OSHA watch (part 2)

Heat illness prevention

new video on heat hazard recognition and prevention is available.

Cal/OSHA issued a news release reminding employers to protect outdoor workers from heat illness.

Construction safety

A virtual stand-down to prevent struck-by incidents in construction is now available to view.

Recent fines and awards

Florida

  • Jax Utilities Management Inc. was cited for exposing employees to cave-in hazards at a Jacksonville worksite. Inspected as part of the National Emphasis Program on Trenching and Excavation, the construction contractor faces $56,405 in penalties.
  • Two contractors, Prestige Estates Property Management LLC of North Miami and Jesus Balbuena of Miami, face $44,146 in penalties for failure to protect employees from fall hazards at a construction worksite in North Miami. The investigation followed an employee’s 20-foot fall from an aerial lift that led to fatal injuries.
  • Flat Glass Distributors Inc. was cited for exposing employees to unguarded machinery, failure to implement and have a written lockout/tagout program, and electrical hazards at the Jacksonville fabrication and distribution facility. Inspected as part of the National Emphasis Program on Amputations, the custom glass shaping and cutting distributor faces $121,446 in penalties.
  • Crown Roofing LLC was cited for exposing employees to fall hazards at a residential worksite in Tamarac. The Sarasota-based contractor faces penalties of $134,937. The inspection was initiated under the Regional Emphasis Program for Falls in Construction after inspectors observed employees working on roofs without fall protection.

For additional information.

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

HR Tip: EEOC expands COVID-19 workplace guidance, delays EEO-1 deadline

Employers cannot exclude employees from working simply because they have an underlying medical condition that the Centers for Disease Control says may pose a higher risk of severe illness if they contract COVID-19. In early May, the Equal Employment Opportunity Commission (EEOC) posted an updated and expanded technical assistance publication addressing questions arising under the Federal Equal Employment Opportunity Laws related to the COVID-19 pandemic. The publication, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, expands on a previous publication that focused on the ADA and Rehabilitation Act.

The newly added questions and answers, G.3, G.4., and G.5., provide information about the accommodation of employees with underlying medical conditions. The answer to G.4. was revised after the initial posting to clarify that the ADA does not allow exclusion of employees simply because they have an underlying medical condition that the CDC says might pose a higher risk of severe illness if the individual contracts COVID-19.

Employers must do a thorough direct threat analysis, which includes an individualized assessment based on relevant factors and a determination of whether the threat can be reduced or eliminated through a reasonable accommodation. The guidance notes that the “direct threat” requirement is a high standard. It also includes information on what an employee needs to do to request a reasonable accommodation and examples of accommodation. A worker must inform the employer that a change is needed for a reason related to a medical condition, which may be requested in conversation or writing. The employer may then ask questions or seek medical documentation.

EEO-1 filing deadline delayed

The Coronavirus pandemic has delayed the deadline for employers to file both their 2019 and 2020 EEO-1 Component 1 data to March 2021.

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

Things you should know

Medical payments per comp claim rise: WCRI

Medical payments per workers compensation claim increased in most states in 2018 after a period of relative stability, according to studies of 18 states by the Workers Compensation Research Institute (WCRI).

Managers’ attitudes toward worker well-being can lead to safe and healthy behaviors: study

Employees who sense their managers are invested in their well-being at work may be more likely to practice safe and healthy behaviors on the job, results of a recent study from the Colorado School of Public Health suggest. The study was published in the February issue of the Journal of Occupational and Environmental Medicine.

Worker suicide: CDC study explores which industries, occupations have the highest rates

Comprehensive suicide prevention strategies that target certain industry and occupational groups are needed particularly in the extraction and construction industries, according to a report from the Centers for Disease Control and Prevention.

Early care can help mitigate mental issues tied to workplace injuries

An article in Business Insurance cites several studies finding that people who were injured at work have an increased risk of both opioid dependence and depression.

Preventing opioid misuse: New guide for employers in rural areas

Aiming to assist rural communities in the fight against opioid misuse, the Office of National Drug Control Policy has partnered with the U.S. Department of Agriculture on a guide for employers.

State News

California

  • COVID-19 resources for businesses can be found here.

Georgia

  • COVID-19 resources for businesses can be found here.

Illinois

  • COVID-19 resources for businesses can be found here.

