Things you should know

NSC offers free toolkit to fight opioid abuse

The National Safety Council (NSC) is offering a free toolkit to help employers address the opioid crisis. The Opioids at Work Employer Toolkit addresses warning signs of opioid misuse, identifying employee impairment, strategies to help employers educate workers on opioid use risks, drug-related human resources policies, and how to support employees struggling with opioid misuse.

Workplaces most common site of mass shootings: Secret Service report

In its second Mass Attacks in Public Spaces report, the Secret Service examined 27 incidents in 18 states that involved harming three or more people. Most occurred in workplaces (20) and were “motivated by a personal grievance related to a workplace, domestic or other issue.”

Worker participation key to preventing safety accidents: CSB

The U.S. Chemical Safety Board (CSB) published a new safety digest discussing the importance of worker participation to avoid chemical mishaps. The report outlines how the shortage of worker engagement was a factor in various incidents examined by the CSB.

2018 guidelines more effective in preventing carpal tunnel: NIOSH

Previous studies showed that the 2001 American Conference of Governmental Industrial Hygienists (ACGIH) Threshold Limit Value (TLV) for Hand Activity was not sufficiently protective for workers at risk of carpal tunnel syndrome (CTS) and led to a revision of the TLV and Action Limit in 2018. A new study compares the effectiveness of the 2018 and 2001 guidelines, concluding that the 2018 revision of the TLV better protects workers from CTS.

NIOSH notes that many workers are exposed to forceful repetitive hand activity above the guidelines and urges compliance with the updated guidelines.

First aid provisions in workers’ compensation statutes and regulations: NCCI

The National Council on Compensation Insurance, Inc. (NCCI) has compiled state statutes and regulations related to First Aid in Workers’ Comp. The document does not include review or analysis of the statute or regulation, of relevant caselaw, or other guidance and is subject to change.

Mandatory treatment guidelines may lead to fewer back surgeries

States with mandatory use of medical treatment guidelines in utilization review, reimbursement and dispute resolution may lead to lower rates of lumbar decompression surgery among workers with low back pain, according to a new report by the Workers Compensation Research Institute.

The 27 states in the study include Arkansas, California, Connecticut, Delaware, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Nevada, New Jersey, New York, North Carolina, Pennsylvania, South Carolina, Tennessee, Texas, Virginia, and Wisconsin.

Engineered-stone fabrication workers at risk of severe lung disease

Exposure to silica dust from cutting and grinding engineered stone countertops has caused severe lung disease in workers in California and three other states. The CDC released information on cases in Washington, California, Colorado and Texas in an article published in the agency’s Morbidity and Mortality Weekly Report. According to the article, 18 cases of silicosis were identified in the four states from 2017 – 2019. Two of those workers died from the illness.

Campbell Institute offers a guide on how to get started with leading indicators

An Implementation Guide to Leading Indicators is intended to help employers initiate the process when implementing leading indicators for the first time.

Annual wind energy safety campaign focuses on hands

The American Wind Energy Association will offer several free resources in October as part of its annual month-long safety awareness campaign aimed at helping protect renewable energy workers from on-the-job injuries. The theme of the 2019 campaign is Take a Hand in Safety: Protect These Tools.

NIOSH releases international travel planner for small businesses

The 36-page travel planner is a new resource intended to help small-business owners ensure the health and safety of employees who travel internationally.

State News

California

  • Governor Newsom has signed two bills relating to workers’ comp. A.B. 1804 will require the immediate reporting of serious occupational injury, illness, or death to the Department of Industrial Relations’ Division of Occupational Safety and Health. A.B. 1805, modifies the definition of “serious injury or illness” by removing the 24-hour minimum time requirement for qualifying hospitalizations, excluding those for medical observation or diagnostic testing, and explicitly including the loss of an eye as a qualifying injury for the new reporting requirements. Both bills will take effect Jan. 1, 2020.
  • Legislators approved a landmark bill that requires companies like Uber and Lyft to treat contract workers as employees. The Governor is expected to sign it after it goes through the State Assembly. Uber, Lyft, and DoorDash have vowed to fight it.
  • Insurance Commissioner Ricardo Lara approved the Workers’ Compensation Insurance Rating Bureau’s annual regulatory filing that will, among other things, lower the threshold for experience rating.
  • The Division of Workers’ Compensation (DWC) announced that the temporary total disability rate will increase 3.8% next year, not more than 6% as the agency previously announced.
  • The DWC has issued an order modifying its evidence-based treatment guidelines for work-related hip and groin disorders. Effective October 7, 2019, the changes involved two addendums to the workers’ compensation medical treatment utilization schedule and incorporate the American College of Occupational and Environmental Medicine’s most recent hip and groin disorders guidelines.
  • The DWC launched an updated free online education course for physicians treating patients in the workers’ compensation system.

