OSHA watch

Interim enforcement guidance on silica standard for construction

The interim enforcement guidance for the Respirable Crystalline Silica in Construction Standard (1926.1153), which is now enforced in full, was issued Oct. 19 in a memorandum to regional administrators. The guidance is intended to help gauge whether employers meet various requirements, including those for inspections and avoiding citations, but does not provide guidance on all of the standard’s provisions. A final compliance directive is in the review process.

Information on silica hazards and related standards are now in one location on the website.


New fact sheets: Zika virus and evaluation of Shipyard Competent Person programs

The fact sheet on the Zika virus details how laboratory exposures occur, often through bodily fluids, and how to prevent exposures.

The Shipyard Competent Person programs fact sheet offers guidance on determining the necessary qualifications of experts who must be employed to determine whether a confined space is safe for workers and prescribe protective measures.


Pennsylvania construction firms join Strategic Partnership program

Shoemaker-Skanska Construction and the Philadelphia Regional Building Trades Council entered into a strategic partnership to protect approximately 300 workers during renovation and construction of a shopping mall complex in Philadelphia. P.J. Dick Incorporated entered into a strategic partnership to protect approximately 200 workers during the construction of an insurance office building in Erie.


Enforcement notes

California

  • HBuilt Inc. in Oakland received two serious citations and $80,000 in penalties for failing to train workers on potential hazards and safe operation of machines, ensure proper machine guarding, and provide workers with gloves designed to prevent cuts.

Georgia

  • Structural Subcontractors Service LLC, a Birmingham-based structural framing company working on a job site in Georgia, faces penalties of $102,669 for exposing workers to fall hazards. Inspectors found workers wearing fall protection harnesses, but were not tied off to prevent a fall. The inspection was initiated as part of a regional emphasis program.

Massachusetts

  • Citations and proposed penalties against Dudley-based Shield Packaging Co. Inc. and two staffing agencies following a May 2016 incident in which an employee was injected with a flammable propellant gas have been settled. The packaging company will pay $150,000, about 50% of the original levy, and the two staffing agencies, Leominster-based ASI Staffing Group Corp. and Worcester-based Southern Mass Staffing, will pay $12,471 and $12,222 respectively. The company also agreed to document that all hazards are corrected, retain a professional engineer to approve the design and installation of a safety interlock on the machine that injured the worker, retain a qualified safety consultant to perform a comprehensive inspection of the plant, and develop a workplace safety and health program, while the staffing agencies also agreed to implement specific comprehensive safety and health measures.

Michigan

  • Ten citations and $102,600 in penalties were issued to SET Enterprises Inc. in New Boston for exposing workers to amputation hazards. Inspectors determined that the company failed to train workers on potential hazards and safe operation of machines, ensure proper machine guarding, and provide workers with gloves designed to prevent cuts.

New York

  • Acme Parts Inc. has agreed to pay $40,000 in penalties after high lead levels were found in the manufacturing facility as well as hire a qualified lead hazards and abatement consultant to evaluate the facility and to recommend improved practices.
  • An administrative law judge affirmed citations issued against Webster-based LM Sanderson Construction Inc. whose employees were photographed working on a site without fall protection and assessed total penalties of $5,600. The employer failed to meet its burden in contending the violation was the result of unpreventable employee misconduct or that literal compliance with the standard’s requirement was infeasible under the circumstances.

Pennsylvania

  • Pittsburgh contractor, Ski Masonry LLC, is facing $201,354 in proposed penalties for exposing workers to fall and electrical hazards after an employee was fatally electrocuted.
  • In response to a complaint, the owner of a New Jersey construction company has been cited for exposing workers to alleged hazards at a Philadelphia job site, including allowing employees to work on a scaffold that was too close to power lines, failure to train on scaffold hazards, not providing hard hats and failing to develop and implement an accident-prevention program. The owner, Vyacheslav Leshko, faces $191,215 in proposed penalties.

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

HR Tip: Failure to pay for pre-shift work can be costly

A recent settlement in a class-action lawsuit, Tompkins v. Farmers Insurance Exchange, is a reminder to all employers about the obligation to pay for pre-shift work under the Fair Labor Standards Act (FLSA) and state laws. A federal court approved a $775,000 settlement for Farmers Insurance’s alleged failure to compensate auto claims representatives, appraisers, and adjusters in several states for pre-shift work.

The alleged unpaid activities included starting up computers and accessing Farmers’ software applications, obtaining daily assignments, determining the locations the workers would need to visit, mapping routes, contacting customers and auto repair facilities, downloading required forms and gathering paperwork, as well as traveling to the workers’ first appointments of the day. The settlement, which was approved by the U.S. District Court for the Eastern District of Pennsylvania, granted both the FLSA collective action and state law class claims and covers nearly 400 current and former employees.

Employers are reminded that activities before the official time a shift begins are compensable if they include tasks the worker is employed to perform or are an “integral and indispensable part of” the job and include mandatory pre-shift meetings. Employers should review policies and practices regarding compensation for pre- and post-shift work, as well as educate managers about the wage laws that require payment for all hours worked.

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

Important takeaways from recent studies and reports

Strategies to reduce costs and risks of musculoskeletal disorders

A report by the Northeast Business Group on Health (NEBGH) urges employers to look at their own experiences with claims, disability, workers’ compensation and health risk assessment data to best prioritize program selection and implementation to better manage MSDs. It addresses several strategies to mitigate cost and health issues and suggests using onsite ergonomics training, online courses on the subject and workplace redesigns. It also suggests new approaches to treatment, such as online pain education, direct access to physical therapy by bypassing physician referrals, and directing employees away from “unnecessary diagnostic imaging and expensive visits to specialists.” Finally, the report examined ways to ensure that if surgery is needed, that the care is performed in an efficient and cost-effective way.

Obesity and worker productivity by occupational class

The Journal of Occupational and Environmental Medicine has published a new study, “Impact of Obesity on Work Productivity in Different US Occupations: Analysis of the National Health and Wellness Survey 2014-2015”, which examines the impacts of obesity by different occupational classes on work productivity and indirect costs of missed work time.

