Legal Corner

ADA
Failure to accommodate is costly for employers

In Equal Employment Opportunity Commission, Linda K. Atkins v. Dolgencorp L.L.C., dba Dollar General Corp., a federal appeals court affirmed a jury verdict of more than $277,000 to a former diabetic Dollar General worker. She worked the register and was often alone, so she could not leave her station when she experienced a low blood sugar episode. Her manager refused to let her keep a bottle of orange juice at her register, so when she had an attack she took a bottle of juice from the store cooler and drank it, later paying the $1.69 she owed for each bottle and told her manager.

She was fired for violating Dollar General’s “grazing policy,” which forbids employees from consuming merchandise in the store before paying for it. The appeals court affirmed the jury awards of $27,565 in back pay and $250,000 in compensatory damages, and the court awarded her lawyers $445,322 in attorney’s fees and $1,677 in expenses. The jury found Dollar General failed to provide reasonable alternatives to keeping orange juice at her register.

In Stanley Christie v. Georgia-Pacific Co., Ace American Insurance Co., director, Office of Workers’ Compensation Program, the 9th U.S. Circuit Court of Appeals in San Francisco awarded permanent total disability to a man who injured his back working for a large paper company that failed to prove that they provided the employee with adequate accommodations after returning to work. While the company assigned him to a less-demanding warehouse position, the position required some lifting, which was difficult for him.

When he learned that the company was eliminating its early retirement program, he decided to retire because he did not feel he could work in pain for another six years. About two years later, his treating physician said he had reached maximum medical improvement, and he filed a claim seeking permanent total disability benefits under the Longshore and Harbor Workers’ Compensation Act, for which he was eligible.

The DOL’s Benefits Review Board, denied the claim, arguing his loss of wages was due to retirement, not the work injury. A three-judge panel of the 9th Circuit unanimously reversed, noting that his inability to work pushed him to retirement and the company had failed to provide suitable alternative work and had not documented any accommodations.

Workers’ Compensation
Injured worker cannot sue utilization reviewer – California

In King v. Comppartners, Inc., an utilization reviewer denied a treating physician’s request to continue prescribing Klonopin, a psychotropic drug, for an injured employee. The injured worker argued that the reviewer owed him a duty of care and had caused additional injuries by denying the request without authorizing a weaning regimen or warning him of the possible side effects of abruptly ceasing the medication. When he stopped taking the medication, he suffered four seizures.

The case found its way to the state Supreme Court, which found that utilization reviewers, in performing their statutory functions, effectively stood in the shoes of employers. As such, they were provided with the same immunity from tort liability as employers.

Safety consultant owes duty of care – California

In Oscar Peredia et al. v. HR Mobile Services Inc., parents filed a wrongful death claim against HR Mobile Services Inc., a workplace safety adviser for the employer of their son, who died in a work-related accident. The 5th District Court of Appeal found that HR Mobile agreed to assist the employer in carrying out its workplace safety obligations, and accepted a role in conducting safety inspections and safety training. As such, it can be held liable for injuries the third party suffers as a result.

Public employer can fire an injured worker who cannot perform essential job functions – Massachusetts

In Robert McEachen v. Boston Housing Authority (BHA), a carpenter for the Boston Housing Authority was injured and placed on FMLA and medical leave. About a year later, a termination hearing was held with the union and the employee and it was concluded that “he is unable to return to work and cannot perform the essential functions of his job.” The employee did not disagree and argued he could return to work in a modified duty capacity, supervising other carpenters. Such a position did not exist.

When he was terminated, he appealed to the Civil Service Commission, which upheld the BHA decision, noting the employee was unable to perform the essential functions of the job. A three-judge panel of the state appellate court affirmed.

Decision not to use handrail nixes comp claim – Minnesota

The Supreme Court ruled that an employee who fell down a flight of steps while at work is not due workers compensation because she chose not to use a handrail. In Laurie A. Roller-Dick v. CentraCare Health System and SFM Mutual Cos., the employee was leaving work, carrying a plant with both hands,when she fell down a flight of stairs and fractured her ankle. While she argued that her shoe stuck on the non-slip treads on the stairs, the compensation judge held that the injury did not arise out of employment because she failed to establish that the stairs were “more hazardous than stairs she might encounter in everyday life or that her work duties in some way increased her risk of falling as she descended them.”

While it was true that failure to use the handrail increased her risk of falling, there was no work-related reason not to use the handrail. The Workers’ Compensation Court of Appeals overturned the judge’s ruling, arguing that stairs in the workplace are inherently hazardous. However, the Supreme Court disagreed and reinstated the ruling of the compensation judge.

Teacher cannot sue school for injuries incurred when breaking up a fight – Minnesota

In Ekblad v. Independent Sch. Dist. No. 625, the 8th U.S. District Court of Appeals ruled that workers’ comp exclusive remedy bars a teacher from suing the school after he was seriously hurt breaking up a student brawl. The employee argued negligence and negligent supervision as well as failure to provide a safe workplace and a lenient policy toward minority students’ violent misconduct.

The court found that none of the three relevant exceptions to the exclusive remedy provision – the assault exception, the intentional act exception, and the co-employee liability exception – applied in this case.

Employer rebuts 100% industrial loss because employee has marketable skills – Mississippi

In Bridgeman v. SBC Internet Services, a worker suffered a compensable injury, was unable to return to his job that involved climbing utility poles, and he was terminated by his employer. Under law, there is a presumption of 100% industrial loss when the worker proves he can no longer perform his usual employment. This presumption is rebuttable, if the employer can prove the employee could earn the same wages in another position.

If the employer successfully rebuts the presumption, the employee will not recover for a 100% industrial loss of use, but receives a recovery based on the greater of his losses from the medical impairment or the industrial loss-of-use rating. Since the employer presented evidence that the employee had a computer science degree, had been a teacher, and could perform medium to heavy work, an appeals court upheld lower court decisions that granted a 50% industrial loss of use of his arm.

Subject-matter jurisdiction can be challenged at any time – North Carolina

In Burgess v. Smith, a young woman who sold cleaning products door-to-door was killed in a single car accident, driven by her co-worker. Her mother filed a wrongful death suit against the driver and her employer and neither responded to the summons. A trial judge entered a default judgment against the defendants for more than $2 million. Five months later, the employer filed a motion to set aside the default judgment, arguing that she was an employee (although he argued earlier she was an independent contractor) and that the superior court lacked jurisdiction over the claim.

