OSHA watch

Controversial ruling on Process Safety Management Standard being appealed

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

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

Free online course on preventing workplace violence

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


New resources

Alerts:

Webpages:

Flyer:


Solar panels do not qualify as roofing work

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


Enforcement notes

California

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

Florida

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

Georgia

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

Illinois

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

Nebraska

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

Pennsylvania

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

For additional information.

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

HR Tip: Depression and suicide: a growing workplace worry

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


Health Insurance and Outcomes of Injured Workers – WCRI

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

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

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


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

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

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

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


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

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

Findings:

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

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


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

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

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

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

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


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

 

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

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

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

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

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

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

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

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

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

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

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

Things you should know

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

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

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

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

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

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

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

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

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

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

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

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

Food truck safety resources spotlight propane hazards

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

State News

California

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

Florida

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

Illinois

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

Indiana

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

Massachusetts

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

Michigan

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

Minnesota

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

Missouri

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

New York

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

Pennsylvania

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

Tennessee

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

Wisconsin

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

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

Legal Corner

Workers’ Compensation 
Determining catastrophic injury under Labor Law – California

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Medical expert need not be a physician – Missouri

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

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

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

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

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

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

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

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

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

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

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

Imprisoned worker must continue to receive comp benefits – Pennsylvania

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

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

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

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

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

Amazon worker’s injuries not job-related – Tennessee

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

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

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

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

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

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

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

HR Tip: EEOC update – Wellness programs

Employers remain in limbo on when they can impose penalties or rewards to encourage employees to disclose medical information in health risk assessments. The EEOC had delayed the proposed rulemaking to June but according to the agency’s spring 2019 regulatory agenda, it now expects to issue a Notice of Proposed Rulemaking by December.

In December 2017, a district court vacated the regulations, effective Jan. 1, 2019, that had allowed penalties or rewards of up to 30 percent of the cost of employee-only health care coverage to encourage employees to disclose ADA- and GINA-protected information.

Employers now have to weigh their options based on risk tolerance until December.

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

Important information on the classification of independent contractors vs. employees

Department of Labor opinion letter

Issued April 29, the opinion letter addresses whether a service provider for a virtual marketplace company is an employee of the company or an independent contractor under the FLSA. It concludes that the workers who provide services to consumers through this company’s virtual platform are independent contractors, not employees of the company. To make this determination, the Department’s Wage and Hour Division applied its longstanding and unchanged six-factor balancing test, derived from Supreme Court precedent:

  • The nature and degree of the potential employer’s control
  • The permanency of the worker’s relationship with the potential employer
  • The amount of the worker’s investment in facilities, equipment, or helpers
  • The amount of skill, initiative, judgment, or foresight required for the worker’s services
  • The worker’s opportunities for profit or loss and
  • The extent of integration of the worker’s services into the potential employer’s business

Other factors also may be considered. The DOL “does not determine employee status by simply counting factors but by weighing these factors in order to answer the ultimate inquiry of whether the worker is ‘engaged in business for himself or herself’ or ‘is dependent upon the business to which he or she renders service,'” stated the letter.

While the opinion deals with a specific company, wages, and fair labor standards and is not legally binding, legal experts suggest it has an effect beyond the employer addressed in the letter. Under the Trump administration there is more flexibility in defining independent contractors and the likelihood that some employer/employee relationships would be challenged is lower.

The key issue is control. When classified as independent contractors, workers should be able to control their own schedules, work in other jobs or businesses, choose whether to accept a project, and not receive extensive training.

Cautionary note: The opinion letter is based on the facts presented by the company and these facts may not be true of other gig economy workers. It does confirm employers must conduct the six-factor test when confronted with a classification question. Further, employers still must abide by laws in states such as California, Massachusetts, Connecticut and New Jersey that are more restrictive.

National Labor Relations Board memorandum

The National Labor Relations Board (NLRB), handed an important victory to Uber when it determined that the company’s drivers are contractors, not employees. In the first major policy action concerning the gig economy, the NLRB’s move relates primarily to unionization and other collective activities.

The decision was outlined by the board’s general counsel in a memorandum dated April 16, but made public in mid-May. In effect, the action tells gig economy workers not to report labor abuses to the Board because they are outside its jurisdiction. This judgment and the opinion letter cited above reverse the stance of the Obama administration that people who found work through apps could be considered employees. While the memo can be reversed by future general counsels, it carries considerable weight in how the Board enforces the law.