BMI results were as follows:

  • Protective Services: 38% overweight, 39% obese
  • Transportation: 38% overweight, 36% obese
  • Manufacturing: 35% overweight, 30% obese
  • Education: 31% overweight, 30% obese
  • Healthcare: 31% overweight, 30% obese
  • Construction: 38% overweight, 29% obese
  • Hospitality: 32% overweight, 27% obese
  • Arts: 34% overweight, 26% obese
  • Finance: 36% overweight, 25% obese
  • Computer: 36% overweight, 25% obese
  • Legal: 38% overweight, 24% obese
  • Science: 37% overweight, 21% obese

The researchers concluded that there was a positive association between work productivity impairment and increases in BMI class that varied across occupations. Obesity had the greatest impact on work productivity in construction, followed by arts and hospitality, and health care occupations. Work impairment was least impacted by increases in BMI in Finance, Protective Services, Computers, Science, and Legal. It was estimated that the indirect costs associated with the highest BMI group in construction was $12,000 compared to $7,000 for those with normal BMI.

Would your floors pass the slip and fall test? 50% fail

Half of the floors tested for a slip-and-fall study failed to meet safety criteria, suggesting that many fall-prevention programs may overlook the effects of flooring selection and ongoing maintenance on slip resistance, according to a study by CNA Financial Corp.

Given the high frequency of slips and falls, these findings underscore the need for attention to floor safety and regular surface resistance testing to avoid fall accidents and related injuries.

Fatigue costs employers big bucks

Key findings from a recent study on fatigue by the National Safety Council (NSC) include:

  • More than 43 percent of all workers are sleep-deprived, and those most at risk work the night shift, long shifts or irregular shifts. As employees become tired, their safety performance decreases and their risk of accidental injury increases.
  • Missing out on sleep makes it three times as likely to be involved in an accident while driving. Also, missing as little as two hours of sleep is the equivalent of having three beers.
  • Employers can see lost productivity costs of between $1,200 to $3,100 per employee per year.
  • The construction industry has the highest number of on-the-job deaths annually. In a 1,000-employee national construction company, more than 250 are likely to have a sleep disorder, which increases the risk of being killed or hurt on the job.
  • A single employee with obstructive sleep apnea can cost an employer more than $3,000 in excess healthcare costs each year.
  • An employee with untreated insomnia is present but not productive for more than 10 full days of work annually, and accounts for at least $2,000 in excess healthcare costs each year.

Experts say employers can help combat fatigue by offering breaks, scheduling work when employees are most alert, and promoting the importance of sleep.

Workers welcome employers’ help in dealing with stress

Workers want their employers to offer assistance in coping with work-related stress, according to a new report from the American Heart Association’s CEO Roundtable.

The report also concludes that employees think more highly of employers offering resiliency programs. Valued programs include methods for dealing with difficult people, improving physical health, remaining calm under pressure, coping with work-related stress and accurately identifying the causes of work-related problems. It also includes actionable strategies for effective workplace resilience programs.

Supportive communication and work accommodation help older workers return to work

While early supportive contact with injured workers and offers of work accommodation are important to all injured workers, a recent webinar hosted by the Disability Management Employer Coalition (DMEC) and presented by Dr. Glenn Pransky, founder of the highly acclaimed, but now-defunct Center for Disability Research within the Liberty Mutual Research Institute for Safety, noted that these two strategies are particularly effective with older workers.

His research involved workers’ comp cases in New Hampshire related to low back and upper extremity problems. Negative responses, including lack of support, anger, disbelief, blaming the worker, or discouraging the worker from filing a claim resulted in significantly longer disability, and the effect was especially strong among older workers.

Click to hear the DMEC webinar

Loss control rep visits cut lost-time injuries in construction

Visits by insurance loss prevention representatives to construction job sites can lead to fewer workplace injuries, according to a study by a Center for Construction Research and Training supported research team at the University of Minnesota. One contact was associated with a 27% reduction of risk of lost-time injury, two contacts with a 41% reduction of risk, and three or more contacts with a 28% reduction of risk, according to the study. The study also found that these visits are often low cost and that the reduction in lost-time injuries reduced workers’ comp costs.

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

Don’t let your holiday party become a legal liability

No one wants to be a spoil sport. Holiday parties are supposed to be festive and fun, but they can also be a breeding ground for liability under tort, workers’ compensation, sexual harassment, discrimination, and other laws. Planning ahead to minimize exposure can help ensure a lawsuit-free event.

Workers’ Compensation

A North Carolina case last year, Lennon v. N.C. Judicial Dept., illustrates the issues that are common when an employee is injured at an office event. Whether such injuries are covered under workers’ compensation laws will depend on many factors (which can vary by state), but the overriding question is whether the employee was acting in the course and scope of employment at the time of the incident.

In this case, the injured employee worked for the division of the county clerk’s office that was in charge of planning the annual office holiday party. During regular working hours, she designed invitations, arranged for catering, and helped plan the party. She also volunteered to serve as the “emcee” for the event. All employees were invited, but not required to attend, and the cost of the food and venue was paid for by a group of private attorneys who sponsored the party. Even if they did not attend, all employees were expected to contribute $13 to pay for a gift to the clerk of court and for cleaning up after the party.

On the evening of the party, she fell and suffered a fracture of the wrist and coccyx and a tear of her shoulder. She received short-term disability benefits and filed a workers’ comp claim for days missed from work, permanent partial disability, and medical expenses. When the insurance company denied the claim, it went through a series of appeals, which upheld the denial.

The appellate court used a six-question analysis to help determine if the injury arose out of the scope of employment:

  1. Did the employer in fact sponsor the event?
  2. To what extent was attendance really voluntary?
  3. Was there some degree of encouragement to attend, evidenced by such factors as:
    1. taking a record of attendance
    2. paying for the time spent
    3. requiring the employee to work if he did not attend or
    4. maintaining a known custom of attending?
  4. Did the employer finance the occasion to a substantial extent?
  5. Did the employees regard it as an employment benefit to which they were entitled?
  6. Did the employer benefit from the event, not merely in a vague way through better morale or good will, but through such tangible advantages as having an opportunity to make speeches and present awards?