The court of appeals overturned the superior court judge denial, noting that subject-matter jurisdiction may be challenged at any time, even after the default judgment. The court remanded the case with instructions for the judge to determine if there was an employer-employee relationship.

Employee cannot sue employer for failure to provide a stress-free environment – North Carolina

In Jones v. Wells Fargo Co., a former employee argued that the bank and her supervisor failed to provide her with a safe working environment free from mental stress or anxiety and aggravated a pre-existing mental condition, which they knew about. While she argued that the exclusive remedy of workers’ comp did not apply because of “egregious and extreme conduct,” the court disagreed.

Parking lot injury compensable – Pennsylvania

In Piedmont Airlines v. WCAB (Watson), an airline employee fell into a pile of snow in the employee parking lot and broke his finger. The employee parking lot, which was owned and operated by the Department of Aviation, required an identification card for entry and the employer had issued one to the employee.

The Commonwealth Court noted that when an injury does not take place while performing job duties, it is compensable if the injury occurred on the employer’s premises, the worker’s presence on the premises was required by the nature of his employment, and the injury was caused by the condition of the premises or by operation of employer’s business. The court found that all three factors were met and, therefore, the injury was compensable.

Failure to accept modified duty means benefits can be adjusted – Pennsylvania

In Pettine v. WCAB (Verizon Pennsylvania), an employee was struck by a car when marking the road and suffered compensable injuries. He later requested that the claim be expanded to include his back and shoulder. When he declined an offer of a modified job that met his physical restrictions, vocational background, and geographical area, Verizon sought to modify his benefits.

The case went through several appeals, but in each case, the employee’s petition was denied and Verizon’s was granted.

Compromise & Release (C & R) agreement may not be used to avoid paying third party fees – Pennsylvania

In Armour Pharmacy v. Bureau of Workers’ Comp, the terms of a settlement included that the company pay for all necessary medical treatment. Many years after the injury, the company requested a Utilization Review (UR) of a newly prescribed topical cream, which was determined to be reasonable and necessary treatment.

The company then entered into an agreement with the employee that stated its liability for his medical expenses did not include any past, present or future costs for any compounded prescription cream. Several months later, the employee filled another prescription for the same cream, and the company refused to pay the more than $6,000 bill.

The court explained that the C & R bind each other, but cannot release them from liability to an entity who is not a party, in this case, the pharmacy. An employer can challenge a provider’s treatment as neither reasonable nor necessary, only through UR, and the company had not challenged the second prescription.

Benefits for volunteer firefighter overturned – Pennsylvania

In East Hempfield Township v. WCAB, a long-term volunteer firefighter was diagnosed with cancer four years after taking the job with the township. Several years later he filed for workers’ compensation benefits, asserting that his cancer had been caused by his exposure to carcinogens while volunteering for the township.

The case went through several appeals with varying decisions related to whether adequate notice of the claim had been properly given. The burden of proof is on the worker to show that notice was issued within 120 days of the injury, or the date upon which he knew, or should have known, he had a potential claim.

While the employee was diagnosed years earlier, he argued he did not know of the causal link between his cancer and firefighting and filed within 120 days when he received a doctor’s letter noting the connection. The Commonwealth Court found that the relevant inquiry was not when the employee actually knew of the work-relatedness of his injury, but rather when he should have known the work-relatedness through the exercise of reasonable diligence. The case was vacated and remanded.

High court upholds total disability award for trucker with pre-existing degenerative disc disease – Tennessee

In Wesley David Fly v. Mr. Bult’s Inc. et al., the Special Workers’ Compensation Appeals Panel with the Supreme Court affirmed a circuit court ruling that a trucker’s total disability was caused by a workplace injury, not the pre-existing degenerative disc disease, which was discovered at the time of the injury. The court noted that the law requires employers to “take an employee as he is,” and “all reasonable doubts as to the causation of an injury and whether the injury arose out of the employment should be resolved in favor of the employee.”

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

OSHA watch

Compliance date for parts of general industry beryllium standard delayed

The compliance date for certain ancillary provisions in the beryllium standard for general industry is extended to December 12, 2018. The final rule published in the Aug. 9 Federal Register, states that the compliance date applies to requirements for methods of compliance, beryllium work areas, regulated areas, personal protective clothing and equipment, hygiene facilities and practices, housekeeping, communication of hazards, and recordkeeping.

New compliance assistance resources available for Silica Standard

  • A customizable slide presentation can be used to help train construction workers.
  • A five-minute video shows how to protect workers from exposure to silica dust.
  • A series of short videos demonstrates the proper use of specified dust control methods for six common construction tasks.
  • An FAQ page provides answers to frequently asked questions about the Respirable Crystalline Silica Standard for Construction.

Tips on forklift safety and maintenance

New QuickCards are available in English and Spanish to aid employees and employers in the safe operation and proper maintenance of forklifts.

Guidance explains how to use the 300 log to look for trends

That was no accident encourages employers to use the 300 Log not just as a paperwork exercise or a way to look at past performance, but as part of a company’s road map to finding and fixing hazards.

Redesigned regulations webpage provides easier navigation

The Law and Regulations webpage that features information on standards and rulemaking now can be searched by keyword or number and includes the latest updates on active rulemaking. The page also features information buttons to explain regulatory language that may be unfamiliar to some users.

Free workplace violence prevention webinar available online

A free 60-minute webinar on preventing workplace violence in healthcare settings is available from The Joint Commission, a long-standing national alliance partner. The webinar includes an overview of Guidelines for Preventing Workplace Violence for Healthcare and Social Service Workers, as well as a discussion of a multi-hospital intervention study that reduced violent events.

Name-and-shame strategy still prevalent in news releases

While the rate of releasing public statements about enforcement actions taken against employers is significantly lower under the Trump administration than the Obama administration (463 a year to about 150), the tone in these press releases has not changed. Most include harsh and embarrassing quotations from senior officials. Stakeholders argue that the press releases are based merely on allegations of violations and are published prior to companies being afforded a hearing.