California: Independent contractor classification dealt another blow – ABC test must be applied retroactively

About a year ago, the California Supreme Court issued a groundbreaking decision when it adopted a new legal standard known as the “ABC Test,” making it much more difficult for businesses to classify workers as independent contractors in Dynamax vs The Superior Court of Los Angeles County. In a subsequent case, Garcia v. Border Transportation Group, a Court of Appeals held that the new test is limited to claims arising under the California Wage Orders. A May 3 letter from the California DLSE confirmed that the Dynamex decision extends to obligations imposed by the Industrial Welfare Commission wage order, making employers who misclassify workers responsible for California Labor Code obligations such as overtime, minimum wage, reporting time pay, record-keeping, business expense reimbursement, and meal and rest periods.

Moreover, the case was remanded, and pending legislation (AB5) would extend the reach of Dynamex’s ABC independent contractor assessment to unemployment and disability insurance and workers compensation.

Recently, the U.S. Court of Appeals for the Ninth Circuit held that the “ABC” test, used in the employee-versus-independent contractor analysis in cases involving IWC Wage Orders, must be applied retroactively. The ruling in Vazquez v. Jan-Pro Franchising Int’l Inc. means that the “ABC” test not only will be applied to cases going forward, but also to disputes dating back to before the new test was enacted. Based on California’s statute of limitations, employers could be liable for misclassifying workers as contractors going back four years before the 2018 decision.

The decision has significant implications for businesses using a franchise model or independent contractor model, including gig economy companies, since employees have more rights and benefits than independent contractors. The court essentially held that the “ABC” test applies to both a franchisee and the parent franchisor when deciding whether a group of workers are formal employees, pointing to increased exposure to liability for franchisors.

The unanimous federal appeals court ruling vacated an earlier dismissal of the complaint, and remanded the issue back to the lower district court, with instructions to follow the test issued in the Dynamex ruling. California employers who routinely enter into independent contractor arrangements with individuals should promptly and carefully review the status of those workers.

Note: AB5 advanced May 29 with the state Assembly passing the legislation 59-15

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

Things you should know

Deadline to submit pay data to EEOC extended

A federal court judge has granted the EEOC’s request to extend the deadline for employers to report equal pay data (known as Component 2) of the EEO-1 to September 30, 2019. Notice has been posted on the EEOC website.

Preventing falls in construction: NIOSH issues fact sheet

NIOSH has published a new fact sheet intended to help construction employers and workers prevent falls from roofs, ladders, and scaffolds.

FMCSA webpage answers FAQs on upcoming database of CMV drivers who fail drug, alcohol tests

The Federal Motor Carrier Safety Administration (FMCSA) has created a webpage that outlines specifics of the Drug and Alcohol Clearinghouse, a national online database intended to provide – in real time – the names of commercial motor vehicle drivers who have failed drug and alcohol tests.

‘Dirty Dozen’ list of workplace safety violators released

The National Council for Occupational Safety and Health (NCOSH) released its 2019 “dirty dozen” companies that the organization says failed to protect workers from preventable illness, injury and death.

This year’s list includes:

  • Amazon.com Inc., Seattle
  • Atlantic Capes Fisheries Co., Cape May, New Jersey, and the staffing firm it uses, B.J.’s Service Co Inc., New Bedford, Massachusetts
  • Bedrock Detroit LLC, Detroit
  • Beiza Brothers Harvesting LLC, Moultrie, Georgia
  • Facebook Inc., Menlo Park, California, along with contractors Accenture PLC, Cognizant Technology Solutions Corp., PRO Unlimited Inc. and Tech Solutions Co.
  • Genan Inc., Houston
  • Integra Health Management Inc., Timonium, Maryland
  • The Johns Hopkins Hospital, Baltimore
  • McDonald’s USA LLC, Oak Brook, Illinois
  • Purdue Pharmaceuticals LP, Stamford, Connecticut, and the opioid industry
  • Tooma Enterprises Inc., Sterling Heights, Michigan
  • XPO Logistics, Greenwich, Connecticut

 

Report on women and safety in the workplace

The American Society of Safety Professionals (ASSP) released a report on women and safety in the modern workplace. The report focuses on three main challenges faced by women and offers potential solutions.