Illinois

  • Beginning July 1, 2020, hotels and casinos will be required to have anti-sexual harassment policies that include, for certain workers, access to a safety button or notification device that alerts security staff under the newly created Hotel and Casino Employee Safety Act.
  • Gov. J.B. Pritzker signed legislation requiring freight trains operating in the state to have at least two crew members, challenging the Federal Railroad Administration’s recent effort to prevent states from regulating train crew sizes. Scheduled to go into effect January 1, 2020, S.B.24 is to be known as Public Act 101-0294.

Minnesota

  • Department of Labor and Industry has posted new workers’ compensation medical fee schedules that took effect Oct. 1. The schedules update reimbursement for ambulatory surgery centers, hospital inpatient, and outpatient services, and provide new resource-based relative values for providers.
  • The workplace fatality rate in Minnesota grew to 3.5 per 100,000 full-time workers in 2017, the highest rate in at least a decade, according to new data from the Safety Council. Almost one in three fatal workplace injuries involved driving a vehicle.

North Carolina

  • The Industrial Commission announced that the maximum for temporary and permanent total disability will go from its current level of $1,028 to $1,066, starting Jan. 1.

Pennsylvania

Tennessee

  • New rules for medical payments went into effect September 10, 2019. Not only are reimbursement rates increasing for providers and hospitals, but the conversion factor may now “float” or follow Medicare’s changes, rather than being fixed.
  • The NCCI is recommending a 9.5% decrease in loss costs for the voluntary market in 2020, a figure that’s half of what the rating organization recommended for this year.

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

Things you should know

Studies and reports:

The Relationship of the Amount of Physical Therapy to Time Lost From Work and Costs in the Workers’ Compensation System – Journal of Occupational Medicine

Finding: Injured workers who take time off work to recover, and whose treatment includes more than 15 sessions of physical therapy, are out of the workforce longer and are six times more likely to cost more.

Suicide and drug-related mortality following occupational injury – American Journal of Industrial Medicine

Finding: Workplace injury significantly raises a person’s risk of suicide or overdose death.

Fatal occupational injuries to independent workers – BLS

Finding: Fatalities among independent workers accounted for about 12% of all workplace deaths in 2016-2017, and independent workers have a disproportionately higher share of fatalities due to falls, slips and trips.

Interstate Variations in Dispensing of Opioids, 5th Edition – Workers Compensation Research Institute (WCRI)

Finding: In 27 states, fewer injured workers received opioids recently as compared with previous years. But, injured workers continue to be treated for pain, as non-opioid pain medications (e.g., NSAIDs) increased to a lesser degree and non-pharmacologic treatments (e.g., physical therapy) without pain medication were more frequently provided.

The effects of sleep on workplace cognitive failure and safety (Construction) – Oregon Healthy Workforce Center

Finding: Among construction workers, there is a connection between poor quality sleep and the risk of workplace incidents and injuries.

Calories Purchased by Hospital Employees After Implementation of a Cafeteria Traffic Light-Labeling and Choice Architecture Program – Massachusetts General Hospital

Finding: Implementation of a traffic light-labeling and choice architecture program was associated with a 6.2% decrease in calories per transaction over 2 years, including a 23.0% decrease in calories from the least healthy food.

Drug trends: Evaluating Opioids – Coventry

Finding: The prescribing of drugs meant to treat opioid use disorder increased 5.4% in 2018 among workers compensation claims and 1.8% of claims with high doses of opioids received naloxone – an anti-overdose medication – at almost double the amount from 2017.

2019 RIMS Benchmark Survey – Business Insurance

Finding: The average total cost of risk for businesses rose by 2.1% in 2018, reversing four years of declines.

Workplace Secondhand Tobacco Smoke Exposure Among U.S. Nonsmoking Workers, 2015 – CDC

Finding: Nearly 1 out of 5 workers are exposed to secondhand smoke on the job. Results identify industries most at risk.

Commercial motor vehicle brake inspection event set for Sept. 15 – 21

Commercial motor vehicle inspectors throughout North America will perform brake system examinations Sept. 15-21 during the Commercial Vehicle Safety Alliance’s annual Brake Safety Week. While special emphasis will be placed on brake hoses and tubing, inspectors also will be looking for other critical non-brake-related violations.

State News

California

  • The Workers Compensation Insurance Rating Bureau (WCIRB) proposed that the Jan. 1, 2020 rates be about 5.4% lower than the current advisory pure premium rates, or $1.58 per $100 of payroll.
  • WCRIB’s X-Mod estimator is now available for 2020 at https://www.wcirb.com/estimator.

Florida

  • National Council on Compensation Insurance (NCCI) filed a proposed 5.4% rate decrease with the Florida Office of Insurance Regulation, effective January 1, 2020.

Minnesota

  • The Department of Labor and Industry has adopted an expedited rulemaking process, and has published new rules governing treatment and compensation for post-traumatic stress disorder in first responders.

Missouri

  • Department of Labor and Industrial Relations has adopted several new rule changes regarding administrative law judges, review applications and more.

Nebraska

  • Hospitals, insurers, self-insured employers, risk-management pools and third-party administrators can now make reports electronically. FAQ’s are on the website.