Indiana

  • COVID-19 resources for businesses can be found here.

Massachusetts

  • COVID-19 resources for businesses can be found here.
  • The Division of Insurance approved an average 6.8% rate cut for policies incepting on or after July 1.

Michigan

  • COVID-19 resources for businesses can be found here.

Minnesota

  • COVID-19 resources for businesses can be found here.
  • According to a WCRI report, medical payments remained fairly stable between 2013 and 2017 before rising in 2018 at a rate of 6.5% for claims with more than seven days of lost time at 12 months’ maturity. Indemnity benefits per claim were approximately $15,500 for 2016 claims evaluated in 2019.

Missouri

  • COVID-19 resources for businesses can be found here.

Nebraska

  • COVID-19 resources for businesses can be found here.

New York

  • COVID-19 resources for businesses can be found here.

North Carolina

  • COVID-19 resources for businesses can be found here.

Pennsylvania

  • The Governor’s office has issued several COVID-19 guidances related to worker safety, manufacturing, building safety, and construction.

Tennessee

  • COVID-19 resources for businesses can be found here.

Virginia

  • COVID-19 resources for businesses can be found here.
  • The average medical payment per claim decreased 13% after the state implemented a workers compensation medical fee schedule in 2018, according to study details released by the WCRI.

Wisconsin

  • COVID-19 resources for businesses can be found here.

 

For additional information and resources on Coronavirus, go to the Duncan Financial Group COVID-19 Resource Center Online

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

 

Legal Corner

FMLA
ABA’s summary of 2019 FMLA decisions

Each year, the American Bar Association’s (ABA) Federal Labor Standards Legislation Committee publishes a comprehensive report of FMLA decisions handed down by the federal courts in the previous year. This handy report summarizes every FMLA decision from November 1, 2018 through October 31, 2019 in a user-friendly manner.

 

Workers’ Compensation
“Borrowed servant” provisions prevent temporary worker’s tort action against employee – Georgia

In Sprowson v. Villalobos, Waste Pro USA entered into a contract with Labor Ready for providing temporary employees to perform work under Waste Pro’s general or direct supervision. A temporary employee was working on a sanitation truck driven by a Waste Pro employee when he was pinned between the truck and a tree. He received comp benefits from Labor Ready and filed tort action against Waste Pro and the driver of the truck.

A judge dismissed the case against Waste Pro, noting it was barred by the exclusive remedy provisions, but allowed the case against the driver to proceed. The Court of Appeals found that the driver was “an employee of the same employer” and, thus, was protected by the exclusive remedy provisions. The court explained that even if the worker works for a different employer, when he is a “borrowed servant,” he is the co-employee of the borrowing employer’s regular employees, even though temporarily.

 

Case to watch: Worker who died from COVID-19 sues Walmart – Illinois

The family of a Walmart worker who died from complications of COVID-19 is suing the retailer in Estate of Wando Evans vs. Walmart, Inc. Four days after her death, another employee at the Chicago area store died of complications from COVID-19 and other employees exhibited symptoms. The case alleges that the retailer failed to cleanse and sterilize the store, failed to adhere to social distancing guidelines, failed to provide proper PPE, failed to notify employees of known cases, failed to follow OSHA and CDC guidelines, failed to provide employees with soap and wipes, failed to train personnel to minimize threat of COVID-19, failed to monitor employees for symptoms, and hired by phone without verifying they did not have the virus.

 

Additional evidence allowed to support claim of mental injury – Missouri

In Department of Transportation v. Labor and Industrial Relations Commission, a worker for the Department of Transportation (DOT) worked for more than 20 years responding to accident scenes. Her case went through several appeals and ultimately the Supreme Court vacated the finding of compensability, noting that the wrong standard was applied to determine if the work-related stress was “extraordinary and unusual.”

The case was remanded with the directive to review the case against the proper standard, “whether the same or similar actual work events would cause a reasonable highway worker extraordinary and unusual stress.” In turn, the worker filed a motion to submit additional evidence and the DOT filed a request for writ relief, which was denied by the courts.

