Seven actions to improve existing work comp practices and boost employee engagement in 2019

There’s been a lot of good news about workers’ comp in the past few years. In most states rates have declined, employers are reporting fewer claims and workplaces continue to be safer. Becoming complacent is tempting but there are trouble spots and emerging risks, and historically rates are cyclical. It makes sense to have an eye on the future.

Further, workers’ comp cannot be separated from employee retention and engagement. It’s a core business practice of comprehensive risk management that protects your most valuable asset – your employees.

Here are seven actions to consider for 2019:

  1. Analyze your risks and exposuresSuccessful businesses continually evolve. Changes to business operations, automated work processes, new technologies, growing number of telecommuters, more temporary employees, mergers and acquisitions, and other factors affect the company’s risk profile. While there’s invaluable information in workers’ comp loss run reports, as well as OSHA reporting forms, it’s also important to evaluate leading indicators, such as training, near miss reporting, employee engagement in safety, and equipment maintenance and upgrades. Savvy employers focus on emerging trends and threats, identifying what incidents happen often and which ones are severe, assessing new exposures, evaluating what works, and proactively preventing incidents.

    This process not only helps to determine where resources are needed to reduce injuries and keep employees safer, it also enables employers to work more efficiently and strategically position themselves with insurance companies. With robust data and an accurate picture of exposures, companies can present themselves in the best light and differentiate their risk profile. It’s not only about getting the best rate today, but positioning for the future.

  2. Strengthen the personal connection in claims managementTrust is a key factor in avoiding litigation and achieving a successful claims outcome. Language and cultural barriers, as well as unconscious bias, can lead to unintended miscommunications and failure to manage expectations, which causes claims to spiral out of control. It goes beyond translation, which alone can be difficult when medical language is involved. The claims manager should guide the process, identify and overcome barriers, advocate, and build trust. Advocacy-based claims management yields positive results.

    No two injured employees are the same. Good diversity training that accounts for cultural, demographic, and gender variations helps identify the nuances of managing the injury. Travelers started a Cultural Advantage program four years ago, which connects injured workers with claims and case professionals of similar backgrounds to help alleviate misunderstandings that delay recovery. The initiative produced a 24 percent improvement in injured workers returning to work within 30 days and a 23 percent reduction in attorney representation.

    And there are groups that often evade the radar screen. For example, childcare issues can complicate recovery of injured working moms. Taking the time to understand the needs of the individual employee can significantly improve claim outcomes.

  3. Measure the success of medical care and return to workWhile growth in medical costs in workers’ comp has moderated, they still represent the lion’s share of most claims. Controlling costs can seem daunting with the ever-changing evolution in healthcare and the varying state laws.

    There is a great variety in quality of care, clinical outcomes, and costs among physicians. Claims that don’t apply evidence-based medicine are open 13.2 percent longer and 37.9% higher in medical costs according to a report in the Journal of Occupational and Environmental Medicine. If you have an established relationship with an occupational health physician, year-end is a good time for a review, which should include an evaluation of the agreed-upon outcome metrics, the satisfaction of workers, and the relationship with the employer and claims/case manager.

    Some outcome metrics often evaluated include average cost per claim, percentage of injuries that become lost time claims, days away from work, wait time for appointments, percentage of workers referred to specialists, surgery, physical therapy, percentage of workers returned to work with disability duration guidelines, and the cases with subsequent litigation. You’d have your head in the sand if opioid prescriptions were not part of the discussion.

    It’s also a good time to assess the effectiveness of the return to work program. An open discussion with the treating physicians can reveal weak or troublesome areas.

    It also may be time to look at emerging trends. A number of employers value nurse case managers, who guide injured employees’ medical treatment and return-to-work efforts. Serving as a liaison between all parties involved in the claim, including doctors, the injured worker, the employer and the insurance company, they can significantly reduce the duration and cost of claims. They can be particularly helpful when an injured worker has comorbid conditions that lengthen the duration of a claim.

    Another emerging trend to consider is telemedicine that, in some cases, offers convenient, quicker, and more-accessible options for care. See the article, The possibilities of telemedicine in workers’ comp.

  4. Examine your trainingMost manufacturers are now looking at a workforce that is 35% millennials and could grow as high as 75% by 2025. Yet, they work alongside baby boomers, Gen X, and Gen Z and each generation has unique learning styles and preferences. However, there is agreement on the complaints about training. It’s boring, there’s an overload of information, it’s not relevant, it’s all about rules and what not to do, it’s only done to meet regulatory requirements, it’s untimely, it’s generic and so on.

    To be effective, it must be personalized and kept simple to maximize retention. Training is worthless if it doesn’t stick. Stereotype thinking often guides decisions, such as baby boomers prefer classroom learning with interaction and millennials prefer fast-moving interactive activities such as games and social networks. It’s best not to pigeon-hole workers and to assess the effectiveness of your program on an individual basis.

    Do employees find it engaging and relevant? Did they acquire and retain the knowledge? Has their on-the-job behavior changed? Were the desired outcomes obtained? What are the key motivators? While “the stick” used to be sufficient to motivate learning, today “the carrot” of fun and rewards dominates.

    Making time for learning is also a challenge for employees. Microlearning, which delivers training in short “bursts,” is a growing trend. It generally stresses specific skills and can utilize short messaging and videos via a mobile device. It avoids technical language or other unfamiliar terminology and focuses on specific employees and specific responsibilities. A blended approach of delivering training on multiple platforms may be the best solution.

  5. Don’t let up on distracted drivingWhile workers’ compensation has experienced a long-term decline in overall claim frequency, the story is quite different for motor vehicle accidents (MVA). For the past five years, MVAs in workers’ comp and in the general population have been on the rise, anecdotally coinciding with the growth of smartphones. This troubling trend is compounded by the severity of the injuries, costing 80 to 100 percent more than the average claim according to the National Safety Council.

    Every employee is affected…from professional drivers to employees who may drive a few times a year for errands or community service projects. While there is growing awareness of the risk of distracted driving, a “not me” attitude remains prevalent because people believe they are better drivers than those around them.