While laws will vary by state, employers who take careful steps to disassociate the event from work and confirm that the venue and service providers are properly licensed will minimize their risk.
Tort

While drinking too much at a holiday party may derail a career, alcohol is at the root of many lawsuits and employers need to take steps to ensure that the revelry does not get out of hand. When excessive drinking occurs, employers can face claims of social host liability, negligence, and respondeat superior, which holds employers responsible for the acts of employees such as DUI cases.

A recent New York case, Gillern v. Mahoney, illustrates the exposure that excessive drinking can cause, even when the employer had no role in the celebration. A number of employees organized a holiday party and when a co-worker became intoxicated, they contacted his wife (also an employee and a nurse) to take him home. When she arrived, they assisted her in getting her inebriated husband into the car. When at home, she let him sleep it off in the car, but later, she found him dead on the car floorboard.

Even though the party was not sanctioned or paid for by the employer, was not held on its property, and all participating employees were off duty, the employer was sued for the worker’s death. Upon appeal, the appellate court found that the action of the co-employees was not the proximate cause of the decedent’s death and the employer and various co-employees could not be held responsible in tort.

It would be an easy solution not to serve alcohol, but that is not always realistic. Employers need to establish limits on the amount and type of alcohol that will be served. Definite “no’s” are an open bar and allowing employees to serve drinks. Limit the number of drinks with a drink ticket system or don’t provide free drinks at all, close the bar early, hold the event off site at establishments with a liquor license and properly trained bartenders, provide plenty of food, and arrange alternative transportation. Be sure management leads by example. Advise employees to be responsible with a statement on the party invitation and/or a written reminder on the responsibilities to drink only in moderation and to avoid driving after drinking.
Harassment

This year, where we seem more divided than ever and some are emboldened to mock or denigrate others, if it can go wrong, it will. In a social situation with alcohol, employees can lose their inhibitions and do offensive things that they wouldn’t normally do in a work environment. Yet, an employee’s diminished capacity is not a defense to claims of harassment or assault and employers could be held responsible because they created the environment for that conduct to take place. Other issues that can lead to lawsuits are a religiously themed party and religious symbolism, hanging mistletoe, inappropriate postings on social media that could lead to claims of a hostile work environment, harassment or discrimination.

While hosting a party off-site can better protect your company, employees can also assume office standards of conduct do not apply. Employers should remind workers that behavior at the party should comport with the same behavior that is acceptable in the workplace and that the same reporting procedures apply should any incidents occur. Make the dress code known and avoid holiday attire or costumes. Remind supervisors and managers to set a professional example, by staying clear of talking about promotions, performance, and other business matters related to individual employees, and not selectively offering personal compliments.
Gift exchanges

Similar to office parties, Secret Santa and Yankee Swaps, and other forms of gift exchange are popular during the holiday season. It’s important to make this voluntary and set parameters for appropriateness, inclusivity, and price.
Nine actions to minimize risk

While each state has its own nuances in the law, employers can best protect themselves with these actions:

  • Hold the party off-site and not during office hours
  • Ensure that attendance is truly voluntary; there is no coercion to attend and no high expectation of attendance
  • Be cautious about inviting vendors, clients or others with whom you have a business relationship
  • Refrain from engaging in business activities, such as speeches and distribution of awards
  • Avoid asking employees to perform specific functions at the party or recognize that in so doing, they could be considered in the scope of employment
  • Limit or do not serve alcohol
  • Remind employees that normal workplace standards of conduct are to be respected, including the use of social media, and immediately stop inappropriate conduct
  • Confirm that the venue is properly licensed
  • Understand your exposure and corresponding insurance coverage

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

Six ways employers unwittingly fuel workplace violence

The statistics are alarming. According to an FBI report, workplace violence impacts almost two million Americans a year, causing an average of 700 homicides. About 18% of violent crimes are committed in the workplace. In addition to the invaluable loss of human life, NIOSH estimates the annual economic cost is $121 billion, not including the immeasurable physical and emotional trauma and morale issues among employees and disruption for the business.

Yet, according to the Bureau of Labor Statistics (BLS), fewer than 30% of private employers have workplace violence prevention programs and only 20% provide workplace violence prevention training. Employers can be reactive rather than proactive, believing an incident cannot occur at their office and don’t seek help until something has happened.

While some associate workplace violence with the high-profile cases covered by the news media, its definition is much broader. The FBI defines workplace violence as “actions or words that endanger or harm another employee or result in other employees having a reasonable belief that they are in danger.” It encompasses bullying, harassment, stalking, robbery, rape, sexual assault, physical assault, as well as shootings, and happens daily.

Generally, it can be grouped into four types:

  1. Violent acts by people who have no other connection with the workplace other than to commit the crime (such as robbery). Convenience stores, gas stations, and liquor stores are at particularly high risk.
  2. Directed at workers by customers, clients, patients, students, inmates or any others for whom an organization provides services. Health care and social assistance sectors are particularly vulnerable.
  3. Violence against coworkers, supervisors or managers by a present or former employee. While some can be random, more often it is a disgruntled employee.
  4. Domestic violence that spills over to the workplace – violence committed in workplace and the perpetrator has a personal relationship with an employee.

