Legal Corner

Workers’ Compensation 

WCAB does not have authority to overturn award of medically necessary housekeeping services – California

When housekeeping services are requested by a physician and are reasonably required for an injured worker, they qualify as medical treatment. As such, the Court of Appeals for the 2nd District ruled that if a physician makes a request for a medical treatment, an employer cannot deny it unless a utilization reviewer determines that it is medically unnecessary.

In Allied Signal Aerospace, Constitution State Service Company v. Workers’ Compensation Appeals Board and Maxine Wiggs, the injured worker was receiving housekeeping services twice a month, but the physician requested a change to every week. The company submitted the request to utilization review. The reviewer found the more frequent schedule was not medically necessary. However, the WCAB supported a judge’s ruling to submit the records to a registered nurse who had made an earlier assessment of need for review.

The 2nd DCA vacated the WCAB’s ruling noting that since there was no stipulation to displace the provision of housekeeping from the UR-IMR process, the WCAB had no jurisdiction to review the medical necessity and reasonableness of service.

Exclusive remedy bars personal injury claim by firefighter kicked in the groin by supervisor – California

In Tibbett v. Los Angeles County Fire Department an appellate court affirmed a jury’s ruling that a firefighter’s unintentional injuries were barred by the exclusive remedy of workers’ compensation. The incident occurred when the firefighter complained to a supervisor about how a situation with a hostile victim was handled. The fire captain said he was showing a maneuver to keep volatile patients away by obstructing their vision, but the firefighter moved and he kicked him in the groin with a steel-toed shoe.

The firefighter had emergency surgery to remove his left testicle and underwent more surgeries that rendered him sterile. The court agreed with the jury, finding the fire captain did not intend to harm the firefighter; therefore, workers’ comp was the exclusive remedy.

Challenge to the presumption of correction for the opinions of EMAs rejected – Florida

In De Jesus Abreu v. Riverland Elementary School, the 1st District Court of Appeal rejected a constitutional challenge to the statutory presumption of correctness for the opinions of expert medical advisers (EMA). The employee suffered a compensable injury to her shoulder and an arthroscopic shoulder surgery was performed to address a partial rotator cuff tear.

While the physician deemed she had reached MMI, she continued to report pain and she sought care from an unauthorized orthopedic physician who recommended further surgery. The company authorized another orthopedist, who did not recommend further surgery. However, the employee obtained an IME from a doctor who thought surgery was appropriate.

Because of the conflicting opinions, a JCC appointed an EMA who opined that no further surgery was recommended or medically necessary. The JCC denied surgery because state statutes provide that the opinion of an EMA is presumed to be correct unless there is clear and convincing evidence to the contrary.

The employee appealed, arguing that the presumption improperly usurps the rulemaking authority of the state Supreme Court and that the presumption interferes with the executive branch’s ability to fairly adjudicate workers’ compensation claims. The court disagreed.

Restaurant manager shot in off-hours robbery can receive benefits – Georgia

In Kil v. Legend Brothers, the Court of Appeals overturned a denial of benefits to a restaurant manager who was shot as he was arriving home from work with the day’s receipts, which he regularly reviewed when he got home. The worker lived with the restaurant owner and his coworker. When he arrived home with his coworker, they were attacked by three men who demanded money. When the attackers realized the worker had a gun, they fled, but shot him in the forearm and he has not been able to work.

Both an administrative law judge and later the state Board of Workers’ Compensation awarded him comp benefits, ruling that his injury arose within the scope and course of employment. However, a state superior court reversed, finding that he was not at work at the time of the armed robbery and shooting-that he was home and that he was shot because he had a gun, which “had nothing to do with performing his duties for his employer.”

The Court of Appeals disagreed, noting one of the worker’s key job responsibilities was to spend around an hour every day going over the restaurant’s daily sales, receipts, accounts and inventory and that he was continuing his duties as manager.

Insurer must pay for injuries despite misinformation in policy – Georgia

In Grange Mutual Casualty Co. v. Bennett, several mistakes were made when an insurance agent took the company’s business information from its policy with a former insurer. She misclassified the company that was a construction company involved in greenhouse repair and maintenance as providing janitorial services and erroneously noted that employees did not travel out of state and that workers did not perform work above 15 feet. While the owner signed the policy, there was a dispute whether it was complete at the time.

When an injury that occurred out of state was denied, the company told the agent the policy had to be changed because most of its business was out of state. When the insurer learned more about the business operations it said it would not have issued the policy if the application had correctly stated that the company operated in 30 states because Grange Mutual was not licensed to issue policies in all of those states. It sent a cancellation notice but gave the company 90 days to find an alternative.

In less than 90 days, another worker was injured out of state, suffering extensive injuries in a truck accident. An administrative judge held that Grange Mutual’s policy covered the employee’s injuries and that by agreeing to pay for workers’ comp claims under the laws of Georgia, the Georgia-based company’s workers were covered even when out-of-state. Further, an appellate court held that Grange Mutual waived its void policy defense when, after discovering the inaccurate information on the application, it informed the company that its coverage would continue for 90 days. The court said that if the insurer “believed that the policy was void based on fraud, it should have immediately rescinded it.”

Borrowing employer’s immunity from tort liability not dependent on insurance – Illinois

In Holten v. Syncreon North America, an appellate court ruled that a temporary staffing service’s employee could not pursue a negligence suit against his borrowing employer for work injuries. The worker received comp benefits from the staffing agency for injuries resulting from a forklift accident, but filed suit against the borrowing employer, asserting its negligence had led to his injuries.

The state Workers’ Compensation Act provides that the lending and borrowing employers are jointly and severally liable for workers’ compensation benefits, but both do not have to provide the insurance. As long as one of the employers pays benefits, both have civil immunity. The immunity springs from the borrowed-employee relationship itself.

Employee can sue Canada – Massachusetts

Federal law immunizing foreign governments from liability does not protect Canada from being sued as an uninsured employer under the state’s workers’ compensation statute for injuries suffered by a consulate employee in Boston, the 1st U.S. Circuit Court of Appeals ruled in a 2-1 decision. In Merlini v. Canada, the Court found that the Foreign Sovereign Immunities Act provides an exception to immunity for a foreign state that engages in a “commercial activity.” The court said Canada entered into a contract for commercial services by hiring Merlini and failed to carry workers’ comp insurance as required of commercial employers in the state.

Worker who resigned after injury can collect unemployment – Minnesota

In Interplastic Corp. v. Rausch, a long-time employee injured his back and was transitioned to a lower job but received the same wage and accompanying pay raises over the next three years. He was then notified his wage was being reduced to align with the position and he was ineligible for future raises. About the same time, the workers’ compensation claim was settled and he received a $25,000 payout and agreed to “voluntarily terminate his employment.”

When he applied for unemployment benefits, he was denied because he had voluntarily quit. However, a three-judge appellate court panel affirmed an unemployment law judge’s decision that a substantial pay reduction, the lack of future earnings potential, and the claim settlement allowed the worker to fall under the state’s statutory exception for unemployment eligibility.

Worker’s manufacture of meth does not forfeit comp benefits – New York

In Robert Stone v. Saulsbury/Federal Signa et al., an appellate court ruled that a worker’s conviction for manufacturing methamphetamine did not forfeit his entitlement to benefits for two industrial injuries. The court upheld the WCB ruling that the man who had been collecting indemnity benefits for a compensable injury prior to his conviction and incarceration did not violate state workers’ compensation laws when he became involved in the production of illegal drugs.