    Is your policy strong enough? Is it enforced? Is it effective? How often is it reiterated to employees? The mobile telephone culture is deeply embedded in everyday routines. Getting employees to take seriously the dangers of distracted driving takes a persistent commitment from employers.

  6. Raise the awareness of safety risks to womenWomen in the workplace encounter particular safety risks, including ill-fitting personal protective equipment and workplace violence, that are not always recognized according to experts at the American Society of Safety Professionals’ Women’s Workplace Safety Summit. In spite of the growth of women in male-dominated industries, many women are faced with wearing personal protective equipment that was designed for men. Simply making smaller sizes available often doesn’t work. By purchasing PPE products specifically for women, injuries will be reduced and job satisfaction improved.

    While workplace violence solutions are difficult and more can be done for all employees, workplace violence (such as patient-on-nurse violence in the healthcare field) is a category that disproportionately affects women. According to the U.S. Bureau of Labor Statistics, 70% of the workers who experienced trauma from workplace violence (days away from work) were women, and 70% worked in the health care and social assistance industry. In analyzing workplace violence vulnerabilities, gender differences should be one of the examined variables.

  7. Evaluate work-from-home policiesFlexible work policies often top employee wish lists when they look for a job, and employers have responded. Attraction of talent and retention levels are two key factors to examine when implementing or evaluating telecommunicating policies.

    Equally important are the complicated workers’ comp coverage issues that arise. Even if your company offers limited remote working arrangements, a telecommuting policy is crucial. It outlines the obligations of both parties and addresses work hours, equipment, time management, reporting, and work area setup. Some employers are also including proof of presence in work area, such as geo-tracking or equipment tracking, and periodic home inspections, when allowed by law.

    There is a common thread in each of these issues: employees want to feel valued. Employers who take a strategic approach to workers’ comp demonstrate they truly care about the health and well-being of their employees.

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

OSHA watch

OSHA softens hard line on workplace safety incentives and post-incident drug testing

See post – Much needed clarification from OSHA on anti-retaliation

FY 2018 preliminary list of top ten violations

See second article above – Preliminary list of top ten OSHA violations includes eye and face protection for first time

Employers targeted in record-keeping crackdown

Under this site-specific program, inspections will target employers the agency believes should have provided Form 300A data, but did not for the calendar year 2016, which had to be electronically submitted by Dec. 15, 2017. It will target high injury rate establishments in both the manufacturing and non-manufacturing sectors for inspection, but will not include construction worksites.

Regulatory agenda update

Released in October, the regulatory agenda had few surprises. Occupational Exposure to Beryllium and Beryllium Compounds in Construction and Shipyard Sectors, Crane Operator Qualification in Construction, Rules of Agency Practice and Procedure Concerning OSHA Access to Employee Medical Records, and Tracking of Workplace Injuries and Illnesses are in the final rule stage.

National Emphasis Program (NEP) on trenching and excavation safety

The updated NEP on trenching and excavation safety became effective October 1. It provides education and prevention outreach during the first 90 days of the program, and will respond to trench-related complaints, referrals, hospitalizations and fatalities. Enforcement activities will begin once the outreach program expires. State Plans are expected to follow suit.

Regional Emphasis Program (REP) addresses ammonium hazards in farming industry

Covering seven states, Arkansas, Kansas, Louisiana, Missouri, Nebraska, Oklahoma, and Texas, this REP addresses hazards from exposure to fertilizer-grade ammonium nitrate (FGAN) and agricultural anhydrous ammonium. The program began Oct. 1, 2018 with three months of education and prevention outreach and enforcement will follow and continue until Sept. 30, 2019, unless the program is extended.

Fact sheet on initiating a naloxone program

NIOSH has published a new fact sheet Using Naloxone to Reverse Opioid Overdose in the Workplace. It provides a series of steps for employers to consider when deciding whether to make the overdose reversal medication available in the workplace.

Revised webpage makes state plan information easier to find

A redesigned State Plans webpage has a new color-coded, interactive map to simplify finding contact and jurisdictional information for each state. Users can also access frequently asked questions and details about State Plan activities.

Rejection of OSHA inspection upheld – Georgia

In an unpublished decision, United States of America vs. Mar-Jac Poultry, Inc., the 11th Circuit Court of Appeals ruled that a poultry plant could not be compelled to submit to a company-wide inspection after a worker suffered an electric shock injury. The company reported the incident in a timely manner and when the inspectors requested access to the entire facility, rather than just the hazards involved in the incident, the company refused.

OSHA argued it had the right to expand the scope of the inspection based on (1) a National Emphasis Program (“NEP”) on poultry processing facilities and (2) the company’s recordkeeping forms, such as the 300 Logs. An magistrate judge held that OSHA did not have reasonable suspicion of the other hazards based on the 300 Logs and that Mar-Jac had not been selected by neutral criteria under the NEP. Upon appeal, the decision was upheld. The court concluded that the mere recording of work-related injuries or illnesses does not mean that they were the result of a violation of an OSHA standard, rule or regulation.

Cal/OSHA issues notice of emergency regulation for electronic submission form 300A by December 31, 2018

Cal/OSHA issued a notice of emergency regulation that businesses required to submit the CalOSHA Form 300A online include all establishments with 250 or more employees, unless specifically exempted by section 14300.2 of Title 8 of the California Code of Regulations, and establishments with 20 to 249 employees in the specific industries listed on page 8 of the emergency regulation’s proposed text (including common industries such as manufacturing, grocery stores, department stores, and warehousing and storage).

30-day time limit for employer to challenge safety citation – California

In RAAM Construction v. Occupational Safety and Health Appeals Board, an appellate court ruled that a contractor has 30 days from the date of a decision by the Appeals Board to bring a challenge, without extra time to account for the mailing of the decision. RAAM argued that its petition was timely, since it was filed within 30 days of learning of the denial, but the court said the trigger of the time period is the filing of the order, not the date of service.