 

High court denies benefits for injury at doctor’s office – Missouri

In Schoen v. Mid-Missouri Mental Health Ctr., a charge nurse had a reaction to an insecticide that was sprayed around air conditioning units to control ants. The health center sent her to a physician for an evaluation. As she was being escorted by the doctor to a pulmonary function test, the doctor tried to divert a dog and accidentally tripped the nurse. She fell and allegedly sustained permanent injuries to her knees, lower back, hip, and neck, although the physician completed his exam and found she could return to regular duty.

The case made its way to the Supreme Court. Although the employee argued that her tripping injuries were the natural consequence of her cypermethrin exposure, the Court found that the risk of being tripped accidentally was a risk to which she was equally exposed outside of her employment.

 

Future wage replacement benefits denied because of misrepresentation – New York

In Matter of Teabout v. Albany County Sheriff’s Dept., an appellate court confirmed a WCLJ’s and WC Board’s ruling that an employee could not receive future wage replacement benefits because she had misrepresented her work activities and failed to disclose important information to the examining physician. The worker had sustained a foot injury and received a permanent total disability classification. However, while she denied working following the injury, she was running a photography business.

Further, she had denied any psychiatric history prior to her work accident, as well as any family psychiatric history. Based on those denials, the treating physician diagnosed adjustment disorder with a depressed mood that was causally related to her 1997 injuries. However, later the physician received medical records that revealed a strong history of psychiatric issues.

 

Traveling employee rules lead to benefits for traumatic brain injury – New York

In Matter of Wright v. Nelson Tree Serv., an appellate court affirmed a decision by the Workers’ Compensation Board that awarded benefits to a worker who suffered a traumatic brain injury in a motor vehicle accident. The tree service worker was assigned to various locations, sometimes over six hours from his home when he opted to stay at a local hotel for the workweek. He was paid a per diem for food and lodging.

He and his coworkers would drive from the hotel to the same parking lot to pick up a bucket truck and proceed to the designated work site. En route to the parking lot, he was seriously injured. While a WCLJ found the injury was not compensable, the Board reversed and the Appellate Court agreed. It applied the traveling employee exception, where injuries may be compensable even if the employee at the time of the accident was not engaged in the duties of his or her employment, provided that the employee was engaged in a reasonable activity.

 

Traveling employee’s fall in hotel laundry room not compensable – North Carolina

In McSwain v. Industrial Commercial Sales & Serv., LLC, a worker was part of a crew working on a project in California. They finished a day early, but the company opted not to change their flight due to the high cost. On the day off, one worker started a load of laundry then joined his coworkers on the patio for some drinks. When he returned to retrieve his laundry he slipped on a wet spot and fell in the hotel lobby and filed a WC claim.

The Court of Appeals upheld the denial of the claim. While the court noted that when employees are required to stay overnight away from home, they are treated as being within the course of their employment for the duration of the trip “except when a distinct departure on a personal errand” is shown. Doing the laundry was not considered a personal need, such as eating a meal.

 

Court overturns worker’s reinstatement petition – Pennsylvania

In Communication Test Design v. WCAB (Simpson), the Commonwealth Court held that a WCJ erred in granting a worker’s reinstatement petition and awarding unreasonable contest fees. The employer accepted liability for medical bills for an eye laceration. Soon after the company began paying disability benefits, it stopped and denied that the employee suffered a work injury.

The worker argued the company failed to issue a notice that it was stopping its payment of benefits within five days after the last payment of temporary compensation. However, the court found that there was no evidence to prove this and the act provides no remedy for non-compliance. Moreover, the worker had never established disability prior to the filing of the Reinstatement Petition and it was his burden to establish his right to reinstatement. The court noted, the employer not only contested the Reinstatement Petition, but it also proved that the worker did not suffer a disability. Accordingly, the WCJ erred by awarding unreasonable contest fees.

 

Injuries not compensable caused by “Act of God” – Virginia

In Sylvia Martin v. Virginia Beach Schools and Corvel Corp., a school security guard fell when a gust of wind suddenly caused a metal gate, through which she had just passed, to close behind and strike her. The guard, who was on work restrictions from an earlier fall, filed a claim more than four months after the second incident, asserting that she had landed on her left side, injuring her left leg, left hip, ribs, back, neck, left hand, and right hand.

The Workers’ Compensation Commission denied the claim and the appeals court affirmed. Applying the “risk test,” the Commission noted that she did not face a risk that was any greater than the public at large. The fall was caused by a natural wind force which, standing alone, had to be considered an “act of God.”