WCRI releases comp state trends reports

The 18 states in the CompScope report are Arkansas, California, Florida, Georgia, Illinois, Indiana, Iowa, Louisiana, Massachusetts, Michigan, Minnesota, New Jersey, North Carolina, Pennsylvania, Tennessee, Texas, Virginia and Wisconsin.

According to an article in Business Insurance, key findings include:

  • The median indemnity costs per claim across the states for three years starting in 2015 was $17,778, with North Carolina, Pennsylvania and Georgia ranked in the top three and Wisconsin, Indiana and Texas in the bottom three.
  • The median cost per claim with more than seven days lost time between 2015 and 2018 was $41,888, with Louisiana, Pennsylvania and Virginia ranked in the top three and Minnesota, Tennessee and Texas in the bottom three.
  • The median medical payments per claim in 2017 was $13,524, with Wisconsin, Virginia, and Indiana ranked in the top three and Massachusetts, California and Texas ranked in the bottom three.
  • Twenty-nine percent was the median percentage of 2015 claims with more than seven days of lost time and 36 months of experience that had a defense attorney involved. Among the states with the highest attorney involvement were Illinois, New Jersey and California. Those with the lowest were Texas, Wisconsin and Minnesota.

New resource to help employers understand mental health issues

The DOL, in coordination with the Office of Disability Employment Policy (ODEP) and its Employer Assistance and Resource Network on Disability Inclusion (EARN), has launched a new resource, Mental Health Toolkit to help employers better understand mental health issues and to provide guidance on how to cultivate a supportive workplace.

Workers’ marijuana use major contributor to rise in positive drug tests, analysis shows

The rate of positive drug tests for illicit substances among U.S. workers in 2018 reached a 14-year peak, with marijuana playing a significant role, according to the annual Drug Testing Index from lab services provider Quest Diagnostics.

Researchers found that 4.4% of the combined U.S. workforce tested positive – up from 4.2% in 2017 and 2016 and the highest since 2004 when the rate was 4.5%. “Post-accident” positive tests showed rate increases: to 8.4% from 7.7% in 2017 among employees in the general workforce, and to 4.7% from 3.1% among workers in safety-sensitive jobs.

Boom lift scenario now part of NIOSH simulation tool

NIOSH has added a boom lift scenario to its Aerial Lift Hazard Recognition Simulator.

The training tool includes a scissor lift operation simulation, provides realistic workplace scenarios “to help potential aerial lift operators acclimate to aerial lift operation and to identify the common occupational hazards during use,” but is not intended to be a replacement for required training.

Protecting first responders from fentanyl exposure: NIOSH releases video

NIOSH has released a 13-minute video intended to protect first responders who face potential exposure to fentanyl – a synthetic opioid considered up to 50 times more potent than heroin – and other illicit drugs.

State News

California

  • The number of independent medical review determination letters calling for review of treatment denials and modifications peaked to 184,733 in 2018, 7.3% more than in 2017 according to the California Workers’ Compensation Research Institute. Full report.
  • 55% of medical bill reviews were overturned according to a report by the California Department of Industrial Relations.
  • The Workers’ Compensation Insurance Rating Bureau determined that the modest improvement in pure premium workers’ compensation rates so far in 2019 does not warrant a midyear filing.

New York

  • The New York State Workers’ Compensation Board announced that the maximum weekly wage benefit rate will climb, from $905 to $934, effective July 1.

Pennsylvania

  • Insurance Commissioner approved a nearly 13% reduction in loss costs for workers compensation insurance.

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

Legal Corner

ADA 
Trucking firm settles suit over pre-employment screenings

Greeley, Colorado-based JBS Carriers Inc., which is the transportation affiliate of multinational meat processor JBS USA Holdings Inc., contracted with a third-party administrator, Denver-based ErgoMed Systems, to administer pre-employment screenings. The EEOC found that all applicants were subjected to a medical history questionnaire, a physical examination and nine physical abilities tests, and if an applicant failed any one of the tests, ErgoMed sent a negative job recommendation to JBS, which withdrew conditional job offers based on its recommendations.

The EEOC alleged this process unlawfully screened out people with disabilities and reached a $250,000 settlement with JBS. Under terms of the settlement, JBS will not contract with ErgoMed for three years and not implement any physical or medical screening for conditional hires apart from the DOT medical certification and urine analysis, among other provisions.