The insurer contended that the manufacture of methamphetamine constituted “work”. The court disagreed, “substantial evidence supports the Board’s finding that the conviction alone is insufficient to establish any work activity by claimant or that he received any type of remuneration.”

Denial of occupational disease does not prevent new theory of accidental injury – New York

In Matter of Connolly v. Covanta Energy Corp., an appellate court reversed the state Workers’ Compensation Board’s finding that a worker suffered from an occupational disease (allergic bronchopulmonary aspergillosis) and remitted the matter to the Board for further proceedings. However, this would not prevent the worker from arguing an accidental injury claim on essentially the same facts. After remand, the Board was free to consider the new theory for the claim.

Elimination of labor attachment requirement for PPD not retroactive – New York

In Matter of the Claim of Scott v. Visiting Nurses Home Care, a worker who was classified as having a permanent partial disability, was found to have voluntarily withdrawn from the labor market and benefits were suspended twenty-two years after her injury. In 2017, the law was amended to provide that proving attachment to the labor market was no longer necessary for permanent partial disability compensation.

After the amendment took effect, she filed a request for reinstatement of benefits. A law judge, the Board, and the Appellate Division’s 3rd Department all agreed that the amendment did not apply retroactively.

Failure to mention side business not fraud – New York

In Matter of Permenter v. WRS Envtl. Servs. Inc., a truck driver’s failure to disclose his involvement in an online and retail flower business was not the sort of misrepresentation that should disqualify him from receiving workers’ compensation benefits according to an appellate court ruling. The employee had freely admitted that he owned a company engaged in the flower business, but the employee did not consider it work because it was not profitable.

Termination of benefits OK for a minor physical deformity, but no physical impairment – Pennsylvania

In Paolini v. Delaware County Memorial Hospital, the Workers’ Compensation Appeals Board held that the workers’ compensation judge (WCJ) did not err in awarding benefits to a nurse who sustained physical injuries and post-traumatic stress disorder as a result of a dog bite while performing a home visit. Her doctor provided unequivocal medical testimony that she had sustained PTSD as a result of her work injury, even though her Facebook page showed her swimming and parasailing.

However, the board reversed the WCJ’s denial of the employer’s termination petition, as the employer’s examining physician found that although the nurse had slight discoloration and subjective, mild numbness, she had fully recovered from the physical dog bite.

Injuries incurred on railroad bridge not covered by longshore comp – Virginia

In Muhammad v. Norfolk Southern Railway Co., a three-judge panel of the 4th U.S. Circuit Court of Appeals reversed and remanded a district court’s holding that the worker’s negligence claim was barred by the exclusive remedy under the Longshore and Harbor Workers’ Compensation Act (LHWCA). While working on a bridge that crosses a navigable river, a portion of the walkway collapsed beneath the employee and he sustained serious injuries.

He filed suit against the railway, asserting a negligence claim under the Federal Employers Liability Act, but the company argued the claim was subject to the LHWCA. The district court agreed, finding repairing and rebuilding the bridge was an “essential and integral element” of the maritime traffic flowing under the bridge, therefore, his work constituted as engaging in maritime employment.

Upon appeal, the 4th U.S. Circuit Court of Appeals reversed and remanded the district court’s decision. It noted that the LHWCA requires employee work “upon navigable waters” and that a bridge would not be covered by the statute.

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

OSHA watch

Controversial ruling on Process Safety Management Standard being appealed

A controversial ruling by the Occupational Safety and Health Review Commission (OSHRC) that extended the Process Safety Management Standard beyond hazardous chemicals has been appealed by Oklahoma-based Wynnewood Refining Co. LLC and its successors, the refinery at the center of the ruling. The OSHRC affirmed citations under the standard, even though the explosion occurred at one of the refinery’s boilers, an onsite utility operation workplace that safety and legal experts say is typically not included in process safety management.

The case was appealed to the 5th U.S. Circuit Court of Appeals.

Free online course on preventing workplace violence

The Muskie School at the University of Southern Maine launched a free online programto train retail workers and employers on preventing and responding to violence in the workplace. The course offers tips on how to respond to violence or the threat of violence by reading body language and using de-escalation techniques, and how to establish a workplace violence prevention program. Participants may register and complete the training at their own pace.


New resources

Alerts:

Webpages:

Flyer:


Solar panels do not qualify as roofing work

The United States Court of Appeals for the Ninth Circuit in San Francisco denied a petition to review an Occupational Safety and Review Commission’s final order affirming a citation for violating fall protection standards. Bergelectric was hired to install solar panels on the roof of a hanger in San Diego and argued that the installation was on a low-sloped roof, which has laxer standards than work on unprotected sides and edges. The court determined that the installation of solar panels did not qualify as performing “roofing work” and so Bergelectric violated the fall standard because they failed to use personal fall arrest systems, safety nets or guardrails.


Enforcement notes

California

  • USF Reddaway Inc, a trucking company received four citations and $68,438 in penalties after a worker was fatally struck by a tractor at a truck terminal. Inspectors found that the company failed to ensure operators were competent to operate terminal tractors and did not implement traffic controls.
  • Anaheim-based Nexus Energy Systems Inc., a solar panel installer, faces fines totaling $193,905 for multiple serious workplace safety hazards, including failure to provide fall protection for its employees. One worker fell and suffered a broken wrist and jaw.
  • Hanwha L&C USA, LLC received eight citations and $52,705 in penalties after a forklift crushed a worker’s foot. Citations related to training and evaluating workers.

Florida

  • GA&L Construction Corp. Inc. and The Rinaldi Group of Florida LLC were cited for failing to protect employees from fall hazards after a fatal fall at a construction worksite in Miami. The two companies face $87,327 in penalties.
  • Duda Farm Fresh Foods Inc., based in Belle Glade was cited for exposing employees to workplace safety hazards after a worker required medical treatment due to an anhydrous ammonia leak in the farm’s packaging house. The company faces $95,472 in penalties. The inspection is covered under the National Emphasis Program on Process Safety Management Covered Chemical Facilities.
  • National discount retailer Dollar Tree Store Inc.was cited for exposing employees to safety hazards at its store on Southern Boulevard in West Palm Beach. The company faces $104,192 in penalties for exposing employees to struck-by, trip, and fall hazards due to unstable merchandise stacked in excess of 7-feet high in the path of an emergency exit.

Georgia

  • Evoqua Water Technologies LLC, based in Thomasville, was cited for failing to protect employees working in excessive heat. An employee suffered heat exhaustion and was hospitalized after working in direct sunlight and wearing required protective clothing during welding and fabrication work at a Key West, Florida worksite. The company faces $21,311 in penalties, including the maximum penalty allowed by law for the heat-related violation.
  • An appeals court denied a review of citations issued to Century Communities Inc. for a fatal electrocution at a residential construction site. Although none of its employees were exposed to the hazard, Century was cited under the multi-employer worksite policy.

Illinois

  • Residential homebuilder Florentino Rodriguez of DB Custom Carpentry LLC was cited for exposing employees to falls at a residential site in Wheaton. The contractor faces penalties totaling $196,905 for one serious and two willful safety violations.