Enforcement notes

California

  • Cal/OSHA issued two willful-serious accident-related citations totaling $225,500 in proposed penalties to Rancho Santa Margarita-based house-framing contractor, Circle M Contractors Inc., for failure to train workers on nail guns and failure to ensure safe operation of these tools after a carpenter was seriously injured. A review of the employer’s injury log showed 34 instances of nail gun injuries suffered by employees since 2016.

Florida

  • C.W. Hendrix Farms Inc. was cited for failing to protect workers from recognized hazards after lightning struck and killed an employee at the Parkland farm. The company faces a penalty of $12,934, the maximum amount allowed.
  • Kasper Roofing & Construction Inc. was cited for exposing employees to fall and other hazards after an employee suffered fatal injuries at a Maitland worksite. The Orlando-based roofing contractor faces $134,510 in penalties, the maximum allowed by law.

Georgia

  • An administrative law judge with the OSHRC vacated a violation stemming from an incident at a chicken processing plant, Norman W. Fries Inc. d/b/a Claxton Poultry Farms, in which an employee’s arm was fractured when it got caught under a conveyor belt. The judge found inspectors failed to prove that the company did not ensure that conveyor belts were protected by a metal frame to prevent such injuries.

Massachusetts

  • Springfield Terminal Railway was ordered to pay $85,000 to an employee who was subjected to retaliation after reporting a work-related injury at its facility in Andover.
  • An administrative law judge with the OSHRC vacated in part and affirmed in part violations following a 2015 fatality at a pharmaceuticals plant in South Easton. Pharmasol Corp. successfully contested a serious violation under the general duty clause for underride hazards.

Missouri

  • An administrative law judge with the OSHRC affirmed a citation against Kansas City-based Adam Ham Construction LLC for violating residential fall protection requirements and assessed a $3,741 penalty. The owner did not follow through in contesting the citations.
  • Blue Springs-based Arrow Plumbing LLC admitted to willfully violating the safety standards to require and enforce the use of trench boxes or other trench protection techniques at a home construction site in Belton. An employee was killed when an unprotected trench collapsed on him. Along with its successor company R2 Plumbing LLC, it agreed to implement several safety enhancements and it will pay a civil monetary penalty of $225,000.

Pennsylvania

  • Harmony-based Insight Pipe Contracting LLC was placed in the Severe Violator Enforcement Program and faces $331,101 in fines following a safety inspection initiated after an employee suffered a fatal electrocution at a worksite in Johnstown. Violations included failing to develop and implement procedures for confined space entry, train employees on confined space hazards, conduct atmospheric testing before permitting entry into a sewer line, use a retrieval line, and complete proper permits.
  • Toy Factory TX LLC was cited for workplace safety violations after an employee suffered an arm amputation while cleaning machinery at the company’s Elysburg plant. Proposed penalties of $112,523 relate to hazardous energy and lockout/tagout violations.

Wisconsin

  • Dura-Fibre LLC, based in Menasha, settled a whistleblower suit and will pay a machine operator $100,000 in back wages and compensatory damages after it terminated him for reporting injuries he and a co-worker sustained.
  • Superior Refining Company LLC, based in Superior, was cited for failing to control the use and release of highly hazardous chemicals after an explosion and fire injured several employees. The company faces $83,150 in proposed penalties for eight serious violations of the process safety management procedure.
  • JBS Green Bay Inc. was cited for machine guarding violations when an employee suffered serious injuries after becoming caught in an unguarded machine. The Green Bay-based company was cited for one willful and 10 serious violations, and faces proposed penalties of $221,726.

For more information.

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

HR Tip: 12 tips to keep your holiday party under control

The holiday season is a time to spread cheer and a festive spirit, but some celebrations morph into legal nightmares or workers’ comp claims for employers. Here are 12 tips for a party that is fun and safe:

  1. Charge your leadership team with setting the tone for responsible and professional behavior.
  2. Limit or do not serve alcohol. Do not have an open bar. Close the bar at least one hour before the end of the party. Be sure that alcohol is served by a professional bartender or at a licensed establishment that knows when to stop serving an individual. Serve plenty of food. Arrange for no-cost transportation for any employee who should not drive home.
  3. Be sure workers understand that attendance is voluntary. This should be clearly stated in the invitation and all related communications.
  4. Hold after work hours and off site, reducing the likelihood the party will be perceived as work related.
  5. Don’t encourage attendance by either implying attendance will help the employee advance or that failure to attend sends the message the worker isn’t a team player.
  6. Avoid presentation of awards, bonuses or other recognition that suggest employees are there for business reasons.
  7. Be cautious about inviting vendors, clients or others with whom you have a business relationship.
  8. Invite spouses and significant others.
  9. Remind employees that normal workplace standards of conduct are to be respected. Parties, particularly when alcohol is served, can lead to sexual harassment or discrimination claims. Treat any discrimination or harassment claims seriously and conduct appropriate investigations.
  10. Don’t allow employees to post company party images/comments on social media outlets without having a policy in place.
  11. Be sensitive of language and decorations – don’t call it a Christmas party or invite “husbands and wives.”
  12. Discuss your exposure with your insurance agent.

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

Seven ways to bolster employee participation in wellness programs

Planning ahead for a new plan year is a good time to evaluate current program performance. If employee engagement in your wellness program is a concern, you’re not alone. Here are seven ways to evaluate and bolster employee participation:

  1. Evaluate your messagingAs wellness programs have evolved, successful efforts have moved away from one-size-fits-all strategies to custom outreach plans for employees. The message needs to focus on and resonate with employees – how the program benefits their health, family, and future. Employer-focused messaging such as less absenteeism, lower healthcare costs, and increased productivity may fall on deaf ears.
  2. Understand that motivation and interests differ widelyIt frustrates many employers that employees most eager to participate are the healthier employees. Others may want to improve their health, but don’t want to be singled out and are afraid of failure. Some may not recognize that they have poor health habits and others don’t consider it a priority.Employees who feel that their wellness program is designed for their needs and level of fitness are more likely to participate. One way to customize is to offer support for a variety of wellness activities. Traditional wellness programs focusing on physical health are morphing into integrated programs, including everything from nutrition, exercise, and sleep-health to mental health, stress management, and even a financial wellness.
  3. Recognize the barriers to participationA recent study in the Journal of Workplace Behavioral Health looked at six factors most likely to improve participation. Job control, which refers to the freedom to choose when and how to complete work, topped the list. With “not enough time” a common objection, flexible working hours is a primary motivator for participation.Second to job control was the employees’ relationship with their supervisors. Employees highlighted not only the role of a supportive supervisor, but also the importance of all employees benefiting from it.