Virginia

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

OSHA watch

Comments sought on possible revision to silica standard

request for information was published August 15 in the Federal Register for input on potential revisions to Table 1 of the respirable crystalline silica standard for construction. Table 1 includes the task or equipment, engineering / work practice control methods, and required respiratory protection / minimum assigned protection factors for all shifts. The deadline to comment is Oct. 15.

New webpage on leading indicators

A new webpage is aimed at helping employers use leading indicators to improve their health and safety programs.

Employers reminded to submit Form 300A data

media release reminds employers who have not already done so to submit their 2018 Summary of Work-Related Injuries and Illnesses (Form300A). The deadline was March 2.

Access FREE electronic OSHA 300 Recordkeeping Software that creates the OSHA required data transmission file for online reporting here.

New way to track OIG recommendations

The Department of Labor Office of Inspector General has launched a Recommendation Dashboard website showing the status of its 235 recommendations for 12 agencies, including OSHA and the Mine Safety and Health Administration.

Recent fines and awards

California

  • Garden Films Productions LLC, based in Culver City, was cited for failing to protect employees from hazards while filming a movie in Norcross, Georgia and faces penalties of $9,472.

Florida

  • L N Framing Inc. was cited for exposing employees to fall hazards at a Jacksonville worksite and faces $58,343 in penalties.
  • Point Blank Enterprises Inc., operating as The Protective Group in Miami Lakes, was cited for exposing employees to amputation and other safety hazards and faces $92,820 in penalties.
  • Brad McDonald Roofing & Construction Inc. was cited for exposing employees to fall and other safety hazards at two construction sites in Lutz and Palmetto. The residential and commercial roofing work company faces $274,215 in penalties.

Georgia

  • Atlanta Kitchen LLC was cited for exposing employees to amputation, silica, and other safety and health hazards at its Decatur manufacturing facility. The countertop manufacturer faces $132,604 in penalties.

New York

  • Arbre Group Holding, doing business as Holli-Pac Inc., was cited for willful and serious violations of workplace safety and health standards at its Holley facility. The company, which packages frozen fruits and vegetables for retailers, faces a total of $200,791 in penalties.

Indiana

  • Five Star Roofing Systems Inc., based in Hartford City, was cited for repeatedly exposing employees to fall hazards while performing roofing work at a commercial building site in Lake Barrington, Illinois. The company faces $220,249 in penalties.

Missouri

  • H. Berra Construction Co., based in St. Louis, was cited for exposing employees to excavation and trenching hazards at a residential construction site in Saint Charles, and faces penalties of $143,206.
  • Missouri Cooperage Company LLC, a subsidiary of Independent Stave Company, was cited for exposing employees to amputation, noise, and other safety and health hazards at the spirits and wine barrel-making facility in Lebanon, and faces $413,370 in penalties.

Pennsylvania

  • A federal judge in the U.S. District Court has awarded $1,047,399 in lost wages and punitive damages to two former employees of a Montgomeryville-based manufacturer, Lloyd Industries, after a jury found the company and its owner fired them in retaliation for their participation in a federal safety investigation.
  • New Finish Construction, LLC, based in Fairchance, must pay $25,000 in fines for safety violations that led lead to the death of a worker. An ALJ of OSHRC affirmed two citations relating to working near energized sources, but vacated three citations and their accompanying penalties.

Tennessee

  • The Tennessee Valley Authority (TVA) was ordered to reinstate a former employee who was placed on paid administrative leave, and then later terminated in retaliation for raising nuclear safety concerns and pay $123,460 in back wages and interest, and $33,835 in compensatory damages, as well as attorney fees.

Wisconsin

  • Choice Products USA LLC was cited for continually exposing employees to machine safety hazards at the cookie dough manufacturing facility in Eau Claire. The company faces $782,526 in penalties, and was placed in the Severe Violator Enforcement Program.

For additional information.

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

Things you should know

Rating agency reports fifth year of comp profits but forewarns profits are not sustainable

According to Fitch Ratings Inc, the workers’ compensation market is on track for a fifth consecutive year of underwriting profits in 2019, despite recent weakening in market fundamentals. The industry’s statutory combined ratio fell to 86% in 2018, and has averaged 93% annually since 2015, according to the report. However, the report notes several factors that could result in a sudden deterioration in performance including an increase in claims frequency or severity, and new regulatory developments in key states, according to the statement.

NIOSH issues new banding guide for chemicals in the workplace

NIOSH has published a technical report intended to help control chemical exposures in the workplace. The NIOSH Occupational Exposure Banding Process for Chemical Risk Management details a strategy for managing the many chemical substances that don’t have an authoritative occupational exposure limit. Occupational exposure banding is a process that assigns each chemical to a category based on its toxicity and any negative health outcomes associated with exposure to it.

FMCSA seeks to delay two provisions in final rule on CMV driver minimum training

The Federal Motor Carrier Safety Administration is requesting delaying compliance of two provision, which were scheduled to go into effect Feb. 7, 2020. These include requiring training providers to upload certification information into FMCSA’s Training Provider Registry and a provision for state driver licensing agencies to “receive driver-specific [entry-level driver training] information.”

Comments are due Aug. 19.