Nebraska

  • Discount retailer Family Dollar Store was cited for safety violations at an Omaha store, including failure to secure compressed gas cylinders, follow manufacturer’s instructions when using electrical apparatus, ensure emergency exit doors remain unlocked, cover overhead lights, and allowing equipment to block an exit route. Proposed penalties are $302,147.

Pennsylvania

  • Energy Transportation LLC and MW Logistics Services LLC were cited for serious safety violations after a fatal fire at a natural gas processing plant in Houston. Energy Transportation LLC, the company contracted to clean lines and vessels at the plant faces penalties totaling $51,148. MW Logistics Services LLC, the host employer, faces $47,360 in penalties. Both were cited for violations of the PSM standard.

For additional information.

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

HR Tip: Depression and suicide: a growing workplace worry

It seems daily there are stories about the growing suicide rate and the national decline in health and mental well-being, particularly among young people. There’s no escaping the issue in the workplace; it mirrors that of the general population. While workplace suicide numbers are small, they are rising and are traumatic for everyone in the workplace.

According to Happify, a mental health app, workers’ mental well-being sank to a five-year low in 2018. The analysis of a half million people shows a correlation between age and depression, particularly among employees between the ages of 18-24 who experienced a rise of 39% in depressive symptoms over the past five years. Although the increase was lower (24%), Millennials, ages 25-34, also are a high-risk group. In contrast, older employees between the ages of 55-64 showed improvements in their mental health.

While this analysis did not examine whether the causes were internal or external to their employment, it notes that earlier research found younger adults tend to be more stressed and worried about job-related matters than older workers. It’s a transitional time, figuring out who they are and what they want to do with their lives, which can be challenging.

Further, CDC research identified white, middle-aged, and primarily rural as vulnerable populations. The report also identifies construction workers as high risk – more male construction workers take their lives than any other industry. Some attribute this to a high concentration of “alpha” males who are supposed to be particularly tough but face challenges of a high-pressure environment, a higher prevalence of alcohol and substance abuse, separation from families, and long stretches without work. In response to this problem, the industry has created the Construction Industry Alliance for Suicide Prevention.

Reducing the stigma of mental health is the number one thing companies can do. While it is a devastating moral and social issue, it also has serious economic implications for employers. Some of the signs to watch out for are increased tardiness and absenteeism, decreased productivity and self-confidence, inattention to personal hygiene, isolation from co-workers, agitation, and increased conflict among co-workers.

Educating employees to increase the awareness of the warning signs and providing resources to get help are key. A starting point is simply paying attention to people at work and asking how someone is doing. A new OSHA webpage also offers confidential resources to help identify the signs and how to get help.

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

Six studies: what does and doesn’t work to improve claims outcomes

Recently, there has been a plethora of studies related to claim outcomes in workers’ comp and group health, several with surprising conclusions. Here are six of them:

Workers’ Compensation Medical Prices and Outcomes of Injured Workers – Workers Compensation Research Institute (WCRI)

Study: This study addresses a long-standing policy debate about the role of workers’ compensation prices in outcomes of injured workers; specifically, what happens to outcomes of injured workers when prices increase or decrease. Survey data covered workers’ experiences across 14 states, and claims data provided information from across 30 states. It focused on the pricing of common office visits, which affect most injured workers, rather than specialty medical treatment prices that wouldn’t apply to all injured workers.

When examining the link between workers’ compensation prices and outcomes, the study focused on five specific outcomes:

  • Access to care
  • Nature of medical care
  • Change in physical health and functioning
  • Return to work
  • Temporary disability duration

Findings: There is a strong link between workers’ compensation prices and the first two outcomes – access to care and nature of medical care. For example, when workers’ compensation prices were relatively higher, workers were significantly more likely to receive physical therapy within the first six weeks of being injured and went to more office visits for evaluation and management services.

However, this did not have much of an impact on the last three outcomes. “While prices are related to measures of access to medical care and the nature of medical care provided, changes in these measures when prices increase are not material enough to result in improved recovery and faster return to work,” according to the report.

Takeaway: Factors other than price are important in shaping different outcomes. “Future studies may need to focus on other system features that may explain large differences in outcomes across states.”


Health Insurance and Outcomes of Injured Workers – WCRI

Study: The study provides new empirical evidence about workers with health insurance and what that means for workers after a work-related injury. Researchers surveyed injured workers in 15 states.

Findings: Injured workers with health benefits showed a 2.5% higher return-to-work and returned to substantial work on average one week faster than workers without health insurance. They received evaluation and management services more quickly, had higher rates of satisfaction with primary providers, and had lower rates of hiring an attorney for comp claims. However, there was little difference in the likelihood of workers reporting problems obtaining medical services, or in the kind of care received.

Takeaway: Workers’ comp historically was in one silo, with health programs in another. If you are still organized in traditional silos, it’s time to change. Smart companies have adopted a holistic approach to employee health to drive down costs, improve productivity, boost the bottom line, and help employees enjoy better health.


Effectiveness of a no-cost-to-workers, slip-resistant footwear program for reducing slipping-related injuries in food service workers: a cluster randomized trial – Scandinavian Journal of Work, Environment & Health

Study: This study evaluated the effectiveness of a no-cost-to-workers, slip-resistant footwear (SRF) program in preventing workers’ compensation injury claims caused by slipping on wet or greasy floors.Laboratory tests have shown that slip-resistant shoes designed with a special tread helped prevent slipping, but studies in actual workplaces were lacking. The study population was a dynamic cohort of food service workers from 226 school districts’ kindergarten through 12th-grade food service operations.

Findings: Food services operations where workers received free highly slip-resistant shoes showed a large reduction in workers’ compensation claims for slip injuries compared to food service operations where workers did not receive the shoes. School districts filed 67% fewer claims for slip injuries after being provided the slip-resistant shoes, compared to no reduction in claims for slip injuries at the school districts that did not receive the shoes.

Takeaway: Slips, trips, and falls are the third-leading cause of U.S. non-fatal work-related injuries involving days away from work across all industries. Almost 80% of these injuries are on the same level, and these injuries are estimated to cost nearly $13 billion in direct workers’ compensation-related costs annually. These results show that providing highly rated slip-resistant shoes can help reduce claims for slip injuries.


Opioids, Pain and Absence: The Productivity Implications of Substance Abuse Among US Workers – Integrated Benefits Institute

Study: The Oakland, CA-based research organization surveyed by phone 84,579 American workers over 18 years old between 2015 and 2017, with 74% of them reporting to be working full-time. The goal of the study was to examine productivity and days missed from work due to prescription drug use among workers.

Findings:

  • 33% of workers reported taking prescription painkillers.
  • Less than 1% reported any heroin use.
  • Rates of alcohol abuse and dependence exceed the problematic use of pain relievers and other prescription medications at 7% of the workforce interviewed.
  • Use of cocaine or methamphetamine was relatively uncommon, at less than 3% and 1%, respectively.
  • Excess work absences associated with pain relievers were greater than excess absences associated with any other substance. On average, non-problematic use of pain relievers was associated with 0.8 days of excess absences per month compared with non-users. The problematic use of pain relievers was associated with 2.0 absences, or 1.2 excess days per month compared with non-users.
  • Assuming a 20-day work month, the use of pain relievers was associated with a loss of about 1.3% of the monthly labor capacity of 1,000 workers. The non-problematic use of pain relievers accounted for 96% of those losses.

