals court had found that the injury was not compensable because it took place on her lunch break, and therefore, did not arise out of her employment, but out of a purely personal matter. This followed the reasoning of a 1935 decision regarding “off-the-clock” injuries.

However, the Supreme Court found that she was injured on the premises of her employer, in the middle of her workday, while preparing to eat lunch. This activity, being reasonably necessary to sustain her comfort at work was, “incidental to her employment and is not beyond the scope of compensability under the Act.” Acknowledging the similarity to the 1935 “Farr” case, the court said the reasoning of Farr was unsound, and it was “completely untethered from the analytical framework consistently employed by this Court in workers’ compensation cases for nearly a century.”

One time change of physician rule bumped to Supreme Court – Florida

The First District Court of Appeal, in City of Bartow v. Flores, ruled that under statute 440.13(2)(f), which allows for a one-time change of physician, it isn’t enough for an employer/carrier (E/C) to provide the name of the alternate physician within five days as specified in the statute. The court held, that it must supply access to the physician by setting up an appointment and inform the injured worker of that date.

In this case, the worker was not notified of an appointment for 56 days. Therefore, the court determined he could be treated by the physician of his choice.

Noting the importance of this decision, the appellate court certified to the Supreme Court the question of whether an E/C’s duty to furnish timely medical treatment under 440.13(2)(f) is fulfilled solely by timely authorizing an alternate physician for treatment, or whether the E/C must actually provide the injured worker an appointment date with the authorized alternate physician.

Judge rules on class-action lawsuit of McDonald’s employees related to COVID-19 – Illinois

In Massey v. McDonald’s Corp, Chicago-area McDonald’s workers sought to require the company and the franchises named in the complaint to comply with health guidance and provide proper protective equipment for workers. A judge found that two of the franchises named in the suit failed to comply with the Governor’s Executive Order on mask requirements and failed to properly train workers on social distancing.

Although the judge found the franchisees provided sufficient masks, gloves and sanitizer to workers and adequately monitored virus cases and symptoms among employees, she ordered the store owners to enforce all mask-wearing policies when employees are not six feet apart and to train workers on social distancing.

Out-of-state worker cannot file tort suit in Missouri – Missouri

In Hill v. Freedman, an employee of the University of Kansas School of Law was riding with her supervisor to a work-related event in Missouri. During the drive an argument ensued and the supervisor alleged slammed the vehicle into a concrete barrier when he parked the car. She received workers comp benefits for her injuries through the Kansas system.

A few years later she sued the supervisor in a Missouri state court. The court of appeals noted Missouri follows the law of the state where a worker has been compensated, so Kansas law governs all the issues related to her injury. Under Kansas law, a worker who recovers benefits for an on-the-job injury from an employer cannot maintain a civil action for damages against a fellow employee.

Attorney fee awards clarified – Nebraska

In Sellers v. Reefer Systems, Inc., the Supreme Court ruled that an appellate decision erred in denying attorney fees to an injured worker because the affidavit did not provide details of the fee agreement. State statute 48-125(4)(b) states that reasonable attorney fees will be allowed to the employee by the appellate court if the employer appeals a workers compensation award and fails to obtain a reduction in the awarded amount.

The court determined that reasonable attorney fees do not depend on the terms of the fee agreement, but on the extent and value of the services provided. In this case, the affidavit contained sufficient justification to make a meaningful determination of the reasonable attorney fees to which the employee was entitled.

Son’s death does not meet exception of workers compensation – New York

In Smith v. Park, a 14-year-old boy who was working illegally died while operating a skid steer. The farm accepted the injury claim and was directed by the workers compensation board to pay increased death benefits as a result of the illegal employment. The mother filed a lawsuit against the farm claiming the owner engaged in criminal conduct that was related to her son’s death. The court found that although the owner may have been negligent in his supervision, there was no evidence that he acted out of “a willful intent to harm.”

Reckless driving not enough to nix claim – New York

In McGee v. Johnson Equip. Sales & Serv., a truck driver was injured in a rollover crash as she exited the highway at a speed of 67 mph in a 35-mph speed limit zone. The carrier and employer contented that she willfully intended to injure herself. It also contended that there was cocaine in her system, but there was no evidence of the level of cocaine or when it was ingested.

While the court noted that benefits will not be awarded for deliberate injuries, there is a presumption that a worker is entitled to benefits. It can be overcome by substantial evidence, but the employer did not meet the burden of proof.