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

HR Tip: EEOC issues updated Covid-19 Technical Assistance Publication

The publication, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” expands on a previous publication that focused on the ADA and Rehabilitation Act, and adds questions-and-answers on testing, medical exams, and essential workers.

Some of the updates include:

  • Employers may screen employees for COVID-19. Any mandatory medical test must be job-related and consistent with business necessity, be on a nondiscriminatory basis, and results need to be retained as confidential medical records according to the ADA’s requirements
  • Employers can keep a log of employees’ temperatures, although they must still maintain their confidentiality
  • All medical information related to COVID-19 may be stored in existing medical files
  • A temporary staffing agency or a contractor that places an employee in an employer’s workplace can notify the employer of the worker’s name if it learns the employee has COVID-19
  • Employers cannot postpone a start date or withdraw a job offer because an individual is 65 years old or pregnant, both of which place them at higher risk from COVID-19, however, they can discuss telework or if the workers want to postpone their start date
  • Employers can disclose employee names to a public health agency when it learns workers have COVID-19
  • Employers should rely on the CDC, other public health authorities and reputable medical sources for guidance on emerging symptoms associated with the disease when choosing health screening questions
  • There may be reasonable accommodations for individuals with disabilities, absent undue hardship to the employer, that could offer protection to an employee who, because of a preexisting disability, is at higher risk from COVID-19
  • If an employee has a pre-existing condition, such as an anxiety disorder, that has been exacerbated by the pandemic, employers can ask questions to determine whether the condition is a disability and discuss accommodations
  • Undue hardship during the pandemic was clarified. In some instances, an accommodation that would not have posed an undue hardship before the pandemic may pose one now. Loss of income, ability to conduct a needs assessment, acquire certain items, and delivery to teleworkers are considerations

 

For additional information and resources on Coronavirus, go to the Duncan Financial Group COVID-19 Resource Center Online

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

HR Tip: New I-9 form now available

On Jan. 31, 2020, the U.S. Citizen and Immigration Services published the Form I-9 Federal Register notice announcing a new version of Form I-9, Employment Eligibility Verification, that the Office of Management and Budget approved on Oct. 21, 2019. This new version contains minor changes to the form and its instructions. Changes to the instructions clarify who can act as an authorized representative on behalf of the employer and what documents are acceptable as well as other updates.

It’s a best practice to begin using the form immediately, although the notice provides employers additional time to make necessary updates and adjust their business processes. Employers may continue using the prior version of the form (Rev. 07/17/2017 N) until April 30, 2020. After that date, they can only use the new form with the 10/21/2019 version date. The version date is located in the lower left corner of the form.

The new edition of the form is available in fillable PDF format, print format and in Spanish on USCIS’ I-9 Central website. However, the Spanish form may only be executed by employers in Puerto Rico; employers in the 50 states, Washington, D.C., and other U.S. territories may use the Spanish version of the form as a translation guide only but must complete the English version of the form.

All U.S. employers are required to complete a Form I-9 for every employee hired to verify that the individual is authorized for employment in the United States under the Immigration Reform and Control Act of 1986 (IRCA) and for re-verifying current employees with expiring employment authorization documentation. Employers should not complete new forms for existing employees who do not require re-verification.

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

Legal Corner

ADA

Construction company pays $100K for firing worker with epilepsy

A Bellingham, Washington company, formerly doing business as Diamond B Constructors, Inc. and its successor, Harris Companies, will pay $100,000 and provide other relief to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). A pipefitter, who also holds a rigger’s certification, was dispatched by her union to work on a project. When she told her supervisor that she has epilepsy, he and other supervisors determined she could not work safely at heights and terminated her. She had not requested accommodations, had no medical restrictions, and her epilepsy was well controlled by medicine.

The law requires employers to make a case-by-case assessment of an employee’s ability to perform the job when safety concerns exist. EEOC Seattle Field Director Nancy Sienko said, “Epilepsy reportedly affects 2.2 million Americans and affects each person differently. It is critical that employers not base job decisions on stereotypes, but instead carefully consider each individual’s abilities.”