Takeaway: Managing pain is a major challenge in workers’ comp. The numbers are alarmingly high, suggesting a continued problem of over-prescribing and a workforce grappling with pain issues. Although a small percentage reported abuse of pain relievers or dependence, experts postulate that “problematic behaviors” such as addiction and dependence are likely to follow. Employers should be proactive in educating employees on the risk factors and nonpharmacologic approaches to pain and work with occupational medicine providers to help their employees prevent pain management from becoming abuse and improve productivity.


Association of Opioid, Anti-depressant, and Benzodiazepines with Workers’ Compensation Cost: A Cohort Study – Accident Fund (AF) Group

Study: This analysis evaluated the impact of benzodiazepines and antidepressants in combination with opioids on workers’ compensation claim cost and closure rates.

Findings: Concurrent treatment of chronic pain, depression, and/or anxiety and occupational injuries is associated with large increases in total workers’ compensation claim cost and delayed return to work. The slowest claim closure rate occurred among workers with prescriptions for all three types of medications (58.3%), followed by claims with both opioid and antidepressant (64.8%) prescriptions. The group without any medications had the highest closure rate (91.8%), followed by the group with only opioid (89.1%) prescriptions.

Even when controlling for age, chronic pain, medical complexity, and claim development (years), antidepressant claims, to a greater degree, were more likely to remain open at the end of the three-year study period.

Takeaway: The presence of anti-depressant medications on a claim is an indicator of a potentially costly claim. Early intervention is needed to minimize the impact of behavioral issues and psychotropic medications on workers’ compensation claim outcomes.


Integrated Physical Medicine at Employer-Sponsored Health Clinics Improves Quality of Care at Reduced Cost – Center for Primary Care and Outcomes Research, Stanford University, Crossover Health

 

Study: The aim of the study was to evaluate clinical and economic outcomes associated with integrating physical medicine in employer-sponsored clinics.

Findings: Integrating physical medicine in employer-sponsored clinics decreased wait times to access these services to 7 days (2 to 4x faster than in the community). Patients receiving care in employer-sponsored clinics experienced marked improvements in fear of pain avoidance behaviors (a strong predictor of disability) and functional status in eight fewer visits than in the community resulting in $472 to $630 savings/patient episode. Noncancer patients received 1/10th the opioid prescriptions in employer-sponsored clinics compared with the community (2.8% vs 20%). Patients were highly likely to recommend integrated employer-sponsored care (Net Promoter Score = 84.7).

Takeaway: Musculoskeletal complaints represent the second largest cause of short-term or temporary work disability, and employers bear a disproportionate share of these costs, including approximately 290 million lost workdays annually. While the study focuses on how larger employers can strengthen onsite or near-site clinics, it notes employers should consider policies to reduce barriers to accessing physical medicine services such as direct patient access, sufficient availability of appointments, and benefit designs that incentivize use of physical medicine services before elective imaging and specialist visits.

A strategy of early access to physical therapy has been associated with a 36% improvement in patient outcomes, 52% less imaging, 56% fewer spinal injections, 59% fewer lumbar surgeries, and 62% less opioid use.

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

“At-will employee” no defense for firing an employee after reporting a safety hazard

The U.S. District Court of the Eastern District of Pennsylvania recently denied an employer’s motion to vacate a jury’s award of punitive damages to a former employee of an iron-casting company who claimed he was terminated for reporting alleged safety and health hazards. When no corrective action was taken after he repeatedly complained about a roof leak that leaked directly into an electrical box and created a slipping hazard, he filed an anonymous complaint with OSHA.

The agency conducted an unannounced inspection and a few days later he was fired. He then filed a whistleblower complaint with OSHA that found Hamburg, Pennsylvania-based Fairmount Foundry fired him in retaliation for engaging in a protected activity under Section 11(c) of the Occupational Safety and Health Act. In Acosta v. Fairmount Foundry Inc., a jury awarded $40,000 for lost wages, pain and suffering and punitive damages to the former employee, Zachary Zettlemoyer.

The company argued the jury had not been instructed on at-will employment and another trial was warranted. But the court denied it. “Even if we gave an at-will employment instruction explaining Mr. Zettlemoyer could be terminated for any reason or for no reason at all, Fairmount Foundry could not have terminated him for engaging in protected activity,” the judge stated. “Fairmount Foundry does not explain how an instruction on at-will employment prejudiced it and, given our charge on the elements of a retaliation claim and pretext, we see no prejudice.”

Moreover, in response to a motion by the Department of Labor, the court awarded prejudgment interest on the $25,000 back pay award and ordered Fairmount Foundry to reinstate Mr. Zettlemoyer. It also permanently enjoined Fairmount Foundry from violating Section 11(c) and ordered Fairmount Foundry (to) expunge from Mr. Zettlemoyer’s personnel record any adverse reference to discharge on October 8, 2015; post a court-approved anti-retaliation notice in a common area for a period of sixty days; and provide a neutral reference regarding Mr. Zettlemoyer’s employment, if requested by subsequent employers.

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

Five mistakes employers make when using data to develop risk control programs

Data analytics is a key driver in the development of business strategy and workers’ comp claims are a goldmine of information. Yet, when not used properly, the results can fall far short of expectations. Here are five common mistakes:

  1. Relying solely on the insurance company Some employers rely solely on the insurance company to analyze their claims and make recommendations to prevent injuries and control costs. In recent years, insurance companies have beefed up their analytics and embraced predictive analytics to manage claims. They use information from years of past claims to build models that will predict what may happen next in a particular claim. Indeed, such information benefits employers.Insurance companies also are a great resource for claims information in your industry. They can provide helpful guidance for how you stack up versus your peers.But it’s important to have realistic expectations and remember that the insurance company’s goal is to leverage data to improve their profits. This can lead to aggregate information or a cookie-cutter approach that falls short of your needs.
  2. Data such as injured-worker demographics, department, type and severity of injury, frequency, timelines and money set aside for reserves of claims, and if the claim ends up in litigation can all help employers guide future outcomes. Smart employers regularly review their loss run reports from the insurance company that includes this information, not only to ensure it is correct (errors mean increased premiums) but also to identify trends that lead to actionable insights. What are the main drivers of incidents in the organization and what can we do to change are the key questions to ask in analyzing data.
  3. Observing metrics at face value Each year, Risk & Insurance identifies “All Stars” who stand out from their peers by overcoming challenges through exceptional problem-solving, creativity, perseverance, and/or passion. One of the 2018 All-Stars was Kevin Farthing, environmental health and safety manager for Florida-based Sparton Electronics, a 600-employee company manufacturing sonobuoys for the navies of the world.The company faced a high number of musculoskeletal injuries and annual workers’ comp claim costs exceeding $500,000. Multiple modifications to the production processes and attempts to control ergonomic risk factors had not solved the problem.Digging through the data, he discovered that 40 percent of the musculoskeletal injuries were occurring during the first three years of employment. The company was hiring workers who were not capable of performing the physical demands of the job.
  4. He then took the logical next step and worked with a company to design specific post-offer, pre-employment tests to make sure candidates were up to the physical challenges. But he did not stop there.
  5. The failure rate on the test was high – 50%. Rather than lowering the demands of the tests, he identified which tests individuals were failing most and modified the actual work tasks. For example, they no longer require employees to manually move certain types of heavy loads. Coupled with other changes, a two-year investment of $174,000 has yielded an expected savings of more than $950,000.
  6. Not being objective or hanging on to old beliefs Commitment to the status quo or leadership thinking may limit taking action on data. Some rationalize that the incident rate is acceptable and changes will mean lower production. Or a belief that “injuries are part of the job” or simple complacency. Buy-in from management can take effort and tenacity.For many years, it was believed (and documented) that inexperience and inadequate onboarding put younger workers at increased risk and they were more likely to suffer a workplace injury. On the other hand, older workers would experience fewer injuries but would take longer to recover and have more costly claims. Recent research from the National Council on Compensation Insurance (NCCI) dispels this conventional wisdom and finds that younger workers are getting injured less often than their older peers.The workforce is changing and processes are becoming more automated. While the number of workers under 55 has remained more or less stable, the number of workers who are 55 or older has doubled since 2000. Women make up more than half of labor force growth. Relying on old data or beliefs leads to ineffective and costly programs.
  7. Year-over-year analysis will show how claims are changing. This will tell you if initiatives are working or if a new direction is warranted.
  8. Failing to segment An important finding of the NCCI research was that key injury risks vary by age group. Younger workers are prone to injuries from contact with objects or equipment, while overexertion injuries are most vexing for employees in the middle of the age spectrum. Meanwhile, slips, trips and falls disproportionately affect those over 55.There’s clear value for employers to mine their own claim data correlating type of injury with age and gender of workers. When younger male workers are experiencing a higher incidence of injuries from contact with objects or equipment, a change to interactive and technology-based training, rather than a dry manual, could be an effective way to improve safety.It’s not just age subsets that can help employers to be tactical in the way they manage their safety budget. Comparing similar departments can identify why one department may be functioning at a higher level than the others and then apply the best practices to other departments.
  9. Not looking beyond the data Although there are many sophisticated data tools, programs cannot rely on data alone. There is a myriad of subjective factors that affect incident rates. Production pressure, management safety practices, limiting mind-sets, and fear of automation are just a few.These factors cannot be quantified with statistics. Instead, organizations need to have subjective methods to review these factors that represent the “heart” of their workers’ comp program.

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

 

Things you should know

‘Safety at Heights’: ISEA launches campaign on fall protection, dropped objects prevention

ISEA’s SafetyAtHeights.org website provides educational resources for employers and workers, including:

  • Facts about dropped objects and workplace deaths and injuries
  • A list of job hazards that workers and employers should be aware of
  • Downloadable PDFs of ISEA and ANSI safety standards
  • Links to more than a dozen online safety resources

Proposed rule to amend trucker hours-of-service regs slated for publication in June

A proposed rule intended to add flexibility to the Federal Motor Carrier Safety Administration hours-of-service regulations for commercial truck drivers will be published in early June, according to a Department of Transportation regulatory update released in May.

ISHN magazine publishes 2019 Readers’ Choice Award winners for best PPE and safety equipment products

For the seventh year in a row, the Industrial Safety and Hygiene News published its Readers’ Choice Awards for the best occupational health and safety products from 2019.

Stressed out: Survey shows almost half of workers have cried at work

Work-related stress has driven nearly half of full-time employees in the U.S.to tears, results of a recent survey, 2019 Behavioral Health Report, show. Researchers from Ginger, an on-demand behavioral health services provider, assessed more than 1200 workers’ experiences with behavioral health and their employer-provided benefits. 48% of survey respondents said on-the-job stress has made them cry at work. In addition, 83% said they experienced stress at work at least once a week.

Among workers younger than 40, 45% reported “extreme stress” – defined as experiencing stress on a daily basis. Women were more likely to cry at work, but 36% of men acknowledged crying at work because of stress. Generation Z and millennials are more likely to miss work because of stress.

Reattaching to work before clocking in may improve engagement, health: study

Visualizing and planning for your workday may lead to better engagement and well-being, results of a recent study indicate.

Food truck safety resources spotlight propane hazards

WorkSafeBC has published a safety bulletin and blog post intended to help food truck owners and workers avoid hazards associated with propane tanks.

State News

California

  • Findings from The Workers Compensation Research Institute (WCRI) CompScope Benchmarks for California, 19th Edition, showed higher litigation expenses than other states. Total costs per all paid claims were higher than most study states for 2015 claims with an average of 36 months of experience, mainly driven by a higher percentage of claims with more than seven days of lost time.

Florida

  • Florida Gov. DeSantis signed into law a bill that allows firefighters diagnosed with any of 21 types of cancer to receive disability and death benefits outside of the workers’ compensation system. Senate Bill 426 will allow firefighters to receive medical treatment for their condition with no out-of-pocket expenses.
  • The WCRI CompScope Benchmarks for Florida, 19th Edition, shows that two 2016 Supreme Court decisions continue to affect the workers compensation system, but despite an uptick in indemnity benefits per claim, the comp system costs are in line with other states. The cost driver for the increase in indemnity benefits was a jump in lump-sum settlement payments per claim.

Illinois

  • The Workers’ Compensation Commission launched a new case docket website, which was built to work on mobile devices and tablets.
  • The Governor has signed into law Senate Bill 1596, which will allow tort claims to be filed after the state’s occupational-disease statute of limitation expires.
  • The WCRI CompScope Benchmarks for Illinois, 19th Edition, shows the average total cost of a workers’ compensation claim remained higher than most states, driven by high attorney involvement and high medical-legal costs. The report also shows more lump-sum settlements than most other states, and the share of claims paid in lump sums continues to rise every year.

Indiana

  • A new law, H.B. 1341, increasing the maximum penalty to $132,598 from $70,000 for each worker death resulting from an employer knowingly violating safety regulations, goes into effect July 1.

Massachusetts

  • Two key deadlines critical to the implementation of the Massachusetts Paid Family Medical Leave law (PFML) have been extended. Employers have until June 30, 2019 to provide written notice to covered individuals of their rights and obligations under the PFML. Also, businesses will now have until September 20, 2019 to file an application for a private plan exemption.
  • Massachusetts’ workers’ compensation fraud investigators in 2018 referred 256 cases for prosecution, the most ever in a single year, according to a local news station.

Michigan

  • Medical marijuana is now available to patients immediately after receiving online approval. The approval email may be used as a temporary substitute for a valid registry card in order to obtain their medication.
  • Michigan’s attorney general launched a new enforcement unit to prosecute worker misclassification and wage theft by employers.
  • Michigan State University College of Human Medicine has launched a campaignintended to raise awareness of work-related asthma.

Minnesota

  • The Workers’ Compensation Division released a draft of the latest implementation guideline for its electronic data interchange, which is expected to be mandated in August 2020.
  • Minneapolis’ Sick and Safe Ordinance extends to any employee who performs at least 80 hours of work per benefit year in the City of Minneapolis, even if his or her employer is not located within the city’s limits, the Minnesota Court of Appeals has held in Minnesota Chamber of Commerce v. Minneapolis.

Missouri

  • The Department of Labor and Industrial Relations Division of Workers’ Compensation (DWC) continues to expand the use of Box Account, a virtual mailbox. The Attorney General’s Labor Unit recently began using Box to file Answers to Workers’ Compensation Claims filed by injured state employees.

