OSHA watch

Interim enforcement guidance on silica standard for construction

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

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


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

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

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


Pennsylvania construction firms join Strategic Partnership program

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


Enforcement notes

California

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

Georgia

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

Massachusetts

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

Michigan

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

New York

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

Pennsylvania

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

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

Important takeaways from recent studies and reports

Strategies to reduce costs and risks of musculoskeletal disorders

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

Obesity and worker productivity by occupational class

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

BMI results were as follows:

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

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

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

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

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

Fatigue costs employers big bucks

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

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

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

Workers welcome employers’ help in dealing with stress

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

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

Supportive communication and work accommodation help older workers return to work

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

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

Click to hear the DMEC webinar

Loss control rep visits cut lost-time injuries in construction

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

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

Things you should know

NSC debuts Fatigue Cost Calculator for employers

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

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

NIOSH launches software platform to monitor health of emergency responders

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

EMS workers face higher occupational injury rates: NIOSH

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

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

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

NIOSH releases skin-hazard profiles on nine chemicals

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

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

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

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

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

Coventry 4th and Final Drug Trends Series Report

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

State News

California

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

New York

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

North Carolina

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

Tennessee

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

 

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

OSHA watch

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

While the preliminary list of the Top 10 violations for Fiscal Year 2017 remains largely unchanged from 2016, there is a newcomer in ninth place- Fall Protection – Training Requirements.

The full list:

  1. Fall Protection – General Requirements (1926.501) – 6,072
  2. Hazard Communication (1910.1200) – 4,176
  3. Scaffolding (1926.451) – 3,288
  4. Respiratory Protection (1910.134) – 3,097
  5. Lockout/Tagout (1910.147) – 2,877
  6. Ladders (1926.1053) – 2,241
  7. Powered Industrial Trucks (1910.178) – 2,162
  8. Machine Guarding (1910.212) – 1,933
  9. Fall Protection – Training Requirements (1926.503) – 1,523
  10. Electrical – Wiring Methods (1910.305) – 1,405

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

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

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

One-year delay on crane operator certification requirements sought

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

New PSM guide focuses on petroleum refineries

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

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

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

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

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

California

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

Florida

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

Illinois / Georgia

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

Minnesota

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

Nebraska

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

Pennsylvania

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

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

EEOC ordered to reconsider wellness rules

The Equal Employment Opportunity Commission’s (EEOC’s) rules about the fees employers can assess workers who do not participate in wellness programs were ruled arbitrary by the U.S. District Court for the District of Columbia on Aug. 22. Rather than vacate the rules, the court sent them back to the agency for redrafting. The court’s decision does not vacate the EEOC rules and employers are obligated to comply with existing rules, but should be alert to future changes.


Work conditions ‘unpleasant, potentially hazardous’ for more than half of Americans: study

Nearly 55 percent of American workers claim they encounter “unpleasant and potentially hazardous” conditions on the job, according to a study from nonprofit research institute RAND Corp., Harvard Medical School, and the University of California, Los Angeles. Nearly 1 in 5 workers reported exposure to a “hostile or threatening social environment at work” and 1 in 4 said they do not have enough time to complete job tasks.


National survey on fatigue indicates it is a hidden, but potentially deadly workplace epidemic

Some 43 percent of Americans say they do not get enough sleep to mitigate critical risks that can jeopardize safety at work and on the roads, including the ability to think clearly, make informed decisions, and be productive, according to a new National Safety Council survey-based report, Fatigue in the Workplace: Causes & Consequences of Employee Fatigue. An estimated 13 percent of workplace injuries could be attributed to fatigue.


CDC launches website on worker wellness programs

To help employers start or expand employee health promotion programs, the Centers for Disease Control and Prevention has created the Workplace Health Resource Center website.


New app from NIOSH: Lifting Equation Calculator

In an effort to prevent work-related musculoskeletal disorders, NIOSH has released a mobile app based on the Revised NIOSH Lifting Equation, an internationally recognized standard for safe manual lifting.


Updated ergo guide from NIOSH offers strategies for preventing MSDs

The NIOSH Musculoskeletal Disorders Research Program has updated its guidance document on the formation and function of ergonomics programs. Intended for both workers and employers, it provides strategies for identifying and correcting ergonomic hazards, as well as references, forms and questionnaires.


Guide offers best practices for safely using bleach to clean and sanitize

A new safety guide published by the Michigan State University College of Human Medicine, Occupational and Environmental Medicine Division offers best practices for workers exposed to bleach, including janitors, housekeepers, environmental engineers, and hospital, restaurant, maintenance and agricultural workers.


FMCSA, FRA withdraw rulemaking on sleep apnea

The Federal Motor Carrier Safety Administration and the Federal Railroad Administration have withdrawn an advance notice of proposed rulemaking on obstructive sleep apnea. “The agencies … believe that current safety programs and FRA’s rulemaking addressing fatigue risk management are the appropriate avenues to address OSA,” FMCSA and FRA stated in a notice published in the Aug. 4 Federal Register.


Operation Safe Driver Week set for mid-October

Law enforcement officers are expected to keep a particularly sharp eye on the roads Oct. 15-21 during the Commercial Vehicle Safety Alliance’s Operation Safe Driver Week. Officers will be looking for commercial motor vehicle and passenger vehicle drivers engaging in dangerous behaviors such as speeding, texting, following too closely and not wearing seat belts.