Enforcement notes

California

  • Roofing contractor, Petersen-Dean, Inc., faces $146,004 in fines for repeat violations of exposing workers to fall hazards.
  • New York-based Outfront Media Inc, an outdoor advertising company, faces proposed penalties of $32,435 for serious safety violations after a worker suffered third-degree burns as well as an inadequate heat illness prevention plan for its outdoor workers.

Florida

  • G&H Underground Construction faces $57,738 in proposed penalties for allowing the use of unguarded machines after an employee suffered a throat laceration at a worksite in St. Augustine.
  • Archer Western Construction Inc., an Atlanta-based company, faces $33,259 in proposed fines for safety violations after two employees suffered fatal injuries while performing trenching activities at a Miami worksite.
  • The Holly Hill-based paving company, Pavemax Corp. faces $16,814 in proposed fines for safety violations after an employee suffered fatal injuries at an Orange City worksite, including failure to train and provide a place of employment free from recognized hazards.

Illinois

  • HB Fuller Company, operating as Adhesive Systems Inc., faces $587,564 in proposed penalties for 18 health and safety violations at its facility in Frankfort. The company was cited for failing to: provide employees with respirator fit tests and respirators appropriate for hazardous atmospheres; require bonding and grounding when transferring flammable liquids; ensure that electrical equipment was approved for use in hazardous atmospheres; and conduct a personal protective equipment assessment.

Mississippi

  • After Nissan North America Inc. contested two violations, an administrative law judge of the OSHRC vacated one serious citation but affirmed the other and assessed a $12,675 penalty. The law judge affirmed the violation of training requirements in an employer’s energy control program after determining that the evidence established that the exposure was reasonably predictable and training the technicians was required.

New York

  • The OSHRC affirmed two serious citations previously vacated by an administrative law judge against a commercial laundry facility, Angelica Textile Services Inc., in Ballston Spa. A single grouped penalty of $7,000 was assessed for inadequate isolation and verification procedures for a permit required confined space and of lockout/tagout procedures. However, the review commission reclassified the penalties as serious rather than repeat violations.

Pennsylvania

  • Grove U.S. LLC. was cited for exposing workers to struck-by hazards after three employees suffered fatal injuries when a 300-ton crane collapsed at the company’s Shady Grove facility. The company faces proposed penalties totaling $14,976, the maximum amount allowed.

Tennessee

  • Day & Zimmerman NPS Inc. faces $71,599 in proposed penalties for exposing employees to electric shock hazards at the Tennessee Valley Authority Sequoyah Nuclear Power Plant in Soddy Daisy.
  • Specialty Tires of Unicoi faces $6,000 in fines after a mechanic was killed when he was caught in the moving arms of an assembly machine. The company was cited for failure to have an energy control procedure and failure to conduct regular inspections of an energy control program and ensuring that employees understand and comply with such a program.
  • M&K Home Improvement faces $51,200 in penalties for exposing workers to fall hazards.

For more information.

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

HR Tip: How employers are controlling health benefit costs

According to the nonprofit National Business Group on Health (NBGH) survey 2019 Large Employers’ Health Care Strategy and Plan Design, the cost of employer-sponsored health benefits is expected to near $15,000 per employee in 2019. The survey indicates that many large employers are looking to curb costs with cost-effective service providers such as telehealth options and high-value in-plan provider networks. Other initiatives include focusing on high cost claims, adding a consumer engagement platform, and using targeted specialty pharmacy management for high cost drugs.

The survey also found that employers are dialing back their move to consumer-directed health plans (CDHP), which was attributed to the delay in the “Cadillac tax” under the Affordable Care Act.

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

 

Important studies – Top three practices for closing a claim

While workers’ comp is a data-rich industry, it is only beginning to use the data to make better and smarter decisions. Rising Medical Solutions recently released a white paper that condenses the study’s multi-year benchmarking data into the top three practices ‘high performing’ claims organizations use to excel. Performance ratings were based on claims closure ratio, a comparison of opened claims versus closed claims. A claims ratio of 100% means the organization is closing as many claims as they are opening.

Here are the top three practices:

  • Focus on and measure medical management, disability / return-to-work (RTW) management, and compensability investigations While other competencies such as claims reserving and litigation management are important, these three are most critical to claims outcome. An employee’s return to the same or better pre-injury functional capabilities was the number one classification of a “good claims outcome.”

    However, just focusing on these factors is not enough. Higher performing claims organizations are five times more likely to measure their performance in core competencies, six times more likely to measure claim outcomes based on evidence-based treatment guidelines, and 10 times more likely to measure claim outcomes based on evidence-based disability duration guidelines.

  • Invest more in people and claims advocacyAs expected, the high performers cultivate talent by providing more training and career-long learning opportunities, raising performance expectations, fostering communication and critical thinking skills, and making available decision support tools known to improve claims outcome. “At a claim’s outset, the adjuster is uniquely appointed to visualize and predict how the claim will resolve, and then adapt her or his strategy as new information emerges.”

    Particularly important is embracing the historic shift from reactive, compliance-focused models of injured worker interaction to an employee-centric approach, known as claims advocacy. The importance of understanding and engaging the injured worker in the recovery process is a clear competitive advantage.

  • Invest more in advanced tools and technology, including predictive analytics High performers focus on outcome management, rather than process management. They measure medical provider performance and use predictive analytics eight times more than others. While sometimes this has been a much-contested topic, predictive modeling warehouses data on injured workers, uses outcome-based data to improve treatment, and measures success.

    It can reduce claims costs by identifying potential complicating factors and creating a more proactive approach to the ongoing treatment plans. It identifies “routine” claims that have the potential to become complex. The same data and insights can be applied to a return-to-work plan to reduce the risk of re-injury.

 

On-the-job crashes up

Motor vehicle accidents are a troubling trend for the workers’ compensation sector, according to data released recently by the National Council on Compensation Insurance (NCCI). Frequency for on-the-clock car accidents increased 5 percent, in contrast to an overall decline of 17.6 percent for all claims in comp from 2011 to 2016. Alarmingly, over 40% of workers’ compensation fatalities involved a motor vehicle accident.