Here are six ways employers unwittingly fuel the problem:

  1. Fail to adequately assess all aspects of physical securityConducting a thorough walkthrough at least once during the day and once after dark with a focus on identifying vulnerabilities lays the foundation for a security plan. Where can people enter the building? Are the entrances secured in any way? If electronic access cards are used, are they immediately disabled when an employee leaves the company or loses the card? Where can perpetrators hide to sneak in behind an employee? How do visitors gain access to the building? What about the lighting? If it’s shared space, how is security coordinated? How can employees escape in the event of an incident? What about employees with disabilities? How is after-hour access controlled? Are there security cameras and are they positioned where they are needed? If you have security guards how rigorously do they enforce the rules?Once a security plan is developed, be sure employees have a way to communicate any issues and conduct periodic reviews of the security measures. If an employee reports a former boyfriend is stalking her, is there a way to communicate that information to those in the frontline? If a door is left open, employees may like the convenience of not using their keycards and not report it.
  2. Fail to train managers and supervisors in managing peopleManagers and supervisors often rise through the ranks because of their superior technical skills and strong work ethic. Managing people requires a different skill set and it can be particularly difficult with a troublesome employee. Far more frequent than killing rampages at the office are cases of workplace bullying and workplace assault. Stopping these dangerous situations early can prevent problems from spiraling out of control or turning deadly, yet poorly trained managers can make matters worse by intensifying the sense of persecution felt by the disgruntled employee or ignoring the situation altogether.Managers and supervisors may feel challenged to understand issues employees are experiencing outside the workplace – a divorce, a terminally ill child, financial problems, and so on, while also respecting privacy issues. They should know what to do and who to turn to for assistance.
  3. Fail to foster a culture that encourages reporting of physical and verbal threats and harassmentAll too often after an incident of workplace violence, co-workers describe the perpetrator as belligerent, angry, a bully, misfit, loner and so on, but did not report their concerns.The highly publicized sexual assault allegations made against Hollywood producer Harvey Weinstein and others – including the use of the #MeToo social media hashtag – indicates that sexual misconduct is a regular, but underreported workplace occurrence. They may worry about their job, fear retaliation, believe it’s not their responsibility, don’t want to be viewed as a “tattler,” don’t believe it will escalate, or think the employer will ignore the complaint. Ironically, aggressors count on this behavior.Educating workers on all aspects of workplace violence and training how to spot potential trouble is a good start. Open communications and a clear reporting structure that enables them to report in a non-judgmental way that includes timely feedback and action is essential.
  4. Fail to recognize workplace factors that can trigger violenceStress, downsizing, mergers, feelings of being undervalued or unheard, and rigid management styles are often cited as precursors of workplace violence. Stress is a key trigger, and increased production demands, new technologies, reorganization, and the pressure to be available 24/7 can be overwhelming to some employees. Special programs to help employees manage stress can be helpful and demonstrate support for employees.Yet, the same ‘objective’ stressor at work can trigger an aggressive reaction in one person and not in another. This sometimes leads managers to conclude that a problem is the individual’s – rather than accepting the need to acknowledge and respond to differences in their staff. Yet, often there are early warning indicators, such as a change in attitude or appearance, friction with co-workers, deteriorating performance, excessive complaints, and increased absences. When managers get involved with an open dialogue and provide a plan for support, the likelihood of this escalating to overt threats and aggression decline.
  5. Fail to manage the threat with hiring and firing practicesThere’s no doubt it is difficult to obtain substantial information from past employers, but it’s critical to try. According to reports in the Baltimore Sun, the gunman at the Advanced Granite Solutions company in Maryland had been violent previously at work. An employee at a prior employer filed a peace order against him, alleging that he had punched an employee in the face and had returned later to threaten employees at the place of business.Experts suggest that behavioral-based interviewing can help identify potential problems. This technique involved probing questions that relate to how an individual behaves in the workplace. “Tell me about a situation where you did not agree with a co-worker. How did you handle it? What was the outcome? Were you satisfied with the outcome?” Observing body language also can be revealing. Employers who do not take proper precautions in hiring run the risk of being accused of negligent hiring practices.

    Equally important is managing the termination process. Whether it’s a layoff, non-performance, or just a poor fit, treat the person with dignity and respect and stick to the facts. Be consistent. Keep it short and private. Do it at a time when business impact is minimized. Many experts suggest earlier in the week and definitely not a Friday. Provide information on resources that will be helpful to the employee.

  6. Fail to involve workers in the development of the planWhen employees have a role in developing a plan, they are more likely to take ownership and feel empowered to take action. The group should include individuals from line staff to the highest-ranking management official or an appropriate designee to ensure feedback and representation from the entire workplace. All-employee training sessions designed to educate staff on what workplace violence is, how to look for it, and what actions to take should be conducted regularly.

Employers in every industry need to do a better job at preventing workplace violence. While it is not always possible to prevent violence in the workplace, by preparing and planning ahead, it is possible to minimize the risk and protect employees.

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

Things you should know

NSC debuts Fatigue Cost Calculator for employers

A U.S. employer with 1,000 workers could lose about $1.4 million annually because of the effects of sleep deficiency, according to recent research from the National Safety Council (NSC) and the Brigham Health Sleep Matters Initiative. An estimated 40 percent of the workforce suffers from an undiagnosed sleep-related ailment, such as obstructive sleep apnea or insomnia. Sleep disorders can cause employees to miss work and experience performance and productivity issues, as well as increases in their health costs. They also can lead to work-related incidents and injuries.

Organizations now can see their portion of those costs – and their potential savings by implementing sleep health programs – with the new Fatigue Cost Calculator.

NIOSH launches software platform to monitor health of emergency responders

The National Institute for Occupational Safety and Health (NIOSH) has launched a software platform called ERHMS Info Manager to monitor the health and safety of emergency responders. ERHMS Info Manager tracks and monitors emergency response and recovery worker activities during all phases of emergency response following a natural disaster or other public health emergency.

EMS workers face higher occupational injury rates: NIOSH

Emergency medical services workers have higher rates of work-related injuries than the general workforce and three times the lost workday rate of all private-industry workers, according to a new fact sheet from NIOSH. The fact sheet identifies the actions that caused the most injuries and provides tips to prevent injuries.

Sharp drill bits decrease hazardous exposures during concrete drilling, researchers say

Workers who frequently drill concrete can reduce their exposure to noise, silica and vibration by regularly replacing dull drill bits with new, sharp ones, according to a recent study from the Center for Construction Research and Training, also known as CPWR. In three experiments the research team showed that a worker’s exposure to noise, tool vibration and airborne silica dust increases substantially as a bit wears down from continued use.