New York

  • New York City has enacted a law prohibiting New York City employers from requiring prospective employees to submit to testing for the presence of tetrahydrocannabinol (THC), the active ingredient in marijuana. The new law, the first of its kind in the United States, became effective on May 10, 2019.

Pennsylvania

  • The WCRI CompScope Benchmarks for Pennsylvania, 19th Edition, showed the average total cost of a workers’ compensation claim is among the highest of 18 states studied, with litigation costs a key driver of higher overall benefit delivery expenses.

Tennessee

  • A new amendment to Tennessee’s Healthy Workplace Act may offer employers protection from lawsuits for mental anguish. The new amendment became effective April 23rd when Governor Bill Lee signed H.B.856 into law expanding coverage to include private employers.

Wisconsin

  • By executive order, the Governor has authorized the creation of a joint enforcement task force on payroll fraud and worker misclassification. The DWD’s Worker Classification website is available here.

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

Things you should know

CDC: Half of workplaces offer health/wellness programs

Almost half of all U.S. worksites offered some type of health promotion or wellness program in 2017, according to a new study, Workplace Health in America 2017. This was the first government survey of workplace health promotion programs in 13 years.

Nationally, almost 30 percent of worksites offered some type of program to address physical activity, fitness, or sedentary behavior. Some 19 percent of worksites offered a program to help employees stop using tobacco products, and about 17 percent of worksites offered a program to address obesity or weight management.

FMCSA delays publication of proposed rule to amend trucker hours-of-service regs

The Federal Motor Carrier Safety Administration (FMCSA) has delayed until further notice the publication of a proposed rule intended to add flexibility to hours-of-service regulations for commercial truck drivers. The proposed rule remains under the Office of Management and Budget review.

NLRB gives employers greater discretion to limit union activity on their premises

The National Labor Relations Board (NLRB) recently issued a decision in UPMC Presbyterian Shadyside that reverses a longstanding precedent and holds that employers no longer have to allow nonemployee union representatives access to public areas of their property unless (1) the union has no other means of communicating with employees or (2) the employer discriminates against the union by allowing access to similar groups.

Study: Energy drinks take toll on heart health

Popular caffeine-packed beverages could affect heart rhythm, according to a new study. Research findings of a recent study published in the Journal of the American Heart Association (AHA) confirm the short-term risk consumers take when consuming energy drinks. Drinking 32 oz. of an energy drink in a 60-minute timeframe directly affected the heart rhythm of the study’s participants, a result bolstered by previous research.


State News

California

  • The Workers’ Compensation Appeals Board is planning to reorganize its Rules of Practice and Procedure, and is seeking comments from system users about other changes that it should consider. Comments can be sent to WCABRules@dir.ca.gov.

Georgia

  • A new law, the Georgia Long-Term Care Background Check Program will take effect Oct. 1, requiring nursing home and other long-term care workers to submit to extensive background checks.

Illinois

  • Illinois became the 11th state to legalize recreational marijuana.

Massachusetts

  • More changes to three key deadlines for the Paid Family Medical Leave (PFML) law.
    • September 30, 2019 – Employers and covered business entities are required to post a notice and provide written notice to their current workforce.
    • October 1, 2019 – Payroll withholdings begin for the October 1 to December 31 quarter.
    • December 20, 2019 – Deadline to file for a private plan exemption for first quarter contributions.
    • January 31, 2020 – First quarterly contribution payment due through MassTaxConnect.

Michigan

  • The governor issued an executive order creating a separate workers’ compensation appeals commission. The action separates the Unemployment Insurance Appeals Commission from the Workers’ Disability Compensation Appeals Commission.

Minnesota

  • Enacted detailed new recordkeeping requirements for employers, effective July 1, 2019, and wage theft protections for employees, effective August 1, 2019. For more information.
  • Department of Labor and Industry is urging all employers to examine their safety programs, after a spike in reported amputations this year.

Missouri

  • Department of Labor is offering confidential safety and health consultations aimed at helping employers build safer workplaces. Businesses must have no more than 250 employees at any one site, and fewer than 500 total employees, to qualify.

New York

  • The Workers’ Compensation Board formally adopted its drug formulary and prescribing rules for injured workers, set to go into effect Jan. 5, 2020.

Tennessee

  • Rejecting the strict “ABC” test adopted by its appellate court, that state has enacted a new law (H.B. 539) adopting a 20-factor test to determine employee-versus-independent contractor status. The new law becomes effective January 1, 2020.
  • An NCCI study found that prescription drug utilization decreased across all categories, regardless of whether they required prior authorization. After the Official Disability Guidelines Workers’ Compensation Drug Formulary was adopted, the utilization of N-drugs, which require prior authorization, dropped by 23.2%.

Virginia

  • On July 1, 2019, a new amendment to Virginia Code Section 8.01-413.1 will take effect, requiring all employers to provide copies of employment records to employees upon written request.


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

Legal Corner

Workers’ Compensation 
Determining catastrophic injury under Labor Law – California

Enacted six years ago, Labor Code 4600 was designed to limit additional impairment (referred to as “add-ons”) for psychiatric injuries to cases involving a “catastrophic injury.” Yet, catastrophic injury was not defined. Clarification is provided in a recent case, Wilson v. State of California Department of Forestry and Fire Protection.

Ultimately, it is a factual issue for a judge to determine if the nature of the injury is catastrophic. The court gave specific examples such as the loss of a limb, paralysis, a severe burn or a severe head injury, but noted this was not an exhaustive list. It provided a list of factors that should be considered in making the final determination, including the extent of the treatment needed for the injury, ultimate outcome when the employee’s physical injury is permanent and stationary, severity and impact on daily living, and if the physical injury is an incurable and progressive disease. However, other factors may apply and each case will be determined based on the facts.

Tesla settles personal injury lawsuit with janitor for $13M – California

In the case, Teodora Tapia v. Tesla Motors, a janitor at Tesla’s Fremont assembly plan suffered serious and permanent injuries to her lower extremities and body when she was struck and pinned by a vehicle being moved by a temporary worker, who was not certified to drive the Tesla. While the staffing agency, West Valley will pay much of the $13M settlement, Telsa was a joint employee and will pay a portion.

Failure to provide notice of selection of IME nixes benefits – Florida

In Izaguirre v. Beach Walk Resort, a compensation claims judge denied benefits after striking the report of the injured worker’s independent medical examiner (IME). While the worker admitted she had not provided timely notice of the selection of an IME, she argued that the exclusion of the evidence is discretionary. But the 1st District Court of Appeal noted the statute says the failure to timely provide notification shall preclude the requesting party from submitting the IME findings before a JC. The word ‘shall’ connotates mandatory.

Employee cannot sue employer for failure to provide access to medical care – Georgia

In Savannah Hospitality Servs. v. Ma-010 Scriven, an appellate court ruled an employee’s negligence claim against his employer for allegedly denying him access to medical care and insurance coverage following an injury in a vehicular crash is barred by the exclusive remedy provisions. While it was disputed whether the employee was acting in the scope of the employment at the time he was injured, the court said the relevant issue was the aggravation of those injuries by the employer’s alleged negligence in failing to provide access to medical insurance coverage and precluding the employee from seeking a professional medical opinion.

In Georgia, case law supports the argument that if employment aggravates a pre-existing injury, it is a new accident and compensable. Thus, triggering the exclusive remedy defense.