Other findings included:

  • Motor vehicle claims cost 80% to 100% more than the average claim because they involve severe injuries, such as head, neck and multiple body-part injuries.
  • The rapid expansion of smartphone ownership since 2011 may have been a factor in the rise in accidents.
  • Most accidents are the result of driving as opposed to being hit by a car. From 2000 to 2016, the split of “occupant vs. struck by” claims has remained “very consistent” at about 85% to 15%.
  • Of the top 30 motor-vehicle classes reviewed, including that of trucking, the largest increase in frequency occurred in the “taxicab company” class, with a dramatic rise in frequency more than doubling from 2011 to 2015.

 

Opioids deaths linked to occupations

The opioid-related death rate for those employed in construction and extraction occupations was six times the average rate for all Massachusetts workers, according to a report by the Massachusetts Department of Public Health. The report speculates that the higher rate of work injuries in these fields, as well as low job security, and a lack of paid sick leave could be contributing factors.

The study reviewed death certificates from 2011-2015. Other industries with higher than average rates of opioid-related deaths include farming, fishing, healthcare support occupations, food preparation, and the restaurant industry. The industries with the highest rates also varied by gender: for men, the highest rate was in construction. For women, serving-related jobs, food prep, and healthcare support had the highest rates.

The Department plans a larger study to see if there is a link between workers compensation and overdoses.

 

Opioids still present in polypharmacy claims

Even though efforts in the state to curb opioid prescriptions have had some success, opioids alone are the most prevalent type of drug found in polypharmacy claims that involve five or more concurrent prescriptions, according to a study by the California Workers’ Compensation Institute.

Polypharmacy is the use of multiple drugs at the same time to treat one or more medical conditions in a patient. Oftentimes, they are used to alleviate risks and side effects caused by other drugs, but they can interact poorly and increase the risk of overdosing.

While only 4% of the claims analyzed were considered polypharmacy claims, 91.5% of them involved indemnity payments, 21.5% were at least ten years old, and they more commonly involve older workers. The top diagnostic category for polypharmacy claims (21.3 percent of claims) was back conditions without spinal cord involvement, including back sprains and strains.

 

Employees believe they get fat on the job

A recent survey conducted by Harris Poll on behalf of CareerBuilder found that more than half of U.S. workers consider themselves overweight, and many believe their current job has played a role.

The survey included a representative sample of 1,117 full-time workers from multiple industries and different-sized companies. 45 percent said they gained weight while at their current job, with twenty-six percent gaining more than 10 pounds and 11 percent more than 20 pounds.

Among the reasons cited:

  • Sitting at a desk most of the day (53 percent).
  • Too tired after work to exercise (49 percent).
  • Stress eating (41 percent).
  • No time to exercise before or after work (34 percent).
  • Workplace celebrations (13 percent).
  • Skipping meals because of time constraints (12 percent)

The survey also found that 63 percent of workers eat lunch at their workstation, and 72 percent snack on the job.

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

Three ways detailed job descriptions protect employers and save costs

Clear, accurate, and detailed job descriptions can help employers avoid hiring the wrong person for the job, facilitate the return to work of injured workers, and reduce legal challenges. At the Workers’ Compensation Institute’s annual educational conference in Orlando, Jaime Sigurdsson, an exercise physiologist and director of workers’ compensation at CORA Physical Therapy in Longwood, Florida, explained that the job description should include essential job functions, knowledge and critical skills, physical demands, environmental factors, and any other explanatory information that may help clarify the job. The more specific, the better.

Some companies omit the necessary specifics. As an example, she explained that a requirement for a worker to lift 50 pounds doesn’t explain if it’s once or several times a day. It also does not separate method from function; instead of ‘lifting,’ ‘relocate’ may be more accurate.

A recent winner of the National Underwriter’s Excellence in Workers’ Compensation Risk Management Award, Kansas City-based Cosentino’s Food Store revamped its workers’ comp program in 2012 and has seen a 49 percent reduction of overall program cost on a per-employee, per-month basis. A key element of the program is a thorough job analysis.

In the grocery industry, most injuries are musculoskeletal, often related to lifting. Others include lacerations from box cutters or knives and the usual slips, trips and falls. In a recent propertycasualty360.com article, Aaron J. Greer, director of human resources for Cosentino’s Food Stores, noted the process starts with a thorough job analysis and post-offer testing, which means the workers hired are better able to handle the jobs with less risk of injury.

He recommends spending time in each department to better understand the risks employees face and then drafting the most detailed job analysis possible. To actually experience the job is eye-opening; it uncovers risks and can shed light on alternative methods of performing essential jobs.

In addition to the hiring process, a detailed job description can facilitate an injured worker’s recovery process. During recovery, workers can do a modified version of their job or a slightly different job and gradually progress to full recovery. To make this happen, the treating physician must have essential information about workplace policies, job demands and the availability of transitional work. Greer shares his job descriptions with the company’s medical providers and invites them to the stores to see firsthand how employees do their jobs, matching actions to job descriptions.

When an employer can select their physicians, it’s important to choose doctors who are experienced and understand the nuances of occupational health. A thorough job description will help ensure that workers can get back to work and function quickly – but not so quickly that they reinjure themselves. Employers who can’t influence physician selection should look to case managers or nurse triage providers who are closely aligned with the company’s recovery-at-work philosophy.

Since the Cosentino stores are open long hours, they established an open-to-close program with a dedicated phone line that connects employees to a nurse assigned to them. Well-versed in the stores’ processes, the nurse understands the detailed job requirements, and directs injured employees to the correct provider immediately. The early intervention reduces the likelihood that the claim will escalate.

When done properly, job descriptions can also protect employers from lawsuits related to the Americans with Disabilities Act (ADA) and other laws that protect workers from discrimination. While the law does require accommodations in most cases, case law has generally supported employers when an employee cannot perform the “essential job functions.” Inadequate or inaccurate job descriptions can complicate a claim and lead to bad outcomes for both the employer and the employee.

Equally problematic is overstating the job requirements. Weight loads get many employers into trouble, as demonstrated by a recent case in the 9th U.S. Circuit Court of Appeals in San Francisco, Victor E. Pfendler v. Liberty Dialysis-Hawaii L.L.C. While the job description asserted that lifting 75 to 100 pounds was an essential job function, in reality, the most that was lifted on a regular basis was about 40 pounds. The court noted, “if lifting more than 50 pounds was not an essential function of the job, he would have been a qualified individual and Liberty’s refusal to allow him to return to the (dialysis) position may have been discriminatory.”