NIOSH releases skin-hazard profiles on nine chemicals

NIOSH has published nine new skin notation profiles to “alert workers and employers to the health risks of skin exposures to chemicals in the workplace. The chemicals include:

  • Arsenic and inorganic arsenic containing compounds
  • Disulfoton
  • Heptachlor
  • 1-Bromopropane
  • 2-Hydroxypropyl acrylate
  • Dimethyl sulfate
  • Tetraethyl lead
  • Tetramethyl lead
  • Trichloroethylene

New online toolkit to help keep workers and families safe on the roads

The Network of Employers for Traffic Safety is offering a free online toolkit to help employers keep workers and their families safe on the road.

The toolkit includes an interactive distracted driving self-assessment in which users answer questions about their driving habits. Other resources include fact sheets for employers and employees, pledge cards, a PowerPoint presentation, and graphics for social media and email use.

Coventry 4th and Final Drug Trends Series Report

Coventry has released the fourth and final installment of their 2016 Drug Trends Series, this one focusing on specialty medications and closed formularies. Specialty drugs are not utilized widely in workers’ comp, just 1.1 percent, but they do make up just about 5 percent of overall prescription costs. In the managed care world, utilization of specialty medications rose by 19.4 percent in scripts per claim and they saw a 7.9 percent increase in cost.

State News

California

  • Over 90% of all utilization review physicians’ modifications or denials of treatment that were reviewed by an independent medical review (IMR) doctor in were upheld according to a study by the Oakland-based California Workers’ Compensation Institute. About half of the IMR decisions so far this year were related to pharmaceutical requests and a small number of physicians account for a large portion of the claims.
  • The Workers’ Compensation Insurance Rating Bureau (WCRIB) released a report showing medical payments per claim dropped nine percent from 2014 to 2016. The researchers attribute that to a drop in utilization, there was a 10 percent decrease in paid transactions, but the average payment per paid transaction actually rose 4 percent, from $129 to $134.

New York

  • The Workers’ Compensation Board released new impairment guidelines, just meeting the deadline set by the Legislature last spring. The guidelines are used to determine schedule loss of use awards, which are additional cash payments to workers who have permanent or partial loss of the use of limbs, as well as vision and hearing loss.

North Carolina

  • Rate Bureau proposes 11.3% loss cost decrease. This filing will affect policies that are effective on and after April 1, 2018, and are applicable to new and renewal policies.
  • Employee misclassification complaints are up 644% in first half of 2017, reflecting the state’s crackdown on misclassification, which followed a yearlong investigation by the News & Observer in Raleigh and The Charlotte Observer.
  • Industrial Commission has stopped accepting motions from adjusters. Determining that the filing of motions constitutes the unauthorized practice of law, the Industrial Commission will no longer accept motions for relief filed by insurance adjusters.

Tennessee

  • NCCI recommends 12.2% rate drop. Drops will vary by industry, but most are in double digits.

 

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

Legal Corner

ADA
Extended leave not reasonable accommodation for employee who exhausted FMLA leave – 7th Circuit U.S. Court of Appeals

In Severson v. Heartland Woodcraft, an employee who worked a demanding job in spite of a degenerative spine condition injured his back at home and took a 12-week medical leave under the FMLA. On the last day of his leave, he had back surgery and asked for two or three more months to recover. It was denied and the employee filed suit under the ADA. A district court judge found in favor of the employer and, upon appeal, the 7th Circuit Court of Appeals noted “If the proposed accommodation does not make it possible for the employee to perform his job, then the employee is not a ‘qualified individual'” as is defined in the ADA.

In so doing, the court reaffirmed a 2003 decision in Byrne v. Avon Products and rejected the Equal Employment Opportunity’s Commission’s request to revisit the decision.
FMLA
Workers’ Comp settlement doesn’t bar FMLA lawsuit against employer – 3rd Circuit Court of Appeals

In Zuber v. Boscov’s, an employee injured on the job missed two days of work and when he returned to work requested a week of FMLA leave, which was granted. About a month later, he was fired and filed suit that the company interfered with his rights under the FMLA, and that it had retaliated against him for filing his workers’ compensation claim.

The company argued that the employee waived his FMLA and common law rights in settling his comp claim and a district judge agreed. However, the Third Circuit found the language of the agreement, which stated that it was a final resolution of the work injury claim ‘and its sequela,’ doesn’t necessarily disallow a FMLA suit. Signing the agreement meant he could not bring a future workers’ compensation claim, but didn’t prohibit him from bringing FMLA or Pennsylvania common law claims.

Workers’ Compensation
Workers’ Compensation disability findings not binding in Social Security disability claim – United States

In Derosia v. Colvin, a federal district court found that an Administrative Law Judge (ALJ) had not erred in denying a claim for Social Security Disability Insurance Benefits. It is well accepted that Workers’ Compensation guidelines do not necessarily coincide with federal disability regulations and are not binding. However, the ALJ noted none of the workers’ compensation treating providers focused on work-related functions; rather, they provided statements concerning her ability to return to work.

Court clarifies length of psych benefits related to workplace injuries – Florida

In Utopia Home Care v. Alvarez, an employee was diagnosed with major depressive disorder after suffering a severe shoulder injury at work, but did not decide to seek indemnity benefits for her depression until almost two years after she reached MMI. A judge of compensation ruled that she was entitled to the benefits, believing that she could collect six months’ worth of psychiatric benefits anytime after reaching MMI, however the 1st DCA overturned the ruling. When a worker reaches maximum medical improvement, it “starts a clock” on remaining psychiatric benefits “that stops six months to the day after the date of physical MMI,” the court wrote.

Trial judge erred in overturning denial of authorization for surgery – Georgia

In Autozone v. Mesa, a delivery driver suffered injuries when a vehicle struck her delivery truck from behind. After a doctor cleared her to return to work, she continued to complain of back pain and underwent several MRIs. Four doctors found no abnormalities, but a fifth doctor, while finding no disc herniations or significant desiccation, recommended a surgical sacroiliac joint fusion. An independent medical evaluator disagreed.