    Study the participation and look for uneven involvement. Positive results may be distributed highly unevenly across the workforce. Who benefits and who doesn’t? Educating employees and wellness options may not be enough for some employees. You may have to more broadly help employees understand that set backs are inevitable and develop steps to control failure.

  4. Promote stress managementIn its latest survey report, A Closer Look: 2018 Workplace Wellness Trends, the International Foundation of Employee Benefit Plans identified two practices that are more popular in successful wellness programs when compared to programs finding less success. Those organizations that have involvement and support from organizational leadership and offer stress management programs yielded more successful results across the board – from a positive impact on health care costs to higher employee participation rates.
  5. Incorporate wearablesFitness trackers, smart watches, and other wearable technology are the number one fitness trend for 2019, according to an annual survey of health and fitness professionals. The popularity of technology can invigorate and sustain participation. Employers can utilize the wearables employees own or, if feasible, provide the wearable device. This overcomes one participation hurdle for employees, ensures equal access, and sends a strong message of commitment.
  6. Be creative – keep it interestingChallenges, competitions, gaming, social media…develop a pulse for what motivates your workforce. And don’t let it get stale. It’s normal for employees to lose interest.
  7. Evaluate incentivesIf you offer incentives, they should be evaluated annually. Employers have struggled with getting this right and some have concerns about the future legality of the plans. The incentives must be meaningful to the employees and provide value to the employer.

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

Much needed clarification from OSHA on anti-retaliation provisions

My fellow Certified WorkComp Advisor, Dustin Boss, has allowed me to share his summary of the OSHA anti-retaliation clarification that the U.S. Occupational Health and Safety Administration (OSHA) just issued.

OSHA issued a standard interpretation clarifying its position on the new recordkeeping rule’s anti-retaliation provisions. OSHA’s memorandum essentially “rolls back” its enforcement of the anti-retaliation provisions, particularly concerning safety incentive programs and post-accident drug testing.

Why is this important? Many employers struggled to understand the anti-retaliation provisions since they were published in May 2016 in guidance materials accompanying the new regulations. Up until now, OSHA’s explanations have been extremely vague and confusing. But with this new publication, the confusion ends as the interpretation supersedes all the prior guidance on this topic.

So what changed?

OSHA clarifies that it does not prohibit workplace safety incentive programs or post-incident drug testing. It allows that incentive programs can be an important tool to promote workplace safety and health and encourages programs that reward workers for reporting near-misses or hazards and involvement in a safety and health management system.

OSHA also provides that rate-based incentive programs are permissible under the rule as long as they are not implemented in a manner that discourages reporting. If an employer takes a negative action against an employee under a rate-based incentive program, such as withholding a prize or bonus, or a slice of pizza, because of a reported injury, OSHA will not cite the employer under the anti-retaliation provisions as long as the employer has implemented adequate precautions to ensure that employees feel free to report an injury or illness. It hints that the more “substantial” the reward, then the more the employer may need to do to reassure employees they are free to report without retaliation. In other words, pizza parties are back.

In addition, it states that most instances of workplace drug testing are permissible. Examples of permissible drug-testing include:

  • Random drug testing
  • Drug testing unrelated to the reporting of a work-related injury or illness
  • Drug testing under a state workers’ compensation law
  • Drug testing under other federal law, such as a U.S. Department of Transportation rule
  • Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees. If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.

What should employers do now?

Employers should keep in mind that the regulations do not mention safety incentive programs or drug testing policies. The discussions about prohibitions on drug testing and incentive programs were included in prior guidance given by OSHA, as is yesterday’s interpretation rolling back that position. Thus, this position could change with the next election. For now, employers have some more certainty that the current OSHA is not going to pursue these types of retaliation claims unless there is some strong indications that the employer took action to discourage reporting.

That said, employers need to remember that the key aspect for determining whether their incentive programs are OSHA “compliant” is to treat all employees in a consistent manner and ensure that employees feel free to report an injury or illness.

Regarding employer drug testing programs, to strike the appropriate balance, drug testing policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.

For additional information, see OSHA’s memorandum entitled, “Clarification of OSHA’s Position on Workplace Safety Incentive Programs and Post-Incident Drug Testing Under 29 C.F.R. § 1904.35(b)(1)(iv).”.

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

Things you should know

NLRB issues proposed rule on joint employers

As expected, the National Labor Relations Board (NLRB) has announced publication of a proposed rule on joint employers. The rule will effectively discard the expanded definition of joint employer in the Browning-Ferris Industries decision during the Obama era and return to the much narrower standard that it had followed from 1984 until 2015. An employer may be found to be a joint-employer of another employer’s employees only if it possesses and exercises substantial, direct and immediate control over the essential terms and conditions of employment.

NIOSH publishes guide on air-purifying respirator selection

NIOSH has issued a guide intended to help employers select appropriate air-purifying respirators based on the environment and contaminants at specific jobsites.

Top trend in workers’ comp reform – legislation impacting first responders

According to National Council on Compensation Insurance (NCCI), the introduction of legislation impacting first responders was the top trend in workers’ compensation reforms countrywide, although few bills have passed. In 2018, there were 103 bills dealing with first responders battling post-traumatic stress disorder or cancer, but only five bills passed. Washington and Florida both passed bills that would allow first responders with PTSD to file workers’ compensation claims under certain circumstances, and Hawaii and New Hampshire revised or enacted presumption bills for firefighters battling certain types of cancer. New Hampshire also passed a law that calls for a commission to “study” PTSD in first responders.