Another court decision favors MAO right to sue under private cause of action provision

Medicare Advantage Organizations (MAOs) received a favorable ruling on a motion to dismiss the case, MSP Recovery Series, LLC v. Plymouth Rock, in Federal Court in Boston. Since 2012 no court has concluded that MAOs do not have at least some rights under the private cause of action provision.

Study finds adherence to evidenced-based medicine guidelines for lower back pain lowers comp costs

recent study in the Journal of Occupational and Environmental Medicine concluded there is a statistically significant trend in the relationship between adherence to ACOEM guidelines for the initial management of work-related lower back pain and decreasing claim costs. Medical and total costs trended lower by an average $352.90 and $586.20 per unit of compliance score respectively. No outlier cost claims were in the best guidelines compliance groups.

CMS proposed decision to cover acupuncture

The Centers for Medicare & Medicaid Services (CMS) issued a proposed decision to cover acupuncture for Medicare patients with chronic low back pain (cLBP) who are enrolled participants either in clinical trials sponsored by the National Institutes of Health (NIH) or in CMS-approved studies. Currently, acupuncture is not covered by Medicare. The goal of the proposed decision is to provide Medicare patients who suffer from cLBP with access to a nonpharmacologic treatment option and to determine the effectiveness.

NAHB offers resources on managing opioid misuse in residential construction

In response to the particularly heavy impact the opioid crisis is having on the construction industry, the National Association of Home Builders has introduced several free resources intended to help residential construction organizations combat the issue.

These include:

  • An executive training package, including a webinar and other downloadable materials, outlining why industry action is needed
  • Supervisor training packages on workplace interventions and preventing opioid misuse in the industry
  • Fact sheets on the risks associated with taking opioids, and identifying medical and nonmedical opioid
  • Resources on non-opioid alternatives to pain management
  • A state-by-state guide of locally available resources

Study identifies what professions have worst drivers

study of 1.6 million car insurance applications by Cambridge, Massachusetts-based Insurify Insurance Co., an auto insurance comparison website, found that bartenders, ticket sales representatives, and journalists had the most moving violations. The cause? These professions tend to work 55-60 hours per week and sometimes work weekends. In contrast, postmasters and music composers are the best.

Helping employees get more sleep improves productivity: review of research

Basic employer interventions such as educating workers about the importance of sleep and sharing strategies to improve it may result in better sleep habits, increased productivity, and reduced absenteeism, a recent review of research concludes. The studywas published in the April 15 issue of the Journal of Clinical Sleep Medicine.

New video for tower workers explores safe installation, maintenance of small cell antennas

new two-and-a-half-minute video from the National Association of Tower Erectors stresses hazard awareness for technicians who work with small cellular antenna towers on new or existing structures.

State News

California

  • The Workers’ Compensation Insurance Rating Bureau (WCIRB) released its 2019 State of the System report highlighting key metrics of the state’s workers’ compensation system.
  • The Division of Workers’ Compensation posted an order updating the Medical Treatment Utilization Schedule. Treating providers, qualified medical evaluators and agreed medical evaluators, and utilization review and independent medical review physicians can access the MTUS guidelines at no cost by registering for an account here.

Florida

  • The Division of Workers’ Compensation has finalized a rule that defines which injuries “shock the conscience,” as required by legislation passed more than a year ago. The eight injuries deemed to be shocking to the conscience are:
    • Decapitation (full or partial).
    • Degloving.
    • Enucleation.
    • Evisceration.
    • Exposure of the brain, heart, intestines, kidneys, liver or lungs.
    • Impalement.
    • Severance (full or partial).
    • Third-degree burn on 9% or more of the body.

    The Legislature will now be required to give final ratification because the rule is likely to cost municipalities more than $200,000.

Missouri

  • The maximum weekly benefit for temporary total disability, permanent total disability and death benefits rose to $981.65, effective July 1. Permanent partial disability rose to $514.20.

New York

  • Mandated comp coverage for farm laborers under the Farm Laborers Fair Labor Practices Act, which requires farm employers to provide workers compensation for laborers, institutes injury reporting requirements and offers laborers additional protections, takes effect Jan. 1, 2020.

Virginia

  • The Workers’ Compensation Commission released its 2018 Annual Report, which provides a summary of key initiatives, trends, and outcomes.

Wisconsin

  • Commissioner of Insurance approved an overall 8.8% rate decrease for businesses starting Oct. 1, the fourth consecutive year of decreases.


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

Legal Corner

ADA 

Employee unable to wear safety shoes can be terminated

In Holmes v. General Dynamics Mission Systems Inc., a U.S. District Judge in Virginia dismissed an employee’s claims alleging violations of the ADA after she was terminated for being unable to perform the essential functions of her job, specifically, wear required safety shoes. She worked at the manufacturing facility for 18 years and was given an exemption in 2003, based on a note from her doctor.

However, the company stopped exempting her in 2013 because an outside auditor found violations of the protective footwear policy and stated that future violations could jeopardize the company’s certifications. The company did research and present alternative footwear to her and when none were acceptable, she was placed on an excused absence and encouraged her to seek custom-made safety shoes, which the company would reimburse.