Detailed job descriptions are a critical component of a successful Workers’ Comp program. With a robust program, the employee feels valued, protected, and knows appropriate work will be available if they are injured. It’s not a restriction; it’s a way to help them stay on the job and maintain a healthy and productive life.

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

Things you should know

Opioid spending down but topical medications up

A report by Coventry Workers Comp compared its 2017 data on managed claims, representing 77.6% of total comp prescriptions, and unmanaged claims. Overall drug utilization in comp was down in 2017 – especially in opioids and compounds medication, an overall industry trend – with 5.9% drops in managed claims and 7.4% in unmanaged claims.

However, topical medications prescribed in the unmanaged category of claims jumped 9.8%, compared with a 6.5% drop in the managed category. This was driven by “high-dollar, private-label topical analgesics marketed directly to physicians’ offices… contributing to the significant rise in unmanaged topical utilization per claim – demonstrating the need for continued focus on moving these transactions.”

Safety standard for wind turbine workers

The American Society of Safety Professionals has published the first U.S. industry consensus standard written specifically for the construction and demolition of wind turbines.

White paper suggests Medicare Set Asides greatly inflate costs

A new white paper produced by Care Bridge International, suggests that conventional Set Aside practices greatly inflate costs to claims payers, by as much as doubling the cost. The company is a data analytics firm, that uses a massive claims database to estimate the true exposure of future medical treatment and costs in Medicare Set Asides for workers’ compensation claims.

Health care workers, PPE and infection control: Study finds failures to follow protocol

Health care workers may be contaminating themselves and their work environments by neglecting to use personal protective equipment and follow preventive protocols, according to a study from researchers at the University of Michigan and the University of Utah. The study was published online June 11 in JAMA Internal Medicine.

CPWR offers skin cancer prevention tips for outdoor workers

Workers who spend all or part of their days outdoors have an increased risk of developing skin cancer, the Center for Construction Research and Training (CPWR) cautions in a recently released hazard alert.

Highly repetitive work in cannabis industry increases risk for musculoskeletal disorders

Employers in the marijuana industry should provide safeguards to protect workers from repetitive stress injuries, NIOSH states in a recently released Health Hazard Evaluation Program report.

European Commission adopts new rules on pilot mental health requiring airlines

Three years after the Germanwings crash in which a pilot deliberately flew a jet into a mountainside, the European Commission has adopted new rules on pilot mental health requiring airlines for the first time to carry out a psychological assessment of pilots before they hire them.

States bolster whistleblower protection

An analysis by watchdog group Public Employees for Environmental Responsibility (PEER) found that most states have expanded their whistleblower protection laws over the past 12 years, including 10 states that have done so in their most recent legislative sessions. The PEER analysis includes a report card detailing where all the states rank in different categories.

State News

California

  • Cal OSHA stronger enforcement has led to more citations and higher fines. In 2016, it inspected 813 businesses, finding 93% of them out of compliance, issuing 2,736 citations, 15% of them serious, all totaling $2.5 million in fines – nearly double the amount for the same number of citations from two years earlier.
  • Although workers’ compensation insurance rates have dropped 22% since 2014, the state still has the highest rates in the country, representing one-fifth of the premium collected nationwide with only 11% of the national workforce, according to a report released recently by the Workers’ Compensation Insurance Rating Bureau.

Indiana

  • A new procedure for submitting settlement documents to the Workers’ Compensation Board took effect Aug. 1 and will become mandatory Sept. 1. All settlement agreements and proposed orders, as well as supporting documentation, should be submitted to WCB electronically in a PDF format. WCB has provided a checklist of elements that should be included, or not included, in settlement documents.

Pennsylvania

  • The Governor introduced opioid prescription guidelines in a booklet to “help health care providers determine when opioids are appropriate for treatment of someone injured on the job.” It is one of 11 guideline booklets on the subject.

North Carolina

  • After three years of litigation, the new ambulatory surgery center fee schedule became effective June 1. The new rules.

Tennessee

  • Strict new claims-handling standards took effect Aug. 2, the first revision to the standards since they were enacted almost 20 years ago. The new rules will require greater attention to detail, better communication with injured workers, and low error rates on electronic data submissions.

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

Legal Corner

ADA
Lawsuit over lifting restrictions reinstated

In Victor E. Pfendler v. Liberty Dialysis-Hawaii L.L.C, the 9th U.S. Circuit Court of Appeals in San Francisco overturned a lower court and reinstated a lawsuit filed by a dialysis technical specialist.The court found that the former employee’s and another technician’s statement that the most he lifted on a regular basis was about 40 pounds, conflicted with his former employer’s assertion that lifting 75 to 100 pounds is an essential job function.

The court noted, “if lifting more than 50 pounds was not an essential function of the job, he would have been a qualified individual and Liberty’s refusal to allow him to return to the (dialysis) position may have been discriminatory.” Alternatively, said the ruling, “if the lifting requirement was an essential function, he may have been entitled to an accommodation that the employer waive the formal lifting condition.”

Supermarket chain pays over $800,000 to resolve ADA charges

A Salt Lake City-based supermarket chain, Associated Fresh Market, will pay $832,500 to settle an EEOC charge that it denied reasonable accommodations to disabled individuals. It also has agreed to change its ADA policies and procedures and conduct training for its human resources team, store directors, assistant store directors and employees.

FMLA and ADA
When job functions can be fulfilled, part-time work is a reasonable accommodation

The 6th U.S. Circuit Court of Appeals in Cincinnati in Heidi Hostetler v. The College of Wooster, overturned a lower court ruling and reinstated disability discrimination charges filed by a college worker terminated because her post-pregnancy disability required her to work only part time. Noting that there were genuine disputes that full time work was an essential function of the job, the court stated although it may have been more efficient and easier for the college if the employee worked full-time, but could fulfill her job duties on a part-time basis, “those are not the concerns of the ADA”.