Worker fatalities at road construction sites on the rise: CPWR

A total of 532 construction workers were killed at road construction sites from 2011 through 2016 – more than twice the combined total for all other industries – according to a recent report from the Center for Construction Research and Training, also known as CPWR. In addition to the statistics, the report highlights injury prevention strategies for road construction sites from CPWR and several agencies.

State-by-state analysis of prescription drug laws

The Workers Compensation Research Institute published a report that shows how each of the 50 states regulates pharmaceuticals as related to workers’ compensation. Some of the highlights include:

  • 34 states now require doctors to perform certain tasks before prescribing
  • At least 11 states have adopted drug formularies
  • 15 states do not have treatment guidelines to control the prescription of opioids, and preauthorization is not required
  • In at least 26 states, medical marijuana is allowed in some form and nine of those states specifically exclude marijuana from workers’ compensation

Guide and study related to workers and depression

Workers who experience depression may be less prone to miss work when managers show greater sensitivity to their mental health and well-being, recent research from the London School of Economics and Political Science shows. The study was published online in the journal BMJ Open.

In March, the Institute for Work and Health published a guide intended to aid “the entire workplace” in assisting workers who cope with depression or those who support them.

11 best practices for lowering firefighter cancer risk

A recent report from the International Association of Fire Chiefs’ Volunteer and Combination Officers Section and the National Volunteer Fire Council details 11 best practices for minimizing cancer risk among firefighters.

NIOSH offers recommendations for firefighters facing basement, below-grade fires

The Workplace Solutions report offers strategies and tactics for fighting basement and below-grade fires, along with a list of suggested controls before, during and after an event.

Predicting truck crash involvement update now available

The American Transportation Research Institute has updated its Crash Predictor Model. It examines the statistical likelihood of future truck crashes based on certain behaviors – such as violations, convictions or previous crashes – by using data from 435,000 U.S. truck drivers over a two-year period.

This third edition of CPM includes the impact of age and gender on the probability of crashes. It also features average industry costs for six types of crashes and their severity.

State News

California

  • Governor signed four bills related to comp. A.B. 1749 allows the first responder’s “employing agency” to determine whether an injury suffered out of state is compensable. A.B. 2046 requires governmental agencies involved in combating workers compensation fraud to share data, among other changes to anti-fraud efforts. S.B. 880 allows employers to pay indemnity benefits with a prepaid credit card. S.B. 1086 preserves the extended deadline for families of police and firefighters to file claims for death benefits.
  • Governor vetoed bills that would have prohibited apportionment based on genetics, defined janitors as employees and not contractors, identified criteria doctors must consider when assigning an impairment rating for occupational breast cancer claims, called for the “complete” disbursement of $120 million in return-to-work program funds annually, and required the Division of Workers’ Compensation to document its plans for using data analytics to find fraud.
  • The Division of Workers’ Compensation revised Medical Treatment Utilization Schedule Drug List went into effect Oct 1.
  • Independent medical reviews (IMRs) used to resolve workers’ comp medical disputes in the state rose 4.4 percent in the first half of 2018 compared to the first half of 2017; however, in over 90 percent of those cases, physicians performing the IMR upheld the utilization review (UR) physician’s treatment modification or denial. – California Compensation Institute (CWCI)

Florida

  • Workers’ compensation coverage for post-traumatic stress disorder (PTSD) for first responders like firefighters, EMTs, law enforcement officers and others went into effect Oct. 1.

Indiana

  • Workers’ Compensation Board will destroy paper documents in settlements. If parties mail or drop off paper-based settlement agreements and related documents, it will trash them and notify the parties by phone or email to submit online. The board urges parties to follow the settlement checklist and procedure posted on its website.

Minnesota

  • The Department of Labor and Industry formally adopted a number of changes to fees for rehabilitation consultants.
  • Department of Labor and Industry approved rule changes that slightly increase fees for medical and vocational rehabilitation services, and increase the threshold for medical, hospital and vocational rehabilitation services that treat catastrophically injured patients.
  • Effective Jan. 1, the assigned risk rate, which insures small employers with less than $15,000 in premium, and employers with an experience modification factor of 1.25 or higher, will decrease 0.7%.

Missouri

  • A new portal from the Department of Labor offers safety data, video, and training programs.

New York

  • The Workers’ Compensation Board has launched its virtual hearings option for injured workers and their attorneys. For more information.
  • Attorneys or representatives are now required to check-in to all hearings using the online Virtual Hearing Center when appearing in person at a hearing center.

Virginia

  • The Department of Labor and Industry has issued a hazard alert warning of the potential dangers of unsafe materials handling and storage in the beverage distribution and retail industry.
  • The Workers’ Compensation Annual Report for 2017 shows claims and first report of injury are trending up, bucking the downward trend nationally. There has also been a big jump in alternative dispute resolutions.

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

 

Legal Corner

Workers’ Compensation
Appellate court clarifies permanent disability rule – California

In Department of Corrections and Rehabilitation v. Workers Compensation Appeals Board and Dean Fitzpatrick, the issue revolved around whether the Workers’ Compensation Appeals Board applied the correct standard when calculating a worker’s permanently disabled rating. The Board had affirmed an administrative law judge’s ruling of 100% permanent disability, based on Labor Code Section 4662.

Upon appeal, the Appellate Court noted that Section 4662 of the law does not provide for permanent total disability separate from Section 4660, which governs how the finding and award of permanent total disability shall be made “in accordance with the fact” as provided in 4662. It annulled the Board’s decision and remanded the issue for further proceedings.