Opioids updates

  • One in 12 US physicians received a payment involving an opioid during a 29-month study of pharmaceutical industry influences on opioid prescribing, according to researchers who will publish their findings in September’s American Journal of Public Health. During the study, 375,266 non-research opioid-related payments were made to 68,177 physicians, totaling $46,158,388.
  • A study from the Worker’s Compensation Research Institute examines the prevalence and trends of longer-term dispensing of opioids in 26 state workers’ compensation systems. It also documents how often the services (i.e., drug testing, psychological evaluation, and treatment, etc.) recommended by treatment guidelines were used for managing chronic opioid therapy.

Study casts doubts on effectiveness of marijuana in combatting chronic pain

Research funded by the U.S. Department of Veterans Affairs was published on the Annals of Internal Medicine website. Limited evidence suggests that cannabis may alleviate neuropathic pain in some patients, but insufficient evidence exists for other types of chronic pain. There was also sufficient evidence to conclude that cannabis use among the general population probably increased the risk of car accidents, psychotic symptoms, and short-term cognitive impairment. It was noted more research is needed.

CSB releases animated video on Louisiana refinery fire

The Chemical Safety Board has released an animated video that examines the cause of last year’s ExxonMobil refinery fire, which severely burned four workers in Baton Rouge, LA.

State News

California

  • New regulations aimed at preventing incidents such as the 2012 Chevron Corp. fire at oil refineries will take effect Oct. 1.
  • Ratings bureau proposes small workers’ comp premium increase for 2018.
  • Workers’ comp bill safeguarding pregnant women put on hold.

Florida

  • NCCI recommends comp premium decrease of 9.6% effective Jan. 1, 2018.

Illinois

  • The National Council on Compensation Insurance (NCCI) recommends a 10.9% workers’ compensation premium rate decrease for Illinois.
  • Governor vetoes state-funded comp insurance plan.

Minnesota

  • Effective August 1, patients with post-traumatic stress disorder can purchase medical marijuana.
  • Department of Labor and Industry adopted the final rule from the federal Occupational Safety and Health Administration about walking-working surfaces and personal fall-protection systems.

New York

  • Employers should prepare to comply with the Paid Family Leave that goes into effect Jan. 1, 2018.

Pennsylvania

  • The Compensation Rating Bureau filed an emergency 6.06% loss cost increase in the wake of a state Supreme Court decision that blocks impairment rating evaluations.

 

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

Legal Corner

FMLA
Company properly terminated teller using intermittent FMLA leave

In Walker v. J.P. Morgan Chase Bank N.A., the U.S. District Court for the Northern District of Illinois ruled that a bank teller who received intermittent leave for hypertension and requested removal of the notary duties of her job did not show Family and Medical Leave Act (FMLA) retaliation or interference in her firing. On her intermittent leave, she was permitted to come in late, leave early, or miss a day when she was not feeling well and acknowledged that she was never denied FMLA leave approval. She did not request an ADA accommodation.

While she was working she received low or unsatisfactory job performance reviews, warnings for overall unsatisfactory performance, including poor customer relationships and failure to follow procedures to protect confidentiality. She was fired approximately two years after she requested intermittent leave and filed suit.

The court found that she was terminated because of her performance failings, not because she took intermittent leave. The company had properly continued to enforce its progressive disciplinary policy during the period of intermittent leave.


Medical Marijuana
Medical marijuana user can sue employer that rescinded job offer based on pre-employment drug test – Connecticut

In Katelin Noffsinger v. SSC Niantic Operating Company L.L.C., doing business as Bride Brook Nursing and Rehabilitation Center, a recreational therapist who suffers from post-traumatic stress disorder was prescribed a capsule form of medicinal cannabis in 2015, which she ingests every evening to help her sleep. Prior to her pre-employment drug test, she informed her future employer that she took medical marijuana. One day before she was to start her new job, after she had quit her former employment, the rehabilitation center rescinded her job offer over a positive drug test.

The company argued that federal law, which bans the use of marijuana, preempts Connecticut law that prohibits employers from firing or refusing to hire someone who uses marijuana for medicinal purposes. The court disagreed and found the employee can sue the employer.


Workers’ Compensation
Exclusive remedy protects general and special employer – California

The family of a Fresno paramedic who was killed in an air ambulance helicopter crash filed a wrongful death suit against Rogers Helicopters and American Airborne, claiming they were negligent in the maintenance and operation of the helicopter. A general partnership, ROAM dba SkyLife, existed between the companies, and the helicopters used in this partnership were jointly owned.

If there are dual employers, the second or “special” employer may enjoy the same protection of “exclusive remedy” under workers’ comp as the first or “general” employer. The court found the death occurred during the course and scope of employment, therefore, the family is precluded from suing the companies.


Work comp exclusivity rule does not preempt claim for emotional distress under FEHA – California

In conflict with an earlier decision from Division Three, the Court of Appeal, 4th District, has affirmed that the workers’ compensation exclusivity rule does not preempt employees’ emotional distress claims arising from discrimination or retaliation in violation of the Fair Employment and Housing Act (FEHA). The case, Melony Light vs. California Department of Parks and Recreation, et al., revolved around a co-worker who alleged harassment by supervisors for support of a co-worker who took medical leave for stress arising from harassment by supervisors. The court noted that exclusive remedy provisions are not applicable under various circumstances, including from a risk not reasonably encompassed within the compensation bargain.


Employer may be liable for costs up until denial of claim – Florida

In Mathis v. Broward County School Board, a custodian, who is diabetic and had an abscess on her foot, reported a puncture injury to her foot. When the abscess worsened, she went to the hospital and was operated on for a staph infection.