Workers’ Comp
Exclusive remedy bars suing company for asbestos exposure – California

In Allen Rudolph et al.,vs. Rudolph and Sletten, Inc., the 1st District Court of Appeals ruled that a person who was sickened by asbestos could not sue the company allegedly responsible for his exposure, even though the Supreme Court has ruled that employers have a duty to protect workers’ families from exposure through contact with fibers that come home on the employees’ skin, hair and clothing. The worker was exposed to asbestos as a child at home as well as a worker at the father’s construction company.

Tort claims by employees for injuries that are collateral to, or derivative of, a compensable workplace injury are barred by the exclusive remedy. A substantial contributing cause of his illness was his job exposure to asbestos and the exposure at home did not create a separate injury outside workers’ compensation coverage.

Out-of-state football player could not pursue a cumulative trauma claim – California

In Larry C. Tripplett v. Workers’ Compensation Appeals Board, Indianapolis Colts et. Al, the 4th District Court of Appeal ordered publication of its ruling finding that an out-of-state football player, who was a resident of the state, could not pursue a cumulative trauma workers’compensation claim in the state because there’s no proof he signed his National Football League contract there and he only played two games there.

At issue is jurisdiction, according to the court record. Since he was not “hired” (there was no evidence the contract was executed in the state) and the cumulative injury occurred at his retirement, rather than during any particular game, he was not entitled to workers’ compensation benefits.

Court finds financial need for advance to pay for litigation costs should be considered – Florida

In Anderson v. Broward County Sheriff’s Office, the 1st District Court of Appeal overturned a judge of compensation claims and ruled a worker’s financial need for an advance payment should be considered even when the purpose is to pay for expenses related to establishing compensability. An injured worker who had returned to full duty after nine months on light duty was seeking an advance to pay for an independent medical exam in support of a pending claim for continued medical treatment.

The court saw “no reason why the claimant’s financial need (or lack thereof) should not be considered when the purpose of an advance is to pay for litigation costs rather than other expenses such as rent or utility bills.”

Jimmy John’s not a joint employer – Illinois

The U.S. District Court in Chicago granted sandwich shop franchiser Jimmy John’s L.L.C, summary judgment in Re: Jimmy John’s Overtime Litigation. The court noted, “Jimmy John’s has established that it does not: (1) have the power to hire or fire franchise employees; (2) supervise and/or control employee work schedules or conditions of payments; (3) determine the rate and method of payment or (4) maintain employment records for franchise employees.”

Misclassification statute does not apply when employee sues employer – Michigan

In McQueer v. Perfect Fence Co., a laborer who worked intermittently for a fence company and had been directed to stop using a Bobcat as a hammer, but did not stop a fellow worker from doing so, was injured. He claimed the employer told him not to report his injuries as work-related because he was “not on the books” and there were no workers’ compensation benefits. However, he did receive benefits.

The Supreme Court reversed a finding of the state’s Court of Appeals noting a provision that prohibits the misclassification of certain employees in order to avoid workers’ compensation liability, did not apply to an injured employee who sued his employer, alleging an intentional tort. The statute provides a civil remedy to an employee of a contractor engaged by a principal, which was not the case here, thus the employee misclassification provision did not apply to him.

Squabbling employers must pay attorney fees – Minnesota

In Hufnagel v. Deer River Health Care Center, a nursing assistant aggravated an earlier back injury. A few years after she returned to work from the first injury, the company was sold and the workers’ comp insurer changed. When she experienced back pain, the new company denied liability, noting the need for medical treatment was a continuation of the prior work injury, which is under a different insurer. After nearly two years of legal proceedings that included six medical examinations, a Workers’ Compensation Court of Appeals judge overturned a lower ruling and ruled that the current employer was liable for the aggravated injuries.

In upholding the decision, the Supreme Court noted, “the efforts by each employer to shift responsibility to the other employer greatly increased the burden on counsel to provide effective representation… We therefore hold that (Ms.) Hufnagel was entitled to receive reasonable attorney fees.”

Auto insurer must pay work-related chiropractic treatment – Minnesota

In Jennifer Rodriguez v. State Farm Mutual Automobile Insurance Co., the Court of Appeals ruled that State Farm Mutual Automobile Insurance Co had to pay for an insured’s chiropractic treatment after the workers’ compensation insurance carrier stopped paying because they exceeded the 12 weeks specified under the work comp treatment guidelines. The employee was a bus driver who was injured when a person driving a stolen vehicle crashed into her bus. According to the court, it is up to the no-fault automobile insurer to seek payment from the workers compensation insurer, if applicable, and the court did not express an opinion whether treatment was considered excessive under workers’ comp regulations.

Overtime must be included in calculation of AWW – Mississippi

In Nixon v. Howard Industries, an assembler injured his back and the company stipulated that his average weekly wage was $645.40, which included overtime. A vocational rehab counselor determined that he could still work, but at a much-reduced wage. An administrative judge found that the injury had caused a loss of wage-earning capacity, but based the pre-injury weekly wage by assuming a 40-hour work week at his pre-injury hourly rate of $12.26. After several appeals, the Court of Appeals noted the average weekly wage is to be calculated by taking the actual earnings over a period of 52 weeks and dividing the sum by 52. Permanent partial disability is determined by two-thirds of the difference of the average weekly wage before the injury and earning capacity post-injury.

Knee injury aggravated at home compensable – Mississippi

In Prairie Farms Dairy v. Graham, an employee injured his knee while making a delivery of milk and underwent surgery, but continued to have problems with his knee. A little less than a year later, he fell at home because his knee gave way and he experienced back pain. Several years earlier he had had back pain and the nurse case manager told him an appointment with the physician would not be allowed because it was a pre-existing condition. He saw his personal health physician, but filed a petition demanding benefits for his knee injury and a subsequent injury to his back.

The company contested the compensability of the back condition, but the Workers’ Compensation Commission and the Court of Appeals approved it. The court noted that industrial loss is not synonymous with functional loss and means that a loss of wage-earning capacity has occurred. There was no dispute that the employee was not able to return to his position and that his earning capacity had greatly decreased. Further, the court said “every natural consequence” that flowed from the knee injury was compensable under law.