An ALJ found that the sacroiliac surgery was not reasonable or necessary and the State Board of Workers’ Compensation agreed. A superior court judge later reversed the Board, finding the record contained “no objective medical evidence” that the proposed surgery was not reasonably required. However, the Court of Appeals said there was substantial competent evidence to deny the surgery and that the judge improperly took on the role of “fact finder”.

Pastor’s salary cannot be included in weekly wage calculations – Illinois

A worker at Nestle USA suffered two serious work-related injuries that led to temporary total disability benefits, temporary partial disability benefits, and medical expenses as well as wage differential benefits. During the time of his injuries, he also worked as a pastor and received a $600 per week housing allowance; however, the employer was not aware that he was being compensated, although they knew of the job. The 4th District Court of Appeals upheld earlier decisions, saying that his employer did not know he was being compensated for his duties as a pastor; therefore, his job as a pastor could not be included in the weekly wage calculations.

Slip and fall on wet pavement in employer’s parking lot not compensable – Illinois

In Dukich v. Illinois Workers’ Comp. Comm’n, an appellate court found that an employee who slipped and fell in a wet parking lot could not collect workers’ comp. The parking lot was clear of ice and snow and had no defects that caused the fall; therefore, the slip and fall accident arose from an activity of daily living. There was also no evidence that the employee was rushing to complete a work task or carrying items required for her work.

Requirements for employer to terminate rehabilitation clarified – Minnesota

In Halvorson v. B&F Fastener Supply, an employee injured her right elbow and knee and was awarded benefits that included rehabilitation. She took a part-time job with another employer and B&F Fastener Supply took steps to end the rehabilitation services. A compensation judge granted B&F’s request to discontinue rehabilitation services, but the Court of Appeals and the Supreme Court disagreed.

The company relied upon the argument that she no longer met the definition of a “qualified employee” under Minnesota Administrative Rule 5220.0100. But the court noted this rule does not provide an independent mechanism for an employer to terminate rehabilitation benefits. It also rejected the argument that a compensation judge could review, approve, modify or reject rehabilitation plans, noting this only applied to initial plan reviews.

Plan modification or termination may be accomplished only by meeting the requirements of Minn. Stat. ยง 176.102, subd. 8(a), which provides a nonexclusive list of reasons for terminating rehabilitation services under the good-cause standard, including “that the employee is not likely to benefit from further rehabilitation services.” The company acknowledged this might have been a better approach, since it could be argued her return to part-time employment eliminated the need for further rehabilitation services.

Testimony of worker’s colleagues leads to denial of claim – Mississippi

In Walker v. Kinder Morgan, an employee had a long history of back pain, which he had not shared with his employer. He was in a non-work motor vehicle accident and had to stay out of work because he was taking a muscle relaxer and pain medication and the employer did not allow mood-altering drugs. The day he returned to work, he said he experienced a sharp pain in his back, but did not report an injury because he had just returned to work. After a few days, he reported the injury and sought care from his family doctor, who recommended surgery.

While an administrative judge found the injury compensable, the Workers’ Compensation Commission reversed and was upheld by the Court of Appeals. It found the testimony of coworkers, which raised question if he was involved in horse play, how much pain he was in, and whether the pain was a result of the car accident, more compelling.

Standard for compensability of psyche injuries clarified – Missouri

In Mantia v. Missouri Department of Transportation, the Supreme Court unanimously overturned an award of benefits to a worker for her psychological injuries from witnessing horrific accidents on the state’s highways, saying she needed to prove her distress was “extraordinary and unusual” as compared to other similarly situated employees. According to her testimony on average, at least one accident a week involved a fatality and she graphically described some horrific scenes. She had worked for the Transportation Department for 20 years and had begun suffering from panic attacks and nightmares. She acknowledged her co-workers witnessed similar gruesome accidents, but they sometimes joked about it.

In reversing earlier decisions, the Supreme Court explained that Section 287.120.8 of the Workers’ Compensation Law limits the availability of benefits for mental injuries to those that are caused by work related-stress that is “extraordinary and unusual.” The court decided that the appropriate objective standard for determining whether the stress was compensable was “whether the same or similar actual work events would cause a reasonable highway worker extraordinary and unusual stress.”

Blind worker’s volunteer activities did not warrant misrepresentation and forfeiture of benefits – New York

In the Matter of Eardley v. Unatego Central Sch. Dist., a janitor injured his right shoulder and neck and a WCJ found he was entitled to permanent total disability benefits. A surveillance video showed the employee walking around at a concession, helping to move a popcorn machine, and, on a separate occasion, helping his disabled daughter take money at a secondary admission for a non-profit’s football event.

After viewing the video footage, the school district accused him of having violated Workers’ Compensation Law Section 114-a(1), which provides for the forfeiture of a benefits if the worker has knowingly made a false statement or representation of material fact in order to secure the payment of benefits. A WCJ found that he had not violated Section 114-a(1), since the video footage did not demonstrate he had the ability to work, finding that such activities were minimal and not inconsistent with the representations that the employee made to the insurance carrier. This was upheld on further appeals.

Summary judgment on claim for fall overturned – New York

In Valente v. Lend Lease (US) Construction LMB, a construction worker slipped and fell on grease that had gotten on to the planks he was using as a makeshift ramp to descend five feet from the top of a building to a scaffold. A Supreme Court Justice and the Appellate Division’s 1st Department granted partial summary judgment, finding Valente’s fall was “the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential.” However, the Court of Appeals noted the testimony of the foreman conflicted with the employee’s claim about the safety devices available and, therefore, raised question as to whether the employee’s conduct was the sole proximate cause of the accident. The case was reversed and remanded.

Veteran airline mechanic entitled only to disability benefits based on federal minimum wage – North Carolina

In Myres v. Strom Aviation, an employee of an employment agency providing contract labor or temporary staffing to companies in the aerospace and aviation industry injured his ankle and a received 25% permanent partial disability rating. Several months after returning to work, he stopped working because of ankle pain. While working for the agency he received per diem payments as well as a wage. A deputy commissioner determined that the per diem payments were for business-related living expenses, not payments made in lieu of wages and the Court of Appeals agreed.