When the school board denied the claim, the employee appealed, not questioning the denial of compensability but arguing the board was obligated to pay the $116,000 bill from the hospital, which was incurred before the claim was denied. The 1st District Court of Appeal overturned a judge’s finding that the employer wasn’t liable, noting if an employer elects to pay and investigate, then the law requires that it pay all benefits due “as if the claim had been accepted as compensable” until the date of denial. The case was remanded to consider the board’s defenses and if this constituted emergency care.


Comp sole remedy for alleged victim of sexual harassment – Illinois

In Nischan v. Stratosphere Quality, the U.S. 7th Circuit Court of Appeals ruled that workers’ compensation was the sole remedy for a worker’s claim of battery by a corporate representative of a client, but that she had asserted a viable claim against her employer for failing to protect her from the corporate representative’s allegedly harassing conduct.

The Chrysler Group was one of Stratosphere’s biggest clients, and she alleged that Chrysler’s liaison sexually harassed her. The court said the Workers’ Compensation Act barred the claim of battery, since the act is the exclusive remedy for accidental injuries transpiring in the workplace. “Injuries resulting from a coworker’s intentional tort are accidental from the employer’s perspective unless the employer commanded or expressly authorized the tort.”


Use of indefinite article in settlement agreement leads to award of benefits – Indiana

In Evansville Courier Company v. Mary Beth Uziekalla, an injured worker settled a workers’ compensation claim for a neck injury. The settlement agreement allowed a claim for change of condition, at which point she could seek a medical opinion from the independent medical examiner.

When she exercised the provision, the designated doctor declined to give a medical opinion, so the parties agreed on a neurosurgeon, who determined that the change in condition did not result from her work injury. However, the original neurosurgeon, who also examined her, came to the opposite conclusion. The appellate court rejected the argument that the board erred in admitting the second opinion since the use of the phrase “‘a’ procedure for resolving future change of condition claims,” does not mean the agreement established the only such procedure. Indeed, the use of the indefinite article contemplates the contrary.


Longshoreman can pursue both WC and LHWCA benefits – Minnesota

Unless states have laws on the books indicating otherwise, injured longshoremen may seek benefits under both workers’ comp and the federal Longshore and Harbor Workers’ Compensation Act. In Ansello v. Wisconsin Central Ltd., the state Supreme Court ruled that a workers’ compensation judge abused his discretion when he dismissed the case for lack of jurisdiction.

In a dual-jurisdiction case, benefits in both jurisdictions can be pursued, but can’t be collected at the same time. The Longshore Act is more generous than the state’s workers’ compensation and typically would be accessed for wage loss and any residual benefits not paid under the state’s system. The court noted there is no danger of double recovery under concurrent jurisdiction, since employer’s awards under one are credited against any recovery under the second.


Failure to administer drug and alcohol testing in timely manner to injured worker nixes denial of benefits – Mississippi

In McCall v. Sanderson Farms, an appellate court held that an injured worker should not have been denied workers’ compensation benefits because he failed to submit to a post-accident breathalyzer test. The injured worker waited for the breathalyzer technician to arrive at the employer’s premises for more than an hour and one-half following the incident, but pain forced him to leave and seek care at the hospital, where he passed a drug test but was not administered a blood alcohol test. According to the court, the employee had not denied the test.


Drug sentence insufficient to prove worker earned money from dealing drugs – New York

Under Work Comp. Law § 114-a, if a person makes a false statement or representation as to a material fact he or she shall be disqualified from receiving any compensation directly attributable to such false statement or representation. In Pompeo v. Auction Direct USA LP, an injured worker who went to prison on drug-dealing charges would have lost his chance to resume collecting wage-replacement benefits after his release if his employer could prove he hid the drug-sale proceeds. However, the Board was within its powers to find that the criminal convictions alone were insufficient to establish that income had been received from the drug sales.


Widow gets death benefits for unwitnessed fall – New York

In Silvestri v. New York City Transit Authority, an appellate court ruled that a worker’s widow was entitled to benefits for his death from injuries caused by an unwitnessed fall at work that was never reported to his employer. He left prior to the start of the second overtime shift and witnesses said he was holding his stomach when he left, and that he had said he wasn’t feeling well.

His maintenance duties sometimes required him to repair subway cars while they were suspended over a pit that was 4 to 5 feet deep with a concrete floor, through the use of a ladder and he told his wife he had fallen off a ladder into “the pit” at work earlier that day. When he was having difficulty breathing and walking, he went to the hospital and was diagnosed with fractured ribs, was given painkillers and sent home. Three days later he was diagnosed with a ruptured spleen, as well as a punctured lung, and died in the hospital a day later.

While the presumption of compensability could not be used to establish that an accident actually occurred, the widow had established her claim without it.


Calculation of AWW must account for changes in wages, hours – North Carolina

In Ball v. Bayada Home Health Care, the Court of Appeals overturned the calculation of a worker’s average weekly wage that did not account for the fact that she switched from part-time to full-time employment, and that she worked more than three months after her injury at a higher rate of pay. After six months of part-time work, a nurse’s assistant took a full time position and was pushed down the stairs by a patient on her first day.

The statute sets forth five different methods for calculating a worker’s AWW and the Industrial Commission used the method for when less than 52 weeks is worked. This method sets the AWW as the sum of the worker’s earnings divided by the number of weeks actually worked, if this results in an amount that is “fair and just to both parties.” The court found that this method was unfair to the worker and set the AWW as the amount that “will most nearly approximate the amount which the injured employee would be earning were it not for the injury.”