FMLA

FMLA doesn’t provide protection for employees to evaluate family member’s medical condition

In Schaar v. U.S. Steel Corp., a manager in the customer quality engineering department, who lived in Michigan, was aware of problems with a top customer in Mississippi. When the matter became urgent, he was onsite in Tennessee and was ordered to travel to Mississippi to handle the problem himself. He refused because his wife had a heart condition and wasn’t feeling well and he had to return to Michigan to assess the situation. When he arrived home, he determined his wife did not require medical attention.

Returning to work the next day in Michigan, he was fired for insubordination. The manager sued under the FMLA for both interference and retaliation. The U.S. District Court for the Eastern District of Michigan ruled in favor of U.S. Steel on its motion for summary judgment on both claims. The manager never requested FMLA leave or a reduced work schedule to care for his wife.

Distinguishing between providing care to a family member and evaluating a family member’s condition, the court determined he was not providing care and was not entitled to FMLA leave.

Workers’ Compensation

Comp settlement bars claim for disability discrimination – California

In an unpublished decision, Kennedy v. MUFG Union Bank, a bank employee claimed she worked in a hostile work environment and took a medical leave for stress, anxiety, and depression. While she was out, the bank restructured and eliminated her position. Unlike others, she did not receive a severance package.

Her request to return on a reduced work schedule was denied because the position was eliminated, so she filed a comp claim. When it was settled, she resigned voluntarily. She then filed suit based on disability and her race. The court argued there could be no wrongful termination because she was not terminated and that the record demonstrated a legitimate, nondiscriminatory reason for the increased supervision.

Employer not liable for fatal accident caused by injured employee – California

While commuting to work, an employee of the City of Los Angeles struck and killed a pedestrian. A chemist who worked in the lab, the employee did not use his car for employment. He did have a neurological condition and had fallen at work, suffering a back sprain. After some time off, he was allowed to return to work with restrictions. About three weeks later he was driving to work and struck and killed a pedestrian. Initially his license was suspended, but it was reinstated and he was not charged.

Two brothers of the deceased argued the city should be held responsible because it knew of his condition and allowed him to return to work prematurely, so the “work-spawned risk endangering the public” exception to the going and coming rule applied. The court disagreed and found the chemist was on his commute to work and the accident was unrelated to his employment.

Exclusive remedy defense in civil suit allowed in spite of comp denial – Florida

In McNair v. Dorsey, an appellate ruled that the employer’s denial of liability for a comp claim did not prevent it from using the exclusive remedy defense in a civil case. The employee worked for James Armstrong’s tree service company and was working with a coworker, Dorsey, when he alleged he suffered injuries. The insurance company found that there was no compensable claim. He then voluntarily dismissed the comp claim and alleged negligence on the part of both Armstrong and Dorsey, arguing the exclusive remedy defense did not apply since his claim had been denied.

While a trial court found in favor of the employer, the appellate court noted an employer can be barred from raising a workers’ compensation exclusivity defense if the employer denies the employee’s claim “by asserting that the injury did not occur in the course and scope of his or her employment.” However, the court noted that the employer is not always foreclosed from claiming immunity to a lawsuit simply because it denied compensability in an earlier proceeding.The factfinder needs to determine if the accident occurred in the course and scope of employment and would have been covered by workers’ comp and protected by exclusive remedy.

Worker who filed comp claim after being fired can bring retaliatory discharge suit – Florida

In Salus v. Island Hospitality Florida Management Inc. a worker reported an injury and later told the employer he was having difficulty getting follow-up treatment. Two weeks later he was fired, allegedly for threatening physical harm to a co-worker, which he denied. He filed suit for retaliatory discharge. The trial court found that reporting an injury was not the same as filing a claim and granted summary judgment to the employer.

The appellate court disagreed. It noted it would not make sense to limit the statute to retaliatory acts that occurred after filing the claim because an employer could easily avoid liability by firing the employee right away. Further the employee’s actions were consistent with a workers’ comp claim that is protected. Since there was a genuine issue of material fact as to the reason for termination, summary judgement was inappropriate.

Health care providers can’t go after comp settlement – Illinois

After an injured employee filed for bankruptcy protection for minimal assets and her pending workers comp claim ($31,000), the state Supreme Court ruled that the proceeds of a workers comp settlement are exempt from claims made by medical providers who treated the injury or illness in re Hernandez. She owed a combined $138,000 to the three medical practices.