Perceived disability sufficient to reinstate suit

In Jonathan C. Baum v. Metro Restoration Services, an employee who worked as a scheduler for Louisville, Kentucky-based Metro Restoration Services Inc., began having heart problems and occasionally missed work for medical concerns. After a severe weather hit in 2015, he worked remotely to coordinate crews. He was fired a week later and the company’s owner told him it was because of his health issues and doctors’ appointments.

He filed suit, charging he was fired both because he was disabled and because the company regarded him as disabled. A lower court dismissed the case because he did not present an expert witness, but an appellate court found a jury could find that Metro fired him because the owner thought he was disabled, and reinstated the case.

Workers’ Compensation 
Widow loses civil suit based on “power press” exception to exclusive remedy – California

In Ochoa v. Setton Pistachio of Terra Bella Inc., a widow of a man who died when another worker accidentally started the machine he was maintaining filed a wrongful death suit, arguing the machine was a power press that, under certain conditions, can be exempt from exclusive remedy. The court agreed with the defendants that the machine in question was a conveyor-style “auger” and not a press that used a die. A product liability claim was also rejected.

Sawmill pays $375,000 in settlement of civil suit related to workers’ death – California

Morgan Hill-based Pacific States Industries Inc., doing business as Redwood Empire Sawmill, was sued by the district attorney following the death of a millworker, who died in a bark conveyor that the employees regularly walked on while they were unjamming it. The DA’s office investigation found a culture of production over safety at the mill and that the sawmill and its two other facilities in Sonoma County did not have written procedures for employees to work on, unjam or clean machinery and equipment.

Secondary treatment issues clarified – California

In a panel decision, Pena v. Aqua Systems, it was clarified that secondary treatment requests do not have to be initiated by the PTP and that selection of a secondary treater is not subject to Utilization Review (UR) and, therefore, does not require a Request for Authorization (RFA). Failure to promptly respond to and approve secondary treatment requests is likely to result in a penalty assessment.

Six-month limit on mental injuries upheld – Florida

In Kneer v. Lincare & Travelers Ins., an appellate court ruled that an employee was not eligible for benefits for psychiatric injuries because they occurred more than a year after he had reached MMI on his back injury. The court said the claim for temporary benefits for the mental condition was untimely because there is a six-month limitation for temporary benefits for psychiatric injuries (which follow a physical injury).

Remote workers beware: trip over dog not compensable – Florida

In a 12-2 decision, Sedgwick CMS v. Valcourt-Williams, an appeals court reversed the decision of a workers’ compensation judge. Working in Arizona, a home-based workers’ comp claims adjuster tripped over one of her two dogs, causing her to fall and sustain injuries to her knee, hip and shoulder as she was getting coffee in her kitchen. The court noted that there are limitations to the “arising out of” rule when risks unrelated to work lead to the injury. In this case, her non-employment life (her dog, her kitchen, reaching for a coffee cup) caused the accident, not her employment.

“One Day Rest in Seven” can’t circumvent exclusive remedy – Illinois

In Webster v. FirstExpress, Inc., a federal district court held that the state’s “One Day Rest in Seven Act” may not be used to circumvent the exclusive remedy of the Workers’ Compensation Act. An employee of a tire service company was killed in a collision with a vehicle owned by FirstExpress, Inc. It was argued that the worker had been required to work mandatory overtime and failed to get a full day of rest as called for in the statute. However, the court ruled that the employer was immune from tort liability because its actions did not rise to the level of “specific intent” to harm.

High court clarifies application of treatment guidelines – Minnesota

In Johnson v. Darchuks Fabrication, an employee was diagnosed with complex regional pain syndrome following a work-related incident. As part of the settlement, the company paid for ongoing medical expenses, which included over ten years of opioids. The employee was asked to go through a fourth IME, and for the first time, the medical examiner expressed doubt about the diagnosis. As a result, the company notified the employee it was discontinuing coverage for the medication. It argued the complex regional pain syndrome had been resolved and that the long-term opioid use did not comply with the workers’ compensation treatment parameters.

The case found its way to the Supreme Court and the company argued that the treatment parameters applied in this case. The court agreed, noting the treatment parameters do not apply when liability for the benefits has been denied, but a challenge to the reasonableness and necessity of treatment is not a denial of liability. It ordered the case remanded for further proceedings.