61-page decision details the difference between an employment-related risk and a neutral risk – Illinois

In McAllister v. IWCC (North Pond), a sous chef knelt down in a walk-in cooler while looking for carrots and felt his knee pop when he stood, which required surgery. An arbitrator found the claim compensable, but the Commission found it was not an employment-related risk and denied benefits.

Upon appeal, a majority of the appellate court said that an employment-related risk is one that is distinctly associated with employment. It can fall into one of three categories – employee performing acts as directed by employer; acts the employee has a common law or statutory duty to perform; and acts incidental to duties that an employee might be reasonably expected to perform.

If a worker is injured in an employment-related risk, it is unnecessary to determine if the exposure to risk of injury is greater than the general public. However, if the risk is not employment-related, but is a neutral risk, an analysis should be done to determine if the risk is greater than that of the general public.

Notice of intent to appeal must be filed within 20 days – Illinois

In Conway v. IWCC, an injured school employee received notice of the Commission’s decision on Oct. 27, 2017, but did not file the notice of intent to petition for review until December 2017. The appellate court noted the statute requires a notice of intent to file a petition for review be filed with the Commission within 20 days of receipt of the commission’s decision, which would have been November 16, 2017.

Medical expert need not be a physician – Missouri

In Hogenmiller v. Mississippi Lime Co., an appellate court upheld an award of permanent partial disability benefits for tinnitus to a long-time factory worker based on the expert opinion of an audiologist, instead of the expert opinion offered by a medical doctor who specialized in otolaryngology. While the company argued that the audiologist based his opinion upon the subjective descriptions offered by the worker, the court noted there is no objective standard for diagnosing tinnitus, but awards have been issued on tinnitus claims based on subjective evidence.

Worker cannot back out of settlement even though there was no written agreement – New York

In Lenge v. Eklecco Newco, a construction worker filed suit against the general contractor and others alleging Labor Law § 241(b) violations and common law negligence. On the first day of the trial, his lawyer stated that the parties had agreed to a settlement of $325,000.

Later, after determining a workers’ compensation lien and a Medicare Set-Aside provision significantly reduced the recovery, the worker’s lawyer declared the settlement “null and void” because there was no written agreement. While a trial court agreed, the appellate court indicated that the stipulation by and among the parties formed an independent contract that would be enforced absent a showing of fraud, duress, overreaching, or unconscionability.

Going and coming rule nixes benefits for transit worker assaulted by passenger – New York

In Matter of Warner v New York City Tr. Auth, a transit worker was assaulted by a passenger as he disembarked from a subway, traveling to his home after the end of a work shift. He wore his official jacket, safetyvest, and hat that identified him clearly as a subway employee, but had clocked out about five minutes earlier. Since he had clocked out and was using the subway the same as any private citizen, the claim was barred by the going and coming rule.

$33M jury award in asbestos death case – North Carolina

In Finch v. Covil Corp., a district court upheld a nearly $33 million jury award granted to the widow of a long-time employee of a tire factory in Wilson who died from mesothelioma caused by asbestos exposure. She sued Covil Corp., a pipe insulation company, which had sold virtually all of the insulation, including the pipe insulation, used during the construction of the tire plant. While Covil argued there was insufficient evidence to support the verdict on liability and that the jury’s verdict was excessive, the court disagreed.

Denied workers’ comp, worker can proceed with medical negligence claim – North Carolina

In Jackson v. Timken Co., a worker filed a suit for medical negligence against his employer and the company nurse, asserting he had been incorrectly diagnosed and treated after a stroke at work. Previously, he had filed a workers’ comp claim but was denied because he did not sustain an injury by an accident arising out of and in the course of his employment.

A judge denied the company’s move to dismiss and the Court of Appeals explained that the Workers’ Compensation Act “does not cover injuries that occur at one’s place of work that are not the result of an accident arising out of and in the course of that person’s employment.” The nurse’s alleged failure to provide a proper diagnose could not be described as an “accident.” Thus, the case can proceed.

Imprisoned worker must continue to receive comp benefits – Pennsylvania

In Carl Sadler v. Workers’ Compensation Appeal Board (Philadelphia Coca-Cola), a divided Commonwealth Court ordered Philadelphia Coca-Cola Bottling Co. Inc. to recalculate and reinstate workers’ compensation benefits for a worker who was in prison following his injury. The worker was incarcerated a year after his injury for 525 days until his release at trial where he pleaded guilty and was sentenced to time served.

The worker argued his benefits were miscalculated because the figure did not include frequent overtime and state law provides that pretrial incarceration – incarceration because he could not afford bail – does not meet the “incarceration after conviction” stipulation allowing comp benefits to be withheld. While a judge and the Workers’ Compensation Appeal Board ruled in favor of Coca-Cola, the Commonwealth Court found merit in the worker’s argument. The case turned on the word “after” – the worker had not been incarcerated after the conviction.

Case to watch: Supreme Court to rule on retroactive application of Protz decision – Pennsylvania

The Pennsylvania Supreme Court is set to determine the extent to which workers who were still litigating their impairment rating evaluations when the justices issued their landmark workers’ compensation decision in ‘Protz’ are entitled to the benefit of that ruling. Last October in Dana Holding v. Workers’ Compensation Appeal Board (Smuck), the Commonwealth Court en banc ruled that the Protz II decision applied to cases in which IREs were still being litigated at the time of the decision and was retroactive to the date of the IRE, rather than the date of the Protz II ruling.

The court will rule on whether the Commonwealth Court erred in applying the rule from Protz retroactive to the date of the IRE instead of the date of the Protz decision and determine whether an employer is entitled to a credit for the period between the date of a worker’s impairment rating evaluation and the date of its decision in Protz.

Amazon worker’s injuries not job-related – Tennessee

In Ameenah House v. Amazon.com Inc., a worker at an Amazon.com Inc. warehouse in Charleston alleged she was injured in three incidents – a back injury, a forklift accident, and an assault by a coworker. The trial court and the state Workers’ Compensation Appeals Board denied her claim, stating that she did not provide adequate medical evidence that her injuries were related to her job.

Fear of hypodermic needles does not warrant change in physicians – Virginia

In Yahner v. Fire-X Corp., a worker had a normal MRI and a functional capacity evaluation expert opined that she had not sufficiently exerted herself during the exam and likely was exaggerating her symptoms. Her treating physician indicated the best type of continuing care would be injection treatments and she refused on the grounds that she didn’t “like needles.” The Court of Appeals affirmed a decision by the Workers’ Compensation Commission that denied her petition to change her treating physician; the doctor’s actions did not amount to a discharge.

“Sudden mechanical or structural change” requirement for compensation clarified – Virginia

In Alexandria City Pub. Schs. v. Handel, a teacher slipped and fell in her classroom and asserted she had suffered injuries to her right ankle, knee, hip, shoulder, neck, head, and back. Imaging results did not show damage to the shoulder and the employer contested that part of the claim. When the Commission approved benefits for the shoulder, the employer appealed, arguing that there was no structural or mechanical change to the shoulder.

The requirement ‘to show sudden mechanical or structural change’ has been used in courts to prove the injury was a result of an accident, not the result of gradual change over time, but not to establish that the injuries are “injuries” within the meaning of Workers’ Compensation statute. When a single mechanical or structural change establishes that the worker was involved in an accident, all injuries causally connected to the accident are compensable.