Section 21 of the statute provides that any payment, award or decision under the Workers’ Compensation Act is unequivocally free from claims to satisfy debt; however, the health care providers argued that amendments in 2005 provide an exception to the exemption. The court disagreed, noting there was “no ambiguity whatsoever in this provision.”

Employer does not have to pay for rehab after injury is resolved – Minnesota

In Ewing v. Print Craft Inc., an employee sprained his ankle and there was medical disagreement as to whether he developed complex regional pain syndrome (CRPS). His primary care provider and podiatrist found he had, but doctors at the Mayo Clinic disagreed and said the injury was resolved. He met with a rehabilitation consultant who prepared a rehabilitation plan and submitted it to the Department of Labor and Industry and also provided medical management services to address Ewing’s reported symptoms.

Although the insurance company notified her that they were requiring an IME and would not pay for any further services, the consultant continued to provide services. The IME found that the employee had suffered an ankle sprain and did not have CRPS. A compensation judge held the injury was resolved on the date provided by the Mayo Clinic. The consultant appealed and the WC Court of Appeals overturned, noting the print company needed to provide notice and show good cause to terminate the rehabilitation plan.

The Supreme Court reversed, noting an employer’s liability ends when the worker is no longer disabled.

Worker who intentionally shot self with nail gun denied comp – Nebraska

In Eddy v. Builders Supply Co. Inc., an employee said a nail gun misfired and caused a three-quarter-inch nail to become embedded in her right temple. There were no witnesses. While co-workers testified that guns had misfired in the past, the company presented evidence regarding her personal life and a possible suicide note. The compensation court found that the employee shot herself intentionally and the Supreme Court agreed.

Misrepresentations about job search nix benefits – New York

In Matter of Calabrese v. Fortini Inc., an appellate court upheld a finding that a worker had made misrepresentations about his efforts to find a new job, thereby forfeiting his entitlement to benefits. The employer’s investigator contacted several of the employers identified by the worker and found he had not submitted an application, applied for a job that did not exist, or the contact did not exist.

Although the appellate court acknowledged that this evidence was hearsay, it was sufficiently reliable and provided substantial evidence to support the Workers’ Compensation Board finding that the worker had made false representations to obtain benefits.

Award of benefits for unwitnessed and unexplained fall upheld – New York

In Matter of Docking v. Lapp Insulators LLC, a truckdriver was loading a cart when he apparently fell and was found unconscious and bleeding by co-workers. When he regained consciousness, he had no memory of what happened. Under state law, there is a presumption of compensability for accidents occurring during the course of employment, which are unwitnessed or unexplained, and he was awarded benefits by a compensation law judge.

Upon appeal, a state appellate court noted to rebut the presumption, it is the employer’s burden “to provide substantial evidence that the accident was not work-related.” While the employer presented medical testimony that the fall and resulting brain injury were caused by a preexisting cardiovascular condition, the Emergency Room doctor testified that there were no signs of heart damage or atrial fibrillation. The possibility of a preexisting, idiopathic condition was not enough to overturn the decision.

Assaulted bus driver not fully disabled by PTSD and morbid obesity – New York

In Matter of the Claim of Robert Rapaglia v. New York City Transit Authority, the Supreme Court Appellate Division affirmed a Workers Compensation Board decision that the driver had a 60% loss of earning capacity but was not fully disabled. The bus driver argued that the board failed to consider his obesity and limited education and work experience in calculating his percentage of lost wage-earning capacity.

The court noted that in rating the severity of a medical impairment due to PTSD or other causally-related psychiatric conditions, “the evaluation should include the impact of the psychiatric impairment on functional ability, including activities of daily living.” While there was conflicting medical testimony, the court found the Board had not erred in finding that he could not drive a bus, but was capable of other work, nor could it conclude that his obesity was causally related to the workplace injury.

Employer may have to pay for expensive compound cream – Pennsylvania

In Workers’ First Pharmacy Services LLC v. Bureau of Workers’ Compensation Fee Review Hearing Office (Gallagher Bassett Services), the Commonwealth Court ruled that a pharmacy did not prematurely file a fee review petition to challenge an employer’s refusal to pay for a compound cream that had been prescribed to an injured employee. The employee had injured her shoulder and the comp claim was accepted. Her physician prescribed a compound cream, which the pharmacy dispensed and billed the employer $4,870.