Entire impairment rating evaluation process unconstitutional – Pennsylvania

The recent decision of the state’s Supreme Court in Protz v. Workers’ Comp. Appeal is having widespread implications for the workers’ compensation process. In Thompson v. Workers’ Comp. Appeal Bd, the Commonwealth Court held that one legal effect was to undermine the legal authority for the entire impairment rating evaluation (IRE) process. Accordingly, the Board could not approve a modification of benefits based upon an IRE.


Loss of earning power appropriate standard in reinstatement of benefits case – Pennsylvania

In Schafer v. WCAB (Reese Masonry), the Commonwealth Court overturned lower rulings by reviving a worker’s petition for reinstatement of benefits. It explained the wrong standard was used; the worker did not need to prove a worsening of his condition or inability to perform his regular job to be entitled to wage-loss compensation; he just had to show that his earning power was adversely affected by his disability and that it arose from his original claim.


Worker awarded benefits for fall that aggravated pre-existing arthritic condition – Tennessee

In Jenny Craig Operations v. Reel, a worker tripped and fell, aggravating the pre-existing arthritis in her knee and necessitating knee replacement surgery. The company accepted liability for a temporary injury to the knee, but it denied liability for the total knee replacement and for any permanent impairment. A trial judge found the fall had caused an acceleration, advancement, or progression of her osteoarthritis, such that she required a total knee replacement and a permanent partial disability of 46.5% to her right lower extremity.

The state’s Supreme Court Special Workers’ Compensation Appeals Panel agreed, noting, “an employer takes an employee as is and assumes the responsibility of having a pre-existing condition aggravated by a work-related injury which might not affect an otherwise healthy person.”

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

OSHA watch

Injury tracking application restored

The application launched on Aug. 1, as part of the compliance effort for its controversial electronic record-keeping rule, but a note on the website two weeks later said technical difficulties were making some of the ITA pages unavailable. A technology scan confirmed that there was no security breach and the application was restored.


Comments sought on lockout/tagout

The agency plans to issue a request for information in April 2018 regarding potential updates to its lockout/tagout standard, a frequently cited violation that is increasingly deemed out of date. There has been an increase in the variance requests because advances in technology that incorporate computer-based control of hazardous energy are increasingly used in machines and can conflict with the existing lockout/tagout standard.

Employer faces over $1 million in fines, including first walking-working surfaces violations

Shortly after the requirements under new Subpart D, “Walking-Working Surfaces (WWS),” became effective, Aluminum Shapes LLC of New Jersey Camden County was inspected and cited for 51 safety and health violations with proposed penalties of $1,922,895. Among the citations were fixed ladders, portable ladders, skylights, stairs, loading docks, and other walking-working surfaces that were not compliant. One violation for failure to ensure that the side rails of a ladder extended 42 inches above the top of the access level or landing platform served by the ladder resulted in a proposed penalty of $9,959.


Website changes

  • Data on workplace fatalities removed from home page, continuing shift away from policy of public shaming
  • The publication webpage is now formatted for all devices and has been reorganized
  • More employer stories added to heat protection pages

Trench safety symposium webinar available online

Conducted in conjunction with the National Utility Contractors Association, and the University of Texas at Arlington, the symposium focused on ways to prevent trenching and excavation hazards in the construction industry.

Safety training videos for tobacco farm workers

The North Carolina Department of Labor’s Agriculture Safety and Health Bureau, the Farm Labor Practices Group, NC State University and industry stakeholders collaborated to produce safety training videos addressing agricultural safety and health hazards faced by tobacco farm workers.

Enforcement notes

California

  • Crenshaw Manufacturing Inc. in Huntington Beach received six citations and $142,715 in penalties after a worker had three fingers amputated while manually loading products into an operating punch press. Fines relate to machine guarding, failure to conduct regular inspections, and lack of training.
  • Santa Ana-based Triumph Processing- Embee Division, Inc. plant, manufacturer of aircraft parts, received a total of 23 citations, totaling proposed fines of $87,500 for exposing workers to the dangerous chemical hexavalent chromium (chromium-6), and not notifying workers that they knew or try to protect workers from exposure.

Florida

  • Jacksonville-based Great White Construction Inc., a roofing contractor, faces penalties of more than $1.5 million for 14 workplace safety violations and has been placed in the Severe Violator Enforcement Program due to high-gravity, willful, egregious violations related to fall hazards.
  • An administrative law judge has vacated two citations issued against Riverview-based Central Site Development L.L.C. involving a fatality of a worker of a subcontractor. The company had received two citations under the general duty clause, but the judge found the multiemployer worksite doctrine does not apply to citations issued under the general duty clause.

Massachusetts

  • UHS of Westwood Pembroke, Inc. – doing business as Lowell Treatment Center, a behavioral health facility, faces $207,690 in proposed penalties for failure to abate violations involving workplace violence.
  • An administrative law judge upheld citations and $4,000 in penalties assessed against a contractor, Chris Welch, for failing to provide fall protection and appropriate ladders for his workers who were working on a roof of a house in Springfield.
  • An administrative law judge has affirmed citations and proposed fines issued against a roofing contractor, William Trahant Jr. Construction Inc. in Lynn, who failed to show at his scheduled commission hearing. Penalties are $43,560 for failure to provide fall protection or hard hats.

New York

  • Carthage Specialty Paperboard is facing $357,445 in proposed penalties for more than 60 safety and health hazards, including more than 20 instances of machinery lacking safety guards to prevent possible amputation.