Legislative change to lump settlements process applies to pending cases – Nebraska

In Dragon v. Cheesecake Factory., the Supreme Court ruled that a legislative change to the process for finalizing lump-sum settlements applies to cases that were still pending when the statutory amendments took effect. The legislative change provides that a verified release becomes effective once payment is made and the Workers’ Compensation Court enters an order of dismissal with prejudice. According to the court, this was a procedural, not substantive, change and, therefore, applicable to pending cases.

The court also ruled that the existence of a legitimate question over the enforceability of liens against the settlement does not excuse an employer from making timely payment of the settlement amount.

Worker cannot raise “increased risk” argument on appeal – Nebraska

In Maroulakos v. Wal-Mart Associate, a worker who complained of not feeling well, fell and had a seizure. He sustained a facial laceration, sinus fractures and possibly a traumatic brain injury causing neurocognitive impairment. While he argued he tripped over a pallet, video surveillance and witness accounts did not support this. A compensation court judge determined that the fall resulted from an idiopathic seizure and syncope event that was personal to him and not compensable under workers’ comp and the appeal was heard by the Supreme Court.

The Court noted that the injured employee had not raised the issue of falling into a shelfing unit nor the ‘increased danger rule’, which recognizes that when an employment hazard causes or increases the severity of an injury sustained from an idiopathic accident, the injury becomes compensable. Since he had not raised this at trial, he could not raise on appeal.

Claim of injury isn’t sufficient for benefit award – New York

In Matter of Elias-Gomez v. Balsam View Dairy Farm, a farmhand claimed that he injured his right shoulder on a specific date, approximately one year earlier, while assisting in a “particularly difficult” birth of a calf. However, the farm representative testified that no calves were born on that date and there was no report of injury.

State comp law provides that, absent substantial evidence to the contrary, there is a presumption that an accident that occurs in the course of employment also arises out of such employment. However, this cannot be used to establish that an accident occurred nor relieve the burden of demonstrating that the accident occurred in the course of, and arose out of, his or her employment.

Benefits can be terminated even though worker still experiences pain – Pennsylvania

In Hernandez v. WCAB (F&P Holding Co.), the Commonwealth Court ruled that an employer could terminate benefits to an injured worker, although a judge accepted the employee’s testimony about lingering pain. A worker who was on light duty, injured his back and received workers’ compensation. However, when his doctor imposed further restrictions, the company could not accommodate and fired him.

When the employee filed a petition seeking compensation for the decrease in earning power, the company argued that the new restrictions were not related to the injury and filed a petition to terminate its payment of benefits, arguing the worker had fully recovered. A workers’ comp judge and the Commonwealth Court agreed. While the judge accepted the employee’s testimony of his continued pain, the court noted, a worker could forever preclude the termination of benefits by merely complaining of continuing pain.

Pennsylvania case law shows an employer can terminate benefits, even if a worker credibly testifies about the existence of ongoing pain, so long as the employer’s medical expert unequivocally testifies that it is his opinion, within a reasonable degree of medical certainty, that the worker is fully recovered, can return to work without restrictions and that there are no objective medical findings that either substantiate the claims of pain or connect them to the work injury.

Hearing loss compensable despite long filing delay – Tennessee

In Westby v. Goodyear Tire & Rubber Co., the Supreme Court’s Special Workers’ Compensation Appeals Panel upheld an award of benefits to a worker for his hearing loss, even though he did not file his claim until years after he told his doctor he was aware he was losing his hearing. For much of his career with Goodyear, the worker was not required to wear hearing protection, but the company made it mandatory in the last few years of his employment. He told a doctor in 2002 that he knew he had hearing loss and that he had known for at least 10 to 15 years, but he did not file a comp claim until 2012.

The company contested his claim, contending he had failed to give timely notice of injury; however, the court noted case law has established that the statute of limitations for filing a workers’ compensation claim involving gradually occurring injuries does not begin to run until the date the employee is unable to work due to his injury. This is known as the “last-day-worked rule”. It also noted that the worker’s hearing tests demonstrated a continued loss of hearing and the test results were the actual notice of injury.

Hearing loss work related – Wisconsin

In Harley-Davidson Motor Co. Group L.L.C. v. the Labor and Industry Review Commission, an appeals court upheld a labor review commission’s ruling that a former employee of Harley-Davidson Motor Co. Group L.L.C. and Transportation Insurance Co. suffered an 84.67% hearing loss as a result of his employment. In this case, the medical opinions of the company-designated physician disagreed with that of the treating physician. An independent medical exam determined work-related hearing loss, but his calculation method was contrary to the state’s administrative code, which requires the calculation to be based on pure tone testing. Although the independent medical examiner found the pure tone test unreliable, the review commission and circuit court found them reliable and awarded an 84.67% binaural hearing loss.

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OSHA watch

Proposed changes to recordkeeping rule

According to a Notice of Proposed Rulemaking (NPRM), the proposed changes would rescind “the requirement for establishments with 250 or more employees to electronically submit information from OSHA Forms 300 and 301. These establishments will continue to be required to submit information from their Form 300A summaries.” The change is proposed to protect sensitive worker information from potential disclosure under the Freedom of Information Act and to protect the privacy of employees injured on the job. Three organizations filed a suit against the U.S. Department of Labor, the Secretary of Labor and OSHA over the proposed changes.

Increase in worker fatalities gets attention in Missouri, Kansas, and Nebraska

Thirty-four worker deaths in Kansas, Missouri and Nebraska with the increase linked to falls, struck by objects and vehicles, machine hazards, grain bin engulfment, and burns have led to an educational campaign about the resources available. These include free compliance assistance for small- and medium-sized businesses, as well as each state’s free On-Site Consultation Program for employers. Also available is the agency’s Recommended Practices for Safety and Health Programs.

Consider screening workers for heat stress when index hits 85 degree

A threshold for moderate occupational heat risks starts at a heat index of 91° F, but that “might not be sufficiently protective,” according to an analysis, which suggests that when wet globe bulb temperature is unavailable, a heat index of 85° F could be used to screen for hazardous workplace environmental heat.

Free stickers on trenching safety offered

A new sticker intended to raise awareness of trenching safety reminds workers to “slope it, shore it, shield it.” The free stickers are available in English and Spanish.

Proposed rule exempting certain railroad work, machines from parts of crane standard

A proposed rule that would grant exemptions to its Cranes and Derricks in Construction Standard for work on or along railroad tracks was published in the July 19 Federal Register and comments will be accepted until September 1st.