Without the per diem payments, his hourly rate of pay was $7.25, the federal minimum wage. Although the court recognized “it seems obvious that an aircraft mechanic with specialized training and over 20 years of experience would be paid far more than minimum wage,” it suggested the arrangement had benefits to both parties, but is a problem when an injury occurs.

Presumption of causal relation does not apply, but claims compensable – North Carolina

In Pine v. Wal-Mart Associates, a Wal-Mart employee tripped and fell and Wal-Mart accepted liability for injuries to her right shoulder and arm, but it denied liability for her other alleged medical conditions. The Industrial Commission said it was Wal-Mart’s burden to prove all the injuries were not causally related to her fall, since Wal-Mart had accepted liability for the injury to the right shoulder and arm.

This past summer the General Assembly abrogated the Supreme Court’s decision that an admission of compensability by an employer gives rise to a presumption that additional medical treatment received by a worker is causally related to the compensable injury. The Court of Appeals said the statutory amendment applied to this case, since the amendment applied to all claims “accrued or pending prior to, on, or after” the date on which the amendment became law. However, the court, in a divided opinion, found that the worker proved her injuries were causally related to her accident.

Terms of settlement extend employer’s obligation to treatment of condition it did not accept – Pennsylvania

In Haslam v. WCAB (London Grove Communication) an employee suffered multiple injuries and the company entered into an agreement accepting liability for fractures of the right and left feet, and it settled the indemnity portion of workers’ compensation claim for a lump sum of $110,000. The employee was taking compound medication prescriptions for complex regional pain syndrome and the company filed a request for a utilization review (UR), since this was a condition for which it had not accepted liability.

After a series of appeals, the Commonwealth Court ruled the UR process is the proper method for determining whether disputed treatment is reasonable and necessary, but it is not the proper method to determine the cause of an injury or condition shown in a settlement agreement. The court explained that once a settlement agreement is approved by a WCJ, it is final and binding on the parties, unless there is fraud, deception, duress or mistakes.

The court wrote, “In this case, Employer accepted responsibility for treatment for Claimant’s fractured feet. Thereafter, Claimant sought treatment for pain in those feet. There exists an obvious connection between the injury and the pain. For Employer to avoid responsibility for the medical expenses resulting from treatment of the pain in Claimant’s feet, Employer must prove that the treatment is for an injury that is distinct from the acknowledged injury.”

Retaliation claim fails when employee cannot prove he intended to file comp claim – Pennsylvania

In Runion v. Equipment Transport, LLC, a federal district court construing Pennsylvania law, found that a former employee, who undisputedly suffered a work-related injury, had not established a prima facie case of retaliatory discharge. He had not filed a workers’ comp claim and the employer contended the dismissal was on unrelated grounds. While the former employee argued he had told his employer he intended to file a claim, he offered no support to corroborate his claim. In denying the retaliation charge, the court relied on findings in an earlier case that the worker must (1) report the work-related injury and (2) express the “intent to file” a workers’ compensation claim to the employer in order to trigger the protection of the public policy exception.

Award for disability and last employer’s liability for 90% upheld – Tennessee

In Gibson v. Southwest Tennessee Electric Membership Corp., an employee injured his back, reached a settlement, and returned to work. He continued to experience pain and a few months later his doctor took him off work and declared him to be permanently disabled. When a petition to modify his settlement was filed, a trial judge found the combined effects of his injury and pre-existing medical conditions permanently and totally disabled him. The judge assessed 90% of the liability to Southwest, and the remaining 10% to the Tennessee second Injury Fund and the Supreme Court’s Special Workers’ Compensation Appeals Panel agreed. In so doing, it noted that he is no longer able to walk for exercise, that he cannot work, that he takes pain medication and muscle relaxers, and that he has no other vocational skills or training, but he was able to work with no restrictions prior to his injury.

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OSHA watch

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

While the preliminary list of the Top 10 violations for Fiscal Year 2017 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) – 6,072
  2. Hazard Communication (1910.1200) – 4,176
  3. Scaffolding (1926.451) – 3,288
  4. Respiratory Protection (1910.134) – 3,097
  5. Lockout/Tagout (1910.147) – 2,877
  6. Ladders (1926.1053) – 2,241
  7. Powered Industrial Trucks (1910.178) – 2,162
  8. Machine Guarding (1910.212) – 1,933
  9. Fall Protection – Training Requirements (1926.503) – 1,523
  10. Electrical – Wiring Methods (1910.305) – 1,405

Enforcement policy for construction silica standard announced: 30-day grace period

A memorandum explaining how the enforcement for the construction silica standard would proceed was issued shortly before the effective date of Sept. 23, 2017. For the first 30 days of enforcement employers who, in good faith, are trying to comply with the requirements of the standard but are unable to reduce exposures below the new permissible exposure limit or are unable to fully comply with Table 1 will not be issued citations. Instead, they will receive “compliance assistance and outreach.”

If during an inspection it appears that an employer is not making any efforts to comply with the standard, air monitoring will be conducted and citations may be issued. Additionally, the memorandum notes that inspection and citation guidance for its compliance officers and a compliance directive will soon follow.

One-year delay on crane operator certification requirements sought

In 2010 a final rule regulating cranes and derricks in the construction industry, Cranes and Derricks in Construction, Subpart CC (29 C.F.R. 1926.1400, et al.) was promulgated and set to go into effect in November 2014. After a public comment period and concerns expressed by stakeholders, the agency extended the crane operator certification requirements from November 10, 2014 to November 10, 2017. During this three-year period, the intention was to develop a new standard that addressed operator qualification requirements. It’s now proposed to further delay the November 10, 2017 deadline by one year to November 10, 2018 to address the stakeholder concerns.

New PSM guide focuses on petroleum refineries

A guide intended to help oil refineries comply with the Process Safety Management Standard (1910.119) makes recommendations for employers to review their PSM programs to ensure violations are not present, and suggests ways to avoid specific violations within each PSM area.