PPD award for fall in employer’s parking garage affirmed – Missouri

In McDowell v. St. Luke’s Hosp., an appellate court affirmed a decision by the state’s Labor and Industrial Relations Commission awarding workers’ compensation benefits to an employee who fell while bringing her belongings from the garage to her work station. While the state statute generally means benefits are denied when the hazard or risk is one to which the worker would have been “equally exposed outside of and unrelated to the employment in normal nonemployment life,” the court found that her fall was the result of her need to pull and maneuver a two-wheeled cart containing work-related supplies through a congested entryway and, therefore, was compensable. She did not face such a hazard in her non-employment life.

The worker, who had worked for the hospital for 45 years, had undergone a hip replacement and used a cane. The hospital had provided her with the two-wheeled cart to transport her belongings from the garage during her recovery.

No survivor benefits for daughter of deputy killed in car crash while exchanging shift information on his cell phone – Nebraska

In Coughlin v County of Colfax, a deputy sheriff was driving home and on his cell phone exchanging shift information with another officer who just came on duty when his vehicle hit a deer’s carcass. He lost control of the car, collided with another vehicle driving in the opposite lane of traffic, and died.

His brother filed a workers’ comp claim, which was denied based on the going and coming rule. The course and scope of employment had not been expanded by the cell phone conversation, in spite of its work-relatedness. It was determined that he was in his personal vehicle and off duty at the time of the accident.

An appellate court considered whether the cell phone communication was an employer-created condition that rendered the going and coming rule inapplicable. It found that although the Department expected the deputy to exchange shift-change information, it did not prescribe any one way of doing so and, in fact, had a cellphone policy that prohibited using a cell phone while driving a county-owned vehicle. The denial was affirmed.

Appellate court overturns decision to disqualify worker from future benefits – New York

In Matter of Persons v Halmar Intl, an appellate court overturned a decision by the Workers’ Compensation Board that disqualified an injured construction laborer from receiving future wage replacement benefits because he made false statements about his physical condition in violation of the law. The appellate court found that the Board’s findings based on video footage of his work as a volunteer firefighter and another video were inaccurate and could not be ascertained without further medical testimony. Further, the worker had acknowledged and disclosed his work as a volunteer firefighter.

The court concluded, “Simply put, our review of the record reflects that the Board’s decision [was] not supported by substantial evidence as it [was] based upon speculation, surmise and mischaracterizations.”

Law barring undocumented workers from additional benefits upheld by high court – Tennessee

The Supreme Court ruled that a state statute limiting the benefits available to a worker without legal authorization to work in the United States is not pre-empted by federal immigration law. The case, Salvador Sandoval V Mark Williamson, involved an undocumented worker for Tennessee Steel Structure who was injured on the job and received PPD benefits. He did not return to work after benefits ended and filed for additional benefits, but state law precludes benefits for anyone who is not eligible or authorized to work legally in the US.

The worker argued the law was unconstitutional because it was pre-empted by the federal Immigration Reform and Control Act (IRCA). The Supreme Court concurred with the Special Workers’ Compensation Appeals Panel that the law does not conflict with any provision of the IRCA.

Attempt to guide hand truck does not constitute “lifting” in violation of safety rules – Virginia

In Snelling Staffing/Chesapeake & Ace Am. Ins. Co. v. Edwards, the employer argued that an employee violated a known rule that prohibited lifting more than 40 pounds without assistance when he was injured. The worker and a co-worker stacked three boxes of computers, each weighing approximately 120 pounds, on a hand truck. When the worker attempted to pull back on the truck, the weight shifted and he tried to steady it with his leg, injuring his back.

The appellate court agreed with the Commission that the employee’s actions did not constitute “lifting” in violation of employer’s safety rule.

Police officer’s slip on the grass not compensable – Virginia

In Conner v. City of Danville, a police officer was part of a surveillance team at a duplex and was interviewing a homicide suspect outside with a colleague. Rain turned to hail and a tornado was moving through, so they decided to seek shelter. She twisted her knee when she slipped on the grass and almost fell and reported the injury. Through treatment, it was found that three discs in her back had apparently been affected and that surgery was needed.

Her comp claim was denied by the deputy commissioner and affirmed by the Commission and an appellate court because her risk of exposure to the tornado was not increased because of her employment. The interview was suspended while they attempted to get out of the weather, which is an act of God. Therefore, this was not a work-related injury.

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