After more than two years of absence and no evidence that she pursued the custom-made shoes, she was terminated.

Employer’s failure to raise “regarded as” defense results in jury award to employee

In Robinson v. First State Community Action Agency, a manager told an employee she either had dyslexia or didn’t know what she was doing and placed her on a performance plan. She sought a medical opinion about dyslexia, which was not conclusive, and gave it to her manager who gave it to HR. The HR Director told her the evaluation did not have any impact on her ability to perform essential job functions, and she was to follow the performance improvement plan and she then sought a reasonable accommodation. A few weeks later she was fired.

She sued, alleging the employer regarded her as disabled and failed to provide a reasonable accommodation and a jury agreed. The employer appealed, arguing that the jury instructions didn’t reflect changes that the ADA Amendments Act in 2008. While the 3rd Circuit agreed that the jury instruction was made in error, and “after the 2008 amendments went into effect, an individual who demonstrates that she is ‘regarded as’ disabled, but who fails to demonstrate that she is actually disabled, is not entitled to a reasonable accommodation,” the employer had waived the right to contest it because it had not opposed the use of the argument earlier.

The case is a harsh reminder of the importance of raising all possible defenses early in the litigation to preserve the rights on appeal.

Workers’ Compensation 

No liability for Six Flags in workers’ electrocution – California

In Ingram v. Six Flags Entertainment Corp., an appellate court declined to overturn a jury trial verdict that declared Six Flags was not negligent for the injuries suffered by two workers who were electrocuted while repairing a ride. Although one of the electricians thought he had deenergized the equipment at Magic Mountain, there was an arc flash explosion, which caused serious burns.

They sued the parent company, Six Flags, arguing it failed to provide appropriate personal protective equipment and made changes to its safety program after the incident. However, Six Flags has a policy that forbids working on energized electrical equipment, provides training on how to shut off power, and successfully argued to exclude its post-incident safety program changes from the trial.

Failure to return to light duty work nixes award of TPD – Florida

In MJM Electric Inc. v. Spencer, an appellate court reversed a judge of compensation claims’ decision in favor of an injured worker because the employer had offered suitable light duty work. The electrician was injured at work and saw an authorized physician, but never returned to work in spite of multiple messages from his employer that light-duty work that fell within his work restrictions was available.

After two weeks of no response, the company fired him for job abandonment. He argued he did not recognize the number and had no voice mails. The judge of compensation claims found he was not entitled to temporary partial disability benefits for the first two weeks after his accident, but he could receive disability benefits after his termination because the company failed to meet its burden of showing suitable employment opportunities. The appeals court reversed and remanded the case.

Tort suit against subcontractor can proceed – Florida

In Heredia v. John Beach & Associates, an appellate court ruled that a man working for a subcontractor can sue another subcontractor and an employee. The injured employee was working for QGS, a subcontractor doing roadwork for Lennar Homes LLC and was accidentally struck by a truck owned by another subcontractor, John Beach & Associates, that was doing surveying work.

Under the law, when a contractor sublets work to subcontractors, all employees of the contractor and subcontractors are considered employed in one and the same business and are protected by the exclusive remedy provision. However, the court found in this case, Lennar was not performing any work, was not subletting work, and therefore, was not a contractor. The case can proceed.

Average weekly wage should be based on actual earnings not pro-ration wage – Georgia

A school custodian worked a school year schedule, but had his wage spread out over a 12-month period. In Ware County Board of Education v. Taft, an appellate court ruled that his wages should be based on his contractual rate, not the lesser actual pro-rated amount he earned during the 13-weeks preceding his injury.

Supreme Court provides guidance on PTSD provisions – Minnesota

In Smith v. Carver County, the state Supreme Court reversed a decision by the state’s Workers’ Compensation Court of Appeals (“WCCA”), finding the 2013 PTSD statute does not require a compensation judge to conduct an independent assessment to verify that the diagnosis was in conformity with the Diagnostic and Statistical Manual of Mental Disorders (DSM) before accepting the expert’s diagnosis.

The case involved a deputy sheriff who resigned after 10 years and was diagnosed with PTSD by a licensed psychologist. However, an independent psychological evaluator opined that he did not have PTSD, although he had adjustment disorder with anxiety. A WCJ found this opinion more persuasive and denied the claim. The WCCA overturned, finding this opinion did not address the PTSD criteria in the latest version of the DSM.

Nonetheless, the Supreme Court reversed noting the compensation judge’s legalistic analysis of the DSM-5 was not to become a substitute for the professional judgment of psychiatrists and psychologists and the judge did not err in finding the independent evaluation more persuasive.

High court rules no fault auto insurer must pay for injured driver’s excess chiropractic charges – Minnesota

In Rodriguez v. State Farm Mut. Auto. Ins. Co., an injured bus driver received 12 weeks of chiropractic treatments, the maximum allowed under the state’s workers’ comp law. She then sought treatment from another chiropractor and payment from her personal automobile insurance policy, which denied payment based on the workers comp payments.