The employer refused to pay, and the pharmacy filed a fee review application, which the employer argued was premature because it had not been established that the cream was related to the work injury. However, the pharmacy argued that company waived its right to challenge the cream as unrelated because it did not seek a Utilization Review (UR).

After several appeals, the Commonwealth Court ruled that employers or insurers must make payments to providers for treatment within 30 days unless there is a dispute as to the reasonableness or necessity of the treatment, in which case the payer may seek a UR. The court vacated the decision and remanded for a fee review determination.

Widow and children to receive death benefits for fatal workplace stabbing – Pennsylvania

In JBS Holdings USA Inc. v. Workers’ Compensation Appeal Board, a worker was stabbed to death by a co-worker. While the company argued that the murder was related to a “personal animus” and not work-related, the court ruled there was no evidence of personal animosity. The ruling was upheld upon appeal.

Temporary worker who experienced horrific injuries fails to win tort lawsuit – Tennessee

In Henry v. CMBB LLC, the 6th U.S. Circuit Court of Appeals held in a 2-1 decision that the employee’s intentional tort lawsuit was barred by the exclusive remedy provision of the Tennessee Workers Compensation Act. The temporary worker was assigned to work at a manufacturing facility and operated a 200-ton metal press, which contains a light curtain that prevents it from cycling when it detects a worker nearby. An operator had reported that the curtain was not working properly and one was on order, but the press remained in service.

The temp worker was operating the press when the machine cycled, crushing her arms, both of which were amputated below the elbow. She and her husband filed a lawsuit arguing the company intended to injure her because it was well aware of the danger but continued to operate the machine. The courts, however, noted that even if the employer was aware of the potential for injury, it does not mean the employer intended to injure the worker. Precedent has held that even egregious safety violations fail to show actual intent to injure and the exclusive remedy provision prevails. In Tennessee, the intentional tort exception is quite narrow.

Two years apart, injuries can stem from same accident – Virginia

In Merck & Co. v. Vincent, a worker injured his neck and arm in 2009. In 2011, he became dizzy and fell as a result of pain medication, seriously injuring his knee. The Court of Appeals upheld the Workers’ Compensation Commission ruling that the injuries arose from “the same accident” for purposes of determining whether he was permanently and totally disabled. The Virginia statute provides for an award of permanent total disability benefits to a worker who has suffered the functional loss of two limbs “in the same accident.”

The court noted the “compensable consequence” doctrine, which says that if an injury arises out of and in the course of employment, “every natural consequence that flows from the injury likewise arises out of the employment unless it is the result of an independent intervening cause attributable to claimant’s own intentional conduct.”

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

 

HR Tip: Retaliation continues to top EEOC workplace discrimination charges

The U.S. Equal Employment Opportunity Commission (EEOC) received 72,675 charges of workplace discrimination in fiscal year 2019, which ended Sept. 30, 2019. Retaliation continues to be the most frequently filed charge filed with the agency, followed by disability, race and sex. The agency also received 7,514 sexual harassment charges – 10.3 percent of all charges, slightly down from FY 2018. Specifically, the charge numbers show the following breakdowns by bases alleged, in descending order:

  • Retaliation: 39,110 (53.8 percent of all charges filed)
  • Disability: 24,238 (33.4 percent)
  • Race: 23,976 (33.0 percent)
  • Sex: 23,532 (32.4 percent)
  • Age: 15,573 (21.4 percent)
  • National Origin: 7,009 (9.6 percent)
  • Color: 3,415 (4.7 percent)
  • Religion: 2,725 (3.7 percent)
  • Equal Pay Act: 1,117 (1.5 percent)
  • Genetic Information: 209 (0.3 percent)

These percentages add up to more than 100% because some charges allege multiple bases.

For a detailed breakdown by state.

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

Culture Issues: Accountability When it Comes to Job Performance

Close your eyes and imagine you’re the manager of a professional baseball team, it’s Game 7, bottom of the ninth, two outs, your team is up 3-2 with the tying run on third base, and the winning run on first base. Batter hits a fly ball to the gap in right center field, and the base runners go on contact. The center fielder starts to sprint… if he catches it – game over; if he plays it on one hop – the score is tied with the winning run in scoring position. The center fielder dives at full speed, lands on the ground as the ball just skips over his glove… the 3rd base runner ties the score as the ball continues to roll all the way to the warning track allowing the 1st base runner to score – the game is over and you lost.