Pennsylvania

  • An administrative law judge upheld citations against Montgomeryville-based Lloyd Industries Inc.’s facility after a worker’s three fingers were amputated when a machine without safety guards crushed his hand. Proposed total penalties are $822,000.

Wisconsin

  • Marshfield-based Felker Brothers Corp., a manufacturer of steel pipes and tubes is facing $110,458 in proposed fines after a worker was struck by a machinery part and suffered a shattered jaw and concussion, a worker was exposed to hexavalent chromium at levels 1.8% higher than the permissible exposure limit and other violations.

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

Things you should know

Return to work more likely with less-invasive back surgery

A recent study of 364 Ohio workers diagnosed with degenerative spinal stenosis who underwent back surgery found that those who underwent primary decompression, a surgical procedure to alleviate pain caused by pinched nerves, had higher return to work rates than those who had the more-invasive, more-expensive fusion surgery. The study was published in July’s Spine medical journal.


Ohio adopts rule requiring initial conservative back treatment

The Ohio Bureau of Workers Compensation’s new spinal fusion rule requires workers to first undergo at least 60 days of comprehensive conservative care, such as physical therapy, chiropractic care and rest, anti-inflammatories, ice and other non-surgical treatments before lumbar surgery. Conditions that require immediate intervention, such as spinal fractures, tumors, infections and functional neurological deficits, are exceptions to the rule.

DOL will again issue opinion letters on FMLA, FLSA and other laws

The U.S. Department of Labor will again issue opinion letters to assist employers and employees in interpreting laws like the FMLA and Fair Labor Standards Act. The DOL has established a new webpage to submit requests for opinion letters and to review old opinion letters.

New I-9s must be used beginning Sept. 18, 2017

USCIS released a revised version of Form I-9, Employment Eligibility Verification, on July 17. Employers can use this revised version or continue using Form I-9 with a revision date of 11/14/16 N through Sept. 17. On Sept. 18, employers must use the revised form with a revision date of 07/17/17 N. Employers must continue following existing storage and retention rules for any previously completed Form I-9. Changes to the form are considered minor.

Free safe driving kit from National Safety Council

The Safe Driving Kit, sponsored by Wheels, Inc., aims to create safer roads and protect employees through multi-media resources and engaging materials. The kit addresses the key contributors to car crashes, including distraction, alcohol, other drugs, fatigue and seatbelt use. It also brings attention to lifesaving technology that helps prevent crashes.

Workers’ comp making more progress in reducing opioid prescriptions

According to research released by the Centers for Disease Control and Prevention (CDC), the average days’ supply per opioid prescription increased from 13 days in 2006 to almost 18 days in 2015. Meanwhile, nearly half of the states included in a study of opioid prescribing in workers’ compensation cases have seen reductions in the frequency and strength of opioids given to injured workers, according to a study released in June by the Cambridge, Massachusetts-based Workers Compensation Research Institute.

More than 1,000 unsafe CMVs pulled from service during ‘Operation Airbrake’

Brake violations prompted the removal of 1,146 commercial motor vehicles from service as part of a recent unannounced, single-day inspection blitz across the United States and Canada on May 3. According to the Commercial Vehicle Safety Alliance (CVSA), 12 percent of CMVs inspected were taken out of service for brake violations, and 21 percent were removed for other violations.

More than half of workers aren’t trained on first aid, CPR: survey

About 10,000 cardiac arrest situations occur in the workplace each year, yet only 45 percent of U.S. employees have been trained in first aid – and only 50 percent of workers know where to find an automated external defibrillator – according to the results of a survey recently conducted by the American Heart Association.

‘Sleeping in’ on weekends may be bad for your health: study

Going to bed later and waking up later on weekends than during the week – also known as social jet lag – may be linked to poor health and higher levels of sleepiness and fatigue, according to the preliminary results of a study conducted by researchers at the University of Arizona. Results showed each hour of social jet lag was linked to an 11.1 percent increase in the chances of developing heart disease. In addition, participants who experienced social jet lag were 28.3 percent more likely to report their health as “fair/poor.” The study abstract was published in an online supplement to the journal Sleep.

Safety measures lacking on plastic injection molding machines, peripheral equipment: study

Factories with plastic injection molding machines that interact with peripheral equipment – such as robots or conveyors – could do more to improve safety, Canadian scientific research organization IRSST concluded in a recent study. The study was published in May along with a technical guide.

State news

New rule requires preauthorization of all compounds, regardless of price – Florida

  • To clear up a “misunderstanding” among stakeholders, the Florida Division of Workers’ Compensation has clarified that all compounded drugs, regardless of cost, are now subject to preauthorization.

Legislators pass budget without workers’ comp reform – Illinois

  • While the state faces one of the highest workers’ compensation insurance rates in the country, legislators were unable to reach a consensus on reforms.

Prescription drug monitoring program implemented – Missouri

  • Missouri was the only state that lacked a prescription drug-monitoring program prior to last month when the governor signed an executive order directing the Department of Health and Senior Services to create a prescription drug-monitoring program.

Workers’ comp rules tightened – Missouri

  • The new legislation redefines “maximum medical improvement (MMI)” as the point when the condition of an injured employee can no longer improve, and bans any claims for benefits beyond that time period. It also puts more emphasis on the employee proving an employer discriminated against them after they filed a workers’ compensation case.