Decision to be stay-at-home Dad nixes benefits – Pennsylvania

In Respironics v. Workers’ Comp. Appeal Bd.(Mika), the Commonwealth Court upheld a WCJ ruling that had been reversed by the WCAB suspending the employee’s wage loss benefits when he decided to stay at home and care for his children. He resigned from his modified duty position and the employer argued he voluntarily left the workforce.

The worker needed to show that his loss of earning power was due to his injury and not his personal decision to remain out of work. However, he acknowledged that his decision was in part a financial one – his wife had greater earning power and child care expenses could be avoided. The court found that his testimony was enough to establish he had left the job market and benefits had to be suspended after that date.

Irritable bowel syndrome compensable – Virginia

In an unpublished opinion, Farrish of Fairfax and VADA Group Self-Insurance Association v. Faszcza, the Court of Appeals unanimously affirmed a Workers Compensation Commission decision granting workers compensation benefits to a worker who contended he developed Crohn’s colitis, a type of inflammatory bowel disease (“IBD”), as a result of taking medications prescribed for a work-related foot infection. He suffered from diabetic neuropathy and, at the time of his injury, did not realize he had stepped on an automotive fastener and injured his foot.

His injury became infected and required prolonged antibiotic use, which according to a physician, contributed to his IBD. An appellate court affirmed the Commission’s decision of compensability, noting that there was credible evidence supporting the assertion that the IBD was a result of the puncture wound.

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

OSHA Watch 2

Guidance to ensure uniform enforcement of Silica Standards

compliance directive was issued, designed to ensure uniformity in inspection and enforcement procedures when addressing respirable crystalline silica exposures in general industry, maritime, and construction. The directive provides compliance safety and health officers with guidance on how to enforce the silica standards’ requirements and provides clarity on major topics, such as alternative exposure control methods when a construction employer does not fully and properly implement Table 1, variability in sampling, multi-employer situations, and temporary workers.

Trenching webinar

A webinar on trench safety hosted by the agency and the American Society of Safety Professionals is available free online.

Recent fines and awards

Florida

  • Inspected under the Regional Emphasis Program for Falls in Construction, CJM Roofing Inc., based in West Palm, was cited for exposing employees to fall and other hazards at three residential worksites in Jensen Beach and Port St. Lucie. The contractor faces penalties totaling $199,711.
  • Inspected under the Regional Emphasis Program for Falls in Construction, Action Roofing Services, Inc., based in Pompano Beach, was cited for exposing employees to fall hazards at a worksite in Boca Raton, Florida. The roofing contractor faces $51,952 in penalties.
  • Two construction contractors, CMR Construction & Roofing LLC of Panama City, and Modern Construction Experts LLC of Stuart, were cited for failing to protect employees from fall hazards at a construction worksite in Panama City. The two companies face $126,169 in penalties. An employee fatally fell 84 feet while working on the roof of a hotel.
  • After receiving notice of an employee hospitalized after a trench collapse, an inspection was initiated at Florida Progress LLC, operating as Duke Energy Florida LLC. The Charlotte, North Carolina-based electric power distributor faces $53,976 in penalties for exposing employees to excavation hazards at a Zephyrhills, Florida, worksite.

Georgia

  • Norfolk Southern Railway Corp. has been ordered to reinstate and pay more than $150,000 in back wages for whistleblower violations after terminating an employee for reporting an on-the-job injury at its Atlanta facility, and also filing an alleged violation report with the Federal Railroad Administration (FRA). The company was also ordered to pay the employee $75,000 in punitive damages, $10,000 in compensatory damages, and attorney’s fees.
  • Inspected under the National Emphasis Program on Trenching and Excavation, Construction Management & Engineering Services Inc. was cited for exposing employees to excavation hazards at a Duluth worksite. The Norcross-based construction contractor faces $134,937 in penalties.

Illinois

  • Grain firm Farmers Elevator Co., Manteno, received citations for two willful and three serious violations and a fine of $205,106 after a worker died at its Grant Park facility when he fell into a grain bin. The company was placed in the Severe Violator Enforcement Program.

Nebraska

  • A federal appeals court confirmed a serious citation issued to Jacobs Field Services North America Inc. for failing to ensure “appropriate” personal protective equipment was worn by an electrician who was seriously burned. While the company argued that the work area was “deenergized” and fell under an “Electrically Safe Work Condition,” as well as unpreventable employee misconduct, the judge found the company had violated the standard requiring PPE when “there are potential electrical hazards.”

For additional information.

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