The case made its way to the Supreme Court, which ruled the additional care fell outside of the comp statute because it was with a separate provider whose services had never been characterized as excessive.

Jury verdict of $74.1 million upheld in worker’s death – Missouri

The Ford Motor Co. must pay the widow of a truck driver who was struck by machinery while making a delivery at the Kansas City Assembly Plant ruled an appellate court in Ford v. Ford Motor Co. The driver, who had worked for the trucking company for less than two weeks, was delivering vehicle seats, which were removed by an L-shaped pair of conveyor lines. He entered the area between the conveyor belts to manually clear a jam during seat removal and stepped into a “pinch point” between the tables and was crushed.

The company appealed a jury verdict that assigned the company 95% comparative fault for his death and awarded his widow and son $38 million in compensatory damages, and $38 million for aggravating circumstances. The appeals court disagreed and upheld the award. The company plans to appeal to the state Supreme Court.

Right to cross-examine employer’s expert wrongfully denied – New York

In Matter of Ferguson v. Eallonardo Construction, an appellate court ruled that a worker was wrongfully denied the opportunity to cross-examine the insurance carrier’s medical consultant on how the permanent impairment rating of 40% was reached. While the counsel for the injured worker did not file a competing report, the court ruled that the right to cross-examine the carrier’s consultant was not predicated upon the filing of a competing report. The only requirement is that a request be made at a hearing, prior to the judge’s ruling on the merits.

Failure to complete application sufficient for denial – New York

In Matter of Jones v. Human Resources Administration, an appellate court ruled that an attorney’s failure to fill out every section of an application for administrative review was a proper basis for the Workers’ Compensation Board to deny it. While the worker received benefits for an work-related injury, she was later denied the request to add additional consequential injuries to her claim. There was a no information in the box for question 13 of the RB-89 form, which requested hearing dates, transcripts, etc.

Heart injury hours after accident compensable – North Carolina

In Holland v. Parrish Tire Co., a three-judge panel of the Court of Appeals reversed the Industrial Commission’s decision that a worker’s heart injury that occurred hours after he was hit in the chest with a tire was not compensable. While unloading tires for a delivery, he was hit in the chest by a tire that weighed between 100 and 200 pounds. The owner transported him to an urgent care center because he had turned gray and was uncharacteristically slow, where he was sent to an emergency room. There he was diagnosed with an aortic dissection and a collapsed lung and admitted to the intensive care unit.

He underwent surgery and was told he would have a work restriction of being unable to lift more than 40 pounds indefinitely, and was diagnosed with major neurocognitive disorder due to the open-heart surgery, adjustment disorder, and depression. Later, he was rated permanently disabled and unable to work by a treating physician and filed for workers’ comp, which was denied.

The appellate court found that the commission had not adequately considered physicians’ testimony that aortic dissections could be caused by trauma.

No comp for traveling salesman for car accident after celebration with coworkers – Pennsylvania

In Peters v. Workers Compensation Appeals Board (WCAB), a traveling salesperson drove past his house on his way to a happy hour with colleagues and was injured in a car accident when returning home. Although he argued that he was traveling home from a work-sponsored event in a work van, and that as a traveling employee, his accident should be compensable, a judge, the WCAB, and the Commonwealth Court disagreed. It found that the gathering was not furthering the interest of the employer, but rather was a social gathering. Further, while a traveling employee is presumed to be within the course and scope of employment when he is driving to or from work, he had abandoned his employment by driving past his house on his way to the happy hour with colleagues.

Failure to use an automated external defibrillator not breach of duty – Pennsylvania

In Desher v. Southeastern Pennsylvania Transportation Authority, an appellate court judge affirmed a trial court ruling denying the guardian of a worker, who suffered a cardiac arrest and a subsequent brain injury at work, damages under the Federal Employers Liability Act (FELA). The guardian claimed the former employer was liable for the incident for not administering an automated external defibrillator (AED).

While the company had an AED within 100 yards of the incident, it did not use it and paramedics arrived within two minutes and used one. There was no evidence suggesting a heightened risk of cardiac events for employees or that it provide assistance in the form of an AED.

Continuing denial of opioids affirmed – Pennsylvania

In Jason Golembesky v. Workers’ Compensation Appeal Board (Worth & Co. Inc.), a manufacturing worker had been on high doses of opioid oxycodone since his injury in 2010. In 2016, the employer filed a utilization review petition, and the reviewing doctor opined that the opioid prescription was excessive. The worker filed a petition for review of the findings, arguing he had tried alternative methods of controlling the pain, which had not worked. The employer also presented evidence from an independent review doctor who noted the worker was taking massive dosages, essentially three times what is considered a high dose of morphine equivalent.

A WCJ and the WCAB found the opinions of the independent reviewers more credible than those of the worker’s providers.

More than ten years after injury, worker awarded benefits for right knee condition – Virginia

In Nanochemonics Holdings, LLC v. McKinney, a worker sustained a work-related left knee injury. More than ten years later, he filed a claim for a right knee condition. Stressing that the employer is responsible for all sequelae that flow from the primary work-related injury, an appellate court affirmed the award benefits, noting that the problem was caused, at least in part, by an altered gait brought about by his earlier left knee injury. While it acknowledged that the worker was morbidly obese, this did not amount to a sufficient break in causation.