4.5% decrease in workers’ comp for businesses – New York

  • The New York Department of Financial Services has approved the 4.5% workers compensation premium rate decrease recommended by the New York Compensation Insurance Rating Board effective Oct. 1.

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

Legal Corner

FMLA
Appeals court overturns jury verdict in favor of employer

In Cassandra Woods, Tina Hinton v. START Treatment & Recovery Centers Inc., Addiction Research and Treatment Corp, the 2nd U.S. Circuit Court of Appeals in New York reversed a jury verdict in favor of the employer in a Family Medical Leave Act (FMLA) case. According to the court the judge had wrongfully instructed the jury to apply the “but for” cause of her termination, that she would not have been terminated if she had not taken FMLA leave.

On appeal, Ms. Woods argued that she only had to establish the FMLA leave was a motivating factor in her termination, which is a lower standard. The court agreed, citing a U.S. Department of Labor rule that interpreted the statute in this way. The case was remanded for further proceedings.

Workers’ Compensation
Employer must pay $3.64 million in additional premiums based on audit classifications – federal

Aviation ground services company Servisair L.L.C., which is now a subsidiary of Cheshire, England-based Swissport S.A. L.L.C., contracted with Liberty Mutual Insurance Co. for a guaranteed cost insurance policy in which the final premium would be determined based on an audit of Servisair’s payroll classifications at the end of the policy period. The estimated premium was based on payroll information submitted by the company, which, according to Liberty Mutual, was knowingly over allocated to the inexpensive clerical classification.

The company refused to pay and argued that the policy was a product of a mutual mistake about the premium calculations and that the policy’s premium calculation provisions were ambiguous. The US District Court in Houston and the 5th U.S. Circuit Court of Appeals in New Orleans disagreed.

Exclusive remedy nixes remaining claims in NFL painkiller lawsuit – federal

A federal judge in California dismissed three remaining claims from a wide-reaching lawsuit filed by players alleging mistreatment with medications because the players had previously sought relief through workers’ compensation. The lawsuit argued that the underlying claims should be exceptions to workers’ compensation exclusivity because they were triggered by intentional acts by the teams, team doctors and trainers.

Second appellate court rules that untimely IMRs are valid – California

Recently, the 3rd District Court of Appeal (DCA) issued an unpublished decision in Baker v. WCAB (Sierra Pacific Fleet Services), agreeing with the decision of the 2nd DCA in California Highway Patrol v. WCAB (Margaris). “The interpretation of Section 4610.6, subdivision (d), as directory rather than mandatory is consistent with case law and implements the Legislature’s stated policy that decisions regarding the necessity and appropriateness of medical treatment should be made by doctors, not judges,” the 3rd DCA said.

Decision overturning total disability benefits limits to 104 weeks applies to case pending at the time – Florida

In June 2016, the Supreme Court (Westphal decision) ruled that terminating disability benefits after 104 weeks to a worker who is totally disabled and incapable of working but who has not yet reached maximum medical improvement is unconstitutional. In Ft. Walton Beach Medical Center/Broadspire v. Young, the question is raised whether the ruling applies to a case that was appealed the month before the ruling was issued. The 1st DCA noted the claims were filed in 2014 and 2015 while the Westphal decision was pending in the appellate court. The Supreme Court accepted jurisdiction of Westphal in December 2013, so its ruling applies to this case.

Ex-farm employee’s agricultural work precludes workers’ comp benefits – Indiana

In Charles O’Keefe v. Top Notch Farms, an employee drove a semi-truck and tanker and did a variety of other jobs on a farm. He was injured when he was picking up liquid fertilizer and the tanker overflowed. The injured worker argued that he should be considered a truck driver, not an agricultural employee exempt from the Workers’ Compensation Act. However, the Workers’ Compensation Board and the Court of Appeals disagreed, noting it must exam the “whole character” of the work to determine if it is agricultural in nature, so maintenance work is not categorically non-agricultural. His work as truck driver, granary sweeper, painter and truck washer, collectively, was agricultural in nature.

Undocumented worker placed on unpaid leave after filing workers’ comp claim may have a retaliatory case – Minnesota

In Sanchez v. Dahlke Trailer Sales, a divided Supreme Court held that an injured undocumented worker had raised a genuine issue of material fact as to whether an employer had discharged him because he sought workers’ compensation benefits. The employer argued it was not a discharge – the worker was placed on unpaid leave until the worker could show that his return to employment would not violate federal immigration law. However, the worker argued the company had long known and accepted his undocumented status. The Court also found that federal immigration law does not preempt an undocumented worker’s claim for retaliatory discharge under Minn. Stat. § 176.82, subd. 1 (2016).

General contractors must provide workers’ comp for all subcontractors – Mississippi

In Builders and Contractors Association v. Laser Line Construction Co., the Supreme Court ruled that Mississippi Section 71-3-7 requires general contractors to purchase workers’ compensation coverage for the employees of subcontractors, even if the subcontractors are exempt from a requirement to hold workers’ compensation coverage themselves.

Appeals court narrows compensability of horseplay – Missouri

In Hedrick v. Big O Tires, the Court of Appeals upheld the denial of benefits to a tire shop employee who sustained severe burns when he used a lighter to ignite a can of glue held in a coworker’s hand during an apparent lull in the workday. It noted that the worker’s ignition of the glue was not an accident and that it is the accident, and not the injury, that must be the prevailing factor in causing both the resulting medical condition and disability. Even if the extent of the injuries from the “non-accident” is more serious than expected, it does not warrant coverage.