New publications

Updated webpage on avian influenza

The updated Avian Influenza page provides information on protecting workers in egg and poultry production, veterinary facilities, pet shops, and food servicing who may be exposed to infectious birds or poultry products.

Michigan OSHA clarifies requirements for eyewashes and safety showers

MIOSHA released a new Fact Sheet, Eyewashes and Safety Showers.

Cal/OSHA publishes information on the hotel housekeeping musculoskeletal injury program

A fact sheet and poster is now available.

Enforcement notes

California (Cal OSHA)

  • Marine cargo handler, SSA Pacific Inc, was issued $205,235 in fines for six willful and serious safety violations following the investigation of a fatal forklift accident at the Port of San Diego.
  • Commerce-based Pixior, LLC, faces 11 citations and $97,430 in penalties after a worker was struck by a forklift.

Florida

  • North Florida Shipyards Inc., a shipbuilding and repair company, faces $271,061 in proposed penalties for multiple violations after an employee suffered fatal injuries at its Commodores Point facility in Jacksonville.
  • Bakery Management Corp., doing business as Bakery Corp., was cited for exposing employees to caught-in, fall, and electrical hazards. The Miami-based commercial bakery faces proposed penalties of $67,261.
  • Inspected under the Regional Emphasis Program for Falls in Construction, Bluewater Construction Solutions Inc. was cited for exposing employees to dangerous falls at two south Florida worksites. The Melbourne-based residential framing contractor faces proposed penalties of $48,778.
  • BC Direct Corp., doing business as Robotray, a Miami-based manufacturer of bakery rack loaders, was cited for exposing employees to struck-by, electrical shock, fire, and explosion hazards and faces $42,682 in proposed penalties.

Georgia

  • Dupont Yard Inc. was cited after an employee suffered a partial hand amputation and other injuries while working on unguarded machinery in Homerville. The wooden post manufacturer faces $109,548 in proposed penalties.

Illinois

  • Cleary Pallet Sales Inc., a Genoa-based pallet manufacturer, faces proposed penalties of $216,253 after 10 employees required emergency medical treatment for carbon monoxide exposure, which was nearly 10 times the permissible exposure limit and other violations.

Michigan (Michigan OSHA)

  • Five citations and $77,600 in penalties were issued to Woods Carpentry, Inc., for exposing workers to fall hazards.

Missouri

  • Karrenbrock Excavating LLC was cited for allowing two employees to work in an unprotected trench while installing sewers. Proposed penalties are $189,221.

New York

  • Timberline Hardwood Floors LLC was cited for willful and serious violations of multiple workplace safety and health standards. The Fulton custom hardwood-flooring manufacturer faces proposed penalties totaling $182,917.

North Carolina

  • Belhaven Shipyard and Marina Inc., doing business as TowBoatUS River Forest, faces $11,640 in proposed penalties after an employee drowned when a towboat capsized while operating in a winter storm.

Wisconsin

  • Carlos Ketz, who operates as Ketz Roofing, was cited for the sixth time in the past five years for exposing employees to falls. Proposed penalties total $48,777.

For more information.

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

HR Tip: SHRM benefit survey on popular perks30

aAccording to the Society for Human Resource Management’s (SHRM’s) 2018 Employee Benefits Survey the current low level of unemployment is driving employers to beef up their benefits to retain and recruit employees. More than two-thirds of the employers in the survey raised their benefit levels in the past 12 months. There were expanded offerings in:

  • Health-related benefits (up among 51 percent of respondents)
  • Wellness (44 percent)
  • Employee programs and services (39 percent) such as retirement savings and advice
  • Professional and career development benefits (32 percent)
  • Leave, family-friendly and flexible working benefits (each 28 percent)

The report details the types of increased benefit offerings in each category as well as trends that have stabilized or reversed. For example, under Wellness, it notes that substantial increases were seen in:

  • Company-organized fitness competitions/challenges (38 percent, up from 28 percent last year).
  • CPR/first aid training (54 percent, up from 47 percent).
  • Standing desks (53 percent, up from 44 percent).

“One sign that employers are targeting their benefit spending for maximum effectiveness: Since 2014, the share of organizations offering offsite fitness center memberships fell to 29 percent from 34 percent, while those that provide a subsidy/reimbursement for offsite fitness classes rose to 16 percent from 12 percent. Too often, people will join a gym but rarely go, employers found, while those who sign up for classes are likely to use them.”

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

The forgotten question in PPE training

Even employers who have carefully researched the options, involved employees in the selection of PPE, and ensured that it is comfortable, attractive, and fits properly, still struggle to get workers to use it. Training often focuses on how to properly wear PPE, when it should be worn, the limitations, how to care for it, and how to determine if it is damaged.

Missing or generalized is the question, “Why?” A common reason PPE is not used is the employees do not think about it because they are rushed or tired or they believe it is not necessary for the task. Employees may have performed the same task for many years and have never been injured. In their mind, there is no compelling reason to use it.

Many people don’t like reading big chunks of text or listening to boring PowerPoint presentations, so you might want to rethink your training program. In this digital age, there are countless resources for case studies, visuals, and videos relating to PPE. Personal accounts from people who have suffered injuries or illness when not wearing PPE are most effective when they are relevant, concise, and compelling.

Be selective… don’t focus on fear mongering or cheesy humor that can trivialize the importance of PPE. Humor can be effective, when it fits the situation. Sending employees a periodic email or text with a visual or video is a good way to supplement regular toolbox talks on PPE and keep it top if mind.

The message should not be one of compliance but why employees shouldn’t let their guard down – how quickly accidents can happen, how wearing PPE can protect against other people’s mistakes, and how it isn’t just about them – it’s about their future, family, co-workers, friends, and even pets, etc. Make it urgent and appeal to them with compelling stories. It can also be helpful to have a bulletin board in the staff room or where workers store their PPE. Encourage people to pin pictures of family, friends, pets, or whatever motivates them to stay safe every day.

It’s important to stay focused on changing the desired behavior. If someone is not wearing PPE, they should be asked “Why?” and a dialogue begun. Ultimately, the goal is to transform PPE use into an unconscious habit.

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