Federal court upholds use of state worker classification test – California

In a blow to the California Truckers Association (CTA), the U.S. 9th Circuit Court of Appeals ruled that federal deregulation of the trucking industry does not pre-empt the state agency from applying a common law test, called the Borello test, because the law only pre-empts state rules that are “related to prices, routes, or service.” Named for a 1989 state Supreme Court case, the Borello test is the standard used to determine whether a worker is an employee or an independent contractor. California Trucking Association v. Su, No. 17-55133

Reasonableness of refusal to accept job considered in nixing TTD – Florida

In Employbridge v. Rodriguez, the 1st District Court of Appeal overturned an award of temporary total disability benefits to an injured worker who refused a job offer because the commute was too long. In this case, a worker and her husband both worked for Employbridge, a staffing service provider. When they received a new assignment in Largo, they moved to Largo from Tampa. A few years later, the worker fell at work and injured her knee. Initially, the company accommodated her work restrictions with a clerical position at their Largo offices. She was then offered a similar position at the Tampa office, but turned it down.

A Judge of Compensation Claims found the commute between Largo and Tampa justified the decision to refuse the position and awarded TTD benefits. However, in a split decision the 1st District Court of Appeals overturned the award.

Worker wins retaliation case for filing a workers’ compensation claim – Michigan

In Mitchell v. Dore & Associates Contracting (D & A), a worker broke his leg in a work-related accident and received benefits. D & A would hire workers for projects and lay them off when the job was complete. Workers believed if they were injured on the job, they’d never be asked to work again.

After the worker recovered, a former supervisor asked him to work on a project. While working he heard his supervisor speaking with the risk manager for D & A. The worker alleges the supervisor said the risk manager no longer wanted Mitchell on the project and he was never recalled to work.

While the Court of Appeals noted that causation between the workers’ comp claim and layoff is difficult to prove, it found that the trial judge had properly kept information about criminal convictions and excused work absences from the jury and upheld the jury verdict that D & A had unlawfully retaliated.

Damages of $873,000 upheld in negligence suit against supervisor – Missouri

While the statute generally immunizes co-employees from civil liability for a workplace injury, if a co-employee engaged in a negligent act that purposefully and dangerously increased the risk of injury to another employee, the suit can proceed. An employee of a staffing agency was working for a manufacturer and operating a lamination machine. He noticed glue on the bottom rollers and notified the lamination line supervisor, who removed a metal grate and allegedly told the worker to clean the bottom rollers with a wet rag. (The company prohibited workers from running the machine without the guard installed, and the machine displayed a warning against operation without it.)

The worker’s thumb was pulled in and crushed and he filed a personal injury suit against the supervisor and the manufacturer of the laminating machine. He settled with the machine manufacturer, and, while the other case was pending, the supervisor died, so a defendant ad litem was then substituted. Based on the jury’s findings and the settlement with the machine manufacturer, the trial judge awarded $873,000 in damages. The Court of Appeals upheld the decision.

Invalid arbitration agreement means discrimination and retaliation suits can proceed – Missouri

In Caldwell v. UniFirst Corp, a worker was diagnosed with lumbar disc protrusions and herniations and given work restrictions, which the company accommodated initially. His doctor imposed more restrictions and his supervisor allegedly objected to a request for time off and repeated requests for accommodations. After surgery, the company did not allow him to return to work, but extended his medical leave, then fired him.

The worker filed suit against his former employer and supervisor, alleging discrimination on the basis of his disability and retaliation for pursuing a comp claim. The defendants moved to compel arbitration, noting that the former worker had signed an employment agreement that included an agreement to arbitrate any employment-related claims.

A trial judge denied the motion to compel, finding that the arbitration agreement was invalid and the Court of Appeals agreed. For an agreement to be enforceable each party must provide something of value to the other – some form of “consideration,” which was lacking in this situation.

Employer must reimburse firm for third-party settlement of over $1 million – Nebraska

In 2008, an explosion at a Conagra Foods Inc. plant in Garner, North Carolina, killed three Conagra employees and injured more than 60 others while the food company was installing a new water heater. The company that provided a contracted engineer to oversee the project, Dallas-based Jacobs Engineering Group Inc., was sued and settled the claims after failing to obtain contractual indemnification from Conagra.

The engineering company sued Conagra and a jury in district court awarded Jacobs the full amount of the settlement payments, $108.9 million. The Supreme Court affirmed, noting the food company’s “negligence was the proximate cause of Jacobs’ damages” stemming from the lawsuits following the explosion.

Untimely claim denied since employer had no knowledge of injury – New York

In Matter of Taylor v Little Angels Head Start, a worker filed a comp claim more than one year after the employer had put her on medical leave. She claimed her bilateral knee condition was caused from walking between the employer’s work sites and the repetitive stair climbing associated with her job duties. A workers’ comp judge awarded benefits, but the Workers’ Compensation Board found she had failed to give her employer timely notice of injury.

The Board can waive the thirty-day notice if notice could not be given, the employer had knowledge of the injury, or the employer is not prejudiced. While the employer knew of the knee condition, she did not tell her employer it was work-related for over a year.

Scheduled loss of use award can be adjusted for prior injuries – New York

In Matter of Genduso v. New York City Department of Education, a worker injured his right knee and filed a comp claim. He had had two previous injuries to his right knee, which resulted in loss of use awards of 20% and 12.5%. An expert opined that there was a 40% loss of use and the judge deducted the prior awards, leading to a 7.5% scheduled loss of use. The Workers’ Compensation Board and Appellate Court affirmed the award.

Worker’s tort claim against insurer for allegedly providing false information to the police can proceed – North Carolina

Although a workers’ compensation insurer generally enjoys the same immunity from tort liability afforded the employer, there are limits to that immunity. In Seguro-Suaraez v. Key Risk Inc. Co., a worker suffered a serious brain injury in a work-related accident and suffers from significant behavioral and memory deficits. While the insurance company found the injuries compensable, it denied a request for an occupational home therapy evaluation. Over a six-month period, the company video-taped the worker, edited nine hours of surveillance to 45 minutes, and showed to a neuropsychologist, who said the worker was exaggerating his symptoms.