Latest ‘Fatal Facts’ examines fall from forklift-elevated pallet

Detailing the death of a full-time warehouse worker who was killed after falling seven feet from a pallet to a lower level, the latest Fatal Facts, warns employees and employers about the dangers of falling from pallets raised by forklifts and advises employers on how to prevent such fatalities.

MIOSHA offers kit, video to help medical and dental offices comply with regs

The Michigan Occupational Safety and Health Administration has released a toolkit and video to help doctors and dentist offices comply with state health standards. The kit includes a compliance checklist for applicable MIOSHA health standards, posters, sample templates for required written policies, and training programs. To download the kit, visit www.michigan.gov/miosha, click on “A to Z Topic Index” on the left side of the page and then scroll to the letter “D” to find a section for “Doctors/Dentist Office.”
Enforcement notes

California

  • Cal/OSHA issued five citations and $51,160 in penalties to Aero Pacific Corp. in Placenta for safety violations after a worker was struck and killed by a moving spindle. Inspectors determined that, among other violations, the company failed to identify and correct machinery hazards in the workplace, and train workers on the control of hazardous energy.
  • Cal/OSHA issued five citations and $68,435 in penalties to RWC Building Products in San Marcos following the death of a worker who fell from a truck-mounted conveyor belt. Inspectors concluded that the company failed to ensure that workers were wearing approved personal fall protection equipment while unloading material onto a roof, did not perform periodic inspections to identify unsafe conditions and work practices at job delivery sites, and failed to provide effective training for supervisors to recognize safety and health hazard.

Florida

  • Following an inspection initiated by a complaint of unsafe work conditions, Hometown Foods USA dba Bagelmania Inc. in Medley was cited for 16 safety and health violations, including failing to ensure proper machine guarding on equipment, provide personal protective equipment, develop a lockout/tagout program, and develop a hearing conservation program. Proposed penalties are $129,145.

Illinois / Georgia

  • The Chicago facility of Atlanta-based BWAY Corp., a manufacturer of rigid metal, plastic, and hybrid containers, is facing $503,380 in proposed penalties and has been placed in the Severe Violator Program after four separate reports of employee injuries, three of which involved amputations. Included in the violations were repeated citations for failing to train workers in lockout/tagout procedures that prevent unintentional machine movement and inadequate machine guarding on a mechanical power press, belts and pulleys, and chains and sprockets.

Minnesota

  • Minnesota OSHA issued three citations and $184,100 in penalties to Visu-Sewer Inc., in Saint Paul for safety violations when a worker was fatally injured after becoming entangled in sewer lining equipment. Inspectors determined that the company failed to train workers in the recognition and avoidance of unsafe conditions, did not equip a hydraulic roller to cut off power, and allowed workers to use equipment modified from the manufacturer’s specifications for safe operation.

Nebraska

  • An administrative law judge of the OSHRC affirmed in part and vacated in part citations against a residential roofing contractor, Papillion-based Elite Builders Inc., that claimed the citations were issued with vindictive motivation and with an improperly executed warrant. The company was inspected twice and on the second inspection, it refused entry to the site and told the inspector to get a warrant. The judge rejected the arguments about the validity of the warrant and vindictive prosecution, but found the agency failed to prove the company did not provide adequate fall protection training as well as violations related to scaffolding construction and guardrails.

Pennsylvania

  • The OSHRC upheld a willful safety violation and vacated another violation in an incident that caused a four-story freestanding wall to fall on top of an adjacent Salvation Army retail store, killing six people inside and injuring 12 others. After the contractors were prosecuted criminally, the Commission settled the case with the general contractor, and then addressed the contractor who did the demolition. The central issue of the case was whether the contractor, Mr. Benschop, was an employer with an employee at the worksite or an employee of the general contractor. The Commission found that he was an employer and had willfully placed his employee in danger, but it applied a 20% discount to the penalty due to the small size of the employer, resulting in a final assessed penalty of $56,000.

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HR Tip: Enforcement of joint employer liability for temporary worker safety remains strong

While OSHA has moved away from an enforcement-based strategy on many initiatives, OSHA’s deputy director of the Directorate of Enforcement Programs made it clear at a recent conference that the agency is continuing to enforce joint employer liability for temporary worker safety and plans to issue more guidance for employers. The agency conducted nearly 600 inspections of workplaces with temporary workers in fiscal year 2016 and is continuing to conduct these inspections.

In addition, in every inspection compliance officers are directed to look for the presence of temporary workers and the unique hazards they are exposed to. OSHA has issued seven bulletins providing guidance to employers as part of the temporary worker initiative on injury and illness record-keeping requirements, personal protective equipment, whistleblower protection rights, safety and health training, hazard communication, bloodborne pathogens, and powered industrial trucks training.

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Hurricane recovery: Workers’ Comp implications

Be sure your employees are covered when going out of state to assist with recovery

The requirements for Workers’ Comp vary by state and the important message here is that if you have employees traveling out of state you want to be sure you have the correct states on the policy. You should work with your agent to add any new states and projected payroll to your active policies.

Florida issues bulletin to alert contractors about Work Comp coverage

Recognizing that contractors coming to Florida to assist in cleanup efforts may be unfamiliar with the state’s workers’ compensation coverage requirements, Chief Financial Officer Jimmy Patronis’ office issued a bulletin this month outlining the requirements.

Dealing with unknown hazards

Workers who are assisting with recovery may be asked to perform tasks that are outside the scope of their job description or encounter unfamiliar hazards. Working on roofs, in contaminated water, in confined spaces, dealing with electrical outages and fallen trees, structurally deficient buildings, are just some of the many hazards they can face.

The big thing is keeping the workers safe. Even though this is a thousand-year event, employers have the same responsibility to provide a safe workplace for their employees as they do under normal conditions. Having the proper PPE and training is critical as they deal with many unknowns such as the contaminated floodwaters. Day laborers and other temporary workers need to be oriented and trained.

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