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

12 mistakes employers make when an OSHA inspector knocks unexpectedly

Even well-prepared employers can panic when an OSHA inspector arrives unexpectedly at the door. Why are they here and are we really prepared?

While the chances of an inspection are small (there are about 8,000,000 workplaces and OSHA and its State Plans average about 73,000 annually), advance notice is rare. In fact, Compliance Safety & Health Officers (CSHO) are prohibited by law from providing employers with advanced notice of pending inspections, with limited exceptions (see p. 3-3 of field operations manual).

Employers who are ill-prepared for an inspection and make bad decisions during an inspection face unwelcome and costly fines. Even well-prepared employers find it difficult to escape an inspection without a citation – there is a 75% chance that at least one violation will be found.

Here are 12 mistakes commonly made by employers:

  1. Refuse to let OSHA enter the worksite. While most inspections are surprises, many experts and former inspectors advise against requiring a warrant. This is likely to bring enhanced scrutiny and create an adversarial tone. A cooperative attitude is important; however, this is a good time to negotiate the limit and scope of the inspection.
  2. Fail to consider the personality of the employee designated to meet with and accompany the inspector. While it’s critical the employee be knowledgeable and intimately familiar with the operations and safety policies of the business, personality and attitude play a major role. Someone who is defensive, arrogant, or a know-it-all is likely to irritate the CSHO. The inspector’s report includes a place to note lack of cooperation. And don’t designate someone who loves to talk and tell how wonderful the company is. It’s going to fall on deaf ears and they probably will volunteer too much information. Best to designate someone who is polite, professional, can stay focused, and who is confident and willing to ask questions.
  3. Don’t have a backup for the designated employee. Inspectors will wait a “reasonable” amount of time – usually a half hour to an hour. While that might be a good opportunity to correct some small hazards and tidy up housekeeping, delaying the inspection will be noted on the form and it’s unlikely anything you do in that time is going to make a significant difference.
  4. Fail to limit the scope of the inspection. This is perhaps most important. Employers have a right to know the purpose of the inspection and to have a “reasonable inspection” at a “reasonable time.” Employers should insist on an opening conference when the CSHO explains the reason for the inspection and the employer can negotiate the scope. It’s also an opportunity to ask questions and to try to establish ground rules about how the inspection will proceed, including interviews, collection of documents, and the physical access to the facility.

    Some inspections, such as those under the Site-Specific Targeting Enforcement Program, can be wall-to-wall but most unprogrammed inspections can be limited. If the inspection was prompted by an employee complaint, the employer has a right to see the complaint and limit the inspection to related areas. If the CSHO is there to investigate an incident, take the most direct route to the site of the incident. Minimize exposure to the rest of the facility. Everything inspectors see is fair game for citations, such a missing handrails, poor housekeeping, improper signage, fire extinguishers, etc. If an officer tries to do a wall-to-wall inspection when there is a specific reason for the inspection, the employer should push back.

  5. Don’t know the criteria for emphasis program or compliance directive inspections. If there is a programmed inspection under an emphasis program or compliance directive, an employer can refuse, if they know they don’t fit the criteria.
  6. Don’t replicate the photos, videos, and notes the inspector makes. It’s important to escort the CSHO at all times and to mirror the actions of the inspector during the walkthrough. Take the same photos, videos, notes, measurements, sampling etc. so you have a clear record of what they captured. OSHA has a six-month statute of limitations to issue citations.
  7. Admit to violations. There may be violations pointed out during a walk through. For example, if an inspector points out an unguarded machine, say you will address it, but don’t admit the violation or try to go into a lengthy explanation of why it is not guarded.
  8. Don’t insist that document requests be in writing. At the opening conference, it’s best to agree that document requests, except OSHA Recordkeeping forms, be made in writing (it can be handwritten) so that there is no confusion over what documents are being requested and so that the employer is not cited for failure to produce a document it did not believe was requested. It is important to remember that the employer has no duty to produce certain documents (e.g., post-accident investigations, insurance audits, consultant reports, employee personnel information) if a regulation does not require such production. Any documents produced can be utilized to issue citations. If you don’t have the document, say so. Don’t rush to produce a new document.

    While not a comprehensive list, long-time OSHA employee and Area Director John Newquist recently published the “Scary 13” – documents employers can’t produce during an inspection – in The National Safety Council’s June Safety Health magazine.