The Industrial Commission issued a decision in the workers’ favor and the insurance company conducted an independent medical exam, which determined the symptoms were valid. In spite of this, the company directed its investigator to convince the Lincolnton Police Department to bring criminal charges against the worker – that he was obtaining his workers’ compensation benefits by false pretenses. This led to his arrest and jailing and indictment on 25 counts of obtaining property by false pretenses and one count of insurance fraud. The charges were dismissed after a psychological examination to determine competency to stand trial noted conditions consistent with his documented medical history.

The Court of Appeals upheld a trial court ruling that the worker can pursue malicious prosecution, abuse of process and unfair and deceptive trade practices claims, but found the trial court erred in failing to dismiss the bad faith and civil conspiracy claims.

Return-to-Work notice requirements clarified – Pennsylvania

The Workers’ Compensation Act requires an employer provide a worker with “prompt written notice” when the employer receives medical evidence that the worker is able to return to work in any capacity. Although “prompt” is not defined, the notice must give the worker a reasonable period of time before the employer requests a modification of benefits.

In County of Bucks v. WCAB (LePosa), the worker received a notice of her ability to return to work along with a letter offering her pre-injury position at the same wage, which had no expiration date. When she did not return to work, the county filed for a suspension of benefits. The Workers’ Compensation Appeal Board said the county was required to prove the worker had received a notice of her ability to return to work before sending her the job offer. The Commonwealth Court disagreed since the offer had no expiration date, noting a notice of ability to work sent with a job offer letter does not, as a matter of law, render the notice not prompt.

Worker with lifetime medical care award must be weaned from opioids – Tennessee

In C.K. Smith Jr. v. Goodall Buildings Inc., an injured worker with an award of lifetime medical care from his employer received high dosages of opioids to manage pain. Several years after the injury, the doctor expressed concern about the possibility of addiction. About the same time, the employer requested a Utilization Review (UR) of the employee’s medications and prescriptions and the UR Board recommended weaning down. The employee then requested a new physician panel, which a trial court approved. However, the Supreme Court’s special workers’ compensation appeals panel reversed that determination, stating that it would violate state code and remanded the case to trial court.

High court finds injury an advancement of preexisting condition and overturns disability award – Tennessee

In Thomas D. Flatt v. West-Tenn Express Inc., a worker fell when a coworker dropped his side of an oil-drip pan, which they were carrying together and claimed to injure his neck and left arm. The worker was in a work-related auto accident one year earlier, but maintained he was fully recovered. The trial court found the new injury was compensable and the impairments did not stem from the auto accident and awarded a 44% permanent partial disability rating.

On appeal, the trucking company had the employee undergo examination by four doctors. Upon reviewing the medical testimony, the Special Workers’ Compensation Appeals Panel with the Supreme Court overturned the trial court ruling. It determined this was not a new, distinct injury, but an advancement of a preexisting condition.

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OSHA watch

OIG finds flaws in fatality and severe injury reporting program

In a recent audit report the Department of Labor Office of Inspector General noted OSHA is not doing enough to ensure it has complete information on work-related deaths and severe injuries, and is not consistent in citing establishments that fail to file required reports. While disputing some of the findings, the agency agrees that better case documentation could promote consistency in issuing citations, but expresses concern that the report suggests the “burden to ensure reporting of injuries and illnesses falls on the agency” instead of employers.

Budget increase expected

A “minibus” appropriations bill approved by the congressional conference committee includes a $5 million increase in OSHA’s budget. It also allocated no more than $102.4 million to State Plans, an increase of $1.5 million, the first increase since 2014. The Susan Harwood Training Grants Program is slated to remain viable for another fiscal year, receiving around $10.5 million.

Federal compliance assistance efforts are scheduled for a $2.5 million increase to $73.5 million, and at least $3.5 million is going to the Voluntary Protection Programs. The enforcement budget is slated for a $1 million boost to $209 million.

Legionellosis webpage updated

The Legionellosis webpage has been updated to include information on preventing, identifying and managing workplace exposure to Legionella bacteria hazards. The Legionella eTool, is a device intended to assist employers, health care providers, and safety and health professionals when inspecting jobsites for Legionellosis.

New trenching resources

An updated Quick Card on trenching operations provides information on protecting workers around trenches, including daily inspections, and trench wall safety.

A new 45-sec public service announcement on trench safety, 5 Things You Should Know to Stay Safe, features U.S. Secretary of Labor Alexander Acosta and highlights well-known and proven safety measures that can eliminate hazards and prevent worker injuries.

Website to feature safety tip of the week

Every Monday, the OSHA homepage will feature a brief safety tip to help employers and workers prevent workplace injuries and illnesses. Each tip will link to educational and training resources.

California – Recordkeeping violations extended to five years

A bill, AB 2334, expanding the statute of limitations for recordkeeping requirements under the jurisdiction of the California Division of Occupational Safety and Health (“Cal/OSHA”) was signed into law and becomes effective January 1, 2019. The bill changes the definition of “occurrence” in the California Labor Code for purposes of the statute of limitation for violations relating to recordkeeping, “until…corrected, or the division discovers the violation, or the duty to comply with the violated requirement ceases to exist.” In effect, it gives Cal/OSHA the authority to issue citations for recordkeeping violations that exist during the entire five-year period employers are required to maintain injury and illness records. Previously, employers could not be cited for violations that took place more than six months before the citation was issued, the same as the federal statute.

Enforcement notes

California

  • San Jose-based GreenWaste Recovery Inc., a waste removal company, was cited $46,270 for serious violations after a worker was run over by a truck and killed.
  • Disneyland was cited and fined $33,000 for failing to properly clean water storage tanks following an outbreak of Legionnaires’ disease in August of last year that affected three employees as well as visitors. Disneyland has appealed.

Florida

  • Five contractors were cited for seven workplace safety violations after a fatal pedestrian bridge collapse at the International University campus in Miami and face proposed penalties totaling $86,658. Violations included exposing employees to crushing and fall hazards and allowing multiple employees to connect to an improperly installed lifeline.
  • Inspected as part of Regional Emphasis Program on Falls in Construction, Coastal Roofing, Inc. of Jacksonville, faces $105,283 in proposed penalties for exposing workers to fall and other hazards.