Pre-existing asthma condition insufficient for relief from Special Disability Fund – New York

In Matter of Murphy v. Newburgh Enlarged City Sch. Dist., the court found that the employer had failed to demonstrate that a preexisting asthma condition hindered, or was likely to hinder, an injured worker’s employability. The court ruling was consistent with earlier decisions, which had held that preexisting conditions that are controlled by medication generally do not constitute a hindrance to employability.

Home health care services must be paid to injured worker, not spouse – New York

In Matter of Buckner v. Buckner & Kourofsky, LLP, the court found it was an error for the Workers’ Compensation Board to directly pay the wife, who was authorized to provide some home health services to her hemiplegic and wheelchair bound husband. Citing multiple earlier decisions, the appellate court held the award must be paid to the worker.

Construction worker independent contractor, not employee – North Carolina

In Bentley v. Jonathan Piner Construction, a construction worker printed business cards in the name of Bentley Construction and Maintenance, placed a decal on his truck with the company name, started a website to advertise the business, hired his own crew, set their hours, and used many of his own tools when working on various jobs. He and some of his crew were hired by a subcontractor to do framing work. The subcontractor offered to pay the business for the work, but was asked to issue a separate check for each man on the crew.

The owner of Bentley Construction and Maintenance sustained an eye injury and filed for workers’ comp, which was denied by the carrier. Applying the eight-factor test set forth in the North Carolina Supreme Court’s 1944 ruling in Hayes v. Elon College, an appellate court determined he was an independent contractor and not entitled to benefits.

Worker who jumped off roof entitled to benefits – Pennsylvania

In Wilgro Services, Inc. v. Workers’ Compensation Appeal Board (Mentusky), a HVAC mechanic, working on the roof of a building, had used a ladder roofers had been using to get up and down from the roof. One day he was the last one on the job, and there was no ladder available. He chose to jump from the lowest part of the roof, perhaps 16 to 20 feet from the ground and ended up with multiple fractures. The carrier denied the claim but the Workers’ Compensation Judge (WCJ) granted benefits, noting although the jump was ill advised, the worker did not intentionally injure himself.

On appeal, the case made its way to the Commonwealth Court, which agreed that the worker was in the scope and course of his employment and entitled to benefits.


Employer’s denial of benefits does not preclude right to subrogation – Pennsylvania

In Kalmanowicz v. WCAB, a divided Commonwealth Court ruled that an employer’s denial of a workers’ compensation claim does not forfeit its ability to partake in any recovery from a subrogated claim. In Pennsylvania, an employer’s subrogation right is often described in terms of being “absolute” and there are only “very narrow circumstances” in which that right can be waived.

In this case, the employer was contesting a claim for PTSD that arose from a fatal automobile accident where an oncoming vehicle swerved into the employee’s lane with the driver pressing his head against the windshield and staring at the employee. The employee argued that employer could not recover a subrogation lien because it had not accepted liability for the PTSD. Since the employer had not acted in bad faith nor failed to exercise due diligence in enforcing its subrogation rights, the court said the employer had not waived its right to subrogation.

Pension offset for workers’ comp based on maximum amount, not what was actually received – Pennsylvania

In Harrison v. WCAB, a divided Commonwealth Court ruled that an employer was entitled to an offset against an injured worker’s pension benefits based on the maximum monthly amount of pension benefits he could receive, even though he was receiving a lower monthly rate that provides a survivor benefit for his spouse. The court argued even though he received a reduced payment, his employer needed to provide funding to the pension plan to pay the survivor benefits to his wife and, therefore, both pensions would be “actuarially equivalent.”

Worker cannot sue co-worker for injuries in auto accident – Tennessee

In Williams v. Buraczynski, the Court of Appeals of Tennessee at Knoxville found that an injured worker could not sue his co-worker who was driving at the time of the accident for negligence. It noted the exclusive remedy was workers’ compensation and that case law provided the rights under the system. One of those rights is to “not be subject to a tort suit by another employee for actions taken in furtherance of the employer’s business.”

Claim for surgery treating pre-existing condition, not injury, disallowed – Wisconsin

In Flug v. Labor and Industry Review Commission, a divided Supreme Court ruled that a worker was not entitled to benefits for her surgery to treat her degenerative disc disease, even though she had a good-faith belief that the surgery was reasonable and necessary treatment for her work-related back and shoulder injuries.

A Wal-Mart supervisor suffered an injury to her shoulder and received conflicting opinions from three physicians regarding treatment. Following the recommendations of a neurosurgeon, she underwent surgery for an anterior cervical discectomy. However, the carrier only provided coverage for a muscle sprain based on the opinion of the doctor hired by Wal-Mart to perform an independent medical evaluation who concluded she suffered a cervical and shoulder strain that was resolved long before the surgery and that she had pre-existing degenerative disc disease.

While the Court of Appeals found that she was entitled to disability benefits for her surgery as long as she had a good-faith belief that it was necessary treatment for her industrial injury, the majority of the Supreme Court held “if the disability-causing treatment was directed at treating something other than the employee’s compensable injury” it is not compensable.

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

OSHA watch

Temporary enforcement policy on monorail hoists in construction

Employers whose monorail hoists fail to comply with requirements in the Crane and Derricks in Construction Standard will not be issued citations as long as they adhere to other regulations, according to a recent memorandum.

The temporary enforcement policy notes stakeholders identified gaps in the standard regarding monorail hoists, which typically are mounted on scaffolding systems, trucks or trailers. They are used to lift items such as mechanical equipment, precast concrete components and oil/propane storage tanks. Employers still need to comply with the overhead hoist and general training standards. General industry requirements for monorail hoists remain in effect.