  9. Don’t protect their trade secrets and business confidential information from disclosure to third parties. This is an employer’s right, but it is critical to keep a record and identify the documents as confidential.
  10. Don’t sit in on management interviews. A supervisor’s comments are imputed to the employer and, for this reason, employers have the right to and should be present and participate in interviews of management, regardless of whether the manager wants the representative there. That right does not exist with non-management employees, but it’s important for employees to know their rights about interviews and that they will not suffer adverse employment actions. While it’s important to be careful not to coerce, intimidate, or influence, employers can prepare employees for interviews. Also, the employer can request that “on floor” interviews be limited to five-minutes on production and processes. Employers should attempt to schedule more extensive interviews about training, background, etc. that should take place in a conference room with a table and chairs, but no white boards or documents present.
  11. Consider only the cost of the penalty. Employers have the critical right to contest OSHA’s citations, but some employers want to move on quickly, and consider only the monetary amount when deciding whether to contest, particularly when the cost is low. A recent webinar, Prepare for and Manage an OSHA Inspection by the Conn Maciel Carey law group, notes that there are several goals an employer should consider before accepting a citation, as well as strategies to reduce the impact. Accepting a citation can open the door to future, more costly repeat violations ($132,598), impact civil wrongful death or personal injury actions, affect bidding, harm customer and employee relationships, increase possibilities of being placed in the Severe Violators Enforcement Program, and affect insurance costs and coverage.
  12. Don’t immediately correct hazards, when possible. The closing conference usually takes place one to six weeks after the inspection. This is a good time to demonstrate cooperation by showing that hazards identified during the inspection have been corrected or abated.

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

Insights from OSHA’s recently released enforcement summary

While many anticipated a relaxing of OSHA’s enforcement actions under the Trump administration, the recently released enforcement summary tells a different story. There were 32,023 federal inspections in FY 2018, a number that has remained relatively stable over the past three fiscal years. The continued aggressive inspection strategies under the Trump administration has confounded many. There’s been a record number of $100,000+ citations, higher penalties, continuing increase in willful and repeat citations, as well as worker safety criminal prosecutions; yet, the number of inspectors has declined raising concerns of safety advocates. Also, the figures are for federal inspections. OSHA only covers about 50% of employers-state plans handle enforcement in the private sector in 22 states. State plans must be as effective as federal OSHA, but some states, such as California, have adopted stricter standards.

The enforcement summary provides valuable insight into what triggers an inspection. Over 56% of the inspections were unprogrammed inspections. These include employee complaints, injuries/fatalities, follow up inspections, and referrals. In FY 2018 (Oct. 1, 2017 – Sept. 30, 2018), OSHA conducted 941 fatality/catastrophe investigations, the highest number of such investigations in more than a decade and a 12.4% increase from 2017.

Employee complaints triggered 41% (7,489) of the unprogrammed inspections and over 23% of all inspections. Under the OSHA Act, every employee has the right to complain to OSHA and request an inspection, if they feel there is a violation of a health and safety standard. OSHA does not have the resources to conduct an inspection for every complaint, but evaluates each complaint to determine how it can be handled best – an off-site investigation or an on-site inspection. For an on-site inspection, at least one of eight criteria must be met.

Referrals prompted 6,463, about 36% of unprogrammed inspections and 20% of all inspections. Theses encompass all subtypes of referrals such as those received from compliance safety and health officers, safety and health agencies, other city/county/state/federal governments, media, and employer-reported.

A programmed inspection occurs when the inspection is scheduled because of OSHA selection criteria, such as emphasis programs or compliance directives. They tend to focus on the industries and operations where known hazards exist (e.g., combustible dusts, chemical processing, ship-breaking, falls in construction are some examples), including those that fall under an OSHA emphasis program, and accounted for 44% of the inspections.

In October, the agency launched a Site-Specific Targeting program using data from 2016 Form 300A to target non-construction workplaces with 20 or more employees. While workplaces with high DART rates and those that did not submit the required data are OSHA’s primary enforcement focus, there is also a random sample of low injury rate establishments on the inspection list for quality control purposes. What’s important to know is that these inspections are comprehensive – they are wall-to-wall.

Employer takeaway: While the data provides clues as to the situations that will trigger an inspection, all employers should recognize an inspection can be random and be prepared. If there’s been a fatality or catastrophic injury at a worksite, a legitimate employee complaint, a referral, or a previous inspection with citation, an inspection is likely.

In addition, those industries subject to local (LEP) or national emphasis programs (NEP) and worksites with high DART rates are more vulnerable. It’s important to know the criteria for LEP’s and NEP’s. If OSHA shows up for an inspection at a workplace under one of these programs when the company doesn’t fit the criteria, the employer has a right to refuse the inspection.

Employers should be cognizant of the high number of inspections prompted by employee complaints. Managers who are dismissive of safety concerns or hostile toward those who raise them expose the company to costly consequences. Those who foster a strong safety culture and encourage feedback are less likely to receive complaints or be cited by OSHA.

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

Legal Corner

Workers’ Compensation 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Insurer must pay for injuries despite misinformation in policy – Georgia

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

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

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

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

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

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

Employee can sue Canada – Massachusetts

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

Worker who resigned after injury can collect unemployment – Minnesota

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

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

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

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

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

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

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

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

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

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

Failure to mention side business not fraud – New York

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


Health Insurance and Outcomes of Injured Workers – WCRI

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

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

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


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

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

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

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


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

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

Findings:

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

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


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

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

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

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

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


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

 

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

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

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

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

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

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

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

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

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