Georgia

  • As a result of a follow-up inspection that was part of a formal settlement, Great Southern Peanut LLC of Leesburg, a peanut processing facility, faces $309,505 in proposed penalties and was placed in the Severe Violator Enforcement Program. Citations included failing to develop and implement procedures for confined space entry, train employees on confined space hazards, reduce compressed air to the required level, and meet recordkeeping requirements.

Michigan

  • Packaging Specialties, Inc. of Romulus faces 17 citations and $144,900 in penalties for repeatedly exposing workers to safety hazards, including failing to train workers to safely operate aerial lifts, and conduct periodic safety inspections for the control of hazardous energy.

Missouri

  • After an employee was killed at the St. Joseph sawmill site, American Walnut Company LLC was cited for two repeated and 14 serious safety violations and faces fines of $199,183. The repeat violations related to failing to protect employees from amputation hazards and keeping walking-working surfaces free of debris.

Nebraska

  • Nebraska Railcar Cleaning Services (NRCS) and its executives are criminally charged after workers’ deaths. At the time of the incident, the company received 30 citations reaching almost $1 million and was placed in the Severe Violator Enforcement Program. They now face a 22-count criminal indictment that they not only failed to implement worker safety standards, but then tried to cover it up during the subsequent inspection. They also are charged with mishandling hazardous wastes removed from rail tanker cars during the cleaning process.

Pennsylvania

  • An administrative law judge of the OSHRC affirmed all workplace safety citations against Pro-Spec Corp., doing business as Pro-Spec Painting, an abrasive blasting and painting company in Easton and Quakertown and assessed $44,536 in penalties.

Virginia

  • Lanford Brothers Company faces five citations and $304,130 in penalties for exposing workers to respirable crystalline silica hazards while using jackhammers to remove concrete from bridge piers.

For more information.

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OSHA Update

Walking/Working Surfaces Rule – important deadline approaching, enforcement lessons

Falls are one of the leading causes of serious injury and death in the workplace. Approximately 20 percent of the workplace fatalities, disabling injuries, and days away from work in general industry result from slips, trips, and falls. Each year, the Walking/Working Surfaces Rule is among the most cited standards by OSHA. Four of the agency’s 10 most cited standards in 2017 were related to fall prevention, including the rules for ladder safety and scaffolds.

OSHA began its attempts to update the rule in 1990, which was finally accomplished in 2016, with a 513-page document. The update to the general industry walking-working surfaces standards (found in 29 CFR 1910 Subpart D) and its scaffold standards (found in Subpart I) clarified definitions, eliminated overly specific application conditions, better organized the requirements, simplified general requirements, aligned more closely with the construction standard, and gave flexibility to use personal fall protection systems in lieu of guardrail systems. It has met with few legal challenges.

November 19 deadline for existing fixed ladders

With the exception of some requirements for updating fixed ladders, the requirements of the updated standards became effective in 2017. Under the revised standard, cages or wells for fall protection on fixed ladders higher than 24 feet are no longer acceptable. However, there are grandfather provisions and a phase-in period for the new provisions:

  • Fixed ladder systems installed before November 19, 2018 must have a cage, well, ladder safety system or personal fall arrest system
  • Fixed ladder systems installed on or after November 19, 2018 must be equipped with a personal fall arrest system or ladder safety system (cages or wells for fall protection are no longer acceptable) (1910.28(b)(9)(i)(B))
  • When any portion of a fixed ladder is replaced, the replacement must be equipped with a ladder safety or personal fall arrest system (1910.28(b)(9)(i)(C))
  • Cages and wells on all fixed ladders extending more than 24-feet must be replaced with a ladder safety or personal fall arrest system by November 18, 2036 (1910.28(b)(9)(i)(D))

Insights from enforcement statistics

Since OSHA’s fiscal year begins in October, the most recent enforcement statistics include 3.5 months under the old rules and 8.5 under the new. However, they do shed light on vulnerable areas for employers. (Statistic from Conn, Maciel, Carey webinar, Lessons learned from OSHA’s updated Walking/Working Surfaces Rule)

The highest number of citations were under Section 1910.22 General Requirements:

  • 291 citations for general housekeeping
  • 122 citations for clean and dry floors
  • 53 citations for walkways free from hazards
  • 18 citations for maximum load intended

Lesson: Clearly the number one issue is keeping floors and surfaces clean, dry, and clear of hazards. This type of citation is low hanging fruit for OSHA. It’s also important to note that while the rule does not have a requirement for posting a maximum intended load notice, employees must know the maximum intended limit.

Section 1910.28 is the second most cited section. This requires employers to protect workers from all fall hazards along unprotected sides or edges that are at least four feet above a lower level.

  • 205 citations for unprotected sides and edges
  • 55 citations for fall protection stairways
  • 49 citations for falls – holes
  • 26 citations for falls around dangerous equipment

Lesson: Unprotected sides and edges are a pain point for employers and OSHA. Though the rule states specific details for different situations, it offers more fall prevention and protection options than guarding, such as safety net systems, personal fall arrest systems (PFAS), positioning systems, travel restraint systems, and ladder safety systems and identifies the exceptions to the requirement.

Grandfathering provisions

In addition to the grandfathering provisions for fall protection for existing fixed ladders discussed above, the rule also allows grandfathering for:

However, in the preamble it notes that grandfathering is not allowed for guardrail height. Grandfathering status is unclear for the dimensions between ladder ledges and step bolts.

OSHA resources

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HR Tip: New FMLA forms available from DOL

The Family and Medical Leave (FMLA) certification forms and notices are now valid until Aug. 31, 2021. DOL didn’t make any substantive changes to the forms, other than the new expiration date. Here they are:

Notices

Certification forms

The DOL must submit its FMLA forms to the Office of Management and Budget (OMB) for approval every three years. OMB review is required to ensure the FMLA certification and notice process isn’t too bureaucratic.

While the forms aren’t mandatory, many employers use them. Some employers copy and paste the DOL form into their own form, replacing the DOL logo with their own.

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