New guide will help small businesses comply with silica rule for general industry and maritime

A Small Entity Compliance Guide for General Industry and Maritime to help small business employers comply with the Final Rule to Protect Workers from Exposure to Respirable Crystalline Silica describes the steps that employers are required to take to protect employees in general industry and maritime from the hazards associated with silica exposure.

Window cleaning association creates safety guide for workers

Through its alliance with OSHA, the International Window Cleaning Association has developed a guide for protecting the safety and health of window cleaners. The mobile-friendly guide offers best practices on identifying and avoiding fall, chemical, electrical and other hazards workers face on the job.

Fact sheet explains requirements to protect residential construction workers from confined space hazards

A new fact sheet explains how the Confined Spaces in Construction standard affects common spaces in residential construction, such as attics, basements, and crawl spaces. The fact sheet, developed after consultation with the National Association of Home Builders, and a detailed Frequently Asked Questions document, clarify some of the standard’s provisions and their application to residential construction work.

Construction organization publishes new heat hazard alert

A new heat hazard alert published by CPWR-The Center for Construction Research and Training, reviews heat hazards and the steps to prevent heat illness while working in hot weather. Extreme heat causes more deaths than any other weather-related hazard.

Publication on preventing injuries in the electric power industry now available

The electric power industry has released a case study to show the integral part safety and health programs play in keeping electrical workers safe on the job.

New webpage for HAZWOPER

Intended to help workers and employers involved with the Hazardous Waste Operations and Emergency Response Standard (1910.120) for construction and general industry, the webpage includes links to background information on HAZWOPER and corresponding standards, as well as resources for general businesses, worker preparedness, and training.

Enforcement notes

California

Chevron Corp. has settled workplace safety and health citations issued in relation to a 2012 refinery fire for more than $1 million. The negotiated settlement requires Chevron to institute measures, estimated over $20 million, to ensure process safety at the Richmond refinery, to develop and implement criteria and procedures to monitor equipment to alert operators when equipment should be replaced, and to provide specialized hands-on training on incident command situational awareness and hazard recognition for all Chevron Fire Department personnel.

Oakland-based Attic Pros Inc. was ordered to pay $2,109,480 in wages, liquidated damages and waiting time penalties for 119 workers who were misclassified as independent contractors, and $1,481,600 for civil penalties according to the state Labor Commissioner’s Office.

Florida

Ann Arbor-based Douglas N. Higgins Inc. and its related contracting company, Florida-based McKenna Contracting L.L.C. were issued 10 serious violations with total proposed penalties of $119,507 after three employees died from exposure to toxic gases in a manhole at a Florida worksite. Among others, the citations included failing to purge or ventilate a confined space before entry, exposing workers to an asphyxiation hazard and not providing necessary rescue and emergency equipment for employees overcome inside a permit-required confined space.

Georgia

An administrative law judge of the U.S. Occupational Safety and Health Review Commission upheld citations and a total of $6,013 in penalties assessed against Atlanta-based Empire Roofing Company of Georgia Inc. whose employees were not wearing fall protection. The company had appealed the citations and proposed fines, contending that the employees’ failure to tie off was the result of unpreventable employee misconduct and that all employees were appropriately trained. But the judge ruled that the employer did not meet the burden to use the defense, which requires “more rigorous” proof of employee misconduct since supervisors have a duty to protect their employees.

After several appeals, a safety citation against Smyrna-based Action Electric Co., for failure to affix a personal lockout or tagout device while servicing a client’s equipment that resulted in a fatality was upheld by a federal appeals court. The company contested the citation arguing that the lockout/tagout standard did not apply because the equipment that caused the fatality was not the equipment that its employees were servicing, and that its employees were only looking at the fans, not working on them, at the time of the incident. The Department of Labor responded that the cooling bed constituted one discrete mechanical system for the purposes of lockout/tagout rules, which would require employees to control the energy of the entire cooling bed before conducting work on it that could expose them to danger. The federal 11th Court of Appeals reinstated the citation noting employers are capable of determining the appropriate scope of their LOTO protocols and that it did not matter whether the employees were working on equipment or merely observing it.

Michigan

Following two reports of finger amputations on machines and an employee complaint alleging numerous safety hazards, the MIOSHA issued citations with penalties totaling $263,000 to AJM Packaging in Taylor.

Minnesota

Rahr Malting Co. in Shakopee faces $52,800 in penalties for safety violations identified after a worker was fatally injured in January. Inspectors issued four serious citations after determining that it failed to control potentially hazardous energy and provide point-of-operation machine guarding.

New Jersey

Delair-based Aluminum Shapes LLC, an aluminum manufacturing company with a long history of noncompliance has been cited for 51 safety and health violations and proposed penalties of $1,922,895. Willful violations included: provide appropriate personal protective equipment, conduct air monitoring prior to permit-required confined space entry, have an attendant during permit-required confined space entry, complete a required confined space entry permit to identify, evaluate and control hazards in the space, provide confined space training, utilize proper Lockout/Tagout (Control of Hazardous Energy) Procedures and training.

Ohio

Amsted Rail Company Inc., a manufacturer of cast steel freight components, faces $610,034 in proposed penalties for six repeat, 19 serious and five other-than-serious safety and health violations after investigators found workers at its Groveport plant exposed to machine hazards and silica. The company has been placed in the Severe Violator Enforcement Program.

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