Now, as the manager of the team, what is your reaction?  Do you “back” your fielder and compliment him on making a rational decision? Or, do you hold him “accountable”, by laying blame and berating the player for making a bad choice?

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Workplace safety: an untapped tool to attract and retain skilled workers

It’s easy for employers to be complacent about Workers’ Compensation when rates are declining and workplaces are safer overall. There are more pressing business matters in today’s competitive market, such as attracting and retaining skilled and committed workers. But failure to relate the two is a lost opportunity and complacency is a slippery slope to higher costs.

A strong safety record reflects positively on the quality of management, supervision, and all employees. While there are individual and generational differences in what attracts workers to a company, there are common denominators. Trust, respect, involvement, clear goals and expectations, engaged management, collaborative working environment, and recognition are regulars on the lists of most desirable workplace characteristics. All of these are integral to a sustainable safety culture.

There is one value everyone can share: to go home without an injury. Use it to tell your story. While the message, “we value and care about our employees,” is often boasted, it’s met with skepticism. The opinion that production and profit trump safety is still pervasive among many employees.

To combat this attitude, safety must become everyone’s responsibility. Management must walk-the-talk and model the safety behavior they expect from employees, as well as empower employees to voice their concerns and take it upon themselves to improve safety. If an incident occurs, the focus is not on blame, but on the worker’s full recovery and a cooperative effort to improve processes to prevent future occurrences.

With a strong safety culture, employers have a credible way to demonstrate they value, trust, and care about their employees. Here’s how to use it to give yourself an edge:

For recruitment:

  • Communicate that safety is a core value by personalizing the message. Don’t just talk about metrics, but how employees are valued, respected, and engaged
  • Explain the role employees have in safety and how employees are trusted to do the right thing
  • Describe how orientation training truly reflects what happens in the field/plant, occurs before they even set foot on the job, and how training continues throughout the year
  • Share how employees are rewarded or recognized for making safe behaviors and reporting incidents or near misses
  • Tell how your recovery at work program reflects the company’s values with real stories

For retention:

  • Focus on successes and recognize and reward safe behavior
  • Continually encourage reporting incidents and near misses
  • Use safety to build teamwork and strive for excellence
  • Take an active role in an injured worker’s treatment and recovery. Let them know their recovery is a priority by your actions
  • Reinforce there are no acceptable trade-offs between safety and productivity and that both are everyone’s responsibility
  • Encourage workers to speak freely about hazards and make suggestions for controlling risk

It’s important to recognize that employer complacency will filter down to employees. This can lead not only to a lax attitude about safety and an increase in injuries, but also fewer referrals. Word-of-mouth, as well as social media, can make or break recruitment efforts.

Hiring and retaining the right workers for the right positions

It takes work to maintain a strong safety culture and it begins with the hiring process. While making safety part of the recruiting process enhances the possibility of safety-conscious applicants, employers must be sure that they hire employees who are physically and mentally able to perform the job they are being hired to do.

A compliant way for employers to find out whether an applicant can do the job safely is to implement the Conditional Offer of Employment and Post-Offer/Pre-Placement Medical Questionnaire. When you hire someone who is not capable of doing the job, it’s not a question of if, but rather a question of when they are going to suffer an injury. Employers are less able to bear the burden of employees losing time today than at any time in the recent past.

With Workers’ Comp on the priority backburner, it’s easy to forget about including it in onboarding new employees or training current employees. Yet, the vast majority of employees who suffer an injury at work will find themselves inside the workers’ comp system for the first time. Even a minor injury may seem like a major occurrence because it is unfamiliar and frightening. “What am I going to have to pay?”, “How am I going to feed my family?”, “What do my co-workers think?”, and more fill their mind. When you communicate to workers how the workers’ comp process works, you can alleviate doubts and build confidence.

Getting injured employees back to work is always near the top of the list for best claims practices. While it’s been proven that Recovery at Work programs have an economic benefit, the human element is equally important. By providing support, encouragement, and opportunity, the employer makes the employee feel valued, protected, and confident appropriate work will be available.

Culture has been at the top of safety and health issues for more than a decade. Rethinking recruitment and retention strategies around safety may be the solution to one of the most pressing business matters today.

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