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

OSHA watch

Regulatory agenda

The 2019 Regulatory Agenda had no surprises in its short-term regulatory docket but in the long-term schedule there was a surprise announcement about rulemaking activity for “Drug Testing Program and Safety Incentives Rule.” The proposed rule would solidify in a new standard the current position that the electronic record-keeping rule does not prohibit employers from establishing workplace safety incentive programs or post-incident drug testing. Other items on the long-term list, which means action is not expected in the next 12 months, include: musculoskeletal disorders injury and illness recording and reporting requirements, infectious diseases, process safety management and prevention of major chemical accidents, and shipyard fall protection and personal protective equipment in construction.

Additional regulatory actions under consideration:

RULE ANTICIPATED AGENCY ACTION
Beryllium rule for general industry Final rule December 2019
Communication Tower Safety Complete SBREFA May 2019
Emergency Response Initiate SBREFA May 2019
Lockout/Tagout Request for Information May 2019
Tree Care Initiate SBREFA June 2019
Update to the Hazard Communication Standard Notice of Proposed Rulemaking September 2020
Prevention of Workplace Violence in Health Care and Social Assistance Initiate SBREFA October 2019

For the full federal Unified Agenda and Regulatory Plan

Mugno withdraws from consideration

Re-nominated for Assistant Secretary of Labor for OSHA on January 16, Scott Mugno has withdrawn his name from consideration, extending the longest period without a permanent administrator.

Final rule expected to save $6.1 million as part of the Standards Improvement Project

The rule revises 14 provisions in the recordkeeping, general industry, maritime, and construction standards that may be confusing, outdated, or unnecessary. Reducing annual lung X-ray requirements, eliminating the collection of employee Social Security numbers and removing feral cats from the list of “rodents” in shipyard sanitation standards are among the 14 revisions.

Noteworthy the controversial proposal to revise the scope provision of the LOTO standard to remove the term “unexpected energization” as a prerequisite for the requirements of the LOTO standard was not included in the final rule.

More information.

Comments for possible update of lockout/tagout solicited

Comments on a possible update to the Control of Hazardous Energy (Lockout/Tagout) standard must be submitted before August 18. Emphasis is being placed on how employers have been using control circuit devices and new risks of increased worker contact with robots.

Noteworthy, the RFI does not mention the controversial “unexpected energization” but that does not mean it’s dead. The regulated community voiced opposition in the SIP IV process.

More information.

Webpage provides information on protecting workers from CMV exposure

A common virus, Cytomegalovirus (CMV), affects thousands of workers in childcare centers and healthcare facilities. These workers are at the greatest risk of exposure because the virus is often spread through saliva and other body fluids of young children. A new webpage on CMV, explains how to minimize health risks associated with workers’ exposure to this virus.

New oil and gas exploration safety video

video developed by a Training Institute Education Center features ways to prevent injuries and fatalities in the oil and gas industry. The video focuses on falls, transportation, struck-by/caught-in/caught between, hydrogen sulfide gas, and heat illness.

Enforcement notes

California

  • Morgan Hill, California-based Pacific States Industries Inc., doing business as Redwood Empire Sawmill, settled a civil lawsuit regarding workplace safety laws following the death of a mill worker. The company agreed to pay civil penalties, restitution, and costs totaling $375,000.
  • Mercer-Fraser Co of Eureka received four citations and $63,560 in penalties after a worker driving a truck collided with a front-end loader and suffered a serious head injury. Inspectors determined that the company failed to require seat belt use, develop and implement safe practices for workers operating haul trucks, and ensure that trucks were operated at safe speeds.
  • Carlton Forge Works received three citations related to crane operations and $51,185 in penalties when a worker suffered injuries after becoming pinned between a saw table and a workpiece.

Florida

  • After an employee suffered serious injuries from a fall at the Avery Square residential construction site in Naples, four residential construction contractors received 12 citations and fines totaling $220,114 for exposing employees to safety hazards. Southern Living Contractors Inc., Paramount Drywall Inc., operating as Paramount Stucco LLC, and Crown Roofing were cited for failure to provide fall protection and other violations and Sunny Grove Landscaping and Nursery Inc. was cited for exposing employees to struck-by hazards from falling debris.
  • Inspected under the Regional Emphasis Program for Falls in Construction, Ohio-based Hiebert Bros. Construction LLC was cited for exposing employees to fall hazards after the worker was injured from a 26-foot fall at a construction worksite in Gainesville. The company faces penalties of $56,828.
  • Walt Disney Company has been fined $13,260 for failing to report two workers’ injuries in a timely manner.
  • Two citations alleging serious violations of the fall protection standard were confirmed against All-Pro Construction Services Inc., which had a pleaded the affirmative defense of unpreventable employee misconduct. The fine was reduced 10% to $8,149.
  • An online retailer of pet supplies, Chewy, Inc., faces the maximum penalty of $14,323 for exposing employees to struck-by and crushing hazards. An employee suffered fatal injuries while operating a stand-up industrial truck at the company’s Ocala plant.
  • Remodeling contractor, Stettinius Construction Inc of Winter Haven, faces $26,142 in proposed penalties after a worker suffered a fatal fall at a worksite in Naples.

Georgia

  • Kumho Tire Georgia Inc., Sae Joong Mold Inc., and J-Brothers Inc. received 22 citations and collectively face $523,895 in proposed penalties after a follow-up inspection found safety and health hazards at the tire manufacturing facility in Macon. $507,299 of the proposed penalties were issued to Kumho Tire Georgia Inc., which failed to submit abatement documents and was placed in the Severe Violator Enforcement Program.

Missouri

  • DDG Construction Services Inc., based in Charlotte, North Carolina, faces $98,693 in penalties for exposing workers to fall hazards at a commercial site in Springfield. The company has been cited for more than 15 fall violations since 2014.
  • Belfor Property Restoration and subcontractor Custom Crushing & Company, both based in Kansas City, were cited for failing to comply with asbestos removal standards while performing rehabilitation work at Kansas State University’s Hale Library in Manhattan. Custom Crushing & Company faces $193,596 in proposed penalties, and Belfor Property Restoration faces proposed penalties totaling $39,780.

New York

  • In Secretary of Labor v. All Wall Builders LLC, a judge held that East Syracuse-based All Wall Builders LLC had committed a serious safety violation of the fall protection standards. After the company agreed to participate in a voluntary state site inspection program and followed up with recommendations on further training, the judge reduced the proposed penalty by $1,622, bringing the total penalty to $5,622.

Nebraska

  • After two employees were seriously injured in a trench collapse at a construction site in Lincoln, T.H. Construction Co. was cited with one willful violation of trench safety standards and faces $106,078 in penalties.
  • A steel erection company, Daubert Construction, based in Fremont, was cited for failing to protect employees from fall hazards and faces $19,890 in penalties.

Pennsylvania

  • A general duty citation against Johnstown-based Berkebile Auto Service Inc. after a tow truck driver was fatally injured was upheld by an administrative law judge of the Occupational Safety and Health Review Commission. The company was assessed a $3,803 penalty.
  • Champion Modular Inc. was cited for exposing employees to safety and health hazards at its Strattanville facility. The company faces $687,650 in penalties. The inspection was initiated after an employee suffered an amputation. Violations related to machine guarding, fall protection, and training workers on hazard communication and hearing conservation.

For additional information.

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